Reply to the Government's Opposition to Thomas Gioeli's Motion to Set Aside the Verdict

7/30/2019 Reply to the Government's Opposition to Thomas Gioeli's Motion to Set Aside the Verdict

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK-------------------------------------------------------x

UNITED STATES OF AMERICA,

-against- Case No. 08-cr-240 (S-6) (BMC)

THOMAS GIOELI, et al.,Defendant.

-------------------------------------------------------x

THOMAS GIOELI'S REPLY TO

THE GOVERNMENT'S OPPOSITION TO

THE MOTION TO SET ASIDE THE VERDICT

Dated: New York, New YorkAugust 30, 2013

LAW OFFICES OF ADAM D. PERLMUTTER, P.C.260 Madison Avenue, Suite 1800New York, NY 10016Tel: (212) 679-1990Fax: (888) 679-0585Attorneys for Thomas Gioeli


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Table of Contents

Introduction .........................................................................................................................1Additional Pertinent Facts ...................................................................................................2Argument.............................................................................................................................3

A. The Government Violated Gioeli's Due ProcessRights by Suppressing Evidence of Calderone'sInvolvment in the Murder of Frank Marasa ............................................................3

1. The Failure to Disclose Favorable Evidence tothe Accused Does not Require Bad Faith.............................................................3

2. The Prosecution Team had Knowledge of, andSuppressed the Evidence of Calderone'sInvolvement in the Marasa Homicide. .................................................................5

a. The Prosecution Team Knew or Shouldhave Known about 'sMarch 19, 2012 Proffer Session .......................................................................5

b. told the Government aboutCalderone's Presence at the MarasaHomicide on March 19, 2012. ..........................................................................7

3. The Value of the Evidence to Gioeli's Defense....................................................9

a. The Evidence Directly Supportsthe Theory of Defense.......................................................................................9

b. 's Information Could haveLed to New Leads for Gioeli ..........................................................................12

c. The New Evidence also Questions The Investigation ....................................13C. If the Court is not Inclined to Vacate

Gioeli's Conviction, a Hearing Should beHeld to Establish the Factual Basis ofthe Suppression of Evidence..................................................................................16


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D. Gioeli Persists in his Motion for allBrady Materials ............................................17E. Gioeli Joins Saracino's Reply to the Opposition....................................................17

Conclusion .........................................................................................................................18


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Introduction

Defendant Thomas Gioeli submits this Reply in response to the Government's

Opposition to Gioeli and Dino Saracino's Motions to Vacate (the "Opposition"). By the

governments response, it engages in a revisionist view of the trial evidence, the jury

findings, and the procedural record of this case in a lame attempt to cover over its gross

misconduct in not disclosing importantBrady evidence in its possession. The

governments submission reflects a pattern of bias and lack of oversight that has sadly

undermined the integrity of the judicial process in this case. That the government would

now seek to have the Court excuse its conduct without any acknowledgement of

wrongdoing is breathless in its scope. Even more troubling is how the governments

conduct continues to cast a long shadow of doubt about the overall handling of this case.

This prosecution rests on the thinnest reed of conviction and, all the while, the

government proceeds oblivious to the heavy winds that have blown down its cooperators,

its case agent, and now the governments prosecution team itself. Because of the serious

issues raised about the integrity of the governments conduct, prosecution and conviction,

the Court must grant Gioeli a new trial, or, as a preliminary matter, and the barest

minimum, an evidentiary hearing to fully explore the facts underlying the seriousBrady

violation that has now unfolded in this otherwise unfortunate prosecution.


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Additional Pertinent Facts

Since the filing of Gioeli's Second Motion Set Aside the Verdict ("Gioeli's Mot."),

the government has made additional disclosures relevant to the instant motion related to

the attendees of confidential informant 's proffer sessions. These

disclosures, which were only revealed after inquiry by the defense, demonstrate that the

Brady violation occurred within the Gioeli prosecution team itself and not, as the

government portrays, in a separate DEA investigation. Below is Gioeli's understanding

of the representatives from the United States Attorney's Office of the Eastern District of

New York who attended proffer sessions with :

1. On January 26, 2012, AUSAs Elizabeth Geddes and NicoleArgentieri met with . At this meeting discussed Joseph "JoeCaves" Competiello stabbing someone with a fork, and made some reference toDino Calabro.

