United States v. Provenzano

• Decision Date: 04 September 1981
• Docket Number: Crim. No. 79-72.
• Citation: 521 F. Supp. 403
• Parties: UNITED STATES of America, Plaintiff, v. Anthony PROVENZANO, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

521 F. Supp. 403

UNITED STATES of America, Plaintiff, v. Anthony PROVENZANO, et al., Defendants.

Crim. No. 79-72.

United States District Court, D. New Jersey.

September 4, 1981.

COPYRIGHT MATERIAL OMITTED

William W. Robertson, U. S. Atty., Newark, N. J. by Jeffrey Speiser, Asst. U. S. Atty., Newark, N. J., for the Government.

Harvey Weissbard, West Orange, N. J., and Maurice Edelbaum, New York City, for defendant Provenzano.

John L. Pollok, New York City, for defendant Thomas Andretta.

Donald R. Conway, Hackensack, N. J., for defendant Stephen Andretta.

MEANOR, District Judge.

It is quite certain that this nation's founding fathers, the framers of our Federal Constitution and the Bill of Rights, never envisioned that the right of a criminal defendant to a speedy and public trial in an arena where witnesses could be confronted by cross-examination, would evolve into merely a dress rehearsal for a long-running soap opera of post-conviction relief. The longer such a drama runs, the less faith society has in a system which appears never to give justice its due.¹

Just as "there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused," Barker v. Wingo, 407 U.S. 514, 519, 92 S.Ct. 2182, 2186, 33 L.Ed.2d 101 (1972), so is there a societal interest in the finality of judgments which result from those speedily provided trials. A jury's guilty verdict at a trial provided within the parameters of both the sixth amendment's speedy trial clause and the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq., is meaningless to society when endless post-conviction motions to attack collaterally facets of the trial operate to stay the final judgment into the distant future. It is indeed ironic that a speedy trial which results in a guilty verdict, swiftly begets impediments to finality. Congress² and the courts³ have expressed the public's right to speedy justice. It is an increasingly empty right when well-financed, convicted defendants attempt to prolong the final day of reckoning by abusing the post-conviction relief process.

Defendants Provenzano, Thomas Andretta, Stephen Andretta and Gabriel Briguglio were indicted on February 22, 1979 and were brought to trial within the time mandated by Congress in the Speedy Trial Act. After a three-week public trial they were all convicted by a jury on May 25, 1979. On July 3, 1979, Provenzano moved for an evidentiary hearing with respect to an alleged violation of the court's jury sequestration order. The other defendants joined in the motion. On July 6, 1979 after a hearing on the motion, the court denied Provenzano's request for leave to question members of the jury. Four days later, on July 10, 1979, the court denied all defendants' applications to vacate the jury verdict and to enter judgments of acquittal, and sentenced them. After sentencing Provenzano and Thomas Andretta each to twenty years' imprisonment and fines of $20,000, the court denied them bail pending appeal and ordered them remanded to custody. Provenzano and Thomas Andretta then sought an order from the Court of Appeals for the Third Circuit releasing them, which was denied on August 21, 1979, United States v. Provenzano, 605 F.2d 85 (3d Cir. 1979).

All defendants appealed their convictions. While the appeal was pending, Provenzano, Thomas Andretta and Briguglio moved for a new trial or expansion of the trial record. Provenzano also moved for the recusal of the trial judge for the purpose of hearing the new trial motion.⁴ On September 21, 1979, Provenzano withdrew his recusal motion and, after a hearing, the court denied the defendants' new trial motions. Three days later, on September 24, 1979, Provenzano filed a notice of appeal from the court's denial of his motion for a new trial. On September 28, 1979, Thomas Andretta and Briguglio filed similar notices of appeal. On May 8, 1980, the Court of Appeals denied the consolidated appeals of Provenzano and both Andrettas, United States v. Provenzano, 620 F.2d 985 (3d Cir. 1980).⁵ Those defendants petitioned the United States Supreme Court for a Writ of Certiorari which was denied on October 14, 1980, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 129.

