08-5266 | Omnilex

Testo completo

08-5266-cr (L), 09-0992-cr, 09-1076-cr
USA v. Persico

# UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2009

(Argued: June 14, 2010

Decided: May 3, 2011)

Docket Nos. 08-5266-cr (L), 09-0992-cr, 09-1076-cr

UNITED STATES OF AMERICA,

Appellee,

\- V. -

ALPHONSE T. PERSICO, also known as Kid, also known as
Allie Boy, and JOHN J. DeROSS, also known as Jackie,

Defendants-Appellants.

Before: JACOBS, Chief Judge, KEARSE and LEVAL, Circuit Judges.

Appeals from judgments of the United States District Court
for the Eastern District of New York, Joanna Seybert, Judge,
convicting defendants of murder in aid of racketeering, witness
tampering, and conspiracy to commit witness tampering, 18 U.S.C.
§§ 1959 (a) (1), 1512 (b) (1) & (b) (2) (A), and 371, and sentencing
them to life imprisonment.

Affirmed.

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JOHN DAVID BURETTA, JEFFREY GOLDBERG, Assistant
United States Attorneys, Brooklyn, New York
(Benton J. Campbell, United States Attorney
for the Eastern District of New York, Peter
A. Norling, Elizabeth Geddes, James Gatta,
Assistant United States Attorneys,
Brooklyn, New York, on the brief), for
Appellee.

PAUL SHECHTMAN, New York, New York (Nathaniel Z.
Marmur, Stillman, Friedman & Shechtman, New
York, New York, on the brief), for
Defendant-Appellant Persico.

ROBERT P. LaRUSSO, Mineola, New York (LaRusso &
Conway, Mineola, New York, on the brief) ,
for Defendant-Appellant DeRoss.

KEARSE, Circuit Judge :

Defendants Alphonse T. Persico ( "Persico") and John J.
DeRoss appeal from judgments entered in the United States District
Court for the Eastern District of New York following a jury trial
before Joanna Seybert, Judge, convicting them of the murder in May
1999 of William ("Bill, " "Billy, " or "Wild Bill") Cutolo Sr.
("Cutolo") in aid of racketeering, in violation of 18 U.S.C.
§ 1959 (a) (1) (Count One), witness tampering, in violation of 18
U.S.C. §§ 1512 (b) (1) and (b) (2) (A) (Count Six), and conspiracy to
commit witness tampering, in violation of 18 U.S.C. § 371 (Count
Five), and sentencing them principally to life imprisonment. On
appeal, defendants contend, inter alia, that they should have been
granted a new trial after the posttrial discovery of Cutolo's
body; that there were prejudicial errors in the admission of
certain testimony by Cutolo's widow; that the evidence was
insufficient to support their convictions on the witness-tampering

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counts; and that the government improperly withheld information
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that was material to the defense; DeRoss also contends that the
admission of certain testimony by Cutolo's daughter was unduly
prejudicial and that the evidence was insufficient to support his
conviction on the murder count. Finding no basis for reversal, we
affirm the judgments of conviction.

## I. BACKGROUND

The present prosecution grew out of a struggle for power
within the Colombo Crime Family (or "Colombo Family"), one of five
organized crime families (collectively "La Cosa Nostra" or the
"Mafia") in the New York City area. The indictment alleged that
the Colombo Family constituted a RICO enterprise, see 18 U.S.C.
§ 1961(4), whose purposes included the enrichment of its members
and associates through illegal activities and through the
concealment of those activities, their participants, and the
locations of their proceeds. It alleged that Persico, who was
also known as "Kid, " "Allie, " or "Allie Boy, " was at various times
a soldier, a captain, and the acting boss -- or leader -- of the
Colombo Family; and that DeRoss, who was also known as "Jackie, "
was at various times a soldier, a captain, and the acting
underboss -- or second in command -- of that family. At the trial
leading to defendants' convictions on the above charges -- a prior
trial had ended in a hung jury -- the government's evidence included
tape-recorded conversations, telephone records, and testimony by

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numerous Federal Bureau of Investigation ( "FBI") agents, Cutolo's
wife and his daughter, and several former members or associates of
organized crime. The evidence as to Cutolo's murder was
circumstantial; there was no eyewitness testimony, and as of the
time of trial his body had not been found.

The evidence at trial, taken in the light most favorable
to the government, showed the following.

A. The Colombo Family War and the Ascensions of Persico and Cutolo
Each of the five organized crime families was typically
run by a boss, assisted by an underboss and a consigliere, or
advisor; below that administrative trio were the family's
captains, or capos, who supervised the "soldiers," i.e., those who
had been made "members" of the family by formal induction. The
soldiers, in turn, managed participants in or contributors to
family enterprises who were not "made members" and were called
"associates." (Trial Transcript ( "Tr. ") 1139-42.) Crime family
protocols were stringent. Members and associates of a family were
not allowed to speak to members of other crime families or to
higher-ranking members of their own family without a formal
introduction. (See, e.g., Tr. 1414-16.) Members involved in
disputes were expected to discuss matters civilly (have a "sit-
down"), with at least the appearance of mutual respect. (See,
e.g., id. at 1148, 1200-01, 1910.) And no family member --
especially no underboss, a member of the family's administration --
could be killed without permission from the boss. (See, e.g., id.

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at 1275 (made member), 1827 (underboss) , 1756 ("Nobody can kill
the underboss without
exposing yourself to get killed
yourself."); see also id. at 2994 (no "boss" could be killed
without permission of the La Cosa Nostra ruling body, the
"Commission") .) Salvatore Vitale, a member of the Bonanno Crime
Family (or "Bonanno Family") for some 30 years, testified that by
the time he became that family's underboss he had been involved in
11 murders; in each instance he had the permission of the Bonanno
Family's boss to commit the murder. (See, e.g., id. at 2863,
2874.) Michael DiLeonardo, a former captain in the Gambino Crime
Family (or "Gambino Family"), testified that various Mafia rules
were often broken, but the rule against killing a made member
without permission was broken less frequently, as the punishment
would be death. (See, e.g., id. at 1754-56; see also id.
at 1744-49 (killing of the new Gambino Family underboss in 1986
was authorized by the Commission after the unauthorized killings
in 1985 of Gambino boss Paul Castellano and his underboss) .)

In the early 1990s, the boss of the Colombo Crime Family
was Persico's father, Carmine Persico, who was serving a lengthy
term of imprisonment. Persico and DeRoss, who were captains, were
also in prison, but for much shorter terms. Victor Orena was the
family's acting boss, a position to which Persico aspired. A
bloody war was sparked when someone tried to kill Orena,
motivated by the fact that Persico would soon be released from
prison and the belief that Orena would refuse to step down as
acting boss. (See, e.g., id. at 1271-76, 1732, 2881-85.) In the

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intra-family war, there were about a dozen killings (see id.
at 1278) ; Cutolo was a member of the faction supporting Orena (see
id. at 1276) . The war ended in 1992 or 1993 because so many
family members had been killed or arrested; but there remained two
factions, and the Commission would not allow the Colombo Family to
induct new members until the family got itself in order. (See,
e.g., id. at 1282, 1820, 2886-87.) DeRoss, Cutolo, and several
others got together and decided to attempt a reconciliation,
operating with Persico as their captain. (See id. at 1282-85.)
In about 1998, the Commission decided to back the Persico faction
(see id. at 2891-92) ; Persico became the family's acting boss, and
Cutolo became the acting underboss (see, e.q., id. at 1421) .

Cutolo, by all accounts, was difficult to deal with:
intransigent in negotiations with other crime families and harsh
with members and associates of his own crime family. (See, e. g.,
Tr. 1790-91, 1288-89, 2231-37, 2277-78, 2283-89.) DiLeonardo, as
a captain in the Gambino Crime Family, served as that family's
liaison with the Colombo Family. (See id. at 1729.) He was
friendly with DeRoss, whose grandchildren played football on a
team with DiLeonardo's son, and was even more friendly with
Persico. (See id. at 2106-07, 1797-98.) DiLeonardo testified
that, in his liaison capacity, he met with Cutolo dozens of times
(see id. at 1732), and he viewed Cutolo as having aspirations to
become the boss of the Colombo Family (see, e.g., id. at 1821
("You could see him coming like a train"; he "had a lot of
momentum behind him. He wasn't about to sit still.
He was

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all about Cosa Nostra, and he wanted to wear the main hat, the
main. ") ). DiLeonardo was concerned that Cutolo might kill
Persico. (See, e.q., id. at 1822 (Cutolo "was a threat to Allie";
"he would have killed him. I know he would have killed Allie in
time. ") .) DiLeonardo thus warned Persico, "Bill has boss
mentality"; Persico understood what that meant. (Id. )

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Joseph Campanella was a Colombo soldier who had grown up
with Cutolo and socialized with Cutolo and Cutolo's three adult
children. (See Tr. 1262-63.) When Campanella became a made
member of the Colombo Family, Cutolo was his captain (see id.
at 1275) ; during the Colombo Family war, Campanella was one of
Cutolo's bodyguards (see id. at 1277) ; and during a 13-month
period when Cutolo was in jail, Campanella ran Cutolo's crew of
soldiers and associates (see id. at 1283) ; but once Cutolo became
the Colombo underboss, Cutolo became "distant" (id. at 1288) .
There was also controversy over Campanella's owing Cutolo some
$300, 000, which Cutolo had advanced several years earlier for
loansharking activity. (See id. at 1288, 1346.) In early 1999,
Campanella bought himself a Mercedes automobile; DeRoss told
Campanella that Cutolo was annoyed that Campanella would be
spending substantial sums on himself, rather than repaying any of
his debt to Cutolo, and that Cutolo was threatening to break the
windows in Campanella's car. Campanella told DeRoss he was "very,
very offended" by Cutolo's threat. (Id. at 1288-89.)

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In mid-April 1999, Campanella and DeRoss were to attend an
unrelated sit-down and were discussing what they would say.

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Campanella testified that during their preparations for that
meeting "Jack DeRoss asked me how I feel about killing Wild Bill, "
and " [h]e was serious."
(Id. at 1291-92.)
DeRoss never joked
with Campanella about killing anyone. (See id. at 1629.)
Campanella declined; he testified that he was upset with Cutolo
but did not want to kill him. (See id. at 1292.)

