Case 1:03-cr-00929-NGG Document 1157 Filed 08/19/10 Page 1 of 20 PageID #: 12173
`Case 1:O3—cr—OO929—NGG Document 1157 Filed 08/19/10 Page 1 of 20 Page|D #: 12173
`
`UNITED STATES DISTRICT COURT
`
`EASTERN DISTRICT OF NEW YORK
`____-__--_-_---_--______________________________-__________________x
`
`UNITED STATES OF AMERICA
`
`-against-
`
`VINCENT BASCIANO,
`
`MEMORANDUM & ORDER
`
`03-CR-929 (NGG)
`
`Defendant
`___________________________________________________________________x
`
`NICHOLAS G. GARAUFIS, United States District Judge.
`
`Defendant Vincent Basciano (“Basciano”) is currently serving a sentence of life
`
`imprisonment following convictions in two separate trials. (E Amended Judgment (Docket
`
`Entry # 1077).) On May 9, 2006, a jury found Basciano guilty of racketeering conspiracy,
`
`including the predicate acts of illegal gambling and attempted murder and conspiracy to murder
`
`David Nunez. On July 31, 2007, after his second trial, ajury found Basciano guilty of
`
`conspiracy to distribute marijuana, three counts of illegal gambling, and racketeering, including
`
`the predicate acts of illegal gambling, murder and conspiracy to murder Frank Santoro,
`
`solicitation to murder Dominick Martino, and solicitation to murder Salvatore Vitale.
`
`On March 24, 2010, Basciano filed a third motion for a new trial under Rule 33 of the
`
`Federal Rules of Criminal Procedure based on newly discovered evidence allegedly
`
`demonstrating that the Government withheld evidence in violation of Brady v. Maggland, 373
`
`U.S. 83 (I963), Giglio v. United State , 405 U.S. 150 (1972), and the Jencks Act, 18 U.S.C. §
`
`3500. He principally claims that the Government suppressed (I) evidence related to his role in
`
`Randolph Pizzolo’s murder and (2) impeachment evidence and Jencks Act material related to
`
`

`
`Case 1:03-cr-00929-NGG Document 1157 Filed 08/19/10 Page 2 of 20 PageID #: 12174
`Case 1:O3—cr—OO929—NGG Document 1157 Filed 08/19/10 Page 2 of 20 PagelD #: 12174
`
`testimony given by Government witness Dominick Cicale. (E Motion (Docket Entry # l 124).)
`
`For the following reasons, his motion is denied.
`
`1.
`
`BACKGROUND
`
`At both of Basciano’s trials, the Government introduced evidence, under Federal Rule of
`
`Evidence 404(b), that Basciano ordered Dominick Cicale (“Cicale”) to murder Randolph Pizzolo
`
`(“Pizzolo”). Basciano did not face charges for Pizzo]o’s murder in either of his two trials; the
`
`court permitted the Government to introduce evidence of Basciano’s alleged role in the murder
`
`to show the development of relationships of trust between Basciano and the Governments
`
`witnesses and to provide background evidence regarding the Bonanno organized crime family.'
`
`The Government has disclosed much of the challenged evidence in connection with
`
`another criminal case pending against Basciano before this court. E United States v. Basciano,
`
`No. O5—CR-060 (NGG) (E.D.N.Y.) (Superseding Indictment (S-9)).
`
`In that case, Basciano is
`
`charged with, i _a_l_i_a, capital murder and conspiracy to murder Pizzolo in aid of racketeering.
`
`Because this court and the Court of Appeals have previously addressed many of Basciano’s
`
`current claims, the court first discusses those previous decisions insofar as they are relevant to
`
`the instant motion.
`
`' (E Transcript from Trial #1 (“Tl”)l 0085-86 (instructing that the “evidence was admitted as background evidence
`to show the development of relationships of trust between the defendant and the Government’s witnesses, to provide
`background evidence of the charged enterprise, and to corroborate the testimony of the Govemment’s witnesses");
`Transcript fi'om Trial #2 (“TH”) 4752-53 (instructing that the “evidence was admitted as background evidence to
`show the development of relationships of trust between the defendant and the Government witnesses, and to provide
`background evidence of the charged enterprise. In addition, as appropriate, you may consider this evidence in
`evaluating any claim by the defense that the defendant was incapable or unwilling to violate the rules of organized
`crime")
`
`

`
`Case 1:03-cr-00929-NGG Document 1157 Filed 08/19/10 Page 3 of 20 PageID #: 12175
`Case 1:O3—cr—OO929—NGG Document 1157 Filed 08/19/10 Page 3 of 20 Page|D #: 12175
`
`A.
