11-611-cr
United States of America v. Orena (Sessa)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2012
Heard: October 1, 2012 Decided: March 29, 2013
Docket No. 11-611-cr
- - - - - - - - - - - - - - - - - - - - - -
United States of America,
Appellee,
v.
Michael Sessa,
Defendant-Appellant.1
- - - - - - - - - - - - - - - - - - - - - -
Before: NEWMAN, LYNCH, and LOHIER, Circuit Judges.
Appeal from the January 25, 2011, order of the United States
District Court for the Eastern District of New York (Allyne R. Ross,
District Judge), denying the Appellant’s motion for a new trial.
Affirmed.
Amy Busa, Assistant United States
Attorney, New York, N.Y. (Loretta E.
Lynch, United States Attorney for
the Eastern District of New York,
David C. James, Assistant United
States Attorney, New York, N.Y., on
the brief), for Appellee.
Gail Jacobs, Esq., Great Neck, N.Y.,
for Appellant.
1
The Clerk is directed to conform the official caption as above.
JON O. NEWMAN, Circuit Judge:
This appeal from the denial of motion for a new trial based on
newly discovered evidence presents claims that the Government
violated due process requirements by failing to disclose exculpatory
information and failing to correct testimony known to be false.
Defendant-Appellant Michael Sessa appeals from the January 25, 2011,
order of the United States District Court for the Eastern District
of New York (Allyne R. Ross, District Judge) denying his motion
brought pursuant to Fed. R. Crim. P. 33 (the “Rule 33 motion”). See
United States v. Sessa, Nos. 92-CR-351, 97-CV-2079, 2011 WL 256330
(E.D.N.Y. Jan. 25, 2011). That motion challenged his November 12,
1992, conviction for several crimes related to his participation in
the Colombo organized crime family (“Colombo Family”). We affirmed
that conviction. See United States v. Sessa, 41 F.3d 1501 (2d Cir.
1994) (mem.).
Because the District Court did not err in finding that (1) the
allegedly exculpatory evidence was not suppressed and was not
material and (2) the alleged perjury was not material to the
Defendant’s conviction, we affirm.
Background
The Defendant’s conviction stemmed from his participation in the
Colombo Family of La Cosa Nostra. In the 1980s, the Colombo Family
was controlled by Carmine Persico and Gennaro Langella. After Persico
and Langella were sentenced to lengthy prison terms in November 1986
-2-
and January 1987, an internal and ultimately violent rift developed in
the Colombo Family between two factions vying for control of the
Family. Sessa was aligned with the faction that remained loyal to
Persico (the “Persico Faction”). The other faction aligned with Victor
J. Orena, the “Acting Boss” during Persico’s imprisonment (the “Orena
Faction”).
I. Evidence at the Defendant’s Trial
The evidence at the Defendant’s trial, which overwhelmingly
established his guilt, is fully set forth in the District Court’s
opinion. See Sessa, 2011 WL 256330, at *3-*12. We summarize here only
the evidence that is relevant to the issues on appeal.
Background testimony from Agent DeVecchio. Agent DeVecchio, the
Government’s first trial witness, primarily testified as an expert
witness on organized crime. The District Court cautioned the jury that
his testimony was only background information. DeVecchio also
testified that there was an ongoing internal power struggle in the
Colombo Family and that the struggle resulted in several murders and
other crimes.
In two assertions that formed the foundation of the Defendant’s
perjury claims in his Rule 33 motion, DeVecchio also asserted that (1)
if one of his informants committed a crime, he would report that crime
to the federal prosecutor, and (2) he had never gone to a prosecutor
to ask that one of his informants be given preferential treatment in
a pending criminal matter.
-3-
Evidence of Anthony Coluccio’s murder. The Defendant’s murder
conviction resulted from the shooting death of Anthony Coluccio, a
member of the Defendant’s crew. He was murdered in May 1989. The
evidence showed that Coluccio was killed because the Defendant and
other members of the Colombo Family became concerned that Coluccio had
become a vulnerable member – someone whom the police could convince to
cooperate – after he started using and selling drugs. The Defendant
and Joseph Ambrosino, a member of the Defendant’s crew, were ordered
to kill Coluccio by a higher authority in the Colombo Family.
