Opinion
90-CR-1051
2020-11-24
UNITED STATES of America v. Frank LOCASCIO, Defendant.
Geoffrey Mearns, John Gleeson, Laura A. Ward, M. Kristin Mace, United States Attorney's Office, Brooklyn, NY, for United States of America.
Geoffrey Mearns, John Gleeson, Laura A. Ward, M. Kristin Mace, United States Attorney's Office, Brooklyn, NY, for United States of America.
ORDER
GLASSER, Senior United States District Judge:
Before the Court is the second motion pursuant to 28 U.S.C. § 2255(h)(1) to vacate or set aside a sentence of life imprisonment imposed on June 23, 1992. ECF No. 432. Permission to file this successive motion was granted by the Court of Appeals in LoCascio v. United States of America , 19-2743, Feb. 12, 2020. ECF No. 431.
PROCEDURAL HISTORY
I believe a more expansive procedural history of this case than is more commonly deemed sufficient is important for what one may derive from it regarding the criminal justice system and in other respects as well. It began with an indictment on July 18, 1991, charging John Gotti, Frank LoCascio, Salvatore Gravano and Thomas Gambino with racketeering, 12 predicate acts of racketeering and an assortment of other crimes arising out of their membership in the Gambino Organized Crime Family. ECF No. 471. Thomas Gambino was severed, Salvatore Gravano entered into a cooperation agreement with the government and pleaded guilty leaving LoCascio and Gotti to be tried alone. On April 2, 1992, after a trial of six weeks, the jury returned verdicts of guilty. Significant for this case was the conviction of the defendant of the murder of Louis DiBono, in violation of 18 U.S.C. § 1959(a), which mandated imprisonment for life and six other crimes. On June 23, 1992, the life sentence was imposed and his Judgment of Conviction was affirmed by the Court of Appeals. United States v. Locascio , 6 F.3d 924 (2d Cir. 1993).
That general overview of this case does not begin to convey the procedural litigiousness which defines it. The eleven pre-trial motions are listed in United States v. Gotti , 171 F.R.D. 19 (E.D.N.Y. 1997), aff'd , 166 F.3d 1202 (2d Cir. 1998), but in the belief that the formulaic "familiarity with which is assumed" is generally a misplaced optimism and does not convey that litigiousness, the motions are listed as follows: In re Heimerle , 788 F. Supp. 700 (E.D.N.Y. 1992) (motion to quash subpoena); United States v. Gotti , 787 F. Supp. 319 (E.D.N.Y. 1992) (motion by media for transcripts of jury voir dire during trial and of side bar conferences); United States v. Gotti , 784 F. Supp. 1017 (E.D.N.Y. 1992) (motion for bill of particulars); United States v. Gotti , 784 F. Supp. 1013 (E.D.N.Y. 1992) (motion to disclose names of jurors in two prior trials); United States v. Gotti , 784 F. Supp. 1011 (E.D.N.Y. 1992) (defendants’ motion for writ of habeas corpus ad testificandum to compel production of prison inmate and participant in witness protection program to testify); United States v. Gotti , 782 F. Supp. 737 (E.D.N.Y. 1992) (motion to disqualify attorneys); United States v. Gotti , 777 F. Supp. 224 (E.D.N.Y. 1991) (motion to empanel an anonymous and sequestered jury); United States v. Gotti , 776 F. Supp. 666 (E.D.N.Y. 1991) (motion to reconsider order of detention); United States v. Gotti , 771 F. Supp. 535 (E.D.N.Y. 1991) (motion to suppress electronic surveillance; for Franks v. Delaware hearing; for audibility hearing); United States v. Gotti , 755 F. Supp. 1159 (E.D.N.Y. 1991) (motion to modify conditions of detention); United States v. Gotti , 753 F. Supp. 443 (E.D.N.Y. 1990) (motion to close bail hearing to public).
After the difficult and extended process of selecting an anonymous and sequestered jury, the trial commenced on January 29, 1992. In the six weeks that followed, upwards of thirty witnesses were called to testify, audio cassettes of intercepted phone conversations were received in evidence and played with the transcripts of those conversations as listening aids which were used by the jury and filled seven looseleaf binders. The transcript of the trial exceeded 8,000 pages. A significant portion of those transcripts was attributed to six days of testimony by Gravano aimed primarily at his credibility. Post-trial motions followed apace after the jury's verdict.
A Rule 29 motion was made and forcefully argued by John Mitchell and denied. The first motion for a new trial made pursuant to Rule 33 of the Federal Rules of Criminal Procedure was based upon the affirmation of William Kunstler, one of the defendant's "motion attorneys" alleging, among other things, prosecutorial misconduct; the government's conspiracy to disqualify a juror it was claimed was defense connected; and my bias. That motion was denied in a Memorandum and Order dated June 23, 1992. The defendant then appealed his conviction to the Court of Appeals.
While that appeal was pending, a second Rule 33 motion was filed based on previously unknown evidence potentially impeachable of Gravano that was discovered by the government and disclosed to the defendant who, nevertheless, accused the government of suppressing it in violation of its Brady obligation.
A third Rule 33 motion alleging once again the government's suppression of evidence was denied in a Memorandum and Order dated March 2, 1993.
