Thomas Gioeli's Motion to Set Aside the Verdict

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------x UNITED STATES OF AMERICA, -against- Case No. 08-cr-240 (S-6) (BMC) THOMAS GIOELI, et al., Defendant. -------------------------------------------------------x

MOTION TO SET ASIDE THE VERDICT

Dated: New York, New York August 2, 2013

LAW OFFICES OF ADAM D. PERLMUTTER, P.C. 260 Madison Avenue, Suite 1800 New York, NY 10016 Tel: (212) 679-1990 Fax: (888) 679-0585 Attorneys for Thomas Gioeli

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Table of Contents Introduction......................................................................................................................... 1 Relevant Factual Background ............................................................................................. 2 A. Pre-‐Trial ...........................................................................................................................................2 B. During Trial.....................................................................................................................................4 C. Post-‐Trial..........................................................................................................................................8

Argument .......................................................................................................................... 10 A. The Non-‐disclosure of Exculpatory Evidence Violated Gioeli's Due Process Rights and the Verdict Should be Vacated...................................................................... 10 1. Legal Standard ....................................................................................................................... 10 2. The Government had Actual or Constructive Knowledge of DiBiase's Statements, and Suppressed them............................................................................... 13 3. The Suppressed Materials are Exculpatory for Gioeli and Impeaching of the Government's Key Witness, and the Failure to Timely Disclose the Information Resulted in Actual Prejudice against Gioeli............................................................... 15

B. The Recordings Constitute Newly Discovered Evidence Warranting a New Trial ............................................................ 17 1. Legal Standard ....................................................................................................................... 17 2. The Information in the Recordings Directly Relates to Gioeli's Defense and would Likely Have Resulted in a Different Verdict........................................................................................ 18

C. Gioeli Requests a Hearing to Determine when Government Agents Communicated this Information to the Prosecution ................................................................................. 20

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D. Gioeli Requests an Order Requiring the Government to Disclose all Materials Related to Anthony Basile and Anthony Kenny.......................................................... 20 E. Gioeli Joins Saracino's Motions............................................................................................ 21

Conclusion ........................................................................................................................ 22

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Introduction Defendant Thomas Gioeli hereby submits this motion to set aside the verdict on

the basis of a Brady violation by the government, or for a new trial based upon newly

discovered evidence, or, in the alternative, an evidentiary hearing to assess the facts

regarding timing of the disclosure of the information at issue in this motion, and for

discovery related to the same.

The government has recently disclosed evidence that was largely in its possession

throughout Gioeli's trial. The results of this late disclosure are catastrophic. The

evidence stands in stark contrast to the testimony adduced from the government's

cooperators at trial, and raises a host of questions about their truthfulness and the

government’s conduct in this case.

This recently disclosed evidence is Brady material. The government's refusal to

turn over this material in a timely manner violated Gioeli's due process rights by robbing

him for his opportunity to conduct a complete investigation, present a full defense, and

have a fair trial. The jury rejected almost the entirety of the government’s case, and had

Gioeli been in possession of this evidence at trial, there can be little doubt that the

remaining support for the government’s case would have withered on the vine as well.

Accordingly, for the reasons stated herein, the Court should grant Gioeli’s motion to set

aside the verdict or for other relief sought herein.

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Relevant Factual Background A. Pre-Trial On May 29, 2008, a grand jury in the Eastern District of New York returned a 17

count superseding indictment (the "S-1 Indictment") against Thomas Gioeli, Dino

Saracino, Joseph Competiello, Dino Calabro and others. See ECF No. 21. The first

count of the S-1 Indictment charged Gioeli, Saracino, Competiello, Calabro and others

with Racketeering Conspiracy. Id. at 6. As the second predicate act of the racketeering

conspiracy, the S-1 Indictment charged Gioeli, Competiello, and Calabro with the murder

and conspiracy to murder Frank "Chestnut" Marasa. Id. at 9.

On June 4, 2008, Gioeli, Saracino, Competiello, and Calabro were arrested in the

Eastern District of New York. On June 6, 2008, a 22-count superseding indictment (the

"S-2 Indictment") was filed against Gioeli, Saracino, Competiello, Calabro and others.

See ECF. No 286. The S-2 now charged Gioeli, Saracino, Competiello, and Calabro with

the murder and conspiracy to murder Marasa, as a predicate act supporting the

racketeering count. Id. at 9.

Competiello began proffering information to the government on September 30,

2008. Trial Transcript ("Tr.") 3744:24-3745:1. On December 15, 2008, Competiello

entered into a cooperation agreement with the government that made no mention of the

Marasa homicide. Tr. at 2255:18-2256:6. Also on December 15, 2008, Competiello pled

guilty to a four count information that did not charge him with murder or conspiracy to

murder Marasa. ECF Nos. 1161-63.1

1 Any statements made during Competiello's plea regarding either why the Marasa charge was dropped, or his involvement in the conspiracy to murder Marasa, are unknown, as the transcript of the plea was lost. The transcript was subsequently reconstructed from memory on April 2, 2012, over 39 months later, but made no mention of Marasa.

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On December 17, 2008, another superseding indictment (the "S-4 Indictment")

was filed against Gioeli, Saracino, Calabro and others. ECF No. 187. The S-4

Indictment charged Gioeli, Saracino, and Calabro with the murder and conspiracy to

murder Marasa, as a predicate act supporting the racketeering count. Id. at 9. Shortly

thereafter, on January 30, 2009, Dino Calabro began proffering information to the

government. Tr. at 1570:2-5.

In a letter dated October 16, 2009, the government disclosed to defendants,

pursuant to their obligations under Brady v. Maryland, 373 U.S. 83 (1963), that a

confidential source informed the FBI that Calabro, Greaves, Saracino, and Competiello

were involved in the Marasa murder. The source further revealed that Competiello had

stolen the vehicle used in the murder and had acted as a lookout.

On July 8, 2010, a final superseding indictment (the "S-6 Indictment") was filed

against Gioeli, Saracino, and Joel Cacace. See ECF No. 822. The S-6 Indictment

charged only Gioeli with the murder and conspiracy to murder Marasa. Id. at 8.

