Pizzuti v. USA

Filing 87

ORDER in case 1:10-cv-00199-LAP-HBP; denying (19) Motion for Reconsideration in case 1:10-cv-02585-LAP-HBP. By notice of motion dated February 12, 2012 (Docket Item ("D.I.") 19 in 10 Civ. 25851), petitioner Angelo DiPietro moves for reco nsideration of my Opinion and Order dated August 18, 2011 ("August 2011 Order") to the extent that it denied DiPietro's requests for certain discovery. (As further set forth in this Order.) Accordingly, for all the foregoing reasons, DiPietro's motion for reconsideration of my August 2011 discovery order (D.I. 19) is denied. The due date for petitioners' reply papers is adjourned without date pending resolution of issues raised in D.I. 83 in 10 Civ. 199. (Signed by Magistrate Judge Henry B. Pitman on 3/29/2017) Copies Sent By Chambers Filed In Associated Cases: 1:10-cv-00199-LAP-HBP, 1:10-cv-01003-LAP-HBP, 1:10-cv-02585-LAP-HBP (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
MICHAEL PIZZUTI,

:
Petitioner,

-against-

:

10 Civ. 199 (LAP)(HBP)
02 Cr. 1237 (LAP)(HBP)

:

UNITED STATES OF AMERICA,
Respondent.

:
:

-----------------------------------X
JOSEPH GENUA,

:
Petitioner,

-against-

:

10 Civ. 1003 (LAP)(HBP)
02 Cr. 1237 (LAP)(HBP)

:

UNITED STATES OF AMERICA,
Respondent.

:
:

-----------------------------------X
ANGELO DIPIETRO,

:
Petitioner,

-against-

:

10 Civ. 2585 (LAP)(HBP)
02 Cr. 1237 (LAP)(HBP)

:

UNITED STATES OF AMERICA,
Respondent.

:
:

-----------------------------------X

OPINION
AND ORDER

PITMAN, United States Magistrate Judge:

I.

Introduction

By notice of motion dated February 12, 2012 (Docket
Item ("D.I.") 19 in 10 Civ. 25851), petitioner Angelo DiPietro
moves for reconsideration of my Opinion and Order dated August
18, 2011 ("August 2011 Order") to the extent that it denied
DiPietro's requests for certain discovery.

For the reasons set

forth below, DiPietro's motion for reconsideration is denied.

II.

Facts

A.

Facts Underlying
DiPietro's Convictions2

DiPietro's convictions arose, in part, out of numerous
violent crimes committed between 2001 and 2003, including crimes
committed in an effort to recover money from John Perazzo, the
operator of a pyramid scheme.3
1

Unless otherwise indicated, all references to Docket Items
refer to 10 Civ. 2585.
2

My summary of the facts underlying DiPietro's convictions
is limited to conduct and offenses relevant to the claims
DiPietro asserts. It is not a complete summary of all the
evidence offered at trial.
3

Perazzo's fraudulent activity is not in dispute; he was
arrested and charged by the Westchester County District
(continued...)
2

Perazzo's pyramid scheme paid returns to investors as
promised through March 2001 (Tr.4 1118).

In April 2001, inves-

tors began having difficulty getting paid by Perazzo or even
contacting him (Tr. 1118-19, 1376-77), and various investors
began to suspect that Perazzo was running a Ponzi scheme (Tr.
1379, 1419).
Maurizio Sanginiti was one of the investors to whom
Perazzo owed money.

In the spring of 2001, Sanginiti recruited

DiPietro to extort money from Perazzo.

Sanginiti chose DiPietro

for the task because DiPietro had a reputation as a "tough guy"
with special talents for collecting money (Tr. 1121-26, 1912-14,
2562-63).

After a check he had received from Perazzo for

$147,000 was returned unpaid for insufficient funds, Sanginiti
conspired with DiPietro and Angelo Capalbo on June 28, 2001 to
kidnap Perazzo (Tr. 1126, 1460-61, 1484, 1934, 2154, 2574-75).
The kidnapping was intended to ensure that Sanginiti's gang was
repaid before Michael Pizzuti's, a competing creditor of Perazzo
(Tr. 1126-27).

3

(...continued)
Attorney's Office (the "WCDAO") on August 31, 2001 with crimes
relating to his Ponzi scheme. He pled guilty pursuant to a
cooperation agreement with the WCDAO on September 11, 2002 (see
DiPietro's Notice of Motion Pursuant to 28 U.S.C. § 2255, dated
March 22, 2010 (D.I. 1), Ex. B).
4

"Tr." refers to the transcript of petitioners' trial.
3

On June 29, 2001, Joseph Genua, Richard Wieland, Frank
Taddeo and others kidnapped Perazzo at the Cross County Shopping
Center in Yonkers, New York (Tr. 1134-37).

To carry out the

kidnapping, Sanginiti, Genua and others waited in a white van in
a parking lot near an Applebee's restaurant for the other conspirators to bring Perazzo to them (Tr. 1134-41, 1150, 1934-35,
1939, 1985).

When Perazzo reached the van, Genua "grabbed

[Perazzo] by the neck and put him in the front seat" and told
Perazzo "to shut the fuck up and do what [Genua told him]" (Tr.
1139-40).

Genua wrapped his arm around Perazzo's neck from the

back seat and held Perazzo in the seat (Tr. 1140-41).

Perazzo

began "sweating, changing colors [and was] nervous [and] stuttering" (Tr. 1140).
The kidnappers took Perazzo to the basement of
DiPietro's house in Mount Vernon, New York (Tr. 1141-44).

Genua,

DiPietro and Sanginiti stripped Perazzo to ensure he was not
wearing a recording device; Genua and others placed Perazzo on a
chair and tied his hands together (Tr. 1157-58, 1943-44, 1990,
2567).

DiPietro held a revolver to Perazzo's face and demanded

to know when Perazzo would come up with the money (Tr. 1158-59).
Genua threatened to blow off Perazzo's genitals with an explosive
device (Tr. 1161-62, 2527-33, 2567).

Perazzo eventually told his

kidnappers he had money in the trunk of his car (Tr. 1163, 1165).
4

Genua and DiPietro's son, Anthony DiPietro ("Anthony"), returned
to the Cross County Shopping Center and retrieved $11,000 from
Perazzo's car; Perazzo was subsequently released (Tr. 750, 1163,
1168-69).
On June 30, 2001, DiPietro and others again met with
Perazzo to pressure him to remain silent about the kidnapping and
to repay the balance of the money (Tr. 1175-77, 1494, 2052-53).
During this meeting, Anthony searched Perazzo's car for additional money (Tr. 1180, 1183-86, 1494-95, 1616-20).

Instead of

finding money, Anthony found a letter that Perazzo had written to
the FBI and other law enforcement authorities (the "Perazzo
Letter") (Tr. 1180, 1183-86, 1494, 1582-83, 1616-20).

The

Perazzo Letter stated, "By you receiving this letter, I am either
dead or kidnapped again and will shortly be dead" (Tr. 1618).
The Perazzo Letter described the June 29, 2001 kidnapping by
Sanginiti, Capalbo, "another Angelo and a Frank" (Tr. 1618).

