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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------x UNITED STATES OF AMERICA, -againstTHOMAS GIOELI, et al.

, Defendant. -------------------------------------------------------x Case No. 08-cr-240 (S-6) (BMC)

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

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

D. E.

Gioeli Requests an Order Requiring the Government to Disclose all Materials Related to Anthony Basile and Anthony Kenny.......................................................... 20 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 governments 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 governments case, and had Gioeli been in possession of this evidence at trial, there can be little doubt that the remaining support for the governments case would have withered on the vine as well. Accordingly, for the reasons stated herein, the Court should grant Gioelis motion to set aside the verdict or for other relief sought herein.

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. 2

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).

(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 Competiellos 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 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). 4

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. 978:25979:4). 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.
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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. 5

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. 2380:12385:18. The Court did not take up the remaining discovery issues regarding materials related to Basiles 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

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. 6

On May 2, 2012, government.

made his first consensual recording for the

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).

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 's cooperation, and refused to produce

notes are the only materials related to

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).

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.

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 Statements, and Suppressed them 's

The DEA debriefed which time

for the first time on February 9, 2012, at

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 Saracincos 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-policeofficer-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-copkilling-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 governments 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 could have interviewed at his early proffer sessions, Gioeli

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 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 jurys 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 , or

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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 had previous discussions

previous conversations on the topic, demonstrate that

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

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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. 4611:1115. 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

20

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.

21

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

22

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

December 19, 2011 VIA ELECTRONIC MAIL Elizabeth Geddes, Esq. James Gatta, Esq. Christine Posa, Esq. Assistant United States Attorneys United States Attorneys 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 DAgostino. 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 Curtiss 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 states 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: Subject: Date: To:

"Geddes, Elizabeth (USANYE)" <Elizabeth.Geddes@usdoj.gov> RE: United States v. Gioeli, 08 Cr. 240 (BMC) August 2, 2013 12:19:28 PM EDT Daniel McGuinness <dam@adplegal.com>, "Gatta, James (USANYE)" <James.Gatta@usdoj.gov>, "Posa, Cristina (USANYE)" <Cristina.Posa@usdoj.gov> Cc: Adam Perlmutter <adp@adplegal.com>, "Carl Herman (cjherman@carlherman.com)" <cjherman@carlherman.com>, "sam braverman (braverlaw@aol.com)" <braverlaw@aol.com>, "Esq. (loulegal@aol.com) Louis Fasulo" <loulegal@aol.com>, "jdmacdonald@fbdmlaw.com" <jdmacdonald@fbdmlaw.com>

I attended the February 9, 2012 proffer of the CS, along with another prosecutor (who was not part of the Gioeli trial team) and DEA agents. (Neither I, nor the other members of the Gioeli trial team attended any future proffers of the CS.). AUSA Gatta, along with FBI agent(s) met with Calabro on February 13, 2012.
From: Daniel McGuinness [mailto:dam@adplegal.com] Sent: Thursday, August 01, 2013 6:47 PM To: Geddes, Elizabeth (USANYE); Gatta, James (USANYE); Posa, Cristina (USANYE) Cc: Adam Perlmutter; Carl Herman (cjherman@carlherman.com); sam braverman (braverlaw@aol.com); Esq. (loulegal@aol.com) Louis Fasulo; jdmacdonald@fbdmlaw.com Subject: 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 on February 13, 2012 (3500-DC-65), just four days after told the DEA about Calderone's criminal activities with Calabro. The timing of these events imply that someone at the February 13, 2012 proffer session with Calabro knew about 's statements regarding Calderone and Calabro. As such, we request that you identify all 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 1800 New York, NY 10016 Tel: (212) 679-1990 Fax: (888) 679-0585 Cell: (646) 496-3057 Email: dam@adplegal.com Please consider the environment before printing this email. This message contains confidential and privileged information intended solely for the addressee. Please do not read, copy or disseminate it unless you are the addressee. If you have received this message in error, please call (212) 679-1990 and ask to speak with the message sender. Also, we would appreciate your forwarding it back to us and deleting it from your system. Thank you. This e-mail and all other electronic (including voicemail) communications from the sender's firm are

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 sender to conduct a transaction by electronic means. Any such intention or agreement is hereby expressly disclaimed unless otherwise specifically indicated.