On January 13, 1981, Provenzano filed a notice of motion pursuant to Fed.R.Crim.P. 33 for an order granting a new trial on the basis of newly discovered evidence. Stephen Andretta filed the same motion on January 16, 1981 and Thomas Andretta joined on March 18, 1981. After repeated requests by Provenzano for adjournment of the hearing date, on May 11, 1981 this court heard argument on defendants' motions and reserved decision. Less than one week later, Provenzano's attorney contacted the court and requested that decision on the motion be withheld because he intended to file a motion for the court's recusal. On June 5, 1981, Provenzano filed the recusal motion. Neither of the Andrettas joined in that motion. After a hearing on June 22, 1981, the recusal motion was denied. While decision was reserved on the Rule 33 motions, the court heard motions on July 27, 1981 by Thomas and Stephen Andretta to reduce their sentence. Thomas Andretta's motion was denied and Stephen Andretta's motion was granted.

It is now more than two years since the defendants in this case were convicted of violating the federal racketeering laws. This court must now rule upon motions by Anthony Provenzano, Thomas Andretta and Stephen Andretta (hereafter collectively "Provenzano") for a new trial based upon "newly discovered evidence." The evidence which is alleged to be newly discovered is (a) two FBI 302 investigative reports, (b) documents from the file of a United States Magistrate and Clerk's docket sheet detailing the issuance of a complaint charging witness Ralph Picardo with escape, and the warrant of arrest for that escape issued out of this district, and (c) Picardo's testimony in a later trial, allegedly inconsistent with his testimony in the instant case.⁶

THE 302s

Provenzano contends that the 302s were not turned over to the defendants under the court's Brady order, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1967), and that they contain information which, had counsel been aware, could have been used to impeach the credibility of Picardo with respect to an alleged trip to Miami, Florida in late 1973. It was during the Miami trip that Picardo claimed he discussed "labor peace" involving his company, Lift-Van, with Provenzano.

One 302 recounts an investigation by FBI Agent Smith on January 15, 1976 during which an executive of a sporting goods store at the Americana Hotel was interviewed with regard to whether Provenzano or Picardo had made purchases of clothing during the time when Provenzano was allegedly at the hotel. A review of sales receipts indicated no such sale nor did the executive recall seeing Provenzano, with whom he was acquainted. The 302 concludes: "It should be noted that the records revealed numerous cash sales where no names were obtained."

The other 302 details an investigation by FBI Agent Sullivan of Eastern Airlines' microfilm reservation records for the period November 8, 1973 through November 15, 1973 searching for reservations in the name of Andretta, Briguglio or Picardo from Newark to Miami or Ft. Lauderdale and return. No such names were found in the microfilm records. Sullivan interviewed the Past Date Records Clerk who advised "that it would have been possible to have obtained transportation via Eastern Airlines for the above indicated time period without having that information recorded on their microfilm reservation records."

Provenzano contends that these 302s were never produced to defense counsel, see Affidavits of Harvey Weissbard, Esq. (Provenzano's present counsel), Jay Goldberg, Esq. and Gerald Shargel, Esq. (Provenzano's trial counsel), and that they are material to his defense. The Government asserts that the 302s were provided prior to trial, see Affidavit of Jeffrey Speiser, Special Attorney, Department of Justice (the Government's trial counsel). Provenzano contends that the 302s first surfaced in Brady material produced for the trial of Frank Tiari in the Southern District of New York in November 1980, approximately 18 months after the trial in the instant case. (Tiari and Provenzano retained the same trial counsel, Jay Goldberg.) Thus, Provenzano alleges that the evidence is newly discovered and should be the basis for a new trial. Provenzano further alleges that FBI Agent Smith, who testified as a defense witness, committed perjury or purposefully attempted to create a false impression when he didn't mention the interview with the sporting goods store executive and, thus, tried to mislead defense counsel and the jury concerning the extent of the FBI's investigation to verify Picardo's alleged trip to Miami.

THE "ESCAPE" DOCUMENTS

While in the Federal Witness Protection Program, Picardo was incarcerated for a time at a facility in Portland, Maine, where he was classified as a "trustee" and afforded certain privileges. On December 23, 1976, Picardo walked away from the facility. Upon being informed of the walkaway, Robert Stewart, then a Special Attorney with the Department of Justice who had been dealing with Picardo, notified William W. Robertson, then head of the Newark Strike Force, of the escape. Robertson had a complaint filed with United States Magistrate William J. Hunt on December 23, 1976 (Mag. No. 76-2134MG-2), charging Picardo with a violation of 18 U.S.C. § 751(a)—Escape from custody, and requested that an arrest warrant issue. It was further ordered that the complaint be sealed. Picardo was arrested the same date by two FBI agents in New York State after they received a teletype that a warrant had issued for his arrest. On February 9, 1977, 48 days after the escape, the United States Attorney in Portland, Maine declined prosecution of Picardo for the incident.

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