Opening Statement

United States v. Anthony Antico

EDNY - 7/14/10 1

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK 2 ------x 3 UNITED STATES OF AMERICA 08-CR-559 (CBA) 4 -against- 5 U.S. District Court Brooklyn , New York 6 ANTHONY ANTICO also known as "Tony O," 7 "Big Nose" and "Tica" Trial 8 Oef endant 9 July 14, 2010 ------x 2:15 p.m . 10 11 BEFORE: HONORABLE CAROL BAGLEY AMON 12 United States District Judge and a jury 13 14 APPEARANCES : 15 For the Government: BENTON J. CAMPBELL, ESQUIRE United States Attorney 16 271 Cadman Plaza East Brooklyn, New York 11201 17 BY: JACK DENNEHY STEPHEN E. FRANK 18 NICOLE M. ARGENTIERI Assistant U.S. Attorneys 19 20 21 For the Defendant: MATHEW J. MARI 110 Wall Street 22 11th Floor New York, New York 10005 23 and GERALD J. McMAHON 24 26 Broadway 18th Floor 25 New York, New York 10004

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1 criminal associates not to worry, that the defendant will take 2 care of it , he's going to take care of the jeweler. In hi s 3 own words , "Just wait for me . " 4 You will also hear r ecordings of the defendant 5 discussing the operation of his illegal gambling club . You 6 will hear him on tape talking about it. 7 Now, those are just some of the recordings that 8 you ' re going to hear. And after you have seen and heard all 9 of the evidence in this case , the witnesses, the physical

10 evidence , and the recordings, the evidence will establish the 11 defendant's guilt beyond a reasonable doubt of all of the 12 charged crimes.

13 Thank you. 14 THE COURT: Thank you . 15 Mr . McMahon . 16 (Opening Statement - Mr . McMahon.) 17 MR. McMAHON : Yes, Judge . 18 May it please the Court , Judge Amon, Mr. Antico , 19 Mr. Mari, members of the prosecution team , members of the 20 jury , in November of 2009 and January of 2010 , the government 21 made Anthony Antico an offer that he couldn't refuse , and he 22 refused it. And that's why we ' re here today . 23 Good afternoon, ladies and gentlemen. My name is 24 Gerry McMahon. As you know, I represent Anthony Antico , the 25 elderly gentleman over there , along with Matthew Mari. I

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1 would be remiss if I did not first begin by thanking you on 2 behalf of Mr . Antico for agreeing to serve as jurors in this 3 case. 4 The government can bring charges. The government 5 can arrest people, but the government cannot convict anybody . 6 Only you people can do that. Anthony has a constitutional 7 right to a trial by jury. You are the jury . He gets to have 8 his case decided by you people. And when he entered a plea of 9 not guilty, that ' s what he wanted. And you are giving him 10 that . 11 Now , you all know, from the jury selection process, 12 all you had to say one time, you can't be fair and impartial, 13 and you're gone . You declined to do that . You all said you 14 could be fair and impartial, and that's all we want . 15 We don't want anything more than that. We just want

16 a fair trial by a jury of his peers . You ' re giving hi m that 17 and we thank you for that. 18 Now, for more than 50 years in this country , there 19 has been absolute fascination with all things Mafia. In the 20 1970 ' s, it was the Godfather movies . For the last ten years 21 it was the Sopranos . 22 The Mafia, the mythical Mafia, everything about the 23 Mafia. It has influenced criminals on the street. It has an 24 effect on law enforcement. Young crimi nals on the street 25 wanting to be a part of something larger than what they are,

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1 who go around and strut and say, I'm an associate. I'm with 2 this group or I'm with that group, and they get a little 3 street credit. 4 For law enforcement, the Mafia is a virtual mother's 5 milk. You get publicity, you get promotions, agents get 6 promoted, prosecutors became mayors, governors , whatever. 7 And because of the lure and the allure of the Mafia 8 and the prosecutions, what sometimes is just an ordinary 9 street crime a robbery, a gambling, by ordinary street 10 criminals, becomes something different, something bigger. 11 It becomes a racketeering charge. And that's 12 precisely what we have here. And that brings us back to the 13 offer that the government made to Anthony Antico. 14 Now, you will hear a great deal of testimony in this 15 trial, and you'll see tons of pictures, all sorts of things, 16 and they will establish that Anthony Antico, in his earlier 17 days, ran around with people who were associated with the 18 Mafia. 19 But as you saw on the questionnaire, and as Judge 20 Amon will tell you, being in the Mafia or being associated or 21 hanging around with people in the Mafia is not a crime. You 22 have to commit crimes. And if you don't commit crimes, you're 23 not guilty of anything. 24 So you're going to hear from this government, at 25 this table, a ton of evidence in the next two or three weeks

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1 about people that he knows or people that he was at a wake or 2 a funeral with, and they're going to have people come in and 3 say they're Mafia; so he must be Mafia, so he must be a 4 criminal. But you are going to hear over the next two or 5 three weeks very little evidence about crimes that Anthony 6 Antico committed. Very little evidence indeed. 7 Now let's talk about, there are four crimes that you 8 are going to consider. There is an alleged extortion of a 9 deli on Staten Island approximately 15 years ago. There is 10 the illegal gambling club that he supposedly ran. There is 11 the robbery of the Pick 6 guy . And then there is the botched 12 robbery of the Staten Island jeweler which ended in his death. 13 Those are the four crimes. Those are the four 14 street crimes that the government will try to persuade you

15 beyond a reasonable doubt that were committed by the Genovese 16 organized crime family, and because he has some connection to 17 the family he's responsible for that conduct. 18 I'm going to talk a little bit in detail about each 19 of those crimes to show you what you will hear over the next 20 two weeks on the government's case will not prove anything of 21 the sort. 22 Let's first talk about the 1995 extortion. This is 23 a deli or bagelette. The guy has a store in Staten Island. 24 So in 1995 he sells it to a Pakistani fellow by the name of 25 Khan. This Mr. Khan owns a number of stores. I think it may

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1 be 18 or 20 stores. 2 Now, so Mr. Khan figures he's bought the deli, I 3 believe there may be a lawyer involved, money has changed 4 hands, contract, the whole thing . He puts two people in to 5 run this bagel store. 8 After a couple of days, an Italian guy comes into 7 his store and forcibly throws these Pakistani employees out of 8 the bagel store. And says to the words to the effect of, 9 Well, I was a silent partner in the bagel store that got sold 10 to you without me being taken care of. 11 So Mr. Khan goes to an individual that he knows by 12 the name of Giglio. Giglio's brother had a pork store next to 13 another one of Mr. Khan's bagel stores. So he knew Giglio. 14 Giglio had been a customer of his. His brother has a pork 15 store next door. 16 So he knows, Mr. Khan does , that Mr. Giglio has some 17 reputation. He hears that Giglio is a guy that maybe has a 18 reputation. So he says to Giglio, his friend, I had these two 19 guys come in and throw my employees out of the store I just 20 bought, can you help me out? 21 You'll also hear from Mr. Khan, and some of you 22 might ask, Well , why didn't he go to the police. Apparently, 23 Mr. Khan has some tax issues, maybe he didn't pay all his 24 taxes or whatever, but who knows. 25 15 years ago, Khan decides, instead of going to the

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1 police, he will go to this Mr. Giglio. So he goes to 2 Mr. Giglio. Then the Italian guy says, Well, I got a big guy 3 on my team too. So they end up having a meeting at this deli. 4 And the first government witness, who's going to be 5 here in a few minutes, a guy by the name of Mikey Scars and 6 he earned the nickname -- he's going to come in and say that 7 there was like a sit down. And Giglio brought his friend, 8 Mr. Antico there. And Mikey Scars was there on behalf of the 9 guy who said he was owed a piece out of the sale of the deli. 10 And so what happened? Apparently what happened was 11 that the sale went through . It belonged to Mr. Khan. He 12 bought it. And his people were put back in the store. And 13 that's what happened . 14 And for 15 years, you'll hear, nobody ever testified 15 in any court about this incident ever, anywhere. But when the 16 government needed to get Mr . Antico, we all of a sudden hear 17 that this is an extortion and that Mr . Antico is part of the 18 extortion. When, in fact, what Mr. Antico did was to help 19 Mr. Khan get put back into a store that he actually bought . 20 That's about as far from a crime as you can imagine. 21 That's number one. 22 Number two, the gambling club. Now, it's hard to 23 believe in this day and age , 2010, in federal court, with all 24 of these people, that unbelievably laborious jury process, 25 that one of these four charges against this big, big

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1 heavyweight guy over here is that he ran a gambling club. The

2 evidence will pretty much show you that he didn't run a 3 gambling club. 4 For starters, he wasn't in the gambling club at any 5 time during this entire incident. Why? Because in 2005 and 6 2006 he had gone to court and admitted some crimes that he had 7 committed and he was in jail. So he wasn't running the 8 gambling club. He didn't own the gambling club. 9 You will hear from a witness by the name of Stefan 10 Cicale, who, the government will come in and say, was a dealer 11 at the gambling club. And their own witness will tell you 12 that the gambling club was owned by a guy by the name of 13 Joseph Campanella. I'm sure there will be a picture of him 14 because he's supposedly connected too. 15 So Joseph Campanella owns the club and he is 16 assisted in running the club by Mr. Antico's brother Dee Dee. 17 And that's it. And the government's going to tell you because 18 it's his brother, because it's Dee Dee Antico, well, that must 19 mean, because everything gets kicked up, that we're going to 20 hold him accountable for the gambling club. 21 They don't have any evidence of that. They want you 22 to believe that, but no evidence. And they want you to think 23 that Angelo "Dee Dee" Antico can't run a gambling club with 24 Joe "Beansie" Campanella himself, when of course he can. It's 25 their club. It's not his club. It's not his gambling club.

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1 The other amazing thing is that to prove the lengths 2 to which the federal government will go, and I'll tell you why 3 they go to those lengths in one second, the lengths that they 4 will go is the person that they're going to bring to tell you 5 about this gambling club, Stefan Cicale, is a vicious 6 murdering hoodlum. 7 He participated in the murder of an individual by 8 the name of Robert McKelvey on Staten Island. Went out and 9 had lunch, came back with power saws and cut up his body, and 10 then set the parts on fire. And then he made a deal with the 11 government. 12 And he's going to come in here and testify that my 13 client had something to do with the gambling club. To even 14 simply say it is to show how ludicrous it is. 15 And now let me tell you why they will going to go to 16 these lengths. Because in that November 2009 trip by the 17 government, two agents of the FBI went to see Anthony Antico 18 over here at MDC in Brooklyn and they told him, they said, 19 Anthony, if you don't cooperate with us and become a 20 cooperator for the government and testify for us, we're going 21 to indict you on this jeweler murder, the botched robbery and 22 the murder. 23 They went there unannounced in November 2009. No 24 lawyers, no nothing, two FBI agents show up, George Khouzami 25 and Jennifer King. January 10, 2010, earlier this year,

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1 Mr. Antico has been shipped out to Tucson, Arizona. Whether 2 it's in retaliation for not immediately agreeing, who knows. 3 MR. DENNEHY: Objection, Your Honor. 4 THE COURT: I'll ask you not to raise any matters 5 that are from your own statements which are matter of 6 speculations. The jury will disregard that . 7 MR. McMAHON: So he's out in Tuscan, Arizona. Who 8 flies out to Tuscan, Arizona, three-quarters of the way across 9 the country? The same two agents, George Khouzami and 1 O Jennifer King. 11 Unannounced, they show up at Anthony Antico's prison 12 out there and they say, Last chance, you're going to get 13 indicted in three weeks if you don't become a cooperator for 14 us . Come and testify for us in court, like you are going to 15 see a parade of people do. And of course, we know from the 16 indictment that came down in February of 2010 that that didn't 17 happen. 18 And so you have the bagel store 15 years ago, which 19 they're claiming is an extortion. But it wasn't an extortion. 20 Wasn't an extortion, certainly, by Anthony Antico. And if 21 anything, the people who are coming in here, if, in fact, the 22 silent partner is coming in here -- I don't know who's coming 23 in here -- he would be the extortionist. But that was 24 certainly not an extortion that Anthony Antico had anything to 25 do with. And then you have the gambling club for which a

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1 chain saw murderer is going to come in here and try to put on 2 my client. 3 Number three, the Pick 6 guy. There was a fellow, 4 Mario, I forget what his last name is. He did win 5 apparently, a number of years ago, '05, '06, he won over a 6 million dollars number I think the government said, and Mario 7 knows a couple of i ndividuals. 8 Their names are Joseph Barrafato and Ralph Lento. 9 They're friends of Mario, the Pick 6 winner . So I guess when 10 you win over a million dollars all your friends and -- phoney 11 friends come out of the woodwork looking for money. 12 I think the evidence will be for Mario that shortly 13 after or sometime after he wins the money , these two guys , he 14 gave them some money or he lent it to them. I think he will 15 say he didn't half expect to get it back. It was like a half 16 loan , but sort of like half a gift. 17 So they got that money. And then, apparently, one 18 of these two guys , Barrafato, who will be described by the

19 Pick 6 winner as a degenerate, pathetic loser 1 comes up with 20 the brilliant idea, since Mario isn't giving him anymore loans 21 anymore, they'll come up with a scheme to cheat him out of the 22 money. 23 The scheme will go something like this: He will 24 pretend that there are some organized crime guys that are 25 going to extortion money out of the Pick 6 winner. They're

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1 going to threaten him, give us some money if you don't want 2 these people to come down on you. 3 Barrafato's idea is to tell this Pick 6 guy, I know 4 thi s fellow by the name of Anthony Antico. He is very well 5 respected . So when these people come down on you, I can 6 intervene and use his name and they will go away. And in 7 return for that, I want you to give me some money. 8 So it's not a robbery, it never was a robbery. It 9 is not an extortion. It's a scheme to defraud the Pick 6 10 winner by Joseph Barrafato and his buddy, Ralph Lento, and the 11 Pick 6 guy told him to take a hike. He wouldn't give him any 12 more money . 13 The Pick 6 guy told Barrafato and Lento, I put the 14 money in CDs and an IRA account. So it's not in the house and 15 there won't be any robbery . But , because Barrafato is on the 16 phone talking to Antico describing the scheme to defraud, we 17 are not going to charge Antico with conspiring to rob the Pick 18 6 guy. It wasn't what it was. It never was what it was. He 19 never agreed to anything like that. It never happened. 20 Now, are there tapes in which my client said or 21 expected that if Barrafato did get money out of this person , 22 that he would throw a couple of dollars to Mr. Antico for 23 using his name? I think they're probably will be tapes in 24 which that will be a reasonable interpretation. 25 But you have to decide for yourself , is that being

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1 part of an extortion or is that being part of a little scam, 2 or is that being part of -- is that any different from a 3 retired politician becoming a consultant and his name is used 4 to get a contract and he gets a $500,000 check? 5 Now, the retired politician isn't Italian. But what 6 I can tell you with regard to Mr. Antico and the Pick 6 guy, 7 there was no robbery, there was no extortion. 8 There was a scam by Barrafato and Lento to try and 9 swindle a few dollars more out of Mario the Pick 6 guy, who 10 will come in and testify. And I think his own words will show 11 to you that that's exactly what it is. 12 My client is not charged with being part of a scheme 13 to defraud him out of a couple of dollars. The charge is that 14 he was extorting him and robbing him, and that's just not 15 there.

