United States v. Pitera

10-1564-cr
United States v. Pitera

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2011

Docket No. 10-1564-cr

Submitted: September 6, 2011 Decided: April 3, 2012

_____________________________________________________________________________

UNITED STATES OF AMERICA,

Appellee,

– v. –

THOMAS PITERA, AKA THOMMY KARATE,

Defendant-Appellant,
_____________________________________________________________________________

Before: JACOBS, Chief Judge, MINER* and KATZMANN, Circuit Judges.

Appeal from an Order entered on April 9, 2010, in the United States District Court for the
Eastern District of New York (Dearie, J.) denying defendant-appellant’s motion to compel post-
conviction DNA testing of six items pursuant to 18 U.S.C. § 3600, the court having determined that
the proposed testing would not raise a reasonable probability that the defendant did not commit the
offense of murder in furtherance of a continuing criminal enterprise.

Affirmed.

Roger Bennet Adler, Roger Bennet Adler, P.C., New York,
New York, for Defendant-Appellant.

Emily Berger and Stephen E. Frank, Assistant United States
Attorneys (Loretta E. Lynch, United States Attorney for the
Eastern District of New York, of counsel), Brooklyn, New
York, for Appellee.

*
The Honorable Roger J. Miner, originally a member of the panel, died on February 18, 2012. The two
remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d);
2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).

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MINER, Circuit Judge:1

Defendant-appellant Thomas Pitera appeals from an Order entered in the United States

District Court for the Eastern District of New York (Dearie, J.) denying his motion to compel post-

conviction DNA testing of six items pursuant to the Innocence Protection Act (the “Act”). 18

U.S.C. §§ 3600 et seq. (2006). Pitera contends that the testing of these items will provide evidence

exonerating him from his conviction for the murder of three persons in furtherance of a continuing

criminal enterprise. The District Court determined that Pitera failed to demonstrate that the

proposed testing would raise a reasonable inference that he did not commit the offense. On appeal,

Pitera faults the government for failing to take reasonable measures to preserve the items he seeks to

test and for a lack of due diligence in searching for the items. Pitera contends that DNA on the six

items, if found, would raise a reasonable probability that he did not commit the murders for which

he was convicted.

BACKGROUND

I. Conviction and Subsequent Proceedings
In an Opinion filed on September 22, 1993, we affirmed

the November 6, 1992, judgment of the District Court for the Eastern District of
New York (Reena Raggi, Judge) [following a jury trial,] convicting [Pitera] of various
offenses including racketeering, in violation of 18 U.S.C. § 1962(c) (1988);
supervising a continuing criminal enterprise (“CCE”), in violation of 21 U.S.C. §
848(a), (c) (1988); murder in furtherance of a CCE, in violation of 21 U.S.C. §
848(e)(1)(A) (1988); and several narcotics and firearms offenses.
United States v. Pitera, 5 F.3d 624, 626 (2d Cir. 1993). We determined that

[t]he evidence . . . abundantly established that Pitera was the ringleader of a criminal
group that engaged in murder, drugs trafficking, kidnapping, armed robbery, and
various other crimes. Several of the murders were personally committed by Pitera,
who dismembered the victims’ bodies and buried them in a Staten Island bird
sanctuary.

Id. The “criminal group” has been identified as “the Pitera Crew of the Bonanno Organized Crime

Family.” Pitera v. United States, Nos. 99 CV 191, 90 CR 424, 2007 WL 3005791, at *1 (E.D.N.Y.

1
Judge Miner substantially drafted this opinion for the Court prior to his passing.

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Oct. 10, 2007). The jury’s verdict included a decision not to recommend the death penalty.

Following the verdict, the District Court sentenced Pitera to seven terms of life imprisonment, four

terms of imprisonment for twenty years, and five terms of imprisonment for ten years. The court

directed that three of the life terms, two of the twenty-year terms, and one ten-year term run

consecutively and imposed a fine of $250,000. Pitera, 5 F.3d at 626.

