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August 9, 1985


The opinion of the court was delivered by: POLLAK

 Pursuant to Federal Rule of Criminal Procedure 33, Joseph Alberici has moved for a new trial, principally on the ground that the government failed to disclose exculpatory evidence prior to Mr. Alberici's trial in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The government has opposed Mr. Alberici's motion. In order to explore in depth Mr. Alberici's complex factual contentions and the legal arguments predicated thereon, I conducted an evidentiary hearing. The hearing was held at various dates between January 21, 1985 and February 21, 1985. *fn1" At the conclusion of the hearing, I directed the parties to file supplemental memoranda outlining their respective positions. Based on my review of these submissions, and of the entire record in this matter, I conclude that the defendant's motion for a new trial must be denied.


 A. Procedural History

 This case arises out of an August 1977 fire which consumed the Jerry Lewis Theatre in Aston Township, Pennsylvania. The indictment charges that defendant, who was in the process of purchasing the theater, *fn2" hired Joseph Ditizio to set the fire in order that defendant might collect on certain recently purchased insurance policies. Defendant was charged with six counts of mail fraud for his part in this scheme, and after an eight-day trial in January 1983, he was convicted on all counts. On July 25, 1983, I granted defendant's motion for a new trial based on the discrepancy between the indictment's charge that defendant caused the relevant documents to be delivered by mail and my jury charge, in which I instructed the jury that they could convict defendant if they found that he had caused the documents to be deposited in the mails. On September 2, 1983, in response to the government's motion to reconsider, I reinstated the guilty verdict as to count five of the indictment. *fn3" Defendant's conviction was affirmed by the Court of Appeals for the Third Circuit, 735 F.2d 1351, on May 15, 1984. The Supreme Court, 469 U.S. 1072, 105 S. Ct. 564, 83 L. Ed. 2d 505, denied certiorari on December 3, 1984. Defendant filed his second motion for a new trial -- which is now before me -- on January 8, 1985.

 B. Summary of the Evidence Adduced at Trial

 Defendant argues that his trial was tainted by the government's non-disclosure of a whole host of allegedly exculpatory items of potential evidence. Any evaluation of defendant's argument must, of course, rest on an understanding of the evidence produced against defendant at trial. Accordingly, I shall briefly review those portions of the evidence relevant to defendant's motion.

 At trial, Joseph Ditizio testified that in July of 1977 defendant met with him to arrange to have the Jerry Lewis Theatre burned down. To this end, defendant gave Ditizio a key to the theater and agreed to pay $25,000 for the arson. Ditizio, according to his testimony, contacted Charles Allen and offered to pay Allen to help set the fire. Allen in turn enlisted Vincent Fardella in the scheme. On August 6, 1977, according to the testimony of each of the three arsonists, Ditizio, Allen and Fardella met to set the fire, using two 55-gallon drums of the chemical agent naphtha which had earlier been purchased.

 Although Ditizio was the only government witness directly linking defendant to the arson, both Charles Allen and Vincent Fardella testified concerning the nature and execution of the alleged fraudulent scheme. Allen in essence confirmed Ditizio's testimony regarding the preliminary arrangements and the setting of the fire. Fardella, by contrast, initially testified that only he and Allen had set the fire, and that Ditizio did not accompany them to the theater on the day of the fire. Fardella changed his testimony on these points after the prosecutor used his grand jury testimony to refresh his recollection. In addition, Fardella testified that Allen had told him that the individual paying for the arson was a Sansom Street jeweler. Fardella further testified that he did not know defendant and had no knowledge of any connection between defendant and the fire.

 William Merrill, III, whose home was within visual range of the theater, testified that on the afternoon of the fire he saw a white male, about twenty-five to thirty years of age, drive up in a 1970 Chrysler and enter the theater. Shortly thereafter, Merrill saw a fiery explosion which caused one of the building's walls to collapse.

 Employees of the relevant insurers testified that, in the months immediately prior to the fire, defendant had purchased some $500,000 of insurance on the theater, an amount well in excess of the purchase price. A portion of this insurance was scheduled to expire only eight days after the fire. Shortly after the fire, defendant hired an adjuster to process his insurance claims; the resulting mailings provided the jurisdictional grounds for defendant's indictment.

 The defense case consisted largely of the defendant's testimony, supplemented by a large number of character witnesses. Defendant testified that he became casually acquainted with Joseph Ditizio through the latter's brother Henry. Defendant further testified that, shortly before the Jerry Lewis Theatre fire, he and Henry Ditizio had a loud altercation in defendant's office. According to defendant, Henry Ditizio was furious because he believed defendant -- who was reputed to have some influence with local politicians -- was responsible for Henry Ditizio's loss of his lucrative position as a deputy constable. The altercation allegedly closed with Henry Ditizio's vow to "get" the defendant. Defendant's secretary testified briefly, corroborating defendant's statements regarding the altercation with Henry Ditizio. Defendant denied ever contacting Joseph Ditizio regarding the Jerry Lewis Theatre.

