The opinion of the court was delivered by: BROTMAN
Presently before the court is a motion by defendants Levy, Fisher and Canterino for a hearing to determine whether the government possesses certain exculpatory evidence which is required to make available to the defense, under the Supreme Court's holding in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). This request arises out of counts 29 and 32 of the present indictment which allege that John LaMonte was beaten by Gaetano Vastola on May 18, 1985, as part of a conspiracy among Vastola, Levy, Fisher and Canterino to extort funds from LaMonte.
Defendants contend that the government does, or at least at some point did, possess surveillance evidence of the alleged beating. Defendants also seek discovery from the government, in advance of a hearing on the Brady issue, of logs, report forms, duty rosters and other documents which will identify the whereabouts on May 18, 1985, of each law enforcement officer who participated in the investigation underlying this prosecution. The government vehemently denies that surveillance evidence of the LaMonte beating existed, and opposes the hearing and disclosure of the materials sought by the defendants.
For the reasons set forth below, the defendants' motion is granted.
There is apparently no disagreement among the parties as to whether surveillance evidence of the alleged beating would constitute Brady material. The controversy centers around the existence of such evidence. In the face of such a factual dispute, the Third Circuit has instructed that an evidentiary hearing is appropriate.
Where the submission of written affidavits raises genuine issues of material fact and where, as here, the Brady claims are neither frivolous nor palpably incredible, an evidentiary hearing should be conducted.
In support of their application for a hearing, defendants offer the following:
(1) that the Federal Bureau of Investigation ("F.B.I.") began surveillance of Gaetano Vastola and two other defendants named in the underlying indictment four months prior to the date of the alleged beating of John LaMonte, and that F.B.I. agents warned LaMonte, who had become a government informant, approximately one month prior to the beating that he might be in physical danger;
(2) that a book entitled Dark Victory: Ronald Reagan and the Mob, states that the F.B.I. photographed the LaMonte beating, and that the book's author, Dan Moldea, has told defense counsel that this statement was confirmed by the F.B.I.;
(3) that an article which appeared in the Los Angeles Times on March 3, 1986, states that the beating was photographed by the F.B.I., and that the author of the article, William ...