Douglas Rega v. United StatesDouglas Rega v. United States
The government appeals from Judge Stanton’s order vacating the convictions and sentence of petitioner Douglas Rega, pursuant to 28 U.S.C. § 2255.
See Rega v. United States,
No. 96 Civ. 2728,
We hold that there is no reasonable probability that Rega’s testimony would have altered the outcome of his trial. Accordingly, we reverse.
BACKGROUND
Rega and twenty-three co-defendants were charged with violating the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c)-(d), and various other federal laws through their involvement in the activities of a racketeering enterprise known as the DeMeo Crew, а component of the Gambino organized crime family. Rega was also charged with various substantive offenses that need not be detailed.
Rega’s alleged role in the enterprise was to supply the DeMeo Crew with pornographic films, which the Crew then sold for a large profit. The government further alleged that Rega paid the DeMeo Crew to kill his uncle, Fred Todaro, who also was in the pornography business, because of a dispute over thе building in
After a sixteen-month trial before Judge Broderick,
1
Rega was convicted on all counts. In October 1989, Judge Broderick sentenced Rega to forty years’ imprisonment. On direct appeal, we affirmed Rega’s conviction.
See United States v.
DiNome,
In 1996, Rega filed the present petition alleging,
inter alia,
that his counsel refused to let him testify and therefore provided constitutionally ineffective assistance of counsel in violation of the Sixth Amendment.
2
Relying primarily on affidavits submitted by Rega’s trial counsel, Judge Stanton concluded that Rega was not adequately informed of his right to testify.
3
See Rega I,
The district court found that Rega’s testimony would have undermined the government’s case in five specific ways that we discuss in detail
infra,
and that “[o]ne cannot assess with certainty the degree to which cross-examination would have impeached Rega’s defense.”
Id.
at *2. The court acknowledged that defense counsel believed that it was highly inadvisablе for Rega to testify because his testimony would open the door for the government to introduce Rega’s previous conviction for pornography and audiotapes of conversations between Rega and his mother in which Rega repeatedly expressed his hostility to Todaro along with threats to harm him. The district court found that the pornography conviction would not have been “mortal to Rega’s defense,”
id.,
because Rega explained that he was convicted only because he was the film laboratory manager and that he had no knowledge of the nature of the films duplicated. As to the tapes, the district court concluded that “[t]he jury may see them as merely an
This appeal followed. We granted a stay of the district court's order pending appeal.
DISCUSSION
A defendаnt in a criminal case has the constitutional right to testify on his own behalf, see Rock v. Arkansas,
We review the district court's findings of fact for clear error, see Flores v. Demskie,
Our analysis will begin with a description of the government's case against Rega. We will then outline Rega's proposed testimony and its effect in opening the door to further prosecution evidence. Finally, we will discuss the five specifiс areas of Rega's proposed testimony relied upon by the district court in concluding that there was a reasonable probability that such testimony would have led to an acquittal.
At trial, the government produced ample evidence of Rega's involvement in duplicating pornographic films, storing them in his mother's house, and then distributing them to the DeMeo Crew. Todaro operated a film laboratory out of a building that he originally owned. Rega had worked for, or with, Todaro for many years, and Toda-ro was also involved in pornographic film trafficking. The evidence was somewhat unclear as to whether Rega's similar activities were in conjunction with Todaro, an independent venture, or a combination thereof.
The government offered extensive evidence of a dispute between Rega and To-daro over control of the building. There was testimony that Todaro had transferred title to the business and the building to Rega, or to some entity or person under Rega's control, in order to hide assets temporarily during Todaro's divorce proceedings. After Todaro's divorce, however, Rega refused to return the building and business to Todaro because Rega had come upon a profitable opportunity to convert the building into apartments. Todaro brought a lawsuit contesting rights of possession (claiming to be a tenant) of the building and of the film еquipment in it. The lawsuit, which ended after Todaro disappeared as a result of his murder, was
There was much evidence that Rega’s dispute with Todaro was not limited to the mounting of legal claims and defenses. At one point, Rega, who was shown to have been involved in violent acts and to have carried firearms, told Todaro’s son that if his father continued to seek control of the building, the father would get hurt. Witnesses also testified that Rega sought out Todaro аt Rega’s aunt’s house and beat Todaro while attempting to kidnap him. There was further evidence, including post-arrest statements by Rega himself, that Rega paid the DeMeo Crew $10,000 to murder Todaro.
Rega’s submissions in response to the court’s invitation to provide more detail cover some 159 pages. In his proposed testimony, he denied any involvement in the pornographic film business, while conceding that Todaro might have been so involved without Rega’s knowledge.