The

letter also stated that Pizzuti would know the full names of
Perazzo's kidnappers and gave Pizzuti's business and home addresses and telephone numbers (Tr. 1618).

The Perazzo Letter

went on to state that an attorney named Al Mosiello was also
involved (Tr. 1619).

In the letter, Perazzo provided details of

the "drastic actions" that had been taken against him, including
threats to "[c]ut [him] up and put [him] into body bags" (Tr.
5

1619).

As a result of this letter, DiPietro and others decided

that some associates, including Genua and Wieland, should remain
in Perazzo's home to monitor his financial dealings (Tr. 1175,
1186-87, 1535-36, 2568-69, 3758, 4309).
On July 9, 2001, Pizzuti learned that DiPietro's
associates were holding Perazzo hostage in Perazzo's home, and
Pizzuti's gang headed to Perazzo's house out of concern that
Sanginiti's gang would get a larger repayment than Pizzuti's (Tr.
1188-89, 1521-24, 1534-36).

When Pizzuti's gang arrived, Wieland

called Sanginiti to inform him (Tr. 1188, 1831, 2569).
Sanginiti, in turn, called DiPietro and Capalbo in order to
arrange a meeting with them (Tr. 1188).

DiPietro called Din

Celaj and Marc Nickolson and told them to accompany him to the
meeting and to bring guns (Tr. 1188, 4316-17).
When Sanginiti's gang arrived at Perazzo's house,
Pizzuti was holding a rifle to Perazzo's face (Tr. 1196, 11992000, 1256-60, 1539, 2418-24, 2429-30, 3749-50).

Pizzuti in-

formed DiPietro's gang that "anyone who wanted money from Perazzo
[would have] to go through [him]" (Motion for Permission to File
an Amended Supplemental Memorandum of Law, dated July 23, 2010
(D.I. 8 in 10 Civ. 199) ("Pizzuti Suppl. 2255 Mem.") at 14,
citing Tr. 1196, 1217-18, 3750, 4327).

Pizzuti then dragged

Perazzo out of the house at gunpoint and threw him into the back
6

of a car (Tr. 1197, 1218-20, 1266, 2435-36, 4330-31).

Pizzuti

eventually took Perazzo to Nyack, New York, where Perazzo spent
the night in a hotel with Pizzuti's associate, Carl Macchiarulo,
before he made a bank transfer of $30,000 to Macchiarulo the
following day (Tr. 1534-35, 1557-58, 1626, 1635-36).
Sanginiti's gang left Perazzo's house when Pizzuti left
with Perazzo (Tr. 1266, 1530-31).

Harold Bringman was the last

member of Pizzuti's gang to leave, and Sanginiti and Capalbo
ordered Celaj to abduct Bringman to find out where Pizzuti had
taken Perazzo (Tr. 1266-69, 1530-31).

Bringman was able to evade

the abduction, and, as Bringman drove away, DiPietro instructed
Celaj to "shoot his fucking ass, shoot his fucking ass" (Tr.
4334).
A car chase ensued on the southbound Hutchinson River
Parkway, with Celaj and Nickolson pursuing Bringman at speeds
exceeding 100 miles per hour (Tr. 1224-26, 1268, 1528-29, 373839, 4334-36).

Celaj fired several shots and hit Bringman's car,

but Bringman escaped while Celaj crashed into a guardrail (Tr.
1225-26, 1233-34, 1270-71, 1537, 3738-42, 4336-37).

That eve-

ning, the rival gangs decided to join forces to coordinate their
efforts to recover money from Perazzo (Tr. 1233-34, 1272-73,
1545, 1577).

These joint efforts lasted until Perazzo's arrest

(Tr. 1273-75, 1278-79).
7

In addition to extorting Perazzo, DiPietro was involved
in a series of robberies of residences in Westchester County, New
York, that he believed contained large amounts of cash (Tr. 164850).

In the spring of 2001, DiPietro began planning a robbery in

Eastchester, New York, with Capalbo, Sanginiti, Nickolson and
Celaj and others (Tr. 1658-59, 3770-71, 4364).

DiPietro's own

relatives owned the residence, and he believed there was $2.3
million in the house resulting from the family's real estate
business (Tr. 3770-72, 4365-66).

DiPietro told at least one

conspirator that a father, mother, son and grandmother lived in
the house, and to "try your hardest not to hurt no one [sic] but
if you have to, do what you got to do" (Tr. 4365-66).
On July 18, 2001, Celaj, Nickolson and Ded Nicaj
entered the Eastchester residence, believing it to be empty (Tr.
4367-72).

The men heard voices in the home, however, and con-

fronted the mother and grandmother with a gun (Tr. 4371-72).
Nicaj attempted to tie the mother up while Celaj pointed the gun
at her (Tr. 4372).

The mother agreed to give the robbers the

money, and as the mother was leading Celaj to the money, her son
entered the house (Tr. 4373-75).

Celaj pointed the gun at the

son, and the situation soon grew "out of control," as "everybody
was screaming in the house" (Tr. 3795-96).

8

One of the conspira-

tors yelled that he had spotted police, and the men fled without
taking any money (Tr. 4375-76).
While Nickolson and Nicaj were arrested immediately
after the bungled robbery, Celaj called a lookout to pick him up,
and he escaped (Tr. 3803-04, 4376-77).

Celaj subsequently met

with DiPietro and discussed the failed robbery (Tr. 4378-79).
DiPietro told Celaj, "You have to lay very low . . . it's crazy
up there in Eastchester, too much cops [sic]" (Tr. 4379).
In addition to certain items of physical evidence, the
government's evidence at trial included recorded conversations
from court-authorized wiretaps of telephones used by DiPietro and
others in which the plans to extort Perazzo were discussed, the
testimony of Sanginiti, Celaj and Nickolson who testified pursuant to cooperation agreements, consensually recorded conversations, the testimony of state and federal law-enforcement authorities who surveilled the defendants and debriefed some of the
defendants and the testimony of a forensic computer investigator.

B.

Procedural History

After a trial lasting slightly more than two months,
DiPietro was convicted of all offenses with which he was charged.
Specifically, Dipietro was convicted of three counts of
extortion-related crimes in violation of 18 U.S.C. § 1951
9

(Counts 1, 3 and 7 of Indictment S5 02 Cr. 1237 (SWK) ("the 1237
Indictment")), two counts of possessing, using or aiding and
abetting the illegal possession or use of a firearm in violation
18 U.S.C. § 924(c) (Counts 4 and 8 of the 1237 Indictment), two
counts of conspiring to commit or attempting to commit a robbery
that would affect interstate commerce, in violation of 18 U.S.C.
§ 1951 (Counts 11 and 12 of the 1237 Indictment) and three counts
relating to the use of extortionate means to collect an extension
of credit, in violation of 18 U.S.C. § 894 (Counts 14, 15 and 16
of the 1237 Indictment).5

DiPietro was sentenced to a term of

imprisonment of 27 years to be followed by a mandatory consecutive sentence of 32 years.6
On September 16, 2014, I issued a 131-page Report and
Recommendation recommending that all claims of all three petitioners be denied and denying all then-pending motions for
discovery.