In a December 19, 2011 letter, Gioeli requested information, inter alia, regarding

information provided to the government by Basile and Anthony Kenny (copy attached

hereto as Exhibit A).

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(copy attached hereto as Exhibit B).

On February 9, 2012, proffered information to the Drug

Enforcement Agency ("DEA") for the first time. AUSA Elizabeth Geddes attended the

meeting with DEA agents.2 During that proffer, disclosed information related to

Jimmy Calderone, Calderone's relationship with Calabro, and, contrary to the evidence at

trial, that the Greaves murder occurred in the basement of Competiello’s residence (a

copy of proffer notes attached hereto as Exhibit D).

On February 13, 2012, four days after ’s first meeting with government

agents, Dino Calabro met with the AUSA Gatta and FBI agents for his 31st proffer

session. See Exhibit C. At this meeting Calabro discussed, at length, his relationship

with Jimmy Calderone. See 3500-DC-65 (attached hereto as Exhibit E). This represents

the first recorded instance of Calabro mentioning Calderone to the government.

B. During Trial On March 19, 2012, the prosecution delivered opening arguments in Gioeli's trial.

On that same day, attended a second proffer session with the DEA. (A

copy of the proffer notes attached hereto as Exhibit F). At this session he discussed the

Marasa homicide.

On March 26, 2012, Calabro testified about his participation in the Marasa

homicide. Tr. 965:4-986:4. Calabro stated that he and Richard Greaves shot Marasa to

death in front of Marasa's home. Tr. 966:15-25. According to Calabro, Thomas

2 The Government revealed that AUSA Geddes participated in the February 9, 2012 proffer session for the first time in an August 2, 2013 email responding to a request from Gioeli (attached hereto as Exhibit C).

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McLaughlin acted as the getaway driver, and Anthony Kenny acted as a lookout and

drove the "crash car". Tr. 974:23-975:25.

Calabro implicated Gioeli in the conspiracy to murder Marasa by alleging a series

of meetings with him in Long Island, at which the murder was allegedly planned. At the

first meeting, Calabro claimed that he drove to Gioeli's home to request permission to kill

Marasa. Tr. 967:2-969:4. Calabro stated that Gioeli granted permission for the murder

by telling Calabro, "take an eye for an eye."3 Tr. 969:2. Gioeli also allegedly

recommended that Calabro used Awjab “OJ” Ennab's brother, Tony Ennab, for

conducting the murder. Tr. 969:3-4. Calabro allegedly updated Gioeli at a second

meeting, and recommended Anthony Kenny as a replacement after Tony failed to meet

with Calabro. Tr. 971:2-5. Calabro testified that Gioeli insisted on meeting Kenny first.

Tr. 971:6-7. At the alleged third meeting, Calabro went to see Gioeli along with Kenny,

Richie Greaves and Thomas McLaughlin. Tr. 971:9. Calabro further testified that Gioeli

gave the men instructions about how to commit the murder: to use two shooters, and

three cars (Tr. 969:19-21); to shoot Marasa first in the body, then at close proximity in

the head4 (Tr. 978:1); and to shower in order to remove gunpowder residue (Tr. 978:25-

979:4). Calabro testified that Calabro, McLaughlin, and Greaves visited Gioeli the day

after the murder, and Gioeli kissed the men and congratulated them.5 Tr. 984:12-23.

3 During the course of the testimony of Special Agent Scott Curtis, the Government conceded that none of the notes from Calabro's 37 proffer sessions reflect that Calabro had ever attributed this phrase to Gioeli before trial. 4 The Government stipulated that this claim also did not appear anywhere in Calabro's proffer notes. Tr. 3893:5-10. 5 The Government stipulated that this claim also did not appear anywhere in Calabro's proffer notes. Tr. 3906:18-19.

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On March 29, 2012, Samuel Braverman, Esq., counsel for Saracino, wrote to the

Court regarding, inter alia, the government's continuing refusal to turn over materials

related to Basile's attempted cooperation. ECF No. 1434 at 2.

.

See ECF No. 1439. During a proceeding on April 4, 2012, the Court addressed

Saracino's request to recall Calabro to the stand in light of recent discoveries regarding

additional criminal activity involving Dino Calabro and Anthony Basile. Tr. 2380:1-

2385:18. The Court did not take up the remaining discovery issues regarding materials

related to Basile’s attempted cooperation. Id.

On April 3, 2012, Competiello testified on direct examination that he did not

participate in the murder of Frank "Chestnut" Marasa. Tr. 2240:5-6. The next day, April

4, 2012, on cross-examination, Competiello again testified that he had nothing to do with

the Marasa homicide. Tr. 2410:16-2410:5.

On April 23, 2012 McLaughlin testified that he was not present at any meetings

with Gioeli prior to the Marasa murder. Tr. 4598:21-25. McLaughlin testified that

Calabro told McLaughlin that Calabro had met with Gioeli prior to the murder of Marasa

(Tr. 4608:13-21), and that Gioeli had reprimanded McLaughlin for discussing the murder

after the fact (Tr. 4611:11-15), but stated that he did not remember whether he had ever

stated those claims to the government previously (Tr. 4618:23-4620:2).6

6 McLaughlin's handling agent Special Agent Russel Castrogiovanni confirmed that McLaughlin had never made those statements before testifying, and previously claimed to have had no discussions with Gioeli regarding Chestnut. Tr. 4696:20-4699:25.

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On May 2, 2012, made his first consensual recording for the

government.