`
`Procedural History
`
`1.
`
`Basciano’s Second Rule 33 Motion
`
`Following his second trial, Basciano filed a second motion for a new trial under Rule 33
`
`of the Federal Rules of Criminal Procedure.2 He asserted, ir_1_t§; a_li_a, that the Government
`
`suppressed evidence showing that shortly before testifying at Basciano’s second trial, Cicale
`
`solicited another inmate to frame Basciano and a corrections officer in a sham jailhouse plot to
`
`murder Cicale.3 fig United States v. Basciano, No. 03-CR-929 (NGG) (Docket Entry # 1065),
`
`2008 WL 794945 (E.D.N.Y. Mar. 24, 2008) (“Rule 33 #2”).
`
`Even though the information “arguably might have been helpful to the defense,” the
`
`court held that, had the information been available, there was not a “reasonable probability" of a
`
`different result at trial.
`
`_l_d_. at *4. The court found that Basciano “failed to establish that such
`
`evidence [was] ‘material’ such that it undermine[d] confidence in the outcome of the trial.” ld_.
`
`at *3. The Government presented significant evidence of Basciano’s guilt, independent from and
`
`corroborative of Cicale’s testimony; and during Cicale’s direct examination, and nine hours of
`
`aggressive cross—examination, the jury heard significant impeachment evidence concerning
`
`“Cicale’s extensive violent and criminal past, including a conviction for manslaughter,
`
`involvement in two other murders, drug dealing, assaults, shootings, armed robbery while on
`
`bail, arson, fraudulent check cashing, violations of prison regulations, violations of supervised
`
`release, and defrauding his own grandmother.” l_cl. at *5. Defense counsel also elicited that
`
`Cicale lied during his first proffer session with the Government and made inconsistent statements
`
`2 Following his first trial, Basciano moved for either an acquittal under Rule 29 or a new trial under Rule 33,
`challenging the court’sjury instructions and sufficiency of the evidence with respect some of the charged elements
`and venue in the Eastern District of New York. 3 United States v. Basciano, No. 03-CR-929 (NGG), 2006 WL
`3780542 (E.D.‘N.Y. Dec. 2|, 2006). Basciano does not raise these issues in the instant motion and the court does not
`further discuss them here.
`
`3 Basciano also claimed he was deprived of the right to conflict—free counsel and that this court erred in refusing to
`recuse itself after discovery of an alleged “hit list," written by Basciano, and bearing my name.
`
`3
`
`

`
`Case 1:03-cr-00929-NGG Document 1157 Filed 08/19/10 Page 4 of 20 PageID #: 12176
`Case 1:O3—cr—OO929—NGG Document 1157 Filed 08/19/10 Page 4 of 20 Page|D #: 12176
`
`at Government debriefings and at Basciano’s first trial.
`
`I_d. In light of the extensive
`
`impeachment offered at trial, the court concluded that knowledge of the jailhouse plot “would
`
`not have substantially aided the jury in assessing Cicale’s credibility.” I_d. Because information
`
`about the jailhouse plot was immaterial, the court assumed, without deciding, that the
`
`Government knew of or should have known of the plot.
`
`2.
`
`Basciano’s Appeal
`
`After Basciano filed the instant motion, the Second Circuit affinned his convictions and
`
`this court’s decision denying his second motion for a new trial. m United States v. Basciano,
`
`No. 08-1699-cr, 2010 WL 2802566 (2d Cir. Jul. 16, 2010) (summary order) (“Basciano
`
`Appi”). The Court of Appeals rejected all of Basciano’s claims, including argument based on
`
`newly discovered evidence that the Government withheld information in violation of §_r_a_c_ly and
`
`@gli_o, and that the Government impermissibly bolstered the credibility of Cicale and
`
`cooperating witness Salvatore Vitale (“Vitale”) and failed to correct their false testimony.“
`
`In his BL1dy and gm claims, Basciano asserted that the Government suppressed the
`
`following information:
`
`- A May 6, 2005 FBI report of an interview with Frank Vasaturo (“Vasaturo”)
`stating that in 2004, Vasaturo, Pizzolo, Cicale, and Vincent Basciano Jr. sat at the
`same table at a wedding reception, at which Vasaturo and Pizzolo discussed the
`disappearance of Dominick Cirillo’s son, Nicky Cirillo.
