Testa v. United States

971 F. Supp. 833, 1997 U.S. Dist. LEXIS 11935, 1997 WL 457785
CourtDistrict Court, S.D. New York
DecidedAugust 8, 1997
DocketNo,. 90 Civ. 6003 (JSR); No. 3S 84 Cr. 63 (VLB)
StatusPublished

This text of 971 F. Supp. 833 (Testa v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Testa v. United States, 971 F. Supp. 833, 1997 U.S. Dist. LEXIS 11935, 1997 WL 457785 (S.D.N.Y. 1997).

Opinion

OPINION AND ORDER

RAKOFF, District Judge.

An argument built on a he is a showroom convertible: it looks great, but it doesn’t take you anywhere. Here, petitioners’ well-fashioned legal argument is of no avail, since it is premised on testimony that the Court finds unworthy of belief.

By way of background, petitioners Testa and Senter were convicted on June 28, 1989, along with others, of violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c) and (d), involving predicate acts of murder, kidnapping, and extortion. Testimony elicited at the sixteen-month trial evidenced petitioners’ membership in the “DeMeo crew,” a part of the Gambino Organized Crime Family, which engaged in a wide range of illegal and violent activities. The jury specifically found that petitioners were involved in at least seven murders. On September 14, 1989, the Honorable Vincent L. Broderick sentenced petitioners to life imprisonment and $35,000 in fines. The judgments were subsequently affirmed by the Second Circuit. See United States v. DiNome, 954 F.2d 839, 846 (2d Cir.), cert. denied, 506 U.S. 830, 113 S.Ct. 94, 95, 121 L.Ed.2d 56 (1992).

Some months following sentence, on May 15, 1990, James Cardinale, a former cooperating Government witness who did not testify at petitioners’ trial, appeared on the television program “Larry King Live.” In the course of his appearance, Cardinale alleged in effect that he had been induced by Government agents in the Southern District of New York to “coach” a Government witness, Mickey Featherstone, to make a false identification of petitioners at their trial. Shortly thereafter, in July, 1990, another Government witness at petitioners’ trial, Joseph Bennett, Jr., telephoned counsel for petitioner Testa. In the call, and in a subsequent interview conducted by Testa’s investigator, Bennett claimed, inter alia, that he had been induced by the Government to falsely implicate Testa in one of the murders that the jury found as a predicate act.

Based on these and other statements by Cardinale and Bennett, the petitioners filed the instant petition on September 7, 1990, seeking relief under 28 U.S.C. § 2255. For reasons unworthy to detail, the petition lay dormant, on consent of both sides, until the case was reassigned on February 29, 1996 to this Court, which, after receiving briefing and oral argument, ordered an evidentiary hearing. Despite some difficulties in locating Messrs. Bennett and Cardinale, they were eventually found, and testified before the Court on November 14, 1996 and February 4, 1997, respectively. Following the submission of further legal briefs from all parties, the Court heard oral argument on the petition on May 29, 1997. The matter is thus finally ripe for ruling by this Court.

In approaching the issue, the Court is mindful that “[a] district court must exercise ‘great caution’ in determining whether to grant a retrial on the ground of newly discovered evidence, and may grant the motion [only] ‘in the most extraordinary circumstances.’ ” United States v. Imran, 964 F.2d 1313, 1318 (2d Cir.), cert. denied, 506 U.S. 1009, 113 S.Ct. 626, 121 L.Ed.2d 558 (1992) (quoting United States [835]*835v. DiPaolo, 835 F.2d 46, 49 (2d Cir.1987) (emphasis in original)). Ordinarily, petitioners must show that “there is a reasonable probability that, had the evidence [allegedly suppressed by the Government] been disclosed to the defense, the result of the proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995). Here, the evidence allegedly suppressed is nothing short of putative subornation of perjury by the Government, which, presumably, would impact jurors’ deliberations in a highly material way in most eases. See United States v. Wallach, 935 F.2d 445, 456 (2d Cir.1991); but cf. Sanders v. Sullivan, 863 F.2d 218, 226 (2d Cir.1988). The Court finds it unnecessary to determine whether this is such a ease, however, or even whether in such putative circumstances a retrial might be granted under some lesser standard, because petitioners have failed to adduce any credible evidence of any subornation or suppression by anyone, or, indeed, any credible new evidence whatever.

In this regard, it should be noted that the Court sits as the finder of fact for the purpose of determining whether a new trial should be granted. See 28 U.S.C. § 2255. Making such a determination with respect to the instant petition requires the Court to determine the credibility of the testimony given by the two witnesses called by petitioners, Joseph Bennett and James Cardinale. On November 14, 1996, Bennett testified before the Court for about two hours. However, contrary to what he had told Testa’s counsel and investigator in 1990, see Affirmation of Herald Price Fahringer, September 7, 1990, at ¶¶ 8-14, Bennett in his testimony here fully confirmed the accuracy and truthfulness of his trial testimony and completely disavowed his prior allegations of Government misconduct.

Specifically, Bennett testified that 1) he did not commit perjury at petitioners’ trial when he placed himself and petitioner Testa at the murder scene or otherwise implicated Testa in murder, see Transcript, November 14, 1996 (“Tr. I”) at 30-32; 2) prior to Testa’s trial, no Government agent ever showed Bennett a photo of petitioner Testa, told him to implicate Testa in a murder, or otherwise enticed him to lie, see Tr. I at 37; 3) Bennett was given $2,500 by the Government, but not in exchange for false testimony at petitioners’ trial (as he had told Testa’s investigator), see Tr. I at 59-60; 4) Bennett had lied to the petitioners’ investigator when he alleged that many Government witnesses at petitioners’ trial had failed he detector tests, see Tr. I at 40; and 5) contrary to what he had told Testa’s investigator, Bennett never reviewed any files left by prosecutors in rooms where he was being briefed, see Tr. I at 79.

Bennett further explained his prior statements to Testa’s counsel and investigator by stating that while he was incarcerated with James Cardinale at La Tuna Federal Penitentiary in 1990, Cardinale had suggested that Bennett make these false allegations, see Tr. I at 78-79, and that Bennett had gone along because the Government had not done enough to help him get out of prison. Feeling wronged at the time, he sought, in his words, “to smack the government in the face” and “to embarrass the government,” Tr. I at 9, 17.

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Related

Chambers v. Mississippi
410 U.S. 284 (Supreme Court, 1973)
Kyles v. Whitley
514 U.S. 419 (Supreme Court, 1995)
United States v. Nick Dipaolo and Edward Weather
835 F.2d 46 (Second Circuit, 1987)
United States v. Syed Shafi Imran
964 F.2d 1313 (Second Circuit, 1992)
United States v. DiNome
954 F.2d 839 (Second Circuit, 1992)
McCluskie v. Maine
506 U.S. 1009 (Supreme Court, 1992)

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Bluebook (online)
971 F. Supp. 833, 1997 U.S. Dist. LEXIS 11935, 1997 WL 457785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/testa-v-united-states-nysd-1997.