On May 8, 2012, the jury found that the government did not prove any of the six

murders or two robberies against Gioeli, including Count 2 - Murder of Richard Greaves

in Aid of Racketeering; Count 3 - Murder of Ralph Dols in Aid of Racketeering; Count 4

- Murder of William "Wild Bill" Cutolo in Aid of Racketeering. The jury also found that

Government failed to prove Racketeering Act 1(A) - State Robbery Conspiracy of Furs

by Mina; Racketeering Act 1(B) - State Robbery of Furs By Mina; Racketeering Act 1(C)

- Federal Robbery Conspiracy of Furs By Mina; Racketeering Act 1(D) - Federal

Robbery of Furs By Mina; Racketeering Act 2(B) - Murder of Frank Marasa;

Racketeering Act 4(A) - State Robbery of Elegant Furs; Racketeering Act 4(B) Federal

Robbery Conspiracy of Elegant Furs; Racketeering Act 4(C) - Federal Robbery of

Elegant Furs; Racketeering Act 4(D) - Attempted Federal Robbery of Elegant Furs;

Racketeering Act 5(B) - Murder of John Minerva; Racketeering Act 6 - Murder of

Michael Imbregamo; Racketeering Act 9(A) - Conspiracy to Murder Richard Greaves;

Racketeering Act 9(B) - Murder of Richard Greaves; Racketeering Act 11(A) -

Conspiracy to Murder Ralph Dols; Racketeering Act 11(B) - Murder of Ralph Dols;

Racketeering Act 13(A) - Conspiracy to Murder William Cutolo; Racketeering Act 13(B)

- Murder of William Cutolo. The jury, however, found Gioeli guilty of the single count

of racketeering conspiracy, stating that the government had proven three predicate acts:

conspiracy to murder Frank Marasa (Racketeering Act 2), conspiracy to murder Orena

faction members (Racketeering Act 3), and conspiracy to murder John Minerva

(Racketeering Act 5).

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C. Post-Trial A mere two days after the verdict, on May 10, 2012, recorded a

conversation with Calderone in which Calderone admitted to participating in the murder

of Marasa, and stated that Competiello had also been involved. A transcript of the

conversation prepared by the Government is attached hereto as Exhibit G.

Over a year later, at a May 28, 2013 appearance before this Court, the government

revealed that it had come in possession of additional discovery that may constitute Brady

materials. This Court ordered the government to produce the materials within 30 days.

On June 21, 2013, the government produced six consensual recordings made by

dated May 2 and May 10, 2012, June 13, 2012, July 12 and July 19, 2012 and

April 16, 2013.

On July 3, 2013, Gioeli sent a letter to the government requesting additional

discovery based upon the May 10, 2012 recording (a copy is attached hereto as Exhibit

H). In the letter, Gioeli requested all materials related to 's cooperation, including

his proffer notes and government reports. Gioeli additionally again requested materials

related to the indictment of Competiello for the Marasa murder.

On July 11, 2013, the Government responded by disclosing heavily redacted

copies of 's proffer notes. In its letter, the government stated that the proffer

notes are the only materials related to 's cooperation, and refused to produce

additional materials (a copy is attached hereto as Exhibit I).

On July 12, 2013, Gioeli again requested copies of reports and proffer notes for

Anthony Basile related to the Marasa murder (a copy is attached hereto as Exhibit J).

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On July 16, 2013, Gioeli moved for an in camera review of the redactions on

's proffer notes. See ECF No. 1801.

On July 17, 2013, the government responded by consenting to an in camera

review of both 's and Basile's materials. See ECF No. 1803.

On July 18, 2013, this Court ordered Gioeli to submit the present motion by

August 2, 2013.

On August 2, 2013, the Government disclosed that AUSA Geddes participated in

's first proffer session with the DEA. See Exhibit C.

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Argument A. The Non-disclosure of Exculpatory Evidence Violated Gioeli's Due Process

Rights and the Verdict Should be Vacated.

1. Legal Standard In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that "the

suppression by the prosecution of evidence favorable to an accused . . . violates due

process where the evidence is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution." A Brady claim must fulfill three

requirements: (1) the evidence must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by

the government, either willfully or inadvertently; and (3) prejudice must have ensued.

See Strickler v. Greene, 527 U.S. 263, 281 (1999); Boyette v. Lefevre, 246 F.3d 76, 89

(2d Cir. 2001).

Brady imposes an obligation on prosecutors to disclose impeachment evidence,

since such evidence "used effectively. . . may well be determinative of guilt or

innocence." United States v. Bagley, 473, U.S. 667, 676 (1985). See also Giglio v.

United States, 405 U.S. 150, 154 (1972). The Second Circuit has held that Brady

information is "not only evidence that is exculpatory, i.e., going to the heart of the

defendant's guilt or innocence, but also evidence that is useful for impeachment, i.e.,

having the potential to alter the jury's assessment of the credibility of a significant

prosecution witness." Leka v. Portuondo, 257 F.3d 89, 98 (2d Cir. 2001) (quoting United

States v. Avellino, 136. F.3d 249, 255 [2d Cir. 1998]).

The fact that information may have incriminatory as well as exculpatory elements

does not exempt it from disclosure under Brady. See United States v. Rivas, 377 F.3d

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195, 199-200 (2d Cir. 2004). The government also may not withhold Brady information

because it has other contradictory information that it finds more credible:

Frequently, the government comes into possession of evidence by witnesses who identify another perpetrator or who attempt to exculpate another defendant. The fact that the government may have some evidence that a particular defendant is guilty does not negate the exculpatory nature of the testimony of a witness with knowledge that a defendant did not commit the crime as charged.

United States v. Rittweger, 524 F.3d 171, 181 (2d Cir. 2008). When evidence could be

interpreted by the jury as exculpatory, it is favorable for Brady purposes. See Kyles v.

Whitley, 514 U.S. 419, 437-39 (1995).

A prosecutor is charged with having knowledge of information known to law

enforcement officers involved in the investigation or prosecution of the case. See Kyles,

514 U.S. at 437-39 ("[T]he individual prosecutor has a duty to learn of any favorable

evidence known to others acting on the government's behalf in the case, including the

police.") In United States v. Morell, 524 F.2d 550, 555 (2d Cir. 1975) the Second Circuit

found a Brady violation, despite the lack of the prosecutions knowledge of the Brady

information, where the DEA agent in possession of the information acted as "an arm of

the prosecution." The Morell Court noted that the DEA agent had actively participated in

the investigation and sat at counsel's table for most of the trial. Id. District courts in this

Circuit have held that "the exact point at which government agents can fairly be

categorized as acting on behalf of the prosecution, thus requiring the prosecutor to seek

out any exculpatory or impeachment evidence in their possession, is uncertain." United

States v. Bin Laden, 397 F. Supp. 2d 465, 481 (S.D.N.Y 2005) (Kaplan, J.) (imputing

knowledge of statements by U.S. Marshall Service to prosecution). See also Valentin v.

