Gangland 11/18/21

[Dr031718]

No Adverse Consequences? The Feds Wrongly Kept a Key Defense Witness From Testifying About A Mob Rubout Attempt In Coney Island. An Appeals Court Shrugged.

Gang Land Exclusive!Michael SpataroBack in 2004, the feds made sure that Wilson Afanador, a 37-year-old ex-burglar and drug dealer made it safely to Brooklyn Federal Court. They needed him to testify he had seen a mob hit team in a green minivan outside his Coney Island home around 9:30 AM on a sunny summer day in 2001. Crucially, he'd be able to tell the jury he saw a gunman who later shot and wounded a rival mobster leaving the beach. His testimony helped send two Colombo gangsters to prison.

But two years later, when the government was trying to convict mob associate Michael (Mikey Spat) Spataro for an alleged role in the shooting that July day, the feds worked hard to keep Afanador off the witness stand. How come?

One reason might well be that Afanador's testimony contradicted the feds' timeline of the crime. Prosecutors claimed that Spataro drove the gunman from Bay Ridge to Bensonhurst between 9:30 and 10:30 that morning. Since the laws of physics don't allow people to be in two places at the same time, Mikey Spat could not have been driving the gunman around other Brooklyn neighborhoods while the shooter was in a green minivan in Coney Island at 9:30 that morning, and a jury might well have decided to acquit Spataro. Records show the feds pulled out all the stops to make sure the jury never heard Afanador's account.

Thomas SeigelIt happened near the end of Spataro's trial, on Friday February 3, 2006. On that day, prosecutor Thomas Seigel and G-man James DeStefano got Afanador to come to court in response to a defense subpoena, even though the trial had been put off until Monday. Then Seigel got Judge Sterling Johnson to "excuse" Afanador and wrongly inform the defense witness not to come back to court again in a secret session without any defense lawyer present.

If that smells like a "dirty trick," imagine what it seems like to Mikey Spat, who will spend his 17th consecutive Thanksgiving Day behind bars next week for a crime he had nothing to do with, according to the evidence in the case.

Even the Second Circuit Court of Appeals wondered aloud whether Seigel had "acted in good faith in counseling the trial court in an ex parte communication to excuse Afanador" instead of telling him to return on Monday. The Court directed Seigel and the Brooklyn U.S Attorney's office to "make clear what was the basis for its assertion that this was done in good faith."

James DeStefanoThe appeals court voiced its concern during oral arguments on the case back in June of 2008. It directed Seigel, who was a supervisor at the time of the trial, to explain "why he believed the court should excuse the witness" instead of telling him to return on the next trial day. The court also asked Seigel to state "whether he made an effort" to contact Spataro's defense lawyer before his "ex parte" session with Johnson.

According to a transcript of the session obtained by Gang Land, the prosecutor told Johnson that Afanador had been told by "someone" on the defense team that the date on the subpoena was a "control date" and not to come to court that day. But Seigel stated he believed that Afanador was required to show up that day and did "not have to come back" until he got another subpoena.

Seigel's affidavit and the government's explanation were in archives and could not be obtained from the appeals court. Seigel, who was a deputy chief of the criminal division when he left the office in 2008, and the U.S. Attorney's office declined to comment or provide copies of their filings to the appeals court. But it's clear that they satisfied the Second Circuit, which upheld Spataro's conviction.

Judge Sterling JohnsonThe court agreed with the defense argument that Seigel's "understanding of the rule relating to subpoenas was mistaken." But that wasn't enough to overturn the verdict. The three judge panel wrote they were "satisfied" that Seigel "did not act in bad faith."

Good faith is an abstract term that denotes honest dealing that encompasses a sincere belief or motive without any malice or desire to defraud others. If so, it seems reasonable, at least to Gang Land and Spataro, that good faith would have required the prosecutor to advise Afanador either to come back on Monday, or tell him to call the lawyer who had subpoenaed him.

The appeals court reasoned that while it "would have been preferable for the district court to have instructed the witness to reappear on the next appropriate trial date," there were "no adverse consequences" for Spataro because the defense was able to "re-subpoena the witness."

Joseph Campanella"Accordingly," the judges wrote, "we do not think that the actions of the prosecutor denied (Spataro) a fair trial."

But the Second Circuit's finding that there were no "adverse consequences" for Spataro ignored the fact that once Judge Johnson "excused" Afanador, he never showed up in court again. And for Mikey Spat, that helped lead to some pretty heavy "adverse consequences," since he was convicted and sentenced to 24 years in prison.