16 Finally, the most serious charge in the indictment, 17 there was a botched robbery and murder of a Long Island 18 jeweler, a fellow named Louis Antonelli. Louis Antonelli was 19 actually a friend of Anthony Antico. Anthony Antico had 20 nothing to do with the botched robbery and murder of Louis 21 Antonelli. Nothing, zippo. 22 One witness, one, will come in here and tell you 23 that my client had anything to do with that. Uncorroborated, 24 unsupported by anybody. That witness, of course, recently 25 made a deal with the government. That witness, of course, is

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1 a multiple murderer. 2 We will present witnesses we have gotten . Inmates 3 that served in jail recently with him, and they will come in 4 and tell you that the man is, A, a pathological liar, and B, 5 that he talked to them about using Antico as his way of 6 getting out of jail, because he knew the feds wanted Antico 7 and so he cut a deal . 8 "Antico told me to set up the Antonelli robbery," 9 boom, he's out of jail. Out of that jail. Who knows. 10 Not only will we have two inmates that were in there 11 with him, we will have the mother of his child, Nina DiGangi 12 will come in here and tell you that he didn't know who Anthony 13 Antico was and that he was going to set him up to get out of 14 jail and that he would be seeing his child with her soon. 15 That's who we're going to bring in. We have no 16 burden of proof, none. But I'm going to put witnesses on the 17 stand who I think are far more credible than the murdering -- 18 MR. DENNEHY: Objection, Your Honor. 19 MR. McMAHON: I'll withdraw it. 20 I think you'll see from their demeanor, from what 21 they have to say and how it's corroborated by everything else 22 in the evidence, you will decide whether they're more credible 23 or not. But I think you will see from the surrounding 24 circumstances plus their lack of motive. 25 Consider this also, as the defense, we don't get to

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1 get anybody out of jail if they make a deal with us. We don ' t 2 get to write checks to any of these witnesses if they make a 3 deal with us . All I can do is subpoena them, ask the judge to 4 sign a Writ to bring them in from another prison. I can't 5 give them money. I can't cut their jail time, and you can 6 consider that when you listen to their testimony. 7 When you hear the testimony of what the government 8 has allowed some of these cooperators to get away with, I, 9 frankly, think that each and every one of you will be a little 10 bit surprised. 11 Mr. Dileonardo, the first witness, he pled guilty 12 seven or eight years ago. He got out of jail. He got out on 13 bail five or six years ago . He's never been sentenced. He is 14 a multiple, multiple murderer . He has committed many vicious 15 assaults. 16 For agreeing to testify for Team America over here, 17 he gets paid $4,500 a month , every month, tax free. He gets 18 housing allowances. He gets medical expenses covered . He 19 gets flown around the country to come and testify. He even 20 gets to commit crimes and nothing happens to him because he 21 testifies for the government. 22 And so, when you weigh the credibility of the kind 23 of people that they bring in here to establish those four 24 crimes against Anthony Antico, we don't have to ask for 25 anything but justice. We won't need mercy. Justice will give

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1 us the not guilty verdict that we deserve you. 2 Thank you . 3 THE COURT : The government will call their first 4 witness, please . 5 MR. DENNEHY: The government calls Michael 6 Di Leonardo. 7 (Side-bar held on the following page . ) 8 9 10 11 12 13

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RONALD E. TOLKIN, RMR, CRR OFFTCTAI cmJRT RFPORTFR Cross-Examination of Michael DiLeonardo a/k/a "Mikey Scars"

United States v. Anthony Antico DiLEONARDO-CROSS-HcHAHON 165

1 Q What do you understand your obligation to be under your 2 cooperation agreement? 3 A Come in and tell the truth. 4 a What happens if you don't tell the truth? 5 A I could get my agreement null and void. 6 Q What sentence would you face? 7 A Life. 8 MR. DENNEHY : I have no other questions for the 9 witness, Your Honor. 10 THE COURT: Mr. McMahon, you want to cross-examine? 11 MR. McMAHON: May I approach the witness and hand 12 him an exhibit? 13 THE COURT: What is the marking? 14 MR. McMAHON: The cooperation agreement , 15 Government's Exhibit 153. 16 THE COURT: Yes, you may. 17 CROSS EXAMINATION 18 BY MR. McMAHON:

19 Q Now, Mr. Dileonardo, I think that you said that your

20 obligation was to show up when the government wanted you to 21 come to Court, and to tell the truth. 22 Is that correct , sir?

23 A That's correct. 24 Q You plead guilty in what year? 25 A It was in May of '03.

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1 a How many times have you come to court and testified for 2 the government?

3 A This will be the 15th. 4 Q 15th trial?

5 A 14 trials, one hearing. 6 a During all of that testimonial experience, did you ever 7 testify for a defendant or just for the government?

8 A Just for the government.

g a I gather that the only people that are paying you the 10 money are the government. You're not getting money from any

11 defense lawyers or any defendants?

12 A No. Right. The Marshal Service in the beginning and now 13 the FBI . 14 a As part of your preparation to testify 15 times for the 15 government, did they ever give you any training about how to 16 testify?

17 A No . 1a a For example, did they tell you you should look at the 19 jury when you testify?

20 A No.

21 a Nobody ever told you that?

22 A Yeah. My mother and father, as a young boy, said 23 whenever you want to talk to somebody, look in their eyes. 24 That's a thing I have, look in people's eyes. 2s a When you're testifying or preparing to testify at the 15

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1 trials, did you ever have any discussions with any prosecutors 2 or agents about how you should dress? 3 A No. I like suit and tie, respect for the Court . 4 a You like to dress properly. 5 Well, respect to the court, this is the same court 6 that has basically been trumped by the Gambino crime family? 7 A As to what I alluded to before as respect for the court . 8 Well, when I was on trial in Atlanta, or any other proceeding, 9 I wore a suit and a tie i n respect to the court . 10 a But I think the words that you used are, We are our own 11 government. We make laws . We trump the judges. We trump the 12 police?

13 A That is correct . 14 a So you don't have that much respect for the court , do 15 you?

16 A Yes, I do. I've done it in the past, not just now. 11 a You like to dress ni ce? 18 A Absolutely. 19 a Now, as part of being in the life for 40 years, you got a 20 lot of money? 21 A True. 22 a It allowed you to buy fancy cars? 23 A Absolutely. 24 a Fancy clothes? 25 A Right.

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1 a $17,000 engagement rings for your wife? 2 A That's correct. 3 a You could stay in the finest hotels? 4 A I lived a great life. 5 a A great life?

6 A Yes. 1 a This is all from money that you got from crimes, is that 8 correct?

9 A Every penny.

1 o a Now you're still wearing nice clothes, is that correct? 11 A Sure.

12 Q But that money is coming from the taxpayer instead?

13 MR. DENNEHY: Objection.

14 THE WITNESS: This is an old suit. All my clothes 15 are. I figured it out the other day, I bought these shoes in 16 1986.

1 7 BY MR. McMAHON : 1a a Are those alligator shoes?

19 A Very good. 20 a Now, did the prosecutor tell you that I was asking about 21 the alligator shoes that you are wearing in court?

22 MR. DENNEHY: Objection. 23 THE WITNESS: No. 24 BY MR. McMAHON: 2s a But you very quickly went on to talk about your shoes?

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1 A Yes. 2 a None of the marshals asked you or told you that I was 3 inquiring about your shoes? 4 A Absolutely not. The reason alluded to that is 5 Q Maybe it's a coincidence. 6 A The reason I alluded to that's the oldest item I have. I 7 just discussed it with my wife . She's looking to throw all my 8 stuff out. She don't like alligator shoes. 9 a Now, you get money each month. 10 Is that correct, sir?

11 A That's correct.

12 Q How much money do you get each month?

13 A I first started out 14 a Now how much do you get?

15 A 4,500 a month.

16 Q That's $4,500 a month each month?

17 A Each month. 1a a And is it delivered to you in cash or check?

19 A Cash.

20 Q And is it handed to you by an agent or a marshal?

21 A Several agents .

22 Q The check form or cash?

23 A Cash . 24 a Cash? 25 A American money.

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1 Q Not a check? 2 A American money cash.

3 Q That comes out to $54,000 a year?

4 A I'd say that, yes . s a That's tax free? 6 A Yes. 7 Q You pay no taxes whatsoever; state, local , social 8 security? Nothing?

9 A Nothing.

10 a Do you receive any other money in connection with housing 11 or other expenses?

12 A No. 13 a When you came to court here, for example , do you fly 14 yourself here or drive yourself here? Do you fly and pay for 15 yourself?

16 A I think that's a security issue. You can ask about the 17 monetary end. But how I get here, you can't ask. 1a a Do you pay your travel expenses, sir?

19 A No, I do not. 20 a Do you pay doctor's expenses?

21 A I have health insurance.

22 a Is that out of the $54,000? 23 A Sure. 24 a At what point in time did the government stop separately 25 paying your medical bills?

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1 MR. DENNEHY: Objection. 2 THE COURT: I'll sustain the objection, the form of 3 the question. 4 MR. McMAHON: Let me get my glasses. 5 a Would it be fair to say that for your -- to maintain you 6 as a cooperating witness, that the United States government 7 has spent over $550,000? 8 MR. DENNEHY: Objection to the word "maintain" the 9 witness. 10 BY MR. McMAHON: 11 a To cover everything, housing, allowances, medical, all of 12 those things? 13 THE COURT: Overruled. 14 THE WITNESS: I don't know the number. I know what 15 I get each and every month over the time, plus some money I 16 got to start up homes. We can't take our stuff from the past. 17 We start with nothing. If that number is correct, it's 18 inclusive of medical expenses before I had health insurance. 19 Airplane flights. I've flown 180 times since I'm out, 20 somewhere around that ballpark. Hotels they put me up in, my 21 family up in. There's a lot of expenses. No, I never reduced 22 anything to writing. 23 BY MR. McMAHON: 24 a So you're not necessarily disagreeing with the number. 25 You just don't know what the number is?

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1 A Absolutely.

2 MR. McMAHON: I will hand you 3500 MD-48, and ask 3 you to look at the number that's highlighted in the upper 4 right-hand section there. And see if that refreshes your 5 recollection as to how much was spent on you through the year 6 2008. 7 MR. DENNEHY: Your Honor, I object to the form of 8 that question.

9 THE COURT: Yes, I will sustain the objection. 10 BY MR. McMAHON:

11 Q Does that refresh your recollection on how much was spent 12 by the marshal service for -- 13 THE COURT: Did you ever have a recollection of how 14 much was spent?

15 THE WITNESS: No.

16 THE COURT: Did anyone tell you how much was spent? 17 THE WITNESS: I seen something like this in maybe 18 one of my earlier trials, Your Honor. So like maybe like my

19 sixth or seventh trial. But I haven't really seen -- the 20 marshals don't give me an update on numbers. So I've never 21 really seen this.

22 THE COURT: I will sustain the objection. 23 BY MR. McMAHON:

24 Q Well, do you recall that there were several years where 25 20- and $30,000 was spent on medical expenses for you?

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1 A Well, when I came out of prison, I was in pretty rough 2 shape. It could be, yeah. 3 Q Well, you don't recall that in 2006, which is like the 4 year after you got out of prison, $34,000 in medical expenses 5 was incurred? 6 MR. DENNEHY: Objection. 7 BY MR. McMAHON: 8 Q In 2007, $30,000? 9 MR. DENNEHY: Objection. 10 THE COURT: I'll sustain the objection. 11 BY MR. McMAHON: 12 a Do you have your cooperation agreement in front of you? 13 A Yes. 14 Q The agreement said, according to your testimony, your 15 obligation is to tell the truth. 16 Is that correct, sir? 17 A Yes. 1a a Who decides if you're telling the truth? 19 A Who decides it? Judges, prosecutors, juries. 20 Q Would you turn then to page 6 of your agreement? 21 A Okay. 22 a If you go approximately midway through the first 23 paragraph, does it say in the agreement, "In addition, if this 24 office determines that the defendant has provided substantial 25 assistance in investigation or prosecution, and if he has

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1 fully complied with the understanding specified in this 2 agreement, this office will file a motion pursuant to 5K1."