At several times since his conviction and incarceration almost twenty years ago, Pitera has

sought post-conviction relief in various proceedings. Many of these endeavors have centered on

Pitera’s challenges to the testimony of accomplice witness Frank Gangi in relation to the murders

for which Pitera was convicted. In rejecting one such challenge, brought in the form of a motion

for reconsideration of an earlier dismissal of a motion to vacate conviction made pursuant to 28

U.S.C. § 2255 (and alternatively pursuant to 28 U.S.C. § 2241), then-District Judge Raggi, who

presided at the trial, wrote the following:

Pitera . . . insists that Gangi’s arrest files show that he had possession of certain guns
and bags similar to those used in some of the charged murders. Pitera submits that
this proves that Gangi was the true killer. Certainly, Gangi candidly acknowledged at
trial that he was a direct participant in many of the gruesome murders charged in the
indictment. What he explained to the jury, however, was that he had committed
these crimes with Pitera. This testimony is not undercut by Pitera’s “new evidence.”
Pitera v. United States, No. CV 99-191(RR), 2000 WL 33200254, at *3 (E.D.N.Y. Dec. 21, 2000)

(emphasis in original). Judge Raggi went on to note that “Pitera’s involvement in the murders was

corroborated in many important respects,” citing two specific examples of corroborating evidence.
Id.

II. The Motion for DNA Testing and the Government’s Response

Returning once again to his claim that the murders for which he was convicted were in fact

committed by Frank Gangi, Pitera on October 30, 2009, filed a motion in the District Court

pursuant to 18 U.S.C. § 3600 to compel DNA testing of six items of physical evidence purportedly

seized from Gangi, viz. a ski mask, scarf, suitcase, .22-caliber handgun, .357 Magnum, and .22-

caliber rifle and scope. According to Pitera, a finding of DNA from one or all of the victims upon

the items seized from Gangi would raise a reasonable probability that Gangi was the murderer.

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 In his “AFFIDAVIT IN SUPPORT OF DNA TESTING,” Pitera stated the following:

At trial, I was found guilty of murdering three individuals, known as “Burdi,”
“Leone” and “Stern.” However, I am completely innocent of these charges and I
affirm under the penalty of perjury that I did not kill or participate in killing any of
these individuals.

The affidavit also includes a statement offering to “provide a DNA sample for comparison

purposes.”

In a “Supporting Memorandum of Law,” filed with his affidavit, Pitera asserted the

following:

In approximately 1998, Mr. Pitera had learned through a FOIA request that the FBI
and the prosecuting office had possessed and failed to disclose critical physical
evidence relevant to the murder offenses that Gangi had testified too [sic] during Mr.
Pitera’s trial. The undisclosed “evidence” consisted of a ski mask, scarf, soft-sided
zippered suitcase, 22-caliber handgun, .357 Magnum, and a 22-caliber rifle & scope,
all of which was confiscated during the government’s investigation of “LCN” and
found to be the property of cooperating witness Frank Gangi.

In the same Memorandum, he contended that he “me[t] every requirement of the [Innocence

Protection] Act.” Specifically, Pitera asserted that: the evidence sought to be tested was secured

during the investigation of the alleged offenses; he did not waive his right to DNA testing at his

1992 trial; the evidence is in the possession of the government, and its condition has not been

compromised; the scope of the proposed DNA testing is reasonable, conforms to scientifically

sound methods, and is consistent with accepted forensic practices; his theory of defense is not

inconsistent with an affirmative defense presented at trial and would establish his actual innocence;
the identify of the true perpetrator was a critical issue during his trial; and DNA testing may produce

new material evidence that would support his theory of defense and would raise a reasonable

probability that he did not commit the alleged offenses.

Responding to Pitera’s motion by letter brief dated February 19, 2010, the government first

argued that the evidence seized from Gangi that Pitera seeks to have tested “does not appear to be

in the possession of the government.” In a section of the letter brief entitled “The Evidence the

Defendant Seeks To Test Cannot Be Located and Was Likely Destroyed,” the government

represented that it “has been unable to locate the six items [Pitera] seeks to have tested, most of

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which appear never to have been in federal custody.” The government referred to Pitera’s motion

as “appear[ing] to indicate that the items he seeks to have tested were seized from Gangi and two

co-defendants by the NYPD [New York City Police Department] during a burglary arrest more than

two decades ago.” According to the government, the NYPD file for the arrest has been sealed and

therefore cannot be reviewed; the NYPD has advised that the .22-caliber rifle to which Pitera’s

motion referred was destroyed pursuant to its standard policy for evidence disposition; the

government has been unable to locate NYPD vouchers for the other items described in the motion;

and “any such evidence in NYPD custody was likely destroyed many years ago.”

