Case 1:97-cv-02079-ARR Document 88 Filed 01/25/11 Page 1 of 151 PageID #: <pageID> Not for Print or Electronic Publication UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------X UNITED STATES OF AMERICA, OPINION & ORDER -against- 92-CR-351(ARR) MICHAEL SESSA, Defendant. -----------------------------------X -----------------------------------X MICHAEL SESSA, Petitioner, OPINION & ORDER -against- 97-CV-2079(ARR) UNITED STATES OF AMERICA, Respondent. -----------------------------------X ROSS, J. Table of Contents Table of Contents......................................... 1 I. Introduction & Procedural Background ................ 3 II. Petitioner's Trial .................................. 8 A. Background .......................................... 8 B. Evidence Adduced at Trial ........................... 9 1. Petitioner's Position within the Colombo Family ... 9 2. The Murder of Anthony Coluccio ................... 10 3. Conspiracy to Murder Members of the Orena Faction 13 4. Loansharking Conspiracy .......................... 22 Case 1:97-cv-02079-ARR Document 88 Filed 01/25/11 Page 2 of 151 PageID #: <pageID> III. The DeVecchio and Scarpa Scandal ................... 26 A. Scarpa's Criminal Activities ....................... 28 B. Scarpa's Cooperation with Law Enforcement .......... 30 C. DeVecchio's Misconduct ............................. 31 D. Discovery and Disclosure of Scarpa and DeVecchio Information ................................................. 33 IV. Law Applicable to Petitioner's Post-Conviction Motions 44 A. Rule 33 ............................................ 44 B. Section 2255 ....................................... 45 V. Timeliness of Petitioner's Post-Conviction Submissions 46 A. Timeliness of Petitioner's Rule 33 Motion .......... 46 B. Timeliness of Petitioner's Section 2255 Petition ... 50 VI. Claims Common to Petitioner's Rule 33 Motion and Section 2255 Petition......................................... 58 A. Newly Discovered Evidence/Brady Violations ......... 58 1. The New York City Police Department Reports ...... 60 2. The Scarpa/DeVecchio Information ................. 71 3. Various Undisclosed Evidence ..................... 92 B. The Government's Outrageous Conduct ................ 93 VII. Section 2255 Claims ............................... 103 A. DeVecchio's Perjured Testimony .................... 103 B. Linda Mae Kemble's Testimony ...................... 110 C. Jury Selection .................................... 114 D. Improper Jury Instructions ........................ 118 E. Improper Sentence ................................. 120 F. Elements of Loansharking .......................... 121 G. Ineffective Assistance of Trial Counsel ........... 125 H. Ineffective Assistance of Appellate Counsel ....... 135 VIII. The Requested Evidentiary Hearing ................. 138 IX. Petitioner's Motion to Remove Counsel and Appoint Substitute Counsel........................................... 143 X. Petitioner's Motion to Appoint a Special Prosecutor 147 XI. Conclusion ........................................ 150 2 Case 1:97-cv-02079-ARR Document 88 Filed 01/25/11 Page 3 of 151 PageID #: <pageID> I. Introduction & Procedural Background On November 12, 1992, following a two week jury trial before the Honorable Jack B. Weinstein, petitioner Michael Sessa was convicted of: (1) participating in the conduct of the Colombo organized crime family of La Cosa Nostra (the "Colombo Family") through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c) ("Count One"); (2) conspiring to participate in the conduct of the Colombo Family through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d) ("Count Two"); (3) conspiring to murder Anthony Coluccio ("Coluccio"), a Colombo Family associate, in violation of 18 U.S.C. § 1959(a)(5) ("Count Three"); (4) murdering Coluccio in violation of 18 U.S.C. § 1959(a)(1) ("Count Four"); (5) conspiring to murder those members of the Colombo Family loyal to Victor Orena (the "Orena Faction") in violation of 18 U.S.C. § 1959(a)(5) ("Count Five"); (6) conspiring to make extortionate extensions of credit in violation of 18 U.S.C. § 892 ("Count Six"); (7) conspiring to make extortionate collections of credit in violation of 18 U.S.C. § 894 ("Count Seven"); and (8) using and carrying a firearm in connection with crimes of violence, specifically Counts Three, Four, and Five, in violation of 18 U.S.C. § 924(c)(1) ("Count Eight"). 