United States v. De Sapio

• Citation: 456 F.2d 644
• Decision Date: 25 February 1972
• Docket Number: Docket 71-2153.,No. 492,492
• Parties: UNITED STATES of America, Appellee, v. Carmine G. De SAPIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

456 F.2d 644 (1972)

UNITED STATES of America, Appellee, v. Carmine G. De SAPIO, Defendant-Appellant.

No. 492, Docket 71-2153.

United States Court of Appeals, Second Circuit.

Argued January 19, 1972.

Decided February 25, 1972.

Certiorari Denied May 15, 1972.

Robert G. Morvillo, Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty., S.D.N.Y., James Schreiber, Ross Sandler, Peter F. Rient, Asst. U. S. Attys., of counsel), for appellee.

Milton S. Gould, New York City (Shea, Gould, Climenko & Kramer, Henry J. Boitel, Miles F. McDonald, Jr., Bernard D. Fischman, New York City, of counsel), for defendant-appellant.

Paul G. Chevigny, New York City, Atty., New York Civil Liberties Union, amicus curiae.

Before SMITH, FEINBERG and MULLIGAN, Circuit Judges.

Certiorari Denied May 15, 1972. See 92 S.Ct. 1776.

MULLIGAN, Circuit Judge.

Carmine G. De Sapio appeals from an order entered in the United States District Court for the Southern District of New York on December 13, 1971 by the Hon. Harold R. Tyler, United States District Judge, denying his second motion for a new trial based upon newly discovered evidence (Fed.R.Crim.P. 33) and the alleged suppression of evidence by the United States Government at trial or alternatively for an evidentiary hearing.

After a four-and-a-half week trial before Judge Tyler, the jury returned a guilty verdict against De Sapio on December 13, 1969. He was convicted of conspiracy to obstruct commerce through extortion and to travel interstate and to use interstate facilities to commit bribery (18 U.S.C. § 371) and of two substantive violations of 18 U.S.C. § 1952, unlawfully travelling interstate and using interstate telephone facilities to facilitate bribery. The jury found that De Sapio had conspired with others to bribe James Marcus, then Commissioner of the New York City Department of Water Supply, Gas and Electricity, to withhold permits sought by Consolidated Edison Company of New York, Inc. until it had awarded construction contracts to another conspirator. De Sapio was sentenced to concurrent terms of two years imprisonment on each count and to fines of $1500 on each of the three counts. De Sapio's first motion for a new trial based upon newly discovered evidence was denied by Judge Tyler on February 10, 1970. On November 16, 1970 this court affirmed the judgment of conviction and the order denying the motion for a new trial. United States v. De Sapio, 435 F.2d 272 (2d Cir. 1970). Petitions for rehearing and rehearing en banc were denied on December 28, 1970. The Supreme Court denied certiorari on May 24, 1971, 402 U.S. 999, 91 S.Ct. 2170, 29 L.Ed.2d 166 (1971).

The motion made below is based upon alleged newly discovered evidence that Herbert Itkin, a principal government witness in the De Sapio trial, is a self-confessed perjurer and suborner of perjury, that he is further an agent of the C.I.A. and the F.B.I. and hence not a true conspirator and finally that the government knew of his perjury, indeed abetted it, and then suppressed it at trial in violation of the appellant's constitutional rights under the fifth and sixth amendments of the Constitution. The newly discovered evidence consists primarily of the alleged perjurer's sworn testimony in federal, state and English proceedings which were conducted after or were available for examination after the appellant's trial and appeal. After oral argument and the submission of briefs, Judge Tyler rejected all of these contentions in his order and opinion of December 13, 1971. After a careful reading of the testimony and cross-examination of Itkin in this case and his subsequent testimony in other cases, we affirm the order denying the motion for a new trial and the suggested alternative of an evidentiary hearing.

Much of that which is alleged to be new was unquestionably known or should have been known to De Sapio's counsel at the time of the trial; that which wasn't is merely impeaching or cumulative, and the proposition that it probably or even possibly might change the jury verdict is not tenable. The so-called new evidence sheds no further light on Itkin's relationship to the government which has already been fully explored and determined by this court in Chief Judge Friendly's careful analysis in his opinion affirming De Sapio's conviction and the denial of his first motion for a new trial. A reading of that opinion, United States v. De Sapio, supra, is necessary if this one is to be fully comprehended.