A fourth motion seeking the same relief based upon essentially the same claims as were the previous three, namely, that Gravano's testimony at trial was perjurious, that the government knew it and violated its Brady obligations. A detailed discussion of this and the others only minimally alluded to above is to be found in an extensive opinion reported in Gotti , 171 F.R.D. 19, in which the Court wrote:
These motions are yet others in an unrelenting effort on the part of these defendants to set aside verdicts of "guilty" pronounced by a jury selected with great care over a period of approximately eight days, accepted by them as being satisfactory representatives of the community (Tr. 1497), and who solemnly swore that they would well and truly try this case and render a true verdict according to the law. The attacks upon that verdict have the same targets, Salvatore Gravano and the United States government. As to Gravano, the attack is aimed at establishing that he perjured himself at their trial. As to the government, the attack is aimed at establishing that the government knew he was perjuring himself and not only countenanced it, but reinforced it in its summation and, in addition, withheld material it was obligated by Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) to deliver.
Id. at 27-28.
That brings us to this successive § 2255 petition, which rests on a claim of newly discovered evidence and now unconditionally echoes Gravano's credibility, not vigorously disparaging it as consistently before and which asserts yet another claimed government violation of its Brady obligation.
BACKGROUND
As has already been noted, the defendant was found guilty of the murder of Louie DiBono and sentenced to a mandatory term of life imprisonment. Reduced to its essence, that conviction is claimed, in this petition, to be predicated on alleged newly discovered evidence relating to a brief intercepted phone conversation between the defendant and John Gotti in an apartment to which only Gotti, the defendant and Gravano (the "administration" of the Gambino Organized Crime Family) had access. Present when that conversation occurred were only Gotti and the defendant. It concerned DiBono, a made member of the Gambino Family who failed to "come in," to report to Gotti as he was ordered to do. The conversation to which his intransigence gave rise was as follows:
Gotti: .... Louie Di Bono.... You know why he's dying? He's gonna die because he refused to come in when I called. He didn't do nothing else wrong.
LoCascio: You have that meeting yet?
Gotti: No. Gonna have it tomorrow.
LoCascio: Because at that meeting, I predict he's gonna bring you 50.
Gotti: But I wouldn't take nothing.
LoCascio: You don't think ...
Gotti: I wouldn't even take it, Frankie. I'm not a goon. I'm not a grease –
LoCascio: He's buying it, he's buying lunch.
Gotti: Never take me, bring me to lunch, Frank.... This guy can't bring me nothing. But I should take that and more, the cocksucker! I wouldn't take nothing from him. He's gonna get killed because he, he disobeyed coming....
Tr. 2673-75.
LoCascio's utter silence upon that stark pronouncement bespeaks a wordless assent. That wordless assent was to a death sentence on DiBono, not because he committed a crime, but worse, only because he did not come in when called by John Gotti. That assent to murder, though voiceless and wordless, echoed loudly when LoCascio declared when sentenced, "If there was more men like John Gotti on this earth, we would have a better country." Tr. dated June 23, 1992 at 11. LoCascio was the acting underboss of the family at the time, meaning that he was second in command to Gotti. Gravano, who was the consigliere of the Family at the time, was not present when that conversation occurred. As is by now well-known, Gravano defected from the Family, entered into a cooperation agreement with the government and was a principal witness at the trial. In return for his cooperation and testimony, the government made a motion which, when granted, permitted the Court to sentence him without regard to what the statutes or the United States Sentencing Guidelines required. He was sentenced to a five-year term of imprisonment and released from federal custody in 1995. His freedom was short-lived. In 2000, he was convicted in Arizona for distribution of MDMA ("ecstasy"), money laundering and related conspiracies. He was also prosecuted and convicted in this Court for drug-related charges and sentenced in 2002 to a 20-year term of imprisonment to run concurrently with the Arizona sentence which he was serving in an Arizona state prison. He was released from custody in 2017.
This successive motion pursuant to 28 U.S.C. § 2255(h)(1) is prompted by a Declaration executed by Gravano dated November 30, 2018. Gravano Decl., ECF No. 441-4. That Declaration is here set out in full:
DECLARATION
Pursuant to Title 28 USC sec. 1746, the undersigned declares, under the penalty of perjury under the laws of the United States of America the foregoing is true and correct:
1. My name is Salvatore Gravano, a.k.a., Sammy the Bull. I live in the United States of America but, because of security concerns, I am unwilling to provide an exact address.
2. On or about December 11, 1990, I was arrested by the FBI on charges filed in the Eastern District of New York. Originally my co-defendants were John Gotti, Frank Locascio, and Thomas Gambino. The charges against us included violations of the RICO statutes and the murder of Louis DiBono. In November 1991, I formally agreed to cooperate with the Government and plead guilty to a RICO charge.
3. As a result of my agreement, the Government's prosecutors and Special Agents of the FBI debriefed me over an extended period of time, at various locations. During those debriefings, I told the Government everything I knew about all the crimes I committed including the DiBono murder and the conspiracy to murder Louis DiBono. In preparation for my trial testimony, I was told to be truthful at all times; and, when on the witness stand, to only answer the questions that were asked of me.
4. I testified as a prosecution witness at several trials, including that of John Gotti and Frank Locascio. During that trial and others, I testified concerning my knowledge of the conspiracy to murder Louis DiBono and his murder. John Gotti gave the order to kill DiBono because DiBono was failing to show up for meetings with Gotti.
5. Locascio's role as a member of the Administration did not require him to agree with the "Boss" in every situation. Clearly, Gotti, as the Boss of the Family, had the sole authority to make the decision to kill DiBono.