2. On Februar 9, 2012, AUSA Nicole Argentieri met with .During this session, offered information regarding the Richard Greaveshomicide.

3. On March 19, 2012, AUSAs Nicole Argentieri and Rachel Nashmet with . At this proffer session discussed the Marasa homicide.


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Argument

A. The Government Violated Gioeli's Due Process Rights by Suppressing Evidenceof Calderone's Involvment in the Murder of Frank Marasa

1. The Failure to Disclose Favorable Evidence to the Accused Does notRequire Bad Faith.

When commencing a criminal action of an accused person, the prosecutor

assumes the tremendous responsibility of not only zealously advocating on behalf of the

public, but also assessing and disclosing to the accused all information that has a

reasonable probability of affecting the outcome of the trial. See Kyles v. Whitley, 514

U.S. 419, 437 (1995). These dual roles often stand in tension. A prosecutor, who is

likely convinced that the accused is guilty, must assume an impartial mindset to gauge

the likely net effect of evidence. Id. Even if a prosecutor acts in good faith, but falls

short of the mandates ofBrady, and fails to disclose known, favorable evidence, a

violation has occurred. Id. The Supreme Court has not only acknowledged the tension

between a prosecutor's dual roles, the Court also prescribed a remedy:

[A] prosecutor anxious about tacking too close to the wind will disclose afavorable piece of evidence. This is as it should be. Such disclosures willserve to justify the trust in the prosecutor as the representative of asovereignty whose interest in a criminal prosecution is not that it shall wina case, but that justice shall be done. And it will tend to preserve thecriminal trial, as distinct from the prosecutor's private deliberations, as thechosen forum for ascertaining the truth about criminal accusations.

Kyles, at 440-41 (Internal quotations and citations omitted). Seealso United States v.

Agurs, 427 U.S. 97, 108 (1976) ("The prudent prosecutor will resolve doubtful questions

in favor of disclosure.")

The most generous reading of the governments conduct in Gioelis case is that it

presents an example of serious cognitive bias, which is a well-known cause for disclosure


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failures by prosecutors. See Alafair S. Burke,Improving Prosecutorial Decision Making:

Some Lessons of Cognitive Science, 47 WM.&MARY L.REV. 1587, 1590-91 (2006);

Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in

Criminal Cases, 2006 WIS.L.REV. 291 (2006). Cognitive bias is a universal, human trait,

and not "deliberate malfeasance, a negative character trait, or 'bad cop' behavior . . . and it

is largely an unconscious process and cannot be overcome by force of will, good

intentions, or even training." Erin Morris, Ph.D., Cognitive Bias and the Evaluation of

Forensic Evidence, THE CHAMPION, May 2012 at 12. One particular aspect of cognitive

bias, especially related to criminal prosecutions, is confirmation bias, which "suggests a

natural tendency to review [evidence], not for exculpatory evidence that might disconfirm

the tested hypothesis, but instead for inculpatory, confirming evidence." Alafair S. Burke,

Improving Prosecutorial Decision Making, 47 WM.&MARY L.REV. at 1603. In short,

recent science demonstrates that a prosecutor, even acting properly within an adversarial

system, may be naturally pre-disposed towards being unable to recognize the exculpatory

value of evidence.

The government, through its actions in this case and by its response, has

demonstrated a complete inability to recognize the potential value of evidence for the

accused. For example, the government goes so far as to absurdly state that James

"Jimmy" Calderone's admission to presence at the Marasa homicide, which directly

contradicts Dino Calabro's version of events, "is not favorable to Gioeli in any way."

Opposition at 20. The government further takes the bold position that disclosure of two

new potential witnesses, confidential informant , and Marasa murder

participant Jimmy Calderone, could not possibly have generated new leads for Gioeli's


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defense. Opposition at 21. The government is unable to even make sense of that

possibility and calls Gioelis position in this regard nonsensical. Of course, once the

government's premise of Gioeli's certain guilt is removed, the possibility that these

witnesses may offer additional exculpatory evidence is not only sensible, it is likely.