Herbert Itkin has been a voluble but valuable informant whose information has resulted in the indictment, trial and conviction of some leading criminals. He has been cross-examined by experts. Appellant's counsel has culled the thousands of pages of his testimony and has assembled a melange of material, none of which on scrutiny has any meaningful relationship to the question of De Sapio's guilt or innocence. In essence, what is sought here is the grand inquisition and examination after trial of Itkin, urged upon us as an American Titus Oates. Itkin is not on trial here— whether he is Benedict Arnold, Nathan Hale or perhaps Walter Mitty or a composite of all three might well be a fascinating undertaking. However, we are circumscribed by well established rules of appellate review which limit our task to the determination of whether there is newly discovered evidence that Herbert Itkin committed perjury in the trial of Carmine De Sapio, that he was a government agent and not a true conspirator and that the government suppressed evidence in that trial.

I The Newly Discovered Evidence

1) In April, 1970 Itkin was a government witness in a case, United States v. McCarthy, No. 68 Cr. 467 (S.D.N.Y. April, 1970) which involved labor racketeering and had nothing to do with the factual issues in the De Sapio case. On cross-examination, in an attack on Itkin's credibility, he admitted that he had been indicted in New York County for conspiracy to commit perjury. Defense counsel then made an offer of proof that two detectives from District Attorney Hogan's office in New York County had overheard a conversation between Itkin and Marcus in a restaurant in December, 1967 in which Itkin allegedly advised Marcus, who was about to go before a New York Grand Jury, to falsify his testimony as to the source of the money Marcus had used to pay certain debts. The offer of proof was rejected by Judge Tyler, who presided at that trial, without objection by defense counsel. Itkin's questioning was limited to the fact of his indictment. There is no claim by appellant of any suppression by the government of Itkin's alleged subornation.

2) In October, 1965 Itkin entered into an "agreement and declaration of trust" for the benefit of creditors. In it he declared and swore that the list was a true and accurate description of his creditors and the amounts owed to each. In trials subsequent to De Sapio's, United States v. McCarthy, supra, and United States v. Lipkins, No. 71 Cr. 829 (S.D.N.Y. Aug., 1971), Itkin admitted on cross-examination that only a fraction of these were true debts, that the trustee, Mario Brod, was his C.I.A. superior and that he prepared the list with Brod's assistance.

3) In 1964 and 1965 Itkin testified as a witness in federal bankruptcy proceedings concerning a certain Sire Plan which involved widespread Teamster Union corruption. In testimony subsequent to the De Sapio case (United States v. Lipkins, supra; United States v. Amato, No. 69 Cr. 569 (S.D.N.Y. Oct., 1970) and United States v. Zulferino, No. 68 Cr. 546 (S.D.N.Y. Jan., 1971)) Itkin admitted that he had lied in those proceedings to protect his cover and further that he had so advised the F.B.I.

4) From 1965 until March, 1971 Mrs. Itkin, Herbert Itkin's second wife, was engaged in acrimonious litigation with her first husband who was seeking the custody of her two children by that marriage. In 1965 Mrs. Itkin took her two children to England in violation of an order of the Westchester County Court. She was persuaded to do this by Itkin who claimed that his government assignment required that he infiltrate organized crime in England. Since she was English, her residence there with her children, would provide him with a plausible excuse or cover for his presence abroad. Itkin admitted in testimony before a New York State Court, New York ex rel. Itkin v. Hirsch, Civ. No. 4590 (N.Y.Sup.Ct., Westchester County Nov., 1970) that he had lied in both English and American courts as to the reason for his presence in England. Itkin's explanation for these lies was that he thought his government contacts would explain to both the English and American courts that he was doing this to protect his cover.

II

The generally accepted criteria for granting a new trial on the ground of newly discovered evidence are (1) the evidence must have been discovered since the trial, (2) it must be material to the factual issues at the trial and not merely cumulative of evidence already introduced or impeaching the character or credit of a witness, and (3) it must be of such a nature that it would probably produce a different verdict in the event of a retrial. United States v. Polisi, 416 F.2d 573, 576-577 (2d Cir. 1969). In dealing with appellant's motion in so far as it is based upon newly discovered evidence of Itkin's perjury in other proceedings, Judge Tyler found it "so lacking in merit as to be disposed of without extended discussion." He found that the evidence was a mosaic of new twists, bits and scraps of new details of subjects either raised at trial or muted at trial for tactical reasons or excluded by the judge in evidentiary rulings on cross-examination. We again stress that the role of a reviewing court on an appeal from the denial of a motion for a new trial is a limited one. "Factual determinations made by the trial court in passing on a motion for a new trial based on newly discovered evidence may not be set aside unless the findings are `wholly...