He described his relationship with To-daro as friendly, albeit at times difficult because of Todaro’s serious personal and financial difficulties, as to which Rega offered advice and aid. He also described his differences with his uncle solely as the result of Todaro’s lack of management skills and growing irrationality. Rega stated that the notion that the lawsuit was regarded by him as threatening was “ludicrous.” In fact, Rega “saw [the lawsuit] as an opportunity to clear up this chapter of the family disputes.” He denied beating and trying to kidnap Todaro. As he explained, the public altercation with To-daro occurred when he went to his Aunt Josephine’s house to inquire about a Halloween egg-throwing prank and was irrationally and unexpectedly pushed by Toda-ro. Rega’s only act was described as a defensive push back. He flatly denied ever threatening or harming Todaro, or hiring someone to do so. Hе disputed the account of his post-arrest admissions. Finally, he portrayed himself as a family man who “live[d] ... by the Ten Commandments.”
This much is clear about Rega’s proposed testimony: It provided no evidence of significance that is not wholly dependent on either his credibility or on the incredibility of the witnesses against him. We know from the verdict that the jury found the evidence against Rega credible, although testimony by Rega would obviously have been added to the credibility mix weighed by the jury had he taken the stand. Any probability of an acquittal, therefore, must be based on an assessment that, if Rega had testified, the jury would have credited his testimony, notwithstanding the substantial evidence against him.
Our review suggests that defense counsel was right. If Rega had taken the stand, the probability of a conviction would have increased because his testimony would have been severely undermined by impeachment evidence. Rega’s proposed tеstimony pointedly denied any involvement in pornography, although conceding that Todaro might have been so involved without Rega’s knowledge. However, witnesses provided evidence of Rega’s involvement in pornographic films at the duplication site in the disputed building, the storage site in his mother’s home, and in delivering the product to the DeMeo Crew.
Worse, Rega’s denial of such involvement would have opened the door to introduction of the state court conviction involving pornographic films. To be sure, much of the potential sting of that conviction would be lessened by the fact that the jury already knew of the arrest underlying it. However, some sting would still be felt, and Rega would either have to remain silent or provide some explanation for his conviction. The explanation provided in
We cannot say that the district court was wrong in opining that a “jury might or might not accept that explanation,”
Rega II,
The pornography conviction, howеver, was not the only damaging evidence that would have impeached Rega’s credibility. Audiotapes of conversations between Rega and his mother had been excluded from evidence by the trial court with the reservation that they would be admitted if Rega “opened the door.” Conceding that the tapes would have come in if Rega had testified, the district court found that they would not necessarily have been damaging because “[t]he jury may see them as merely an extravagant, private blowing-off of steam.”
Rega II,
We believe that conclusion is clear error because it fails to take into account the evidentiary context in which the tapes would have been introduced. Before their admission, the jury would have heard evidence from several different witnesses as to Rega’s involvement in violence and the possession of firearms, the litigation between Todaro and Rega, threats by Rеga to Todaro, Rega’s physical assaulting and attempted kidnapping of Todaro, Rega’s payment of $10,000 to the DeMeo Crew to murder Todaro, Todaro’s resultant murder, and a post-arrest admission of the $10,000 payment by Rega. We know from the outcome of the trial that the jury credited this evidence. Had Rega testified, he would have described a friendly relationship with Todaro, given his view of the litigation between them as “an opportunity,” denied the threats, offered a favorable version of the physical altercation between them, and denied any involvement in Todaro’s murder.
Faced with a head-on conflict between the government’s witnesses and Rega’s testimony, the jury would then have heard the audiotapes, conceded to be between Rega and his mother, of tirades by Rega concerning both Todaro — -his mother’s brother — and Rega’s own brother. In these extensive tirades, Rega,
inter alia,
laments that he has been “working very hard to create a situation for my family ... for the scumbag [Todaro] ... who turned around and stabbed me in the back.” Rega suggests that Todaro and Rega’s brother “could share the same box” and that he, Rega, will “break both their heads with a baseball bat.” After noting that “it’s getting to the point that I can’t restrain my
Given the credible evidence from sеveral different witnesses as to Rega’s threatening and assaulting of Todaro, and his paying to have him murdered, any mitigating effect of Rega’s proposed testimony— amounting to pious denials — would have been more than offset by the audiotapes, which, even when viewed in a light most favorable to Rega, display a tone and attitude toward Todaro at diametric odds with his proposed testimony. Had Rega testified, therefore, he would have been in a far worse position than before he took the stand. His uncorroborated denials as to a hostile, violent attitude toward Todaro would have been so thoroughly shredded by his own taped words as to be further evidence of his guilt.