A good shorthand legal definition that pops up online for "adverse consequence" is "any liability, loss, damage (including incidental and consequential damages), claim, cost, deficiency, diminution of value, or expense."

It's hard to grasp how the court could state there were no adverse consequences — no loss, or damage, or penalty, or cost, or expense — for Spataro when the judges knew from the trial record that Afanador avoided service of a new subpoena, and that when he finally was served, he threw the subpoena on the floor and did not come to court.

Vincent DeMartinoAfanador, whose last prison stretch for drug dealing ended in 1995, injected himself into the case when he called 911 after he heard shots being fired at about 2:30 PM on July 16, 2001 and looked out the window of his 16th floor apartment on Surf Avenue and saw that a man, who turned out to be Colombo capo Joseph (Joe Camp) Campanella, had been shot.

In 2004, Afanador testified at the trial of Vincent (Chickie) DeMartino and Giovanni (John The Barber) Floridia, that he had seen the green minivan double parked between West 32d and West 33d Streets hours earlier, and "start(ed) watching it about 9:30-10:00." He had gotten suspicious, but didn't mention that when he called 911 because he "didn't want to get involved."

A week later, after agent DeStefano, who had learned about the 911 call from police, knocked on his door, Afanador agreed to tell a grand jury about his suspicions. At trial, he testified that the van began going "around in circles, from one side of the street to the other," and that both men were "wearing jackets." He could also see that the "passenger," (DeMartino) was wearing gloves and he had "a revolver in his right hand resting on his right knee."

Giovanni FloridiaHe couldn't identify either defendant, but his testimony was critical, because with binoculars he often used to scan the beach on summer days, he had seen and written down the license plate of the van. The plate number showed that it was owned by Floridia, and both men were convicted. But at Spataro's trial two years later, Afanador's account was contradicted by Seigel's star witness, John The Barber Florida.

Mikey Spat, according to Floridia, had driven DeMartino to a rendezvous with John The Barber on Shore Paryway in Bensonhurst between 9:30 and 10:30 that day, and Seigel not only didn't want to call Afanador for the government, he actually prevented him from taking the stand as a defense witness.

It's unlikely that today's Gang Land report will mean anything to Mikey Spat. Despite documentary proof that former U.S. Marshal Michael Pizzi obtained from an insurance company showing that Spataro was in his body shop in Bay Ridge when Floridia claims he was driving Chickie to meet him, Mikey Spat will be behind bars until March of 2025 — seven months after DeMartino is scheduled to be released.

And the angst of Spataro and his family is exacerbated knowing that Floridia has been home breathing free air for more than a dozen years now while Mikey Spat cools his heels in a New Jersey prison complex. John The Barber, the only witness against him, was called a perjurer by the federal judge who saw him testify in his next, and last appearance as a government witness.

Judge Joanna SeybertAt that trial, even before Alphonse (Little Allie) Persico and John (Jackie) DeRoss were acquitted of all charges relating to the Campanella shooting, Judge Joanna Seybert declared: "There's a number of things for the government to consider prosecuting Mr. Floridia . . . on the perjury charge" during a session outside the presence of the jury.

According to court records in that trial, the defense established that John The Barber lied when he testified that he fled to New Hampshire because DeMartino was "threatening to kill" him over a debt, and didn't return until early 2001. In fact, according to a court filing in that case, he left New York after being accused in the two prior years of domestic abuse, including one in 1999, for which "Floridia signed an affidavit that he had 'choked' his wife."

"It's really sad, especially at Thanksgiving time," said Pizzi, "for Mike Spataro to be behind bars for 17 years for a crime that he didn't commit while a new judge, who knows nothing about this 20-year-old case, has been sitting on his resentencing motion for 16 months," referring to Judge LaShann Dearcy Hall, who was assigned the case in June of last year.

"What in God's name is wrong with the justice system in Brooklyn where I worked for 25 years," he said. "Why didn't they give the case to one of the judges who presided over the two related cases," Pizzi added, referring to Judge Seybert, or Raymond Dearie, the judge who heard Afanador testify against Chickie DeMartino and John The Barber Florida back in 2004.