Mazzuuca, 2011 U.S. Dist. LEXIS 2126, at *65-66 (W.D.N.Y. 2011) (Bianchini, J.)

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(holding that the Monroe County District Attorney's Office had constructive knowledge

of the Rochester Police Department's pending arrest warrant for one of their witnesses);

Chandras v. McGinnis, 2002 U.S. Dist. LEXIS 25188, at *20-28 (S.D.N.Y. 2002) (Sand,

J.) (upholding state court's decision to attribute constructive knowledge of Department of

Corrections records to state prosecutor).

The mandates of Brady require a prosecutor to disclose all "material" evidence to

the defense. United States v. Agurs, 427 U.S. 97, 103 (1976); United States v. Coppa (In

re United States), 267 F.3d 132, 142 (2d Cir. 2001). Information is deemed material

where (1) it is admissible; (2) it could lead to admissible evidence; or (3) it would be "an

effective tool in disciplining witnesses during cross-examination by refreshment of

recollection or otherwise." United States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002).

The general test for materiality is whether "there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different." Bagley, 473 U.S. at 682. The reasonable probability standard does not,

however, require the defense to show that the undisclosed evidence would probably have

led to an acquittal. Kyles, 514 U.S. at 434. Nor does it require the defense to show that

there was insufficient evidence untainted by the Brady violation to sustain a conviction.

Id. at 434-35. Evidence may be material where it directly supports a defense theory. See

Rivas, 377 F.3d at 200.

Although no specific defense request for Brady materials is required, cases in

which the defense makes such a request, and the prosecution fails to turn over such

material "stand on a special footing." United States v. Keogh, 391 F.2d 138 (2d Cir.

1967) (noting that where "the prosecution knows of the defense's interest and, if it has

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failed to honor this even in good faith, it has only itself to blame.") "The significance of

the defense request, is simply that it gives the prosecutor notice of what is important to

the defense; once such notice is received, the 'failure to disclose' is seldom if ever

excusable." Farrell v. Ercole, 2012 U.S. Dist. LEXIS 95595, at *90 (S.D.N.Y. June 25,

2012) (Preska, C.J.) (citing Morell, 524 F.2d at 553; United States v. Miller, 499 F.2d

736, 744 [10th Cir. 1974]; United States v. Kahn, 472 F.2d 272, 287 [2d Cir. 1972];

Keogh, 391 F.2d at 146-47.) A prosecutor's failure to disclose exculpatory information

specifically requested by the defense is relevant to determining the materiality of that

information if the defense was misled into believing the requested evidence did not exist.

Bagely, 473 U.S. at 682-83.

2. The Government had Actual or Constructive Knowledge of 's

Statements, and Suppressed them

The DEA debriefed for the first time on February 9, 2012, at

which time informed the DEA agents, and AUSA Geddes, that Jimmy Calderone

was with Dino Calabro's crew. He also discussed the murder of Richard Greaves. See

Exhibit C. Specifically, stated that Greaves was murdered in Competiello's

basement – not Dino Saracinco’s basement as Calabro and Competiello maintained at

trial. Only four days later, on February 13, 2012, the AUSA Gatta and FBI agents met

with Calabro, who discussed for the very first time his relationship with Calderone. See

Exhibits C, D.

's second proffer session occurred on March 19, 2012, the same day as

opening statements in Gioeli's trial, which garnered significant media coverage, some of

which specifically mentioned the Marasa murder. See e.g. Mosi Secret, Killing of Officer

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and 5 Others Detailed as Mob Trial Begins, N.Y. TIMES (March 19, 2011),

http://www.nytimes.com/2012/03/20/nyregion/mob-trial-opens-in-killings-of-police-

officer-and-others.html ("In 1991, Frank Marasa, known as Chestnut, was killed to

avenge the death of a Colombo family member, prosecutors said."); John Riley, LI man

stands trial in mob murder case, NEWSDAY (March 19, 2011) http://www.newsday.com/

long-island/nassau/li-man-stands-trial-in-mob-murder-case-1.3612705; John Marzulli,

Trial of accused cop-killing Colombo gangsters opens in Brooklyn Federal Court, DAILY

NEWS (March 19, 2011), http://www.nydailynews.com/new-york/trial-accused-cop-

killing-colombo-gangsters-opens-brooklyn-federal-court-article-1.1046940.

The prosecution had actual knowledge prior to trial that had evidence

directly related to the Greaves murder, which was at great variance to the information

provided by Calabro and Competiello. The government did not, however, disclose this

information to the defense. In addition, the prosecution had, at a minimum, constructive

knowledge that had evidence regarding the Marasa homicide. See Giglio, 405

U.S. at 154 (imputing knowledge to fellow prosecutor at the same office).

Furthermore, offered information that confirmed statements by Basile,

and contradicted the government’s main cooperators, Calabro and Competiello. Not only

is this information generally discoverable under Brady, but also Gioeli and Saracino put

the government on notice, via previous and subsequent discovery requests, for materials

related to Basile, Kenny, and others that this information was necessary for their defense.

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3. The Suppressed Materials are Exculpatory for Gioeli and Impeaching of the Government's Key Witness, and the Failure to Timely Disclose the Information Resulted in Actual Prejudice against Gioeli

The information and materials at issue in this motion go to the heart of the crimes

for which the jury convicted Gioeli. Jimmy Calderone's admission that he and

Competiello participated in the Marasa homicide both supports the defense's theory

offered at trial, and offers a new avenue of argument not pursued at trial. The admission

also undercuts the testimony of Calabro and Competiello.

At trial, Calabro testified that Gioeli had engineered the Marasa murder, both by

handpicking the participants and ordering the way in which it should be executed. Tr.