Giovanni Floridia (aka "John the Barber") testified that
he became associated with the Colombo Family in the mid-1990s when
he began loansharking with money loaned to him by Tommy and Richie
Cappa, who were Colombo associates. (See Tr. 2226-30.) Floridia
had not yet met Cutolo, and he first incurred Cutolo's wrath in
1997 when he told one of his borrowers, as he had been instructed
to do by Richie Cappa, that the borrowed money had come from
Cutolo. (See id. at 2231-32.) Cutolo was enraged -- apparently
because his name was being used and he was not receiving
payments -- and threatened to split Floridia's head open if Floridia
used Cutolo's name again. (See id. at 2232.) Thereafter, Cutolo
summoned Floridia and asked how much money he had out "on the
street"; although the amount was approximately $300, 000, Floridia
responded, again as directed by Richie Cappa, that the amount was
$80, 000-$100, 000; Cutolo instructed Floridia to come to Cutolo's
club on Wednesday nights, as did others working for Cutolo, and
make payments directly. (Id. at 2233-35; 2294-95.) Thereafter,
Floridia was "on record with" Cutolo (id. at 2296), i.e.,

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officially a member of Cutolo's crew.

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By the spring of 1999, Cutolo discovered that Floridia had
lied about how much money he had loaned out. Cutolo summoned
Floridia to a meeting and berated him. Cutolo essentially
confiscated $50, 000 that Floridia was expecting to receive from a
robbery in which he had recently participated and "tax [ed] " him an
additional $25, 000 for having lied about how much money he had on
the street. (Id. at 2280-84.) When Floridia failed to pay the
$25, 000, Cutolo had Floridia assaulted. (See id. at 2286-87.)

Floridia, furious, complained about Cutolo to his friend
John Cerbone (aka "Johnny Brains" (Tr. 2238) ), a Colombo
associate, and to Colombo soldier Vincent ("Chickie") DeMartino
(see id. at 2287-88). Cerbone had introduced Floridia to
DeMartino and told him that DeMartino was "a killer in the
family." (Id. at 2276.) Floridia testified that DeMartino, after
hearing his complaints about Cutolo, said "Listen, don't worry
about it. This guy is not going to be around much longer. I'm
going to call Jackie" -- i.e., DeRoss -- "and I want you to tell him

exactly what happened. And you're going to meet him and tell him
exactly what happened." (Id. at 2288. )
Floridia understood

" [t]his guy, " who was "not going to be around much longer, " to
mean Cutolo. (Id. at 2289.)

Thereafter, Cerbone told Floridia where and when to meet

DeRoss.
(See id. at 2289-90.) At that meeting, DeRoss told
Floridia to continue with what he was doing and to " [s]tick with
Chickie." (Id. at 2291.) DeRoss said, "Don't worry about it.
Things are going to change." (Id. ) Floridia's understanding of

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DeRoss's statement -- especially in light of DeMartino's earlier
statement that Cutolo would not be around much longer -- was "that
they were going to whack Billy. "
(Id.)
Floridia testified that
DeRoss's demeanor was serious. (See id. at 2292.) Some two weeks
later, on May 26, 1999, Cutolo disappeared. (See id. )

B. The Events and Aftermath of May 26, 1999
On May 25, Persico and Cutolo paged each other several
times, and they later spoke by telephone. (See id. at 4223;
Government Exhibit ("GX") 70C.) Betty Anne Fox, Cutolo's
girlfriend of some 20 years (see Tr. 4588-89), testified that
Cutolo was upset that night, telling her that he could not spend
time with her the next day as planned because he had had to
reschedule a planned appointment from the 25th to the 26th (see
id. at 4571-72) .

On Wednesday May 26, Cutolo went to the Manhattan office
of the union of which he was an officer; Wednesday was his usual
day there, but he remained a shorter time than usual. (See id.
at 394, 3709-10.) Marguerite Cutolo ("Peggy Cutolo" or "Peggy") ,
Cutolo's wife of some 30 years (see id. at 553), paged Cutolo
around midday, and testified, over defendants' objections, that
when he called back he told her he had to go "to Brooklyn" to
meet "The Kid, " by whom she understood him to mean "Allie Boy
Persico" (id. at 567). As discussed in greater detail in Part
II.A.2. below, Peggy testified that Cutolo had told her he
habitually met with Persico at 92nd Street and Shore Road (or

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"92nd and Shore") in Brooklyn, near an overpass where they could
avoid surveillance by the FBI (see id. at 567-68) .

In the early afternoon of May 26, Cutolo proceeded to
drive to Brooklyn; but because he was having problems with his
car, he drove it to a repair shop. At his request, the mechanic
accompanied Cutolo to 92nd Street and Shore Road and left him
there at about 3:15, taking the car back to the shop to be
repaired. (See id. at 214-18.) Cutolo said he would come for his
car around 5:30; he did not. (See id. at 215, 223.) Cutolo's
family and friends never saw or heard from him again.

On Wednesday nights, Cutolo normally went to his club,
where members of his crew would assemble and spend the evening.
If he could not be there, he normally called to let them know.
(See Tr. 1431.) On the evening of Wednesday May 26, his crew
became concerned when Cutolo neither came nor called. Cutolo's
son, William Cutolo Jr. ("Cutolo Jr. "), tried unsuccessfully to
reach him by telephone. (See id. at 1432.) Cutolo Jr. called his
mother, who became anxious (see id. at 568-69) ; she had tried to
reach Cutolo by telephone that afternoon, without success (see id.
at 293-94). Peggy Cutolo continued to try to call or page her
husband all the following day. (See, e.g., id. at 294-95, 569,
800-01.)

Early on the morning of May 27, Cutolo Jr., "practically
crying" (id. at 594), went to his parents' house and told his
mother, "nobody knows where daddy is. Nobody, nobody heard from
him. Nobody even beeped him. He never got called -- nobody called,

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he -- he wasn't there" (id. at 569) . Campanella and other members
of Cutolo's crew arrived at Cutolo's home in the late morning of
May 27. (See id. at 1294-95.) Peggy Cutolo was distraught;
Campanella himself was devastated because he knew "Bill ain't
never coming home" (id. at 1295; see id. at 372, 595 (Campanella
was "in tears, " "crying like a baby") ) .

DeRoss, according to Peggy Cutolo, had arrived at the
Cutolo home on May 27 at 5 or 6 a.m. -- barely eight hours after
Cutolo could be considered missing. (See Tr. 794, 570.) DeRoss
demanded "the records and the papers," which Peggy understood to
refer to the Colombo Family "books of all the money that was out"
in loansharked loans. (Id. at 569-70.) She testified, "There
wasn't a tear in his eye.
I knew at that point that my
husband was dead." (Id. at 570.)

DeRoss went to Cutolo's house again a day or two later,
and returned every few days thereafter (see id. at 595-96, 598),
insisting that there must be books and records. Barbara Jean
Cardinale, Cutolo's daughter, who had moved, with her husband and
two young daughters, into her parents' home in order to take care
of her mother after her father's disappearance (see id. at 323),
testified that DeRoss's tone in demanding the records implied that
"he was entitled to them" (id. at 300) . DeRoss searched Cutolo's
office, the bedrooms, and the attic, going through drawers,
cabinets, and bookshelves, looking behind and under furniture, and
knocking on walls to locate secret panels. (See id. at 300-01,
598-99.) Peggy Cutolo knew there were records, as well as money --

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$1.65 million, as it turned out, see Part II.D.1. below -- hidden in
a vent above the stove and in tubing in the attic, but she
repeatedly stonewalled DeRoss. (See, e.g., id. at 596, 649-50.)
In none of his conversations with the Cutolos after May 26
did DeRoss mention any effort to locate Cutolo. (See id. at 301.)
On one occasion, DeRoss suggested that Cutolo might have gone "on
the lam"; but Peggy Cutolo knew that if Cutolo had simply
absconded or gone into hiding, he would have "taken what was
there, " and he had taken nothing. (Id. at 597-98.)

Cardinale testified, over objection, that it was her
belief -- which she communicated to others (see id. at 305-07,
423-26) -- that Vincent DeMartino had "carried out the order to kill
[her] father" (id. at 307) . When word of her statements reached
DeRoss, he summoned her to meet with him and said "that I
shouldn't be talking like that. I have kids here and to think
about everybody else before I talk like that." (Id. at 308.) In
addition, as discussed in greater detail in Parts II.A.3. and B.2.
below, DeRoss thereafter -- in a recorded conversation -- warned
Cardinale, Cutolo Jr., and Peggy Cutolo against making statements
about what they believed had happened to Cutolo, especially
statements to "the law" (GX 67B at 6) . DeRoss told them, inter
alia, "Worry about your family" (id. at 8) ; "You got little, you

got kids here" (id. at 5). "You understand what I'm telling you
babe? You've been, you've been around this life." (Id. at 6.)
Cardinale, who had known since the age of 14 that her father was
connected to organized crime and had overheard many of Cutolo's

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organized-crime-related conversations (see Tr. 286, 288-89) ,
testified that she understood DeRoss to be threatening the safety
of her family (see id. at 324-28, 328-31) .

C. Evidence that Cutolo Was Dead

Because Cutolo's body had not been found at the time of
trial, the defendants argued that "there is no evidence that Billy
Cutolo's dead" (Tr. 111). To show that Persico and DeRoss knew
that Cutolo was in fact dead, and not merely on the lam, the
government introduced, inter alia, evidence that a crime family
would normally conduct an investigation into the death or
unexplained disappearance of a family member -- and especially of a
boss or underboss (see id. at 1747-48, 2894-95) -- and that there
was no semblance of any investigation by the Colombo Family into
the disappearance of Cutolo. Vitale, who in 1999 was the Bonanno
Family underboss, testified that no one from the Colombo Family
ever made inquiry of him or told him they were investigating
Cutolo's disappearance (see id. at 2894) ; and DiLeonardo, the
liaison from the Gambino Family, testified that he never heard
that the Colombo leaders were undertaking any such investigation
(see id. at 1828). Instead, DeRoss, a captain, had promptly gone
to his superior's house and demanded the crime family's books and
records. DeRoss had also proceeded to summon the members of
Cutolo's crew and interrogate them as to the current state of
family business (see, e.g., id. at 1295-99) -- a normal crime family
practice when a family member is known to have died (see id.

