Inasmuch as the government is under no duty to disclose items that might impeach the testimony of a witness whose testimony is either neutral or favorable to the defendant, the failure to employ such impeachment evidence must inevitably be harmless, since the witness whose testimony was not impeached did not in any way harm the defendant's case. The government argues that Fardella was such a witness: Fardella acknowledged that he did not know and had never seen defendant, and Fardella testified that Allen had told him that a jeweler on Sansom Street had ordered the arson. Tr. Jan. 10, 1983 at 80. For these reasons, defense counsel viewed Fardella as in substance a defense witness at trial. Tr. Feb. 13, 1985 at 61.
Based on my review of the record in this case, I find the government's argument persuasive. Fardella's testimony in no way linked defendant to the Jerry Lewis Theatre arson -- indeed, as the government correctly notes, Fardella suggested that someone other than defendant played the role with which defendant was charged. Fardella's testimony was thus wholly unhelpful to the government in terms of establishing defendant's complicity in the fraudulent scheme. The relevance of his testimony was in establishing that there was in fact an arson that involved Fardella, Charles Allen, and Joseph Ditizio. In this limited sense, Fardella's testimony was inculpatory, for it established the arson that defendant was charged with ordering, as well as the cast of characters through whom those orders were allegedly carried out. However, defendant did not at trial mount any serious challenge either to the fact of an arson or to the involvement of Fardella, Allen, and Ditizio.
Further, the record before me provides no basis for supposing that, based on the undisclosed evidence that gave rise to defendant's motion, defendant could seriously dispute the fact that Fardella, Allen, and Ditizio -- all of whom pleaded guilty to charges arising out of the case, and all of whom provided detailed and complementary accounts of the planning and execution of the arson -- conspired to burn the Jerry Lewis Theatre. Consequently, I find that, assuming the above-listed items were not disclosed to the defense prior to trial, there is no reasonably probability that their disclosure would have led to a different result.
(7) The failure of William Merrill, III, or his parents to identify either Fardella, Allen, or Ditizio as an arsonist; and Mrs. Merrill's statement that the arsonists were approximately thirty years old. The government concedes that, shortly after the Jerry Lewis Theatre fire, William Merrill, III, and his parents failed to identify either Fardella, Allen, or Ditizio as a person they had seen at the theater at the time of the fire. In addition, the government has not challenged defendant's assertion, supported by handwritten notes of the agent who conducted the interview, that both William Merrill, Jr. and Gladys Merrill stated that the persons they saw were approximately twenty-five to thirty years of age. Finally, it is uncontradicted that these facts were not disclosed to the defense prior to defendant's trial.
It is clear that these eyewitness statements are both relevant and potentially exculpatory. They go to the question whether Fardella, Allen, and Ditizio actually committed the arson. Had defendant been able to establish that the arson was in fact committed by some person or persons other than the three individuals who confessed to its commission, defendant would, of course, have cast considerable doubt on the existence of the scheme that he was charged with initiating.
Like the items discussed in subsection (6) above, however, I find that pre-trial disclosure of the Merrills' statements regarding the identities of the arsonists would not have led to a different result. The evidence of an arson carried out by Ditizio, Allen, and Fardella was overwhelming. Each of the three arsonists testified in great (and, in general, consistent) detail about the events leading up to the Jerry Lewis Theatre fire; each pleaded guilty to his own participation in that fire. In light of that evidence, the Merrills' statements, apparently based on fleeting views through the window of their house,
could not, in my judgment, possibly have caused the jury to conclude that in fact the arson was committed by persons other than the three confessed arsonists.
(9) Transcripts of Charles Allen's testimony in United States v. Boffa.
The government concedes that the transcript of Charles Allen's testimony in United States v. Boffa, a federal criminal trial conducted in Delaware in 1981, was not disclosed to the Alberici defense prior to defendant's trial. That transcript shows that on cross-examination Allen testified, inter alia, that he had in the past committed murder for hire, and that he had perjured himself in court proceedings on many occasions.
The government argues that the Allen transcript was not Brady material because its substance was, or easily could have been, known to the defense prior to trial. Whether or not a defendant should reasonably have discovered exculpatory evidence cannot affect the government's duty to disclose such evidence. See United States v. Agurs, supra, 427 U.S. at 110-11, 96 S. Ct. at 2401. And while actual knowledge of Allen's testimony in the Boffa case would negate any due process argument based on the non-disclosure of that testimony, cf. United States v. Starusko, 729 F.2d 256, 262 (3d Cir. 1984), the record does not support the inference that defendant or his counsel in fact knew the substance of Allen's testimony.
This portion of defendant's motion nevertheless fails because Allen's Boffa testimony is not material under Bagley. The testimony is material only if there is a reasonable probability that disclosure would lead to a different outcome.
