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

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United States of America,

      Appellee,

                  v.

Michael Sessa,

     Defendant-Appellant.1
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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.




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