Subsequent to the issuance of my Report and Recommen-

dation, counsel for DiPietro pointed out that there was an
unresolved motion for reconsideration of my August 18, 2011
5

DiPietro's claims in this action arise out of his
conviction on Counts 1, 3, 4, 7, 8, 11 and 12 of the 1237
Indictment.
6

In a separate case, DiPietro was sentenced to an additional
term of 300 months to run consecutively to the sentence imposed
on the 1237 Indictment. See United States v. DiPietro, 04 Cr.
1110 (DLC) (S.D.N.Y.) D.I. 439 (Judgment against Angelo
DiPietro).
10

Opinion and Order and that I had previously issued an Order
granting DiPietro 30 days in which to file a reply in further
support of his 2255 motion after I resolved his discovery motion
(D.I. 69 in 10 Civ. 199).

Accordingly, in light of the pending

motion for reconsideration, I withdrew my September 16, 2014
Report and Recommendation (D.I. 75 in 10 Civ. 199).

By this

Order, I resolve DiPietro's motion for reconsideration.

1.

The August 18, 2011 Order
and DiPietro's Motion
for Reconsideration

In my August 2011 Order, I denied certain discovery
requests because they related to claims that were procedurally
barred and rejected other discovery requests on the merits.
Specifically, I rejected DiPietro's requests for the following
materials on the ground that they related to claims that were
procedurally barred:
1.

All investigative reports and rough notes of the FBI or
prosecutors' contacts or meetings -- including the
substance of any oral statements given to law enforcement/prosecutors that were not memorialized in writing
-- with Ralph Pizzuti, Carl Macchiarulo and Manny
Pereira.

2.

All evidence pertaining to the receipt, viewing, retention and destruction of video surveillance tapes of
Perazzo's home.

11

3.

Brady7 material with respect to Sanginiti's cooperation
with the WCDAO in the unrelated state prosecution of
Roberto DeRosario.

4.

All telephone records pertaining to telephone number
914-420-9773, subscribed in the name of Sanginiti's
wife, during the period from June through July 2001.

5.

Recordings of Din Celaj speaking on the telephone from
the Metropolitan Correction Center ("MCC") and Metropolitan Detention Center ("MDC") during the time he was
cooperating.

6.

All documents and evidence reflecting contact between
Celaj and Perazzo's girlfriend, Kaffee Ann Forde,
during the period of Celaj's cooperation, including
records of commissary payments from Forde for the
benefit of Celaj.
I also rejected the following discovery requests on the

merits, finding that DiPietro had not shown good cause for the
discovery he sought:
1.

All investigative reports and rough notes of the FBI or
prosecutors' contacts or meetings -- including the
substance of any oral statements given to law enforcement/prosecutors that were not memorialized in writing
-- with Richard Wieland, Frank Taddeo, Ded Nicaj and
Bashkim Mustafaj.

2.

All still-outstanding reports and rough notes and the
substance of any oral statements given to law enforcement or prosecutors -- including those of the WCDAO -regarding Perazzo.

3.

All information provided by the prosecution to Celaj,
his attorney, the Department of Homeland Security or
any other federal agency for the purpose of preventing
Celaj's deportation and any and all notes of Celaj's
proffer sessions with the WCDAO.

7

Brady v. Maryland, 373 U.S. 83 (1963).
12

All other Brady/Giglio8 evidence in the possession of
the prosecution team, which DiPietro argued included
the WCDAO and the New York State Police.

4.

I did grant DiPietro's request for discovery with
respect to one class of material.

DiPietro had served a Freedom

of Information Act ("FOIA") request for FBI Form 302s concerning
Sanginiti.

In response to that request, he received a different

version of the Form 302 that was produced to him in discovery in
connection with the underlying trial.

Because DiPietro had shown

that the FBI had prepared different versions of what was, ostensibly, the same Form 302 report, I ordered the government to
produce all Form 302s and notes concerning interviews with or
debriefings of Sanginiti, including an unredacted version of the
Form 302 produced to DiPietro in response to his FOIA request.
My August 2011 Order further provided that if the Form 302
produced in pretrial discovery was not identical to the unredacted version of the Form 302 produced to DiPietro in response
to his FOIA request, the government was also to provide an
explanation of why two different versions of the same document
were prepared.
Based on material produced in response to my August
2011 Order and on other newly submitted factual material,

8

Giglio v. United States, 405 U.S. 150 (1972).
13

DiPietro seeks reconsideration of the following aspect of my
August 2011 Order:
1.

2.

Documents concerning Sanginiti's cooperation in the
Robert DeRosario case.

3.

Recordings of Din Celaj speaking on the telephone from
the MCC and MDC during the time he was cooperating.

4.

All investigative reports and rough interview notes
concerning Richard Wieland.

5.

All investigative reports and rough interview notes
concerning Ded Nicaj.

6.

WCDAO notes of proffer sessions or other interview
notes concerning Din Celaj and Mark Nickolson.

7.

All law enforcement reports, notes and agreement pertaining to Mustafaj or a specific averment that no such
evidence exists.

8.

III.

All investigative reports and rough interview notes
concerning Frank Taddeo, Ralph Pizzuti, Carl
Macchiarulo and Manny Pereira.

All still-outstanding reports and rough notes and the
substance of any oral statements given to law enforcement or prosecutors -- including those of the WCDAO -regarding Perazzo.

Analysis

A.

Applicable
Legal Standards

In order to obtain any relief on the present motion,
DiPietro must meet two demanding standards.
that reconsideration is warranted.
14

First, he must show

Second, assuming that recon-

sideration is appropriate, he must show that upon reconsideration, he has met the demanding standard necessary to warrant
discovery with respect to his 2255 motion.

Because DiPietro must

meet both standards to demonstrate an entitlement to relief, a
failure to meet either warrants denial of his discovery requests.

1.

Standards Applicable to a
Motion for Reconsideration

Because there are no special rules applicable to
reconsideration motions in habeas corpus proceedings, courts
routinely apply the standards generally applicable in civil
cases.

Toolasprashad v. Tryon, No. 12 CV 734, 2013 WL 1560176 at

*2 (W.D.N.Y. Apr. 11, 2013).
Reconsideration "is an extraordinary remedy to be
employed sparingly in the interests of finality and conservation
of scarce judicial resources."

Ramos v. United States, 580 F.

Supp. 2d 296, 299 (S.D.N.Y. 2008) (Marrero, D.J.) (internal
quotation marks omitted); accord Gonzalez v. United States, 10
Cr. 238 (JFK), 12 Civ. 8261 (JFK), 2014 WL 1725738 at *1
(S.D.N.Y. Apr. 30, 2014) (Keenan, D.J.); see also Nowacki v.
Estate of Closson, No. 99-CV-975, 2001 WL 175239 at *1 (N.D.N.Y.
Jan. 24, 2001).

"The standard for granting [a motion for recon-

sideration] is strict, and reconsideration will generally be

15

denied unless the moving party can point to controlling decisions
or data that the court overlooked -- matters, in other words,
that might reasonably be expected to alter the conclusion reached
by the court."