6. At the Gotti/Locascio trial, I answered "Yes" to the question "Did I agree with the decision to kill DiBono?" However, I was never asked during the trial if Frank Locascio agreed with the decision to kill DiBono nor did he approve the decision to kill DiBono. In fact, Frank Locascio had no role in the planning of, nor did he participate in any way in the murder or conspiracy to murder Louis DiBono.
7. There was a December 12, 1989 tape where Gotti is heard telling Frank of his decision to kill DiBono. In that conversation, Frank predicts that DiBono will bring Gotti $50,000 to appease the situation and calm Gotti down. Frank tells Gotti that DiBono is "Buying Lunch". Gotti rebukes that suggestion and says, "... I won't take it Frankie ... but I should take it and more...." This conversation shows that Frank tried to save DiBono's life and he did not agree with nor approve the decision to kill DiBono.
8. In fact, shortly after this conversation, Gotti told me that he strongly resented Locascio's suggestion that he take the money and forget about killing DiBono. In addition and most memorable, was the fact that shortly thereafter I was promoted to the position of "Official Underboss" and Frank Locascio was made the "Acting" Consigliere. It was clear that Frank's suggestion to Gotti about DiBono was one of the reasons why Gotti made the change in positions.
9. I was prepared to testify about all of the facts I have set forth in this declaration; but, I was never asked any specific questions about Frank Locascio's role in the DiBono murder conspiracy and actual murder.
10. Because I was instructed to answer only the questions asked of me, I did not, at trial, volunteer the information concerning Frank Locascio's lack of involvement in the DiBono murder and conspiracy.
11. I am prepared to testify to all of these facts at any hearing that is scheduled.
Dated this 30 day of Nov., 2018.
/s/ ____________________
Salvatore Gravano
Id. (emphasis added).
DISCUSSION
A. The Submissions
The submissions in support of and in opposition to this successive motion discuss extensively, legal issues collateral to and avoid, for the most part, an analysis of that Declaration that the Court of Appeals certified "to contain newly discovered evidence that, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense." 28 U.S.C. § 2255(h)(1).
The irrelevance and inapplicability of much of those submissions is traceable to a statement made by LoCascio in his Reply to the Response to his Motion, ECF No. 448 at 12, which was incorrect at best and misleading at worst. He wrote: "Distilled to its essence, the government's proof to hold Mr. LoCascio responsible for the DiBono murder consisted of an ambiguous conversation in which Gotti said he was going to kill DiBono and Mr. LoCascio said ‘I predict he'll bring you 50’ and ‘he's buying lunch.’ " (emphasis added). Added by LoCascio to that excerpted conversation, was the following: "in an unrelated context having nothing to do with DiBono ," Gotti declared, " ‘Correct me! You're my fuckin’ Underboss.’ " (emphasis added). The question raised by that exhortation is why was it inserted in a context entirely unrelated to the "ambiguous conversation" and "having nothing to do with DiBono," except to insinuate that "correct me" was an awkward invitation to LoCascio at that time to attempt to dissuade Gotti from killing DiBono?
More importantly, the defendant's assertion that the "government's proof" to hold LoCascio responsible for DiBono's murder "consisted of an ambiguous conversation" is prodigiously wrong. The government's proof was the circumstantial evidence of LoCascio's functional presence and its surrounding circumstances of which the ambiguous conversation was only an insignificant speck. It is the defendant who seeks to exculpate himself by now offering that random utterance as his newly discovered coded state of mind but acknowledging the circumstantial evidence which he minimizes as "scant," Mem. in Supp. of Mot. to Vacate at 15, ECF No. 441, but was enough to satisfy the jury of his guilt beyond a reasonable doubt.
In affirming his conviction, the Second Circuit wrote: "Locascio, however, was not convicted for his mere presence. There is a distinction between ‘mere presence’ and ‘presence under a particular set of circumstances’ that indicate participation." United States v. Locascio , 6 F.3d 924, 944 (2d Cir. 1993) (internal citation omitted).
B. The Declaration
Gravano's Declaration was executed within a year after he was released from prison under circumstances that were unexplained but intriguing and material in the overall context of this case. Some nine months after its execution, a similar Declaration was executed by Seth Ginsberg. Ginsberg Decl., ECF No. 441-5. He is a lawyer who affirmed that he assisted the late Charles Carnesi, Esq. and provided transitional assistance to a number of his clients after he died. In that capacity, he states, he was contacted by an unnamed representative of the defendant regarding a Declaration he said Gravano executed on or about November 30, 2018, concerning the DiBono murder which he gave to Carnesi. It is assumed that Ginsberg found that Declaration among Carnesi's files. He thereafter phoned Gravano and reviewed with him his Declaration "line by line." Ginsberg Decl. ¶ 5.
Having acknowledged that Gravano played a central role in convicting him, Mem. in Supp. of Mot. to Vacate at 15, LoCascio also acknowledged that the thought that Gravano would at any time come to his aid was unimaginable and the reason he devotes several pages to excuse his failure to "discover that new evidence" sooner. Id. at 9-12.
But it was LoCascio's representative who gave notice of Gravano's Declaration which virtually compels the presumption that it was LoCascio or his representative who communicated with Gravano, or it was Gravano who "discovered" this new evidence or created that "new evidence," or which was created for him—the "new evidence" being what LoCascio was thinking more than 30 years ago on December 12, 1989, in his "ambiguous conversation" with Gotti.
