*3 guEty conspiracy ed to RICO agreed KEARSE, Circuit Judge: return, cooperate government. with the Carmine appeals Defendant Avellino from of his D’Arco and 10 relatives or were in-laws judgment entered in the United States accepted the federal protection into witness District Court District of .Eastern given program certain from immunities following plea New guEty York his before prosecution, government agreed, and the in- Block, Judge, convicting Frederic of con- him alia, ter not to seek a sentence D’Arco of ducting through affairs of an enterprise years. agreed more than 20 It also to move pattern racketeering activity, violation pursuant Sentencing §to 5K1.1 of the Guide- Corrupt of the Racketeer Or- Influenced and departure Enes for a if D’Arco’s downward ganizations (“RICO”), Act 18 U.S.C. 1962(c) cooperation satisfactory. time proved By the § sen- The district court indicted, prinсipally AveEino D’Arco tenced Avellino to 126 months’ had testified * Chin, Denny sitting by designation. Honorable Dis York, trict Court for Southern District Newof February pursuant grand at least one and before several trials Maryland, government provided Avellino
jury. The (1963), made L.Ed.2d 215 various relating with extensive As- discovery government. demands D’Arco, testimony transcripts of including elaboration, “good faith serting, without trials, of his voluminous records at those engaged belief’ D’Arco had narcotics Bureau agents of the Federal interviews with when he activities between (“FBI”), Investigation records surren informant, apparently became confidential began cooperating he by D’Arco when dered inquiry made of Avellino asked transcript government, (“DEA”) Drug Enforcement Administration hearing, and additional infor D’Arco’s there and the FBI to determine whether agreement concerning mation activity by to such D’Arco. as The disclosed materials prior misconduct. April By dated letter to defense counsel *4 alia, in, inter numerous D’Arco implicated 1995, it government responded that was the murders, murders, conspira and attempted added, any It unaware of such evidence. murder, extortion, as well as to cies commit you provide government the with the “[i]f arson, hijacking, loansharking, counterfeit your ‘good basis for faith belief con- fraud, traffick ing, mail and narcotics wire trary, investigate matter further we will the justice. D’Arco had ing, and obstruction of by any to information the extent warranted in and terms served twice convicted (Government’s 3, you provide.”' April with a scheme prison, once in connection 9-10.) letter for all at to counsel defendants certificates, and once involving stolen stock 21, July attorney In his a letter from of, conspiracy possession and to distrib for Brian to D. Linder Assistant United States ute, heroin. (“AUSA”) Orenstein, Attorney Avelli James revealed, alia, also inter These materials request, stating no his renewed basis although having admitted en D’Arco that D’Arco “good faith belief’ that had activity for drug-related in more than' gaged engaged activity in narcotics after he claimed prior to his narcotics convic decade 3, was an 1991 news have ceased October tion, plea hearing at his and had admitted paper D’Arco article which stated that running day-to-day the activities of the Luch quoted which become a federal informer and Family, of which was the ese Crime one having undescribed “sources” as said that (Plea “ drugs Hearing Tran distribution ‘good D’Arco had connections and contacts D’Arco, script, CR-92-0413 United States v. merchants,’ ‘could Asian heroin and ” (“D’Arco (S.D.N.Y. 1992) Tr.”), May 15, very (Gerry Capeci, helpful in that area.’ 10, 13), trials that he he testified at feds,” dying to sing chief “Luchese drug-related personally had ceased activities News, Daily Oct. Avellino’s in when a member of the he became any tending letter requested sub family. example, testi Luchese For D’Arco in quoted stantiate the statements the article. Amuso, in CR-90-446 fied United States produce The did not evi (E.D.N.Y. 26, 1992), May and United States letter, response taking dence in to this (S.D.N.Y. S92-CR-437 position attributing October Giampa, that a news article 1992), in he never dealt narcotics quoted that statements to unnamed and unde- a member of Luchese becoming after was scribed “sources” insufficient warrant Family investigation. and that his 1983 Crime of arrest and conviction were narcotics May nego- after months of several he became a mem fenses committed before among tiations and de- ber; Massaro, S1-92- fendants, plea agree- Avellino entered into (S.D.N.Y. 1993), testi CR-529 October he government, pursuant ment with the engaged selling drugs, that when fied he plead аgreed which to one sub- he family. he was not member of Luchese count, RICO stantive by gov given The materials to Avellino agreed drop remaining charges. apparently, settlement,” no ernment contained information plea “global part directly contradicting per D’Arco’sdenials of acceptance plea and those