3 A Okay. 4 Q Now, is that what the agreement says?

5 A Yes.

6 a Now, does that agreement say that if the United States 7 Attorney Office determines that you have been truthful and 8 determines that you have been providing substantial assistance 9 that they will write the 5K1 letter?

10 A Sure. 11 a So it's not the judge or it's not the jury that decides 12 if you've been truthful. It's the United States Attorney 13 Office, is that correct?

14 A Yes. Again, they submit it to the judge.

15 Q I'm talking about writing the letter.

16 A Oh, okay. Writing the letter. You said who determines 17 if you're truthful.

18 Q Is it the office, in capital letters, is that what your 19 agreement says?

20 A I don't have the numbers. I must have the wrong page, 21 but go ahead. 22 a So in terms of deciding whether Michael Dileonardo is 23 being truthful, the prosecutors decide that?

24 A Yes, they put it in their letter. 2s a If they don't write the 5K letter, you get life without

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1 parole, is that correct?

2 A That is true.

3 a So, A, they decide if you are being truthful, B, if they 4 decide that you're not being truthful, no letter and a life 5 sentence?

6 A Correct.

7 Q Now, you pled guilty, you said, in 2003? 8 A May, I believe, 2003. 9 Q And you have not yet been sentenced? 10 A Correct. 11 Q Do you have any idea when you're going to be sentenced? 12 A None. 13 a Has anybody ever talked to you in the last year about 14 being sentenced?

15 A Not really. 1s a Do you have a lawyer on this case that you pled guilty 17 to?

18 A Sure. 19 a Is that lawyer present here in court?

20 A No, he's not.

21 a Now, you said that the judge who is going to sentence you 22 is a judge by the name of Judge Koeltl?

23 A Yes. 24 a Did you recently learn that name?

25 A Yes.

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1 a In fact, did some agent or prosecutor tell you within the 2 1ast day or two -- 3 A No. 4 a Let me get my question out . 5 A I thought you were finished. 6 a Did some agent or prosector tell you in the last day or 7 two that the judge who took your plea seven years ago is no

8 longer even alive?

9 A Judge Casey, that is correct. 10 a Did someone tell you that recently?

11 A No. I knew that years back. 12 Q When did he die? 13 A I would say it's about two or three years ago , that time 14 frame . 1s a Who told you that, about your new judge? 16 A One of the agents. It could have been Otto. 17 Q Agent Ted Otto?

18 A It could be, yeah, 19 a Is he your person who is responsible for dealing with 20 you, mostly?

21 A Absolutely.

22 Q Is Agent Ted Otto the fellow that is holding $750,000 of 23 your money? 24 MR. DENNEHY: Objection.

25 THE COURT : Is what?

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1 BY MR. McMAHON:

2 a Holding $750,000 of your money? 3 THE COURT: You can answer. $750,000, you said? 4 MR. McMAHON: Approximately, that's a ballpark 5 figure. 6 THE WITNESS: The government has it. I don't know 7 in particular who is holding it. I'm sure it's not in Ted's 8 bedroom. I don't know. 9 BY MR. McMAHON: 10 a Right, but he would be the person that you would talk to 11 about that money? 12 A As far as I know -- can I explain it?

13 Q No.

14 A Okay. 15 a Is he the person to talk to? 16 A The judge, I think, is the person to talk to through my 17 lawyer.

18 Q Through your lawyer.

19 A Right. 20 a But does the FBI have approximately three-quarters of a 21 million dollars that you believe is your money? 22 A Somebody has it. It could be them. I'm not going to 23 wrestle with you about it. I don't know who has it. It could 24 be the FBI or the U.S. Attorney's Office. 25 Q Ted Otto is the fellow who is sitting here this morning?

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1 A Yes. 2 a He basically comes to the courtroom whenever you testify? 3 A He tries to, yes. 4 Q Now, the $750,000 that we're talking about here is 5 basically from two sums of money. About $565,000 of that 6 comes from the sale of a home, is that correct? 7 A That's correct. a a Whose home is that? 9 A That was my girlfriend. I had bought her that home

10 before I got arrested in 2000. It's our house. 11 a This was a home on Staten island? 12 A Sure.

13 a This is the girlfriend Madeline? 14 A Correct.

15 Q Was this home within two or three or four blocks of your 16 wife's home? 17 A I think it's 7.4 miles.

18 Q So you had a couple of homes going there on Staten

19 Isl and?

20 A Sure.

21 Q You had families in each? 22 A Yes.

23 Q At the same time? 24 A Well, I met Madeline late. Anthony was born in July 12 25 of 2000. I met Madeline in '98 sometime.

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1 a Your wife at the time did not know that you had Madeline 2 in another house 7.4 miles away, did she?

3 A That's correct. 4 a And wife, Toni Marie, is the sister of Frank Fappiano? 5 A Yes. 6 Q You had a child with her?

7 A Yes; Michael. a a In the house. 9 So you were lying to your wife, I assume, when she 10 was asking where you were at night, and things like that? 11 A Absolutely. 12 a You didn't have any problem lying to her? 13 A Well, of course not . I was self-centered interest I was 14 trying to protect. 1 s a Would it be fair to say -- you said you're 55 years old? 16 A Right now.

17 Q You've been lying pretty your entire life, have you not? 18 A Sure.

19 Q In fact, you have, on occasion, described yourself as a 20 pretty skillful liar? 21 A No. I think an attorney tried to do that. 22 a But I think you answered yes .

23 A I lied, sure. 24 a Oh, you lied then? 25 No. The question was, are you a skillful liar, at

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1 previous trials. 2 Did you answer yes?

3 A I got away with lying . If you want to deem it skillful.

4 THE COURT: No. I think the question is a little 5 different. The question is simply, did you respond yes to 6 that question by a lawyer at another proceeding. 7 Do you remember if you did or not?

8 THE WITNESS : I am not sure how I answered that. I

9 don't know about the word "skil 1 ful . "

10 BY MR. McMAHON:

11 Q I will direct your attention to the precise date of that 12 testimony and the line of testimony in a moment.

13 A Thank you. 14 a By the way, do you reread your testimony?

15 A No. 16 Q So in your 14 trials -- or 13 trials and a hearing, you 17 have never seen a transcript of your testimony?

18 A Only through counsel. The court's. 19 a Showing you on cross examination? 20 A Yes. 21 a Now, how many times would you say that you have met with 22 prosecutors to prepare your testimony? 23 THE COURT : In this case? 24 MR . McMAHON : No. In his career. 25 THE COURT : Why don't you break it down . You mean

RONALD E. TOLKIN, RMR, CRR OFFTr.T Al r.OllRT RFPORTFR DiLEONARDO-CROSS-McHAHON 181

1 in the 14 -- 15 instances in which he's testified over the 2 course of that entire time, how many times has he met with 3 prosecutors? 4 MR . McMAHON : I'll clarify it, Your Honor. 5 a Would it be fair to say that you have testi fied about 6 your 40-year career of committing crimes - - excuse me , that 7 you have discussed with federal prosecutors your 40-year 8 career committing crimes more than 100 times? 9 A Oh , yes.

10 Q Is it possible that you discussed it more than 500 times? 11 A That would be a guesstimate. It was a lot , Counselor. 12 a Many, many hours? 13 A Many, many hours. 14 Q In fact, each and every one of the questions that you 15 were asked here on direct examination, you have probably

16 testified virtually identically on numerous other occasions is 17 that correct? 18 MR . DENNEHY : Objection to the form . 19 THE COURT : Overruled. 20 THE WITNESS: Yes. Except the history of the La 21 Cosa Nostra. Basically, I would take that as a compliment of 22 being consistent. 23 BY MR . McMAHON: 24 a Well, I don't know if I asked you if it's been 25 consistent . What I want to know is , have you not gone over

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1 the same thing over and over and over again in all these

2 trials? 3 A Well, that would be consistency. 4 Q So you can pretty much recite it by heart, is that 5 correct?

6 A Well, I lived it. There's nothing to recite. When you 7 do things, it's a little easier to remember. 8 Q Now, you said that your reason for breaking from this 9 life that you loved so dearly was that you sort of got put on 10 the shelf when you were in jail, is that correct?

11 A That is correct.

12 a Did you actually get a little emotional as you were 13 describing that a few minutes ago?

14 A I get emotional when I think about it at home, just 15 laying in bed at 3:00 in the morning.

16 Q Now, you don't get that feeling of emotion when you 17 participated in murdering someone, did you?

18 A No .

19 Q Or when you were having someone's face bashed in with 20 garbage pails, that didn't generate that kind of emotion?

21 A I don't remember hitting anybody with a garbage pail. 22 a Louie D'Asti, you don't remember sending somebody to beat 23 his face in with garbage pails because he said something about 24 Madel i ne?

25 A I never even heard of the gentleman .

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1 Q You never heard of Louie D'Asti? 2 A Never. 3 a Did he have an auto shop on Metropolitan Shop in 4 Brooklyn? 5 A No. You're misinformed. No. No way. 6 Q But anyway, in all of the crimes that you've committed 7 and there have been a lot of violent crimes, right?

8 A Sure. I had a lot of fights and a lot of assaults. If I 9 remember that one, you would know about it. 10 Q Now, you have caused people that you didn't even know to

11 get a beating or given them a beating because you were told to 12 do it by Paulie Zach, is that correct? 13 A Yes. 14 a When we're talking about a beating, we're talking about 15 somebody's face getting punched in, is that correct? 16 A Sure. 11 a When that kind of pain gets inflicted upon someone, that 18 didn't bring out the same emotions that you felt when you 19 described being put on the shelf by your brothers in the 20 Gambino family, is that right? 21 A Right. I questioned, sometimes, the motives of why 22 somebody's being hurt, but your question is right. 23 a You knew when you were inducted that there was an awful 24 lot of hypocrisy in these protocols and rules, is that right? 25 A Oh, yeah.

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1 a So even the fact that when you went into the room you 2 weren't supposed to know why you were there, but, of course, 3 everybody in the room knew that you knew why you were there?

4 A Sure. 5 a The same thing about not being able to be a drug dealer, 6 and half the people in the room were drug dealers, is that 7 right?

8 A Absolutely. Complete hypocrisy, double standards.

g a So it wasn't a surprise to you, or it shouldn't have been 10 a surprise to you, shouldn't it have been, that the people 11 that you were associating with in your group were treacherous 12 criminals who would do anything, rob, steal, murder, to get 13 money? That shouldn't come as a surprise to you, should it?

14 A No.

15 Q So when were you in jail and no longer in control of your 16 construction business or your tattoo parlors or this business 17 or that business -- 18 THE COURT: Excuse me. Did you have tattoo parlors?

19 THE WITNESS: Yes, Your Honor.

20 THE COURT: All right. 21 BY MR. McMAHON: 22 a You're telling this jury that it came as a huge surprise 23 to you when your treacherous cohorts took away your money?

24 A It did. If I can explain? 2s a No. Just answer my question.

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1 A Sure.

2 a It came as a big surprise? 3 A Yes. 4 Q It shocked you, yes or no?

5 A Yes. 6 a It shocked you so much that you still get emotional seven 7 years later?

8 A Not over the money. 9 Q I didn't say it was the money.

10 A You said money.

11 Q The betrayal. 12 A All right. 13 Q Were you betrayed by them? 14 A Yes, when I was kicked out.

15 Q And so that justified you in betraying them?

16 A I didn't betray them. 11 a Well, didn't you have omerta? 18 A Yes, but when --

19 Q Isn't it a betrayal to testify against them? 20 MR. DENNEHY: Objection. 21 THE COURT: Let him finish his answer . 22 THE WITNESS: Counselor, once they break me and 23 disenfranchise me, they cast the first stone. I did not cast 24 any stones against La Cosa Nostra or its members at that time. 25 What I did was decide, for my own interests, at that point,

RONALD E. TOLKIN, RMR, CRR nFFT~TAI ~ntJRT RFPORTFR Di LEONARDO-CROSS-McMAHON 186

1 once they did that to me, for zero reasons. 2 Again, the money was one issue. I only got mad.

3 They did that the other way. You can be as sarcastic or 4 facetious as you like in your questions about that, but it 5 broke my heart. I tried to kill myself over it. 6 BY MR. McMAHON:

1 a Shall I get out a violin?

8 A I don't need a violin.

9 THE COURT: I will sustain the objection. Let's not 10 have any of that, Mr. McMahon. If you have another question,

11 ask it . 12 MR. McMAHON: I'm sorry.

13 Q Mr. Dileonardo, you said you tried to kill yourself. 14 Obviously, unsuccessfully.

15 A Yeah. God didn't want me yet.

16 Q I see. 17 Now, over the period of time that you've been a 18 cooperating witness for the government and you have received 19 sums of money, has anybody in the government asked you to take 20 any of that money or taken any of the money that you received 21 and given it to the victims of the crimes that you committed?

22 A That will be left up to the judge at my sentencing. 23 a No. That wasn't my question. 24 A I misunderstood then. Give it to me again. 2s a You started cooperating in what year?

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1 A November '03 -- no, November '02. 2 a You haven't had a job from November of '02 until today? 3 A I was in jail for three years. What kind of job? You 4 make 12 cents an hour.

s a Not counting the three years. You got out in '05? 6 A Right.