Before turning to the specifics of Gravano's Declaration, it is significant to note that his defection from the Gambino Organized Crime Family and agreement to cooperate with the government in prosecuting John Gotti and LoCascio, each of whom took the oath of omerta and pledged loyalty to each other, was an event of cataclysmic consequence in the mafia world. His embrace by LoCascio as his savior advanced in this claim for relief, not vilified, but reborn as a mafia man of honor and loyalty and credibility, will, I suspect, have seismic reverberations in the annals of organized crime. He was condemned as a rat and marked for death. For a time during the trial, placards appeared around the city depicting the body of a rat with the face of Salvatore Gravano. Throughout the trial and in virtually every post-trial claim for relief, he was vilified in the harshest terms as a liar and every conceivable variation of that word. But, it would appear, that the death sentence the law of La Cosa Nostra makes mandatory for a rat, has a previously unknown exception for a rat who remembers a mind he read about more than 30 years ago in aid of a former mafia friend in prison.
I turn now to Gravano's Declaration and begin with paragraph 4 in which he declares, under penalty of perjury that during the Gotti trial "I testified concerning my knowledge of the conspiracy to murder Louis DiBono." Gravano Decl. ¶ 4. This successive § 2255 motion is not reliant upon that knowledge generically, but on his knowledge of the "DiBono conversation," of which he had none. A review of the transcript of his testimony over six days reveals not a word of it. His claimed "knowledge" is of what he read in LoCascio's mind in his putative conversation with Gotti more than 30 years ago, a conversation at which Gravano was not present. He was emphatic about his absence during that conversation and of having no knowledge of what was said. While being cross-examined by Cardinale, LoCascio's lawyer, Gravano at one point was moved to declare: "You were talking to me like I was privy to the December 12th conversation. You are asking questions like I was privy. I wasn't." Tr. 5127-28. Gravano also testified: "I said the December 12th conversation is a conversation I am not present at and he is talking to Frankie." Tr. 5124. More tellingly, during the course of his cross-examination by Mr. Krieger, Gravano testified, "I don't know nothing about the conversation he [Gotti] had with Frankie on December 12th." Tr. 4733. He further testified, "I don't know exactly what was said until now." Tr. 4734. And on re-direct examination, Gravano testified that he "found out later" that the December 12 conversation contained things that he did not learn about until after he was arrested, Tr. 5229, which was on December 11, 1990, one year later. His asserted "knowledge of the conspiracy" if intended to convey that there is more that he knows about it than the intercepted conversation between Gotti and LoCascio reveals and to which he was not a party and of which he repeatedly professed ignorance, is disingenuous. There is much more in the intercepted conversations about Gravano's and later on Gotti's fraught business relationship with DiBono, and Gotti's frustration that it took nearly eight months to kill DiBono, but nothing that contributes to Gravano's knowledge of the conspiracy at issue.
His Declaration, paragraph 6, that he was never asked whether LoCascio agreed with or approved the decision to kill DiBono is remarkable for the accusatory ring to it—Why didn't anybody ask me what LoCascio had in mind in a conversation to which I was not a party, at which I was not present, and I never talked with him about? He would have been spared a life sentence if only someone had asked me what was LoCascio thinking. His feigned innocence is stunning. In that regard, it is enlightening to revisit LoCascio's first § 2255 motion in which he alleged the ineffective assistance of Cardinale who revealed that he was threatened by Gotti with death if he individualized LoCascio's interest at the expense of Gotti's. A hearing was held on that issue at which Cardinale was the only witness and his testimony is informative.
Q. As a result of the threat you referred to, did you change your course of cross-examination as far as Mr. DiBono was concerned?
A. In one respect, yes.
Q. Would you tell us what that is?
A. Well, I did not ask certain questions that I would have. Specifically , whether or not-in cross-examining Gravano, whether Gravano would agree that he had never had any conversations whatsoever with Frank LoCascio about DiBono and the murder of DiBono, whether or not he-whether it was true that he had never heard Frank LoCascio either before or after the murder of DiBono discuss that event and that he had no personal knowledge of Frank LoCascio's participation in any activities related to a murder regarding Mr. DiBono.
Q. So, if I understand, but for the threat you would have asked those questions, but because of the threat you did not?
A. It is a difficult-it is a difficult situation to say yes or no about that. Those were questions that I had in mind to use, I believed to be safe questions and I did not ask them.
....
Q. Is it fair to say if you had asked him whether or not he ever had conversations with Frank LoCascio regarding the murder of Louie DiBono, he might have said that in fact he did have those conversations?
....
A. I believe that based on his direct examination, 3500 materials, that if such evidence existed Mr. Gleeson or one of the other prosecutors would have brought that out and I believed it to be a fair closed-end question. In fact, he had no discussions whatsoever. That was my conclusion, if you will.
That conclusion is admissible against LoCascio as is made clear by United States v. McKeon , 738 F.2d 26, 30 (2d Cir. 1984), in which the Court wrote: "We begin with the general proposition that ‘[s]tatements made by an attorney concerning a matter within his employment may be admissible against the party retaining the attorney.’ " (internal citation omitted).
LoCascio v. United States , 462 F. Supp. 2d 333, 335-36 (E.D.N.Y. 2005) (emphasis added), aff'd , 473 F.3d 493 (2d Cir. 2007).
