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December 5, 2015
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significant.
LaPenna testified before the grand jury on December 18, 2007. We do not believe that
we have the documents relating to the grant of immunity under which he testified, but the grand
jury transcript makes clear that LaPenna testified subject to an immunity order. 12/18/2007 Tr.
4. He testified with the understanding that if his testimony was truthful, the prosecutor would
recommend a reduction of his sentence, but "there are no promises." Id. at 5.
In his testimony, LaPenna described his long course of familiarity with Mark Saks,
Dominic Pagano, Charles Talmage, and Season Talmage. He testified that shortly before he was
arrested, he had met Mark Sachs at a restaurant called Supreme Seafood in order to deliver
marijuana to Sachs. They had dinner together. During dinner. Sachs told him that a woman with
whom he was sleeping1 was threatening to expose the affair to his wife. At the end of the dinner.
Sachs's cell phone beeped and they went outside where John Vailette and Pagano were waiting in
a pickup truck. Sachs talked with the two. He did not use the name "Kathy Hardy." He referred
to "Kat." Sachs handed Pagano a stack of money and Pagano told Sachs, "Don't worry. It's
done." Sachs asked LaPenna to purchase an ounce of cocaine and deliver it the next day, gaving
LaPenna money to make the purchase. 12/18/2007 GJ 9-13.
LaPenna purchased an ounce of crack cocaine and met the next day with Sachs, Pagano
and Vailette. He hand the crack to Sachs, who handed it to Pagano, who handed it to Vailette,
who put the crack in the glove compartment. Pagano said, "Don't worry. She's toast." Sachs
asked LaPenna if he wanted to go along with Pagano and Vailette. He declined. After Vailette
and Pagano had driven off, Sachs handed LaPenna a stack of money and said "Keep your mouth
shut, kid." Id. 14-20.
LaPenna was arrested shortly thereafter and was, as we have noted, incarcerated on the
day of the fire.
In this grand jury testimony, Steven Martone's name was never mentioned.
On January 29, 2014, Eric LaPenna was subpoenaed to appear again before the grand
J EREMIAH D ONOVAN !
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jury. The grand jury before which he had initially appeared had expired and, we believe,
prosecutors wanted to present LaPenna's testimony to the grand jury that would be asked to
return the indictment. When he appeared, he stated that he wanted an attorney and James Smart,
Esq., was appointed pursuant to the Criminal Justice Act. Smart told prosecutors that LaPenna
would invoke the privilege against self-incrimination in response to anticipated questions. The
prosecutors undertook to obtain immunity in order to compel his testimony.
Although the government has declined to provide to the defense documentation
concerning the immunity-approval process, the defense can state with some confidence that line
prosecutors prepared various documents in order to attain the assent of the United States
Attorney to the government's seeking immunity; that the United States Attorney approved and
forwarded the documents to Paul O'Brien, Deputy Assistant Attorney General in charge of the
Criminal Division of the Department of Justice, who had been designated by the Attorney
General to consider such matters. Acting on behalf of the Attorney General and Mythili Raman,
the Acting Assistant Attorney General, the Deputy Attorney General approved "your request for
authority to apply to the United States District Court for the District of Connecticut for an order,
pursuant to 18 U.S.C . 6002-6003, requiring Eric LaPenna to give testimony or provide other
information in the above matter and in any further proceedings resulting therefrom or ancillary
thereto. . . ." Emphasis added. The government moved under seal that the Court issue an
immunity order on December 8, 2007 and the Court did so.
LaPenna testified again on February 26, 2014. LaPenna testified to the same essential
facts -- Sachs paid Vailette and Pagano to kill Hardy -- with some significant variations, adding
some colorful details. (For example, LaPenna said that his father had been a large-scale
marijuana dealer and when the son inherited the business from the father, the son inherited Mark
Sachs as a customer. 2/26/2014 GJ 12.) In this second grand jury proceeding, Steven Martone's
name was mentioned very briefly: LaPenna testified that he knew who Martone was, but did not
know Martone. Id. at 10.
The prosecution has not vouched for the truth of LaPenna's statements, but it has
certainly suggested to various courts that the statements are reliable. Investigators have relied
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drugs to Sachs, which was probably at the heart of his first claim of self-incrimination, could not
now be prosecuted because of the statute of limitations. There may be limited questions that
LaPenna could answer without fear of self-incrimination.
Second, do the immunity orders issued by the Court immunize only testimony before the
grand jury, or do they cover ancillary and subsequent proceedings, such as this trial?
Third, are confrontation rights and due process offended when the government obtains an
indictment based in part upon immunized testimony, and obtains a conviction of a co-defendant
based in part upon that immunized testimony being presented to the jury as hearsay, and then
prevents the same testimony from being presented to a petit jury? If so, may the Court order the
government to seek a grant of immunity for the witness's trial testimony? Should the Court give
the government the choice between immunity and dismissal of the indictment?
Fourth, if LaPenna does not testify, may the grand jury transcripts be offered in place of
his testimony, if not under an enumerated exception to the hearsay rule, then under the catchall
exception of Rule 807, Fed. R. Evid.?
Conclusion: These will be difficult issues to resolve and this memorandum is intended
to alert to Court to the anticipated issues.
Respectfully submitted,
s/s
JEREMIAH DONOVAN
123 Elm Street--Unit 400
P.O. Box 554
Old Saybrook, CT 06475
(860) 388-3750
FAX 388-3181
Juris no. 305346
Fed.bar.no. CT 03536
jeremiah_donovan@sbcglobal.net
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