The governments single-minded certainty that Gioeli is guilty (even after his

multiple acquittals) has hobbled its ability to adequately function in its role as sole

arbiters of whether materials require disclosure. This failure has now resulted in a

serious violation of Gioeli's due process rights, and in an inability to adequately defend

himself fully at trial. Good faith or mere negligence does not excuse these violations.

Kyles, at 438; Giglio v. United States, 405 U.S. 150, 154 (1972) ("[W]hether the

nondisclosure was a result of negligence or design, it is the responsibility of the

prosecutor.")

2. The Prosecution Team had Knowledge of, and Suppressed the Evidence ofCalderone's Involvement in the Marasa Homicide.

a. The Prosecution Team Knew or Should have Known about

's March 19, 2012 Proffer Session

The government states in its opposition that it had no knowledge that had

discussed the Greaves or Marasa homicide. Gioeli does not need to establish that the

prosecutors who signed the Opposition actually knew what said in his proffer

sessions. The fact that other prosecutors working at the same office gained that

information requires that the prosecutors on this case be imputed with that knowledge.

But the revelation that one of the prosecutors in this case, AUSA Rachel Nash, was

present at the March 19, 2013 proffer session, erases any possible doubt that this

information was, in fact, known to the prosecution team and actively suppressed.


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As stated above, since Gioeli's initial motion, he has learned that AUSAs Nicole

Argentieri and Rachel Nash were present with unknown DEA agents and at the

March 19, 2012 proffer the same day as opening statements in Gioelis case. AUSA

Rachel Nash is one of the attorneys representing the government in this case. See Notice

of Attorney Appearance, ECF No. 461.1 AUSA Argentieri is not a member of the

prosecution in this particular case, but is a prosecutor in the United States Attorney's

Office for the Eastern District of New York who has worked with the prosecutors in

Gioeli's case in other prosecutions of alleged Colombo family members. See e.g. United

States v. Bombino, et al. 10 Cr. 147 (SLT) (serving as co-counsel with AUSAs Geddes

and Nash in the prosecution of, amongst others, Michael Persico and Theodore Persico,

Jr.).

The Supreme Court squarely addressed the issue of imputing knowledge from one

attorney, who had previously worked on a prosecution, to the current prosecutor in the

landmark case ofGiglio v. United States, 405 U.S. 150 (1972). The Giglio Court held

that the former prosecutor's admitted failure to share information with the current

prosecutor did not excuse the failure to disclose. Id. at 154. The Court made clear that a

prosecutor will be charged will the knowledge of all other attorneys working on the case:

To the extent this places a burden on large prosecution offices, proceduresand regulations can be established to carry that burden and to insurecommunication of all relevant information on each case to every lawyerwho deals with it.

1 Although AUSA Nash filed her Notice of Appearance on November 18, 2009, shebegan working on the prosecution team at some point earlier. See Letter DisclosingAdditional Discovery dated October 5, 2009,ECF No. 413 (signed by AUSAs Geddes,Gatta, Posa, and Nash). Each of these documents demonstrates her role on the Gioeliprosecution team long before theBrady evidence at issue in this motion came to light.


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Id. It is now clear that the United States Attorney's Office for the Eastern District of New

York failed to carry that burden here.

Additionally, the January 26, 2012 proffer notes show that AUSA

Geddes learned that had, at a minimum, knowledge of crimes committed by

Competiello. Gioeli has no information why AUSA Geddes stopped attending proffer

sessions with . Gioeli is similarly unaware why AUSAs Argentieri or Nash

would fail to report information directly related to murders being prosecuted by their

colleagues, especially when AUSA Nash was a noticed member of the Gioeli prosecution

team. Even now, the governments response does not assert what actually stated

at the March 19, 2012 proffer, but offers an interpretation of the proffer notes: no

affidavit from AUSAs Argentieri or Nash, or any of the DEA agents accompanies the

governments submission. It appears as if, rather than fulfilling their duty to learn of

favorable information to the defense, an ad hoc firewall has been erected for no other

purpose than to shield the prosecutors from this information and to abrogate important

ethical responsibilities.

b. told the Government about Calderone's Presence at theMarasa Homicide on March 19, 2012.

