Opinion
98 Cr. 769 (TPG)
May 10, 2002
OPINION
This case arises from a one-count indictment charging that defendant paid bribes to an employee of the New York City Department of Finance to have property taxes eliminated. On March 1, 2001 a jury found defendant guilty.
Defendant has now moved for a new trial under Fed.R. Cr. P. 33, contending that information has come to light subsequent to the trial indicating that a cooperating witness ("CW") may have induced defendant to engage in the criminal conduct. Defendant argues that this is a basis for the defense of entrapment.
At a conference with counsel on November 15, 2001, the Court stated that it would be advisable to hold a hearing at which the CW would testify. The Government attorney stated that the CW would be available for such a hearing. Subsequently, in a letter dated December 21, 2001, the Government advised the Court that the CW long ago concluded his cooperation, and would not voluntarily appear at a hearing in the present case. The Government now urges that there is no need for a hearing and that defendant's motion should be denied on the basis of the present record.
In his motion defendant contends that there has been a violation of the rule announced in Brady v. Maryland, 373 U.S. 83 (1963), and that the information about the CW was required to be produced under Brady. However, a new trial based on such an alleged violation will be granted only if there is a reasonable probability that the evidence which was not disclosed by the Government, and which has become available, would change the result. U.S. v. Bagley, 473 U.S. 667, 682 (1985).
In the present case there is no basis for concluding that the evidence about the CW would produce a different outcome — i.e., acquittal of the defendant. The evidence at trial showed that defendant paid bribes to a City employee by the name of Ventura, who was then cooperating with the City investigating authorities in an undercover capacity. Ventura is not the CW referred to above. Defendant took the initiative in communicating with Ventura, and showed Ventura a list of properties subject to taxation. Defendant asked Ventura to manipulate tax accounts to show that the taxes were paid and offered to pay a bribe. Defendant indicated to Ventura that he was not the property owner, but was acting for the owner. While this set of properties was under discussion defendant asked Ventura to eliminate taxes on a second set of properties. It was on this second set of properties that defendant actually paid bribe money. Defendant discussed with Ventura the elimination of taxes on a third set of properties in return for a bribe. However, no bribes were actually paid on either the first set or the third set of properties.
As a preliminary to the sentencing, the Court asked the Government for information about the property owners, in order to gain a fuller understanding of the entire factual picture. At the trial the Government's evidence had referred to defendant's transactions with Ventura, but not to dealings which defendant may have had with the property owners. The latter evidence was not necessary to the Government's case, which depended upon whether defendant paid bribes to Ventura. The Government charged the substantive crime of bribery; it did not charge a conspiracy with other persons.
In response to the inquiry of the Court after the trial the Government disclosed that the owner of the first set of properties was a person who was, at the time of the incidents in question, cooperating with law enforcement authorities. This person was the CW referred to earlier in this opinion. The CW was prosecuted in a separate federal case. It should be noted that the owners of the second and third sets of properties were not prosecuted. The Government cites as one reason for the latter circumstance that defendant was a fugitive for four years, thus depriving the Government of the possibility of obtaining defendant's cooperation and testimony against the owners of the second and third sets of properties.
It is now necessary to deal with the question of whether defendant has been deprived of a defense of entrapment, which would have some reasonable chance of success. In response to the present motion, the Government has submitted the affidavit of Jeffrey Dolcimascolo, an employee at the New York City Department of Investigation. He has described in detail the use of the CW and the fact that the CW generated the list showing the first set of properties referred to above. It would appear from Dolcimascolo's description that the CW furnished this list to a target of the investigation other than defendant, and that this target may well have provided the list to defendant. According to Dolcimascolo, the CW did not furnish the list directly to defendant or deal directly with defendant in any way. Also, the target whom the CW dealt with was not cooperating with the authorities.
The Government argues that the circumstances described above indicate that defendant was not induced to engage in bribery by anyone acting for a law enforcement agency. The Government relies on the statement of Dolcimascolo that, although the CW created the list of properties, he did not deliver it to defendant or make any request of defendant to engage in bribery.
If the decision on the present motion depended on the description given by Dolcimascolo, the Court might be required to hold a hearing so that relevant witnesses could be examined. But this is not the case. At most the role of the CW related to the first set of properties. There is no suggestion that the CW was involved in the second and third sets of properties, and the bribes were paid only in relation to the second set. Moreover, on the issue of predisposition, the evidence is overwhelming that defendant undertook the criminal conduct involved in this case in an entirely ready and willing fashion.
The Court concludes that the evidence about the CW holds out no possibility of defendant obtaining an acquittal in a new trial.
The motion for a new trial is denied.