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at 2118-20). And DeRoss was shortly introduced as the new
underboss. (See, e.g., id. at 2107-08.)

In addition, the government presented evidence of
statements made by Persico and DeRoss to Colombo members or
associates, and to members of other crime families, indicating
that Persico and DeRoss had ordered and arranged Cutolo's death.
It also introduced a document found in Persico's apartment in
October 1999, which bore the notation that $50,000 was paid to
DeMartino one month after Cutolo's disappearance (see Tr. 3469;
GX 59), and evidence of statements about Cutolo's disappearance
made by DeMartino, who the government contended had been involved
in carrying out the order to kill Cutolo. There was testimony as
to several such statements.

About a week after Cutolo disappeared, DiLeonardo was to
have had a meeting with him; when DiLeonardo arrived for the
scheduled meeting, however, only Persico and DeRoss were there.
(See Tr. 1823-24.)
When DiLeonardo asked where Cutolo was,
DeRoss, with Persico standing behind him, said, " [Haven't you]
heard, he [has been] missing for a week.
[Y]ou will be

dealing with us now and everything will be eas [ier]." (Id.
at 1824-25.)
Both Persico and DeRoss seemed undisturbed, and
DiLeonardo understood DeRoss to be telling him that Cutolo was
dead. (See id. at 1825-26.)

Some two weeks after Cutolo's disappearance, Campanella
went to DeRoss's home to discuss DeRoss's treatment of a member of
Campanella's crew.
In the course of their conversation,

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Campanella asked DeRoss what else was going on. Campanella
testified that DeRoss "said Billy is gone" (id. at 1474) ; "Jackie
just told me the situation with Wild Bill, that Bill had to go, he
was getting too powerful. If . . . Allie Boy went away on a gun
charge, Bill would have took over the family" (id. at 1299). It
was known that Persico had been arrested a few months earlier on
gun possession charges and that he would be sent back to prison
within a year. (See, e.g., id. at 1476-77, 2029, 3668-69, 3921.)
Campanella testified that DeRoss said Cutolo "would have never
gave the family back to Allie Boy. And that Bill had to go. He
was too powerful." (Id. at 1299.)

A week after that, Campanella had a meeting with both
DeRoss and Persico. DeRoss, with Persico sitting beside him,
told Campanella, "we'll lie no more. Bill is gone. And he says
it would be family business as usual." (Id. at 1301-02.)
Despite the reference to business as usual, and despite the fact
loansharked money was normally viewed as belonging to the crime
family (see, e.g., id. at 1969-70), Campanella's $300,000 debt to
Cutolo was canceled: Campanella testified, DeRoss "told me that
the money that I owed Bill was to be squashed, and not to pay it
back" (id.).

In the latter part of 1999, Vitale, as the Bonanno
Family's underboss, and Joseph Massino, its boss, met with Persico
at Persico's request. (See Tr. 2865, 2895-2900.) At that
meeting, Persico spoke of Cutolo and said, "he can't take what's
not his." (Id. at 2867.) It would have been protocol, if Cutolo

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had been alive, for him as underboss to attend the meeting; when
Persico said "he can't take what's not his, " Vitale "believed Wild
Bill was dead." (Id. at 2869; see id. at 2866.) Vitale
testified, "we would never say 'I killed that individual' or 'I
chopped him up.' We would use a gesture or a motion or we knew
what he was talking about." (Id. at 2900.)

Floridia, who had been told some two weeks before Cutolo's
disappearance that Cutolo would soon be gone, received word that
Cutolo was dead from several Colombo members or associates.
First, Floridia testified that on the morning after Cutolo's
disappearance, Cerbone "told me, Listen, Billy's gone." (Id.
at 2295.) When Floridia asked what he meant, Cerbone said, "He's
gone, that's it. If anybody comes around, don't talk to nobody.
Don't give them all the answers. We'll get in touch with you."
(Id. at 2296.) Floridia testified that at that point "I know they
killed Billy." (Id.)

Floridia thereafter was "on record with" DeMartino rather
than Cutolo. (Tr. 2296.) DeMartino, with whom Floridia became
quite friendly and spent most of his days (see id. at 2298-99) - -
until DeMartino threatened to kill him (see id. at 2309) --
repeatedly made statements to Floridia about Cutolo's
disappearance. DeMartino had once been a good friend of Cutolo
(see id. at 305) but had gone to prison; when he was released in
or around 1997, Cutolo banned him from Cutolo's club, ostensibly
because DeMartino could be observed associating with known
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(see id. at 2276-77) ; Cutolo also told everyone in the family to
stay away from DeMartino (see id. at 2277). DeMartino was angered
because of that treatment -- and because Cutolo did not allow him to
earn money as part of Cutolo's crew and instead told him to get a
real job. (See id. at 305, 2277, 2297.) DeMartino told Floridia
that "the reason why Billy is not around is because, you know, he
didn't know how to treat his guys. He robbed them. He got them
playing against each other. And that's why he's gone." (Id.

at 2297.)
DeMartino said "he deserved" what he got, and

" [t]hey're never going to find him." (Id. ) Floridia understood
"he" and "him" to refer to Cutolo. (Id. at 2297-98.)

Finally, in 2004, when Floridia was in the Metropolitan
Detention Center in Brooklyn in connection with charges that he
and DeMartino had attempted to kill Campanella in 2001, Floridia
spent much of his time with DeRoss, who was then the only other
Colombo member or associate incarcerated at that facility. (See
id. at 2351-53.) DeRoss had originally been Cutolo's captain (see
id. at 2355-56) ; he had proposed Cutolo for membership in the
Colombo Family (see id. at 559) . DeRoss had then gone to prison
for some eight years; when he was released he thought the
relationship between himself and Cutolo should be the same, and he
had resented being Cutolo's subordinate. (See id. at 559-61,
2356-57.) Floridia testified that, in their prison chats, DeRoss
"would tell me he brought Billy into the family.
[A]nd he
25 took him out of the family." (Id. at 2356-57.)
Floridia

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understood that by "took [Cutolo] out, " DeRoss meant "he killed
him." (Id. at 2357; see, e.g., id. at 2224.)

The government suggested that DeMartino's statements to
Floridia that " [t]hey're never going to find" Cutolo adverted to a
disposal of Cutolo's body at sea. On May 26, Cutolo had been
dropped off at 92nd Street and Shore Road at 3:15 p.m. Telephone
records were introduced showing that 20 minutes later Persico
received a call from a pay telephone near DeMartino's place of
business (see Tr. 4221, 4224-25), and that less than an hour after
that, Persico placed a call to a local marina that kept no records
as to boats' comings and goings (see id. at 4220, 5374). In its
main and rebuttal summations, the government argued that that
marina would be a " [p]retty good place for Persico's minions to
take a dead body, " to "take it out to sea" (id. at 5561; see id.
at 5947 ("the perfect place to take Cutolo's dead body"); id.
at 5949 ("It's not a coincidence that while Cutolo is in the
process of being taken to be murdered, Persico's checking on the
marina.") ) .

### D. The Verdict and the Posttrial Motions

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The jury found Persico and DeRoss guilty on the three
counts indicated above, i.e., murder of Cutolo in aid of
racketeering, witness tampering with respect to Peggy Cutolo,
Cutolo Jr., and Cardinale (collectively "the Cutolos"), and
conspiracy to tamper with the testimony of the Cutolos. Persico
and DeRoss had also been charged in the indictment with one count

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of conspiring to murder Campanella in 2001 and with two counts of
firearms violations in connection with the attempt on Campanella's
life. The jury acquitted Persico and DeRoss on the latter three
charges .

After the jury returned its verdicts, Persico and DeRoss
moved pursuant to Fed. R. Crim. P. 29(c) for judgments of
acquittal, contending that the government had failed to present
sufficient evidence as to one or more elements of each of the
counts on which they were convicted. As to the murder count, they
argued that there was insufficient evidence to prove (a) that
Cutolo was in fact dead, (b) that Cutolo died as a result of
murder, or (c) if Cutolo was murdered, that Persico or DeRoss
murdered him or commanded, procured, or caused his murder. As to
the witness tampering counts, they argued that the evidence was
insufficient to show any intent to influence or interfere with any
potential testimony of any member of the Cutolo family in an
official proceeding.

In addition, Persico and DeRoss moved pursuant to Fed. R.
Crim. P. 33 for a new trial on various grounds. In their original
motion, pointing to testimony by Peggy Cutolo that she had
informed the government of finding the $1.65 million in cash
stashed away by Cutolo and had been allowed to keep the money,
defendants contended principally that either that testimony was
perjurious and the government had violated its obligations under
Giglio v. United States, 405 U.S. 150 (1972), or the government
had violated its obligations under Giglio and Brady v. Maryland,

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373 U.S. 83 (1963), by failing to disclose to the defense that
Peggy had been allowed to keep that money. In response, the
government submitted the affidavit of a former Assistant United
States Attorney ( "AUSA" ) , subsequently supported by documentation,
stating that the AUSA became aware in late 2000 or early 2001
that Peggy had told the FBI that she was in possession of a large
amount of cash found in the Cutolo home after Cutolo disappeared,
and that later in 2001 the government decided not to seek
forfeiture of, or taxes on, that money.

Before the district court had ruled on either set of
motions, Cutolo's body was found, buried in Farmingdale, New York.
The government informed the court of the discovery and reported
that the local medical examiner had "identified the cause of death
as homicide." (Letter from AUSA John Buretta et al. to Judge
Seybert dated October 7, 2008.) Persico and DeRoss immediately
augmented their new-trial motions, arguing that "this new evidence
directly contradicts the theory on which the government proceeded
at trial, " to wit, that "Persico had Cutolo's body put on a boat
and taken out to sea and that Mr. Persico made a telephone call to
a marina on the date of Cutolo's disappearance to arrange such
disposal." (Letter from Sarita Kedia [counsel for Persico] and
Robert LaRusso [counsel for DeRoss] to Judge Seybert dated October
7, 2008, at 1 (emphasis omitted) .)