`(Def. Appendix on
`Appeal (“A— ”) 249-53) According to the report, Pizzolo stated that Nicky Cirillo
`would never be found. When Vasaturo asked Pizzolo how he knew, “Pizzolo
`smiled[,] pointed to himself and gestured with his chin at Cicale, who was sitting
`across from them.” (A-252.)
`
`included the following
`that
`12, 2009,
`letter, dated June
`- A Government
`information:
`(i) According to Darren D’Amico, around 2002, Pizzolo shot
`
`‘ Basciano also claimed that this court failed to recuse itself after learning that Basciano had included my name on a
`purported “hit list"; that the trial evidence and jury charge constructively amended or varied the superseding
`indictment on which Basciano was tried in 2007; and that a conflict of interest precluded his defense counsel from
`rendering effective representation.
`
`

`
`Case 1:03-cr-00929-NGG Document 1157 Filed 08/19/10 Page 5 of 20 PageID #: 12177
`Case 1:O3—cr—OO929—NGG Document 1157 Filed 08/19/10 Page 5 of 20 Page|D #: 12177
`
`D’Amico in the stomach, and Joseph Cammarano Sr. told D’Amico that “‘Uncle
`John’
`(believed to be John Palazzolo) and ‘Frankie’
`(believed to be Frank
`Borgongone) had it ‘all set up’ to ‘go clip’ Pizzolo, but that D’Amico believed
`this was untrue” and that D’Amico thought he was being set up to be murdered.
`(A-235.) D’Amico also stated that he was not involved in Pizzolo’s murder.
`(ii)
`According to an inmate at the Franklin Correctional Facility, in Malone, New
`York, Joseph Bonelli and Robert Benedetto had been “overheard discussing,
`among other things, that the reason that ‘Ace’ and ‘Chicale’ killed Randy is
`because Randy is the person that murdered ‘Quiet Dom’s’ son. The inmate also
`stated that at an unspecified previous time Anthony Federici had given ‘Hippy’
`Zanfardino permission to kill Randy Pizzolo and Chris Castellano.” (iii) Richard
`Bette told cooperating witness Richard Cantarella that “while Berte was housed
`with Vincent Basciano at the .
`.
`. MCC, Basciano stated that “he wanted to beat
`[AUSA] Andres’s head in with a baseball bat” and, while housed with Joseph
`Massino at the MCC, Massino indicated that it was his “original
`idea to kill
`Andres.” (E A—23S.)
`
`-
`
`Information that Pizzolo applied for life insurance after Basciano had been
`arrested.
`(_S_e_e_ Def. App. Br. 172.)
`
`- Grand jury testimony given by Al Perna indicating that he never stated that
`Pizzolo told him that he would not remain in Florida. (See Def. App. Br. 172-73.)
`
`-
`
`Information of, or potentially leading to, Cicale’s jailhouse murder plot, including
`an eight-page letter written by CM.5 (E Def. App. Br. 108 n.2.)
`
`Basciano argued that the Pizzolo-related information exculpated him from Pizzolo’s
`
`murder and impeached Cicale’s testimony regarding Pizzolo’s murder. He argued that the
`
`Vasaturo FBI report and evidence that Pizzolo shot D‘Amico demonstrated that Cicale, Darren
`
`D’Amico, and “Quiet Dom” (believed to be Dominick Cirillo) had independent motives to kill
`
`Pinolo. (Def. App. Br. I70-73.) Since Pizzolo had purchased life insurance only after
`
`Basciano’s arrest, Basciano argued that Pizzolo was concemed for his safety even after Basciano
`
`was incarcerated and could not harm him. (gag Def. App. Br. 172.) Regarding Cicale’s
`
`credibility, Basciano argued that evidence of the jailhouse plot demonstrated Cicale’s “bias
`
`against Basciano and his willingness to lie even after entering into a cooperation agreement with
`
`the government.” Basciano Appeal, 2010 WL 2802566, at *1. Basciano also argued that Al
`
`5 CM are the initials of an individual whose identity is currently under seal.
`
`5
`
`

`
`Case 1:03-cr-00929-NGG Document 1157 Filed 08/19/10 Page 6 of 20 PageID #: 12178
`Case 1:O3—cr—OO929—NGG Document 1157 Filed 08/19/10 Page 6 of 20 Page|D #: 12178
`
`Perna’s grand jury testimony that he never stated that Pizzolo told him that he would not remain
`
`in Florida contradicted Cicale’s testimony that Pema told Basciano that Pizzolo would not move
`
`to Florida. (fie; Def. App. Br. 173.)