Although the government faulted Pitera for offering no basis for suggesting that five of the

six items sought were transferred to federal custody, it did acknowledge Pitera’s suggestion that the

.357 magnum sought may have been transferred to the custody of the Federal Bureau of Alcohol,

Tobacco, Firearms, and Explosives (“ATF”). However, according to the government, “[a] check of

ATF records . . . has failed to locate either the weapon or the file associated with it” and “pursuant

to ATF policy, any such evidence would likely have been destroyed more than a decade ago.” As

pertains to the inventory of evidence in its own case against Pitera, the government asserted that two

suitcases were returned to Pitera’s sister; that “numerous guns associated with the case have been

destroyed”; that it “does maintain custody of two handguns and a rifle of the caliber described by

the defendant”; however, those firearms were not seized from Gangi and are not those that Pitera
seeks to have tested.

Further responding to Pitera’s motion for DNA testing, the government contended that the

DNA testing sought by Pitera would not raise a reasonable probability that he is innocent. Although

Pitera claimed that the testing of the items sought would demonstrate that Gangi committed the

murders and “framed” him by testifying against him, the government pointed out that Gangi

participated with Pitera in a number of murders. Accordingly, the government argued that Gangi’s

testimony would not be undercut by the DNA evidence sought, especially in view of “the

overwhelming evidence against [Pitera].” Because the DNA evidence could not serve to exculpate

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Pitera, the government urged denial of the motion. In a reply brief filed in the District Court, Pitera

argued that the government failed to authenticate the destruction of the items sought; that the

testing would raise a reasonable probability of his innocence; and that the bad faith destruction of

the evidence was a violation of due process.

III. The Decision of the District Court

In denying Pitera’s motion, the District Court concluded that “the lack of a forensic

connection between [Pitera] and the items he seeks to have tested, if demonstrated, would not raise

a reasonable probability that [Pitera] did not commit the offense.” United States v. Pitera, No. 90

CR 424 (E.D.N.Y. Apr. 9, 2010), ECF No. 698. This conclusion was based on a determination that,

even if DNA testing of the guns and bags revealed only the DNA of the murder victims and Gangi,

the testing would not produce any new material evidence that would raise a reasonable probability

that Pitera did not commit the murders. The District Court found support in our determination on

direct appeal that the evidence “abundantly established” Pitera’s guilt, id. (citing Pitera, 5 F.3d at
626), and in the finding of the trial court that Gangi’s testimony regarding the murder was

corroborated “in many important respects,” id. (citing Pitera, 2000 WL 33200254, at *3).

The District Court referred to two examples of corroboration described by the trial court in

the opinion denying Pitera’s motion to vacate the dismissal of Pitera’s habeas petition: jewelry from

some of the murder victims located in Pitera’s home and Pitera’s wiretapped conversation regarding
methods for dismemberment and disposal of murder victims. As noted by the District Court, that

motion before the trial court was based on alleged newly discovered evidence that Gangi’s arrest

files revealed. This evidence, namely Gangi’s possession of certain bags and guns similar to those

used in some of the murders, provides the same foundation for the motion subject of this appeal.

In the motion to vacate, Pitera also claimed that the “new evidence” would prove that Gangi was the

killer. The District Court found significant the trial court’s finding on that motion that this

evidence, if disclosed at trial, would not likely have resulted in a different outcome and could not

“reasonably be taken to put the whole case in such a different light as to undermine confidence in

the verdict.” Id. (citing Pitera, 2000 WL 33200254 at, *3 (internal quotation marks omitted)).

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 ANALYSIS

I. Of DNA Testing, the Innocence Protection Act, and the Standard of Review

A. DNA Testing

DNA is the abbreviation for deoxyribonucleic acid, which is the genetic material present in
the nucleus of cells in all living organisms . . . . The majority of the DNA is identical from
one human to another, but there are locations in the DNA that have been found to differ
from one individual to another, with the exception of identical twins. These are the regions
of DNA that are analyzed and used to compare the DNA obtained from an unknown
evidence sample to the DNA of a known individual in DNA identification testing. . . .
Questioned or unknown samples collected from the crime scene can be any biological
sample including [, inter alia,]: liquid blood or bloodstains, liquid saliva or saliva stains, . . .
pieces of tissue/skin; fingernails; plucked and shed hairs . . . ; [and] skin cells on drinking
vessels [and] clothing.

Nat’l Comm’n on the Future of DNA Evidence, U.S. Dep’t of Justice, Nat’l Inst. of Justice, Post

Conviction DNA Testing: Recommendations for Handling Requests 21–22 (1999), available at
www.ncjrs.gov/pdffiles1/nij/177626.pdf [hereinafter “DNA Report”].

