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UNITED STATES v. PROVENZANO

September 4, 1981

UNITED STATES of America, Plaintiff,
v.
Anthony PROVENZANO, et al., Defendants



The opinion of the court was delivered by: MEANOR

It is quite certain that this nation's founding fathers, the framers of our Federal Constitution and the Bill of Rights, never envisioned that the right of a criminal defendant to a speedy and public trial in an arena where witnesses could be confronted by cross-examination, would evolve into merely a dress rehearsal for a long-running soap opera of post-conviction relief. The longer such a drama runs, the less faith society has in a system which appears never to give justice its due. *fn1"

Just as "there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused," Barker v. Wingo, 407 U.S. 514, 519, 92 S. Ct. 2182, 2186, 33 L. Ed. 2d 101 (1972), so is there a societal interest in the finality of judgments which result from those speedily provided trials. A jury's guilty verdict at a trial provided within the parameters of both the sixth amendment's speedy trial clause and the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq., is meaningless to society when endless post-conviction motions to attack collaterally facets of the trial operate to stay the final judgment into the distant future. It is indeed ironic that a speedy trial which results in a guilty verdict, swiftly begets impediments to finality. Congress *fn2" and the courts *fn3" have expressed the public's right to speedy justice. It is an increasingly empty right when well-financed, convicted defendants attempt to prolong the final day of reckoning by abusing the post-conviction relief process.

 Defendants Provenzano, Thomas Andretta, Stephen Andretta and Gabriel Briguglio were indicted on February 22, 1979 and were brought to trial within the time mandated by Congress in the Speedy Trial Act. After a three-week public trial they were all convicted by a jury on May 25, 1979. On July 3, 1979, Provenzano moved for an evidentiary hearing with respect to an alleged violation of the court's jury sequestration order. The other defendants joined in the motion. On July 6, 1979 after a hearing on the motion, the court denied Provenzano's request for leave to question members of the jury. Four days later, on July 10, 1979, the court denied all defendants' applications to vacate the jury verdict and to enter judgments of acquittal, and sentenced them. After sentencing Provenzano and Thomas Andretta each to twenty years' imprisonment and fines of $ 20,000, the court denied them bail pending appeal and ordered them remanded to custody. Provenzano and Thomas Andretta then sought an order from the Court of Appeals for the Third Circuit releasing them, which was denied on August 21, 1979, United States v. Provenzano, 605 F.2d 85 (3d Cir. 1979).

 All defendants appealed their convictions. While the appeal was pending, Provenzano, Thomas Andretta and Briguglio moved for a new trial or expansion of the trial record. Provenzano also moved for the recusal of the trial judge for the purpose of hearing the new trial motion. *fn4" On September 21, 1979, Provenzano withdrew his recusal motion and, after a hearing, the court denied the defendants' new trial motions. Three days later, on September 24, 1979, Provenzano filed a notice of appeal from the court's denial of his motion for a new trial. On September 28, 1979, Thomas Andretta and Briguglio filed similar notices of appeal. On May 8, 1980, the Court of Appeals denied the consolidated appeals of Provenzano and both Andrettas, United States v. Provenzano, 620 F.2d 985 (3d Cir. 1980). *fn5" Those defendants petitioned the United States Supreme Court for a Writ of Certiorari which was denied on October 14, 1980, 449 U.S. 899, 101 S. Ct. 267, 66 L. Ed. 2d 129.

 On January 13, 1981, Provenzano filed a notice of motion pursuant to Fed.R.Crim.P. 33 for an order granting a new trial on the basis of newly discovered evidence. Stephen Andretta filed the same motion on January 16, 1981 and Thomas Andretta joined on March 18, 1981. After repeated requests by Provenzano for adjournment of the hearing date, on May 11, 1981 this court heard argument on defendants' motions and reserved decision. Less than one week later, Provenzano's attorney contacted the court and requested that decision on the motion be withheld because he intended to file a motion for the court's recusal. On June 5, 1981, Provenzano filed the recusal motion. Neither of the Andrettas joined in that motion. After a hearing on June 22, 1981, the recusal motion was denied. While decision was reserved on the Rule 33 motions, the court heard motions on July 27, 1981 by Thomas and Stephen Andretta to reduce their sentence. Thomas Andretta's motion was denied and Stephen Andretta's motion was granted.

 It is now more than two years since the defendants in this case were convicted of violating the federal racketeering laws. This court must now rule upon motions by Anthony Provenzano, Thomas Andretta and Stephen Andretta (hereafter collectively "Provenzano") for a new trial based upon "newly discovered evidence." The evidence which is alleged to be newly discovered is (a) two FBI 302 investigative reports, (b) documents from the file of a United States Magistrate and Clerk's docket sheet detailing the issuance of a complaint charging witness Ralph Picardo with escape, and the warrant of arrest for that escape issued out of this district, and (c) Picardo's testimony in a later trial, allegedly inconsistent with his testimony in the instant case. *fn6"

 THE 302s

 Provenzano contends that the 302s were not turned over to the defendants under the court's Brady order, see Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1967), and that they contain information which, had counsel been aware, could have been used to impeach the credibility of Picardo with respect to an alleged trip to Miami, Florida in late 1973. It was during the Miami trip that Picardo claimed he discussed "labor peace" involving his company, Lift-Van, with Provenzano.