The governments response claims that 's March 19, 2012 proffer session,

in which he discussed the Marassa homicide, is notBrady information. As stated above,

the government claims that it does not know, nor should this Court even inquire, as to

what the actual conversation consisted of. The government is confident, however, that

did not reveal Calderone's presence at the Marasa homicide, despite notations

reflecting 's discussions of both the murder and Calderone. Instead, the

government opines that, based on the scant proffer notes, stated nothing "which


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can even qualify as impeachment material as to the government's witnesses." Opposition

at 18.

The May 10, 2012 recording (the "Recording") belies the governments benign

interpretation of the proffer notes. In the Recording, , notCalderone, brings up

Calderone's presence at the Marasa homicide. See Gioeli Mot. at Ex. G. states

to Calderone, "You were there for Chestnut's. You were there for Chestnut's." Calderone

then agrees that he was present for the murder with Competiello, McLaughlin, and

Calabro. It is evident from this exchange that knew of Calderone's presence at

the Marasa homicide prior to the Recording. In light of this fact, the notation "talk about

chestnut" in the March 19, 2012 proffer notes under "Jimmie Calderone" should read in

the most simple interpretation, i.e., that related to the government that

and Calderone had talked about Calderone's presence at the Marasa homicide.

The prosecution claims that despite the clear notations in the proffer notes, "there

is no indication that [ ] had revealed any information about Calderone's alleged

presence at the murder during the interviews." Opposition at 18. To accept this view

would mean that proffered information about discussion with Calderone

concerning the Marasa homicide, which included the murder's participants, but

held back Calderone's involvement, until the Recording, when stated the fact in a

conversation that he was recording. The government has offered no support for this

improbable omission. All available evidence shows that on March 19, 2012 told

AUSAs Nash and Argentieri, and others, about Calderone's involvement in the Marasa

homicide. If the Court credits the unlikely scenario posited by the government, a hearing

must be held to determine the truth of what was said at that session.


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3. The Value of the Evidence to Gioeli's Defense

a. The Evidence Directly Supports the Theory of Defense

Exhibiting the height of disconnectedness from the evidence, and the devastation

reeked on the governments case at trial, it blithely dismisses Calderone's admitted

participation in the Marassa homicide as "not favorable to Gioeli in any way."

Opposition at 20. The government claims that the manner in which the Marasa murder

was committed, and even who participated, in immaterial to Gioeli's guilt. Opposition at

20. This is plainly false. The government's case for linking Gioeli to the murder is

Calabro's testimony that Gioeli plotted and directed the murder with detailed instructions.

Of particular importance, Calabro claimed that Gioeli discussed his approval or

disapproval of each participant (especially after OJs brother was apparently unwilling to

be part of the hit team). According to Calabro, Gioeli also supposedly held a final

meeting before the murder with all of the participants. The revelation of two additional

participants in the murder, Calderone and Competiello, nevermentioned by Calabro,

directly refutes Calabro's account of this murder conspiracy. Moreover, the fact that the

two additional participants were "Bay Parkway Boys" (Tr. 2258:8-2261:21, 2393:9-18)

directly supports Gioeli's version of this murder as a revenge killing planned and

orchestrated by the Bay Parkway Boys and unrelated to Gioeli.

Since the government cannot admit that it has been caught suppressingBrady

material, it makes the empty claim that "[a]t most, Calderone's statements to [ ]

constitute impeachment material as to Calabro and Competiello." Opposition at 20. The

government then argues that, as simply impeachment material, the suppressed evidence is

cumulative. A closer examination of the cases cited by the Opposition reveals that its

characterization of this material as mere cumulative impeachment evidence is mistaken.


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The government relies most heavily on two cases: United States v. Persico, 645

F.3d 85, 111 (2d Cir. 2011) and United States v. Gambino, 59 F.3d 353, 363-67 (2d Cir.