`
`The Court of Appeals found that the Vasaturo FBI report and other allegedly suppressed
`
`information regarding Pizzolo’s murder was immaterial, as it would have been cumulative of the
`
`impeachment evidence introduced against Cicale and because the Pizzolo murder was not
`
`charged in either of Basciano’s two trials. Basciano Appeal, 2010 WL 2802566, at *2. The
`
`Court of Appeals held that information about the jailhouse plot was immaterial because “Cicale’s
`
`life-long and murderous criminal history, coupled with his record of deceit and violence while
`
`cooperating with federal authorities and inconsistent statements in his own testimony, provided
`
`such fertile grounds for impeachment as to occupy nearly 300 pages of transcript spanning two
`
`days.” Q at *2. The Court of Appeals declined to address whether the Government had actual
`
`or constructive knowledge of the jailhouse plot before the Government disclosed it to Basciano.
`Regarding the cooperation agreements that Cicale and Vitale entered into, Basciano
`
`argued that the Government improperly bolstered the credibility of these witnesses by eliciting
`
`false testimony that they could face the death penalty if they lied in violation of their cooperation
`
`agreements. Q at *2—3. The Court of Appeals rejected this claim, reasoning that no evidence
`
`belied either Cicale or Vitale‘s proffered belief or indicated that the Government knew that their
`
`testimony was false or mistaken.
`
`It stated that “[a] witness’s understanding of his cooperation
`
`agreement with the government — whether correct or not — is relevant to a jury’s assessment of
`
`his motives in testifying.” I_d. at * 3.
`
`After addressing these claims, the Court of Appeals held that “Basciano’s other
`
`arguments on appeal .
`
`.
`
`. [were] without merit.” I_d. at *5
`
`

`
`Case 1:03-cr-00929-NGG Document 1157 Filed 08/19/10 Page 7 of 20 PageID #: 12179
`Case 1:O3—cr—OO929—NGG Document 1157 Filed 08/19/10 Page 7 of 20 Page|D #: 12179
`
`B.
`
`Basciano’s Current Claims
`
`1.
`
`Pizzolo-related Claims
`
`Basciano now claims that the Government suppressed information relating to his role, or
`
`lack thereof, in Pizzolo’s murder. Because Basciano filed this motion while his appeal was
`
`pending, many of the claims that he raises here were addressed and disposed of by the Court of
`
`Appeals.6 For this reason, the court categorizes Basciano’s claims into those that have been
`
`previously litigated before the Court of Appeals and those that have not.
`
`a.
`
`Claims Previously Presented to the Court of Appeals
`
`Basciano has already presented my claims to the Court of Appeals based on the
`
`following proffered information: (1) Vasaturo FBI report (Def. Ex. (Docket Entry ## 1126-32)
`
`F.); (2) the June 12, 2009 Government letter containing information that (i) Pizzolo shot
`
`D’Amico and that Joseph Cammarano Sr. told D’An1ico that two individuals, other than
`
`Basciano, would “go clip" Pizzolo, and that D’Amico stated that he was not involved in
`
`Pizzolo’s murder, (ii) Richard Berte told a cooperating witness that while housed with Basciano
`
`at the MCC, Basciano stated that, he wanted to “beat [AUSA] Andres’s head in with a baseball
`
`bat” and that Joseph Massino indicated that it was his “original idea to kill Andres,” (iii)
`
`according to an inmate at the Franklin Correctional Facility, Joseph Bonelli and Robert Bendetto
`
`were overheard discussing that “Ace” and “Chicale” killed Randy because Randy murdered
`
`‘Quiet Dom’s’ son,”7 (Def. Ex. A at 2.); (3) Al Perna’s grand jury testimony indicating that he
`
`never stated that Pizzolo told him that he was not moving to Florida, (Def. Ex. I).
`
`" The Court of Appeals decided Basciano's appeal on July 16, 2010. The instant motion was not fully—briefed until
`August 6, 2010.
`
`7 Although information related to Richard Berte and the Franklin Correctional facility is in the appellate record, it
`does not appear that Basciano incorporated it into his arguments on appeal.