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In a Memorandum and Order dated November 24, 2008
("District Court 2008 Order"), the district court denied both sets
of motions. With respect to the motions for acquittal, the court

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concluded that the evidence was sufficient, largely citing
evidence described above and in Parts II.B. and C. below. See
District Court 2008 Order at 5-10, 13-17.

The district court also denied defendants' new-trial
motions. It reasoned that although the discovery of Cutolo's body
contradicted the government's theory as to the disposal of
Cutolo's body, "the whereabouts of Cutolo, Sr. 's body [wa]s
immaterial, " id. at 25. The court pointed out that

Defendants' convictions were not based on the theory
that Persico or DeRoss pulled the trigger or that
either Defendant was even present at Cutolo's
murder. The newly discovered evidence regarding the
burial location does not, therefore, contradict the
Government's theory of the actual murder. The
Government presented more than sufficient evidence to
establish that the Defendants ordered Cutolo, Sr. 's
death.

Id.

Finally, the district court concluded that Persico and
DeRoss were not entitled to a new trial on the theory that Peggy
Cutolo had committed perjury or that the government had violated
its Brady obligation. It saw no basis for a finding of perjury,
given the former AUSA's affidavit indicating that Peggy's
testimony -- that she had disclosed to the government, and had been
allowed to keep, the $1.65 million -- was true. See id. at 29-32.
The court rejected the Brady branch of the motion principally on
the grounds (a) that although the government should have disclosed
those facts earlier, "there was no suppression" given that the
information was disclosed on the fourth day of an eight-week
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information, and (b) that defendants could not show prejudice, as
"there was virtually no probability that disclosure of this
information at an earlier time would have changed the outcome of
this case, " id. at 40.

### II. DISCUSSION

On appeal, Persico and DeRoss contend principally (a) that
the district court erred in allowing Peggy Cutolo to testify that
Cutolo had told her he routinely met with Persico at 92nd Street
and Shore Road; (b) that the evidence was insufficient to support
their convictions on the witness-tampering counts; (c) that they
should have been granted a new trial following the discovery of
Cutolo's body, which contradicted the government's theory that his
body had been disposed of at sea; and (d) that the government's
failure to disclose sooner that Peggy Cutolo had been allowed to
keep Cutolo's $1.65 million stash violated its Brady obligation.
Persico also contends that it was error to allow Peggy Cutolo to
17 testify that Cutolo said he was going to meet Persico on May 26;
DeRoss contends that the evidence was insufficient to support his
conviction on the murder count and that it was error to allow
Cardinale to testify about suspecting that DeMartino had carried
out the order to kill her father; and both defendants contend that
they were denied the constitutional right to compulsory process.

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We find all of defendants' arguments unpersuasive.

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A.
The Evidentiary Challenges

At trial, Peggy Cutolo was allowed to testify with respect
to conversations with Cutolo, in part, as follows:

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Q. When your husband left your home on May 26,
1999, was that the last time that you saw your
husband?

A. It was the last time I saw my husband.

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Q.
Did there come a time later that day that
you spoke with him on the telephone?

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A. Yes.

Q. Approximately what time was that?

A. About 12 o'clock.

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Q. And when you spoke with your husband on the
telephone, what was his mood?

A. Very abrupt and fast. He says my
appointment was canceled. I have to run back to
Brooklyn.

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Q. And did he tell you who he was going to
meet ?

A. The Kid.

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Q. And when your husband told you on May 26,
1999 that he was going to meet The Kid, who did you
understand him to mean?

A. Allie Boy Persico.

Q.
To your knowledge was there a particular
location that your husband would meet Alphonse
Persico?

A.
. 92nd Street and Shore Road.

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Q.
How do you know that?

A. My husband told me.

Q. What, if anything, did your husband describe
to you about why he would meet Alphonse Persico at
92nd Street and Shore Road?

A. So they wouldn't be seen, because he had to
go down like a couple of steps or stones, I don't
know, and there is an overpass where you can talk
where they wouldn't be seen.

Q. And when your husband told you that you
couldn't be seen from that spot, what did you
understand him to mean?

A. From the FBI.

(Tr. 566-68 (emphases added) .) Peggy testified that Cutolo had
told her many times that he met with Persico at 92nd and Shore;
that location, so far as she knew, was their habitual meeting
place. (See id. at 1057-60.)

Over defendants' objections, the district court allowed
this testimony on the grounds that Cutolo's statement that he was
going to Brooklyn to meet with Persico was admissible under Fed.
R. Evid. 803(3) as a statement of Cutolo's intent, and that
statements by Cutolo that he habitually met with Persico at 92nd
Street and Shore Road were admissible either as hearsay falling
within the exception for statements against penal interest, as
provided by Fed. R. Evid. 804 (b) (3), or as nonhearsay statements
in furtherance of a conspiracy, within the scope of Fed. R. Evid.
801 (d) (2) (E). The trial court's decision to admit evidence is

reviewed for abuse of discretion. See, e.g., United States v.
Quinones, 511 F.3d 289, 307, 311-12 (2d Cir. 2007) (Rule 803 (3) ),
cert. denied, 129 S. Ct. 252 (2008); United States v. Williams,
506 F.3d 151, 155 (2d Cir. 2007) (Rule 804 (b) (3) ), cert. denied,
552 U.S. 1223 (2008) .

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## 1. Peggy Cutolo's Testimony that Cutolo Said He Had To Go to Brooklyn To Meet The Kid

Rule 803 of the Federal Rules of Evidence provides in
pertinent part that

[a] statement of the declarant's then existing state
of mind, emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental
feeling, pain, and bodily health), but not including
a statement of memory or belief to prove the fact
remembered or believed unless it relates to the
execution, revocation, identification, or terms of
declarant's will

is "not excluded by the hearsay rule." Fed. R. Evid. 803 (3)
(emphases added) . This exception reflects the decision of the
Supreme Court in Mutual Life Insurance Co. v. Hillmon, 145 U.S.
285, 299-300 (1892) ("Hillmon"), which ruled admissible the
evidence that a missing person had stated his intention to go on a
trip with Hillmon because such a statement is

evidence that, shortly before the time when other
evidence tended to show that he went away, he had the
intention of going, and of going with Hillmon, which
made it more probable both that he did go and that he
went with Hillmon than if there had been no proof of
such intention.

Hillmon, 145 U.S. at 296. Thus, "[i]f relevant, " a declarant's
statement of his intent "may be introduced to prove that the
declarant thereafter acted in accordance with the stated intent. "
United States v. Best, 219 F.3d 192, 198 (2d Cir. 2000), cert.
denied, 532 U.S. 1007 (2001). The Advisory Committee Notes on the
adoption of Rule 803(3), however, state that "the Committee

intends that the Rule be construed to limit the doctrine of

Hillmon
so as to render statements of intent by a declarant

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admissible only to prove his future conduct, not the future
conduct of another person." Fed. R. Evid. 803 Advisory Committee
Note (1974) (emphases added) .

Persico relies on this limitation and on this Court's
decision in United States v. Delvecchio, 816 F.2d 859 (2d Cir.
1987) ("Delvecchio"), to argue that Cutolo's statement could not
properly be admitted against Persico "[a]bsent independent
evidence that Persico met Cutolo at the Shore Road location"
(Persico brief on appeal at 40 (emphasis added) ; see id. at 37,
38). His reliance is misplaced.

In Delvecchio, an agent testified that an informant had
told him the informant intended to meet with Delvecchio on a
certain date. When a meeting took place on that date, however,
the surveilling law enforcement agent could not determine whether
the person meeting with the informant was in fact Delvecchio. We
ruled that the statement of the informant, the declarant, that he
intended to meet with Delvecchio was not admissible to show that
Delvecchio in fact met with him because there was no "independent
evidence" that Delvecchio did so. 816 F.2d at 863.

Our holding in Delvecchio does not support Persico's
argument. In that case -- unlike the present case -- the declarant's
statement was offered "to prove [the nondeclarant's] attendance"
at the meeting. Id. at 862 (emphases added). The point we made
in Delvecchio was that, while a declarant's statement of
intention to do something with another person is admissible as
evidence that the declarant acted in accordance with his stated

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intention, it is not admissible under Rule 803(3) to show that the
third person also acted in accordance with an intention attributed
to him by the declarant. In contrast, Cutolo's statement in the
present case was in no way offered to show that in fact "Persico
met Cutolo at the Shore Road location" (Persico brief on appeal at
40) ; rather, that statement was properly admitted to show Cutolo's
intent to meet Persico there and to support an inference that
Cutolo acted in furtherance of that intent, from which the jury
could reasonably infer that Cutolo had communicated to Persico
that Cutolo would be at Shore Road expecting to meet Persico
there.

Cutolo's statement that he was going to Brooklyn on the
afternoon of May 26 to meet with Persico made it more probable
that Cutolo went to Brooklyn with the expectation of meeting there
with Persico, than if he had made no such statement. Under
803 (3), the jury could draw the inference that Cutolo acted in
furtherance of his stated intent to go meet Persico. From this
evidence and other evidence that Persico and Cutolo habitually
conducted their meetings under the Shore Road overpass where they
would not be observed, see Part II.A.2. below -- together with the
evidence that Cutolo went to that place that very afternoon -- the
jury could have inferred that Cutolo communicated to Persico (or
to Persico's people) that Cutolo would be there expecting to meet
Persico.

Such an inference would fit with the theory advanced by
the government that Persico, engaging in a Mafia practice of

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"luring" persons who were to be killed, had lured Cutolo to 92nd
and Shore so that Persico could arrange for his murder. John
Carillo, an investigator for the United States Attorney's Office
for the Southern District of New York, explained that the La Cosa
Nostra common practice of "luring" was meant "to make somebody
comfortable. You don't want them to know that they are going to
be killed, you want to make them as comfortable as possible so
that they don't see it coming" (Tr. 1146). Vitale, the former
Bonanno Family underboss, gave examples. He testified that

[t]here was a situation in May of '81 where three
captains were trying to take the family and Mr.
Rastelli [former boss of the Bonanno Family] and Mr.
Massino decided to kill the three captains so they
fabricated saying there was going to be an
administration meeting. When there is an
administration meeting, all the captains must attend.