The evidence about the Defendant’s involvement in Coluccio’s murder
came almost exclusively from Ambrosino, who, by the time of the
Defendant’s trial, had agreed to cooperate with the Government.
Ambrosino testified to the following: the Defendant arranged to have
Coluccio meet him and Ambrosino in Brooklyn at 8:00 p.m. on May 16,
1989; he and the Defendant used a ruse to convince Coluccio to drive
with them to Ambrosino’s home in Staten Island; when the three men
were several blocks from his house, the Defendant, who was sitting in
the back passenger seat of the car, shot Coluccio three times in the
back of his head; Ambrosino and the Defendant left Coluccio’s body in
the car and walked about a block to a getaway car driven by another
Colombo Family member; and the Defendant threw the gun into a storm
drain on Rockland Avenue. More than two years later, after Ambrosino
agreed to cooperate with the Government, the FBI found the gun in the
storm drain, where Ambrosino had directed them to look.
-4-
II. Defendant’s Conviction and Sentence
The Defendant was convicted after a jury trial of racketeering (18
U.S.C. § 1962(c)), racketeering conspiracy (18 U.S.C. § 1962(d)),
conspiring to murder Coluccio (18 U.S.C. § 1959(a)(5)), murdering
Coluccio (18 U.S.C. § 1959(a)(1)), conspiring to murder rival members
of the Colombo Family (18 U.S.C. § 1959(a)(5)), conspiring to make
extortionate extensions of credit (18 U.S.C. § 892), conspiring to use
extortionate means to collect extensions of credit (18 U.S.C. § 894),
and using and carrying a firearm in connection with crimes of violence
(18 U.S.C. § 924(c)(1)). The Defendant was sentenced to life in
prison on the racketeering and murder counts, concurrent terms of ten
years on each of the two murder conspiracy counts and twenty years on
each of the two loansharking counts, and a consecutive five-year term
on the firearms count.
III. Information Developed After the Trial
DeVecchio’s misconduct. In the years after the Defendant’s
conviction, significant evidence was developed documenting that Agent
DeVecchio, the agent in charge of the investigation of the Colombo
Family, was extremely careless, perhaps criminally so, in his handling
of his principal informant, Gregory Scarpa, a Colombo Family member.2
Much of this information was disclosed in August 1994 and May 1995,
2
Because Agent DeVecchio oversaw many of the FBI agents who
worked on the Colombo Family cases, his misdeeds with Scarpa have been
the subject of numerous post-conviction motions and civil suits. See
Sessa, 2011 WL 256330, at *10 (collecting cases).
-5-
when, under court order in a related case, federal prosecutors
confirmed that Scarpa had been an FBI informant and that DeVecchio had
leaked significant information to Scarpa about the FBI’s
investigation.
Scarpa had an extensive criminal background. He was a “made
member” of the Colombo Family by the early 1980s, and he routinely
engaged in credit card fraud, extortion, gambling, narcotics
trafficking, and loansharking as the director of a Colombo Family crew
in Brooklyn. By the time of the internal power struggle between the
Persico and the Orena factions, Scarpa was an acting captain in the
family that remained loyal to Persico. While Scarpa was DeVecchio’s
informant, Scarpa also participated in several murders and attempted
murders of other members of the Family. Ultimately, on February 4,
1993, after the Defendant’s conviction, Scarpa was indicted for his
role in three murders, and in May 1993, he pleaded guilty and was
sentenced to ten years’ imprisonment. See New York v. DeVecchio, 468
F. Supp. 2d 448, 451 (E.D.N.Y. 2007).
Scarpa’s status as a confidential informant for the FBI dated back
to at least 1980. He provided the FBI with extensive information
about the Colombo Family. In exchange for his information, the FBI
paid Scarpa, and Scarpa expected leniency in the event that he was
convicted.
Despite the fact that FBI regulations required two agent-handlers
for each confidential informant, DeVecchio was Scarpa’s sole handler
-6-
from 1980 until 1992. During that time DeVecchio shared information
with Scarpa about the FBI’s investigation of the Colombo Family. In
addition, DeVecchio allowed Scarpa to remain a confidential informant
despite the fact that DeVecchio knew that Scarpa was committing
violent crimes.