 In rebuttal, the government called Henry Ditizio, who categorically denied defendant's account of the altercation in defendant's office. Henry Ditizio testified that he had indeed introduced defendant to his brother Joseph, but that his subsequent relations with defendant were inconsequential. In addition, Henry Ditizio testified that he had never been a deputy constable. On this point, his testimony was corroborated by the testimony of the supervisor of constables in Delaware County.

 C. Defendant's New Trial Motion

 Defendant raises three distinct arguments in support of his renewed motion for a new trial. First, defendant argues that he was unconstitutionally deprived of the use of exculpatory evidence that the government failed to turn over to him prior to trial. The evidence whose non-disclosure allegedly requires a new trial relates principally to the three arsonists who testified at defendant's trial: Joseph Ditizio, Charles Allen, and Vincent Fardella. In each instance, defendant's exculpatory evidence is said to impeach the credibility of one or more of these government witnesses. Second, defendant argues that certain newly discovered evidence (specifically, the expert report of Dr. Grant Krow) entitles him to a new trial, because it calls into question the truthfulness of certain government testimony adduced at trial. Third and finally, defendant contends that the mailing for which defendant was convicted is insufficiently related to the alleged fraudulent scheme to support a conviction.

 Following is a list of the evidentiary items on which defendant's new trial motion is based. *fn4" Included in this list are defendant's various Brady contentions as well as the Krow report:

 1. Ditizio's motions for severance and for dismissal due to pre-indictment delay. On December 18, 1981, Ditizio moved, in connection with the government's criminal prosecution of him for the Jerry Lewis Theatre fire, for severance and for dismissal of the indictment due to pre-indictment delay. In these motions, Ditizio (through his counsel) alleged that he was unable completely to recall events of several years earlier due to his medical condition and was prejudiced thereby in his ability to conduct his defense. *fn5" Defendant argues that the averments in those motions undermine Ditizio's credibility as the key witness against defendant.

 3. Fardella's August 1981 oral statement exculpating Ditizio. At an off-the-record interview of Fardella conducted by government counsel in August 1981, Fardella stated that he and Charles Allen committed the Jerry Lewis Theatre arson by themselves, without the involvement of any third person. Here again defendant contends that Fardella's exculpation of Ditizio is also exculpatory with respect to defendant.

 4. The government's letter to Fardella's counsel establishing "ground rules" for an off-the-record conversation with Fardella in August 1981. In an August 10, 1981 letter to Fardella's counsel, the prosecutors made arrangements for the interview mentioned in the preceding paragraph. The letter set forth a number of terms under which the interview would be held, including (1) the promise that nothing Fardella would say would be used against him in any subsequent criminal prosecution, and (2) the warning that the government would use Fardella's statements to impeach him if he should give materially different testimony at a later date. Defendant argues that the August 1981 letter tends to show that statements made at the subsequent interview were truthful. Since, as we have seen, Fardella exculpated Ditizio at the subsequent interview, the letter would, the argument goes, bolster the inference that Ditizio was not involved in the arson.

 5. The transcripts of Fardella's plea and sentencing in the New Jersey prosecution. In December 1982, Fardella pleaded guilty to, and was sentenced for, federal charges arising out of an arson in New Jersey. Defendant claims that the transcripts of the plea and sentencing, which were not disclosed to defendant prior to defendant's trial, establish that the government accepted as truthful Fardella's earlier exculpation of Ditizio.

 6. The Dangerous Special Offender Petition which the government filed in the course of its prosecution of Fardella. On February 19, 1982, the government petitioned this court to sentence Vincent Fardella as a dangerous special offender in the prosecution arising out of the Jerry Lewis Theatre fire. This petition was withdrawn following Fardella's sentencing; defendant claims that neither the petition (which contains information which might have been used to impeach Fardella) nor its withdrawal (which might suggest a motive for Fardella to testify against defendant) was disclosed to defendant.

 7. Fardella's motions to dismiss his indictment based on prosecutorial misconduct. On August 19 and September 7, 1982, Fardella filed two motions to dismiss the indictment brought against him in this district in connection with the Jerry Lewis Theatre fire. The first motion alleged that the government was seeking to punish him for his efforts to secure early release from prison (he was then serving time for another offense); the second alleged that the government violated his plea agreement by using certain statements against him in a federal prosecution arising out of the New Jersey arson. Both motions, according to defendant, suggest that the government had applied considerable pressure to Fardella in connection with his testimony in defendant's case. Thus, the argument goes, both motions undermine Fardella's credibility and, to a lesser extent, the credibility of the other government witnesses (since the motions suggest that the government put pressure on its witnesses as a general matter).

