U.S. v. DiFrancesco

Decision Date06 August 1979
Docket NumberD,908 and 1094,Nos. 231,s. 231
Citation604 F.2d 769
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Eugene DiFRANCESCO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Eugene DiFRANCESCO, Defendant-Appellee. ockets 78-1250, 78-1369 and 78-1371.
CourtU.S. Court of Appeals — Second Circuit

Harold J. Boreanaz, Buffalo, N.Y. (Boreanaz, NeMoyer & Baker, Buffalo, N.Y.), for defendant-appellant, defendant-appellee DiFrancesco.

Victor D. Stone, Atty., Dept. of Justice, Washington, D.C. (Richard J. Arcara, U.S. Atty., for the Western District of New York, Jerome M. Feit, Atty., Dept. of Justice, Washington, D.C., of counsel), for plaintiff-appellee, plaintiff-appellant United States.

Before SMITH and MESKILL, Circuit Judges, and HAIGHT, * District Judge.

J. JOSEPH SMITH, Circuit Judge:

These are appeals by a defendant from judgments of conviction entered after two separate jury trials in the United States District Court for the Western District of New York, and by the government from a sentence imposed under the "dangerous special offender" provisions of 18 U.S.C. § 3575. In the first trial, Harold P. Burke, Judge, presiding, the appellant, Eugene DiFrancesco, was convicted of conspiring to participate in and conduct the affairs of an enterprise through a pattern of racketeering activity, which included multiple acts of arson and use of the mails to defraud insurance companies, in violation of 18 U.S.C. § 1962(c) and (d). In the second trial, George C. Pratt, Judge, presiding by designation, DiFrancesco was convicted on three counts which alleged that he willfully caused damage in excess of $100 to federal property, 18 U.S.C. § 1361, unlawfully stored explosive materials, 18 U.S.C. § 842(j), and conspired to commit these acts, 18 U.S.C. § 371. We affirm the convictions and dismiss the government's appeal.

On July 24, 1975, DiFrancesco, together with seven co-defendants, was indicted on charges arising out of a series of bombings that occurred in the Rochester area on Columbus Day in 1970. A second indictment, filed on April 7, 1976, named DiFrancesco and seven others, two of whom were also defendants in the bombing indictment, as defendants in two counts of racketeering involving an "arson-for-hire" ring operating in the Rochester area. Since this second indictment was the first to come to trial, we shall begin by discussing DiFrancesco's appeal from the resulting conviction on the racketeering charges.


DiFrancesco and five of the seven co-defendants in the racketeering indictment were tried jointly, in September and October of 1977. Of the two remaining defendants, Joseph LaNovara pleaded guilty before trial and testified as a witness for the government, while Frank Valenti, the alleged leader of the conspiracy, was severed upon the government's motion because he was ill.

The government presented evidence by which it sought to prove that an arson-for-hire team, which operated as part of a larger organization engaged in illicit activities in the Rochester area, had been responsible for at least eight fires that occurred there between 1970 and 1973. The arson ring allegedly agreed with the property owners to destroy their buildings in return for a share of the insurance proceeds. The government charged that insurance companies had been defrauded of about $480,000 as a result of the eight fires. The jury acquitted four of the six defendants, but convicted DiFrancesco and Vincent Rallo on both counts. DiFrancesco's appeal alleges several errors in the district court.

The most substantial issue raised by DiFrancesco is whether certain statements made by government witnesses to the FBI should have been turned over to the defendants under the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Shortly before this trial began, it was disclosed that allegations of wrongdoing had been lodged against some members of the Monroe County Sheriff's Office. These allegations arose in connection with the Sheriff's Office's investigation of a number of crimes in which the defendants in this case allegedly had been involved, including a murder for which DiFrancesco had been convicted in state court. The FBI, as part of a federal civil rights investigation of the Sheriff's Office's activities, conducted a number of interviews and compiled interview reports. 1 The subject matter of some of these interviews included alleged instances of perjury by witnesses in state court proceedings. Some of these witnesses were expected to be called by the United States to testify in the case against DiFrancesco and his co-defendants.