`
`7
`
`

`
`Case 1:03-cr-00929-NGG Document 1157 Filed 08/19/10 Page 8 of 20 PageID #: 12180
`Case 1:03—cr—00929—NGG Document 1157 Filed 08/19/10 Page 8 of 20 Page|D #: 12180
`
`b.
`
`Claims not Presented to the Court of Appeals
`
`Basciano presents new Pizzolo-related Brady claims that he neither presented to this
`
`court nor to the Court of Appeals, based on the following newly-discovered information:
`
`—
`
`-
`
`-
`
`—
`
`—
`
`-
`
`the proffer agreement of Richard Adler, an insurance agent, who assisted Pizzolo
`in obtaining a life insurance policy, (Def. Ex. H);
`
`a February 22, 2005 FBI report conveying that Richard Adler met with Pizzolo on
`the night of his murder, that Pizzolo had a life insurance policy, and that Pizzolo’s
`wife called Adler the day after Pizzolo’s murder and discussed Pizzolo’s death
`benefits in a calm manner, (Def. Ex. E);
`
`grand jury testimony given by Pizzolo’s girlfriend, Dora Roman, purportedly
`indicating that she did not know of any animosity between Pizzolo and Basciano,
`(Def. Ex. J);
`
`indicating that, according to Dora Roman,
`a December 12, 2006 FBI report
`Pizzolo told her that he killed someone in October 2004, (Def. Ex. G);8
`
`grand jury testimony given by Natale Terzo indicating that Pizzolo was
`obnoxious, but not physically violent, at his restaurant, (Def. Ex. K);
`
`grand jury testimony given by Al Pema indicating that things on a construction
`site on Shurz Avenue were going “smooth,” that he did not have a conversation
`with Cicale about Basciano’s arrest, but that he told everyone at the construction
`site that Basciano had been arrested. (Def. Ex. I).
`
`2.
`
`Cicale’s Jailhouse Plot
`
`In connection with Basciano’s second motion for a new trial, the Government submitted
`
`to the court, Q parte and under seal, unredacted documents from the Bureau of Prisons related to
`
`Cicale’s jailhouse plot.
`
`(_S_§ Gov’t sealed and 3 parte submission dated Mar. 14, 2008; Gov’t
`
`Ltr. Sept. 14, 2009 (Docket Entry # 1 1 12).) On September 15, 2009, the Government disclosed a
`
`version of those documents to Basciano with fewer redactions than the version that it had
`
`3 Basciano submitted the December 12, 2006 FBI report to the Court of Appeals on his direct appeal. (E A-268.)
`Because it does not appear that he raised any arguments based on this document, the court considers it here.
`
`

`
`Case 1:03-cr-00929-NGG Document 1157 Filed 08/19/10 Page 9 of 20 PageID #: 12181
`Case 1:O3—cr—OO929—NGG Document 1157 Filed 08/19/10 Page 9 of 20 Page|D #: 12181
`
`previously disclosed to Basciano. (See Gov’t Ltr. Sept. 15, 2009 (Docket Entry # 1113).)
`
`Basciano now proffers those less-redacted documents to argue for a new trial based on Cicale’s
`
`jailhouse plot.
`
`3.
`
`Richard Berte
`
`Basciano argues that newly—disclosed information discussing Richard Berte’s statements
`
`that Basciano sought to harm AUSA Andres and that Massino stated that it was his “original
`
`idea” to murder Andres undermines this court’s previous decision upholding the Attorney
`
`General’s imposition of a Special Administrative Measures Order (“SAMs Order”) against
`
`Basciano and influenced Basciano’s decision not to seek consolidation of the 03-CR-929 and 05-
`
`CR-060 indictments.
`
`11.
`
`DISCUSSION
`
`A.
`
`Legal Standards
`
`1.
`
`Rule 33
`
`Under Rule 33 of the Federal Rules of Criminal Procedure, “[u]pon the defendant’s
`
`motion, the court may vacate any judgment and grant a new trial if the interest ofjustice so
`
`requires.” Fed. R. Crim. P. 33(a). “To secure a new trial based on a violation of _l3‘:'_a<fi or _Qi_gl_i_g
`
`a defendant must demonstrate ‘a reasonable probability that, had the suppressed information
`
`been disclosed to the defense, the result of the proceeding would have been different.”
