Gangland - 1/24/19

[Chucky]

This Week in Gang Land
By Jerry Capeci

Hobbled By Trump's Shutdown, The Bureau Of Prisons Bars A Family From A Father's Death Bed

When Harold (Harry) Thomas was sentenced to two years for loansharking and for selling bootleg cigarettes, the low-level mob associate apologized to everyone he'd hurt, especially his wife Rosalie. He also thanked Manhattan Federal Judge Richard Sullivan, and told the jurist that he had "not been treated unfairly in the entire process" that began with his arrest back in 2016.

After a year behind bars, Thomas, 73, would change his tune, and his tone, if he could. But he can't. He's in a coma, on life support, and not expected to live much longer. His family says that negligent medical care at his prison hospital put him on his death bed, and now the officially shutdown federal Bureau of Prisons (BOP) won't let family members see him before he dies.

Rosalie Thomas and their son Guy — and their lawyers — say the only real information the Thomas family gets these days about the dying inmate comes from Duke University Hospital. That's where the Federal Medical Facility (FMC) at Butner, North Carolina moved Thomas two weeks ago when prison doctors felt they could no longer provide him adequate care.

And after viewing medical records supplied by Duke, and talking to doctors at the teaching hospital, Mrs. Thomas believes the FMC provided less than adequate care for her husband from the get-go, and sealed her husband's fate last February, a month after he began his prison bid, when "he was treated for pneumonia that they told Harry he didn't have," she sobbed.

Last Thanksgiving, when Thomas learned he had stage 4 metastatic lung cancer and malignant lesions on his spine, the family's goal was to try to get him home to get better medical care, Mrs. Thomas said. Since then, however, her husband's condition has deteriorated. "Now he's dying," she said, "and they won't let us see him. We don't want him to die alone. He was always there for us; we need to let him know we were there for him. We need to get down there before he dies."

The family has been trying for more than two weeks to arrange a visit without success, according to Mrs. Thomas. Even an agreement by a prison doctor to write a letter calling for Thomas's compassionate release that was secured a month ago by Atlanta-based attorney Linda Sheffield, who specializes in litigation for BOP inmates, has been stalled by the government shutdown.

"I've called, Linda called, my sons called, my brother-in-law called, but the BOP is not answering anybody," the distraught woman continued. "There's a government shutdown, and they don't pick up the phone. They're not answering, and when they do answer, they tell us nothing," she said.

"Dad's been back and forth to Duke four times" since Thanksgiving, said Guy Thomas, the oldest of five children in the Thomas family. "I've been down there five or six times since then and was turned away and told to go back home. The first time, we heard on a Wednesday, I flew down on Thursday. They wouldn't tell me where he was – for security reasons," Guy said derisively.

"They don't tell you he's in an outside facility," he continued, stating that whether you go to the prison, or you call on the phone, you get the same non-answer: "We have no information." And the one time he pressed, and said, "I'm his son, I know he's got stage 4 cancer, is he still alive?" he got the same response: "We have no information; I can't give you any information."

"This is killing my mother, it's literally killing her," said Guy, whose biological mom died when his father was 29 and a widower with three young kids when he married Rosalie 41 years ago, according to a court filing in his case. Thomas has two other children, four grandkids, a brother, and a large extended family of aunts, uncles and in-laws who showed up for his sentencing, which Sullivan noted by thanking them for their "many, many" letters he had read.

Thomas, a longtime Bronx-based Luchese associate, was snared in the blockbuster racketeering case against 46 wiseguys and mob associates with close ties to Genovese capo Pasquale (Patsy) Parrello and his landmark Italian American eatery, Pasquale's Rigoletto. The Bronx restaurant was the hub of the five year sting operation by wired-up FBI informer John (JR) Rubeo.

At sentencing, attorney Lawrence DiGiansante sought a below guidelines 18 month sentence that had been recommended by the Probation Department. But Sullivan, who had given a pass to the defendant's younger brother, Vincent Thomas, for buttlegging, meted out a guidelines sentence of 24 months to Harold.