When they walked in, they were shot to death,
all three of them.

(Id. at 2875; see id. at 2871.) Vitale also described how two
members of the Bonanno Family were killed for having allowed
"Donnie Brasco," an undercover FBI agent, to infiltrate the
family. One member was "lured to his death" by the boss and the
consigliere, who summoned him by stating that they wanted an
explanation; the other member was killed by his own cousins, who
were used "to lure him in," giving him a "false sense of hope. "
(Id. at 2877.) Vitale testified that all 11 of the murders in
which he had participated had involved "luring the victim[s] to
their death, lying to them about where they were going." (Tr.
2874.)

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The jury could infer that the reason DeRoss had asked
Campanella whether he would be willing to participate in killing
Cutolo was that Campanella, despite his $300,000 dispute with
Cutolo, was still friendly with Cutolo and his children, and
Cutolo would be off guard while Campanella lured him to his death.
The jury could also infer that after Campanella declined, Persico
decided simply to summon Cutolo to 92nd and Shore for an
ostensibly routine meeting on the afternoon of May 26. (See,
e.g., Persico brief on appeal at 39 (acknowledging that the
government's theory was that Cutolo was "lured" to 92nd and
Shore) .) Persico himself did not need to be there to ensure
Cutolo's arrival at or disappearance from that location.

Finally, there was considerable other evidence that
Persico had solicited Cutolo's attendance under the Shore Road
overpass on May 26. First, the telephone records showed that,
after many attempts to connect with each other, Cutolo and Persico
had spoken for about two minutes on the telephone on May 25.
Second, that night, Cutolo told Fox he could not spend May 26 with
her as planned because he had had to schedule an appointment for
the 26th, a matter about which he was unhappy; it could be
inferred that the only person who could force an unwanted schedule
change on Cutolo, the family's obdurate underboss, was Persico,
the boss. Third, on the afternoon of May 26, Cutolo in fact went
to 92nd Street and Shore Road in Brooklyn, obviously planning to
meet someone; he was dropped off there at 3:15 and said he would
pick up his car from the repair shop at 5:30. Finally, Peggy

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Cutolo permissibly testified, as discussed in Part II.A.2. below,
that 92nd and Shore was the habitual meeting place for Cutolo and
Persico.

In sum, under Rule 803(3), Cutolo's statement of his own
intent to go to Brooklyn to meet Persico was not excluded by the
hearsay rule. We see no abuse of the trial court's discretion in
admitting Cutolo's statement expressing his own intention to go to
Brooklyn to meet "The Kid. "

## 2. Cutolo's Statements that He Routinely Met Persico at 92nd Street and Shore Road

Rule 804 of the Federal Rules of Evidence, as it read at
the time of the trial in this case, provided, in pertinent part,
that "if the declarant is unavailable as a witness, "

[a] statement which . . . at the time of its making
. . . so far tended to subject the declarant to civil
or criminal liability . . . that a reasonable person
in the declarant's position would not have made the
statement unless believing it to be true

is "not excluded by the hearsay rule." Fed. R. Evid. 804 (b) (3)
(1974). "A statement will satisfy Rule 804 (b) (3) 's requirement
that it 'tended' to subject the declarant to criminal liability if
it would be probative in a trial against the declarant." United
States v. Garris, 616 F.2d 626, 630 (2d Cir.), cert. denied, 447
U.S. 926 (1980). "The Rule does not require that the declarant be
aware that the incriminating statement subjects him to immediate
criminal prosecution." United States v. Lang, 589 F.2d 92, 97 (2d
Cir. 1978) . Nor does the fact that the statement was made to the
declarant's spouse provide a basis for ruling that it is not

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within this hearsay exception. See, e.g., United States v.
Katsougrakis, 715 F.2d 769, 777-78 (2d Cir. 1983), cert. denied,
464 U.S. 1040 (1984) .

The statements by Cutolo that he routinely met with
Persico at 92nd and Shore, and that they met at that spot because
it enabled them to evade surveillance by the FBI, fit within this
exception. While those statements would not have been sufficient,
standing alone, to convict Cutolo of any crime, they would have
been probative in a criminal trial against Cutolo to show his
membership in the Colombo Crime Family and to support an
inference that criminal messages were passed when he and Persico
met at that spot. We see no abuse of discretion in the district
court's ruling that, on this basis, Peggy Cutolo's testimony that
Cutolo had told her many times that he met Persico at 92nd and
Shore was not excluded by the hearsay rule. Accordingly, we need
not address the court's alternative ruling that the statements
were nonhearsay as statements in furtherance of a conspiracy.

## 3. The Testimony of Cardinale

Cardinale was allowed to testify at trial that, after
Cutolo's disappearance, she told Colombo associate Michael Spataro
and others that she believed DeMartino had carried out the order
to kill her father. DeRoss argued that this testimony should be
excluded both on the ground that it was based solely on hearsay
statements by Cardinale herself and on the ground that it would be
unduly prejudicial, see Fed. R. Evid. 802, 403. On appeal, he

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pursues his Rule 403 objection, arguing that the government used
Cardinale's belief to argue, in summation, that DeMartino had in
fact carried out orders by Persico and DeRoss to kill Cutolo. We
see no error in the admission of this testimony.

Defendants were charged not only with murder in aid of
racketeering, but also with tampering with, and conspiring to
tamper with, the testimony of Cardinale, Peggy Cutolo, and Cutolo
Jr.
The government sought to prove that word of Cardinale's
belief reached DeRoss, and that that was part of the impetus for
DeRoss's threatening to harm Cardinale's family if she or Peggy or
Cutolo Jr. made such statements to law enforcement officials, see
Part II.B.2. below. The district court allowed the testimony on
the ground that Cardinale's testimony as to her statements was
nonhearsay under Fed. R. Evid. 801, as it was offered simply for
"the fact that she made these accusations" and was admissible
because " [t]he rest of the testimony doesn't make any particular
sense unless you have the chronology [of] how it occurred that Mr.
DeRoss became aware of it" (Tr. 280; see id. at 281). The court
concluded that the probative value of the evidence outweighed its
potential for unfair prejudice.

After Cardinale testified that she had told Spataro she
thought DeMartino carried out the order to kill her father, the
district court gave the jury a limiting instruction. The court
instructed that " [t]his evidence may not be considered as truth of
the matter asserted. It is being used solely as background
evidence, background information, " and that the evidence, "at

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th [at] point in time, " was being "admi [tted] only . . . against
DeRoss, and not Alphonse Persico. The statement can be
considered against Alphonse Persico if and when the government
establishes that a conspiracy existed." (Id. at 307.)

We see no error in the court's ruling or its handling of
this evidence.

Nor are we persuaded that undue prejudice was created
thereafter through arguments by the government "explain [ing] for
the first time during summations" (DeRoss brief on appeal at 57)
the theory that DeMartino had actually performed the killing.
There was an evidentiary basis for such a theory, even if it later
turned out -- as learned after trial -- that DeMartino was involved
only in the planning of the murder and did not himself pull the
trigger. There was evidence, discussed in Parts I.A. and C.
above, that DeMartino harbored a grudge against Cutolo. And there
was testimony from Floridia that DeMartino was inordinately happy
that Cutolo was gone, stating that Cutolo had gotten what "he
deserved" (Tr. 2297) ; documentary evidence that a month after
Cutolo was murdered Persico paid DeMartino $50,000 (see GX 59) ;
and evidence that while DeMartino "from the beginning" had been
feared, "it was even more so" after Cutolo's disappearance (Tr.
2299) . In any event, what was important for the charges against
Persico and DeRoss was proof that they had ordered and arranged
the murder, not the identification of precisely which of the
Colombo family members had carried out their instructions. And,

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as shown in Parts I.A., B., and C. above and discussed in Parts
II.B.1. and II.C. below, evidence as to the former was abundant.

B. The Sufficiency Challenges

On appeal, defendants pursue arguments made in their Rule
29 motions for acquittal in the district court. DeRoss contends
that the evidence was insufficient to support his conviction of
murder in aid of racketeering. Both Persico and DeRoss contend
that the evidence was insufficient to support their convictions on
the two witness tampering counts. We find no merit in any of
their contentions.

Under Rule 29, "the court on the defendant's motion must
enter a judgment of acquittal of any offense for which the
evidence is insufficient to sustain a conviction." Fed. R. Crim.
P. 29 (a). The test for sufficiency is whether, as to a given
count, a "rational trier of fact could have found the defendant
guilty beyond a reasonable doubt." United States v. Jackson, 335
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must make that determination with the evidence
against a particular defendant viewed in a light that
is most favorable to the government, and with all
reasonable inferences resolved in favor of the
government. The jury may reach its verdict based
upon inferences drawn from circumstantial evidence,
and the evidence must be viewed in conjunction, not
in isolation.

United States v. Eppolito, 543 F.3d 25, 45 (2d Cir. 2008)
27 ( "Eppolito") (internal quotation marks, brackets, and ellipses
28
omitted) , cert. denied, 129 S. Ct. 1027 (2009) .

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"Our mandate on appeal reflects the same standard, as we
review the grant or denial of a judgment of acquittal under Rule
29 de novo, " id., considering the evidence as a whole rather than
piecemeal, see, e.g., id .; United States v. Guadagna, 183 F.3d
122, 130 (2d Cir. 1999), and viewing the evidence in the light
most favorable to the government, see, e.g., Eppolito, 543 F.3d
at 45; United States v. Pizzonia, 577 F.3d 455, 462 (2d Cir.
2009), cert. denied, 130 S. Ct. 1088 (2010) .