`
`Basciano Appeal, 2010 WL 2802566, at *1 (quoting Kyles v. Whitley, 514 U.S. 419, 433-34
`
`(1995) (internal quotation marks and alterations omitted)). Under my, Qigli_o, and their
`
`progeny, the Government must “disclose material information that is favorable to the accused,
`
`either because it is exculpatory, or because it is impeaching.” United States v. Rodriguez, 496
`
`F.3d 221, 225 (2d Cir. 2007) (internal quotation marks omitted). A Brady violation has three
`
`

`
`Case 1:03-cr-00929-NGG Document 1157 Filed 08/19/10 Page 10 of 20 PageID #: 12182
`Case 1:O3—cr—OO929—NGG Document 1157 Filed 08/19/10 Page 10 of 20 Page|D #: 12182
`
`components: “[t]he evidence at issue must be favorable to the accused, either because it is
`
`exculpatory, or because it is impeaching; that evidence must have been suppressed by the State,
`
`either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S.
`
`263, 281-82 (1999). The materiality of suppressed information must be “considered collectively,
`
`not item-by-item." §_e_g 3%, 514 U.S. at 436.
`
`A motion based on newly discovered evidence “must be filed within 3 years after the
`
`verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(] ). Because Basciano was found guilty
`
`following his first trial more than three years before filing this motion, the court only considers
`
`his claims with respect to his second trial.9
`
`2.
`
`Law of the Case and the Mandate Rule
`
`Under the law-of-the-case doctrine, “when a court decides upon a rule of law, that
`
`decision should continue to govern the same issues in subsequent stages in the same case.”
`
`Christianson v. Colt Indus. Operating C03}, 486 U.S. 800, 815-16 (1988) (internal quotation
`
`marks and alterations omitted). The mandate rule is a branch of the law—of—the-case-doctrine that
`
`governs the relationship between appellate courts and trial courts.
`
`It applies when a circuit court
`
`remands a case to a district court, s_e§ United States v. Burrell, 467 F.3d 160, 165 (2d Cir. 2006),
`
`or when a party files a new motion in a district court following an appeal, E United States v.
`
`L, 563 F.2d 26, 33 (2d Cir. 1977). Under the rule, “where issues have been explicitly or
`
`implicitly decided on appeal, the district court is obliged .
`
`.
`
`. to follow the decision of the
`
`appellate court.” United States v. Minicone, 994 F.2d 86, 89 (2d Cir. 1993). The mandate rule
`
`also “bars the district court from reconsidering or modifying any of its prior decisions that have
`
`been ruled on by the court of appeals.” United States v. Stanley, 54 F.3d 103, 107 (2d Cir. 1995)
`
`9 Even if Basciano timely filed his motion with respect to both of his trials, the court would deny it with respect to
`the first trial for the same reasons.
`
`E0
`
`

`
`Case 1:03-cr-00929-NGG Document 1157 Filed 08/19/10 Page 11 of 20 PageID #: 12183
`Case 1:O3—cr—OO929—NGG Document 1157 Filed 08/19/10 Page 11 of 20 Page|D #: 12183
`
`(internal quotation marks omitted). District courts, however, retain “discretion under the
`
`mandate rule to reconsider, on remand, issues that were not expressly or implicitly decided” by
`
`the court of appeals, E at 107 (internal quotation marks omitted), including issues arising from
`
`newly discovered evidence. See generally , 563 F.2d at 32-33 (finding that the district
`
`court properly considered new evidence on a post—appeaI motion to vacate judgment).
`
`Under these principles, a district court faced with a motion for a new trial under Rule 33
`
`may not reconsider flrady claims that have been decided by a court of appeals. E United States
`
`L_I_3e_ll, 32] Fed. Appx. 862, 2009 WL 749866 (1 1th Cir. Mar. 23, 2009) (unpublished opinion).
`
`But the mandate rule has a more limited application when a defendant asserts new _I_3_11d_y claims
`
`in addition to Brjmiy claims that have already been asserted on appeal. Because the materiality of
`
`suppressed information must be “considered collectively, not item-by-item,” _s_e_e _Igyl_e_s, 514 U.S.
`
`at 436, a district court must consider the defendant’s new claims cumulatively with the
`
`materiality of all the defendant’s §;_agl_y claims, including those that the defendant appealed.