two of Avellino’s selling drugs after he somewhat interde- being sonal involvement his codefendants plea Family. pendent, agreements of two joined the Luchese Crime time, containing provisions cooperating eodefendants at the concerning additional by federal officials’obtaining court entry pleas order evi- contingent by were that that gathered dence had been means of and still other eodefendants on or Avellino the warrants investiga- issued 3,1996. June before ¶ (Id. 14.) tion. agreement,' Pursuant to his attorney Avellino’s stated thаt after receiv- guilty May Sentencing pleaded Affirmation, ing the McGillycuddy defense was set October. counsel had met with the had been informed AUSAs the Eastern To B. Avellino’s Motion Withdraw His (a) District the evidence mentioned in Plea that affirmation had been sent to the United 30,1996, By September motion dated Avel- Attorney’s office in Southern Dis- 32(e) pursuant lino moved to Fed.R.Crim.P. (the District”), trict New York “Southern guilty. (b) to withdraw his The basis though tapes on the surveillance stated for the motion was after Avellino discussing D’Arco was heard criminal activi- AUSAs, ty, the Eastern guilty plea, upon District entered his counsel had ob re- viewing tapes, interpret did not that ac- indicating gov tained a document tivity as activity. support narcotics of, had been aware but had failed to ernment motion, plea withdrawal defense counsel ar- disclose, concerning D’Arco’s in gued that the issuance and extensions of the volvement transаctions in the narcotics *5 probable warrants showed that cause had period 1989-1991. document was an The repeatedly, been established to the satisfac- County Affirmation New York Assistant judge, tion of neutral state-court to believe Attorney McGillycuddy District M. Daniel engaged D’Arco that had been in narcotics (the “McGillycuddy October dated activity in and that contents of the Aff.”), York submitted to the New State Su McGillycuddy Affirmation demonstrated that preme request allowing Court to an order the federal had been aware of notice,- required postponement of the see the existence of investigation the State and § (McKinney N.Y.Crim.Proc.Law 700.50 (the gathered the evidence therein “State 1995), persons conversations whose had evidence”). obtaining After materials re- intercepted during been court-authorized Affirmation, ferred to in McGillycuddy designated eavesdropping electronic . eventually pointed defense counsel also (the City of Prince Street in York block New experienced several instances in which State warrant”), in then-ongoing “Prince Street investigators opined had the observed of investigation by Attorney’s conduct D’Areo indicated that he had been the District office (the engaged discussing, negotiating the sale investigation”). “State of, transferring, taste-testing, and narcotics. warrant, The initially Prince Street issued declaration, In an undated Avellino stated
in June through 1989 and October extended pleaded guilty that he would not have had he probable cause, after findings further of the indicating known State evidence interception of authorized communications activity D’Arco was in narcotics af- involved Cuomo, among “Ralph [sic Alfonso D’Arco” ] ter for that evidence could have estab- “relating and several others to the crimes of lished Avellino’s trial that D’Arco had criminal sale of a ... controlled substance deliberately lied to the and conspiracy those to commit crimes.” juries. other 2.)¶ (McGillycuddy investiga- Aff. The State issuance, tion had also led to the and two Response The C. Government’s and the extensions, authorizing intercep- of a warrant District Court’s Decision tion of communications in a certain automo- government opposed The Avellino’s mo- another, relating bile between D’Arco and tion, Orenstein, submitting affidavits from the same narcotics mentioned in- offenses prosecutor in who had been lead this case ¶ (Id. 3.) Prince Street warrant. The through September from 1995 and Ste- McGillycuddy Affirmation stated that Kelly, D. phen assigned who had Attorney’s District had been in Office contact September since The case authorities,” prosecutors assigned “federal whom D’Arco maintained that “the time, re- the state materials possession of nor in not aware