We therefore conclude that, had Rega testified at trial, the admission of the state court pornography conviction and audiotapes would have had a severely negative effect on his defense. However, the district court also found that some portions of Rega’s proposed testimony would be reasonably likely to lead a jury to acquit. In that regard, it noted five points that would have been made by Rega. We discuss those seriatim.
First, Rega
would contradict the government witness Harold Allen who testified that Rega wanted to open up his own laboratory to make adult films. Rega would testify, with concrete detail, that he was designing equipment for a new facility, to be owned by thе Todaro family, under Fred Todaro’s management.
Rega II,
Second, Rega
would contradict Allen’s description of Rega’s “assault” on Fred Todaro shortly before Fred Todaro’s murder, testifying that he merely went to speak to his Aunt Josephine aftеr hearing that someone had thrown eggs on her car the Halloween night before, was pushed unexpectedly by Fred Todaro (who was speaking incoherently and acting strangely) and after pushing back, asking to speak to his Aunt Josephine and being pushed again, he returned to his car and left.
Id.
The circumstances surrounding the altercation between Rega and Todaro is of great importance because it was used by the government to show Rega’s hostile attitude and willingness to use violence toward Todaro, factors tending strongly to support the claim that Rega had Todaro murdered. We do not agree with the district court that Rega’s proposed testimony-depicting Todaro as the aggressor and a single defensive push on Rega’s part— would have been helpful. Allen did not provide the sole evidence as to the events. Contemporaneous statements by the aunt and Todaro himself indicated that Rega had come to her house and, with another man, beat Todaro and attempted to kidnap
Third, the district court found that Rega’s proposed testimony would cause a jury to lean toward acquittal because he
would contradict the prosecution’s assertion that Fred Todaro was killed because only he could furnish information for a bill of particulars in his lawsuit against Rega. Rega would testify that Barbara Todaro could readily have done so. That is significant, because the government argued that Rega’s demand for the bill of particulars after Fred Toda-ro’s disappearance indicated that Rega had plotted Todaro’s murder in order to hobble the lawsuit.
Id. This proposed testimony would be admissible at best only as evidence of Rega’s belief as to Barbara Todaro’s ability to furnish the pertinent information and not as to her actually being able to do so. As such, it would, without corroboration, suffer from being highly self-serving and only marginally relevant. Moreover, Barbara Todaro’s testimony at the trial did not show that she would have been helpful in furnishing such information, and Fred To-daro’s lawyer testified that his disappearance hampered prosecution of the lawsuit. We therefore see little potential benefit to Rega in this aspect of his proposed testimony.
Fourth, the district court found it significant that Rega
would contradict Postal Inspector Lauzi-ere’s testimony that Rega delivered $10,000 to Roy DeMeo. At trial, the government suggеsted that Rega gave DeMeo this money for the murder of Todaro. Rega would testify that on one occasion he delivered to DeMeo an envelope which contained papers and money to register DeMeo’s new 1976 El Dorado; that the envelope contained only enough money to register the car; that the delivery was in 1976 (Todaro was killed in 1979); and that the envelope was delivered to DeMeo at Fred Todaro’s request.
Id. Again, we see no likely change in the jury’s view of events to have resulted from hearing this portion of Rega’s proposed testimony. In it, he concedes telling the postal inspector that he paid money to DeMeo but disputes what he said about the amount and the timing. Given other evidence that Rega paid $10,000 to DeMeo to have Todaro murdered, we believe that a jury would again view Rega’s testimony as self-serving, uncorroborated, and false.
Finally, Rega
would correct and explain Lauziere’s testimony quoting him as stating “I did not kill my Uncle Fred over the building,” which the government had argued showed consciousness of guilt. On the contrary, Rega would testify, his statement was made in response to Lauzi-ere’s accusatory questions regarding Fred Todaro and the 415 West 55 Street building, which provoked Rega into stating affirmatively that he did not kill his Uncle Fred Todaro. There is force to Rega’s argument that leaving Lauziere’s inference unanswered аllowed the jury to accept Lauziere’s implication.
Id. At best, this proposed testimony would answer the inference Lauziere drew from Rega’s post-arrest statement. It does not even purport to contradict the ample evidence of his guilt.
Notes
. Because Rega brought his Section 2255 petition after Judge Broderick's death, the petition was assigned to Judge Stanton.
. Rega also claimed that the government failed to disclose favorable defense evidence, as required under
Brady v. Maryland,
. The affidavits stated that Rega and his counsel had frequently discussed whether it would be prudent for Rega to testify and that counsel had concluded that it was not in Rega’s best interest to do so. However, counsel could not recall whether the ultimate decision was Rega’s or counsel’s own. Because we do not reach the question of whether Rega’s counsel provided ineffective assistance, see infra, we need not discuss whether the conclusions drawn therefrom by the district court were correct.