 The other 302 details an investigation by FBI Agent Sullivan of Eastern Airlines' microfilm reservation records for the period November 8, 1973 through November 15, 1973 searching for reservations in the name of Andretta, Briguglio or Picardo from Newark to Miami or Ft. Lauderdale and return. No such names were found in the microfilm records. Sullivan interviewed the Past Date Records Clerk who advised "that it would have been possible to have obtained transportation via Eastern Airlines for the above indicated time period without having that information recorded on their microfilm reservation records."

 Provenzano contends that these 302s were never produced to defense counsel, see Affidavits of Harvey Weissbard, Esq. (Provenzano's present counsel), Jay Goldberg, Esq. and Gerald Shargel, Esq. (Provenzano's trial counsel), and that they are material to his defense. The Government asserts that the 302s were provided prior to trial, see Affidavit of Jeffrey Speiser, Special Attorney, Department of Justice (the Government's trial counsel). Provenzano contends that the 302s first surfaced in Brady material produced for the trial of Frank Tiari in the Southern District of New York in November 1980, approximately 18 months after the trial in the instant case. (Tiari and Provenzano retained the same trial counsel, Jay Goldberg.) Thus, Provenzano alleges that the evidence is newly discovered and should be the basis for a new trial. Provenzano further alleges that FBI Agent Smith, who testified as a defense witness, committed perjury or purposefully attempted to create a false impression when he didn't mention the interview with the sporting goods store executive and, thus, tried to mislead defense counsel and the jury concerning the extent of the FBI's investigation to verify Picardo's alleged trip to Miami.

 THE "ESCAPE" DOCUMENTS

 While in the Federal Witness Protection Program, Picardo was incarcerated for a time at a facility in Portland, Maine, where he was classified as a "trustee" and afforded certain privileges. On December 23, 1976, Picardo walked away from the facility. Upon being informed of the walkaway, Robert Stewart, then a Special Attorney with the Department of Justice who had been dealing with Picardo, notified William W. Robertson, then head of the Newark Strike Force, of the escape. Robertson had a complaint filed with United States Magistrate William J. Hunt on December 23, 1976 (Mag. No. 76-2134MG-2), charging Picardo with a violation of 18 U.S.C. § 751(a) Escape from custody, and requested that an arrest warrant issue. It was further ordered that the complaint be sealed. Picardo was arrested the same date by two FBI agents in New York State after they received a teletype that a warrant had issued for his arrest. On February 9, 1977, 48 days after the escape, the United States Attorney in Portland, Maine declined prosecution of Picardo for the incident.

 One of the FBI agents who arrested Picardo filed a 302 report of his complete investigation of the matter. That report was included in the Brady material turned over to defense counsel prior to trial. The report included reference to the declination of prosecution by the United States Attorney in Maine. Agent Cummings, who filed the report, was called as a defense witness as was Agent Bergholtz, the other arresting agent, to impeach Picardo after he testified that he had not escaped, but had merely left the facility thinking he had permission.

 THE "AGREEMENT" ON PICARDO'S RETRIAL

 The final ground upon which Provenzano asserts he is deserving of a new trial is that Picardo materially changed his testimony in the Tiari trial from the Provenzano trial testimony on the issue of what he understood his status was with regard to a retrial in Hudson County, New Jersey on a murder conviction which had been reversed. Provenzano alleges that Picardo perjured himself in the instant case when he said that he "hoped" he would not be retried, in light of his later testimony in the Tiari trial that he had "an agreement" not to be retried.

 Provenzano asserts that this false revelation of Picardo's state of mind at the trial went directly to his motivation to testify in a biased manner. The defendant contends that this motive to testify falsely went directly to an attack on Picardo's credibility. Provenzano argues:

 
Knowledge that the prosecuting authorities are holding out the certainty of freedom from a charge of murder creates an incentive of the highest order to support the prosecution's case. It is many orders of magnitude greater than a mere "hope" that such a retrial will not take place.

 Defendant's Supplemental Brief in Support of the Motion at 4.

 EVIDENTIARY HEARING

 An evidentiary hearing need not be held in every case where a defendant seeks a new trial on the basis of newly discovered evidence. United States v. Johnson, 327 U.S. 106, 112, 66 S. Ct. 464, 466, 90 L. Ed. 562 (1946); United States v. Herman, 614 F.2d 369, 372 (3d Cir. 1980). A motion for a new trial ordinarily may be decided on affidavits without a hearing. Where such a hearing is ordered, it is because of certain unique situations, typically involving allegations of jury tampering, prosecutorial misconduct or third party confession. United States v. Hamilton, 559 F.2d 1370, 1373 (5th Cir. 1977).

 Here, the motion is before the trial judge who is fully familiar with the record as it was developed at trial and with the material produced by the Government under the Brady order. See United States v. Johnson, supra; United States v. Iannelli, 528 F.2d 1290, 1294 (3d Cir. 1976). Affidavits have been submitted by Provenzano's attorneys and by Jeffrey Speiser and Robert C. Stewart for the Government. The Affidavits of Messrs. Goldberg and Shargel, the trial counsel, merely state that they never received the 302s of FBI Agents Smith and Sullivan. The Affidavit of Mr. Weissbard, Provenzano's present counsel, asserts that "defense counsel were totally unaware" of the escape complaint and outstanding arrest warrant which were not dismissed until 15 months after the escape. Weissbard Affidavit at P 18. The Weissbard Affidavit further asserts, at P 9:

 
Mr. Goldberg has advised me that in his opinion these non-disclosed materials were extremely important and could have been used quite effectively by him. ... if he had known of and been able to develop the additional material concerning the Florida trip the jury might very well have been convinced that the trip did not take place and that Picardo was not to be believed concerning defendant Provenzano's participation in the crime. *fn7"

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