United States v. Cascio, 90 CR 1051 (ILG)
| Decision Date | 24 August 2011 |
| Docket Number | 90 CR 1051 (ILG) |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. FRANK LO CASCIO, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Pending before the Court is a motion by the defendant seeking an Order that would compel (l) access to public records and the unsealing of all sealed audio recordings dated November 30,1989 and December 12,1989 in the above captioned case, said records currently in the possession of the United States Attorney's Office for the Eastern District of New York and/or the Federal Bureau of Investigation currently under a sealing order of this Court dated January 9,1998; (2) unsealing of any and all transcripts of the jury selection and trial of the above captioned matter that may currently be under seal; and (3) ordering the United States Attorney's Office to authorize Carroll Audio to release unenhanced copies of the tapes of this case to the defendant, his counsel and experts and shall permit the defendant's expert to examine the original tapes that may be in their possession.
The Court is compelled, yet again, by this motion to revisit the "Gotti case" twenty one years after LoCascio, his co-defendant, was convicted and sentenced, to again find that portion of the 8,000 page transcript that responds to it. A kaleidoscopic review of the seemingly endless litigation pursued by LoCascio will serve to put this motion in proper perspective.
LoCascio, together with John Gotti, were convicted after a 6 week jury trial that began in February 1992, of substantive and conspiracy RICO violations of 18 U.S.C. § 1962(c) and (d), and a number of predicate acts charged as separate counts. He was sentenced to life imprisonment. The charges stemmed from his involvement as the "underboss" of the Gambino Crime Family. He and Gotti appealed their judgments of conviction entered on June 23,1992, and from the denial of their motions for a new trial and from the subsequent denial of their renewed motions for a new trial. The primary evidence at trial consisted of tape recordings of conversations in the Ravenite Social Club and the testimony of Salvatore Gravano, who was a cooperating witness. Gotti was represented on appeal by Charles Ogletree, Professor of Law at Harvard Law School and Ephraim Margolin of San Francisco, California. LoCascio was represented by Michael Tigar of Texas, Dennis Riordan of San Francisco and Michael Kennedy of New York. The issues raised on appeal were thoroughly considered by the Court in a 34 page opinion and their convictions and sentences were affirmed in October 1993? United States v. LoCascio, 6 F.3d 924 (2d Cir. 1993). Familiarity with that opinion is assumed.
This Court began an opinion, reported in 171 F.R.D. 19 (E.D.N.Y. 1997), by noting that it was the fourth motion filed on behalf of LoCascio pursuant to Rule 33 Fed. R. Cr. P. The primary basis for it was new evidence which allegedly established that Gravano committed perjury when he testified against him at trial and therefore was not effectively cross-examined. In an opinion of 39 pages, the Court meticulously examined each contention of perjury ascribed to Gravano and denied his motion.
In 2003, approximately ten years after his conviction, eleven pretrial motions, see 171 F.R.D. 19, n.i at 22, four motions pursuant to Rule 33 Fed. R. Cr. P., an affirmanceon appeal in 6 F.3d 924 and denial of cert. 511 U.S. 1070, LoCascio moved the Court pursuant to 28 U.S.C. § 2255 to vacate his judgment of conviction. This was his fifth attempt to obtain relief. The Court began its 18 page opinion as follows: "It would, I believe, contribute to an appreciation of what follows, to keep in mind that after a trial, the transcript of which exceeds 8,000 pages, at which testimony of upwards of thirty witnesses was presented, and received in evidence were audio cassettes of electronically intercepted conversations, transcripts of which filled seven loose leaf binders which aided the jury while listening to them, extensive video recordings, photographs and documents, LoCascio was convicted . . . . " 267 F. Supp.2d 306, 307-08 (E.D.N.Y. 2003). The basis of that motion was again, that the government elicited testimony against him from Gravano which the government knew was false and that he was deprived of effective assistance of counsel. Familiarity with that Court's opinion is assumed.
LoCascio appealed the denial of his petition arguing only that he was denied effective assistance of counsel. That claim was based on an affidavit from Anthony Cardinale, one of LoCascio's trial counsel, stating that he received death threats from Gotti because he individualized the interests of LoCascio at Gotti's expense and thus thereafter conformed his representation of LoCascio to Gotti's wishes. As was indicated above, I denied his § 2255 petition on the ground that it was meritless and in addition, procedurally barred. 267 F. Supp.2d 306, supra. The Court of Appeals remanded the case to this Court for an evidentiary hearing. 395 F.3d 5 (2d Cir. 2005). On remand, which required the Court to review an 8,000 page record once again, and arrive at the same conclusion previously reached, that his claim was specious, a conclusion buttressed by extensive references to the record. 462 F. Supp.2d 333 (E.D.N.Y. 2005).
Three days before the evidentiary hearing on remand was to begin, LoCascio filed a motion to recuse or disqualify me, which I denied. LoCascio appealed that denial and the denial after remand of his § 2255 motion. The Court of Appeals addressed and affirmed the denial of both in 473 F.3d 493 (2d Cir. 2007).
The procedural history of this case, reflected in more than nineteen written opinions,1 more specifically, the affirmance by the Court of Appeals of the denial of LoCascio's § 2255 petition and the denial of certiorari by the Supreme Court in 2007 precludes any further post conviction proceedings for relief. Every conceivable motion for such relief has been exhausted. That indisputable fact notwithstanding, the affirmation in support of this motion by LoCascio's attorney avers in its second paragraph that "This affirmation is submitted in support of the motion of defendant Frank LoCascio for post-conviction relief . . . . " No citation of authority pursuant to which that relief can still be sought is provided.
Of particular interest are assertions in his attorney's letter to the Court dated October 29, 2010 that: "The defendant has never had access to the sealed transcripts nor the opportunity to have them reviewed even for purposes of his appeal or habeas corpus petition . . . . Moreover, the defendant has never had access to the original tape recordings sought . . . .He was only given access to enhanced tapes . . . . The defense attorneys and the "others" are not named.
In the course of his extensive litigation in this case, LoCascio was represented by no less than ten different lawyers, each of whom was a competent and some even notable criminal defense lawyers. Her affirmation plainly and incredulously suggests that his lawyers represented LoCascio at trial, on appeal and in his various postconviction motions without having seen all relevant transcripts or heard original and unenhanced tape recordings.
The trial record belies those assertions and her extensive and exhaustive research. The undisputed testimony of Special Agent George Gabriel of the FBI on direct and on cross-examination was that: Copies of the Ravenite tapes were made for the defense team, Tr. at 1688; there was no alteration of originals, Tr. at 1712; no tapes were enhanced, Tr. at 1910; entire conversations on tape were given to the defendants months before the trial and transcripts of tape recordings represented precisely what was heard on tape, Tr. at 1926; the intercepted conversations were recorded in duplicate original, Tr. at 1678; words were never heard that were not put in the transcript, Tr. at 1932-33; forty six original video cassettes of surveillance in front of the Ravenite Club were received in...
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