1995). Both cases stand for the proposition that a new trial may be denied where

suppressed evidence was merely additional bad acts committed by a government witness

who was thoroughly cross-examined regarding other bad acts. In Gambino, the defense

learned after trial that the lead witness had lied previously about his own drug dealing,

and encouraged another potential witness to deceive a grand jury. Gambino at 363-64.

The court denied a new trial and deemed the new evidence cumulative since it "would

scarcely have rendered his gloomy past worse." Id. at 366. InPersico, the court

addressed whether the revelation that a witness misrepresented her disclosure of $1.65

million to government agents warranted a new trial. Persico at 110-11. This evidence

was also found immaterial since the witness's testimony was "only a small portion of the

evidence" against the defendant, and the witness was otherwise "anything but a credible

witness." Id. at 112. Both cases address evidence of additional misdeeds, which could be

used to attack the witnesses' general believability. The other cases cited by the

government are equally inapposite. See United States v. Avellino, 136 F.3d 249, 256-57

(2d Cir. 1998) (disallowing withdrawal of plea after defendant learned of witness's

violation of cooperation agreement); United States v. Wong, 78 F.3d 73, 81 (2d Cir.

1996) (denying new trial where new evidence of failure to file tax returns and alleged

attempts at cooperation by a government witness would only have further undercut

witness's already impeached general credibility); United States v. Helmsley, 985 F.2d

1202, 1210 (2d Cir. 1993) (refusing to grant new trial after post-trial indictment of


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witness for preparing fraudulent financial statements)2; United States v. Petrillo, 821 F.2d

85, 90 (2d Cir. 1987) (denying new trial where new evidence revealed government

witness may have lied about his income tax evasion and had previously tried to downplay

his own criminal involvement). None of these cases address new evidence that would

directly contradict testimony regarding the underlying charges.

The circumstances in this case most closely resemble those in United States v.

Rivas, 377 F.3d 195 (2d Cir. 2004). InRivas, the key government witness, Pulgar,

testified that drugs found in his cabin aboard a boat entering the United States belonged

to his cabin-mate, the defendant. Id. at 196-98. At trial, the defense vigorously cross-

examined Pulgar, during which Pulgar made several admissions of misdeeds, and argued

that Pulgar, not the defendant, had hidden the drugs in the cabin. Id. After the

defendant's conviction, the defense learned that Pulgar had admitted to the government,

that Pulgar brought the package of drugs on board, but claimed that he did not know the

contents of the package. Id. at 198. Upon a motion by the defendant, the Second Circuit

vacated and remanded for a new trial, holding that "[a]t a minimum, the disclosure would

have created a reasonable likelihood that, after hearing it, the jury's suspicion about

Pulgar would have led to a reasonable doubt about Riva's guilt." Id. at 200. See also

United States v. Mahaffy, 693 F.3d 113 (2d Cir. 2013) (vacating and remanding for new

trial where suppressed material "harmonize[d] with the defendants' theory"); United

States v. Triumph Capital Group, Inc., 544 F.3d 149, 161-165 (2d Cir. 2008) (granting

2

Interestingly,Helmsley also addresses a claim of suppressed evidence directly related tothe defense's theory. TheHelmsley court rejected that claim, not on cumulativenessgrounds, but because the defendant conceded that the underlying facts at issue whereknown to the defense at trial. Helmsley at 1208-09.


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new trial where government failed to timely disclose proffer notes that were both

exculpatory and impeaching).

As inRivas, the new evidence from directly undercuts the version of

events offered by the government's witness, as opposed to the evidence in Gambino or

Persico, which would only generally challenge a witness's credibility. Calabro's

testimony is that Gioeli handpicked all the participants, and that they then carried out the

murder as instructed by Gioeli. Gioeli's argued that it was solely the Bay Street Parkway

Boys, led by Calabro, who planned and carried out the murder. 's testimony

would have revealed that Competiello and Calderone, members of the Bay Street

Parkway Boys, participated in the murder, and that the murder was not conducted as

Calabro claimed Gioeli had planned and instructed. This testimony would have, at a

minimum, created a reasonable likelihood that the different versions of events would

have led to a reasonable doubt about Gioeli's guilt.

b. 's Information Could have Led to New Leads for Gioeli

The government discounts any possibility that Gioeli could have developed leads

based on the suppressed evidence as "nonsensical." Opposition at 21. The Opposition

concludes that since Gioeli knew that Anthony Basile claimed Competiello was involved

in the Marasa murder, and Gioeli did not interview Basile, Gioeli would not have

followed up on 's information.