7 Q From '05 to '10, did you have a job? 8 A This is something I tried to explain to you why I 9 couldn't have a job. 10 a It's a yes or no? 11 A Well, then it's a redundant question, Counselor. 12 THE COURT: Don't argue with counsel. I'll decide 13 whether you have to answer. 14 THE WITNESS: I'm sorry, Your Honor. 15 THE COURT: You testified before that you don't have 16 a job. 17 THE WITNESS: That's correct. 18 BY MR. McMAHON: 19 Q But you have received monies to live on? 20 A That's correct. 21 a Now, has any of the money that you have received to live 22 on, or is any of the $750,000 that they're holding for you, 23 been used to repay the victims of all of your crimes? 24 MR. DENNEHY: Objection. Compound question. 25 THE COURT: I'll sustain the objection.

RONALD E. TOLKIN, RMR, CRR OFFTr.TAI r.OIJRT RFPORTFR Di LEONARDO-CROSS-McMAHON 188

1 BY MR. McMAHON: 2 a Have you had any conversation with any prosecutor or 3 agent about repaying the victims of your crimes?

4 A Yes. I tried to explain to you, you keep cutting me off. 5 Q Tell me.

6 A The $700,000 and change that is being held from the sale 7 of Madeline's house, and 200,000 that a friend of mind was 8 holding -- which I told the government about or they never 9 would have known about it -- is going to be the judge's 10 discretion for fines, penalties and any restitutions.

11 It's his. I don't have the money. I can't go give 12 it to anybody. It's the judge who will dole that out. 13 Whatever he decides , I'll live with. I have to .

14 The other monies is money I live on, the stipend 15 that I get every month. I got $2,200 a month. I paid over 16 $1,000 a month in secure places. I got $2,500 another time 17 when I moved from one place to another. 18 I haven't been in one location. I've been in many 19 locations since I've been out in '05, mid '05. I have no 20 chance to start anything or do anything between the moves,

21 it's a security issues. There are security issues and some 22 other stuff. I don't have a chance. 23 I have to be on the phone with prosecutors hours at 24 a time. Every trial I think I'm asked that question. Every 25 trial, it's two or three meetings I have to have somewhere in

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1 the country. I have to fly back and forth. Then I have 2 trials.

3 How am I going to get a job? 4 Q This is your job. 5 A This ain't my job. 6 A You can fire me. This ain't my job. 7 MR. DENNEHY: Objection. 8 THE COURT: The question was asked and answered. 9 MR. McMAHON: Move to strike. 10 THE COURT: The application is denied. 11 BY MR. McMAHON:

12 Q Now, do you have security concerns 1 Mr. Dileonardo? 13 A Everyday.

14 Q Did you voluntarily leave the Witness Protection Program? 15 A Yes. 16 Q Even though you voluntarily left the Witness Protection 17 Program, you still get protection and special treatment by the 18 FBI? 19 MR. DENNEHY: Objection to the form. 20 THE COURT: I'll sustain the objection to the form 21 of the question.

22 BY MR. McMAHON: 23 a Even though you left the Witness Protection Program 24 voluntarily, you still get shuttled in and out of the 25 courtrooms and in and out of buildings in private entrances,

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1 don't you?

2 A Is that a perk? 3 a Yes. 4 A That's a perk? 5 a Yes. 6 A You can keep the perk. I don't want it.

7 a You don't sit in traffic coming to the courthouse, do 8 you?

9 A Of course I do. How do I get here, from a helicopter on

1 O the roof?

11 a Mr. Dileonardo, going back to your decision to cooperate, 12 you said that you had a brother that was murdered, is that 13 correct?

14 A Sure. 1s a He was murdered because he supposedly violated the rules 16 of the Colombo family? 17 A Yes, the drug policy.

18 Q But you thought that that was basically a pretext and 19 that was something that you didn't like?

20 A I 1 m sorry. I didn't hear the last part. 21 a You thought that was a pretext to murder him, that 22 basically somebody in the Colombos didn't like him?

23 A That is correct.

24 Q So here the your brother, your blood brother is murdered, 25 and you did nothing to avenge his death?

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1 A That's Cosa Nostra, Counselor. 2 Q Well, is this the same Casa Nostra well , in that 3 particular instance you followed the rules of Casa Nostra and 4 you chose them over your brother, is that correct?

5 A I chose -- this is before I was a wise guy. I was 6 schooled and was taught and lectured after my brother's death, 7 and told we'll release you, you're on your own if you act, 8 which means I would have been murdered. But these are the

9 rules of Casa Nostra, you keep it in your stomach and eat it.

10 Gatti was telling me his father was murdered, his

11 uncle was murdered. They were Cosa Nostra guys and so was he. 12 It happens. There's fathers and uncles and brothers that are 13 murdered, often. 14 a I understand. 15 Mr. Dileonardo, if my question can be answered yes

16 or no, I would like you to do so.

17 A Sure, if I can. 18 Q Now, is it fair to say, sir, that you did nothing to 19 avenge the murder of your brother?

20 A Yes. 21 a Now, you were asked some questions about your role in the 22 three murders that you pled guilty to participating in, is

23 that correct?

24 A Sure.

25 Q I believe that you were asked on direct examination,

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1 well, you weren't the shooter, is that right?

2 A Right. 3 a And you weren't the shooter? 4 A No. s a But you wanted the murders to be done , you agreed that 6 the murders should be done, and the murders were done.

7 A Well, I didn't want him to get killed but they killed him 8 anyway . g a But you were instrumental in getting him killed by 10 passing the name along, and the information that he was a 11 cooperator?

12 A Absolutely. 13 a When you passed along that information, that directly led 14 to him getting whacked, is that correct?

15 A Absolutely. 16 a So the reason why you pled guilty to those things , even 17 though you weren't the shooter , is that you had absolute legal

18 and moral responsibility with that, is that correct? 19 A Sure.

20 a Participation in three murders is no big deal? 21 A Of course the . Three human beings are non existent and 22 families are destroyed. 23 a You weren't thinking about that then, were you? 24 A I always thought about that, Counselor. 2s a You always worried about that.

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1 Did you think about that when you were running 2 around with Sammy Gravano? 3 A Sure. 4 Q Now, tell the jury, who is Sammy Gravano?

5 A Sammy Gravano is a person I know since I was about 12 6 years old. 7 Q A friend of yours? 8 A Yeah. Ten years my senior, came up in the ranks of the

9 Gambino family as a reputation of being a killer. He had 19 10 murders by the end of his career. He was a soldier, a 11 captain, consigliere, underboss. 12 a And a good friend of yours? 13 A Sure. 14 a So this guy, Sammy Gravano, a short fellow, in stature? 15 A Not that small . Five-three, five-four. 16 a He had at least 19 murders to his credit? 17 A That's correct. 1 a a This is a serial killer? 19 A Yes. 20 a And he was a good buddy of yours? 21 A Yes. 22 a Ran around with him? 23 A Absolutely. 24 a A lot of clubs, a lot of partying. 25 A Yes.

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1 a A lot of fine wine, a lot of women. 2 A Sure. 3 a That's the kind of friend that you had in the life, is 4 that correct? 5 A That is the life that a11 the families in all the Cosa 6 Nostra . That's what we are . 1 a We're just talking about you for the moment here. You 8 and Sammy, and the Gambino family?

9 A Right. 10 a Now, you knew, sir, when you were arrested in 2002 on 11 this case, Sammy Gravano had already flipped and become a 12 cooperator?

13 A Oh, yes. 14 a You knew then, and you know today , that Sammy Gravano got 15 five years in jails for those 19 murders?

16 A That is correct . 11 a So he became a cooperator for this United States 18 Attorney's Office in the Southern District, the same place 19 where you took a pl ea?

20 A I think it's in the Eastern District. 21 a This office here?

22 A Yes .

23 a In this building, got five years for 19 murders for being 24 a cooperator for the government? 25 A Correct.

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1 Q So in your case, three murders, you got to do better than 2 five years, right , you're a cooperator? 3 A Thinking about it now 4 a Did you assume that? 5 A At that time, I didn't think about it. I had other 6 things on my mind. 7 Q Oh, you didn't have -- you didn't think about whether you 8 might even get better than five years because you only did 9 three murders? You didn't think about that?

10 A Yeah . Initially, when I decided to cooperate, I wasn't

11 thinking about Sammy Gravano, Counselor. I had other issues

12 going on. 13 a At what point did it enter your mind that you might do 14 better than five years because you only did three murders? 15 A It did happen shortly after that , yes. 16 Q It's not unreasonable thing to think about?

17 A No, it i sn ' t . 1a a If you ' re sitting there in jail?

19 A Sure.

20 Q How much time have you spent in jail for the three 21 murders that you did? 22 A Three years . 23 a So that's a year per murder?

24 A Yes . 25 Q You're looking for time served?

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1 A Correct. 2 a You would like to get back out there on the street with 3 $750 , 000?

4 A Yes. 5 Q Is it true that you actually started committing robberies 6 when you were 12 years old?

7 A Sure, maybe younger. I would go around the corner and 8 rob ice cream and bread. 9 Q Now, are you familiar with the area of McDonald Avenue in 10 Brooklyn?

11 A Sure. 12 a And a collision shop there, you don't know a Victor 13 D'Asti?

14 A No way know how. Show me a picture if you have one. 15 Maybe I can help you out .

16 Q I'm not like the federal government with all the pictures 17 here.

18 A Thank you. 19 Q How about Manny Gardino, do you know Manny?

20 A Manny Gardino, sure. 21 a Did you arrange to have his face rearranged?

22 A No . I cracked it myself.

23 a Because he made the mistake of congratulating your first 24 wife on the birth of the baby when actually it was Madeline 25 that had the baby?

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1 A I think he made a mistake, yes. 2 Q He made a mistake for which he got cracked by you?

3 A Yeah. 4 Q And when you say "cracked," you mean you punched him in 5 the face?

6 A No. Cracked is usually a slap. 7 Q He made an innocent mistake, he got your women mixed up?

8 A Yes. g a Causing you some discomfort at one of the homes, or both?

10 A One. 11 a Now, you remember testifying at the trial of Dominic 12 Pizzonia. I think you referred to him earlier. 13 A Sure. 14 a That was on April 17th of '07? 15 A I'm not sure of the date.

16 Q This would be 3500 MD-57C, page 1153. 17 MR. McMAHON: May I approach the witness. 1a a And see if this refreshes your recollection about 19 admitting whether you were a skillful liar. 20 (Handing to the witness.}

21 A Yes. That is correct. I stand corrected. 22 a So you would agree that you are a skil 1 ful liar? 23 A Yes, I was good at it. 24 a You are sti 11 good at it, aren't you? 25 A I don't lie no more. I don't lie in court. Lying in

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1 court could get me a life sentence. 2 a Oh. You don't lie in court .

3 A Yes. 4 a You lie elsewhere?

5 A I have to lie. I'm in the witness security program. I

6 can't divulge to people that I meet. I lie to them every day. 1 a When did you last read your cooperation agreement? 8 A Probably the last trial. And I don't read it, I just 9 skim through it. 10 a It would be correct to say that you're placing your 11 faith, your life, in the hands of the federal prosecutors? 12 A Yeah, that letter is important. 13 a That letter. If you don't get that letter, the judge has 14 no discretion on sentencing?

15 A Yes . I don't know if that is correct. That's up to the 16 judge. I'm not sure of that technicality.

11 a There is an old case in 2002? 18 A I don't know if they have the discretion, without the

19 letter, to do whatever they want. I can't speak for the 20 judge. 21 a Well, didn't your lawyer tell you that if you don't get 22 the lawyer you get life without parole?

23 A You could get life. 24 a Did he tell you that you will get life? 25 A Could have .

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1 a You just don•t remember that part of the conversation. 2 MR. DENNEHY: Objection. It assumes it happened. 3 He doesn't remember that part of the conversation. 4 MR. McMAHON: He said it could have happened. 5 THE COURT: I will sustain the objection. Ask

6 another question.

7 BY MR. McMAHON: 8 Q Now. as part of the motivation to get you to cooperate,

9 were you tortured by the federal government?

10 A Motivation to get me to cooperate?

11 Q Yes. 12 A No , I was not . 13 a In the period of time between your arrest and your 14 cooperation in signing the agreement, were you tortured by the 15 federal government?

16 A No. I was put in isolation cell and tortured by the 17 Bureau of Prisons. 1a a Is the Bureau of Prisons not part of the federal

19 government? 20 A Another branch. 21 Q Was this just after you were arrested in May of 02?

22 A June 2002.

23 a June 2002. 24 THE COURT: This is your second arrest? 25 THE WITNESS: Yes.

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1 BY MR . McMAHON: 2 a By the way, you only were arrested twice in your life?

3 A No . I was arrested when I was younger.

4 a That didn't result in any jail time?

5 A No. It was gambling in a casino as a kid. s a So you didn't do any time on the Atlanta case?

7 A I was acquitted . 8 Q But you didn't do any time because you were released on

9 bail?

10 A That's correct . 11 a What was new about the 2002 case in Southern District of 12 New York is that you were denied bail?

13 A That's correct . 14 a So that was basically the only criminal case that you 15 were ever involved in in which you were held in jail without

16 bail, is that correct?

17 A That is correct . 1s a So Michael Dileonardo sitting there after his 40-year 19 criminal career is thinking about his options, is that 20 correct?

21 A Wrong . 22 a Were you thinking about your options?

23 A Wrong. 24 a You were not thinking about your options? 25 A No .

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1 a At no time between June of '02 and March of '03 were you 2 thinking about your options?

3 A Well, you got to make -- a cut off is when I got message, 4 then I thought about my options. s a Then you thought about it?

6 A But before that, the only option was going to trial. 1 a So you got put on the shelf. Your girlfriend tells you 8 she heard from an associate who heard from his father's. 9 Something like that, is that right?