965:4-986:4. Calabro alleges that all the members of the murder conspiracy met with

Gioeli: Richard Greaves, who is missing and presumed deceased; Thomas McLaughlin, a

cooperating witness; Dino Calabro, a cooperating witness; and Anthony Kenny, whose

status is unknown to the defense.

During trial, Gioeli disputed that this meeting ever occurred, but he did not

challenge that these four men were, in fact, the only ones who carried out the murder.

See Tr. 5190:18-5199:16 (Gioeli's closing statements regarding Marasa). The revelation

that Competiello and Calderone participated in the murder would have allowed Gioeli to

argue that not only did Competiello, McLaughlin and Calabro lie about the murder

conspiracy, but also about the murder itself. Moreover, the additional participants and

adjustment of responsibilities show that Gioeli did not preside over this conspiracy, nor

did it occur as Calabro alleges Gioeli instructed.

The evidence against Gioeli for the Marasa homicide conspiracy came from only

Calabro and McLaughlin. The jury's verdict, rejecting most of the charges against Gioeli,

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demonstrates that the evidence presented against Gioeli was far from overwhelming, and

that the jury wrestled with how much they could believe Calabro. Had Gioeli been in

possession of the information offered by at his early proffer sessions, Gioeli

could have interviewed or Calderone. That information contained in the proffer

notes, and that which could have been gleaned from interviews with the men was

necessary to discredit Calabro and McLaughlin's account of the murder. Additionally,

Gioeli may have called one of the men as a witness, instead of or in addition to

McLaughlin, to contradict the testimony of Calabro. There is at least a reasonable

probability that this additional evidence, and possibly witness, would have discredited

Calabro's version of this murder to the jury, resulting in an acquittal on this charge as

well.

The non-disclosure of this information is also a Brady violation because it could

also have generated new leads for Gioeli's defense. See United States v. Gil, 297 F.3d 93,

104 (2d Cir. 2002) (finding that where an undisclosed memo may have generated new

leads, it is Brady material, and should have been disclosed). Additionally, the statements

corroborate Basile's earlier statement that Competiello participated in the murder. In

light of this corroboration, the government's refusal to turn over materials related to

Basile or Anthony Kenny prevented Gioeli from access to materials necessary to

investigate new leads to discover how the murder truly occurred.

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B. The Recordings Constitute Newly Discovered Evidence Warranting a New Trial

1. Legal Standard

The standard for granting a new trial based upon newly discovered evidence is a

similar but more onerous one the standard for finding a Brady violation. In order to

obtain a new trial based on newly discovered evidence, a defendant must meet five

requirements: (1) the evidence must be newly discovered after trial; (2) facts are alleged

from which the court can infer due diligence on the part of the defendant to obtain the

evidence; (3) the evidence is material; (4) the evidence is not cumulative or impeaching;

and (5) the evidence would likely result in an acquittal. See United States v. Persico, 645

F.3d 85, 109 (2d Cir. 2011); United States v. Owen, 500 F.3d 83, 88 (2d Cir. 2007).

The materiality standard for newly discovered evidence is generally the same as

for a Brady violation; however, the new evidence must also have been admissible at trial.

See, United States v. Siddiqi, 959 F.2d 1167, 1174 (2d Cir. 1990). Cumulativeness is

treated a subset of materiality. See United States v. Avellino, 136 F.3d 249, 257 (2d Cir.

1998) ("the undisclosed evidence may be cumulative and hence not material.") Evidence

that only serves as additional impeachment material where the defense already possessed

extensive impeachment materials is viewed as cumulative. United States v. Gordils, 982

F.2d 64, 72 (2d Cir. 1992). Evidence that goes beyond generally impeaching a witness's

credibility and tends to establish that the witness committed perjury, however, is not

considered cumulative:

It was one thing for the jury to learn that [a witness] had a history of improprieties; would have been an entirely different matter for them to

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learn that after having taken an oath to speak the truth he made a conscious decision to lie.

United States v. Wallach, 935 F.2d 445, 457 (2d Cir. 1991).

2. The Information in the Recordings Directly Relates to Gioeli's Defense

and would Likely Have Resulted in a Different Verdict. The evidence at issue is material for the reasons stated above. The information is

also admissible, because, as stated above, Gioeli could have called either or

Calderone as a witness, either instead of or in addition to McLaughlin. The direct

contradiction of Calabro's account of the murder would likely have resulted in a different

verdict as demonstrated from jury’s the numerous other acquittals and findings of not

proven.

If Calderone was unavailable, Gioeli could admit Calderone's statements,

particularly the May 10, 2012 recording, under Federal Rule of Evidence 804(b)(3). Rule

804(b)(3)(a) allows for the admission of a hearsay statement that is credible because it

has "so great a tendency" to expose the speaker to criminal liability. As this Court has

noted, "a statement fulfills the 'tendency" requirement ' if it would be probative in a trial

against the declarant." ECF. No. 1316 at 7 (quoting United States v. Persico, 645 F.3d

85, 102 [2d Cir. 2011]). Rule 804(b)(3)(B) also requires that the statement be "supported

by corroborating circumstances that clearly indicate its trustworthiness." Corroborating

circumstances are present for the statements at issue. Calderone is talking to ,

someone with whom he obviously has a close relationship. See ECF No. 1316 at 13

(citing United States v. Shukri, 207 F.3d 412, 417 [7th Cir. 2000]; United States v.

Guillette, 547 F.2d 743, 754 [2d Cir. 1976]; United States v. Watts, No. 09 Cr. 62, 2011

U.S. Dist. LEXIS 3976, at *9 [S.D.N.Y. Jan. 11, 2011]). The tapes reflect long intimate

19

conversations about a number of criminal matters between the men as the drive in

's truck. Additionally, Calderone is clearly concerned about the gravity of

implicating himself in a murder. He chastises for using names and speaks

tersely in a whisper. This furtive behavior demonstrates that Calderone was not speaking

carelessly or for the benefit of a third party.

Gioeli could also seek to admit Calderone's unrecorded statements through

. Both the March 19, 2012 proffer notes (Exhibit F) and the May 10, 2012

recording (Exhibit G), in which raises the Marasa murder in a manner reflecting

previous conversations on the topic, demonstrate that had previous discussions

with Calderone regarding the Marasa homicide. Due to the paucity of materials disclosed

to Gioeli regarding , Gioeli cannot fully assess the context of those statements.