Viewing the evidence in the light most favorable
to the government means "'crediting every inference
that the jury might have drawn in favor of the
government, '" United States v. Temple, 447 F.3d
at 136-37 (quoting United States v. Walker, 191 F.3d
326, 333 (2d Cir.1999) ), and recognizing that the
government's evidence need not exclude every other
possible hypothesis, see, e.g., United States v.
Espaillet, 380 F.3d [713,] 718 [(2d Cir. 2004) ] ;
United States v. Martinez, 54 F.3d 1040, 1043 (2d
Cir.), cert. denied, 516 U.S. 1001 (1995); United
States v. Ragosta, 970 F.2d 1085, 1090 (2d Cir.),
cert. denied, 506 U.S. 1002 (1992) . As "it is the
task of the jury, not the court, to choose among
competing inferences that can be drawn from the
evidence, " United States v. Jackson, 335 F.3d at 180,
when there are such competing inferences, we must
defer "to the jury's choice, " United States v.
Morrison, 153 F.3d 34, 49 (2d Cir.1998) .

Eppolito, 543 F.3d at 45. Where there are conflicts in the
testimony, we must defer to the jury's resolution of the weight of
the evidence and the credibility of the witnesses. See, e. g.,
United States v. Coté, 544 F.3d 88, 99 (2d Cir. 2008) (" [t]he
court must give full play to the right of the jury to determine
credibility") ; United States v. Morrison, 153 F.3d at 49; United
States v. Stratton, 779 F.2d 820, 828 (2d Cir. 1985), cert.
denied, 476 U.S. 1162 (1986). The conviction must be upheld if

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"any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). These
standards apply whether the evidence being reviewed is direct or
circumstantial. See Glasser v. United States, 315 U.S. 60, 80
(1942) .

With these principles in mind, we turn to defendants'
various sufficiency challenges.

## 1. DeRoss's Challenge to the Murder Count

Count One charged defendants with murder in aid of
racketeering, or aiding and abetting such a murder, in violation
of 18 U.S.C. §§ 1959 (a) (1) and 2. Section 2 provides, in
pertinent part, that whoever "aids, abets,
commands, induces
or procures" the commission of a federal offense, or "willfully
causes an act to be done which if directly performed by him"
would be a federal offense, "is punishable as a principal."
18 U.S.C. § 2 (a) and (b). Section 1959 (a) provides, in pertinent
part, that

[w] hoever,
for the purpose of . . .
maintaining or increasing position in an enterprise
engaged in racketeering activity, murders . . . any
individual in violation of the laws of any State or
the United States, or attempts or conspires so to do,
shall be punished --

(1) for murder, by death or life imprisonment,
or a fine under this title, or both

18 U.S.C. § 1959 (a) (1). To convict a defendant of such a murder,
the government must prove beyond a reasonable doubt (1) that the

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organization was a RICO enterprise, (2) that the enterprise was
engaged in racketeering activity as defined in RICO, (3) that the
defendant in question had a position in the enterprise, (4) that
that defendant committed or aided and abetted the murder, and (5)
that his general purpose in so doing was to maintain or increase
his position in the enterprise. See generally United States v.
Rahman, 189 F.3d 88, 126 (2d Cir.), cert. denied, 528 U.S. 982
(1999) ; United States v. Concepcion, 983 F.2d 369, 381 (2d Cir.
1992) , cert. denied, 510 U.S. 856 (1993). "Liability for aiding
and abetting can be established by showing
that the
defendant 'consciously assisted the commission of the specific
crime in some active way.'" United States v. Ogando, 547 F.3d
102, 107 (2d Cir. 2008) (quoting United States v. Medina, 32 F.3d
40, 45 (2d Cir. 1994) ) .

DeRoss challenges the sufficiency of the evidence only as
to the fourth element of the murder-in-aid-of-racketeering count,
contending that there was no evidence that he aided, abetted, or
committed any voluntary act to bring about the disappearance or
murder of Cutolo. (See DeRoss brief on appeal at 42.) This
contention is meritless. As set out in detail in Parts I.A., B.,
and C. above, the evidence against DeRoss included the following:

(1) DeRoss harbored anger at Cutolo resulting from
their reversal of positions in the Colombo Family hierarchy,
with DeRoss originally having been Cutolo's captain, and
Cutolo becoming the family's underboss and superior to
DeRoss in 1998;

(2) in mid-April 1999, DeRoss asked Campanella, with
seriousness, how Campanella would feel about killing Cutolo;

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(3) in mid-May 1999, DeRoss met with Floridia and, with
seriousness, told him not to worry about his troubles with
Cutolo because " [t]hings are going to change" ;

(4) on the afternoon of May 26, 1999, Cutolo
disappeared;

(5) at 5 a.m. on May 27, barely eight hours after
Cutolo could be considered missing, DeRoss arrived at
Cutolo's home demanding -- in tones implying that he had the
right to them -- the books and records maintained by Cutolo,
who was above him in the Colombo Family hierarchy;

(6) one week after Cutolo's disappearance, DeRoss, with
Persico standing right behind him, told DiLeonardo, the
Gambino Crime Family captain who was the liaison with the
Colombo Family, that Cutolo had been missing for a week and
that DiLeonardo would be dealing with Persico and DeRoss
instead of Cutolo from then on, thereby informing DiLeonardo
in Mafia-speak that Cutolo was dead;

(7) two weeks after Cutolo's disappearance, DeRoss told
Campanella that Cutolo was gone because he was "getting too
powerful"; that if Persico went back to jail as expected,
"Bill would have took over the family" and "would have never
gave the family back to Allie Boy"; that, therefore, "Bill
had to go" ;

(8) three weeks after Cutolo's disappearance, having
unsuccessfully solicited Campanella's help in killing
Cutolo, DeRoss, with Persico beside him, said "Bill is gone"
and attempted to buy Campanella's allegiance and silence by
canceling Campanella's $300,000 debt;

(9) shortly after Cutolo disappeared, DeRoss became the
Colombo Family's new underboss; and

(10) in 2004, when DeRoss and Floridia were
incarcerated and spending their days together in the
Metropolitan Detention Center, DeRoss admitted his
orchestration of Cutolo's murder, saying "he brought Billy
into the family.
[A]nd he took him out of the
family. "

In sum, the evidence easily permitted the jury to find
that DeRoss attempted to get Campanella to help kill Cutolo; that
shortly before Cutolo disappeared, DeRoss reassured Floridia that
Cutolo would soon be dead; that DeRoss knew Cutolo was dead on May

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26, allowing DeRoss with impunity to invade Cutolo's home
at 5 a.m. on May 27 demanding the Colombo Family books and
records; that DeRoss told others that Cutolo was dead and said
that Persico had needed to have Cutolo killed; and that when
DeRoss was in jail with Floridia, DeRoss said he had killed
Cutolo. The evidence was ample to permit the jury to find that
DeRoss participated in the planning and orchestration of Cutolo's
murder.

### 2. The Witness Tampering Counts

Counts Six and Five charged Persico and DeRoss with
witness tampering and conspiracy to commit witness tampering,
respectively, in violation of 18 U.S.C. §§ 1512 (b) (1) & (b) (2) (A)
and 18 U.S.C. § 371, in connection with DeRoss's meeting with
Peggy Cutolo, Cardinale, and Cutolo Jr. to dissuade them from
testifying to what they really believed had happened to Cutolo.
Section 1512, as it read at the time of trial, made it unlawful,
in pertinent part, to

knowingly use[] intimidation or . . . threaten []
another person, or attempt [] to do so,
with intent to --

(1) influence . . . or prevent the
testimony of any person in an official
proceeding; [or]

(2) cause or induce any person to --

(A) withhold testimony . . . from an
official proceeding

18 U.S.C. §§ 1512 (b) (1) & (b) (2) (A) (2000). In order to establish
a violation of § 1512, the government must prove a "nexus" between

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the defendant's conduct and a particular official proceeding.
Arthur Andersen LLP v. United States, 544 U.S. 696, 707-08 (2005) ;
see, e.g., United States v. Kaplan, 490 F.3d 110, 125 (2d Cir.
2007) ("persuader must believe that his actions are likely to
affect a particular, existing or foreseeable proceeding") ; cf.
United States v. Aquilar, 515 U.S. 593, 598-600 (1995) (finding
"nexus" element in 18 U.S.C. § 1503, which prohibits, inter alia,
obstructing or influencing "the due administration of justice, " or
"endeavor [ing] " to do so, "corruptly or by threats or force") .
The "official proceeding" referred to in § 1512 "need not be
pending or about to be instituted at the time of the offense, "
18 U.S.C. § 1512 (e) (1) (2000), and "the testimony . . . need not
be admissible in evidence, " id. § 1512 (e) (2) (2000) .

Persico and DeRoss contend that there was no evidence that
DeRoss exerted pressure on Cutolo family members to lie or that he
intended to interfere with any witness's testimony in an official
proceeding. Persico also contends that there was insufficient
evidence to show that he was involved in any of the conduct
attributed to DeRoss. We are unpersuaded.

In October 1999, Persico was arrested for violation of his
bail conditions (see Tr. 3946, 3949), and it is undisputed that
" [a]s early as October of '99" the government "made it clear they
were looking at Mr. Persico as a target" of its investigation into
Cutolo's disappearance (id. at 3684, 3676-77 (testimony and
statement of Persico's attorneys) ). Thus, it was plainly
foreseeable that there would be a grand jury proceeding at which

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Peggy Cutolo, Cardinale, and/or Cutolo Jr. might be called to
testify. And indeed, it was foreseen, for in March 2000, DeRoss
met with the Cutolos for a conversation (which Cutolo Jr. secretly
tape-recorded) and told the Cutolos that the government "may be
trying to build a case" against Persico (GX 67B at 7). Cardinale
understood that they were talking about a future "case against
Allie for [her] father's disappearance." (Tr. 327-28.) In that
conversation, it was clear that DeRoss was meeting with the
Cutolos on behalf of Persico; DeRoss said he had come to tell them
that "the other fella would like to send an investigator" to talk
to them (GX 67B at 4), and he stated that "the investigator is
Allie's investigator" (id. at 6). When Peggy Cutolo expressed her
reluctance, and Cutolo Jr. said he did not want his mother to have
to reopen the emotional wounds, DeRoss indicated that Persico
would not be happy if they refused to talk to the investigator.
(See GX 67B at 4 ("if you tell the [investigator] no, people may
get bad feelings") ; id. at 6 ("I don't know how personally he'll
react.") ; id. at 8 ("I don't want him to get any idea. ") .) And
after having secured a commitment that the Cutolos would speak
with Persico's investigator, DeRoss said, "I'll get back to him

today. And uh, tell him you'll be too happy to help. That's my
words to him." (Id. at 15.) There can be no serious question
that the evidence was sufficient to permit the jury to infer that
DeRoss was speaking to the Cutolos on orders from Persico.