10 A That was the grapevine.

11 Q That was the grapevine. 12 Now, does the Mafia generally send messages through 13 girlfriends of associates, that sort of thing? Is that how 14 they treat a high ranking captain? 15 A Thank you. That's one of my points. It wasn't a direct

16 message from the administration to Billy Modica to Noel Modica 17 and Bob Bianco to my girlfriend. This was something that 18 Billy had heard being he was a wise guy. Noel was his son, 19 very close to me, an associate driving Madeline up. He must 20 have assumed, like I said earlier, that I knew this already.

21 He said it like a sorry, I'm sorry this had to happen to

22 Michael. It shouldn't happen to Michael.

23 Q And that caused you to turn? 24 A Yes. 25 Q You wanted to cooperate?

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1 A Yes. 2 a Then you made an attempt to go out on bail , is that 3 correct?

4 A Yes, in November . 5 Q You tried to record some people, and that wasn't very 6 successful, is that correct? 7 A No . I recorded some people. s a And then you took some pills and you sort of tried to 9 kill yourself, is that right?

10 A Well, some. Probably about 60 .

11 Q 60 pills, okay .

12 And then you got taken by the federal officials back 13 to jail, is that right?

14 A I went to the hospital.

15 Q And then you went to jail?

16 A That's correct. 11 a These are the people who had -- when you were brought out 18 on that two-week bail period, that was for the purpose of 19 trying to get you to cooperate, to see if you could make 20 recordings, and sign up for the government team , is that

21 correct?

22 A Okay . When -- 23 a Were you out on bail to make recordings for the 24 government? 25 A You got a lot of questions. Take it easy , you got a lot

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1 of questions in there. Can you break it down. I'm trying to 2 be as cooperative as I can. 3 a I know that you are. You are a very cooperative person? 4 A Thank you. The agreement was when -- 5 a I didn't ask you about the agreement. 6 THE COURT: What is your question, because I think 7 there were a number of questions in there. 8 BY MR. McMAHON: 9 a Were you released on bail for the purposes of making 10 recordings?

11 A Yes.

12 Q Were you released on bail in the anticipation that you 13 might become a cooperating witness?

14 A I was already a cooperating witness. 15 a But you didn't have an agreement?

16 A The agreement was right here. That's where it was 17 (indicating).

18 Q In your heart?

19 A I was going to cooperate. 20 a We have an agreement in writing and then you have, what, 21 the agreement in your heart? 22 A Well, when I changed -- 23 Q Is that -- 24 A Do you want me to answer?

25 Q Is that what you have?

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1 A When I first started -- that didn't come until May the

2 next year.

3 a May the next year. 4 A When I step over the elevator November 14th, I 5 cooperated. Maybe legally that's your definition. My 6 definition, in my mind, is when I decided to cooperate,

7 Counselor. a a You wanted to join the government team?

9 A I didn't want to join any team . I just wanted to 10 cooperate. 11 a With whom? 12 A There's no team for me. I don't play ball with them. 13 a Who did you want to cooperate with? 14 A I don't like the term --

15 Q Team?

16 A I don't like "team." I'm not on a team.

17 Q I'll take out team.

18 A Thank you .

19 Q So you're out there for 12 days?

20 A Yes. 21 Q You take some pills?

22 A 60. 23 a Did you count them? 24 A Yes. 25 a You counted them out before you did it?

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1 A No. I got a prescription, it was the first time I took 2 them . 3 Q So you took the 60 pills, you wake up in the hospital? 4 A Right. 5 Q They take you back to prison.

6 A Correct.

1 a So the 12 days of recording people is over, is that 8 right? 9 A Yes. 10 Q You end up back in jail? 11 A In the hole. 12 a Federal prison? 13 A MCC Manhattan. 14 a Do they have you in the suicide unit? 15 A No. 16 Q They have you in the punishment unit? 17 A Yes. It's the terrorist unit, actually. 18 a Tell the jury how you were treated the next two or three 19 months? 20 A Five months. 21 a Five months . 22 Tell them what the conditions were like? 23 A Six months, actually. 24 It was a concrete cell, steel walls. The lights 25 were on 24 hours a day. No heat, it was the dead of winter.

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1 It was a very cold winter that year. The food , you couldn ' t 2 it was inedible , the food. Very, very harsh conditions.

3 Like I said, the lights were on. There was nothing 4 in the commode. The toilet bowl froze at one point it was 5 cold in there. No books for awhile. My visits were held up 6 for a while . One phone call a month . 15 minutes at the most . 7 Very harsh. There was no medical out there , there was nobody 8 to help you out. g a Now , before they put you i nto that hole , you had told 10 them you didn't want to cooperate and that ' s why you took the 11 pi 11 s? 12 A No . I tried the suicide attempt, Counselor, and I was 13 just brought back. They said yes , no or indifferent .

14 a Did you attempt to commit suicide because you changed 15 your mind about you couldn't cooperate against your brothers? 16 A Yes . I fe1t a 1ot of guilty to a lot of people that I 17 loved out there. I was going to send a lot of people to jai l 18 and it was overwhelming. 19 a You didn't want to do it? 20 A No . I figured kill myself and get myself out of the 21 question. 22 a And then after five months or six months of that 23 treatment, no heat, light on 24 hours, no medical attention 24 and by the way , you were talking to lawyers and people trying 25 to get those conditions changed , weren't you?

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1 A Oh, yeah. 2 a Couldn't get it done? 3 A I talked to prosecutors. They couldn't get it done. 4 Q They didn't get it done? 5 A They couldn't get it done. 6 MR. DENNEHY: Objection to that. 7 THE COURT: Objection to what? 8 MR. DENNEHY: That the prosecutors couldn't do it or 9 didn't do it. 10 THE COURT: That's his answer. 11 MR. DENNEHY: He said they couldn't and Mr. McMahon 12 said they didn't. 13 BY MR. McMAHON: 14 a All of a sudden, when you signed the agreement, did you 15 get out of there? 16 A About three weeks or four weeks later.

17 Q So you're there for six months and nobody, no FBI agents, 18 nobody can help you out? 19 A Yes. Well 20 Q That's the first part of it? 21 THE COURT: Was that your understanding, that you 22 were in that location and that the prosecutors were not able, 23 even if they wanted to, to get you out of that location? 24 THE WITNESS: Yes, Your Honor. 25 THE COURT: This is just in your mind?

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1 THE WITNESS: No. It's fact . I witnessed it . I 2 was up in the U.S. Attorney's Office for months to get it 3 done. 4 THE COURT: That was, in any event, your 5 understanding that they couldn't get you out of where you 6 were.

7 THE WITNESS : Yes . They gave me clothes to get warm 8 to go back, and then it would be taken away from me. 9 BY MR. McMAHON: 10 a They gave you a sweatshirt while you were sitting in 11 their office? 12 A And socks. 13 a But then you didn't have them when you got back to MCC, 14 did you?

15 A No . They got very angry when I went back with a 16 sweatshirt.

11 a The fair to say that you were there for six months , and 18 then within weeks after signing the agreement, you're out?

19 A Not out. I'm out of that hole. I'm somewhere else .

20 Q You have testified i n previous trials that you absolutely 21 believe that those conditions were torture? 22 A Yes. 23 a Those were your words, "torture"?

24 A Absolutely. I lost about 70 pounds. 25 a You got down to 150 .

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1 A Correct. 2 Q Then you signed this agreement? 3 A I signed it in the beginning of April. I was released 4 out of their May 22nd I think I got out of the hole. 5 Q May 22nd?

6 A I believe so. 7 Q Now, in the early 80's , would it be fair to say you were 8 earning about $3,000 a week from illegal gambling? 9 A Maybe more. That's a conservative number. 10 Q In late 1999 or in early 2000 you got houses for your 11 girlfriend, Madeline, and her mother, is that correct? 12 A That's correct.

13 a For your girlfriend's house, you put up 200,000 in cash? 14 A Sure.

15 Q That's a house on Staten Island? 16 A Right.

17 Q The title for that house that you were living in for a

18 period of time, and she was living in, your son was living in, 19 was in the builder's name because it couldn't be in your name 20 or her name, is that correct?

21 A At the time, because I was given the money. I didn't 22 give them the 200 at once. It was in increments. After the 23 house was built, I was going to figure some way to get the 24 deed under Madeline's name . 25 Q And then it's the sale of this house, when Madeline went

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1 with you, this house was sold for about $590 ,000?

2 A 590, less the expenses, yes .

3 Q Netted out about 565?

4 A I think that's the round number. s a And that's the bulk of the money that's being held now by 6 the federal government?

7 A Absolutely. 8 Q Now, the rest of the money that's being held by the 9 federal government was money that you had on the street, is 10 that correct?

11 A Correct.

12 Q So that's, again, money from the crimes that you 13 committed?

14 A Correct. 1s a And that was about $217,000?

16 A Yes . 11 a Of which, you believe, some of that money was used for 18 Madeline's engagement ring, the $17,000 ring? 19 A I don't know which a amount they took it out of. 20 a So those two sums together constitute the money, that pot 21 of money which you are hoping to get when you finish with your 22 testi many?

23 A Sure. 24 a Do you have any idea , as you sit here today , how many 25 years it will be before you get sentenced?

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1 A No clue. 2 Q No?

3 A No. 4 Q So you don't know if you'll ever be sentenced, do you? 5 A I hope to be. I want to get on with the next phase of my

6 life. I want to put all this behind me. I'm tired of 7 testifying. I'm tired of all this. 8 Q But you have not been told or you didn't make a written 9 request to the government, or your lawyer, to your knowledge,

10 didn't make a written request, I want to get sentenced now?

11 Has that occurred? 12 A No. 13 a So you're content to take the $4,500 a month tax free? 14 A Actually, I'm not content. I want to get this all behind 15 me and be done with it. I've never had a problem earning

16 money in my life. I won't have any in the future.

17 Q Maybe that's the government problem. 18 THE COURT: I'll sustain the objection. You don't 19 have to respond to anything. There's no question pending. 20 BY MR. McMAHON: 21 Q Now, this $217,000 was with your buddy Joe Tile you told 22 me this morning?

23 A He is my compadre, Joe, yes. 24 a Now, you've mentioned on a couple of occasions the 25 security that is around you, had to be around you. You told

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1 the jury about people who are cooperators are threatened with 2 death , et cetera?

3 A Yes. 4 a You participated in the murder of two or three 5 cooperators yourself, is that correct?

6 A Yes. 7 Q When you went into the Witness Protection Program, which

8 the marshals run, they have very strict rules, don't they? 9 A Yes . 10 a They protect you but they want you to do certain things 11 to make their job a little bit easier, is that right?

12 A Sure. 13 a Part of the things that you're supposed to do , you're not 14 supposed to be having contact with your criminal buddies back

15 home, is that correct?

16 A Known associates, criminal buddies, anybody, right. 17 Unless it's approved. You can get an approved list . You get 18 two phone calls a month. 19 a So unless you get that approval, you're not supposed to 20 be talking to your crime buddies?

21 A It could be friends. It doesn't have to be people I

22 committed crimes with. Anybody. 23 a You routinely violated those rules, didn't you? 24 A Yes . 25 Q You did?

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1 A Yeah, we talked to family members . 2 a You talked to criminal associates, eight or ten of them?

3 A No. 4 a Nol you don't remember that? Testifying to that 5 previously, that you spoke to eight or ten crimi nals?

6 A Before the program , when I was in prison and the U.S . 7 Attorney ' s Office, with the FBI and the U.S. Attorneys , I 8 talked to people on the street with their permission. s a No. I'm not talking about with permission. I'm talking 10 about while you were in the program, were you having 11 unauthorized conversations with some of your former 12 associates?

13 A Yes, but not eight or ten. 14 a Not eight or ten .

15 Joe Tile was one that you spoke to?

16 A Absolutely. 11 a Because he was holding a nice pot of money for you? 18 A No. Because I loved the kid. He was my son's Godfather . 19 a And the fact that he was holding $217 ,000 of your money 20 was not part of the equation?

21 A Well 1 he couldn't get that $217,000 if I didn't love him 22 and trust him to begin with.

23 Q I didn't ask you that . I'm asking , did you get ahold of 24 him improperly because he's holding your money or because he's 25 goombah of yours? Pardon my Italian.

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1 A You have a good voice .

2 a Thank you.

3 A But the thing is, that is not why he's holding the 4 $217,000. Because, as I just told you, I love the guy and I

5 missed him. You know, you're trying to tell the jury it's 6 because of the money

7 THE COURT : You don't need to say that.

8 THE WITNESS : Thank you. 9 BY MR. McMAHON : 10 a Now, you put $60,000 cash into Madeline's mother house?

11 A 60 or 80. I'm not sure. It was around 60. 12 a You routinely dealt with huge sums of cash, didn't you?

13 A Yes. 14 Q You put 100,000 of cash or so into five other properties 15 that you developed on Staten island? 16 A Yes . When I was building homes, yes. 11 a Now, as part of your deal with the government, Madeline, 18 her mother , and your first wife, were allowed to keep their 19 houses, is that right?

20 A I don't know about her mother. I'm not sure. My 21 ex-wife, who was I estranged from way before I got arrested, I 22 paid off her mortgage and gave her that house after my Atlanta 23 case in 2001. And the other house, I believe, yeah . But I 24 don't believe her mother . I'm not sure. If you want to show

25 it to me .

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1 Q I will show it to you in a moment. 2 A All right. 3 a But the houses, your mother's -- I mean Madeline's 4 mother, your first wife, and Madeline's house, all of the 5 monies that went to purchasing or building those homes were 6 monies from criminal endeavors? 7 A Every dime. a a So all of those houses and the proceeds of those houses 9 could have been forfeited by the government . But as a 10 concession to you , they decided not to forfeit them , is that 11 correct? 12 MR. DENNEHY : Objection to the form of the question. 13 THE COURT : You can answer if you knows the answer. 14 THE WITNESS : I would say , yes. Sure. 15 BY MR. McMAHON: 16 a There is one property that they asked you to forfeit, is 17 that correct? 18 A That's correct.