By the time of the Defendant’s trial in October 1992, the FBI had
concerns about DeVecchio’s handling of Scarpa, and the prosecutors
knew that Scarpa was one of the FBI’s confidential informants. But
the FBI and the prosecutors did not know the extent of DeVecchio’s
misconduct. After several Colombo Family members agreed to cooperate
with the Government in April 1993, the FBI learned of DeVecchio’s
misconduct, and in January 1994 federal prosecutors learned of some of
DeVecchio’s misconduct. Several months later the FBI shared
information it had gathered in its internal investigation of DeVecchio
with federal prosecutors.
In March 2006, a New York State grand jury indicted DeVecchio for
second-degree murder. The charges were based on the fact that Scarpa
used some of the information DeVecchio provided him to murder and
arrange for the murders of rivals in the Colombo Family. The Kings
County District Attorney withdrew the case against DeVecchio duing his
trial.
NYPD reports concerning Coluccio’s murder. After the trial, in
addition to learning of DeVecchio’s misconduct, the Defendant also
gained access to NYPD reports on the investigation of Coluccio’s
-7-
murder. These reports revealed the following information: (1) the
NYPD had found a latent fingerprint from the car in which Coluccio’s
body was found and had compared it to approximately 50 people who were
known associates of Coluccio, but had failed to find a match; (2)
several witnesses interviewed by the NYPD had reported seeing Coluccio
alive in the hours immediately after 8:00 p.m., the approximate time
that Ambrosino testified that the Defendant shot Coluccio; and (3) a
witness in Staten Island who saw the car in which Coluccio was shot
had reported seeing only one man walk away from the car.
IV. The Defendant’s Rule 33 Motion
On October 11, 1996, the Defendant filed his Rule 33 Motion seeking
a new trial based on the information that he had obtained in the NYPD
reports about the Coluccio murder and the information that came to
light about DeVecchio’s misconduct and Scarpa’s role as a confidential
informant. The Defendant alleged that the information that came to
light after his conviction amounted to newly discovered evidence, that
the prosecutor failed to disclose exculpatory material, and that the
prosecutor presented perjured testimony from DeVecchio.
The District Court denied the motion in a thorough opinion. See
Sessa, 2011 WL 256330. We will identify the District Court’s
reasoning, pertinent to the issues raised on appeal, in the course of
discussing the Appellant’s claims.
-8-
Discussion
This Court reviews the denial of a Rule 33 motion for a new trial
for an abuse of discretion. See, e.g., United States v. Douglas, 525
F.3d 225, 245 (2d Cir. 2008). Factual findings are reviewed for clear
error. See United States v. Imran, 964 F.2d 1313, 1318 (2d Cir.
1992). “While the trial judge’s factual conclusions as to the effect
of nondisclosure are ordinarily entitled to great weight,” this Court
conducts its own “independent examination of the record in determining
whether the suppressed evidence is material.” United States v. Payne,
63 F.3d 1200, 1209 (2d Cir. 1995) (citations and internal quotation
marks omitted).
Sessa asserts three claims on appeal. He contends that (1) the
NYPD police reports were newly discovered evidence that was
exculpatory and should have been produced to the defense pursuant to
Brady v. Maryland, 373 U.S. 83 (1963); (2) the Government failed to
disclose an improper relationship between DeVecchio and Scarpa, also
in violation of Brady; and (3) DeVecchio testified falsely at trial
and that the Government either knew or should have known of the
falsity, requiring disclosure of the falsity pursuant to United States
v. Agurs, 427 U.S. 97, 103 (1976).
1. The NYPD police reports. Sessa contends that several aspects of
the NYPD police reports would have been helpful to the defense.
First, he argues that the reports would have provided a basis to
impeach Ambrosino’s testimony, especially concerning the time of the
-9-
murder of Coluccio, which Ambrosino had testified was 8 p.m. The
reports indicated that the police had interviewed several people who
claimed to have seen Coluccio alive between 8:40 and 10 p.m. on the
night of the murder. The District Court properly determined that this
information was not material exculpatory evidence. See Sessa 2011 WL
256330, at *23-*27. As evidence to impeach Ambrosino’s credibility,
it was cumulative of abundant other evidence. In addition, it was not
material to the defense because the defense had argued to the jury
that Ambrosino was truthfully testifying about all aspects of
Coluccio’s murder except the identity of the shooter, whom the defense
claimed was Ambrosino himself. “[A]ny witness statements tending to
contradict the time of the murder also contradict [Sessa’s] defense,
and accordingly, are not favorable to the defense for Brady purposes.”