A refrain from asking those questions could not conceivably have been attributed to Gotti's threats. That Gotti was responsible for the murder of DiBono was not disputed nor could it have been. Those questions did not, in any way, benefit LoCascio at Gotti's expense. Cardinale acknowledged that it was safe to ask that LoCascio never discussed the murder of DiBono with Gravano. He was confident that Gravano would agree. In fact, Cardinale concluded that "LoCascio had no conversation whatsoever with Gravano."
The irresistible question is why was Gravano indifferent to whether LoCascio, with whom he shared the administration of the notorious Gambino Crime Family, would be found guilty and imprisoned for life by withholding this information for more than 30 years and why is he disclosing it now?
By presenting Gravano's Declaration for Circuit Court certification, LoCascio implicitly endorsed his credibility, an endorsement which is questionably warranted. In paragraph 7 of his Declaration, after citing a truncated conversation, omitting a definitive Gotti declaration, "He's gonna get killed because he disobeyed coming," he interprets the defendant's acknowledged "ambiguous conversation" as showing "that Frank tried to save DiBono's life and he did not agree with nor approve the decision to kill DiBono." Gravano makes that Declaration "under the penalty of perjury" not having been a party to the conversation; not having been present when the words were spoken; not having heard the tone of voice or seen the visage of LoCascio, nor by having ever discussed the conversation with him. It is, remarkably, the reading of his mind or divine enlightenment some 30 years later, that "shows" him what his words meant. What the critical words are understood to mean, however, by Gleeson, Gotti and Cardinale is revealed in a few lines in the defendant's summation by Cardinale who, on page 7565 of the transcript said:
Mr. Gleeson, in discussing the DiBono murder, you recall there came a point in time yesterday when he said, ... the exact words he used yesterday, Frank LoCascio predicts, ladies and gentlemen, that Louie DiBono will try to buy his way out of his problem. John Gotti says no, it will not happen .... He's gonna get killed because he disobeyed coming. (emphasis added).
Frank LoCascio was not trying to save the life of Louie DiBono. He predicted that DiBono would try to save his own. Throughout the transcript one becomes aware that going against, disobeying, or disagreeing with Gotti is fraught with danger, and Gravano and LoCascio knew it.
Gravano also declares under penalty of perjury, in paragraph 8, that Gotti's resentment of LoCascio's life-saving gesture resulted in LoCascio's demotion and his promotion to "Official Underboss." A reading of the transcript of that trial will not reveal a line of that resentment as the reason for those changes of position. A reading of that transcript will, to put it charitably, create doubt about the truthfulness of Gravano's perjury-pure Declaration. In a conversation between Gotti and Gravano, intercepted on January 4, 1990, less than a month after the December 12, 1989 DiBono conversation, it was related that Gotti was to stand trial, 4 days later, on January 8, 1990. Expecting to be remanded at that trial, portions of that conversation appear in two places in the transcript during the direct examination of Agent Schiliro by Gleeson:
Tr. 2029:
Gotti: Tomorrow I want to call our skippers in. I'm going to tell them. I'm the representante till I say different. As soon as anything happens to me, I'm off the streets, Sammy is the acting boss.
Tr. 2031:
Gotti: .... So, I'm asking you how you feel. You want to stay as consigliere? Or do you want me to make you official underboss? Acting boss? How do you feel? What makes you feel better?
During the direct examination of Gravano by Gleeson:
Tr. 4223:
Gotti: So, I'm asking how you feel. You wanna stay as consigliere? Or you want me to make you official underboss?
Tr. 4224:
Q. When did you become underboss?
A. Right after this conversation, not too far after the conversation.
Q. Did you take John Gotti up on his offer to make you underboss?
A. Yes.
....
Gotti: It doesn't matter, Sam. This thing here, and I'm gonna make our skippers understand that. This is my wishes that if, if I'm in the can, this Family is gonna be run by Sammy.
Q. Did that ever happen? Were the skippers made to understand that?
A. Yes.
Making Gravano the underboss was important to Gotti because it avoided confusion as to who ran the Family in the event he went to jail. "Just the fact that you're out there," Gotti said, "That you can sneak out in the middle of the night and hit a guy in the head with a hatchet. You understand, Sammy?" Tr. 4224. When asked what he was referring to, Gravano explained at Tr. 4225:
Q. What did you understand him to be referring to?
A. -- even if I was arrested and I was under house arrest, as long as there was that stigma that I was around and available and if anybody tried to go against John or disobey John, I was always that threat.
Q. You were always the threat to what?
A. To hit you in the head with an axe.
Q. What did that mean?
A. Kill you.
As that interchange makes chillingly clear, Gravano became underboss because he was notoriously lethal and not because Gotti resented LoCascio's musing.
Gravano's reading of LoCascio's mind when he spoke those "ambiguous" words to Gotti as evincing his desire to spare DiBono's life is far-fetched when weighed in the light of LoCascio's role in a related event the evidence in this case established. As has been shown above—"going against Gotti or disobeying him would be to risk getting"—hit in the head with an axe. That is what happened to DiBono and to Robert DiBernardo, an old friend of Gravano's. He talked behind Gotti's back and was sentenced to die for it. Tr. 4122. Gravano was the designated executioner and had no qualms about killing him once he was ordered to do so. Tr. 4136. He lured DiBernardo to a pretended meeting in the basement of his office where he was shot in the back of his head and murdered. Tr. 4127. LoCascio was to dispose of the body. He pulled up to the office alone in his car. DiBernardo's body was brought up from the basement and placed in the trunk of LoCascio's car. On direct examination, Gravano was asked:
Q. Did he tell you where the body was taken?
A. No.
Q. Did you ever ask him?
A. No.
Q. Was there a reason why you didn't ask him?
A. It was none of my business.
Tr. 4130-32.