"Harry still has rights," said Rosalie. "He made a mistake but he's doing his time and doesn't deserve to die in jail. He's already there over a year. They should treat him fairly now," she said.

Correction officers abused his cancer-stricken dad for months, claimed Guy. "He has two fractured vertebrae in his back and the guards were telling him to 'stand up straight' when he went to the pill room to get medicine to reduce the pain," he said. "Stop being lazy; if you can't stand up straight, get back to your cell," the guards told his dad, Guy said, adding that his father said that they "did that to him many times."

Last February, a month after Thomas reported to the Butner complex, "he came down with what they said was pneumonia," said Mrs. Thomas. "But according to the medical records we got, they saw something in his lungs but weren't sure what it was because of the congestion, but they never called him back to tell him that they wanted to do more tests."

"Their reasoning," she said, "is he never called for a cop out," which is prison parlance for a BP-8 form that inmates use for a medical visit. "Why cop out if you're not sick. He was fine, and we saw him a few times that summer. You cop out when you're sick," she said, and he seemed to be doing well until August "when he started coughing again, and he did the cop out."

"They told him it wasn't pneumonia but they were going to treat him for pneumonia with antibiotics again," and in September and October, when he was in pain and "wasn't getting better, they started him giving him tests. Around Thanksgiving, they told him it was stage 4 cancer, very invasive, but treatable and the doctors were going to write a letter for compassionate release."

The last time she saw her husband was the Saturday after Christmas. "He's in a wheel chair, getting very weak, but going to radiation. Then things just went downhill."

At this point, "We just want to get to see him," said Guy. "We don't want him living on a machine that he didn't want to be on. And we want to say goodbye to our father. And they won't let us do that now. Every day that we don't see him is another day that he might die. We don't know how long he has left."

Guy told Gang Land that the doctor who's been treating his dad at Duke "is a supreme gentleman. He believes we should be with our dad, but he said he doesn't make the rules. 'It's the BOP.' That's what he said. It's not Duke that's keeping us out, it's the BOP that's doing it."

On Tuesday, DiGiansante sought a time-served compassionate release under the recently passed First Step Act of 2018, writing that his client is "on a ventilator in a medically induced coma" and that doctors at Duke University Hospital have "advised Mrs. Thomas by telephone that they are unable to remove him from the ventilator or the coma, as they fear he will not survive."

Judge Sullivan, aware that time was of the essence for Thomas and his family, ordered the government to respond "no later than" today to the family's motion. But prosecutors beat that deadline, submitting a letter dated January 23 agreeing to reduce Thomas's sentence "to time-served on compassionate grounds."

The prosecution letter could be Exhibit One in how dysfunctional and chaotic much of the federal government has become since the shutdown commenced just before Christmas: "Due to the partial government shutdown and corresponding furloughs of BOP staff," the letter states, "BOP's central office — which normally receives 'compassionate release' applications has been unstaffed since December 21. . ."

Still, it's unclear whether even the best efforts of the federal prosecutors and the judge, who late yesterday issued an order granting the motion to release Thomas, can get the defendant back to his Bronx home before he dies.

Anyone who was in Sullivan's courtroom back on October 17, 2017 would have expected the judge to do his best to find a way to help family members who showed up in his courtroom that day say their final goodbyes to the man they said was a caring and loving husband, father and grandfather.

He didn't go along with the request for a prison term below the recommended guidelines, but he seemed pleasantly surprised — and touched — when Thomas thanked the judge and stated he had been treated fairly from his arrest to his sentencing more than two years later.

"Not everybody always feels that way," said Sullivan. "But certainly that's the goal, to always treat people with respect and dignity and recognize that people are complicated, and people who have been accused of serious crimes, people who admit to serious crimes are still important and they are capable often of great kindness and generosity and they are worthy of attention and respect and regard. So I'm glad to hear you say that. Thanks."