Gioeli would ask the Court to deem those statements admissible subject to eliciting

corroborative circumstances.

The newly disclosed evidence is also not cumulative impeachment material.

Gioeli acknowledges that the evidence does serve to impeach both Calabro and

Competiello, and plants additional evidence atop the mountain of their misdeeds and

deceit already amassed. That is not the primary purpose, however, of this newly

disclosed evidence. Rather, the statements are essential to the truth-finding role of the

trial: they shed light on the actual circumstances of the murder.

The government now has information from two independent sources, Basile and

Calderone, that the murders did not happen the way Dino Calabro claims. Both men

claim Competiello assisted in the murder. Competiello was a member of the "Bay

Parkway Boys," along with Calabro, McLaughlin, Greaves, Basile, and Calderone. See

20

Tr. 2258:8-2261:21, 2393:9-18. The Bay Parkway Boys were a group of young men who

committed crimes together and reported to no one. Tr. 2393:19-22. The revelation that

two additional Bay Parkway Boys participated in the murder demonstrates that it was

unrelated to the Colombo family or Thomas Gioeli, who was not a member of the group.

Calderone's statements also directly refutes McLaughlin's testimony. McLaughlin

testified that Gioeli has scolded McLaughlin for bragging about the murder. Tr. 4611:11-

15. Calderone explicitly refutes this previously unrecorded recollection. See Exhibit F

at 2 ("Tommy McLaughlin didn't say a word.")

The jury acquitted Gioeli of the vast majority of the charges against him and

finding him guilty of a single conspiracy count. It is likely that this newly discovered

evidence would have led them to acquit Gioeli of this charge as well. As such, in light of

this newly disclosed evidence, Gioeli should be granted a new trial.

C. Gioeli Requests a Hearing to Determine when Government Agents

Communicated this Information to the Prosecution

Gioeli requests that, if the Court is not prepared to find that a Brady violation has

occurred, a hearing should be ordered to assess the facts regarding timing of the

disclosure of the information at issue. The FBI and DEA agents involved in these

investigations must state under oath when and how they shared this information.

D. Gioeli Requests an Order Requiring the Government to Disclose all Materials

Related to Anthony Basile and Anthony Kenny. To date, the government has still not provided any materials produced by the

handling of Anthony Basile. Rather, it has only summarized snippets of information.

That information, disregarded by the government, has now been corroborated by extrinsic

21

evidence. Gioeli must be allowed to examine the contents of the materials created by the

FBI during Basile's attempted cooperation. The government has also not provided any

information regarding the possible cooperation of Anthony Kenny, an alleged participant

of the Marasa murder. For the reasons stated above, these materials were and continue to

be essential to Gioeli's defense.

Gioeli requests an Order directing the government to turn over all materials and

information relating to or generated as a result of the cooperation or attempted

cooperation of Basile and Kenny.

E. Gioeli Joins Saracino's Motions

Gioeli joins in his co-defendant Saracino's forthcoming motions for a new trial in

all respects.

22

Conclusion WHEREFORE for the reasons stated herein, the Court should set aside the

verdict, grant Gioeli’s motion for a new trial based upon newly discovered evidence, or,

in the alternative, order an evidentiary hearing to assess the facts regarding timing of the

disclosure of the information at issue in this motion, and for discovery related to the

same.

Dated: New York, New York August 2, 2013 LAW OFFICES OF ADAM D. PERLMUTTER, P.C.

By:_________________________________ Adam D. Perlmutter Daniel A. McGuinness

260 Madison Avenue, Suite 1800 New York, NY 10016 Tel: (212) 679-1990 Fax: (888) 679-0585 Attorneys for Thomas S. Gioeli

EXHIBIT A

Law Offices of Adam D. Perlmutter, P.C. Attorneys At Law

260 Madison Avenue, Suite 1800

New York, NY 10016 Tel. (212) 679-1990 Fax. (212) 679-1995

Adam D. Perlmutter, esq. Of Counsel

--- Paul Greenfield, Esq. Jennifer Louis-Jeune, Esq. Daniel A. McGuinness, Esq.

December 19, 2011 VIA ELECTRONIC MAIL Elizabeth Geddes, Esq. James Gatta, Esq. Christine Posa, Esq. Assistant United States Attorneys United States Attorney’s Office Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201 Re: United States v. Thomas Gioeli, et al. Case No. 08-cr-240 (S-6) (BMC) (RER) Dear AUSAs Geddes, Gatta and Posa: We are attorneys for Thomas Gioeli in connection with the above matter. We are writing to request production of information pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and Kyles v. Whitley, 514 U.S. 419 (1995). Specifically, we are seeking any and all Brady material related to the following:

1.

Elizabeth Geddes, Esq. James Gatta, Esq. Christine Posa, Esq. December 21, 2011 Page 2 of 3

2. During the course of our investigation, we have learned that the

government has decided to not adopt, or otherwise abandon, information provided by several witnesses. These witnesses include Anthony Basile, Frank Sparaco, Anthony Kenny, Anthony Calandra, Gabriel Marquez, and Charles Diaz. We believe that these individuals have provided potentially exculpatory information about Gioeli to the government. We request any and all documents regarding interviews and/or testimony by these individuals regarding Gioeli and any of the charges in the present or any prior indictments in this case.

3. In addition to the foregoing, we also believe that prior FBI agents investigating Gioeli have provided exculpatory evidence regarding his involvement in the present case. These individuals include Special Agents Andre Curcio, Robert Shellhorn, and Special Agents Fallon and D’Agostino. We request any and all documents prepared by these individuals and/or testimony by them regarding Gioeli and any of the charges in the present or any prior indictments in this case.