this case were an Eastern unopened in the files of mained pretrial dis- during materials state the[ ] his mo- until Avellino filed (Affidavit Kelly District AUSA Stephen D. dat- covery.” Aff.”) ¶1.) case. to withdraw (“Kelly tion ed November aware had not been ¶ stated that he Orenstein (Id. proffered government also Affirmation, of the McGillyeuddy explanations for each non-narcotics-related affir- to in that investigation referred State by the State of D’Arco observed the actions He stated mation, September 1996. prior to by those in- characterized investigators and prior to been aware generally that he had activity. of narcotics vestigators as indicative York that the New Avellino’s dated Janu- and Order In a Memorandum Attorney’s had con- office County District court, (“Order”), not- the district ary and others investigation of Cuomo ducted support declaration ing that Avellino’s surveillance; electronic conducted and had suggestion that Avel- motion contained no “until this matter not known but he had innocent, the motion to with- denied lino was that Alfonso counsel raised Avellino’s Brady v. plea. Observing that the draw applications D’Arco was named [sic] obligation encompasses Maryland disclosure inves- that state electronic surveillance material, the court held that is subject of that that he was tigation or previously undisclosed State evi- (Affidavit of James Orenstein investigation.” standard. It noted did not meet that dence ¶ 3.) 12,1996, dated November “devastating impeach- that an abundance timely produced, September until material” had been Kelly stated that ment likewise McGillyeuddy Af- well aware that D’Arco and Avellino was he had not seen discussed, panoply in a of serious involvement materials it admitted firmation or the arson, crimes, trafficking, including narcotics investiga- not been aware of he had extortion, racketeering, hijacking, bur- labor Following the submission of Avellino’s tion. Thus, fraud, nine murders. Kelly glary, plea, had ob- to withdraw his motion *6 already produced, the light the evidence copies of the mate- State tained and reviewed been cumulative. evidence would have State spoke in the South- He also to AUSAs rials. 2-3. The court concluded Order at to determine Eastern Districts ern and probability that but no “reasonable there was when, come respectively, the materials had information produce failure to such por- learned that possession. He into their not have entered the the defendant materials had been re- tions of the State going on to would have insisted but by in the South- reviewed AUSAs ceived and (internal marks quotation at 2 trial.” Id. 1992, D’Arco in or about when ern District omittеd). if the court also found that The with the Southern District. cooperating likely there would plea were withdrawn that “the had determined Those AUSAs prejudice to the be- significant were not inconsistent with materials State prepare for a required to cause it would be provided during his co- D’Arco’s eight-month an hiatus and complex trial after ¶6.) addition, operation.” (Kelly Aff. by pleas the codefend- entered because the Southern Kelly learned that participated global set- who had ants investigation conducting an District had been might affected. well be tlement Cuomo, Eastern District had been and the investigation. denied; The contemplating such Avellino was sen- The motion County Attorney’s above; office appeal York District New as indicated tenced offices; to both furnished the State followed. opened the the Eastern District but before II. DISCUSSION Cuomo, boxes, indicted District the Southern Cuomo, 900 gov- v. 95 CR appeal, see United States Avellino contends that On (AGS) (S.D.N.Y.), constructively and the Eastern of the aware ernment was District contemplated investigation evidence, its was mate- abandoned that that evidence unopened: strong materials ammunition provided left the boxes of State it rial because D’Arco, and that result, impeachment of not the state materials were As a that evi- failure to disclose government’s by any Eastern District AUSA reviewed
255
(1970);
Alabama,
obligations
Boykin
thus
its
dence
violated
under
v.
395 U.S.
Brady
thereby
Maryland,
entitling
1709, 1711-12,
v.
Avelli
89 S.Ct.
were and, accordingly, knowledge, no constructive defendants-appellants.” Id. at 949 of the need a remand. (“We prosecutors’ knowl not infer the will other simply some edge because Materiality B. evidence.). In Unit knew about” the agents If has failed to disclose to the (2d Cir.), Quinn, F.2d 940 445 v. ed States him, re evidence favorable defendant U.S. 850, 87, 30 404 only if the evidence was lief is warranted (1971), impute we refused 90 L.Ed.2d See, e.g., Bag v. States “material.” United prosecutor an of a Florida knowledge 667, 678, ley, 3381- S.Ct. York, rejecting “completely as in New AUSA evi “[F]avorable 87 L.Ed.2d ,of position ‘knowledge [the] untenable material, constitutional error dence is equivalent to any part of suppression govern its results from ” prosecutor.’ part of this knowledge on ment, probability is a reasonable if there Id. at 944. that, disclosed to the had the evidence been case, argues Avellino present defense, proceeding of would the result charged with government should be con Whitley, Kyles have been different.” knowledge gathered (internal structive of evidence 433-34, 115 at 1565 U.S. at investigation omitted); in the State also United quotation marks see Avellino, Wallach, agreement part with ment’s States v. Cir.1991). that evidence was becаuse very an AUSA in the district office of context an attack on the In the contemporaneously which Avellino’s case was plea, considered ma validity of a evidence is Further, prosecuted. points Avellino being probabili “there is terial where a reasonable although Orenstein have AUSA out produce ty such that but failure materials tar unaware that the State would not information the defendant have D’Arco, also AUSA geting focused Cuomo plea but in instead entered Feldman, supervisor E. Orenstein’s Wood, Mark going to trial.” Tate sisted on 24; of the Eastern Dis Angliker, who in 1996 Chief Miller v. F.2d at see question Assessment in Organized Racketeering trict’s Crime .that objective that asks not inquiry volves an plea agreement signed Section and who particular what would do but defendant been, Avellino, had one of the likely persuasiveness is “the rather what County District Attor New York Assistant information.” Id. See also the withheld supervised investigation. neys who State Payne, F.3d at United Thus, pertinent argues (materiality question is mixed fact and prosecutors had reason Eastern District law, court, reviewing giving while mate unopened boxes know substantial deference to the district court’s respect contained information rials fact, its findings of historical determi bases investigation of the 1989-1991 narcotics materiality independent nation ex target. D’Areowas which record). amination arguments raise a Avellino’s number general, whose function is court, questions. The district troublesome *8 impeachment may be to be considered mate of its conclusions the undis- because question supplied rial where the witness not material closed information was only linking the defendant evidence likely of the would cause withdrawal See, States, e.g., Giglio the crime. v. United government significant prejudice, did not (remand 154-55, 92 405 S.Ct. at 766 U.S. knowledge, question reach the of the AUSAs’ ing government’s trial case for new where this constructive. Were Court actual or depended entirely” on a witness “almost as disagreement district court’s assess- was not impeaching whom evidence dis likely would remand materiality, ment of closed); Sperling, 506 States v. United explore those proceedings for further (2d Cir.1974) 1323, (remanding for 1334-40 conclude, However, since we questions. as to whom the new trial of those defendants follow, stated in the sections that uncorroborated; the reasons key testimony was witness’s information does not affirming undisclosed to defendants as to there as whom corroboration). impeaching Similarly, Brady materiality, we see was meet the test
257
may
Locascio,
matter
be found material where the
reason of other case the undisclosed instant the Conte letter —not evi cumulative, dence turned over to defense counsel—contra- hence not See, e.g., regarding material. dicted statements drug United busi- States Helms (2d ley, 1202, 1210 Cir.1993); ness to which 985 F.2d had testified in Unit Gravano. Petrillo, (2d assuming other trials. Even per- ed States v. Gravano jured Cir.1987); himself Rosner, assuming рerjury United oth- er trials Cir.1975), would be relevant Gravano’s trial, testimony in we do not believe U.S. L.Ed.2d the Conte letter material in context, the constitu- In this three recent deci tional sense. Had defense counsel had sions of this involving Court motions for new letter, access to the we do not believe it trials “in the justice,” interest of Fed. likely have affected the outcome of ground R.Crim.P. trial, or, words, in other that with the ment had failed to Brady obligations meet its letter credibility evidence Gravano’s impeachment to disclose evidence with re *9 would have been so that diminished Gam- spect key Gravano, to its witness Salvatore bino would not have been convicted. Gambino, see United 59 F.3d (2d Cir.1995) (“Gambino”), applicable Id. at 365. Under cert. de the standards nied, claims, U.S. we stated that (1996); Orena, L.Ed.2d 776 United States v. reversal is warranted if there is a Cir.1994) (“Orena”); probability reasonable disclosing that at issue on the in the triаl perjury occurred would have to the defense letter Conte trials, Locascio, or in other as appeal, as That test in a different verdict.
resulted
hypothesized Gambino.
court
met. As
district
has not been
noted,
plea agreement with the
Gambino,
“Gravano’s
case,
as in
In the
past
and his criminal
were
evidence
argues that the undisclosed
permitted him to show that the
have
jury
cross- would
before the
on
and laid
dissected
perjured him
key witness had
government’s
past which includ-
criminal
examination' —a
at other trials.
as a
witness
self
murders,’
racketeering,
labor
nineteen
ed
however,
cases,
Here,
as
all of
Gravano
justice
extortion,
shylocking, obstruction
that the wiL
government had .disclosed
F.Supp.
Proof
at 88.
gambling.” 835
Thus,
criminal record.
ness had an atrocious
in-
jury that this witness was
before the
already
his involvement
D’Arco had
admitted
conspiracy
import
volved in аn abortive
words, “[mjurder,
in,
high-jacking,
own
his
policies
that he violated
heroin and
arson,
gambling,” United States
burglary,
scarcely
would
have
organization
his own
Amuso, CR-90-446,
Transcript p.
Trial
past worse.
gloomy
his
rendered
(E.D.N.Y.
