United States v. Pitera, 675 F.3d 122

Pitera convicted in 1993 for racketeering, continuing criminal enterprise, murder, and related offenses; identified as ringleader of the Pitera Crew of the Bonanno family with extensive corroboration of guilt.
In 2009 Pitera moved under 18 U.S.C. § 3600 to compel DNA testing of six items seized from co-defendant Gangi to exonerate him.
The six items—ski mask, scarf, suitcase, .22-caliber handgun, .357 Magnum, and .22-caliber rifle with scope—were reportedly not in government custody or were destroyed; government indicated many items were not recoverable.
District Court denied, holding that testing would not raise a reasonable probability of innocence and relied on then-existing corroborating evidence against Pitera.
On appeal, the Second Circuit adopts a de novo/clear-error standard of review for IPA motions and ultimately affirms the denial, emphasizing Gangi’s involvement and corroboration rather than any potential new DNA evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Pitera is entitled to testing under the Innocence Protection Act	Pitera asserts testing may yield DNA from victims or Gangi, creating a reasonable probability of innocence	Government argues testing would not raise a reasonable probability of innocence and items may not be in custody	No; testing would not raise a reasonable probability of innocence under §3600(a)(8)

United States v. Osborne, 129 S. Ct. 2308 (2009) (DNA testing can exonerate and the IPA model guides access to testing)
McKithen v. Brown, 626 F.3d 143 (2d Cir. 2010) (New York statute for DNA testing satisfies due process)
United States v. Jordan, 594 F.3d 1265 (10th Cir. 2010) (DNA testing unlikely to undermine strong evidence against defendant)
United States v. Fasano, 577 F.3d 572 (5th Cir. 2009) (establishes standard of review for IPA-related determinations)
Pitera v. United States, 5 F.3d 624 (2d Cir. 1993) (affirmed conviction; overview of case evidence and guilt)