3 Case 1:97-cv-02079-ARR Document 88 Filed 01/25/11 Page 4 of 151 PageID #: <pageID> On May 24, 1993, Judge Weinstein sentenced petitioner to a term of life imprisonment on Count One, a term of life imprisonment on Count Two, a ten-year term of imprisonment on Count Three, a term of life imprisonment on Count Four, a ten- year term of imprisonment on Count Five, a twenty-year term of imprisonment on Count Six and a twenty-year term of imprisonment on Count Seven. The terms of imprisonment on Counts One through Seven were to run concurrently. Additionally, Judge Weinstein sentenced petitioner to a consecutive five-year term of imprisonment on Count Eight, pursuant to 18 U.S.C. § 924(c). Judge Weinstein imposed cumulative fines in the amount of $250,000 per count, in the total amount of $2,000,000, and ordered petitioner to pay for the costs of his own imprisonment at the rate of $1,492 per month, as well as a special assessment of fifty dollars per count, for a total special assessment of $400. On June 2, 1993, petitioner filed a Notice of Appeal with the United States Court of Appeals for the Second Circuit, asserting the following claims: (1) Counts One and Two failed to state an offense because the Colombo Family war negated the enterprise element of the racketeering charges; (2) the government elicited inadmissible and prejudicial evidence concerning prior conduct and other crimes at trial; (3) Judge Weinstein improperly "sequestered" the jury; (4) Judge Weinstein 4 Case 1:97-cv-02079-ARR Document 88 Filed 01/25/11 Page 5 of 151 PageID #: <pageID> improperly prohibited petitioner's counsel from eliciting expert character evidence concerning a government witness's propensity for untruthfulness; (5) the government improperly withheld various tape recordings; (6) the prosecutor improperly argued during his summation that petitioner placed individuals strategically in the courtroom to intimidate a witness; (7) a magistrate judge improperly conducted the jury selection; and (8) Judge Weinstein improperly sentenced petitioner based upon the history of organized crime and the criminality of others. Petitioner also filed a supplemental brief entitling his supplemental ground on appeal as "Trial Counsel was Ineffective," but arguing that testimony of a cooperating government witness, Joseph Ambrosino, contained improper hearsay and that the jury instructions concerning the government's burden of proof were constitutionally deficient. (Corrected Copy of Petitioner's Brief on Appeal at 87.) By Mandate issued on October 13, 1994, the Second Circuit affirmed petitioner's conviction in all respects. United States v. Sessa, 41 F.3d 1501 (2d Cir. 1994) (table). Petitioner did not file a writ of certiorari to the Supreme Court. 5 Case 1:97-cv-02079-ARR Document 88 Filed 01/25/11 Page 6 of 151 PageID #: <pageID> On October 11, 1996,1 petitioner filed his motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure (the "Rule 33 Motion") arguing, inter alia, that he is entitled to a new trial on the basis of newly discovered evidence allegedly suppressed by the government at his trial. The government opposed the Rule 33 Motion on March 2, 1999. On April 22, 1997, petitioner filed a petition ("Petition") for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 ("Section 2255"). The government opposed the Petition on June 2, 1997, but after petitioner failed to reply or otherwise move the proceeding forward, on March 15, 2001, Judge Weinstein dismissed the habeas case, and denied any pending motions in the criminal case, for failure to prosecute. (Sessa v. United States of America, 97-CV-2097 ("Habeas Docket") No. 45.). On July 31, 2001, because neither petitioner nor his counsel was warned that the Petition would be dismissed for failure to prosecute, Judge Weinstein reinstated the habeas case and the Rule 33 motion. On June 24, 2002, Judge Weinstein recused himself from petitioner's habeas case and underlying criminal case, and both cases were transferred to the Honorable David G. Trager. Several years and substitutions of attorneys later, on March 16, 2009, petitioner filed a document entitled 1 Petitioner amended his motion on November 20, 1996 to correct various errors. 6 Case 1:97-cv-02079-ARR Document 88 Filed 01/25/11 Page 7 of 151 PageID #: <pageID> "First PETITION for Writ of Habeas Corpus."2 (Habeas Docket No. 45.) The Amended Petition has been fully briefed since July 1, 2010. On January 11, 2011, the habeas case and criminal case were transferred to the undersigned. Currently pending in petitioner's cases are the following: (1) a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, filed on October 11, 1996, and amended on November 20, 1996 ("Rule 33 Motion"); (2) the Petition for a writ of habeas corpus pursuant to Section 2255, filed on April 22, 1997, and amended on March 16, 2009; (3) a motion for a writ of mandamus ordering the attorney general to appoint a special prosecutor, filed on May 27, 2009; (4) a motion for an evidentiary hearing,