Schrader v. CSX Transp., Inc., 70 F.3d 255, 257

(2d Cir. 1995); accord Rosario v. United States, Nos.
3:00-CR-186, 3:04-CV-467, 2006 WL 1789130 at *1 (N.D.N.Y. June
27, 2006).

Reconsideration is not appropriate merely to

relitigate matters that were already decided by the court; to
warrant reconsideration the petitioner must show that the court
overlooked either factual matters or controlling decisions that
were before it when it decided the underlying motion.

John v.

United States, 09 Civ. 3116 (GBD), 2011 WL 347188 at *1 (S.D.N.Y.
Feb. 3, 2011) (Daniels, D.J.).

Reconsideration may also be

appropriate "to correct clear error, prevent manifest injustice,
or to account for new evidence or a change in controlling law
that might reasonably be expected to alter the court's decision."
Gonzalez v. United States, supra, 2014 WL 1725738 at *1, citing
Beras v. United States, 05 Civ. 2678 (SAS), 2013 WL 2420748 at *1
(S.D.N.Y. June 4, 2013) (Scheindlin, D.J.); accord Thomas v.
United States, 02 Civ. 6254 (WHP), 2005 WL 2104998 at *2
(S.D.N.Y. Sep. 1, 2005) (Pauley, D.J.).
In a motion for reconsideration, a party may not
advance new facts, issues, or arguments not previously
presented to the court. Caribbean Trading & Fidelity
16

Corp. v. Nigerian National Petroleum Corp., 948 F.2d
111, 115 (2d Cir. 1991); Walsh v. McGee, 918 F. Supp.
107, 110 (S.D.N.Y. 1996); Walpex Trading Co. v.
Yacimientos Petroliferos Fiscales Bolivanos, 1989 WL
67239 (S.D.N.Y. 1989). A motion for reconsideration is
not a vehicle for a party dissatisfied with a court's
ruling to secure a rehearing on the merits with respect
to issues already decided. See USA Certified Merchants,
LLC v. Koebel, 273 F. Supp. 2d 501, 503 (S.D.N.Y.
2003); see also Range Rd. Music v. Music Sales Corp.,
90 F. Supp. 2d 390, 392 (S.D.N.Y. 2000) ("The . . .
limitation on motions for reconsideration is to ensure
finality and to prevent the practice of a losing party
examining a decision and then plugging the gaps of the
lost motion with additional matters.").
Perez v. United States, 378 F. Supp. 2d 150, 154-55 (E.D.N.Y.
2005); accord Cohn v. Metro. Life Ins., Co., 07 Civ. 0928 (HB),
2007 WL 2710393 at *1 (S.D.N.Y. Sept. 7, 2007) (Baer, D.J.); see
In re City of New York, as Owner & Operator of M/V Andrew J.
Barberi, No. CV-03-6049 (ERK)(VVP), 2008 WL 1734236 at *1
(E.D.N.Y. Apr. 10, 2008), citing Zoll v. Jordache Enters. Inc.,
01 Civ. 1339 (CSH), 2003 WL 1964054 at *2 (S.D.N.Y. Apr. 24,
2003) (Haight, D.J.).

2.

Standards for Permitting
Discovery in 2255 Proceedings

"A habeas petitioner, unlike the usual civil litigant
in federal court, is not entitled to discovery as a matter of
ordinary course."

Bracy v. Gramley, 520 U.S. 899, 904 (1997);

accord Charles v. Artuz, 21 F. Supp. 2d 168, 169 (E.D.N.Y. 1998);

17

see Harris v. Nelson, 394 U.S. 286, 295 (1969);.

The Second

Circuit has noted that "Rule 6(a) of the Rules Governing Section
2255 Proceedings . . . provides that a § 2255 petitioner is
entitled to undertake discovery only when 'the judge in the
exercise of his discretion and for good cause shown grants leave
to do so, but not otherwise.'"

Lewal v. United States, 152 F.3d

919, 1998 WL 425877 at *2 (2d Cir. 1998) (unpublished summary
order).
A petitioner "bears a heavy burden in establishing
a right to discovery." Renis v. Thomas, No. 02 Civ.
9256 (DAB)(RLE), 2003 WL 22358799, at *2 (S.D.N.Y. Oct.
16, 2003) (citing Bracy, 520 U.S. at 904). In order to
show "good cause," a petitioner must present "'specific
allegations'" that give the Court "'reason to believe
that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled
to relief.'" Bracy, 520 U.S. at 908-09 (quoting Harris
v. Nelson, 394 U.S. 286, 300 (1969)). A court may deny
a petitioner's request for discovery "where the petitioner provides no specific evidence that the requested
discovery would support his habeas corpus petition."
Hirschfeld v. Comm'r of the Div. of Parole, 215 F.R.D.
464, 465 (S.D.N.Y. 2003); see also Charles v. Artuz, 21
F. Supp. 2d 168, 170 (E.D.N.Y. 1998). Generalized
statements regarding the possibility of the existence
of discoverable material will not be sufficient to
establish the requisite "good cause." See Gonzalez v.
Bennett, No. 00 Civ. 8401(VM), 2001 WL 1537553, at *4
(S.D.N.Y. Nov. 30, 2001); Green v. Artuz, 990 F. Supp.
267, 271 (S.D.N.Y. 1998); Munoz v. Keane, 777 F. Supp.
282, 287 (S.D.N.Y. 1991), aff'd sub nom., Linares v.
Senkowski, 964 F.2d 1295 (2d Cir. 1992).
Ruine v. Walsh, 00 Civ. 3798 (RWS), 2005 WL 1668855 at *6
(S.D.N.Y. July 14, 2005) (Sweet, D.J.) (alteration in original);

18

accord Rios v. United States, No. 13-CV-5577 (CBA), 2016 WL
3702966 at *9 (E.D.N.Y. July 7, 2016); Vazquez v. Maccone, No.
12-CV-4564 (JMA), 2016 WL 2636256 at *10 (E.D.N.Y. May 6, 2016);
Cooper v. United States, 08 Cr. 356 (KMK), 13 Civ. 3769 (KMK),
2015 WL 9450625 at *5 (S.D.N.Y. Dec. 22, 2015) (Karas, D.J.).
Furthermore, "Rule 6 does not license a petitioner to
engage in a 'fishing expedition' by seeking documents 'merely to
determine whether the requested items contain any grounds that
might support his petition, and not because the documents actually advance his claims of error.'"

Ruine v. Walsh, supra, 2005

WL 1668855 at *6, quoting Charles v. Artuz, supra, 21 F. Supp. 2d
at 169; accord Batista v. United States, No. 14-CV-805 (DLI)(LB),
2016 WL 4575784 at *1 (E.D.N.Y. Aug. 31, 2016).

B.

Application of the
Foregoing Principles
to DiPietro's Arguments

1.

Investigative Reports
and Rough Interview Notes
Concerning Frank Taddeo,
Ralph Pizzuti, Carl Macchiarulo
and Manny Pereira

DiPietro seeks these materials in connection with an
argument that the Government violated its Brady obligations.