26, 1992), “[a]rson, ... mur
May
extortion,
Orena,
der,
loansharking,
counterfeiting,
also
at 365-66. See
Id.
racketeering,
illegal
...
union racke
labor
(in
“horrendous histo
light of Gravano’s
assaults,
threats,
type
of activi
teering,
belatedly
activity,” the
dis
ry
criminal
Giattino, CR-90-424,
ty,”
possibility
to the
information as
closed
(E.D.N.Y.
Transcript p.
Nov.
Trial
“the Mafia ‘rule’
had breached
Gravano
1992).
acknowledged
At
trials he
trafficking,” despite his testimo
drug
against
had
convicted of crimes
that he twice
been
forbade
ny
trial that
the Mafia
at Orena’s
terms,
prison
once for
and had served
activities, “would not
have
such
significantly
involving
stock certificates and
scheme
stolen
ability
improved
to undercut Grava
Orena’s
of,
cоnspiracy to
possession
once
credibility”).
no’s
distribute,
addition,
at his
heroin.
Locascio,
likewise testified to
Gravano
acknowledged that the activ
hearing, D’Arco
crimes,
vari
family
of numerous
includ-
the Luchese
also included
his commission
ities of
drugs,”
frauds and the “distribution
ous
Brady claim was based
ing 19 murders. The
alia,
stated,
“I carried on the
and he
inter
evidence that Gravano
newly-disclosed
family;
daily
of the Luchese crime
activities
responsible for three additional
had been
orders,
I
passed
I
on orders and
acted
had not confessed these
murders. Gravano
every day
...
I took care of the affairs
plea 'agreement,
and he had
murders
(D'Arco
6,5,
7-8,
enterprise.”
Tr. at
trial;
thus, the new
them at
not admitted
10, 13.)
thus
of disclosed
There was
a wealth
had
tended to show
Gravano
evidence
with which D’Arco could have been
evidence
defendants’
perjured himself at
Loсascio
impeached.
trial
trial.
concluded that no new
We
Further,
unpersuaded
are
Avellino’s
warranted because’
that the
argument
evidence
mate
already
to numer-
had
confessed
Gravano
theory that
rial on the
its existence
murders,
crimes, including
and was
ous
strong
reveal that D’Arco had a
motive
subject withering cross
examination
i.e.,
favorably
testify
government,
of a few more
those actions. The addition
possibility
light
perjured
of D’Arco’s
materially
af-
allegations would
testimony,
government might
consider
pro
has
plea agreement
cross examination of his
void. Avellino
fected the defense’s
suggesting
gov
that the
vided no basis
him.'
t
from
threatened
to withdraw
ernmen
Locascio,
vides that
would have led
impeachment
with the
§
motion if it is satisfied
5K1.1
guilty. For the reasons
plead
not
cooperation and
quality of the defendant’s
above,
that
we have concluded
discussed
of the
of the terms
performance
with his
probability. Our
is no such reasonable
there
Seе,
Fer
e.g.,
States v.
agreement.
United
a
§
5K1.1 cases that wit-
recognition
the
(2d Cir.1997);
nandez, 127 F.3d
impeachment
a basis for
lying provides
ness’s
(2d
Resto,
74 F.3d
25-26
v.
United States
materiality
question
neither addressed
Cir.1996).
normally retains
government
The
our conclusion
this
generally nor alters
to evaluate a defen
discretion
considerable
case.
assistance,
to move for
and its refusal
dant’s
§
is re
departure under Guidelines
5K1.1
Evidentiary Hearing
Denial
an
The
misconduct,
faith,
bad
or
viewable
contends that the dis
Avellino also
motive,
as
defen
such
unconstitutional
not have denied his motion
trict court should
See, e.g.,
v.
religion.
Wade
dant’s race
evidentiary hearing.
conducting an
without
181, 185-86,
States,
United
appeal,
argues that a
In his
he
brief
(1992);
1840, 1843-44,
118 L.Ed.2d
necessary because it is not clear
hearing was
Resto,
26;
74 F.3d at
United
States v.
United
government gave him all of the
that
Gonzalez,
F.2d
v.
States
from the
in
evidence it had received
Cir.1992).
hаve ruled in a number of
We
case,
vestigation. Given the record
cases,
including the Brechner ease relied
contention,
reject
for it is established
we
Avellino,
cooperation
where the
who seeks to withdraw his
that a defendant
to be
agreement
required
defendant
evidentiary
to an
entitled
truthful,
lying
subsequent
hearing
assertions that are
on the basis of
agreement
of the
and the
ment was a breach
See,
simply conclusory.
e.g.,
United States
right
agree
under that
government had
Gonzalez,
first time it has no Giglio entry material guilty plea.
of a opinion emphasize
While our does impose obligations of new constitutional