19 Q As part of your deal , and it's written into the deal? 20 A Yes. 21 a That's a 51 acre parcel of property. And interestingly 22 enough , that was already given to your son Michael by your 23 first marriage, right . That ' s the only property that you 24 forfeited , was your son Michael's property? 25 A It was my property that was given to my son Michael,

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1 absolutely. 2 Q That's the property that gets forfeited to the

3 government. They took it.

4 A Well, they had 5 Q Yes or no, did they take that property?

6 A They had a lis pendens on it for years.

1 a Did they take it?

8 A Of course they took it. They had a lis pendens on the 9 property. That was an action way before this case.

10 Q Did you agree in this agreement that you would give that

11 to the government as part of your deal with them?

12 A They had it already, and yes.

13 Q Yes, you agreed to give it to them?

14 A Yes.

15 Q The only property that you forfeited was the one that was

16 Michael's? 17 A Yes. 1a a You are estranged from Michael, is that correct?

19 A Yes. He don't speak with me. I haven't spoken to him in 20 years -- or he don't speak to me.

21 a As punishment for that, you gave the government his 22 property?

23 A No. 24 MR. DENNEHY: Objection. 25 THE COURT: Sustained, sustained. Disregard.

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1 BY MR. DENNEHY: 2 a When you started cooperating and you were working out the 3 deal with the government, you had various ten's of thousands, 4 if not hundreds of thousands of dollars parked in various 5 places, is that correct?

6 A Joe Tile, who you said earlier.

1 a You had a fellow by the name of Gravante, Nick Gravante,

8 he had 100,000 in his escrow account that was yours? 9 A He was my attorney. 10 Q I didn't ask you who he was. I asked you did he have 11 $100,000? 12 MR. DENNEHY: Come on. 13 THE COURT: I'll sustain the objection to that. I 14 think the facts ought to be clear as to who that individual 15 was and how the money was held. 16 He was an attorney and he was representing you? 17 THE WITNESS: Sure. Thank you, Your Honor. 18 THE COURT: He had $100,000, money that you had 19 given him to hold in an escrow account. 20 THE WITNESS: It was money from the sale of a piece 21 of property. He waited for all of this. Sure. 22 BY MR. McMAHON:

23 Q Waited for?

24 A I got arrested. 25 a Yeah, but this is money that still came from earnings of

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1 your criminal career?

2 A Every penny. Anything I did my whole life. Are we going 3 to keep saying it? 4 Q Well, you sort of suggested it was way before this?

5 A It was way before I cooperated, Counselor. It was there 6 you're not giving me the timetable. You're not telling 7 what the person is, who he is, why he is. You have to break 8 it down a little more.

9 Q Okay. 10 A Thank you. 11 a So Nick Gravante, an attorney, is holding 100,000 in his 12 escrow account of your money from the sale of property that 13 you got from your crimes?

14 A Absolutely.

15 Q Of that money, the marshals took that $45,000 in cash and 16 gave it to you?

17 A Wrong. 1a a Did they give you $45,000 of that $100,000?

19 THE WITNESS: Your Honor -- 20 BY MR. McMAHON:

21 a It's a yes or no. 22 THE WITNESS: can I explain the situation? It's 23 a real simple thing . He's misinformed again. 24 THE COURT: Then explained what happened. Do you 25 know what happened to the $100,000 in the escrow account?

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1 THE WITNESS: Yes. 2 THE COURT: Explain what happened. 3 THE WITNESS: Thank you , Your Honor. 4 There was $100,000. Before I got arrested, I sold a 5 piece of property. My lawyer in this case that I got arrested 6 for in '02, got $55,000 of the 100. Leaves 45.

7 While I was in prison, my mother passes away. 12- 8 or $15,000, whatever it was, I paid for the funeral, from 9 jail, out of that money. 10 The other money, Madeline got the check. No 11 marshals, nobody else. It was a small sum, big to others. It 12 was about 15- or $20,000, or whatever the balance was. And

13 that's it. No marshals. 14 BY MR. McMAHON: 1 s a Directing your attention to your prior testimony at page 16 1110. 17 THE COURT: What day, what time, what trial? 18 MR. McMAHON: Judge, the time I don't have.

19 THE COURT: What day? 20 MR. McMAHON: Pizzonia, 3500 MD-57C. April 17, 21 2007, page 1110. 22 THE COURT: Okay. 23 BY MR. McMAHON" 24 Q And I'm going to ask you to see if this refreshes your 25 recollection:

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1 "QUESTION: There was $55,000, I believe, you 2 testified in an attorney's escrow account by the name of 3 Gravante. 4 ANSWER: I think 55 paid out and 45 balance .

5 QUESTION: They allowed you to keep that money held 6 by your attorney.

7 ANSWER : Correct." 8 Do you remember giving those answers to those

9 questions?

10 A I think I just delineated that. I think I just said

11 that. Less the one thing missing out of there, my mother's 12 funeral . 13 a Now, you said they allowed you to keep the $45,000?

14 A I didn't have to - - you want to go back and get the money 15 from the undertaker? I had to pay the guy. So it's less than 16 that. 11 a So out of the $45,000 you paid an undertaker?

18 A Yes. 19 a I didn't ask you what you used the $45,000 for. 20 A You said they gave me $45,000. 21 a I get to ask the questions . 22 A Okay. 23 THE COURT : Is there any money left in the account , 24 to your knowledge? 25 THE WITNESS : No. There was maybe 15- or $20,000

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1 that Madeline, when she was still in the street, she wasn't in 2 the program with me, she got the money. 3 THE COURT: So the money went to Madeline, your 4 mother's funeral, and the attorney. That's the three places 5 that money went? 6 THE WITNESS: Yes. 7 THE COURT: There's nothing left in the escrow

8 account, as far as you know? 9 THE WITNESS: No. That money is spent. 10 THE COURT: Okay. So there we go. 11 BY MR. McMAHON: 12 Q Well, the point is, the marshals gave you $45,000 when 13 you started cooperating in cash to do with as you wanted. 14 A Counselor, what's with the marshals? There's no marshals 15 involved here.

16 Q Do you remember testifying in a previous by the way, 17 do you know that if you have cash sums more than $10,000, that

18 if you were to deposit it in a bank, that the bank would have 19 to fi 11 out a form? 20 A Absolutely. 21 Q Let's say you have 15,000 and you make smaller deposits 22 like five, five, and five, so that the bank doesn't fill out 23 that form, that that's a crime called structuring?

24 A Yes. 2s a When the marshals gave you the money from the escrow

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1 account 2 THE COURT: I will sustain the objection .

3 MR. DENNEHY: Objection.

4 THE COURT: There's no foundation for the question. 5 BY MR. McMAHON: 6 a Did you receive cash from the agents and did they tell 7 you to deposit it in sums of less than $10,000? 8 THE COURT : At what point in time? And who are you 9 defining as agents, marshals or FBI?

10 MR. McMAHON: Judge , this was his testimony at a 11 previous trial.

12 THE COURT: I just want your question clear. You 13 can ask him if ever testified to that. The way it's being 14 structuring is problematic. 15 BY MR . McMAHON:

16 a Did you testify at page 1135, did you testify at the 17 Pizzonia trial, that after you decided to cooperate, that you 18 came into possession of cash from the escrow account of 19 Gravante?

20 MR. DENNEHY: Objection to the form. I would like 21 the question and answer read directly. 22 MR. McMAHON: Judge. 23 THE COURT: Do you want to ask the question says? 24 BY MR. McMAHON: 25 a Did you testify previously that you discussed with the

RONALD E. TOLKIN, RMR, CRR OFFTC:TAI C:OllRT RFPORTFR Di LEONARDO-CROSS-McMAHON 223

1 marshals depositing the cash in accounts of less -- in amounts 2 of less than $10,000? Did you testify previously to that 3 fact? 4 A Not only did I testified to it, it's a fact. I testified 5 numerous times, yes. 6 a So you discussed with marshals depositing cash in a bank 7 in amounts less than $10 ,000? 8 A Yes. 9 a They told you to do that so it wouldn't raise a red flag, 10 is that right? 11 A Absolutely. 12 a So the marshals told you that you could commit the crime 13 of structuring, is that correct?

14 A No . They didn't tell me I was committing any crimes.

15 Q Well

16 A Can I explain it? 11 a Sure. 18 A This is the United States Government telling me to put it 19 in there. If you put over that, a red flag will be raised. 20 They will contact FBI or IRS and they will have to explain 21 you.

22 So for security purposes in the bank, and everywhere 23 else, go slow. Don't raise no flags. Otherwise, we'll have 24 to move you if somebody asks about you. That's the way it 25 was. It was for my security purposes .

RONALD E. TOLKIN , RMR, CRR OFFH~ T Al COllRT RFPORTFR Di LEONARDO-CROSS-McMAHON 224

1 a For purposes of security for Michael Dileonardo, you can 2 do something about bank deposits that other people can't do, 3 is that right?

4 A If they do it like you said, no. 5 a If they make deposits less than $10,000 to avoid the 6 report, if it's somebody other than Michael Dileonardo it's a 7 crime , is that right?

8 A I guess so because there's a statute, sure.

9 THE COURT: Mr . McMahon, how much longer do you 10 have.

11 MR . McMAHON: Quite a bit, Judge . This would be a 12 good time. 13 THE COURT: We'll wait until the lunch is here for 14 the jurors.

15 BY MR . McMAHON : 16 a Now, you didn ' t recall the number of eight to ten former 17 criminal associates that you had contact with in the last five 18 or six years , is that correct?

19 A Like I said, I believe those contacts was before. 20 a In the last five years?

21 A Few years. 22 a Calling your attention to prior testimony 3500 MD-57C, 23 April 17 again . Page 1102 and 1103 . 24 Do you remember being asked these questions and 25 giving these answers:

RONALD E. TOLKIN, RMR, CRR OFFTr.TAI r.OllRT RFPORTFR Di LEONARDO-CROSS-McMAHON 225

1 "QUESTION : And without tell us who these people 2 were, in the last four years, how many people from your old 3 neighborhood have you been in contact with. 4 ANSWER: I would say about eight or ten." 5 And then father down in the testimony: 6 "QUESTION : These eight or ten people, are these 7 people who talked to any of your former criminal associates. 8 ANSWER: I'm sorry. 9 QUESTION: Are these people who you talked to your 10 former criminal associates. 11 ANSWER : Could be , yes. 12 QUESTION: Are these people some of your former 13 criminal associates. 14 ANSWER: Yes. 15 QUESTION : And when you talked to them, you talked 16 to them about your former crimes. 17 ANSWER : Talked about what's going on in my 18 situation. 19 QUESTION: And you talk about what's going on in 20 your former circles, correct. 21 ANSWER: Correct." 22 Now, do you remember giving those answers to those 23 questions in 2007 . 24 A Some of them, I said. 2s a No , no. Did you give those answers to those questions --

RONALD E. TOLKIN, RMR , CRR OFFH~ T Al C:OllRT RFPORTFR Di LEONARDO -CROSS-McMAHON 226

1 A Yes . 2 a -- in 2007 in this building? 3 A Your question was criminal associates. 4 a Yes or no. That's not the question.

5 A Counsel, criminal associates 6 THE COURT : Just answer the question. The 7 government can ask you on redirect if there's some 8 misperception. Just answer the question.

9 THE WITNESS : Yes, that ' s what I said on that day. 10 BY MR. McMAHON: 11 Q You were even able to meet with some of your former

12 criminal associates, is that correct?

13 A Yes.

14 MR. DENNEHY : Can we have a time frame , Your Honor? 15 MR. McMAHON : He said yes .

16 THE COURT : I would l i ke to know . When was that? 17 BY MR . McMAHON:

18 Q When was that?

19 A Probably about three years ago. 20 Q And this is while you were in the program?

21 A Yes. 22 a Was this a meeting that the marshals knew about?

23 A No.

24 a So you broke the rules of the program and went and met 25 with some of your criminal associates?

RONALD E. TOLKIN, RMR, CRR OFFTC:TAI C:OllRT RFPORTFR Di LEONARDO-CROSS-McMAHON 227

1 MR. McMAHON : Judge, is this a good time? 2 THE COURT : Yes. The lunches have arrived. 3 I will send you back to the jury room. Your lunches 4 are here. 5 (Whereupon, the jury leaves the courtroom at 1:10 6 p.m.)

7 THE COURT : You may be seated for just a moment. I 8 have a question for Mr. McMahon when the witness leaves.

9 MR. McMAHON : I didn't hear you . 10 THE COURT: Once the witness leaves, I have a 11 question.

12 (Whereupon, the witness leaves the courtroom.) 13 THE COURT : Mr. McMahon, how much longer do you 14 think that you will be with this witness?

15 MR. McMAHON : Let me see, Your Honor . I would say 16 less than half an hour. 17 THE COURT : Okay. Your next witness will be who? 18 MS. ARGENTIERI: We have two surveillance witness 19 detectives this afternoon. 20 THE COURT: Okay. Do you have any other witnesses 21 this afternoon who will be cooperating witnesses? 22 MS. ARGENTIERI: Yes, Your Honor. 23 MR. McMAHON : Judge , can we get a list, we routinely 24 get at least of the next day's witness, if not at least two 25 days ahead.