19

a.

Frank Taddeo

To the extent DiPietro seeks reconsideration of the
August 2011 Order with respect to Taddeo, his argument appears to
be based on a misrepresentation of fact.

Specifically, DiPietro

argues that the government's Brady disclosure concerning Taddeo
was misleading and, therefore, insufficient and that because of
the allegedly misleading disclosure, he did not raise any Brady
issue with respect to Taddeo on appeal.

Specifically, DiPietro

states in his motion for reconsideration:
It was not until Frank Taddeo waived his attorneyclient privilege and authorized disclosure of his
attorney's notes that DiPietro had reason to believe
the Government had falsely represented to the Court and
counsel that Taddeo corroborated the testimony of
Maurizio Sanginiti[9] regarding the Perazzo "kidnapping"
of June 29-30, 2001. Up until then, DiPietro had every
right to rely upon the representations of the Government as honest. Here, the Government's false statements unfairly precipitated DiPietro's "default."
(DiPietro's Memorandum of Law in Support of his Motion for
Reconsideration, dated Feb. 2, 2012 (D.I. 20) ("DiPietro Recons.
Mem.") at 11-12).

DiPietro does not identify any facts or

controlling precedent that I overlooked in my August 2011 Order.

9

As noted above, Sanginiti testified for the prosecution at
DiPietro's trial pursuant to a cooperation agreement. Taddeo was
not called as a witness by either side.
20

The premise of DiPietro's argument -- that the government falsely claimed Taddeo corroborated Sanginiti's testimony -is itself demonstrably untrue.

The government's Brady disclosure

concerning Taddeo provided:
Pursuant to the Government's obligations under
Brady v. Maryland, 373 U.S. 83 (1963), we are writing
to inform you that you may wish to speak with the
following two individuals in connection with this
matter: Ralph Pizzuti and Frank Taddeo. Ralph Pizzuti
is the brother of defendant Michael Pizzuti. Frank
Taddeo is represented by attorney Tony Siriano, Esq.,
who can be reached at [phone]. When questioned
by the Government, Frank Taddeo indicated, in substance
and in part, that he was present during the specific
events charged in Counts Three and Four of the abovereferenced superseding indictment and that he did not
see anyone threaten the victim. Similarly, when questioned by the Government, Ralph Pizzuti indicated that
he was present during the specific events charged in
Counts Five through Nine of the above-referenced superseding indictment and that he did not see anyone
threaten the victim.
From the outset, we want to be clear that, although the information provided by these witnesses
arguably constitutes Brady material, under the circumstances of this case, the Government does not believe
that these witnesses were truthful during the interviews.

21

(DiPietro Recons. Mem., Ex. I).10

Thus, the government's Brady

disclosure concerning Taddeo expressly describes his information
as exculpatory.
It is also noteworthy that in connection with his
present motion, DiPietro has submitted an affidavit from Taddeo
in which Taddeo states, in substance, that he was with DiPietro
on the night of Perazzo's kidnapping, that the individuals
involved, including Perazzo, had a friendly get-together that
evening and that no one was threatened or held against their will
(DiPietro Recons. Mem. Ex. J).

If this affidavit is true,

DiPietro was with Taddeo on the night of Perazzo's kidnapping
and, therefore, DiPietro must have known that Taddeo could
provide exculpatory testimony.

If DiPietro had such knowledge --

which he must have had if Taddeo's affidavit is true -- there
could be no Brady violation.

"Evidence is not 'suppressed' for

10

DiPietro's Memorandum of Law in support of his motion for
reconsideration seems to suggest that the government made some
other representation to the trial judge to the effect that
Taddeo's information actually inculpated DiPietro (see DiPietro
Recons. Mem. at 12-13). However, neither DiPietro's original
motion for discovery nor his motion for reconsideration
identifies any other representation by the government that
suggested Taddeo inculpated DiPietro. There is, therefore, no
evidence that such representations were made.
DiPietro's contention that the government's Brady disclosure
with respect to Taddeo implied that Taddeo had told the
government that firearms were present on the night Perazzo was
kidnapped (DiPietro Recons. Mem. at 12) is baseless.
22

Brady purposes if the defendant 'either knew, or should have
known, of the essential facts permitting him to take advantage of
any exculpatory evidence.'"

United States v. Barcelo, 628 F.

App'x 36, 39 (2d Cir. 2015) (summary order), quoting DiSimone v.
Phillips, 461 F.3d 181, 197 (2d Cir. 2006); Dodakian v. United
States, 14 Civ. 1188 (AJN), 2016 WL 3866581 at *9 (S.D.N.Y. July
12, 2016) (Nathan, D.J.), certificate of appealability denied,
Docket No. 16-3057 (2d Cir. Feb. 10, 2017); Colotti v. United
States, 11 Civ. 1402 (DLC), 2011 WL 6778475 at *11 (S.D.N.Y. Dec.
21, 2011) (Cote, D.J.); Layton v. Phillips, No. 04 Civ. 4032
(DRH), 2008 WL 413785 at *5 (E.D.N.Y. Feb. 13, 2008), aff'd, 340
F. App'x 687 (2d Cir. 2009) (summary order).

Thus, even if there

were some basis to conclude that the government's Brady disclosure concerning Taddeo was lacking or even misleading (and there
is no such evidence), there could be no Brady violation because
the nature of the allegedly exculpatory information must have
been independently known by DiPietro.
DiPietro cites several cases from other Circuits in
which the prosecution either mischaracterized the nature of a
witness's testimony or affirmatively stated that the testimony
would not be helpful to the defense (see DiPietro Recons. Mem. at
12-14).

These cases are factually distinguishable.

The Brady

disclosure quoted above unmistakably describes Taddeo's informa23

tion as exculpatory.

The fact that the disclosure included the

prosecutors' opinion that Taddeo's exculpatory information was
not credible certainly did not bind defense counsel nor did it
taint the government's Brady disclosure.

The continuation of a

criminal prosecution after a Brady disclosure is necessarily an
expression of the prosecutor's opinion that the exculpatory
information is either not credible or insufficient to rebut the
evidence of guilt.11

If a prosecutor's rejection of the informa-

tion in a Brady disclosure were sufficient to render the disclosure insufficient, then all prosecutions in which a Brady disclosure was made could be derailed by a defendant's claim that the
disclosure was misleading.
Although DiPietro has shown no basis to warrant reconsideration of my ruling with respect to Taddeo, the foregoing
demonstrates that, even if reconsideration were appropriate, his
request for discovery fails on the merits because the discovery
sought could not provide a basis for establishing a Brady violation and could not, therefore, provide a basis for relief.

11

A prosecutor is ethically bound to discontinue a
prosecution if exculpatory evidence establishes a defendant's
innocence. ABA Model Rules of Professional Conduct, Rule 3.8
(a)9, (g) and (h) (1984); see Town of Newton v. Rumery, 480 U.S.
386, 413 (1987).
24

b.