As an initial matter, Gioeli has still not received any proffer notes, 302s or

materials related to Basile's cooperation, despite having requested the same. See Gioeli's

Mot., ECF No. 1810 at Ex. A. The government has related only summaries of snippets of

information. Had Gioeli been given actual discovery related to Basile, Gioeli could have


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evaluated Basile's statements in context, and possibly viewed omitted details, and made a

clearer assessment as to the veracity of his individual statements. Such a full evaluation

may very well have led to new leads for Gioeli.

The government told Gioeli only that Basile stated that Competiello and Saracino

acted as lookouts during the shooting. Gioeli knew that Basile's implication of Saracino

in this murder was false, because Saracino was not in New York State at the time of the

murder. After Calderone's taped confession, it now appears that despite Basile's

misrepresentation of Saracino's involvement, he was truthful as to Competiello's. This

mixture of fact and fiction, adding and omitting various persons to crimes is behavior

consistent with the other cooperating witnesses in this case. As a result, this information

at trial could have led the jury to knock down the last remnants upon which the

governments conviction of Gioeli rests.

's statements would not only have led Gioeli to new leads regarding

Calderone's participation. The corroboration of Basile's statements regarding

Competiello's involvement would have led to a reevaluation of Basile's accusations. The

government's supposition that Gioeli would have simply ignored 's corroboration

of Competiello's involvement, and discovery of Calderone's presence, is absurd. Gioeli

was denied a chance to pursue these leads in his defense by the suppression of evidence.

c. The New Evidence also Questions The Investigation

Additionally, Gioeli could have used this evidence to further argue the

insufficiency of the investigation. "A common trial tactic of defense lawyers is to

discredit the caliber of the investigation or the decision to charge the defendant, and [a


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court] may consider such use in assessing a possibleBrady violation." Kyles v. Whitely,

514 U.S. 419, 446 (1995) (quoting,Bowen v. Maynard, 799 F.2d 593 [10th Cir. 1986]).

As far as Gioeli is aware, despite 's statement, and Calderone's subsequent

on tape confession, Calderone has not been charged with any state or federal crimes. It is

unknown whether Calderone has ever been questioned regarding his participation in the

Marasa homicide.

Gioeli and Saracino both argued against the sufficiency of this investigation

throughout the trial, and could have argued that the decision to not investigate Calderone

"revealed a remarkably uncritical attitude on the part of the [government]." Kyles at 445.

This argument would be especially persuasive combined with the government's decision

to abandon Basile as a cooperator, thus showing the government's unwillingness to accept

any version of events that contradicts its star witness, Dino Calabro. There is at least a

reasonable likelihood that this evidence of incomplete investigation would have led to

reasonable doubt as to Gioeli with respect to the slim sliver of the case that remained

after the jury had finished its work.

B. A New Trial Should be Granted Based on the Newly Discovered Evidence

The value of the evidence is fully set forth above, and clearly sustains the burden

that it would likely result in acquittal.3

3 The Opposition's argues that Gioeli may have been convicted based on unchargedpredicate acts such as the robbery of Chemical Bank, the conspiracy to Murder MichaelBurnside and the extortion of "Johnny Cash." (Opposition at 26) This argument should begiven little consideration, since the jury found Saracino not guilty of these acts, with theexception of the conspiracy to murder Michael Burnside, for which no credible evidenceagainst Gioeli was offered.


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Gioeli concedes that the government is correct insofar as Calderone has not been

shown to be unavailable as a witness. Opposition at 24. Calderone's possible willingness

to testify, however, does not cut in the government's favor. If Calderone does not assert

his Fifth Amendment privilege, Gioeli will likely call Calderone as a witness, as he did

with McLaughlin.

The government argues that, even if Calderone is unavailable, the statements

should not be admitted because they are not against penal interest, and there are not

sufficient corroborating circumstances to indicate trustworthiness of the statements.

