United States v. Vastola

680 F. Supp. 709, 1988 U.S. Dist. LEXIS 1576, 1988 WL 18098
CourtDistrict Court, D. New Jersey
DecidedMarch 3, 1988
DocketCrim. No. 86-301
StatusPublished
Cited by1 cases

This text of 680 F. Supp. 709 (United States v. Vastola) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Vastola, 680 F. Supp. 709, 1988 U.S. Dist. LEXIS 1576, 1988 WL 18098 (D.N.J. 1988).

Opinion

OPINION

BROTMAN, District Judge:

I. INTRODUCTION

Presently before the court is a motion by defendants Levy, Fisher and Canterino for a hearing to determine whether the government possesses certain exculpatory evidence which it is required to make available to the defense, under the Supreme Court’s holding in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This request arises out of counts 29 and 32 of the present indictment which allege that John LaMonte was beaten by Gaetano Vastóla on May 18, 1985, as part of a conspiracy among Vastóla, Levy, Fisher and Canterino to extort funds from LaMonte.

Defendants contend that the government does, or at least at some point did, possess surveillance evidence of the alleged beating. Defendants also seek discovery from the government, in advance of a hearing on the Brady issue, of logs, report forms, duty rosters and other documents which will identify the whereabouts on May 18, 1985, of each law enforcement officer who participated in the investigation underlying this prosecution. The government vehemently denies that surveillance evidence of the LaMonte beating existed, and opposes the hearing and disclosure of the materials sought by the defendants.

For the reasons set forth below, the defendants’ motion is granted.

II. DISCUSSION

(A) The Hearing

There is apparently no disagreement among the parties as to whether surveillance evidence of the alleged beating would constitute Brady material. The controversy centers around the existence of such evidence. In the face of such a factual dispute, the Third Circuit has instructed that an evidentiary hearing is appropriate.

Where the submission of written affidavits raises genuine issues of material fact and where, as here, the Brady claims are neither frivolous nor palpably incredible, an evidentiary hearing should be conducted.

United States v. Dansker, 565 F.2d 1262, 1264 (3d Cir.1977), cert. dismissed, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1978). See also Virgin Islands v. Martinez, 780 F.2d 302, 307 (3d Cir.1985).

In support of their application for a hearing, defendants offer the following:

(1) that the Federal Bureau of Investigation (“F.B.I.”) began surveillance of Gaetano Vastóla and two other defendants named in the underlying indictment four months prior to the date of the alleged beating of John LaMonte, and that F.B.I. agents warned LaMonte, who had become a government informant, approximately [711]*711one month prior to the beating that he might be in physical danger;

(2) that a book entitled Dark Victory: Ronald Reagan and the Mob, states that the F.B.I. photographed the LaMonte beating, and that the book’s author, Dan Moldea, has told defense counsel that this statement was confirmed by the F.B.I.;

(3) that an article which appeared in the Los Angeles Times on March 3, 1986, states that the beating was photographed by the F.B.I., and that the author of the article, William Knoedelseder, confirmed this fact with an F.B.I. source; and

(4) that the complaint in Scorpio Music, Inc. v. MCA Corp., C.A. #85-1591 (E.D.Pa.), which is signed by Dennis Eisman, attorney for John LaMonte, alleges that the beating of John LaMonte was photographed by the F.B.I., and that Mr. Eisman has told counsel for defendant Fisher that he had received confirmation of this allegation from F.B.I. agents.

These assertions, contained in various affidavits submitted by defendants, while not in and of themselves dispositive of whether the F.B.I. made photographs of John La-Monte being beaten by Gaetano Vastóla, certainly give rise to a genuine issue of fact as to the existence of such surveillance evidence.1

Despite this, the government contends that a hearing on this issue is unnecessary. In so arguing, the government notes that F.B.I. agent John Mahoney, who was involved in the investigation of the defendants in this matter, testified at Gaetano Vastola’s bail hearing that the beating of John LaMonte was not surveilled by the F.B.I. Additionally, the Assistant United States Attorney in charge of this prosecution, Bruce Repetto, has represented to both the defendants and the court that he has inquired of those law enforcement agents involved with the investigation as to whether the alleged beating was surveilled, and has been told by those persons that it was not. Furthermore, the government argues that to hold the hearing which defendants seek at this time would place an undue burden on both government and judicial resources.

The court is sympathetic to the government’s desire to avoid unnecessary and wasteful proceedings, especially during the course of such an involved criminal matter. However, the court feels that these judicial economy concerns are presently outweighed by the need to vindicate defendants’ due process rights, as defined under Brady v. Maryland, and that these rights have been sufficiently implicated by the defendants’ application to warrant a hearing on the issue of whether surveillance evidence of the John LaMonte beating exists.

The court also acknowledges the representations made by Mr. Repetto to the effect that, after sufficient inquiry, he is confident that the incident in question was not surveilled by the F.B.I. In granting the defendants’ motion for a hearing, the court in no way means to impugn the integrity of Mr. Repetto or to draw his credibility into question. Nonetheless, as current events have repeatedly illustrated, the federal government is a multi-departmental entity in which it is entirely possible for one representative or branch to hold a good faith belief regarding another’s activities or conduct that is inconsistent with the true state of affairs. The specter of this possibility has been raised by the affidavits submitted by defendants. Accordingly, defendants’ motion is granted, and a hearing will be held to determine whether the government surveilled the alleged beating of John LaMonte on May 18, 1985, and, if [712]*712so, whether any surveillance evidence of that incident exists.

(B) The Discovery

The defense also seeks an order requiring the government to produce certain documents, such a duty rosters and logs, which will identify the location, on May 18, 1985, of each law enforcement official who was involved in the criminal investigation which led to this prosecution. The court believes that some of the information contained in the requested materials may be necessary to the defense’s ability to effectively prepare for the hearing and for the direct and cross-examination of witnesses. However, recognizing the potentially sensitive nature of the documents sought, the court will direct the government to produce to the court, for an in camera review, the names of those law enforcement agents assigned to the investigation of Gaetano Vastóla and other co-defendants named in this action on the day of May 18, 1985, as well as any logs, reports or duty rosters which indicate the location of those agents on that date.

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Related

United States v. Vastola
685 F. Supp. 917 (D. New Jersey, 1988)

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Bluebook (online)
680 F. Supp. 709, 1988 U.S. Dist. LEXIS 1576, 1988 WL 18098, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-vastola-njd-1988.