The Feds Dropped A Cold Case Murder Charge. But They'll Say He Did It At His Sentencing

John TortoraThe feds dropped a 1997 murder charge against Genovese wiseguy John (Johnny T) Tortora last year when he copped a plea deal to unrelated charges. But they still think he ordered the killing of a police informer outside a Yonkers bar and prosecutors are planning to prove it at his upcoming sentencing, Gang Land has learned.

As a result, Tortora, who stressed his innocence in the death of Richard Ortiz when he pleaded guilty to gambling and obstruction of justice charges in March of 2020, is gearing up for a mini-trial at his sentencing before Manhattan Federal Judge Sidney Stein. Tortora has been free on bail since his plea last year.

Three recent court filings by Tortora attorney Barry Levin accuse the feds of withholding exculpatory Brady Material they received from nine witnesses. Levin indicates that he will prove that the government's two key witnesses against his client, Luchese associate Carmine Francomano Jr. and drug dealer Abdill (Chino) Saez, are solely responsible for the killing.

Several witnesses have informed defense investigators that they told FBI agents, as well as Yonkers Cold Case Detective John Geiss, who served as the main investigator on the case, that Saez and Francomano Jr. were responsible for the killing. Saez was arrested for the murder a few days after the murder. But charges against him were dropped a year later. According to the new witnesses, Saez killed Ortiz on orders from Francomano. In the court filings, Saez is identified as Witness #1; Francomano is identified as Witness #2.

One witness, Levin wrote, had told law enforcement that Francomano had admitted killing Ortiz "by giving the order to Saez." Francomano had previously told this witness that his reason for the murder was that Ortiz was a "junkie that owed him money" and was a "rat."

Carmine FrancomanoThe witnesses include several friends and relatives of Francomano Jr. and Saez, and the victim. Among them are the bar maid at the Mill Inn, where Saez and Francomano Jr. were said to have a loud argument over money that the duo claimed Ortiz owed them for drugs a few hours before the victim was found stabbed to death not far from the neighborhood tavern.

In his three filings, Levin charged that prosecutors Christopher Clore and Justin Rodriguez had failed to adhere to a June court order to turn over all the Brady Material they had and asked the judge to direct them to turn over the material immediately.

Levin also demanded that prosecutors turn over a tape recorded interview of his client that Geiss and an FBI agent conducted in 2017. He also asked for the Yonkers Police Department's confidential informant file of Ortiz, since it "will reflect the persons against whom Ortiz has cooperated," and identify other likely suspects in his murder, including Francomano and Saez.

According to his plea agreement, Tortora, who spent 19 months behind bars before he was released on bail, faces up to seven years behind bars, which is what the government prosecutors are expected to seek at his sentencing. The sentencing-hearing is scheduled for January 14.

Levin, who has cited a host of ailments for his 64-year-old client, and has argued that the murder charges are made-up allegations by the two killers in the case, is expected to seek a time served sentence for Johnny T.

Turncoat Podcaster Bites The Bullet Again, Advised To Read Shakespeare

Gene BorrelloIn a bit of a surprise, mob associate-turned-snitch-turned-podcaster Gene Borrello has pleaded guilty to violating two conditions of supervised release. The violations stem from the lone wolf podcast he did from his home this summer. Borrello apparently thought the podcasts would be okay, even though he was openly talking about the mob and violating a plea deal he got for his prior arrest for violating his release terms.

Borrello pleaded guilty to talking about Bonanno and Gambino family doings during three YouTube videos that aired in July. The videos, officials ruled, violated the sweet four month plea deal Borrello received in March when he agreed to "avoid any podcasts, radio, or internet shows that discuss organized crime" during a three year period of supervised release that began in June.

The ex-Bonanno associate also pleaded guilty to violating his release conditions for threatening the husband of his ex-girlfriend on Instagram — a charge that mirrors one he pleaded guilty to in March — in a brief proceeding before Brooklyn Federal Judge Frederic Block on Tuesday.

The sentencing guidelines for each violation call for a return to prison between eight to 14 months. Since Borrello was not sentenced on the same day as his guilty plea — as he was in March — there is no agreement about his sentence. Borrello could receive consecutive sentences for each violation.

In theory, the ex-gangster faces up to five years in prison, especially since he was warned by Judge Block to straighten up and fly right when he pleaded guilty to an agreed-upon sentence of four months for violating his supervised release by meeting with numerous ex-cons during the year he cohosted a podcast with ex-con and former cooperating witness John Alite.

Judge Frederic Block"You do not exactly have the best track record in the history of the world since you were a little baby, and you are at high risk for maybe spending a considerable amount of the rest of your remaining years in jail if you do not really shape up and get control over your anger problems and your criminal behavior," Block said back in March.