In his attempts to persuade the Cutolos to speak to
Persico's investigator, DeRoss also indicated that the Cutolos

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should not speak candidly in any government investigation.
For
example, when Cardinale envisioned to DeRoss the possibility that
her mother might be overcome by emotion and let her "true
feelings" come out, DeRoss's response was that there would be no
harm if that happened only in the meeting with the investigator:
"the investigator is Allie's investigator, she's not the law. "
(GX 67B at 6 (emphasis added) .) Thus, when DeRoss told the
Cutolos "Don't show your feelings. What you got in your heart,
what you got in your stomach" (GX 67B at 5 (emphasis added) ),
those instructions were easily understood by the Cutolos to mean
that if they "talk [ed] to the police about what [they] actually
thought, that could hurt [Allie]" (Tr. 326). In urging them to
cooperate with Persico, DeRoss pointed out that he, DeRoss, was
"in a position" to prevent Peggy Cutolo from getting "hurt"
(GX 67B at 6; see Tr. 326-27) -- a statement that plainly implied to
the Cutolos that he was also in a position to do precisely the
opposite. And in addition to mentioning the possibility of harm
to Peggy, DeRoss also pointed to that prospect for Cutolo Jr. (see
GX 67B at 5; Tr. 324-25), for Cardinale's husband (see GX 67B
at 5-6; Tr. 325-26), and for Cardinale's young daughters (see
GX 67B at 5 ("You got little, you got kids here") ). "Worry about
your family, " he said (id. at 8) ; "You understand what I'm telling
you babe? You've been, you've been around this life" (id. at 6) .

The Cutolos did understand. Peggy Cutolo testified that
she knew that DeRoss was explicitly threatening her and her
children and that he was telling her to " [k]eep [her] mouth shut."

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(Tr. 632.) And Cardinale testified that she believed that if the
Cutolos told anyone "what we really felt, that it would be taken
out on my husband or my brother, even my kids." (Id. at 331.)

In sum, the evidence was sufficient for the jury to find
that Persico had been informed by the government that he was the
target of an investigation into the disappearance of Cutolo; that
a grand jury proceeding on that matter was thus foreseeable to
Persico and DeRoss; that Persico sent DeRoss to visit the Cutolos;
that DeRoss told the Cutolos that the government might be trying
to build a case against Persico; that DeRoss told the Cutolos not
to tell anyone acting for the government what they really believed
had happened to Cutolo; and that DeRoss threatened harm to Peggy
Cutolo, Cutolo Jr., Cardinale, Cardinale's husband, and their
young daughters if the Cutolos spoke candidly to anyone conducting
an official investigation. While DeRoss did from time to time
utter the words " [t]ell the truth" (e.g., GX 67B at 11), his other
recorded statements and the testimony of Peggy Cutolo and
Cardinale provided sufficient evidence for the jury to conclude
that the Cutolos reasonably understood DeRoss to mean that,
insofar as any government inquiry was concerned, they should not
tell the truth.

C. The New-Trial Motions Based on the Discovery of Cutolo's Body
Persico and DeRoss pursue their contention that they are
entitled to a new trial based on the government's posttrial
discovery of Cutolo's buried body, and its new information that

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DeMartino, while involved in planning Cutolo's murder, was not the
actual shooter. Persico argues that the government's case against
him was weak, shored up only by the summation "theory that
Vincent 'Chickie' DeMartino had killed Cutolo at Persico's behest
and dumped Cutolo's body in the ocean." (Persico brief on appeal
at 24; see id. at 25-26.) DeRoss argues that " [h]ad the jury been
informed that DeMartino was not the shooter and that the evidence
demonstrated the involvement of three other individuals from
another Colombo crew, the jury would have certainly acquitted
DeRoss because the government's entire theory was that DeRoss
carried out the order by directing DeMartino to murder Cutolo."
(DeRoss brief on appeal at 38.) We reject all of defendants'
contentions.

The Federal Rules of Criminal Procedure allow the district
court, upon the defendant's motion, to "grant a new trial if the
interest of justice so requires." Fed. R. Crim. P. 33 (a). Our
standard for the grant of such a motion requires that

(1) the evidence be newly discovered after trial; (2)
facts are alleged from which the court can infer due
diligence on the part of the movant to obtain the
evidence; (3) the evidence is material; (4) the
evidence is not merely cumulative or impeaching; and
(5) the evidence would likely result in an acquittal.

United States v. Owen, 500 F.3d 83, 87-88 (2d Cir. 2007) ( "Owen") ,
cert. denied, 552 U.S. 1237 (2008). "The 'ultimate test' is
' whether letting a guilty verdict stand would be a manifest
injustice
There must be a real concern that an innocent
United States v. Canova, 412

person may have been convicted. '"

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F.3d 331, 349 (2d Cir. 2005) (quoting United States v. Ferguson,
246 F.3d 129, 134 (2d Cir. 2001) ) .

"The motion is not favored, " United States v. Gilbert, 668
F.2d 94, 96 (2d Cir. 1981), cert. denied, 456 U.S. 946 (1982), and
the denial of such a motion will not be reversed except for abuse
of discretion, see, e.g., United States v. Mayo, 14 F. 3d 128, 132
(2d Cir. 1994) ; United States v. Siddiqi, 959 F.2d 1167, 1173 (2d
Cir. 1992) ; United States v. Parker, 903 F.2d 91, 103 (2d Cir.),
cert. denied, 498 U.S. 872 (1990) .

The district court denied defendants' discovery-of-the-
body new-trial motions principally on the ground that they failed
to establish the third and fifth requirements of the Owen
standard, i.e., that the new evidence be material and that it be
likely to result in an acquittal. The court noted that the
government had not contended that either Persico or DeRoss
actually pulled the trigger or that either was even present at
Cutolo's murder, and it saw no contradiction between the
government's theory of the murder, i.e., that Persico and DeRoss
ordered and arranged for others to execute Cutolo, and the
discovery of Cutolo's body, which the coroner had determined
evidenced a homicide. See District Court 2008 Order at 25. As
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reconsideration, "the shooter's identity and the burial site
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We agree. Although Persico and DeRoss argue that the
discovery of Cutolo's body undercut the government's "entire
theory" at trial (e.g., DeRoss brief on appeal at 38), that
discovery in fact undercut only the theory advanced in summations
as to how Cutolo's dead body had been concealed. Nothing about
the discovery of the body undercuts the government's contention
that the murder was ordered and arranged by Persico and DeRoss.

Persico, although not challenging the legal sufficiency of
the evidence to support the jury's verdict against him on the
murder count, contends that the discovery of Cutolo's body
warranted the granting of his motion for a new trial because the
government's case against him was unpersuasive without the
suggestion that he had called the marina to arrange for Cutolo's
burial at sea. Persico argues that the case against him was
"stitched together" and "quite thin, " "prov[ing] little more than
that he may have learned that Cutolo was dead and apparently was
not saddened by the news." (Persico brief on appeal at 20-21.)
Persico's characterizations do not do justice to the record. As
described in Parts I.A., B., and C. above, the record included
evidence that :

(1) in the Colombo Family war centering on whether the
new boss would be Orena or Persico, in which a dozen people
were killed, Cutolo had supported Orena;

(2) Persico was aware in 1999 that Cutolo himself
wanted to become the family's boss -- and might try to kill
Persico to achieve that goal -- giving Persico motive to kill
Cutolo;

(3) Persico needed to have Cutolo killed because
Persico was about to go to jail on the gun charge and Cutolo

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had gotten so powerful that he would have taken, and refused
to yield, control of the family;

(4) Cutolo expected to meet Persico on May 26 at 92nd
and Shore, but Persico never showed up;

(5) Cutolo disappeared from 92nd and Shore on May 26
and was killed;

(6) after May 26, Persico never tried to reach Cutolo
again;

(7) an underboss cannot be killed without permission
from the family's boss;

(8) after underboss Cutolo's disappearance, Persico
launched no investigation in search of an explanation;

(9) Persico was present for and silently endorsed
DeRoss's statements to DiLeonardo and Campanella shortly
after May 26 indicating that Cutolo had been killed; and

(10) Persico himself told the boss and underboss of the
Bonanno Crime Family that Cutolo was gone because he had
tried to "take what [ wa]s not his," i.e., control of the
Colombo Crime Family.

In sum, there was solid evidence, taken as a whole, that
Persico had a strong motive to have Cutolo killed; that Persico
made or endorsed statements telling important members of other
crime families that Cutolo had been killed; and that Persico lured
Cutolo to a secluded location from which he could be kidnaped to
be killed. In light of this evidence and the evidence against
DeRoss discussed in Part II.B.1. above, we see no likelihood that
innocent men have been convicted, no injustice in the guilty
verdicts, and no error or abuse of discretion in the district
court's conclusion that the discovery of Cutolo's body did not
warrant the granting of a new trial.

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D. Other Arguments in Support of a New Trial

In support of their arguments for a new trial, Persico and
DeRoss advance other contentions that do not require extended
discussion. Principally, they contend that the government
violated its Brady obligations, and that they were denied the
right to compulsory process by the high cost of producing a
witness they wished to have testify for the defense.

1\. The Alleged Brady Violation

At trial, Cardinale testified on cross-examination that
after her father's disappearance, her mother found " [a] little
over a million dollars" hidden in the vents of their home and that
that money was not turned over to the government. (Tr. 410.)
Peggy Cutolo testified that she had found $1.65 million, that she
had disclosed that fact to the government, and that the government
had not required her to forfeit the money or to pay taxes on it.
(See id. at 624, 696-98.) Defendants contend that the government
violated its Brady obligation to disclose this impeachment
evidence because it made no "formal disclosure" of these facts
until after trial. (Persico brief on appeal at 44.) They contend
that without a formal disclosure, they "had every reason to
believe that [Peggy's] testimony was false" -- and that the
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corroborative testimony of an FBI agent was also false (id. ) -- and
hence they were deprived of the opportunity to argue to the jury
that the government's allowing Peggy to keep $1.65 million made
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all of her testimony unworthy of belief.