Feds: What's Good For The Government Goose Isn't Good For The Defense Gander

When it helps to make the case, airing old dirty laundry is a long-favored tactic for lawyers on both sides of the aisle in criminal cases. For instance, in the upcoming racketeering trial of five Luchese gangsters charged with the 2013 gangland-style slaying of former Purple Gang leader Michael Meldish, prosecutors want the right to tell a jury all about crimes and other bad acts committed by defendants going back as far as 45 years.

But don't even think about doing that to their witnesses.

In the trial about the last sanctioned mob murder in New York, the feds are seeking to block defense lawyers from questioning government witnesses about crimes that took place a decade ago, and even more recent crimes involving murder, burglary and domestic violence. Their reasoning? None of those crimes are indicative of people who are dishonest.

In the same filing, prosecutors have also asked White Plains Federal Court Judge Cathy Seibel to prohibit the defense from quizzing their two key witnesses, mob associate Frank Pasqua III and bank robber David Evangelista, about their involvement with drugs and mental illness because neither trait will "affect their ability to perceive the events about which they are expected to testify."

Prosecutors also want to preclude any questioning of any witness — including Pasqua and Evangelista — about their habitual personal drug use." It "is not proper" to impeach the credibility of a witness because "he was a drug user," they wrote, unless the defense first establishes that his "capacity to observe and remember was impaired by contemporaneous drug use on a particular occasion."

Prosecutors Scott Hartman, Hagan Scotten and Celia Cohen argue that the defense should be "precluded from cross-examining" Pasqua and Evangelista about their "respective mental health diagnoses and treatments" because the evidence has "marginal probative value" and the "potential for unfair prejudice, confusion of the issues, and waste of time is significant."

The assertion by prosecutors regarding Pasqua's "ability to perceive the events about which (he is) expected to testify," seems to fly in the face of prior government statements about his initial account of the Meldish murder he gave to the feds two years after the killing, in 2015, when he fingered his dad.

The trio of prosecutors wrote that Pasqua "was diagnosed with bipolar disorder as a child," but "has never had difficulty perceiving the events around him." But last year, Hartman told Seibel that Pasqua mistakenly "inferred" that his father had shot and killed Meldish when he heard a car door slam and his dad told him to "take credit for it."

"So you think that he's sincere," Seibel asked the prosecutor at a court session last August. "You just think he's incorrect in what he assumed happened?"

"Absolutely," replied Hartman. "And one thing that I think bears emphasizing is that CW-1, when he first hears that noise, he said this in his very first meeting with the FBI, he thought it was a car door slamming. And it was only later, based on these other interactions he had, that he came to believe that what he heard was a gunshot."

As for Evangelista, who "has been diagnosed with depression, anxiety, and PTSD, and currently takes medication prescribed by a doctor," the prosecutors wrote that his condition and his medication do not "affect his perception and will not impair his ability to testify at trial."

Evangelista, as Gang Land disclosed on January 3, is a 2005 serial bank robber who "escaped" from a halfway house in late 2016. That might be construed as the action of a troubled man since when he took off Evangelista was just a few weeks away from his official release after 11 years in prison. He began cooperating in the summer of 2017. That much more rational decision came six months after he had pleaded guilty to robbing two more banks and was facing 235 more months behind bars.

The government also wants to stop defense lawyers from asking Pasqua about two incidents of domestic violence, including a "2006 rape accusation," and a 2012 conviction for violating "a protective order" by entering his wife's car and threatening her. "While this conduct is deplorable," they wrote, "incidents of domestic violence are rarely admissible" because of a "substantial risk of unfair prejudice" against the witness by jurors, especially women.