Allen's testimony does not satisfy this standard, for two reasons. First, Allen's testimony did not connect defendant to the scheme to burn the Jerry Lewis Theatre. Consequently, evidence which generally impeached Allen's veracity did not cast doubt on defendant's guilt save in the indirect sense that the very arson itself was called into question. Second, Allen was cross-examined at some length regarding his extensive criminal career. Tr. Jan. 13, 1983 at 28-34. From this cross-examination, the jury must have been fully aware that Allen was someone who had spent his adult life in a world dominated by violence, theft, and deceit. See id. at 33-34. As heinous as are the deeds that Allen acknowledged in his Boffa testimony, their commission could not come as a surprise to anyone who heard Allen's testimony at defendant's trial.
Either of these two factors -- Allen's failure directly to connect defendant to the fraudulent scheme, or his trial testimony regarding his long career in crime -- would arguably compel the conclusion that disclosure of the Boffa testimony does not give rise to a reasonable probability of a different result. Taken together, they surely compel that conclusion.
(10) Teplick's failure to identify either Fardella or Allen in a photographic spread. Theodore Teplick, who allegedly sold the arsonists the chemical agents used in the arson, failed to identify any of the arsonists when shown a photographic display sometime in 1979. The evidence introduced at the hearing on defendant's motion establishes that defense counsel had this information prior to defendant's trial,
and nevertheless successfully urged that Teplick be barred from testifying due to his presence in court while other witnesses testified. Defendant's Brady claim as to this information is therefore meritless.
See United States v. Starusko, supra, 729 F.2d at 262.
(11) Cumulative Effect of the Non-disclosed Evidence
I have now determined that each of the particular Brady arguments which defendant raises is without merit.
I have already outlined in some detail the evidence brought forward at trial. That evidence is, as I have said, overwhelming as to two central propositions: (1) the Jerry Lewis Theatre was purposefully burned, and (2) the arson was committed by Ditizio, Allen, and Fardella. Taken together, defendant's list of asserted Brady violations do not call these propositions into question.
Similarly, the non-disclosure of those items which potentially go to Ditizio's credibility are, taken together, constitutionally harmless. Here, my determination is based in large part on the fact that the items in question were mostly duplicative of information the defense already possessed prior to trial. See supra text slip op. at 27-35. Defense counsel knew, for example, that Ditizio had medical difficulties that required large amounts of medication; that information was used skillfully at trial. In addition, defense counsel knew that Fardella had in the past stated that he and Allen committed the arson by themselves; this too was brought out at trial. The added effect of the items discussed supra text slip op. at 27-35 could not, in my judgment, have affected the outcome.
B. Newly Discovered Evidence -- The Krow Report
In support of his motion for a new trial, defendant submitted the report of Dr. Grant Krow, a chemist whose services defendant has retained since his trial. Dr. Krow's report states that, based on his professional judgment, the chemical agent used to burn the Jerry Lewis Theatre was not naphtha but phenol. In addition, Dr. Krow states that had 110 gallons of naphtha been used on the building, as Allen testified at trial, the resulting explosion would have completely destroyed the theater and damaged surrounding property as well. The damage to the theater was not, in Dr. Krow's view, of the magnitude that would be expected to result from the ignition of 110 gallons of naphtha. See Krow Report (Exhibit 21 to Defendant's Motion for a New Trial).
Under Rule 33, newly discovered evidence does not call for a new trial unless, inter alia, the evidence would probably produce an acquittal. United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976). Even if taken in combination with defendant's Brady materials, Dr. Krow's report does not meet this standard. The report addresses a collateral issue -- the amount and nature of the substance used to burn the theater -- and says nothing regarding defendant's complicity in the fraudulent scheme. Accordingly, even assuming it were accepted in a subsequent trial, its effect falls well short of the probable acquittal standard of Rule 33.
C. The Connection Between the Mailing and the Fraudulent Scheme
Defendant argues that the mailing alleged in count five of the indictment -- the only count on which his conviction stands -- is insufficiently connected with the fraudulent scheme to support a conviction under the mail fraud statute. See United States v. Maze, 414 U.S. 395, 38 L. Ed. 2d 603, 94 S. Ct. 645 (1974). The government, in response, contends both that this portion of defendant's motion is untimely under Rule 33 and that it is wrong on the merits.
The letter in question was sent by Bertram Horowitz, an insurance adjuster hired by defendant, to the Curley Adjustment Company (Curley), which had represented Safeguard Insurance Company (Safeguard), one of the insurers of the Jerry Lewis Theater. The evident purpose of the letter, according to defendant, was to correct Curley's underestimate of the loss caused by the Jerry Lewis Theatre fire. This purpose is of course closely connected with the principal aim of the fraudulent scheme -- to collect as much as possible on defendant's insurance policies for the theater fire. Accordingly, I find defendant's Maze argument without merit. See United States v. Lebovitz, 669 F.2d 894, 896-99 (3d Cir.), cert. denied, 456 U.S. 929, 72 L. Ed. 2d 446, 102 S. Ct. 1979 (1982).
For these reasons, defendant's motion for a new trial will be denied. An appropriate Order accompanies this Memorandum.
For the reasons stated in the accompanying Opinion, it is hereby ORDERED that defendant's motion for a new trial is DENIED, and the government's motion for revocation of bail is DENIED AS MOOT.