RONALD E. TOLKIN, RHR, CRR OFFH~TAI r.OllRT RFPORTFR Di LEONARDO - CROSS-McMAHON 228

1 THE COURT: Ask the government.

2 MR. DENNEHY: May I just raise one point, Your 3 Honor. I'm sorry. 4 There had been an issue previously about the money 5 being held by the FBI of Dileonardo's and the payment of the 6 diamond ring for his wife.

7 THE COURT: Yes . a · MR. DENNEHY: I had informed the Court that, in 9 fact, the money was never paid to the jeweler because he would 10 not provide a receipt to the FBI, and that while 11 Mr. Dileonardo himself believes that the money was paid, in 12 fact, it never was. 13 I had intended to make a motion in limine to 14 preclude cross of Mr . Dileonardo about the FBI buying his 15 wife's ring because, in fact, it never happened , even though 16 he thinks they paid the money . 17 THE COURT: But the issue isn't on his motivation . 18 The issue is on what he thinks . And they're were fully ready 19 to do it. The only reason they didn't do the because the guy 20 couldn't come up with the proof. 21 It's not as if they took some high ground saying 22 we ' re going to keep this money for the victims, we're not 23 going to pay for the girl's ring. The only reason it wasn't 24 paid is because there was no receipt. I don't know if it's 25 appropriate to argue the FBI paid for the ring because that's

RONALD E. TOLKIN, RMR, CRR OFFTr.TAI r.OllRT RFPORTFR Di LEONARDO-CROSS-McMAHON 229

1 not the fact, argue to the jury. But you can argue that 2 here's the circumstance that the FBI offered to pay for the 3 ring. That might be appropriate. 4 MR. McMAHON: I don't know that I even said that. 5 All I was just interested in was the ring was $17,000 that he 6 bought. I don't even think that I said -- I don ' t think that 7 I even said that the FBI paid for it. 8 THE COURT : Technically, the argument cannot be made 9 in summation that the FBI paid $17,000. 10 MR. McMAHON: I didn't. 11 THE COURT: You can say they offered to. Seems like 12 a fact to me, unless I missed it. 13 MR. McMAHON : I thought I just said he bought her a 14 $17, 000 ring. 15 THE COURT: Not that he didn't pay for it. 16 MR. McMAHON: But I didn't even make an issue out of 17 that. 18 THE COURT: We're beginning right at 2:00. 19 (Whereupon a luncheon recess was taken . ) 20 (Matter continued on the next page.) 21 22

23 24 25

RONALD E. TOLKIN, RMR, CRR OFFTC:T Al C:OllRT RFPORTFR Giglio Letter

United States v. Anthony Romanello

EDNY - 1/6/12 U.S. Department of Justice

United States Attorney Eastern District ofNew York

2 i I Cadman Pla::a East Brook(v11, New fork 1120 I

January 6, 2012

By Email

Gerald J. McMahon Law Office of Gerald J . McMahon 26 Broadway, 18th Floor New York, NY 10004

Matthew Mari, Esq . 110 Wall Street, 11th Floor New York, NY 10005

Re: United States v. Anthony Romanello Criminal Docket No . 10-929 (S-1} (ILG)

Counsel:

Pursuant to Giglio v. Unite d States, 405 U.S. 150 (1972) , the government provides the following information.

Michael D'Urso

Government witness Michael D'Urso has been involved in the following cat egories of criminal activity: murder, murder conspiracy, possession of a firearm, extortion, loansharking, gambling, robbery and assault, credit card f r aud, a check c ashing scheme, insurance fraud and narcotics distribution. D'Urso also fraudulently filed for bankruptcy in 1997 . In a ddition, although D'Urso filed tax returns, he failed to report illega l earnings on his taxes.

As of November 28, 2011, the FBI has spent $477,199.18 on e xpenses related to D'Urso's security and subsistence expenses (to include, among other things, relocatio n funds, housing and medical expenses, meals and parking at interviews, car rental and miscellaneous e xpenses). Additionally, the U.S. Marshals Servi ces has spent $89,857 on e xpenses related to D'Urso's participation in the Witness Protection Program, which included the f o llowing expenses, among others: subsistence, housing, medical, travel, documents, relocation and other costs. Generoso Barbieri

Generoso Barbieri has been involved in the followi ng categories of criminal activity, including conspiracies and attempts to commit these crimes: racketeering, loansharking, illegal gambling, bank fraud, possession of a forged instrument, failure to file tax returns, burglary, purchase/ sale of stolen goods, extortion, illegal sale of fireworks, assault, firearms possession, narcotics trafficking, money laundering, credit card fraud, and murder. After his arrest by the FBI in 1997, dur ing his interview with a Pretrial Services Officer, Barbieri denied having a prior criminal record, except for one arrest that resulted from his involvement in a fistfight at the age of nineteen. However, Barbieri had been arrested in 1983 f o r possession of a forged instrument. The Pretrial Services officer discovered the arrest after performing a records search using the name "Robert Generoso . " In addition, during his interview with Probation in connection with his 1997 arrest, although Barbieri admitted that he made demands of loansharking victims, he indicated that he did not believe that his actions were exto rtionate and that he only pled guilty to secure the benefits of the global plea agreement upon his co-defendants. Barbieri also denied obstructing justice in regards to failing to disclose his 1983 arrest. In the same interview, Barbieri also advised that he had filed income tax returns for his periods of employment, but the Probation Officer found no record of such tax returns having been filed. While on pre-trial supervision, probation and/or supervised release at various times in his life, Barbieri violated the terms of his probation and/ or supervised release by continuing to engage in criminal activity, maintaining contact with prohibited persons and making false statements.

Prior to their permanent relocation, the government spent a total of $37,267.62 in security and subsistence expenses for the Barbieri family (to include, among other things, relocation funds, housing and medical expenses, meals and parking at interviews, car rental and miscellaneous expenses ) . This sum includes $150.00 which was deposited into the BOP commissary account of Generoso Barbieri. An additional $99,820 . 00 was expended for the Barbieri family relating to the Witness Security Program, which included the following expenses, among others: subsistence, housing, medical, travel, documents, relocation and other costs.

2 The United States Marshals Service h as expended appro ximately $625.50 for housing and security related to g overnment witness Generoso Barbieri . Additionally, the g overnment has e xpended approximately $62,777.31 i n operational, security and other expenses related to Barbieri.

* * * * *

Additional Giglio material for the witnesses is contained within the 18 U.S.C. § 3500 material that has been provided to you, may also be elicited on direct examination, and may be contained i n future disclosures. If you have any questions, please feel free to contact us.

Sincerely,

LORETTA E . LYNCH UNITED STATES ATTORNEY

By: Jack Dennehy Amanda Hector M. Kristin Mace Assistant U.S . Attorneys (718) 2 54-6 1 33

3 Defense Opposition to Government Motion in Limine

United States v. Anthony Romanello

EDNY - 8/27/12 Case 1:12-cr-00050-CBA Document 217 Filed 08/27/12 Page 1of12 PagelD #: 1330

UNITED ST ATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----··-··--·-·-·------·--·----·----x UNITED STATES OF AMERICA.

12 Cr. SO (S-6) (CSA)

ANTHONY ROMANELLO.

Defendant.

------·------.····--···------·---x

DEFENDANT ANTHONY ROMANELLO'S MEMORANDUM OFLAWINOPPOSITIONTOTHEGOVERNMENrS MOTION TO ADMIT EVIDENCE OF UNCHARGED CRIMES AND FOR ODIER INLIMJNE RELIEF

Gerald J. McMahon. Esq. AtlorMyfor !Nfandant Anthony RomaMllo The Standard Oil Building 26 Broedway. 1a• Floor New York. New York l 0004 Case 1:12-cr-00050-CBA Document 217 Filed 08/27/12 Page 2of12 PagelD #: 1331

UNll'ED STA TES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

UNITED ST ATES Of AMERICA.

-against- 12 Cr. SO (S-6) (CSA)

ANTHONY ROMANELLO.

Defendmt. ------·---·-----x

l11roclvction

Defendant Anthony Romanello (.. defendant .. ) submits this memorandum of law in

opposition 10 the government's multitudinous motions in /imine:

a to introduce evidence of uncharged crimes or bad acts allegedly committed

by defendant. to wit (I) an alleged extortion in 1993 of a Bonnano associate who incurred

debts in a sports betting operation (docket entry no. 182); (2~ his 2007 conviction in the

Southern District of New York for conspiracy to obstruct justice (docket entry no. 189); and

(3) his 2011 plea aJlocuaion in Unit~d Stat~s ''· Romanello. 10 Cr. 929 (S-1) (ILG). allegedly

admittina membership in the Genovese family (docket cnuy no. 182 ).

b. to preclude defendant from introducins evidence of prior good acts (docket

entry no. 112):

c. to preclude the defense from presenting arguments to the jury concerning Case 1:12-cr-00050-CBA Document 217 Filed 08/27/12 Page 3 of 12 PagelD #: 1332

the govemment·s motive in prosecuting this case (docket entry nos. 182 and 190); and

d. to preclude the defense from cross-exarnining cooperating witness

Generoso Barbieri with reprd to incidents ·•involving domestic disputes.. (docket entry no.

185).

The government various motions should be denied. except as consented to herein.

ABGUMENT

A. Unchged Crimes NMI Bed Acts

The Coun is well-aware of the general lcpl principles cited in the government's

motion to admit evidence of uncharged crimes. The government stresses. as always, that the

Second Circuit has taken an inclusionary approach to Rule 404(b). The Court of Appeals has

also stated. however, that "[t]here is no presumption that other.crime evidence is relevant:·

United Stales v. ~Youghn. 601 F.2d 42, 45 (2d Cir. 1979): mmd Unit~d Stales v. Mohel.

604 F.2d 748, 751 (2d Cir. 1979).

This Coun is also aware of its broad discretion to.exclude evidence. even relevant

evidence. Whether Wtehm&cd crimes constitute direct proof of the charged crimes or are

admissible for a proper purpose under Fed.R.Evid. 404(b), the evidence may nonetheless be

excluded if its probative value ··is substantially outweighed by the dqcr of unfair prejudice,

confusion of the issues, misleading the jury and undue delay." Fcd.R.Evid. 403. Uniled State.f

v. Gilan. 961 F .ld 776. 782 (2d Cir. 1992). ··Relevance and prejudice under Rules 401 and

403 are determined in the context of the facts and arguments in a particular case. and thus are

2 Case 1:12-cr-00050-CBA Document 217 Filed 08/27/12 Page 4 of 12 PagelD #: 1333

generally not amenable to broad per st rules. .. Sprint/United Management Company v.

!tkndelsohn, 128 S.Ct. 1140. l 147 (2008). The Court must engage in ... fact-intensive,

context-specific inquiry." Id.

In this case. where defendant Romanello has to defend apinst charges of conspiracy

and extonionate collection ofcRdit. the aovemmcnt now seeks to introduce evidence that

defendant previously committed an extortion. Such additional evidence of similar conduct

would unquestionably create a substantial risk that the jury would convict Romanello on an

unfmr basis. namely .. aencralizing a defendant's prior bad acts into bad character." Uniled

Statf.~ v. McCallu11t. 584 F.3d 471, 476 (2d Cir. 2009). In the Commentary to the Notes of

Advi!Ory Committee on Rules, evidence professors Saltzburg. Capra and Martin wrote:

Under the Rule 403 test. evidence in a criminal case of serious uncharged criminal activity must be examined very carefully. The more heinous the other acts by a defendant. the more likely the jury is to misuse the evidence and treat the defendant as a generally bad person. something the Rule does not pcnnit. Also. the more similar the bid ICt is to the act charged, the more likely the jury is to chw the impcnnissible inference that the defcndant ha a propensity to commit such acts.

Cuelaw reinforces lhe principle that trial judges ~ust be vigilant to ensure that other

crimes evidence doesn '1 lead to a conv;c1ion because of propensity. In Unit~d Stat~,; ''·

Gordon. 987 f.2d 902 (2d Cir. 1993). the district court allowed the government to introduce

at defendant's trial for importatioa/distribution of cocaine the um:hMged crime that he had

previously possessed crack cocaine. In reversing the conviction. the Court of Appeals stated:

We conclude {a) that Gordon·s possession 16 months earlier of a modest amount of cnck and a triple-beam scale had so little value to prove his knowledge that Ghullkie, whom he had met only recently. was importing

3 Case 1:12-cr-00050-CBA Document 217 Filed 08/27/12 Page 5of12 PagelD #: 1334

a large amount of cocaine and marihuana that it was inadmissible under Rule 404(b) ...

Id. 909. See 1!30 De Vaughn. 601 F.2d at 45-47 (conviction of heroin possession with intent

to distribute reversed because of admission of evidence of possession of heroin on a diffcrem

date). In United Slat~., v. Miller, 641F.Supp.2d161. 164 (E.D.N.V. 2009), the defendant was

charpd with, illler alia, use of a passport secured by a false statement and. prior to his trial,

he moved to exclude evidence of his admission to prior passport fraud. Despite finding that

the prior criminal conduct was relevant on the issue of motive. the district court excluded it:

Even if evidence of the 1996 passport fraud is relevant to morivc, the probalive value of that evidence must be balanced againt '"the danger of unfair prejudice [ ...1 " Fed.R.Evid. 403. The tenn "unfair prejudice" as to a criminal defendant ....speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charaed.- Old Chief"- United Slale.f, S 19 U.S. 172, 180 ( 1997). The defense contends thal the defendant"s prior bad act would likely cause the jwy to detennine defendant's suilt based on propensity . ... The government's response does not defeat this contention ...

Miller. 641 F.Supp.2d at 166.

In this case, if the jury were to hear evidence that defendant Romanello engaged in

extortionate conduct arising out ofa gambling debt in 1993. they could not help but conclude

that he had a propensity for such criminal conduct - that it was in his character to commit

that type of bed act. Such an inference is precisely the type of inference that a jury may not

draw from any evidence. and to prevem that. the government's application shoukt be denied.

