granted a reversal, it was unlikely he would be retried. Provenzano's counsel questioned Picardo directly about his meeting in San Diego. T655-656. Picardo testified that he hoped that he would not be retried.
The fact that Picardo testified later, in the Tiari trial, that he had an agreement with New Jersey not to be retried does not compel the conclusion that he lied in the instant case. Nor is that conclusion compelled by Picardo's earlier testimony at Provenzano's trial in Ulster County, New York, where Provenzano was convicted of murder.
According to incomplete transcripts provided to the court by Provenzano's attorney after the hearing on the instant motion, Picardo testified that he was "awaiting retrial" of his Hudson County murder charge. People v. Provenzano, T434, June 5, 1978.
That statement in the Ulster County trial, that Picardo was "awaiting retrial" in New Jersey, was literally true despite what Picardo might have understood to be the assertions of the New Jersey Deputy Attorney General who interviewed him in San Diego in 1977. The State of New Jersey intends to retry Picardo in Hudson County. See transcript of hearing before the Hon. Thomas O'Brien, J.S.C., in Superior Court, Hudson County in State v. Picardo, Ind.No. 1153-73 at 44, marked for identification in the trial of United States v. Nunzio Provenzano, Cr.No. 80-315 (D.N.J.), transcript of April 15, 1981 at 19.95. On August 31, 1981, this court was advised by Judge O'Brien that an attempt to move the retrial was made in July 1981, but due to a shortage of judges at that time it was rescheduled and should proceed in September 1981.
Unless Picardo is a fool, which this court is absolutely certain he is not, he was telling the truth here when he testified that he "hoped" not to be retried. Logic would be tortured beyond recognition to conclude differently; no one hopes to be retried for murder. In fact, Picardo testified under cross-examination by Mr. Goldberg: "I don't think anybody in his right mind would want to (stand trial for murder again)." T493.
In testifying later, in the Tiari trial, that he had an understanding that he would not be retried, Picardo, at worst, misunderstood the assertions of the Deputy Attorney General in San Diego more likely, he accurately answered the question which focused on the period prior to the reversal of his conviction.
At oral argument on the instant motion, the Government conceded that it had an obligation to come forward and reveal that Picardo had an understanding with the State of New Jersey not to be retried, if it had knowledge that such an agreement existed. The attorneys for the Government have maintained from the outset of this prosecution that they were unclear as to what understandings or agreements, if any, Picardo may have had with the State of New Jersey. They made their confusion crystal clear to defense counsel prior to trial in this matter. This court has no reason to doubt the truth of the Government's assertions. See transcript of the hearing on the instant motion, T54-T58 (May 11, 1981).
What is vitally important is that the Government provided in the Brady material the summary of the meeting between Picardo and the New Jersey Deputy Attorneys General. That summary, designated J-80-W, sets forth the names of the interviewers Hall, a member of the New Jersey State Police Intelligence Bureau, and Bozza, a Deputy New Jersey Attorney General as well as the fact that FBI Special Agent James Kosler was present. The summary, drafted by Hall, states in pertinent part:
The case concerning Trombetta (victim of the Hudson County murder) is currently in the appeal courts. According to Picardi's (sic ) Attorneys, FBI sources and DAGs Palleria and Bozza, Picardi (sic ) will probably win the appeal and there is a good possibility that he would not stand trial again.
Provenzano's counsel had this information long before trial; it is certainly not newly discovered. It is well settled that evidence is not newly discovered when it was known or could have been known by the diligence of the defendant or his counsel. United States v. Provenzano, supra, 620 F.2d at 997; United States v. Bujese, 371 F.2d 120, 125 (3d Cir. 1967).
If, indeed, as Provenzano now asserts, the information conflicted with Picardo's earlier testimony in Ulster County, Provenzano's counsel had the opportunity prior to the instant trial to seek out those state and federal government agents referred to in the summary Hall, Bozza, Palleria and Kosler and determine if there was a deal with the State of New Jersey. This court is unaware of any efforts by defense counsel to interview these government agents; certainly none were called as witnesses. These deliberate tactical decisions by counsel are binding on the defendants, United States v. Provenzano, supra, 620 F.2d at 997; see also United States v. Hoffer, 423 F. Supp. 811, 817 (S.D.N.Y.1976), aff'd mem., 556 F.2d 561 (2d Cir. 1977), and the failure to pursue the issue may well constitute a waiver by the defendants to allege any error based upon the missed opportunity. See United States v. Harris, 498 F.2d 1164, 1170 (3d Cir. 1974).
Moreover, Picardo's arrangements about retrial, if such ever existed, could not be affected by how he testified in Provenzano's trial here, because his agreement with the federal government, which was completely disclosed to counsel, did not impact on the retrial only upon his possible parole or clemency if he were convicted anew. T415-416.