`
`In
`
`these circumstances, the mandate rule does not prevent a district court from addressing whether
`
`the materiality of the defendant’s appealed-_B_r_a_c1y claims in combination with the defendant’s
`
`new claims rises to the level of a constitutional violation. C_f. Schledwitz v. United States, 169
`
`F.3d 1003, 1012 (6th Cir. 1999) (noting that previous my ruling on direct appeal has limited
`
`res judicata effect to the materiality analysis in a subsequent § 2255 petition). But if the court of
`
`appeals’ reasoning completely forecloses the defendant’s additional claims, the mandate rule
`
`bars their consideration. E United States V. Ross, 372 F.3d 1097, 1106 (9th Cir. 2004) (law-of-
`
`the-case bars review of additional impeachment evidence when the court previously held that
`
`“the evidence of guilt would have been overwhelming even if [the witness’s] credibility had been
`
`demolished”).
`
`ll
`
`

`
`Case 1:03-cr-00929-NGG Document 1157 Filed 08/19/10 Page 12 of 20 PageID #: 12184
`Case 1:O3—cr—OO929—NGG Document 1157 Filed 08/19/10 Page 12 of 20 Page|D #: 12184
`
`B.
`
`Application
`
`1.
`
`Pizzolo-related Claims
`
`Basciano raised many of his Pizzolo—related claims on direct appeai. The Court of
`
`Appeals either explicitly rejected the pending claims identified in section I.B(l)(a) as immaterial
`
`or summarily found them to be without merit, Accordingly, the mandate rule only permits this
`
`court to independently consider Basciano’s Pizzolo-related claims that have not been ruled on by
`
`the Court of Appeals. E s_um section l.B(1)(b). The court considers each in turn and then
`
`determines whether, in combination with the @1513; claims that Basciano raised on appeal, they
`
`give rise to a constitutional violation. E QE, 514 U.S. at 43'? n.l0 (“We evaluate the
`
`tendency and force of the undisclosed evidence item by item; there is no other way. We evaluate
`
`its cumulative effect for purposes of materiality separately and at the end of the discussion”).
`
`21.
`
`Richard Adler
`
`Basciano asserts that the Government suppressed a proffer agreement that Richard Adler
`
`signed with the Government on April 20, 2005 and an FBI report dated February 22, 2005,
`
`indicating that Adler met with Pizzolo on the night of his murder, that Pizzolo’s wife called
`
`Adler the next day to discuss insurance proceeds, and that she sounded calm. Basciano argues
`
`that if he had known about the proffer agreement, he could have obtained information with
`
`which to cross-examine Cicale and could have discovered that Pizzolo sought life insurance after
`
`Basciano had been arrested. Had the defense known about the FBI report, Basciano argues that
`
`he could have obtained information from Adler about Pizzolo’s state of mind on the night of his
`
`murder.
`
`As discussed above, the Court of Appeals rejected Basciano’s claim based on information
`
`that Pizzolo sought life insurance from Adler. For this reason, information that may have led to
`
`12
`
`

`
`Case 1:03-cr-00929-NGG Document 1157 Filed 08/19/10 Page 13 of 20 PageID #: 12185
`Case 1:O3—cr—OO929—NGG Document 1157 Filed 08/19/10 Page 13 of 20 Page|D #: 12185
`
`evidence that Pizzolo sought life insurance is also immaterial for $2511 and Qi_gli_o purposes.
`
`And speculation that the FBI report could have led to information revealing Pizzolo’s state of
`
`mind before his murder or material with which to impeach Cicale is too speculative to support a
`
`constitutional violation. _S5_e United States v. Agurs, 427 U.S. 97, 109 n.16 (1976) (noting that
`
`the government does not have an obligation to “communicate preliminary, challenged, or
`
`speculative information." (internal quotation marks omitted)).
`
`b.
`
`Dora Roman
`
`Basciano claims that the Government suppressed two documents regarding Dora Roman,
`
`Piuolo’s girlfriend at the time of his murder: her grand jury testimony in which Basciano claims
`
`that she testified that Pizzolo did not have any problems with Basciano and an FBI report, dated
`
`December 12, 2006, indicating that on October 23, 2004, Pizzolo privately confessed to Roman
`
`that he killed a man. Any claims based on her grand jury testimony are unfounded. While
`
`Roman initially answered questions regarding Vincent Basciano, she later testified—in the same
`
`session—that she was referring to “Vinny Van Zandt,” not Vincent Basciano. (E Def. Ex. J at
`
`34-35, 51.) Regarding Pizzolo’s confession, Basciano argues that the FBI report reveals that
`
`Pizzolo may have confessed to Roman that he killed Nicholas Cirillo, which the defense could
`
`have used, in conjunction with the Vasaturo FBI report to argue that Cicale had an independent
`
`motive to kill Pizzolo. According to Basciano, if Pizzolo had actually confessed to Roman that
`
`he participated in Nicholas Cirillo’s disappearance, then Cicale would have been even more
`
`determined to kill Pizzolo. There is no indication, however, that Cicale knew about PiuoIo’s
`
`confession to Roman or that Pizzolo discussed with Roman Cicale’s role in the alleged murder.