Ralph Pizzuti, Carl
Macchiarulo and Manny Pereira

DiPietro makes no specific arguments in support of his
motion for reconsideration of the August 2011 Order with respect
to Ralph Pizzuti, Carl Macchiarulo and Manny Pereira.

He appears

to be relying on the same theory he asserted with respect to
Taddeo.12

Accordingly, DiPietro's motion fails with respect to

12

The government's Brady disclosure with respect to
Macchiarulo and Pereira was substantially similar to its Brady
disclosure concerning Taddeo and Ralph Pizzuti. It provided:
Pursuant to the Government's obligation under
Brady v. Maryland, 373 U.S. 83 (1963), we are writing
to inform you that you may wish to speak with the
following two individuals in connection with this
matter: Carl Macchiarulo and Manuel Pereira. When
questioned by the Government, Macchiarulo and Periera
[sic] each indicated, in substance and in part, that he
was present during the specific events charged in
Counts Five through Nine of the above-referenced
superseding indictment and that he did not see anyone
carry a firearm or threaten the victim. We believe
that these individuals are close associates of
defendant Michael Pizzuti and that counsel to Pizzuti
knows how to contact them. Please contact us if you
need additional information to contact them.
From the outset, we want to be clear that,
although the information provided by these witnesses
arguably constitutes Brady material, under the
circumstances of this case, the Government does not
believe that these witnesses were truthful during the
interviews. Again, please contact us if you have any
questions regarding this matter.
(DiPietro Recons. Mem., Ex. I).
25

these three individuals for the same reason that it fails with
respect to Taddeo, namely that the government's Brady disclosure
was appropriate and sufficient.

2.

Documents Concerning
Sanginiti's Cooperation
in the Robert DeRosario Case

DiPietro's request for discovery concerning Sanginiti's
cooperation in the DeRosario case arises out of the following
facts.
Independent of his cooperation in DiPietro's case,
Sanginiti assisted the WCDAO in an investigation of the sexual
assault and murder of a 12-year-old child.

Prior to Sanginiti's

entering into a cooperation agreement with the United States
Attorney's Office with respect to the charges against DiPietro,
Westchester County authorities contacted the United States
Attorney's Office because Sanginiti was a high school classmate
of Robert DeRosario, the defendant in the assault/murder case
(Tr. 1797-98; Memorandum of Law of the United States of America
in Opposition to Motions of Angelo DiPietro and Michael Pizzuti
for Discovery in a § 2255 Proceeding ("Mem. in Opp. to Discovery"), dated November 3, 2010 (D.I. 21 in 10 Civ. 199), at 18).
Sanginiti did not have knowledge of any facts concerning the
assault and murder because those events had taken place long
26

after Sanginiti's relationship with DeRosario had ended (Mem. in
Opp. to Discovery at 18).

However, the victim's body was found

in a location that Sanginiti and DeRosario had frequented many
years earlier (Mem. in Opp. to Discovery at 19).

Thus, Sanginiti

could testify that DeRosario was familiar with the location in
which the murder victim was found (Mem. in Opp. to Discovery at
18-19, citing Tr. 1797-99).
Sanginiti's federal cooperation agreement had not yet
been finalized when the state authorities sought his testimony
before a grand jury concerning DeRosario.

The United States

Attorney's Office took the position and advised Sanginiti's
counsel in writing that Sanginiti would receive no benefit in the
federal case for his cooperation against DeRosario (Mem. in Opp.
to Discovery at 19, citing Tr. 1797-99).

The government provided

this letter to DiPietro and his co-defendants as part of
Sanginiti's Jencks Act materials (Memorandum of Law of the United
States of America in Opposition to Motions of Angelo DiPietro,
Michael Pizzuti and Joseph Genua under 28 U.S.C. § 2255 and in
Opposition to DiPietro's Motion for Discovery, dated July 30,
2010 (D.I. 9 in 10 Civ. 199) ("Gov't Opp. Mem.") at 56, citing
3518-G).
Sanginiti testified against DeRosario in the grand jury
but not at DeRosario's trial, and the late Honorable Shirley Wohl
27

Kram, United States District Judge, who presided over DiPietro's
trial, ruled at trial that Sanginiti could not be impeached or
otherwise cross-examined concerning his cooperation in the
DeRosario case (Tr. 1797-99).

However, notwithstanding its

earlier representations, the government did refer to Sanginiti's
cooperation in the DeRosario case at Sanginiti's sentencing as
another mitigating factor.
In my August 2011 Order I found that DiPietro could
have appealed Judge Kram's ruling concerning Sanginiti to the
Second Circuit, but did not.

I concluded, therefore, that

DiPietro was procedurally barred from raising any issue in this
proceeding concerning Sanginiti's cooperation in the DeRosario
and that discovery related to the issue was, therefore, irrelevant.
In support of his motion for reconsideration, DiPietro
merely repeats the arguments he made in support of his original
motion for discovery.

He does not identify any facts or control-

ling precedents that I overlooked, nor does he explain how
reconsideration is necessary to prevent manifest injustice or to
correct clear error.

Accordingly, there is no basis to recon-

sider DiPietro's request for discovery with respect to
Sanginiti's cooperation in the DeRosario case.

28

3.

Recordings of Din Celaj
Telephone Calls from the
MCC and MDC while He Was Cooperating

In my August 2011 Order I concluded that any claim
concerning Judge Kram's refusal to grant DiPietro access to
recordings of Celaj's telephone calls while he was incarcerated
in the MCC and MDC was also procedurally barred.
subpoenaed these recordings during his trial.

DiPietro had

Judge Kram quashed

the subpoena, and any claim concerning the request for access to
the recordings should, therefore, have been raised on DiPietro's
direct appeal.
In an effort to muster new facts that might warrant
reconsideration, DiPietro cites information concerning Bashkim
Mustafaj that he claims came to light only as a result of the
discovery I ordered in my August 2011 Order.

However, none of

the "new" evidence DiPietro cites relates to Celaj.
relates only to Mustafaj.

Rather, it

Nevertheless, in an effort to justify

reconsideration, DiPietro simply takes a logical leap and baldly
asserts that Celaj must have been involved with Mustafaj's newly
disclosed criminal conduct.

Given the absence of any evidence

linking Celaj to Mustafaj's newly disclosed criminal conduct,
Mustafaj's conduct is irrelevant.

29

As a fall back, DiPietro also cites a criminal prosecution commenced against Celaj in 2007.

However, all the charges

in that case arose out of conduct that commenced in 2007 -- two
years after the conclusion of DiPietro's trial.

See United

States v. Din Celaj, et al., 07 Cr. 837 (RPP) (S.D.N.Y.) D.I. 102
(superseding indictment).

Thus, those charges have no bearing on

DiPietro's failure to challenge the quashing of his subpoena on
his direct appeal or the merits of DiPietro's subpoena for the
recordings of Celaj's telephone calls.

DiPietro's remaining

arguments are frivolous.
Because DiPietro has not shown any basis to reconsider
my ruling that any claim concerning the quashing of his subpoena
for the recordings of Celaj's telephone calls is procedurally
barred, this aspect of his motion is also denied.

4.