It is quite clear that Picardo's response, "That's correct, sir.", to Mr. Goldberg's question, "Is it not a fair statement that it is your hope that you'll never have to stand trial for that murder case?", T655, was a literally truthful statement. See Bronston v. United States, supra. It is most interesting that the word "hope" was not chosen by the witness, but by Provenzano's counsel. Likewise, in the Tiari trial, the word "understanding" was not chosen by the witness, but by the government attorney.
In any event, if the statement in response to Mr. Goldberg's question in this case was not truthful, there is no reason for the court to believe that the prosecution had any knowledge of its falsity. On the contrary, the Government has asserted from the outset, and Picardo has so testified, that there has been no federal interference with a scheduled retrial, see transcript of trial of United States v. Nunzio Provenzano, T2.63 (March 20, 1981), and that if he had any "agreement", it was with the State of New Jersey, id. at T4.98.
This court finds that Picardo's statement that he "hoped" not to be retried was a true statement. Without a finding that the statement of the witness was false, the Larrison Rule does not become effective. At best, Provenzano must abide by the probability test if the statement in the Tiari trial can be considered newly discovered, because the statement only can be used to impeach Picardo. See United States v. Gabriel, 597 F.2d 95, 99 (7th Cir. 1979).
Provenzano contends that the statement could be used to impeach Picardo. The general rule on motions for a new trial as to newly discovered evidence which reveals untrue statements by a Government witness, is that new evidence which is merely cumulative or impeaching is not an adequate basis for the grant of a new trial. Mesarosh v. United States, 352 U.S. 1, 77 S. Ct. 1, 1 L. Ed. 2d 1 (1956). Furthermore, the Supreme Court has refused to hold that any subsequently discovered inaccuracy in the testimony of an important trial witness, which might have affected his credibility in the eyes of the jury, would entitle a convicted defendant to a new trial. Shotwell Mfg. Co. v. United States, 371 U.S. 341, 357, 83 S. Ct. 448, 458, 9 L. Ed. 2d 357 (1963).
The disputed statement was a tiny part of an extensive cross-examination which vigorously and exhaustively attacked Picardo's credibility. Picardo testified to falsifying documents, using drugs, gambling, philandering, cheating on his taxes, and a willingness to do virtually anything to protect himself. The alleged inconsistency in his testimony "pales into total insignificance as impeachment when considered against a backdrop of all the other impeaching evidence the jury had before it." United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979). Moreover, the jury was instructed to receive Picardo's testimony with caution. Jury charge at 21-23. See United States v. Runge, 593 F.2d 66, 74 (8th Cir.), cert. denied, 444 U.S. 859, 100 S. Ct. 123, 62 L. Ed. 2d 80 (1979). There is no possible way to conclude that at a new trial, evidence of the newly discovered "inconsistent statement" would probably produce an acquittal. See United States v. Davila, 428 F.2d 465, 466-67 (9th Cir. 1970).
The defendants have been speedily and publicly tried. They were convicted. By continually shifting focus, Provenzano has successively attacked his bail status pending appeal and his conviction on multiple legal theories. He has twice sought recusal of the trial judge. He has cast aspersions on the considerable abilities of his trial counsel, and he has attempted to interject wild speculation about personal vendettas against him by the Government relating to investigations far removed from this matter. See transcript of the hearing on the instant motion.
These types of attacks sometimes continue for years.
With the realization that this opinion now becomes the basis for yet continued appellate review, this court concludes that the allegation that Agent Smith perjured himself in not divulging the investigation of the sporting goods store receipts is unsupported by the law. Likewise unsupportable by the law, as well as the facts, is Picardo's alleged perjury in making a statement in the Tiari trial regarding his retrial, allegedly inconsistent with the statements made in this case. The information contained in the allegedly undisclosed 302s, and in the District of New Jersey documents relating to Picardo's escape in Maine, is wholly inconclusive at best, and is merely cumulative to other, much stronger, impeachment testimony in the record.
There is no indication that the Government attorneys withheld any information from defense counsel which was "material" to the issues under any tier of the Agurs standard. Although Provenzano alleges multiple non-disclosures of information which he specifically requested, see DeMartino v. Weidenburner, 616 F.2d 708, 713-14 (3d Cir. 1980), it is clear to this court that none of the information allegedly non-disclosed would have had any effect on the outcome of the trial, nor is there a reasonable likelihood that the verdict would have been different. Provenzano has not met his "heavy burden", United States v. Rocco, supra, 587 F.2d at 146.
As Justice Jackson stated in Stein v. New York, 346 U.S. 156, 197, 73 S. Ct. 1077, 1099, 97 L. Ed. 1522 (1953), "The petitioners have had a fair trial and fair review. The people ... are also entitled to due process of law." The motions for a new trial are denied. The Government shall submit an appropriate order.