`
`The Court of Appeals rejected Basciano’s claim based on the Vasaturo FBI report and his theory
`
`that it showed Cicale had an independent motive to kill Pizzolo. Because information that
`
`I3
`
`

`
`Case 1:03-cr-00929-NGG Document 1157 Filed 08/19/10 Page 14 of 20 PageID #: 12186
`Case 1:O3—cr—OO929—NGG Document 1157 Filed 08/19/10 Page 14 of 20 Page|D #: 12186
`
`Pizzolo privately confessed to Roman about killing a man does not make it more likely that the
`
`theory already rejected by the Court of Appeals would have created a reasonable probability of a
`
`different result at trial, Basciano’s claim related to the December 12, 2006 FBI report is without
`
`merit.
`
`c.
`
`Natale Terzo
`
`Basciano claims that the Government suppressed Natale Terzo’s grand jury testimony
`
`that contradicted Cicale’s trial testimony. At trial, Cicale testified that Joe Cammarano, Jr. told
`
`Basciano that Pizzolo “was acting wild, [Pizzolo] went to meet with a soldier in the Bonnano
`
`Crime Family with a gun” and that Cicale told Basciano that Pizzolo rushed over to the
`
`restaurant with a gun to help Paul Spina when, according to Pizzolo, Paul Spina called him and
`
`made it seem like he had a problem at the restaurant. (TRII 1223-25.) Before the grandjury,
`
`Terzo testified that Pizzolo was an occasional customer at his restaurant, that he was obnoxious,
`
`but “not physical or anything like that, just talks. He just talks stupid”; that he was never hostile
`
`towards him, or his restaurant patrons or employees; and that he once had a shouting match in
`
`the restaurant a long time ago, “but nothing out of the ordinary.”'° (Def. Ex. K at 30-33.)
`
`Basciano argues that Terzo’s grand—jury testimony contradicted Cicale’s trial testimony and
`
`should have been disclosed. Basciano’s contention, however, is not supported by the record.
`
`The court concludes that these statements did not require disclosure under Qgliq. They are not
`
`inconsistent. One is merely more detailed than the other.
`
`d.
`
`AI Pema
`
`Basciano claims that Al Perna’s recently-disclosed grand jury testimony contradicts
`
`Cicale’s trial testimony in two different ways. At trial Cicale testified that Pema was the first
`
`'° The court takesjudicial notice that Terzo recently pleaded guilty to perjury based on this testimony. (E United
`States v. Bana, 09-CR—672, Superseding Information (S-2), Minute Entry dated Aug. 3, 2010: Guilty Plea; Gov‘t
`Mem. I30 n.5l.)
`
`14
`
`

`
`Case 1:03-cr-00929-NGG Document 1157 Filed 08/19/10 Page 15 of 20 PageID #: 12187
`Case 1:O3—cr—OO929—NGG Document 1157 Filed 08/19/10 Page 15 of 20 Page|D #: 12187
`
`person to tell him about Basciano’s arrest and that Cicale then called Anthony Donate to confirm
`
`whether that was true. Basciano claims that this enabled the Government to argue that Cicale’s
`
`subsequent phone call to Anthony Donato “constituted proof that Basciano, Cicale and Donato
`
`were participants in Santoro’s murder because it demonstrated Cieale’s supposed concern that if
`
`Basciano had been charged with that crime, he and the other participants, such as Donato, would
`
`soon be charged as well.” (Reply (Docket Entry # 1151) 19.) Cicale also testified that one of the
`
`reasons that Pizzolo was murdered was because of “bad brick work" at a construction site on
`
`Schurz Avenue, at which Pizzolo worked. Before the grand jury, Pema testified that “things on
`
`the Shores Avenue site” were “smooth.” (Def. Ex. I. at 39.) On the issue of telling Cicale that
`
`Basciano was arrested, Pema testified before the grand jury that he “spoke to everybody” on the
`
`Shurz Avenue job site about his belief that Basciano had been arrested. (Q at 81.) He also
`
`testified that, after Bascian