When this matter arose, Judge Burke granted a continuance for one week during which the government represented that it would seek to learn more about the allegations and would then "turn over all materials that is (sic) favorable to the defense that result from the investigation." The government reviewed approximately thirty to thirty-five FBI reports and determined that only one was Brady material. The government then submitted the reports to the trial judge to allow him to decide whether he thought any of the remaining material fell within Brady. The judge picked out about fifteen other reports which he ruled were Brady material, but the government refused to turn over these additional reports to the defendants. It argued that exposure of the reports could endanger the ongoing civil rights investigation. Thus, the government stated that it was "willing to stand or fall on that decision (that the reports were not Brady material) made by itself." The court denied a motion that it order the government to turn over the reports. Instead, those reports which the court believed were Brady material were sealed as Court Exhibit A, and those which the court and government agreed were not within Brady were sealed as Court Exhibit B. At some later time, the government gave defense counsel the reports of interviews of LaNovara and of Angelo Monachino, an unindicted co-conspirator, who was to testify for the government. Both of these reports were part of Court Exhibit A, as was a third report which the government eventually turned over as Jencks Act material.

Our examination of the court exhibits convinces us that the reports included no Brady material. None of the reports exculpated DiFrancesco, nor did any demonstrate that the government's case included perjured testimony. Furthermore, nothing in the reports that the government refused to turn over constituted "material evidence that would impeach a Government witness whose 'reliability . . . may well (have been) determinative of guilt or innocence.' " Ostrer v. United States, 577 F.2d 782, 785 (2d Cir. 1978), Cert. denied, 439 U.S. 1115, 99 S.Ct. 1018, 59 L.Ed.2d 73 (1979), Quoting Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), Quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). One report (Part A of Court Exhibit A) contains two comments attributed to Monachino. Neither of these comments, however, could have been used to impeach Monachino in any way that might have affected the outcome of the trial, which is the standard by which we measure the materiality of undisclosed information for which the defendant makes a specific request. United States v. Agurs, 427 U.S. 97, 104-06, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Ostrer, supra, 577 F.2d at 786. In short, the FBI reports would have added nothing to the vigorous attacks which DiFrancesco and his co-defendants made upon the credibility of a number of the government's witnesses through use of the substantial public information relating to the investigation.

DiFrancesco also raised several arguments involving evidentiary questions and portions of the court's instructions to the jury. The first concerns the introduction into evidence of a state court indictment that charged DiFrancesco and others with an act of arson, a fire at Select Tire Company, that also constituted part of a specific act of racketeering alleged in the federal indictment. The government offered the indictment and had a portion of it read to the jury as part of its rebuttal case, for the stated purpose of making the jury aware of the final disposition of the state court case against one of the persons named in the state indictment.

It is difficult to perceive how the indictment was relevant for the purpose stated by the government. In fact, its relevance and materiality to any issue in the case was, at best, minimal. Counsel for the various defendants, including DiFrancesco, opened up the subject of the state court proceedings in their cross-examination of government witnesses. Introduction of the indictment, however, was not, as the government now contends, necessary to clarify the "meaning" of the outcome of the state trial. 2 But admission of the indictment, even if erroneous, did not prejudice DiFrancesco. The jury already knew, from the defendants' cross-examination of government witnesses, that the state grand jury had received testimony implicating DiFrancesco in the Select Tire fire, that some persons had been tried in state court in connection with that fire, that testimony alleging DiFrancesco's participation had been offered at the state court trial, and that DiFrancesco had been named as a co-conspirator in yet another federal indictment alleging mail fraud arising from a separate act of arson. Under these circumstances, admission of the indictment, even if erroneous, was harmless.

DiFrancesco also disputes the admissibility of certain testimony by LaNovara and Monachino, who described the initiation ritual 3 followed by the organization of which the arson-for-hire ring was a part. Admission of this testimony was not erroneous. The evidence was probative of the existence of an "enterprise," the affairs of which were conducted through a pattern of racketeering...

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