 8. Witness statements from the Merrills and from Richard Weller regarding their description of the car they saw near the theater the day of the fire. In a statement taken by the government shortly after the fire, William Merrill III, who lived near the Jerry Lewis Theatre, described the car which he saw at the theatre at the time of the fire as light blue, with the word "MOPAR" on the back of the car. The government also took the statement of Richard Weller, who had been jogging in the neighborhood at the time of the fire and observed a light blue car with a green-and-white license plate. The government concedes that these statements were not disclosed to the defendant prior to trial. In addition, through post-trial interviews had with Mr. Merrill and with his parents, defendant learned that (1) none of them identified Fardella, Allen, or Ditizio as a person seen on the day of the fire, and (2) all three stated that the person[s] seen was/were approximately twenty-five to thirty years of age. Fardella, Allen, and Ditizio were all substantially older than thirty at the time of the fire.

 Defendant argues that the statements contradict the testimony of Fardella and Allen, both of whom testified that Fardella's car was the getaway car. Although no one testified at the trial concerning the color of the getaway car, there was testimony at the hearing on defendant's current motion for a new trial which suggested that Fardella's car was a gold Chrysler. Defendant further argues that the Merrills' failure to identify any of the supposed arsonists supports the inference that someone else was involved in the arson, and that Fardella, Allen, and Ditizio were concealing the identity of this mystery person or persons.

 9. Transcripts of Allen's testimony in United States v. Boffa. Defendant alleges, and the government concedes, that transcripts of Charles Allen's testimony in a federal criminal trial in the United States District Court for the District of Delaware were not disclosed to the defendant. The transcripts in question contain admissions of both murder for hire and repeated perjury by Allen. Defendant argues that these admissions are strong impeachment evidence as to a critical government witness.

 10. The failure of Theodore Teplick (who allegedly sold naphtha to the arsonists) to identify either Fardella or Allen in a photographic spread. The government concedes that Teplick, when interviewed by a government agent in 1979, failed to identify any of the arsonists when shown a photographic display. Defendant contends that this information was not disclosed prior to trial, and that it serves to undermine Fardella's and Allen's testimony. Teplick was not permitted to testify at trial, because (apparently through the inadvertence of government counsel) he was present in court during portions of other witnesses' testimony.

 11. Dr. Krow's report regarding the alleged use of large amounts of naphtha in the Jerry Lewis Theatre fire. Defendant has, since the conclusion of his trial, commissioned a report by Dr. Grant Krow, which suggests that Allen's and Fardella's account regarding the amount of naphtha used to set the fire could not have been correct. In particular, Dr. Krow's report calls into question the testimony regarding the use of two 55-gallon drums of the chemical agent naphtha -- an amount which, according to Dr. Krow, would have caused more extensive destruction than that which actually occurred. Dr. Krow's report further suggests that the chemical agent used in the Jerry Lewis Theatre fire was not naphtha but phenol.


 Defendant's motion involves two bodies of doctrine: (1) the government's duty to disclose evidence favorable *fn6" to defendants prior to trial, see United States v. Bagley, 473 U.S. 667, 53 U.S.L.W. 5084, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985); United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976); Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), *fn7" and (2) the requirements imposed by Rule 33 on a defendant seeking a new trial based on newly discovered evidence, see United States v. Adams, 759 F.2d 1099, 1108 (3d Cir. 1985). *fn8"

 A. The Reformulation of Brady

 Under the Brady/Agurs test, claims of nondisclosure of evidence were sorted into three categories: (1) nondisclosure of the use of perjured testimony; (2) nondisclosure following a request for specific evidence favorable to the defendant ("specific request"); (3) nondisclosure following a request for any evidence favorable to the defendant ("general request") or nondisclosure in the absence of any request by the defendant ("no request"). The standard that applied to claims where a specific request was made was different than that for claims where either a general request or no request was made, or that for perjured testimony. Agurs, 427 U.S. 97, 103-14, 96 S. Ct. 2392, 2397-402, 49 L. Ed. 2d 342 (1976). In Bagley, the Court replaced the different standards developed under Brady and Agurs for at least two of these categories, ("specific request" and "general or no request") with a single test "sufficiently flexible to cover the 'no request,' 'general request,' and 'specific request' cases of prosecutorial failure to disclose evidence favorable to the accused . . ." 53 U.S.L.W. at 5088. *fn9" Under the new Bagley standard, "evidence is material only ...

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