United States v. Carmine Avellino

136 F.3d 249, 1998 WL 49354
CourtCourt of Appeals for the Second Circuit
DecidedApril 23, 1998
Docket309, Docket 97-1117
StatusPublished
Cited by240 cases

This text of 136 F.3d 249 (United States v. Carmine Avellino) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Carmine Avellino, 136 F.3d 249, 1998 WL 49354 (2d Cir. 1998).

Opinions

KEARSE, Circuit Judge:

Defendant Carmine Avellino appeals from a judgment entered in the United States District Court for the .Eastern District of New York following his plea of guEty before Frederic Block, Judge, convicting him of conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c) (1994). The district court sentenced Avellino principally to 126 months’ imprisonment, to be followed by a three-year term of supérvised release, and ordered him to pay a fine of $60,000, plus the cost of imprisonment and supervised release up to $190,000. After entering his plea of guEty but prior to being sentenced, Avellino moved under Fed.R.Crim.P. 32(e) to withdraw his plea on. the ground that he had recently become aware of evidence with which he could have impeached the main witness against him, and that that evidence had been known to the government but had been withheld. The district court denied the motion principally on the ground that the evidence was not material. On appeal, Avellino challenges the denial of his motion. Finding no basis for reversal, we affirm.

I. BACKGROUND

AveEino was one of eight alleged members or associates of the Luchese Crime Family of La Cosa Nostra who were indicted in 1994 by a federal grand jury in the, Eastern District of New York and charged with numerous offenses, including racketeering, conspiracy, extortion, and murder. AveEino, charged with eight offenses, initially pleaded 'not guEty on aE counts. The pretrial discovery process began in early 1995. The events during that process are not substantially in dispute.

A. Pretrial Discovery and Avellino’s Guilty Plea

In discovery, the government disclosed that the main witness against AveEino would be Alphonso D’Areo, former acting boss of the Luchese FamEy. D’Arco had entered into a cooperation agreement with the government in 1992, pursuant to which he pleaded guEty to RICO conspiracy and agreed to cooperate with the government. In return, D’Arco and 10 of his relatives or in-laws were accepted into the federal witness protection program and given certain immunities from prosecution, and the government agreed, inter alia, not to seek a sentence for D’Arco of more than 20 years. It also agreed to move pursuant to § 5K1.1 of the Sentencing Guide-Enes for a downward departure if D’Arco’s cooperation proved satisfactory. By the time AveEino was indicted, D’Arco had testified at [252]*252several trials and before at least one grand jury. The government provided Avellino with extensive information relating to D’Arco, including transcripts of his testimony at those trials, voluminous records of his interviews with agents of the Federal Bureau of Investigation (“FBI”), records surrendered by D’Arco when he began cooperating with the government, the transcript of D’Arco’s plea hearing, and additional information concerning his plea agreement and prior misconduct. The disclosed materials implicated D’Arco in, inter alia, numerous murders, attempted murders, and conspiracies to commit murder, as well as extortion, loansharking, arson, hijacking, counterfeiting, mail and wire fraud, narcotics trafficking, and obstruction of justice. D’Arco had twice been convicted and served terms in prison, once in connection with a scheme involving stolen stock certificates, and once for possession of, and conspiracy to distribute, heroin.

These materials also revealed, inter alia, that although D’Arco admitted having engaged in drug-related activity for more than' a decade prior to his 1983 narcotics conviction, and had admitted at his plea hearing to running the day-to-day activities of the Luchese Crime Family, one of which was the distribution of drugs (Plea Hearing Transcript, United States v. D’Arco, CR-92-0413 (S.D.N.Y. May 15, 1992) (“D’Arco Tr.”), at 5, 10, 13), he testified at the prior trials that he personally had ceased drug-related activities in 1982 when he became a member of the Luchese family. For example, D’Arco testified in United States v. Amuso, CR-90-446 (E.D.N.Y. May 26, 1992), and United States v. Giampa, S92-CR-437 (S.D.N.Y. October 26, 1992), that he never dealt in narcotics after becoming a member of the Luchese Crime Family in 1982, and that his 1983 arrest and conviction were for narcotics offenses committed before he became a member; in United States v. Massaro, S1-92-CR-529 (S.D.N.Y. October 6, 1993), he testified that when he engaged in selling drugs, he was not a member of the Luchese family. The materials given to Avellino by the government apparently, contained no information directly contradicting D’Arco’s denials of personal involvement in selling drugs after he joined the Luchese Crime Family.

In February 1995, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Avellino made various discovery demands of the government. Asserting, without elaboration, a “good faith belief’ that D’Arco had engaged in narcotics activities between 1981 and 1991, when he apparently became a confidential informant, Avellino asked that inquiry be made of the Drug Enforcement Administration (“DEA”) and the FBI to determine whether there was any evidence as to such activity by D’Arco. By letter to defense counsel dated April 3, 1995, the government responded that it was unaware of any such evidence. It added, “[i]f you provide the government with the basis for your ‘good faith belief to the contrary, we will investigate the matter further to the extent warranted by any information you provide.”' (Government’s April 3, 1995 letter to counsel for all defendants at 9-10.)

In a July 21, 1995 letter from his attorney Brian D. Linder to Assistant United States Attorney (“AUSA”) James Orenstein, Avellino renewed his request, stating that the basis for his “good faith belief’ that D’Arco had engaged in narcotics activity after he claimed to have ceased was an October 3, 1991 newspaper article which stated that D’Arco had become a federal informer and which quoted undescribed “sources” as having said that D’Arco had “ ‘good connections and contacts with Asian heroin merchants,’ and ‘could be very helpful in that area.’ ” (Gerry Capeci, “Luchese chief dying to sing for the feds,” Daily News, Oct. 3, 1991, at 3.) Avellino’s letter requested any evidence tending to substantiate the statements quoted in the article. The government did not produce any evidence in response to this letter, taking the position that a news article attributing the quoted statements to unnamed and unde-scribed “sources” was insufficient to warrant investigation.

In May 1996, after several months of negotiations among the government and the defendants, Avellino entered into a plea agreement with the government, pursuant to which he agreed to plead guilty to one substantive RICO count, and the government agreed to drop the remaining charges. The plea was part of a “global settlement,” with acceptance of Avellino’s plea and those of two of his codefendants being somewhat interdependent, and the plea agreements of two [253]

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Bluebook (online)
136 F.3d 249, 1998 WL 49354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-carmine-avellino-ca2-1998.