It is fair to assume that DiBernardo did not get a Christian burial. viz. Nix v. Williams , 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). It would also be safe to assume that LoCascio would not have been more solicitous of the fate of DiBono for not "coming in" when Gotti called, than he was for the fate of DiBernardo for only talking behind his back.
I addressed at some length the branded "newly discovered evidence" upon which this second successive § 2255 petition was certified by the Court of Appeals. I did so notwithstanding the nagging question—newly discovered evidence?—to which I firmly believed the answer to be that there was no newly discovered evidence at all. The conspiracy to murder Louie DiBono of which he was convicted is sought to be set aside because he claims he tried to prevent his murder —by a thought, an intent, he never expressed or conveyed by word or act. He elected to go to trial, which was his right, and chose to remain silent, not to testify to his innocent state of mind, which was also his privilege. He could have testified on his own behalf and protested his innocence. That testimony would be voluntary, not compelled, and would not be incriminating. The evidence of his state of mind was present in his head and available to him at his trial. That evidence is not new because he found someone else willing to testify to it years later when he was not. "One does not ‘discover’ evidence after trial that one was aware of prior to trial. To hold otherwise stretches the meaning of the word ‘discover’ beyond its common understanding." United States v. Owen , 500 F.3d 83, 89-90 (2d Cir. 2007) ; see also United States v. Jacobs , 475 F.2d 270, 286, n.33 (2d Cir. 1973). The unambiguous language of 28 U.S.C. § 2255(h)(1) provides for newly discovered evidence, not evidence that is newly available. The assertion of the privilege cannot magically transform old evidence into new. Those observations are also not new. That the privilege to elect to remain silent, not to testify on one's own behalf serve "not the innocent but rather the evil purposes of criminals ... who are well advised" is a view that has been discussed extensively by Judge Friendly in The Fifth Amendment Tomorrow: The Case for Constitutional Change , 37 U. CIN. L. REV. 671 (1968). A similar sentiment was expressed by Justice Cardozo in Palko v. Connecticut , 302 U.S. 319, 325-26, 58 S.Ct. 149, 82 L.Ed. 288 (1937) : "... in the past there are students of our penal system who look upon the immunity as a mischief rather than a benefit, and who would limit its scope, or destroy it altogether .... Justice, however, would not perish if the accused were subject to a duty to respond to orderly inquiry." I am not unmindful of Rules 404(b) and 609 of the Federal Rules of Evidence which dissuade a defendant from testifying when his credibility would be compromised by the exposure of his criminal history. The parameters of that "orderly inquiry" to protect against that exposure are yet to be defined.
It is of more than passing interest to note that Judge Learned Hand also had occasion to express a similar strongly held view on the same issue. In United States v. Garsson , 291 F. 646, 649 (S.D.N.Y. 1923) he wrote: "Under our criminal procedure the accused has every advantage. While the prosecution is held rigidly to the charge, he need not disclose the barest outline of his defense. He is immune from question or comment on his silence; he cannot be convicted when there is the least fair doubt in the minds of any one of the twelve. Why in addition he should in advance have the whole evidence against him to pick over at his leisure, and make his defense, fairly or foully, I have never been able to see. No doubt grand juries err and indictments are calamities to honest men, but we must work with human beings and we can correct such errors only at too large a price. Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays and defeats the prosecution of crime."
It bears noting that not once in his first § 2255 petition nor in the successive Rule 33 motions he filed thereafter, did he manifest an awareness of his innocent state of mind. He obviously did not have one until Gravano told him he did. All of his prior efforts to vacate his conviction were based on claims of Gravano's perjury at trial or on the government's claimed Brady violations. See Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments , 38 U. CHI. L. REV. 142 (1970).
Frequently cited and applicable here is Judge Friendly's teachings in Jacobs , 475 F.2d at 286, n.33, where he wrote that "a court must exercise great caution in considering evidence to be ‘newly discovered’ when it existed all along and was unavailable only because a co-defendant, since convicted, had availed himself of the privilege not to testify." The newly discovered evidence cases command great caution regardless of the form that claimed discovery takes. The vast majority of those cases concern recanting witnesses. Gravano's Declaration is not a recantation of prior testimony, but it is offered to accomplish the same objective, vacating the conviction and sentence of LoCascio. The reasons his proffered Declaration is viewed with suspicion and found to be insufficient to permit a reasonable factfinder to find LoCascio not guilty of the crime of which he was convicted and sentenced have been given above. Those reasons have been summarized succinctly in Dobbert v. Wainwright , 468 U.S. 1231, 1233-34, 105 S.Ct. 34, 82 L.Ed.2d 925 (1984) (Brennan, J., dissenting from denial of certiorari) ("Recantation testimony is properly viewed with great suspicion. It upsets society's interest in the finality of convictions, is very often unreliable and given for suspect motives ... rather than to undermine confidence in the accuracy of the conviction.").