"You have a bad track record," the judge continued. "So this is really maybe the last warning or the last break you are going to get short of putting you in jail for a long, long time. Do you understand? I mean, I am just trying to tell you this for your own best interest because it is serious stuff here."

Judge Block is generally regarded as a compassionate, lenient judge when it comes to imposing sentence. During the proceeding on Tuesday, according to several sources, the judge and the defendant found some common ground to talk about, which one source said was precipitated by Block, who asked Borrello how his book was doing.

The Life and Times Of Gene Borrello, written with author Lou Romano, is not part of the "Special Conditions of Supervision," that the government worked out with defense attorney Nancy Ennis last time.

Block has penned three books himself, including Disrobed, a 2012 tome about numerous trials he has held since his 1994 appointment to the bench. Block told Borrello, said another source, that he should read literary writers like Shakespeare and tell his viewers about him — though obviously not until he completes whatever sentence and post prison supervised release term he gets.

Borrello, 36, is scheduled to face the music for his two violations in January.

Turkey DayGang Land wishes a healthy and Happy Thanksgiving to all our readers, no matter where you'll be spending the holiday, which we will be taking off. Our next column will be December 2. We extend a special thank you to those who've supported us since we became a paid subscription site in June of 2008 we wouldn’t be here without you. Thanks much

[JohnnyS]

Thanks for posting.

[Nurzhamba]

thanks!

[Southshore88]

Thanks for posting

[Dave65827]

Pretty soon we will have Capeci advocating for the release of Tommy Pitera

[Tonyd621]

Pretty soon we will have Capeci advocating for the release of Tommy Pitera

Spataro should be released. With all these people including former law enforcement advocating for his release there is clear things wrong here. Someone convince me that it's not because his name ends in a vowel. With all the support he has if it wasn't Spataro be would be released and probably with some press too

[SonnyBlackstein]

Thanks for the post

[OcSleeper]

Right it's because his name ends in a vowel and nothing to do with him being a piece of shit mobster

[Tonyd621]

Right it's because his name ends in a vowel and nothing to do with him being a piece of shit mobster

He's not some guy that whacked out multiple people nor is he even being accused of pulling the trigger in this one or any other one
Yes he might of been in the mob, but if you look at the facts of this case and the person himself who was young when he went away and didn't have a violent offender record previously you would see my point you num nuts. I know ppl like you are ashamed where you come from and hate any Italian who has ever been accused of a crime that has been discussed on here but I believe in looking at the evidence and facts of the case.

[Shellackhead]

Gene is one dumb mf

[joeycigars]

Gene is one dumb mf

Classic going away for a podcast ,

[OcSleeper]

He's not some guy that whacked out multiple people nor is he even being accused of pulling the trigger in this one or any other one
Yes he might of been in the mob, but if you look at the facts of this case and the person himself who was young when he went away and didn't have a violent offender record previously you would see my point you num nuts. I know ppl like you are ashamed where you come from and hate any Italian who has ever been accused of a crime that has been discussed on here but I believe in looking at the evidence and facts of the case.

Lol people like me? What are you even talking about man? And I'm going be honest here I don't care what your point is or what the facts of the case are here. If some scumbag is sent away for the wrong reason I'm not going lose any sleep over it.

[Tonyd621]

He's not some guy that whacked out multiple people nor is he even being accused of pulling the trigger in this one or any other one
Yes he might of been in the mob, but if you look at the facts of this case and the person himself who was young when he went away and didn't have a violent offender record previously you would see my point you num nuts. I know ppl like you are ashamed where you come from and hate any Italian who has ever been accused of a crime that has been discussed on here but I believe in looking at the evidence and facts of the case.

Lol people like me? What are you even talking about man? And I'm going be honest here I don't care what your point is or what the facts of the case are here. If some scumbag is sent away for the wrong reason I'm not going lose any sleep over it.

That's the point you automatically think he's a scumbag because he's in jail.

[OcSleeper]

No I think he's a scumbag because he's apart of the Mafia. I thought you said it was because his name ended in a vowel though? Pick a reason and stick with it, don't go changing it half way through the argument num nuts.

[mr white]

Gene is one dumb mf

Classic going away for a podcast ,

Its really unbelievable especially after his deal in March not to do podcasts after his last podcast arrest...I doubt anybody buys his dumb book..