4. In reviewing the 3500 material for Joseph Competiello, and comparing that information to the timeline of the initial superseding indictment charging Gioeli with the murder of William Cutolo, we are concerned that the source of Agent Scott Curtis’s testimony is, in fact, Dino Calabro. See Superseding Indictment, (S-4) 08-cr-240 (BMC) (RER), dated December 17, 2008, ECF Doc. No. 187. Moreover, given the timeframe, it may be the case that Agent Curtis was obtaining information from Calabro at a time that the latter was attending co-defendant meetings with Gioeli and his co-defendant, Dino Saracino. If this were the case, it would obviously raise serious concerns that the government inappropriately had a “spy in the camp” during these meetings. Accordingly, we ask that the government produce any and all testimony by Agent Curtis disclosing the source of his information in the initial indictment charging Gioeli with the murder of William Cutolo. See id.

With respect to each of the foregoing requests, you well know that Brady provides that exculpatory evidence is material if there is a reasonable probability that a conviction or sentence would be different if the materials are disclosed. While Gioeli maintains his innocence with respect to each and every charge, the government also knows that under Brady the terms “favorable to the accused” and “exculpatory” are not limited to evidence that goes towards proving that the defendant is innocent of the charges. In addition, due process also requires disclosure of any evidence that provides grounds for the defense to attack the reliability, thoroughness, and good faith of the police investigation, to impeach the credibility of the state’s witnesses, or to bolster the defense case against prosecutorial attacks. Kyles v. Whitley, 514 U.S. 419, 442 n.134, 445-451 (1995).

Elizabeth Geddes, Esq. James Gatta, Esq. Christine Posa, Esq. December 21, 2011 Page 3 of 3 In light of the foregoing, we demand immediate disclosure of the information sought herein. We want to thank you in advance for your prompt response to this request. Very truly yours,

Adam D. Perlmutter Carl J. Herman Cc: Thomas Gioeli (via regular & electronic mail) All counsel (via electronic mail)

EXHIBIT B

Redacted

EXHIBIT C

From: "Geddes, Elizabeth (USANYE)" <[email protected]>Subject: RE: United States v. Gioeli, 08 Cr. 240 (BMC)

Date: August 2, 2013 12:19:28 PM EDTTo: Daniel McGuinness <[email protected]>, "Gatta, James (USANYE)" <[email protected]>, "Posa, Cristina

(USANYE)" <[email protected]>Cc: Adam Perlmutter <[email protected]>, "Carl Herman ([email protected])" <[email protected]>, "sam

braverman ([email protected])" <[email protected]>, "Esq. ([email protected]) Louis Fasulo" <[email protected]>, "[email protected]" <[email protected]>

I attended the February 9, 2012 proffer of the CS, along with another prosecutor (who was not part of the Gioeli trialteam) and DEA agents. (Neither I, nor the other members of the Gioeli trial team attended any future proffers of theCS.). AUSA Gatta, along with FBI agent(s) met with Calabro on February 13, 2012.

From: Daniel McGuinness [mailto:[email protected]] Sent: Thursday, August 01, 2013 6:47 PMTo: Geddes, Elizabeth (USANYE); Gatta, James (USANYE); Posa, Cristina (USANYE)Cc: Adam Perlmutter; Carl Herman ([email protected]); sam braverman ([email protected]); Esq.([email protected]) Louis Fasulo; [email protected]: United States v. Gioeli, 08 Cr. 240 (BMC) AUSAs Geddes, Gatta, and Posa: We have noticed that Dino Calabro's proffer notes reflect that he discussed Jimmy Calderone for the first time onFebruary 13, 2012 (3500-DC-65), just four days after told the DEA about Calderone's criminal activitieswith Calabro. The timing of these events imply that someone at the February 13, 2012 proffer session withCalabro knew about 's statements regarding Calderone and Calabro. As such, we request that you identifyall participants in the February 13, 2012 meeting with Calabro. Thank you, Daniel A. McGuinness, Esq.Law Offices of Adam D. Perlmutter, P.C.260 Madison Avenue, Suite 1800New York, NY 10016Tel: (212) 679-1990Fax: (888) 679-0585Cell: (646) 496-3057Email: [email protected] Please consider the environment before printing this email.

This message contains confidential and privileged information intended solely for theaddressee. Please do not read, copy or disseminate it unless you are the addressee. If youhave received this message in error, please call (212) 679-1990 and ask to speak with themessage sender. Also, we would appreciate your forwarding it back to us and deleting it from yoursystem. Thank you.

This e-mail and all other electronic (including voicemail) communications from the sender's firm are

mailto:[email protected]

for informational purposes only. No such communication is intended by the sender to constitute either an electronic record or an electronic signature, or to constitute any agreement by the senderto conduct a transaction by electronic means. Any such intention or agreement is herebyexpressly disclaimed unless otherwise specifically indicated.

EXHIBIT D

Redacted

EXHIBIT E

Redacted

EXHIBIT F

Redacted

EXHIBIT G

Redacted

EXHIBIT H





--- Paul Greenfield, Esq. Daniel A. McGuinness, Esq. Jennifer Louis-Jeune, Esq.

July 3, 2013 VIA EMAIL Elizabeth Geddes, Esq. Assistant United States Attorneys United States Attorney’s Office for the Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201 Re: United States of America v. Thomas Gioeli, et al. Criminal Docket No. 08-cr-240 (S-4) (BMC) ____

Dear AUSA Geddes: I am in writing to request the production of information pursuant to Brady v. Maryland, 373 U.S. 83 (1963) . We are in receipt of the discovery provided by your office on June 28, 2013, and after reviewing the recordings we believe you are likely in possession of additional Brady materials. As you are no doubt aware, in the recording dated May 10, 2012, Jimmy Calderone admits to that Calderone participated in the murder of Frank "Chestnut" Marasa. Calderone additionally states that Joseph "Caves" Competiello participated in the murder. This admission directly refutes the trial testimony of Competiello, Dino Calabro, and Thomas McLaughlin. It further supports Gioeli's defense that this was a murder planned and orchestrated by the Bay Street Parkway Boys (of which Calderone, Competiello, Calabro and McLaughlin were members) and did not involve Gioeli. As such, any materials demonstrating that Calderone and Competiello participated in the murder is exculpatory Brady material.