Id. at *25 (citing Douglas, 525 F.3d at 247). Had the defense wished
to dispute the time of the murder, it had the autopsy report that
estimated the time of Coluccio’s death at approximately midnight, four
hours after Ambrosino said the murder occurred. Whatever
discrepancies the NYPD report might have shown with respect to
Ambrosino’s testimony would not have affected Ambrosino’s testimony
that he and the Defendant murdered Coluccio; that the Defendant threw
the gun, which was ultimately found by the FBI, into a storm drain; or
that there was a motive to murder Coluccio because Colombo Family
members believed that Coluccio was a vulnerable potential source for
the Government as a result of his drug use.
-10-
Sessa also faults the Government for not disclosing that the NYPD
had checked latent fingerprints from the car against the prints of a
number of people, including Scarpa. But as the District Court pointed
out, none of the comparisons yielded matches. See id. at *24. The
fact that am unidentified person, at some point in the past, had been
in Coluccio’s car does not plausibly suggest that that person killed
Coluccio. Nor does the fact that the authorities diligently pursued
other leads but found no evidence implicating any other person tend to
exculpate Sessa. Moreover, there is “no constitutional requirement
that the prosecution make a complete and detailed accounting to the
defense of all police investigatory work on a case.” Moore v.
Illinois, 408 U.S. 786, 795 (1972).
Finally, Sessa claims that a NYPD report of an interview with Harry
Ustler was Brady material. Ustler stated he had seen only one man
walking away from a car parked where Ambrosino testified his car was
parked. But, as the District Court pointed out, Ustler also said it
was a rainy night and he lost sight of the man before he reached the
end of the block. See Sessa, 2011 WL 256330, at *26. Ustler’s
statement could not “reasonably be taken to put the whole case in such
a different light as to undermine confidence in the verdict.” United
States v. Jackson, 345 F.3d 59, 73 (2d Cir. 2003) (internal quotation
marks omitted).
-11-
2. The DeVecchio/Scarpa relationship. It is not clear which aspects
of DeVecchio’s relationship with Scarpa the Appellant is claiming
should have been disclosed. The argument seems to be that Scarpa’s
status as an informant should have been disclosed. The District Court
properly ruled, however, that “the fact that Scarpa was in fact an
informant could have been discovered by [Sessa] with due diligence.”
See Sessa, 2011 WL 256330, at *29. A newspaper article published
prior to the trial had implicated Scarpa as an informant. Scarpa’s
informant status was not newly discovered evidence. The Court also
properly ruled that disclosure of the DeVecchio/Scarpa relationship,
regardless of how Sessa contends he could have used the information,
would not have led to a different result at trial. See id. at *29-*33.
3. DeVecchio’s false testimony. Sessa contends that DeVecchio
testified falsely that he did not allow confidential informants under
his supervision to commit crimes in the absence of his superiors’
approval, and, even with such approval, did not allow informants to
commit serious crimes. The Government does not dispute that DeVecchio
testified falsely about such matters, but disputes that it knew or
reasonably should have known at the time of trial that the testimony
was false. However, as the District Court properly ruled, how
DeVecchio dealt with his informants was “entirely immaterial to
[Sessa’s] conviction.” Id. at *44 (citing United States v. Wong, 78
F.3d 73, 82 (2d Cir. 1996)). The Court also noted that DeVecchio had
testified essentially on background matters and that “a [G]overnment
-12-
agent’s perjury did not warrant a new trial where the ‘testimony was
of marginal significance’ and the ‘core of the evidence’ came from a
different witness.” Id. (quoting United States v. Reyes, 49 F.3d 63,
68 (2d Cir. 1995)). There simply was no “reasonable likelihood that
the false testimony could have affected the judgment of the jury.”
Agurs, U.S. at 103.
Conclusion
The District Court’s Order denying the Appellant’s Rule 33 motion
is affirmed.
-13-