     11-3570-cr
     United States v. LoCascio

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16th day of November, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JOHN M. WALKER, Jr.,
 9                              Circuit Judge,
10                SANDRA DAY O’CONNOR,
11                              Associate Justice (Retired).*
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15                Appellee,
16
17                -v.-                                                   11-3570-cr
18       JOHN GOTTI, SALVATORE GRAVANO, GUISEPPE
19       GAMBINO, AKA JOE, AKA JOEY, PHILIP
20       LOSCALZO, AKA SKINNY PHIL,
21                Defendants,
22       FRANK LOCASCIO,
23                Defendant-Appellant.
24       - - - - - - - - - - - - - - - - - - - -X

                *
               The Honorable Sandra Day O’Connor, Associate Justice
         (Retired) of the United States Supreme Court, sitting by
         designation.
                                                  1
 1   FOR APPELLANT:             Ruth M. Liebesman, Teaneck, New
 2                              Jersey.
 3
 4   FOR APPELLEE:              Peter A. Norling, Taryn A.
 5                              Merkl, for Loretta E. Lynch,
 6                              United States Attorney’s Office
 7                              for the Eastern District of New
 8                              York, Brooklyn, New York.
 9
10        Appeal from an order of the United States District
11   Court for the Eastern District of New York (Glasser, J.).
12
13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14   AND DECREED that the judgment of the district court be
15   AFFIRMED.
16
17        Frank LoCascio appeals from an order entered on August
18   24, 2011, in the United States District Court for the
19   Eastern District of New York (Glasser, J.) denying his
20   motion to unseal certain wiretap recordings and portions of
21   his trial transcript. We assume the parties’ familiarity
22   with the underlying facts, the procedural history, and the
23   issues presented for review.
24
25        LoCascio, a former underboss of the Gambino Crime
26   Family, is serving a life sentence after his 1992 conviction
27   (with co-defendant John Gotti) on charges of racketeering,
28   murder, and related offenses. The present motion is the
29   latest in a series of LoCascio’s challenges to conviction.
30   Here, he requests that the government release wiretap
31   recordings played during his trial for further testing by a
32   defense expert, analogizing recent advances in audio
33   technology to advances in DNA testing. He also seeks
34   certain portions of his trial transcript that were filed
35   under seal.
36
37        LoCascio contends that he has a due process right to
38   the audio recordings played during his trial, but he fails
39   to cite any authority in support of this proposition. Even
40   if his somewhat tenuous analogy to DNA evidence is
41   warranted, the Supreme Court has declined to recognize “a




                                  2
 1   freestanding right to access DNA evidence for testing.”1
 2   District Attorney’s Office for Third Judicial Dist. v.
 3   Osborne, 557 U.S. 52, 72 (2009).
 4
 5        LoCascio’s motion is also procedurally barred. He
 6   already filed a § 2255 petition, which was denied. LoCascio
 7   v. United States, 473 F.3d 493 (2d Cir. 2007). If LoCascio
 8   were to file a “second or successive petition” under § 2255,
 9   it would be dismissed unless it asserted either “(1) newly
10   discovered evidence that, if proven and viewed in light of
11   the evidence as a whole, would be sufficient to establish by
12   clear and convincing evidence that no reasonable factfinder
13   would have found the movant guilty of the offense;” or “(2)
14   a new rule of constitutional law, made retroactive to cases
15   on collateral review by the Supreme Court, that was
16   previously unavailable.” 28 U.S.C. § 2255(h). Even if he
17   were granted the discovery he now seeks, LoCascio could
18   establish neither.2
19
20        Finding no merit in LoCascio’s remaining arguments, we
21   hereby AFFIRM the judgment of the district court.
22
23
24                              FOR THE COURT:
25                              CATHERINE O’HAGAN WOLFE, CLERK
26




         1
            LoCascio does not expressly assert a procedural due
     process claim, but assuming one is encompassed within his
     appeal, he has failed to establish that the post-conviction
     relief procedures afforded to him are “fundamentally
     inadequate to vindicate the substantive rights provided.”
     Osborne, 557 U.S. at 69.
         2
           LoCascio improperly filed this motion with the
     district court rather than first seeking certification from
     this Court, as required by § 2255. See 28 U.S.C. § 2255(h).
                                  3