Moreover, the sovcmment has failed to meet its burden of showing the relevance of

the unchupd acts; it does no more than make generalized pronoWlCCmCllts that the evidence

4 Case 1:12-cr-00050-CBA Document 217 Filed 08127112 Page 6 of 12 PagelD #: 1335

is admissible for various purposes. e.g., to show knowledge and intent. However, Mr.

Romanello is not claiming lack of knowledge or intent. The issue for this jury is not whether

defendant knew what he was doina. or intended to assist in collecting a debt, but whether

such assistance constituted illepl extortion. Evidence of the 1993 extortion, which is quite

remote in time. is simply lDUlCCCssary to rcsol\le any disputed issue. It will only serve the

improper purpose of establishina defendant's propensity to en111e in cxtonion. It would

divert the jurors from considering the strength of the government's case on the acts charged

in this indictment and Mr. Romencllo's defenses to those characs. In fairness. it should be

excluded.

With respect to defendant's 2007 con\liction in SONY for obstruction ofjustice , the

only conceivable relevance is the sentence of probation with six months of house arrest. The

defense will stipulate to the home confinement. And, since the government is likely to be able

to introduce. under existing Second Circuit caselaw, evidence of defendant's reputation in

connection with the pending extortion charge. there is no need to bootstrap onto that evidence

with proof of priorcon\lictions (2007 SONY; 2011 EDNY).

B. E\ljdencc of Prior Good Acts

It is fundamentally unfair. and therefore violative of Due Process. for the government

to be able to introduce e\lidcncc of dcfendanfs prior bad acts but for him to be precluded

from introducing evidence of his prior good acts. That principle is all the more applicable

here where the government will be introducing evidence of defendlnt's bad reputation.

s Case 1:12-cr-00050-CBA Document 217 Filed 08/27/12 Page 7of12 PagelD #: 1336

C. Prcclwiio1 Evi4mcc of·'Goygnmcnfs Motive..

The Sixth Amendment to the Constitution guarantees the right of an accused in a

crimimJ prosecution .,o be con&onled with the witnesses against him:· The primary interest

secured by the Confrontation Clause '"is the ri&ht of cross-examination.·· Douglas v.

Alobalna. 380 U.S. 415. 418 ( 1965). ln our jurispnadcncc. cross-examination has always been

the principal means by which the believability of a witness and the uuth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude rq>etitivc and unduly harassin1 interroption, the cross-cxmniner is not only permitted to delve into the witness' story to test the witness' ~ions and memory, but the cross-examiner has traditionally been allowed to impeach. i.t.• discredit a witness ..... A more particular anack on the witness' credibility is effected by means ofcross-cxunination directed tow.rds revcalina possible biases, prejudices, or ulterior motives of the witness as they may relate dim:tJy to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial. and is "always relevant as discreditin& and affecting the weight of his tesaimony.·· 3A J. Wipnore, Evidence,§ 940, p. 775 (Chadbourn rev. 1970). We have rccoanizm that the exposure of a witness• motivation in testifyina is a proper ad important function of the constitU1ionally-protcctcd ri&ht of cross­ examination. Greene v. Mc'EJroy, 360 U.S. 474, 496 (l 959).

Davis v. A/ask.a, 41 S U.S. 308, 316-17 ( 1974 ). See also Unittd Stales v. Owens, 484 U.S.

SS4, 559 (1988) c-1t is sufficient (to satisfy the Confrontation Clause) that the defendant has

the opportunily to bring out such matten as the witness' biu.. . "); Delaware"· Fenslel'er, 474

U.S. 15. 20 (1985)(-[T)he right to confront one's accusers is satisfied if defense counsel

receives wide latitude at trial to question witnesses.").

If there were any doubt about the right of a defendant to cast aspersions on the

propriety of a prosecution"s case, they we~ unmistakably dispelled by the Uniled Srates

Supreme Court in Kyles "· Whil/ey, S 14 U.S. 419 (1995 ). ln reversing the conviction because

6 Case 1:12-cr-00050-CBA Document 217 Filed 08/27/12 Page 8of12 PagelD #: 1337

the prosecution withheld evidence that could have been used on cross-examination to cast

doubt on the bonafl•s of the aovernment case. the Coun held:

Damage to the prosecution· s cue would not have been confined to evidence of the eyewitnesses. for Beanie· s various statements would have raised opportunities to ati.ck not only the probative value of crucial physical evidence and rhe circumstances in which it was fo~ but the tlloroushna1 and ft'H ae &oocl faltll ef tllc iavadptioa aa well. ( .... ) Beanie's statements to tht police wm replete with inconsistencies llld would have allowed the jury to infer that Beanie was anxious to see Kyles .-rested for Dye's murder. neir dilclol•n wo•ld llave revealed a l"fflarbbly ••rtdcai attitude oa •e part of police. ( .... ) Even if Kyles's lawyer Md followed the more conservative course of leaving Beanie off the stand. lhouah. the defense could have examined the police to good effect on their knowledge of Belnie •s statements and se laave attaeked die reliabUlty of ae iavadpdDa ill fdl.. IO even con11der 8ea•te'1 ,...ible pilt and mtolerada1 (If aot eo•atcll.acfal) 1erloa1 poaibUitia .... a.m.iuelq evWeace W bee• ,._ted. See. c.a, Bowen v. Maynard, 799 F.2d .S93, 613 (JO"' Cir. 1916) (.. A eommoa trilll tlldk of defate lawyen ii to dilcnclit IM eaHber ef tile illvestlptilMI or •e 41ecilioll to e ...rp Ille defndaat, and we may eoa11der •Ilda ue ill aueuillt a ...... vielatioll); Lindwy v. King. 769 F.2d 1034. 1042 (S"' Cir. 1985) (awning new trial ... because withheld Brady evidence ..arried witll• It die petmdal -· r.r die ... dilenditln1 ••. of die police •etllodt etapleyed i• UHmbli•I tile cue"). ( ....) Since the police admittedly never treated Beanie as a suspect, the defense could thus have used his staaements to daiww tlae n:UmbiUty of tile mv•tiption i•to 4ollbt aH .. •lly die crCdlbllity of Detective Dll.. D, wllo tfldlled tllat Beaate •• aever • iaapect... ( ....) The potential for damage from using Beanie's statement to ...,..ine die OlteMible iateptly of tM a.veltlptio• is only confinned by the prosecutor's admission ... ( .... ) Beanie's same swement. indeed. could have been used to eap u attaek oa tlae mtesrlty of tlle lnvesttptlom ... • die reliabUily of Detective ow.a.• ...

Kyles v. Whitley. S 14 U.S. at 445-49 (emphasis added). 7 Case 1:12-cr-00050-CBA Document 217 Filed 08/27/12 Page 9 of 12 PagelD #: 1338

The Coun of Appeals for the Second Circuit has also taken an expansive view of a

defendant's right to cross-examine a witness for bias or a motive to testify falsely. Sec e.a.

United Slates v. Weis.,. 930 F.2d I IS, 197 (2d Cir. t 991) (-The defendant should be given

wide latitude in cross-examinina a government witness in a criminal case . .... The Federal

Rules of Evidence do not expressly deal with the concept of impcachina a witness for bias,

but the Rules clearly contemplate impeachment of this nature. United States v. Abel, 469 U.S.

45, 49-S 1 [ 1984 )"); United Stales v. J01Ms, 609 F.ld 36, 46 (2d Cir. 1979) (-However. •bias

of a witness is not a co11ateral issue and extrinsic: evidence is admissible to prove that a

witness has a motive to testify falsely: United Sla1es v. lfarvey. S41F.2d720. 722 [2d Cir.

1976)."): United State.'1 v. Blackwood. 456 F.2d 526, 530 (2d Cir. 1972) (Special treatment is

accorded evidence which is probative of a motive to lie .. fer if believed it colors every bit of

testimony aiven by the witness whose motives arc h.rcd. "): United States v. Masino. 215

F.2d 129. 132 (2d Cir. 1960) (.. When a witness in a criminal case is being questioned as lo

his possible motives for tcstifyina falsely. wide la&itude should be allowed in cross­

cxamination."); United State.'1 v. le.'lter, 248 F.2d 329, 333-35 (2d Cir. 1957) (••Thus. facts

may be shown from which it miaht be concluded that the witness favors the party for whom

he has testified .... The rule [allowing extrinsic evidence to show bias] encompasses all facts

and circumstances which. when tested by human experience, tend to show that a witness may

shade his testimony for the purpose ofhclpina to establish one side of the cause only."). It

shculd be notm that the Court ofAppeals reversed the convictions in Ha"1ey, Masino. and

lester.

8 Case 1:12-cr-00050-CBA Document 217 F=iled 08/27/12 Page 10 of 12 PagelD #: 1339

Turning to the facts ofthis case, the defense will not be raising the issues ofjury

nullification or selective prosecution. but rather anticipates cross-examining law enforcement

witncues, inter alia, about whether they were motivated to "'shade [their] testimony" to

increase the pressure on defendant Romanello to become a cooperating witness for the

govemmenL Under Supftme Court and Second Circuit precedent, that area of inquiry is

clearly pcnnissible. ln 20 I 0, a court in this district ruled that a defendant was entitled to

cross-examine law enforcement agents about a motive to falsify a post-anest statement.

despite the fact that a motion to suppress the statement had been denied .

... Morel argues thal he should be permitted to show that any testimony regarding his admissible post·arTCSt statements is a fabrication or exageration of his true statements .... To support this defense, Morel argues that he ..must provide the jury with 1n explanation for what may have motivated the agents to fabricate, exagerate, or embellish" the evidence, (citation omitted) ..... As the Supreme Court explained in Creme [v. Kent11dy, 476 U.S. 683 (1986)). ''stripped of the power to describe to the jury the circumstances that prompted his confession. the defendant is effectively disabled &om answering the one question every rational juror needs answered: lf the defendant is innocent. why did he previously admit his 1uilt?'" Crane. 476 U.S. at 689. Without the ability to present evidence regarding the circumstances under which his admis.tible statements were made and thereby anack the credibility of the acents who are likely to testify about those statements, M~I would be denied his right to have a meaningful opportunity to present a complete defense. &c HJ.. at 690 (finding that "lhe blanket C1'c:lusion"of the proffered testimony about the circumstances of [the defendant's] confession deprived him of a fair trial").

United States v. Mcwel, 751 F. Supp. 2d 423, 429-430 (E.D.N.Y. 2010) (emphasis in

originaJ).

D. Crpss-Examioation ofCoopcratina Witnc:;ss Gencrgso Barbieri

Current cooperating witness Generoso Barbieri recently threatened to kill his wife and

9 Case 1:12-cr-00050-CBA Document 217 Filed 08/27/12 Page 11of12 PagelD #: 1340

her .. fa11ot" boyfriend unless she paid him money and ended the affair. And what is the

government's response lo dtis violenc criminalicy? Does the United Scates Attorney's Office

for the Eastern District of New York tear up his cooperation apeement and have him

arrested? No. They file a motion in limint seeking to preclude the defense from cross-

examinina ..Jimmy the General'· about his -domescic disputes.. . Shameful. So shameful. in

fact. that this Coun should dismiss the indictmenc .pinst defendant Romanello on Due

Process growxls and in the exercise of its supervisory auahority. Uni1ed .';Jates v. Schmidt. IOS

F.3d 82. 91 (2d Cir. 1997). Ahcmativcly. the aovcmment should be precluded from callina

Barbieri as a witness ll trial.

In any event. the defense should be pennincd to cross-examine Barbieri about his two

faces; the "law-abiding", cooperating wianess and .,he real Genero":

I want my fucking money.

Dare me what to do to him, fuckin' my wife. you'll see what I'm gonna do to him ... he's fuckin' dead.

I'm gonna kill this fuckin' fagot.

l'II blow his fuckin • brains out.

rll go back to prison. I don't care.

ru show him who the real Genero is. this Irish scumbag.

Govemmena Lener Brief. July 24. 2012 (docket entry no. J85), at J.

10 Case 1:12-cr-00050-CBA Document 217 Filed 08/27/12 Page 12 of 12 PagelD #: 1341

CONCLUSION

The aovemmenfs motions in limine should be denied.

Dated: New York. New York August 27, 2012

Id J. Mc ahon. Allonr~y for Anthony Romanello The Slandard Oil Building 26 Broadway, 11111 Floor New York. New York I0004 212.797.1877 212.797.1419 (fax) [email protected] (email)

To: All Counsel (byf.CFJ

11 Judgment of Acquittal

United States v. Anthony Romanello

EDNY - 12/20/12 Case 1:12-cr-00050-CBA Document 274 Filed 12/20/12 Page 1of1 PagelD #: 1851

'AO 24St\ (Rev. 12/03) Judement or Acslliual

UNITED STATES DISTRICT COURT

------"E;..;...A...... S_T_ER_N ___ DISTRICT OF ___N_EW_Y_O_R_K ______

UNITED ST ATES OF AMERICA JUDGMENT OF ACQUITTAL v.

ANTHONY ROMANELLO CASE NUMBER:.,&fiD (CBA) U.& DlliRICrCO!~N•. Y. * DCC 20 2012 * BROOKLYN OFFICE

The Defendant was found not guilty. IT IS ORDERED that the Defendant is acquitted, discharged, and any bond exonerated .

.,,._$/Carol Bagley Amon·

I ~ Signature of Judge u ) Carol Byler AlllOll, ChiefU.S.D.J. Name and Title of Judge

December 19. 2012 (defendant found not guilty 1113012012) Date