EXHIBIT D

Redacted

EXHIBIT E

Redacted

EXHIBIT F

Redacted


EXHIBIT G

Redacted


EXHIBIT H

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. (888) 679-0585
Adam D. Perlmutter, esq. --Daniel A. McGuinness, Esq. Of Counsel Paul Greenfield, Esq. Jennifer Louis-Jeune, Esq.

July 3, 2013 VIA EMAIL Elizabeth Geddes, Esq. Assistant United States Attorneys United States Attorneys 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 Attorney Eastern District of New York EAG/JDG/CMP F.#2008R00530


271 Cadman Plaza East Brooklyn, New York 11201

July 11, 2013 By E-mail Adam D. Perlmutter, Esq. 260 Madison Avenue, Suite 1800 New York, NY 10016 Samuel M. Braverman, Esq. Fasulo Braverman & DiMaggio, LLP Attorneys at Law 901 Sheridan Avenue Bronx, New York 10451 Re: Dear Counsel: The government writes in response to Mr. Perlmutters letter dated July 3, 2013 regarding Jimmy Calderone and Joseph Competiellos purported involvement in the murder of Frank Chestnut Marasa (Ltr. of Adam D. Perlmutter, Esq., to AUSA Elizabeth Geddes, dated July 3, 2013 (Gioelis Ltr.)), and Mr. Bravermans email dated July 11, 2013 seeking the names of all parties captured on the tapes; the FBI debriefing 302s (1023s) for each recording and any followup 302s (including re-interviews of anyone referenced on the tapes, such as Calabro or Caves); any draft transcripts; the complete recordings (several of the recording start after the events captured have already begun and end mid-event). (Email of Samuel Braverman, Esq., to AUSA Elizabeth Geddes, dated July 11, 2013 (Saracinos Ltr.)). In regard to Gioelis first request, please find enclosed a redacted copy of handwritten notes by agents of the Drug Enforcement Administration (DEA) documenting interviews dated February 9, 2012, March 19, 2012, June 7, 2012, August 23, 2012, September 5, 2012 and April 17, 2013 of the confidential source (CS) who made the recording of Calderone on May 10, 2013 referencing the murder of Marasa. The government has provided United States v. Thomas Gioeli, et al. Criminal Docket No. 08-240 (S-6)(BMC)

Adam D. Perlmutter, Esq. Samuel Braverman, Esq. July 11, 2013 Page 2 copies only of those interviews in which the CS referenced Dino Calabro, Competiello, Thomas McLaughlin, Richard Greaves or Calderone and has left unredacted only the portions of those interviews in which the CS referenced Calabro, Competiello, McLaughlin, Greaves or the Marasa murder. In regard to Gioelis second and third requests, the government has previously disclosed source information regarding Competiellos purported participation in the Marasa murder and does not possess any additional material. Aside from the recording of Calderone made by the CS, the government is not in possession of any other information linking Calderone to the Marasa murder. In regard to Saracinos request for debriefing reports prepared for each recording, the government advises that no such reports were prepared by the DEA, the agency that was handling the CS. In regard to Saracinos request for draft transcripts, a copy of a draft transcript of the relevant excerpt of the recording made on May 10, 2012 is enclosed. Finally, the government advises that it has disclosed the complete recordings made by the CS of Calderone. If you have any additional questions or requests, please contact us. Very truly yours, LORETTA E. LYNCH United States Attorney By: /s/ Elizabeth A. Geddes James D. Gatta Cristina M. Posa Assistant U.S. Attorneys

cc:

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


EXHIBIT J

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. (888) 679-0585
Adam D. Perlmutter, esq. --Daniel A. McGuinness, Esq. Of Counsel Paul Greenfield, Esq. Jennifer Louis-Jeune, Esq.

July 12, 2013 VIA EMAIL Elizabeth Geddes, Esq. Assistant United States Attorneys United States Attorneys 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 S1 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

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