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It is well established that the government has an
obligation under the Due Process Clause to disclose to the
defendant evidence that is material. See, e.g., Brady, 373 U.S.
at 87. Evidence is material, however, only "if there is a
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different. " Strickler_v. Greene, 527 U.S. 263, 280 (1999)
(internal quotation marks omitted) ; Kyles v. Whitley, 514 U.S.
419, 433 (1995) (internal quotation marks omitted) .

These principles apply both to information going to the
heart of the defendant's guilt or innocence and to information
that might well alter the jury's evaluation of the credibility of
a significant prosecution witness. See, e.g., Giglio, 405 U.S.
at 154; Napue v. Illinois, 360 U.S. 264, 269 (1959). However,
where the undisclosed evidence merely furnishes an additional
basis on which to challenge a witness whose credibility has
already been shown to be questionable or is subject to extensive
attack by reason of other evidence, the undisclosed evidence may
properly be viewed as cumulative, and hence not material, and not
worthy of a new trial. See, e.g., United States v. Avellino, 136
F. 3d 249, 257, reh'g denied, 136 F.3d 262 (2d Cir. 1998) ; United
States v. Helmsley, 985 F.2d 1202, 1210 (2d Cir. 1993); United
States v. Petrillo, 821 F.2d 85, 90 (2d Cir. 1987) .

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In sum, undisclosed impeachment evidence is not material
in the Brady sense when, although "possibly useful to the

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defense, " it is "not likely to have changed the verdict." Giglio,
405 U.S. at 154 (internal quotation marks omitted) .

The district court, in rejecting defendants' posttrial
motions for a new trial on the ground of the alleged Brady
violation, found, inter alia, that, for several reasons, the
timing of the disclosure did not cause defendants any prejudice.
The court noted that the facts were disclosed on the fourth day of
a trial that continued for some six or seven weeks thereafter, and
it concluded that "the Defendants had more than ample time to
assimilate the evidence and to effectively use it at trial."
District Court 2008 Order at 40. We agree.

Cardinale was the second of the government's 31 trial
witnesses (the first being the mechanic who left Cutolo at 92nd
and Shore on May 26) ; Cardinale's revelations as to the large sum
of money found and retained came during her cross-examination by
the defense. The third witness at trial was Peggy Cutolo, who had
actually found and been allowed to keep the money. The government
brought out during its direct examination of Peggy that she had
found $1.65 million, that she had disclosed that fact to the
government, and that she had been allowed to keep the money. (See

Tr. 624.)
Thus, the government affirmatively elicited from
Peggy the information that defendants wish they had used in
arguments attacking her credibility. As the district court noted,
the relevant testimony was given early in the trial. After that
point, it cannot be said that the Brady material was undisclosed;
and the defense had another six weeks to use it. Defendants'

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complaint that there was no "formal disclosure" until after the
trial provides no basis for a new trial.

Later in the trial, FBI Special Agent Gary J. Pontecorvo
was called as a witness for the defense; he testified that the
Cutolos had advised him in early 2001 that they were in possession
of some $1.6 million in cash, which Pontecorvo assumed had been
amassed from Cutolo's illegal activities. (See id. at 5292-94.)
Pontecorvo testified that, after being so advised, he promptly
informed the United States Attorney's Office ("USAO") ; thereafter
Peggy Cutolo or her attorney dealt directly with the USAO with
regard to those funds, to determine whether some or all had to be
forfeited or whether she would have to pay taxes on it (see id.
at 5294-96) . Although defendants argue here that " [t]hroughout
the trial, the defense labored under the misimpression that Mrs.
Cutolo and Agent Pontecorvo were testifying falsely" (Persico
brief on appeal at 45), they made that assumption at their peril.
Nothing in the Constitution gives defendants the right to assume
that the government has deliberately elicited or countenanced
false testimony and then to seek a new trial on the basis that
they did not know the testimony was true.

The district court also concluded that the evidence that
Peggy Cutolo was allowed to keep the $1.65 million was
"immaterial," given that defendants possessed -- and used -- other
grounds to attack her credibility. Those grounds included Peggy's
manifest antipathy toward Persico and DeRoss because she believed
they had ordered her husband's death, and her internally

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inconsistent testimony as to precisely where she found the money.
Indeed, while Persico argues that belated disclosure of the
information that Peggy found and was allowed to keep $1.65 million
"significantly impaired defense counsel's ability to impeach the
credibility of the key prosecution witness" (Persico brief on
appeal at 48), he also acknowledges that even without impeachment
on the basis of the retained money, "Mrs. Cutolo was anything but
a credible witness. As the trial court noted, her testimony
varied 'from one day to the next . . . on very critical things'"
(id. at 23 (quoting Tr. 5488) ) .

The district court further noted that "the testimony of
Peggy Cutolo and Cardinale was only a small portion of the
evidence that led to Defendants' convictions, " and it concluded
that the evidence as to the money Peggy found and was allowed to
keep "most certainly would not have damaged the credibility of the
virtual parade of other witnesses that testified against the
Defendants, nor invalidated the circumstantial evidence on which
the jury most certainly relied." District Court 2008 Order
at 40-41. The court concluded that "there was virtually no
probability that disclosure of this information at an earlier time
would have changed the outcome of this case." Id. at 40.

Our review of the record persuades us that the conclusions
of the district court were correct and that defendants'
contentions that they should be granted a new trial on account of
the alleged Brady violation were properly rejected.

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#### 2. Persico's Request for the Production of Massino

After Vitale testified that Persico told him and Massino,
in discussing Cutolo in the latter part of 1999, that "a person
can't take what's not his" (Tr. 2866), thereby informing them that
Cutolo had been killed because of his desire to usurp Persico's
position as boss of the Colombo Family, Persico informed the
government that he wished to call Massino as a witness. Massino
was then in the Witness Security Program, and Persico was informed
that the cost of transporting Massino -- which Persico was expected
to pay -- would be some $40, 000 (see Persico brief on appeal at 48) .
In light of the expense, Persico's counsel suggested that she be
allowed to question Massino by video conferencing, a suggestion
that the government rejected for reasons of security; after
objecting that the expense was prohibitive, Persico decided not to
call Massino. (See Tr. 3739, 3915-16, 4281.) On appeal, Persico,
joined by DeRoss, contends that the requirement that Persico pay
"an exorbitant price to bring a witness to court (a price he
declined to pay) unduly burdened his compulsory process rights."
(Persico brief on appeal at 48.) Given the present record, we
disagree.

A defendant in a criminal trial has a Sixth Amendment
"right . . . to have compulsory process for obtaining witnesses in
his favor." U.S. Const. amend VI. To establish a violation of
that right, the "defendant must demonstrate that he was deprived
of the opportunity to present a witness who would have provided
testimony that was 'both material and favorable to his defense. '"

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Howard v. Walker, 406 F.3d 114, 132 (2d Cir. 2005) (quoting United
States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)). To meet
this standard, the defendant need not "render a detailed
description of [the] lost testimony, " Valenzuela-Bernal, 458 U.S.
at 873; but he must make a "plausible showing" that the testimony
would have been material and favorable, id. "In addition, he must
show that 'there is a reasonable likelihood that the testimony
could have affected the judgment of the trier of fact. '" United
States v. Ginsberq, 758 F.2d 823, 831 (2d Cir. 1985) (quoting
Valenzuela-Bernal, 458 U.S. at 874) .

Generally, "financially able criminal defendants must bear
12 the cost of bringing their own witnesses to the trial." United
States v. Garmany, 762 F.2d 929, 934 (11th Cir. 1985), cert.
denied, 474 U.S. 1062 (1986). However, a defendant can have the
government bear the cost if he persuades the court that he is
unable to pay and shows "the necessity of the witness's presence
for an adequate defense." Fed. R. Crim. P. 17 (b) .

Nothing in the present case supports the contention that
these defendants were deprived of the right to compulsory process.
First, the reason the cost of having Massino brought to the trial
was so high was that Persico waited until late in the trial to
inform the government that he wanted to call Massino as a witness.
Defendants had been notified in mid-October 2007 -- weeks before the
trial began -- that Vitale would be called as a government witness
and would "testify to a conversation in which 'Persico advised
[him] that Persico had killed Cutolo because Cutolo had attempted

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to take over the crime family from Persico'" (Persico brief on
appeal at 48-49 (quoting a government memorandum to the district
court dated October 19, 2007) ) . The government, by letter dated
October 17, 2007, had asked that Persico inform the government "by
October 26, 2007" of "any cooperating witnesses the defense may
call, " pointing out that "the United States Marshal Service
requires significant advance notice for production of such
witnesses." Persico did not inform the government of his desire
to call Massino until more than six weeks later, on November 30.
The district court noted that the high cost of bringing Massino to
the trial involved first-class air travel for Massino and four or
five marshals "because there was no advance notice." (Tr. 3916.)

Second, at no point has Persico suggested that he lacked
the ability to pay the cost of bringing Massino to the trial. Had
Persico been unable to pay, he could have applied to the district
court for relief under Rule 17 (b) ; he did not.

Finally, Persico has not made any showing that Massino's
testimony would have been material or favorable to his defense.
He supposes that because the government itself did not call
Massino to testify, Massino likely did not recall the Persico
conversation, described by Vitale, indicating that Persico had had
Cutolo killed; and he argues that Massino's testimony that he had
no such recollection "would have gone far to demonstrate that no
such conversation had occurred" (Persico brief on appeal at 54) .
This argument piles speculation upon supposition and falls far
short of providing a basis for a new trial.

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# CONCLUSION

We have considered all of defendants' arguments on these
appeals -- including their contentions that testimony by some
witnesses was incredible as a matter of law -- and have found them
to be without merit. The judgments of the district court are
affirmed.

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(L), 09-0992-cr, 09-1076-cr USA v. Persico #

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