Investigative Reports
and Interview Notes
Concerning Richard Wieland

DiPietro also seeks this discovery on the theory that
the government violated its Brady obligations with respect to
Wieland.

As with Taddeo, DiPietro offers an affidavit from

Wieland in which Wieland states that he was present with DiPietro
and others on the night of Perazzo's kidnapping, that the evening
was a friendly get-together in which the participants shared beer
30

and pizza, that no guns or restraints were involved and that
Wieland had disclosed these facts to the FBI on some unspecified
date.
Even if DiPietro were able to offer facts or arguments
that justified reconsideration, he is not entitled to the discovery he seeks.

As was the case with Taddeo, if Wieland's affida-

vit is true, DiPietro would necessarily have known of the exculpatory information he is alleged to possess, and if DiPietro knew
the nature and extent of Wieland's exculpatory information, there
can be no Brady violation, regardless of the nature of the
government's disclosure.

United States v. Barcelo, supra, 628 F.

App'x at 39; DiSimone v. Phillips, supra, 461 F.3d at 197;
Dodakian v. United States, supra, 2016 WL 3866581 at *9; Colotti
v. United States, supra, 2011 WL 6778475 at *11; Layton v.
Phillips, supra, 2008 WL 413785 at *5.

5.

Investigative Reports
and Interview Notes
Concerning Ded Nicaj

DiPietro also seeks this information in support of his
claim that the government violated its Brady obligations with
respect to Nicaj.
In the August 2011 Order, I rejected DiPietro's request
for discovery concerning Nicaj on the ground that DiPietro
31

offered only hearsay evidence suggesting a possible Brady violation and that such hearsay evidence was insufficient to establish
good cause for discovery.

DiPietro's motion for reconsideration

ignores the basis for my prior ruling and offers no reason to
reconsider it.
In opposing DiPietro's original motion for discovery,
the government offered a declaration from FBI Special Agent Rico
Falsone which stated, among other things, that the government had
no record of an interview with Nicaj (DiPietro Recons. Mem., Ex.
G).

In his motion for reconsideration, DiPietro attempts to

impugn the credibility of Special Agent Falsone's statement that
no notes of interviews with Nicaj exist.

However, my August 2011

Order did not deny discovery concerning Nicaj on the basis of
Special Agent Falsone's statement; rather the reason for the
ruling was DiPietro's failure to show good cause for the discovery.

Thus, even if I were now to find that Special Agent

Falsone's credibility had been impeached, reconsideration would
not be warranted because Special Agent Falsone's statements
played no role in my prior ruling concerning Nicaj.
Thus, because DiPietro has not demonstrated any flaw in
my prior ruling, there is no basis to reconsider that ruling.

32

6.

WCDAO Notes of Proffer Sessions
or Other Interview Notes
Concerning Din Celaj and Mark Nickolson

DiPietro next seeks WCDAO notes of proffer sessions or
other interview notes concerning Din Celaj and Mark Nickolson,
again on the theory that this discovery will disclose a Brady or
Giglio violation.
My August 2011 Order denied discovery of notes of
interviews of Celaj on the ground that plaintiff had offered no
specific evidence that the discovery sought would demonstrate
that petitioner was entitled to relief.

DiPietro's prior motion

did not seek any discovery with respect to Nickolson.

In support

of his motion for reconsideration, DiPietro makes the following
argument:
Information obtained through Freedom of Information Act (FOIA) requests now confirms that the WCDAO -with whom Din Celaj and Mark Nicholsyn [sic] first
agreed to cooperate -- possesses documentary evidence
relating to its cooperators/confidential informants
against DiPietro that should have been produced as §
3500 materials. As evidenced by a fax cover sheet of
WCDAO Assistant District Attorney (ADA) Frank L. Priolo
(Exhibit L, p. 1), some of these WCDAO materials were
sent to the FBI. The FBI also documented receipt of
such materials from the WCDAO. Id. at 4. Even though
proffer agreements for both Celaj and Nicholsyn [sic]
with the WCDAO have been unearthed, no WCDAO proffer
notes, reports of investigation, or other discoverable
materials relating to Celaj or Nicholsyn [sic] were
ever disclosed to the defense. This Brady/Giglio
evidence was in the Government's possession, and would
have been fertile ground for impeachment on other
33

benefits received of inconsistent statements that
appeared therein.
(DiPietro Recons. Mem. at 22).
DiPietro's argument fails, however, because the purported factual back up for the argument does not even remotely
support DiPietro's claims.
consists of four pages.

Exhibit L to DiPietro's Recons. Mem.

The first page is a heavily redacted fax

cover sheet reflecting the transmission of a 15-page fax on
August 26, 2003 from "FLP" to an individual identified only as
"SA," an abbreviation that I presume stands for Special Agent.
The bottom of the cover sheet bears the footer routinely generated by fax machines indicating that the cover sheet is page 1 of
a fax sent on August 26, 2003 at 11:48.

The rest of Exhibit L

consists of three pages of a heavily redacted FBI form dated
January 18, 2006 that lack the machine generated footer that
appears on the first page of Exhibit L.

Because these three

pages are dated two and one-half years after the fax cover sheet
and do not bear the footer, I conclude that they were not part of
the fax transmission.

The three pages appear to be a redacted

list of subfiles generated in the course of an investigation
entitled "Trojan Horses" and list file titles such as "All
Original FD-302s," "All Background Information," "Case Expenditures," "Westchester County T3 Affidavits," etc.

34

There are no

references by name or by implication to either Celaj or Nickolson
nor are there any entries that can fairly be construed to refer
to interview notes or proffer notes.

In short, there is not a

scintilla of evidence supporting DiPietro's argument that exculpatory or impeachment material with respect to either Celaj or
Nickolson was transmitted from the WCDAO to the FBI and withheld
from DiPietro.

There is, therefore, no reason to revisit my

August 2011 Order with respect to Celaj and no reason to permit
discovery with respect to Nickolson.

7.

All Law Enforcement Reports,
Notes and Agreement Pertaining to
Mustafaj or a Specific Averment
that No Such Evidence Exists

FBI reports produced as a result of my August 2011
Order demonstrate that Bashkim Musatafaj was a criminal associate
of Sanginiti; however, Mustafaj did not testify at DiPietro's
trial.

DiPietro claims that the Form 302 reports describing the

FBI's interviews of Sanginiti that were produced as a result of
my August 2011 Order indicate that Mustafaj and Sanginiti engaged
in the same type of criminal activity of which DiPietro was
convicted and that this information could have been used to
impeach Sanginiti.
•

Specifically, DiPietro cites the following:

"Mustafaj knows a number of young people who have
access to drugs and are engaged in other illegal
35

activities. Mustafaj has the ability to broker a
drug deal in which he would profit. In the past,
on approximately five occasions, Mustafaj obtained
small amounts of cocaine for [Sanginiti]. As of
the time of [Sanginiti's] arrest, Mustafaj was
selling drugs to [Sanginiti's] brother." . . .
•

Sanginiti and Mustafaj had engaged in extortion
together, including of a victim named "Mush." . .
.

•

Mustafaj engaged in credit card fraud/bust out
schemes. . . .