The Supreme Court has recognized that “DNA testing has an unparalled ability both to

exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly

improve both the criminal justice system and police investigative practices.” Dist. Attorney’s Office

v. Osborne, 557 U.S. 52, 129 S. Ct. 2308, 2312 (2009). The Court took note of “special approaches”

taken by the state and federal governments, “usually but not always by legislation,” to ensure the

effective use of “this evidentiary tool.” Id. In Osborne, the Court held that in the absence of a

specific statute providing for post-conviction DNA testing, Alaska’s general post-conviction
remedies were available to access evidence for post-conviction DNA testing and satisfy due process.

Id. at 2317, 2320–21; cf. McKithen v. Brown, 626 F.3d 143, 152–54 & n.6 (2d Cir. 2010) (holding

that the New York statute providing for DNA testing satisfies due process and “passes

constitutional muster under Osborne”).

In its Osborne opinion, the Court took special note of the legislation authorizing the

proceeding giving rise to this appeal:

The Federal Government has . . . passed the Innocence Protection Act of 2004, § 411, 118
Stat. 2278, codified in part at 18 U.S.C. § 3600, which allows federal prisoners to move for
court-ordered DNA testing under certain specified conditions. That Act also grants money

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 to States that enact comparable statutes, § 413, 118 Stat. 2285, note following 42 U.S.C. §
14136, and as a consequence has served as a model for some state legislation.

Osborne, 129 S. Ct. at 2316.

B. The Innocence Protection Act

To warrant post-conviction DNA testing, as applicable here, the court that entered the

judgment of conviction must find the following: (1) that the applicant seeking testing has submitted

a written motion setting forth, under penalty of perjury, that he is “actually innocent” of the federal

offense for which he is serving a sentence of imprisonment; (2) that “[t]he specific evidence to be

tested was secured in relation to the investigation or prosecution of the Federal . . . offense” for

which the applicant is serving his sentence; (3) the evidence was not previously subjected to DNA

testing, the applicant did not waive his right to request DNA testing of such evidence in a court

proceeding after the date of enactment of the Innocence Protection Act, and he did not fail to

request testing of that evidence in a prior postconviction motion for DNA testing; (4) that the

evidence to be tested is in the government’s possession, has been subject to a chain of custody, and

has been retained under conditions that ensure the evidence has not been tainted in any manner

material to DNA testing; and (5) that the “proposed DNA testing is reasonable in scope, uses

scientifically sound methods, and is consistent with accepted forensic practices.” 18 U.S.C. §

3600(a)(1)–(a)(5) (2006).

The court must make further findings that (6) the applicant identifies a defense theory “not

inconsistent with an affirmative defense presented at trial” and that would establish “actual

innocence” of the offense of conviction; (7) in the case of one convicted after trial, as was Pitera, the

perpetrator’s identify was at issue; (8) the proposed testing “may produce new material evidence”

supporting the defense theory identified and “raise a reasonable probability that the applicant did

not commit the offense”; and (9) the applicant certifies that he will provide a DNA sample for

comparison purposes. Id. § 3600(a)(6)–(a)(9). The Act provides for a “rebuttable presumption of

timeliness if the motion is made within [sixty] months of enactment of the Justice For All Act of

2004 or within [thirty-six] months of conviction, whichever comes later.” Id. § 3600(a)(10)(A).

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Rebuttal may include a showing that the application is based on information presented in a motion

previously denied or a showing by “clear and convincing evidence” that the sole purpose of filing is

to harass or cause delay. Id. § 3600(a)(10)(A)(i) and (ii).

II. Standard of Review

Although we never have established a standard of review for the denial of a motion for

DNA testing, we now establish that standard and apply it in this case: whether a prisoner is entitled

to DNA testing under the Act is a question of law subject to de novo review; findings of fact related

to that question are subject to review for clear error. See United States v. Fasano, 577 F.3d 572, 575

(5th Cir. 2009); see also United States v. Jordan, 594 F.3d 1265, 1269 (10th Cir. 2010) (Lucero, J.,

concurring). This comports with our standard of review of determinations made under the

provisions of other statutes providing for post-conviction relief. See, e.g., Ponnapula v.
Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (standard of review from denial of habeas corpus).

III. Of the Reasonable Probability that Pitera did not Commit the Offense

Even if Pitera’s application established each of the other prerequisites detailed in the Act,

including the requirement that specific evidence be in the possession of the goverment, the

application still would fail because he cannot show that the proposed testing “may produce new

material evidence that would . . . raise a reasonable probability that [he] did not commit the offense.”