In Haouari v. United States , 510 F.3d 350, 353 (2d Cir. 2007), the Court decided to look with increased suspicion at the affidavit of a recanting cooperator who, from a variety of questionable motives, felt compelled to come to the aid of a defendant whose conviction was obtained by his testimony. Exquisitely apt for this case is the view of Judge Learned Hand that "[n]o court would ever set aside a conviction because a witness had slipped in as evidence his opinion of the defendant's guilt. Juries are not leaves swayed by every breath." United States v. Garsson , 291 F. 646, 649 (S.D.N.Y. 1923).
The foregoing drives this Court to conclude that, notwithstanding my firm belief that there was no newly discovered evidence, should I be wrong in that regard, I find that the newly discovered evidence, viewed in the light of the evidence as a whole, would not be sufficient to permit a reasonable factfinder to find that the defendant was not guilty of the crime of which he was charged and his petition is DENIED.
The defendant's motion to conduct discovery is also DENIED. In a § 2255 proceeding, discovery may be undertaken only when the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise. See United States v. Durrani , 115 F. App'x 500, 503 (2d Cir. 2004). The defendant has made no showing of any cause warranting discovery beyond writing "[o]nce the government has responded to the Motion and thereby framed issues in dispute before the Court, Mr. LoCascio intends to request relevant discovery." Mem. in Supp. of Mot. to Vacate at 27. The issue in dispute surely need not have awaited the government's response to be identified. It plainly was whether Gravano's willingness to testify that he knew what was in LoCascio's unexpressed mind almost 30 years ago was newly discovered evidence. I find that no cause for discovery was shown. I also find that the record of this case as discussed above conclusively shows that he is entitled to no relief.
The defendant repeatedly claimed the government violated its Brady obligations and thus deprived him of due process. Each of those prior claims was found to be meritless as I find this one to be. It is based upon the following words in Gravano's Declaration:
"... the Government's prosecutors and Special Agents of the FBI debriefed me over an extended period of time, at various locations. During those debriefings, I told the Government everything I
knew about ... the conspiracy to murder Louis DiBono ... I was told to be truthful at all times ... [and] to only answer the questions that were asked of me."
Gravano Decl. ¶ 3 (emphasis added). "I testified concerning my knowledge of the conspiracy to murder Louis DiBono and his murder." Id. ¶ 4 (emphasis added). Discussed above was his statement that he was never asked if LoCascio agreed with or approved the decision to kill DiBono and his factual assertion that LoCascio played no role in the matter. There is not a hint from which it may be inferred that in telling "everything" he knew, there was a syllable touching upon anything Brady related. It won't do to definitively allege in a memorandum of law in support of this claim that the "Government's Failure to Disclose Exculpatory Information from Gravano Violated Due Process" and to state as a fact, without more, that "plainly, the government failed to disclose fully to Mr. LoCascio's trial counsel all information in its possession concerning Gravano's knowledge of, and his ability to provide, exculpatory evidence." Mem. in Supp. of Mot. to Vacate at 23, 24. Those ipse dixits are gratuitous and presumptuous given the reference to DiBono as Louis , which I emphasized four times, signalling a doubt about the provenance of Gravano's Declaration which the following excerpt flashes:
In the course of the defendant's cross-examination of Gravano, reference was made to an intercepted conversation between Gravano and Gotti in which someone named Louis was mentioned. Gravano affirmed that he listened to the recording of that conversation and the Q&A that followed was, in relevant part, as follows:
Q. Anytime that you in any other conversation, sir, I want to ask you, anytime that Louie DiBono was mentioned, nobody ever called him "Louis," to your knowledge. Correct?
A. I don't remember calling him Louis, no.
Q. You never called -- it was a word, he was always called Louie DiBono. Correct?
A. Yes, I would call him Louie DiBono.
Q. This Louis that you were talking about, would you agree with me at this point, that this whoever you're talking about isn't Louie DiBono?
A. I believe it is Louie DiBono.
As far as if I called him "Louis," I might have been saying that a little sarcastically, but this looks like a conversation talking about Louie DiBono.
Q. So your only explanation about using the word "Louis" when in fact you have never used that word before, is that you might have been sarcastic?
A. I don't give it as any explanation.
I don't recall calling him Louis on any occasion, including this occasion.
If I did, I might have said it sarcastically.
It's not in my normal vocabulary to call him Louis DiBono. I would have called him Louie as far as I can remember now. I would refer to him as Louie.
Tr. 5147-48.
"Plainly" there can be no doubt that Gravano did not write his Declaration. It is unknown who did, and given his sworn testimony that Louis is not in his vocabulary, it is plainly doubtful that he reviewed it "line by line." Significant questions about the credibility and validity of the entirety of that Declaration are thus raised. The necessity of viewing such "newly discovered evidence" with caution and suspicion as taught by Jacobs and its progeny is made manifest. In response to that claimed Brady violation, the government has submitted the Declaration of Judge Gleeson (Ret.), who was the lead prosecutor in the trial of Gotti and LoCascio and which is set out here in its entirety.
JOHN GLEESON, pursuant to Title 28, United States Code, Section 1746, hereby declares under penalty of perjury under the laws of the United States of America that the following is true and correct.
1. From 1985 to 1994 I served as an Assistant United States Attorney ("AUSA") in the United States Attorney's Office for the Eastern District of New York.