AUSA Geddes July 3, 2013 Page 2 of 2 Gioeli demands all such materials, including, but not limited to: 1. All materials concerning related to discussions about the Marasa homicide, including, but not limited to, proffer notes, debriefing notes, FBI 302s, and FBI 1023 Confidential Human Source Reports. 2. The Grand Jury minutes of all testimony that formed the basis for the indictment of Competiello for the Marasa murder (ECF No. 21 at 9), and any materials related to that Grand Jury witness, including, but not limited to, proffer notes, debriefing notes, FBI 302s, and FBI 1023 Confidential Human Source Reports. 3. Any other materials that may exist linking Calderone or Competiello to the Marasa murder.

In light of the foregoing, we demand disclosure of the information sought herein. We want to thank you in advance for your prompt response to this request. Respectfully submitted,

Adam D. Perlmutter Cc: All counsel

EXHIBIT I

U.S. Department of Justice

United States AttorneyEastern District of New York

EAG/JDG/CMP 271 Cadman Plaza East

F.#2008R00530 Brooklyn, New York 11201

July 11, 2013

By E-mail

Adam D. Perlmutter, Esq.260 Madison Avenue, Suite 1800New York, NY 10016

Samuel M. Braverman, Esq.Fasulo Braverman & DiMaggio, LLPAttorneys at Law901 Sheridan AvenueBronx, New York 10451

Re: United States v. Thomas Gioeli, et al.Criminal Docket No. 08-240 (S-6)(BMC)

Dear Counsel:

The government writes in response to Mr. Perlmutter’sletter dated July 3, 2013 regarding Jimmy Calderone and JosephCompetiello’s purported involvement in the murder of Frank“Chestnut” Marasa (Ltr. of Adam D. Perlmutter, Esq., to AUSAElizabeth Geddes, dated July 3, 2013 (“Gioeli’s Ltr.”)), and Mr.Braverman’s email dated July 11, 2013 seeking “the names of allparties captured on the tapes; the FBI debriefing 302’s (1023’s)for each recording and any followup 302’s (includingre-interviews of anyone referenced on the tapes, such as Calabroor Caves); any draft transcripts; the complete recordings(several of the recording start after the events captured havealready begun and end mid-event).” (Email of Samuel Braverman,Esq., to AUSA Elizabeth Geddes, dated July 11, 2013 (“Saracino’sLtr.”)).

In regard to Gioeli’s first request, please findenclosed a redacted copy of handwritten notes by agents of theDrug Enforcement Administration (“DEA”) documenting interviewsdated February 9, 2012, March 19, 2012, June 7, 2012, August 23,2012, September 5, 2012 and April 17, 2013 of the confidentialsource (“CS”) who made the recording of Calderone on May 10, 2013referencing the murder of Marasa. The government has provided

Adam D. Perlmutter, Esq.Samuel Braverman, Esq.July 11, 2013Page 2

copies only of those interviews in which the CS referenced DinoCalabro, Competiello, Thomas McLaughlin, Richard Greaves orCalderone and has left unredacted only the portions of thoseinterviews in which the CS referenced Calabro, Competiello,McLaughlin, Greaves or the Marasa murder. In regard to Gioeli’ssecond and third requests, the government has previouslydisclosed source information regarding Competiello’s purportedparticipation in the Marasa murder and does not possess anyadditional material. Aside from the recording of Calderone madeby the CS, the government is not in possession of any otherinformation linking Calderone to the Marasa murder.

In regard to Saracino’s request for debriefing reportsprepared for each recording, the government advises that no suchreports were prepared by the DEA, the agency that was handlingthe CS. In regard to Saracino’s request for draft transcripts, acopy of a draft transcript of the relevant excerpt of therecording made on May 10, 2012 is enclosed. Finally, thegovernment advises that it has disclosed the complete recordingsmade by the CS of Calderone.

If you have any additional questions or requests,please contact us.

Very truly yours,

LORETTA E. LYNCHUnited States Attorney

By: /s/ Elizabeth A. GeddesJames D. GattaCristina M. PosaAssistant U.S. Attorneys

cc: Clerk of the Court (BMC) (by ECF) (w/o enclosures)

EXHIBIT J





--- Paul Greenfield, Esq. Daniel A. McGuinness, Esq. Jennifer Louis-Jeune, Esq.

July 12, 2013 VIA EMAIL Elizabeth Geddes, Esq. Assistant United States Attorneys United States Attorney’s Office for the Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201 Re: United States of America v. Thomas Gioeli, et al. Criminal Docket No. 08-cr-240 (S-4) (BMC) ____

Dear AUSA Geddes: I am in writing in response to your letter providing additional discovery dated July 11, 2013. In your letter, you have declined to produce the underlying materials related to the indictment of Joseph Competiello for the murder of Frank Marasa in the S-1 Indictment. In light of the recent discovery, these documents are Brady material and require disclosure. Your letter states that the Government "previously disclosed source information regarding Competiello's purported participation in Marasa murder and does not possess any additional information." I assume you are referencing your November 11, 2011 letter, in which you disclose that Anthony Basile is the confidential source that told the FBI that Joseph Competiello was involved in Marasa's murder. This disclosure responded to an October 16, 2011 request from Saracino's counsel, Sam Braverman, for "any and all notes, recordings, documents or evidence related to any and all proffer sessions held with Anthony Basile." In your November 11, 2011 letter you declined to produce any notes, recordings or documents from Basile's proffer sessions, based upon your position that they did not constitute discoverable Brady material. Now that an additional witness, offering a first-hand account of the murder, has revealed that Competiello was in fact present at the shooting, it is clear that Basile's

AUSA Geddes July 12, 2013 Page 2 of 2 proffer notes are discoverable Brady material. Accordingly, Gioeli reiterates Saracino's October 16, 2011 request for all material related to any proffer sessions with Anthony Basile, including but not limited to 302s, 1023s, handwritten notes, and recordings.

In light of the foregoing, we request disclosure of the information sought herein. We want to thank you in advance for your prompt response to this request. Respectfully submitted,

Adam D. Perlmutter Cc: All counsel

Documents

Thomas Gioeli's Motion to Set Aside the Verdict