18 U.S.C. § 3600(a)(8)(B) (2006).2 Indeed, for the following reasons, we agree with the District
Court that “[t]he present motion merely repackages an argument that has already been rejected by

the [D]istrict [C]ourt.” United States v. Pitera, No. 90 CR 424 (E.D.N.Y. Apr. 9, 2010), ECF No.

698.

In the present motion, Pitera argues that if the evidence at issue were tested, it likely would

contain DNA from the murder victims. Because the evidence was confiscated by the government

from Gangi and not from Pitera, Pitera contends that the presence of the victims’ DNA on the

2
Because Pitera has failed to show that the proposed testing may produce new evidence that would raise a
reasonable probability of his innocence, we need not reach his arguments as to the inadequacy of the
government’s search for the items sought to be tested, or of its response to Pitera’s motion to compel testing.

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evidence would establish that Gangi, and not he, was the “‘true’ perpetrator.” As the District Court

found, this is the same argument that Pitera raised, and the District Court rejected, in his June 1999

motion to vacate the dismissal of his habeas petition, albeit with a “speculative forensic twist.” Id.

For the same reasons that the District Court rejected his argument then, we reject it now, namely

that “Gangi candidly acknowledged at trial that he was a direct participant in many of the gruesome

murders charged in the indictment. What he explained to the jury, however, was that he had

committed these crimes with Pitera.” Pitera, 2000 WL 33200254, at *3 (emphasis in original).

We agree with the District Court that even if the guns and bags did not show DNA from

Pitera, but rather showed DNA only of Gangi and the victims, such a showing would not “raise a

reasonable probability that [Pitera] did not commit the offense” because the government’s case

contemplated (and Gangi so testified) that Gangi committed the murders in conjunction with Pitera.

This finding was based not only on Gangi’s testimony but also on corroborating evidence, including

jewelry from some of the murder victims and Pitera’s wiretapped conversation in which he discussed

dismemberment techniques.

Our conclusion finds support in the case law. In United States v. Jordan, 594 F.3d 1265
(10th Cir. 2010), the Tenth Circuit was presented with a similar application for DNA testing. In that

case, the applicant, Mark Jordan, was convicted of murdering a fellow prisoner while confined in a

federal penitentiary. At trial, the government presented the testimony of two inmates who observed
the murder. Both inmates testified that Jordan stabbed the victim. Other testimony offered at trial

showed that another inmate, Sean Riker, was with Jordan and that both men were observed walking

away from the victim minutes before the stabbing. Two corrections officers also testified; however,

the officers only observed what occurred after the stabbing — specifically, they observed Jordan flee

the scene of the stabbing and subsequently throw something onto the roof of a housing unit. It was

later determined that the object thrown on the roof was the murder weapon. The weapon was

tested for DNA, and the tests revealed the victim’s DNA and “a small amount of DNA that did not

belong to Mr. Jordan.” Id. at 1267.

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 Following his conviction on, inter alia, second-degree murder charges, Jordan filed a motion

seeking additional DNA testing and alleging that the testing would establish his actual innocence. In

doing so, he contended that Riker was the actual assailant. The District Court denied the motion,

finding that the proposed testing would not raise a reasonable probability that Jordan did not

commit the offense, as is required by the Act. In affirming the denial of Jordan’s motion, the Tenth

Circuit remarked that even if Riker’s DNA were found on the weapon, “[s]uch evidence would only

show that Mr. Riker handled those items at some point, which is not at all inconsistent with the

government’s theory of the case such that it calls into question the strength of the evidence against

Mr. Jordan.” Id. at 1268. The Court also noted the strength of the corroborating evidence as

lending support to its conclusion.

As detailed above, the same holds true in this case. That Gangi handled the objects at issue

in conjunction with the three murders is not at all inconsistent with the government’s theory of the

case. Moreover, the District Court noted the strong corroborating evidence, on which we also relied

in affirming Pitera’s conviction on the underlying offenses. United States v. Pitera, No. 90 CR 424
(E.D.N.Y. Apr. 9, 2010), ECF No. 698 (citing Pitera, 5 F.3d at 626 (noting that the evidence

“abundantly established” Pitera’s guilt)). Thus we easily conclude that Pietra has failed to show that

“[t]he proposed DNA testing of the specific evidence may produce new material evidence that

would . . . raise a reasonable probability that [he] did not commit the offense.” See 18 U.S.C. §
3600(a)(8)(B) (2006).

CONCLUSION

For the foregoing reasons, the Order of the District Court is AFFIRMED.

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