2. I was the government's lead trial counsel in United States v. Gotti, et al., 90-CR-1051 (ILG), at which Frank Locascio was convicted of various crimes related to his membership in the Gambino Crime Family of La Costa Nostra (the "Gambino Crime Family"). At trial, Locascio was convicted of, among other things, the conspiracy to murder and murder in-aid-of racketeering of Louis DiBono in 1990. Locascio was also convicted of violating and conspiring to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), by committing and agreeing to commit predicate acts including the conspiracy to murder and murder of DiBono. Following trial, Judge Glasser sentenced Locascio to the mandatory sentence of life imprisonment for his role in the murder in-aid-of racketeering of DiBono and the statutory maximum of life imprisonment for the RICO and RICO conspiracy counts, with predicate acts including the DiBono murder and murder conspiracy.
3. At Locascio's trial, I conducted the direct examination of cooperating witness Salvatore Gravano.
4. Prior to Locascio's trial, FBI Special Agent George Gabriel and I met with Gravano on numerous occasions. These meetings included proffer sessions before Gravano entered into his cooperation agreement with the government, debriefing sessions after the execution of that agreement, and prep sessions before he testified at trial. Gravano described for us crimes he committed during the several decades he was involved with the Colombo and Gambino Crime Families of La Cosa Nostra, and crimes committed by other members and associates of those families and others in New York and elsewhere. I attended every such meeting with Gravano before he testified at Locascio's trial.
5. Special Agent Gabriel and I frequently reminded Gravano during our meetings with him that he was obligated to tell us and other members of law enforcement everything he knew about his own criminal activity and the criminal activity of others, including other members and associates of the Gambino Crime Family. We also strongly encouraged Gravano to tell us if any of our facts were wrong. On occasion he did just that. For example, Gravano knew from pretrial proceedings before he cooperated that we had a witness who would testify that John Gotti was standing across the street from Sparks Steakhouse moments before the murders of Paul Castellano and Tommy Bilotti. Gravano told us that was incorrect, and that in fact John Gotti never exited the car he and Gravano were in at the time of the murders.
6. During our meetings, Gravano described his involvement in the DiBono murder and murder conspiracy, crimes to which Gravano pleaded guilty in connection with his cooperation agreement with the government. Gravano also described the criminal activities of Frank Locascio, who held the role of acting underboss of the Gambino Crime Family until approximately January of 1990, when he became the acting consigliere of the family, the position he held at the time of his arrest and conviction. 7. After Locascio's trial, I remained in contact with Gravano. He testified various additional times, and I met with him in connection with some of those proceedings and examined him again in one of them. Even after Gravano's testimonial cooperation was over, I spoke with him regularly by phone until his arrest on narcotics charges in Arizona. Though I did not speak to Gravano while he was incarcerated on those charges, I have spoken to him by phone several times since his release from prison in 2017.
8. Gravano was not present for the December 12, 1989 conversation in the apartment above the Ravenite Social Club, in which John Gotti and Frank Locascio discussed Louie DiBono. Prior to Locascio's trial, Special Agent Gabriel and I listened to the recording of that conversation with Gravano, and debriefed him about every aspect of it. We also debriefed Gravano about all of the other events related to the decision to murder and the murder of DiBono. At no time prior to, during or after trial did Gravano tell me (1) that he believed Locascio had opposed the decision to murder DiBono; (2) that he believed Locascio tried to convince Gotti not to kill DiBono; (3) that Gotti expressed resentment towards Locascio for opposing Gotti's decision to murder DiBono; or (4) that he believed Gotti demoted Locascio as a result of Locascio's opposition to the DiBono murder.
9. After Locascio filed his motion in the Second Circuit seeking permission to file a second or successive § 2255 petition, I reviewed the declaration from Gravano that was attached as an exhibit to that motion (and that is attached as Exhibit 4 to Locascio's § 2255 motion pending before this Court). It was at that time that I first became aware of the allegations made in Gravano's declaration about Locascio's involvement in the DiBono murder and murder conspiracy.
Dated: New York, New York
April 29, 2020
/s/ ____________________
John Gleeson
Gleeson Decl., ECF No. 444-6.
The claimed Brady violation is dismissed. It is a claim based on the elusive "everything" in "I told the Government everything I knew" which precludes a finding, without more, that exculpatory evidence was included and withheld for the incontrovertible reason that Gravano had none to provide.
At the outset of this opinion I was cognizant that I was being more expansive than necessity required in the belief that in that expansiveness is a commentary on the criminal justice system which this case epitomizes.
Its significance for the impact of this case on the criminal justice system is keeping foremost in mind that it is still before the Court almost thirty years after it was indicted. The commentary that is exquisitely responsive to that circumstance is to be found in Mackey v. United States , 401 U.S. 667, 690-91, 91 S.Ct. 1171, 28 L.Ed.2d 404 (1971) in which Justice Harlan wrote:
It is, I believe, a matter of fundamental import that there be a visible end to the litigable aspect of the criminal process. Finality in the criminal law is an end which must always be kept in plain view.
....
Surely it is an unpleasant task to strip a man of his freedom and subject him to institutional restraints. But this does not mean that in so doing, we should always be halting or tentative. No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow
and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved.
A rule of law that fails to take account of these finality interests would do more than subvert the criminal process itself. It would also seriously distort the very limited resources society has allocated to the criminal process.
For all of the foregoing reasons, the Court is driven to conclude that LoCascio would not be able to establish by clear and convincing evidence that no reasonable factfinder would have found the defendant guilty of the crime for which he was convicted and his petition is dismissed.
SO ORDERED.