Opposition at 24. The government properly stated the legal reasoning behind the hearsay

exception: "Rule 804(b)(3) is founded on the commonsense notion that reasonable people,

even reasonable people who are not especially honest, tend not to make self-inculpatory

statements unless they believe them to be true." Williamson v. United States,512 U.S.

599, 604 (1994). Unfortunately, the government abandons commonsense in the

application of that rule.

The characterization of this conversation as merely "discussing the recently-

concluded trial" (Opposition at 24) is outrageous. The recording leaves no doubt that

Calderone is confessing to a murder. Calderone startles at the mention of Chestnut's

name and reflexively asks if he is wearing a wire. Calderone then lowers his

voice and speaks tersely, quickly changing the topic.

For all the FBI's surveillance of Gioeli, despite the hundreds of tapes, thousands

of hours, and millions of dollars spent, there is nothing even remotely as incriminating as

Calderone's brazen murder confession on the Recording. As stated above, Gioeli does

not know if the government plans to indict Calderone, or, in the event that the


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government declares itself powerless to do so because of the statute of limitations

(despite it's nimble evasion of this issue in Gioeli's case), if it will share this information

with local law enforcement, which faces no such obstacle. SeeN.Y. Criminal Procedure

Law 30.10. It appears that the government is not only willfully ignoring this murder

confession, but is condoning it. The opposition says that Calderone was only present for

the murder and "[m]erely witnessing a murder is not a crime." Opposition at 24. While

this may be true for an innocent bystander, Calderone makes clear that he was a

participant. In fact, Calderone was driving the car that McLaughlin was in. See Gioeli's

Mot. at Ex G ("I didn't like what Tommy said. I was like, 'What are you fuckin' stupid?'

He was like, 'just drive.'").

could supply additional corroborating circumstances and assurances of

reliability for the statements in the Recordings at trial. As stated above, 's March

19, 2012 proffer notes, as well as the fact that raises the subject of Calderone's

involvement in Marasa's murder, indicates that had spoken with Calderone about

the murder before the Recording. The previous statements at the proffer session, the

circumstances surrounding those statements, as well as 's testimony regarding the

relationship between him and Calderone are all significant evidence that ensure the

reliability of Calderones statements.

C. If the Court is not Inclined to Vacate Gioeli's Conviction, a Hearing Should beHeld to Establish the Factual Basis of the Suppression of Evidence.

For the above stated reason, significant factual questions remain unanswered. As

has become the norm in this case, the government continues to relate information to

Gioeli and Saracino only in short answers to pointed questions, although with every


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response the government becomes more and more entangled in its own web of conduct.

The government has displayed no desire to get to the truth of what actually said

at his proffer sessions before the Recording. While the information on hand clearly

demonstrates aBrady violation requiring a new trial, there is certainly more to be

uncovered.

D. Gioeli Persists in his Motion for allBrady Materials

The government should be directed to turn over all materials related to this Gioeli

and the charges, as it is the only way to ensure that they have met theirBrady obligation.

Gioeli has yet to receive materials requested for Frank Sparaco, Greg Scarpa, Anthony

Kenny, and Anthony Basile, amongst others.

E. Gioeli Joins Saracino's Reply to the Opposition

Gioeli joins in his co-defendant Saracino's reply to the government's opposition to

Gioeli and Saracino's motions for a new trial in all respects.


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Conclusion

WHEREFORE for the reasons stated herein, the Court should set aside the verdict,

grant Gioelis motion for a new trial based upon newly discovered evidence, or, in the

alternative, order an evidentiary hearing to assess the facts regarding timing of the

disclosure of the information at issue in this motion, and for discovery related to the same.

Dated: New York, New YorkAugust 30, 2013

LAW OFFICES OF ADAM D. PERLMUTTER, P.C.

By:_________________________________Adam D. PerlmutterDaniel A. McGuinness

260 Madison Avenue, Suite 1800New York, NY 10016Tel: (212) 679-1990Fax: (888) 679-0585Attorneys for Thomas S. Gioeli

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Reply to the Government's Opposition to Thomas Gioeli's Motion to Set Aside the Verdict

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