•

Mustafaj engaged in medical insurance fraud
schemes. . . .

(DiPietro Recons. Mem. at 23-24).
DiPietro's argument again ignores the record.

My

August 2011 Order denied discovery concerning Mustafaj because
DiPietro's own "evidence" concerning Mustafaj -- a memorandum of
an interview of Mustafaj prepared by DiPietro's investigator -states that Mustafaj told DiPietro's investigator that Mustafaj
had never been interviewed by the FBI (Tab 3 of Ex. A to
DiPietro's Memorandum of Law in Support of his 2255 Motion, dated
March 22, 2010 (D.I. 1 in 10 Civ. 2585)).

Because DiPietro's own

evidence actually indicates that the discovery sought does not
exist and DiPietro has offered nothing suggesting that Mustafaj's
statements to DiPietro's investigator that he had never been
interviewed were false, there is no basis to revisit my August
2011 Order with respect to Mustafaj.

36

8.

All Still-Outstanding
Reports and Rough Notes
and the Substance of any
Oral Statements Given to
Law Enforcement or Prosecutors
-- Including Those of the
WCDAO -- Regarding Perazzo

Prior to trial, the prosecution provided all defendants' counsel with the FBI Form 302 report reflecting the
government's interviews of Perazzo on May 11, 17 and 20, 2004,
and the underlying notes from those interviews (Mem. in Opp. to
Discovery at 13-14).

The letter transmitting these documents

also stated:
Based upon repeated arguments made by various
defense counsel during the course of this matter, we
write to reiterate to each of you that John Perazzo is
available for you to subpoena as a witness in this
case, should you desire his testimony during your
defense case. As you each know, Mr. Perazzo is currently incarcerated and is in state custody upstate.
If anyone wishes to call him as a witness in this
matter, we will do everything within our power to have
him transported here for testimony.
(Gov't Opp. Mem., Ex. A).

Despite the foregoing,

not call Perazzo as a witness at trial.

DiPietro did

DiPietro now claims that

Perazzo made statements years after the trial that may tend to
exculpate DiPietro (DiPietro Recons. Mem. at 25-26).
It is not entirely clear what viable claim DiPietro
could make with respect to Perazzo.

Perazzo did not testify at

trial; thus, his allegedly exculpatory information does not rise
37

to the level of witness recantation.13

Nor do Perazzo's state-

ments constitute newly discovered evidence.

"[N]ew evidence in a

§ 2255 proceedings . . . is evidence that is discovered after the
original hearing, and which could not, with due diligence of
counsel, have been discovered sooner."

Giacalone v. United

States, 739 F.2d 40, 43 (2d Cir. 1984) (internal quotation marks
omitted); accord United States v. Siddiqi, 959 F.2d 1167, 1173
(2d Cir. 1992); United States v. Ajemian, 193 F. Supp. 3d 298,
300 (S.D.N.Y. 2016)

(internal quotation marks and citations

omitted.), appeals filed sub nom., Lesniewski v. United States,
Docket No. 16-2380 (2d Cir. July 6, 1980) and Ajemian v. United
States, Docket no. 16-2534 (2d Cir. July 14, 2016).

Perazzo was

always known to be one of the victims of DiPietro's conduct; the

13

The Second Circuit has cautioned that "witness
recantations 'must be looked upon with the utmost
suspicion'" because they (1) upset societal interests
in the finality of convictions, (2) often are
unreliable and offered for suspect motives, and (3) in
many cases simply impeach cumulative evidence rather
than undermine the accuracy of a conviction. For this,
among other reasons, an applicant for relief based on
an alleged recantation must submit a specific sworn
statement by the witness. A "general, unsworn
recantation . . . is insufficient to contradict sworn
trial testimony."

Salazar-Espinosa v. United States, 11 Civ. 0247 (LAK), 2011 WL
2946166 at *2 (S.D.N.Y. July 11, 2011) (Kaplan, D.J.) (ellipses
in original), citing Haouari v. United States, 510 F.3d 350, 353
(2d Cir. 2007).
38

government's disclosures of its interviews of Perazzo eliminates
any doubt in that regard.

Whatever information Perazzo had could

have been discovered prior to DiPietro's trial.

Finally, given

Perazzo's history as an admitted con artist and Ponzi scheme
operator, it seems highly unlikely that uncorroborated testimony
from him could justify relief.

As explained by the late Honor-

able Leonard B. Sand, United States District Judge:
"In order to obtain" relief under § 2255 "based upon
newly-discovered evidence, petitioner bears a heavy
burden of convincing the court that the
newly-discovered evidence would have resulted in an
acquittal." Pri-har v. United States, 83 F. Supp. 2d
393, 399 (S.D.N.Y. 2000). "Such motions 'based upon
previously-undiscovered evidence [are] ordinarily not
favored and should be granted only with great caution.'" Id. (quoting United States v. Stofsky, 527
F.2d 237, 243 (2d Cir. 1975). Finally, to argue that
this evidence demonstrates his actual innocence, "petitioner must demonstrate that, in light of all the
evidence, it is more likely than not that no reasonable
juror would have convicted him." Bousley v. United
States, 523 U.S. 614, 623 (1998).
Brown v. United States, 10 Civ. 2380 (LBS) 05 Cr. 857 (LBS), 2011
WL 3273202 at *6 (S.D.N.Y. Aug. 1, 2011) (Sand, D.J.) (alteration
in original).
Because DiPietro has not shown why my August 2011 Order
should be reconsidered and has not shown how the discovery sought
could support a viable claim, his application for discovery of
additional material with concerning Perazzo is denied.

39

9.

Summary

DiPietro has not succeeded in making the dual showing
required to obtain any of the discovery he seeks.

He has not

shown that my August 2011 Order overlooked any controlling facts
or precedents, nor has he shown the good cause necessary to
warrant discovery in a 2255 proceeding.

His motion is, there-

fore, denied.

IV.

Conclusion

Accordingly, for all the foregoing reasons, DiPietro's
motion for reconsideration of my August 2011 discovery order
(D.I. 19) is denied.
The due date for petitioners' reply papers is adjourned
without date pending resolution of issues raised in D.I. 83 in 10
Civ. 199. 14
Dated:

New York, New York
March 29, 2017
SO ORDERED

United States Magistrate Judge

To the extent any additional motions for discovery are
outstanding, they will be addressed in the Report and
Recommendation resolving these matters.
14

40

Copies transmitted to:
Mr. Michael Pizzuti
Reg. No. 51089-054
FCI Danbury
Federal Correctional Institution
Route 37
Danbury, Connecticut 06811
Mr. Joseph Genua
Reg. NO. 56988-054
RRM New York
100 29th Street
Brooklyn, New York 11232
Anthony Dipietro, Esq.
15 Chester Avenue
White Plains, New York 10601
Joseph A. Bondy, Esq.
Suite 1200
20 Vesey Street
New York, New York 10007
Hadassa R. Waxman, Esq.
Eli J. Mark, Esq.
Assistant United States Attorneys
Southern District of New York
One St. Andrew's Plaza
New York, New York 10007

41