Prosecutors have also asked Seibel to prevent the defense from airing dirty laundry belonging to five other witnesses. They want to block questions about domestic violence to Bonanno capo Peter (Petey BS) Lovaglio; about a 1993 arrest for assault and weapons charges to Sean Richard; about several arrests of mob associate Anthony (Mama's Boy) Zoccolillo, including the conviction for a burglary of a neighbor's home because it was not considered a "crime of dishonesty;" about several arrests and convictions on drug and weapons charges in the 1980s and 1990s of mob associate Joseph Foti; about the 2012 drug arrest of a witness known only as CW-8

Lawyers for the Meldish Murder Five have until next week to file objections to the government requests to admit old crimes and other bad acts by the defendants into evidence and to preclude defense questions about some crimes committed by government witnesses. And late yesterday, Judge Seibel agreed to entertain a defense motion to adjourn the trial next week.

Meldish Murder Five: Feds Sandbagging Us

Defense lawyers for the Meldish Murder Five yesterday accused prosecutors of "sandbagging them" and asked the judge for "at least a three-month adjournment" of the trial because the defense still hasn't gotten thousands of hours of tape recorded conversations by four cooperating witnesses, including its controversial key witness, Frank Pasqua III.

In the alternative, Barry Levin, the attorney for Luchese underboss Steven (Stevie Wonder) Crea, asked Judge Cathy Seibel to block the government from calling Pasqua and the other turncoats — Bonanno capo Peter Lovaglio and mob associates Joseph Foti and Anthony Zoccolillo — as witnesses at the trial, which is currently slated to begin on March 4.

Without either concession, "there is no possibility that defense counsel can render effective assistance on behalf of their respective clients in this case," wrote Levin, noting that prosecutors recently "informed the defense that they anticipate this is going to be a 'long trial' and that they intend to turn over 'voluminous' amounts" of more material about the quartet.

After being pressed to turn over discovery material regarding Lovaglio, Levin wrote, prosecutors stated they have yet to produce prison calls made by Pasqua, consensual recordings and prison calls made by Lovaglio, as well as consensual recordings made by Zoccolillo and Foti, but insist they will soon do so.

"Notably," Levin continued, the defense "recently learned from filings in a companion case" in which Lovaglio is also a witness "that the government possesses thousands of recordings," including "at least 651 recorded calls from a correctional facility, and approximately 4,600 recorded wiretap communications" that have not been turned over to them.

Levin wrote that in the other case, in which Lovaglio is believed to the only mob turncoat witness against seven mobsters from three families, the government "in an abundance of caution," gave defense lawyers "thousands of other prison and wiretap recordings two and a half months prior to trial," the attorney wrote.

"In our case, the government has failed to turn over any of the aforementioned recordings" even though "we are now only 41 days away from trial," wrote Levin, who used the boldface type in his filing for emphasis.

The "substantial impeachment material" that defense lawyers need to review and analyze before making good use of it at trial "cannot realistically occur within the limited time period that remains until this trial begins, especially since we still do not have the recordings in question," wrote Levin.

On top of that, wrote Levin, Crea "is also apparently going to be sandbagged with recordings" by the other three cooperators and by "numerous consensual recordings" that mob associate Sean Richard, the key witness against his client for a 2016 attempted murder, made two decades ago.

Levin also called out prosecutors for stating in a reply to a request for all the taped talks by Richard that they "may not be in possession of those 'state recordings' and will try to locate them" since they have turned over three old "recordings, thereby conceding they know how to obtain them, and are seeking to admit one of those recordings" at trial.

Seibel, who previously declined out of hand a request for a two week adjournment by lawyers for Crea's son, Steven (Stevie Wonder) Crea, scheduled a status conference for next week on Levin's motion, which the government opposes

[Snakes]

Thanks, Chucky.

[SonnyBlackstein]

Thanks Chucky.

The governments behaviour throughout the whole Crea et al trial is out of order. I can’t believe prosecutors haven’t at a minimum been severely berated by the judge, still won so many motions and quite frankly haven’t had the case throw out of court by this stage.

It shows how much the odds are stacked in their favour, and we haven’t even started trial yet.

[bronx]

for what its worth, if this trial goes off without turning over all related tapes material ect they will have a good shot on appeal.seems these prosecutors are scumbags. everything about a witness is fair game..that is how a jury can judge his creds..i hope the case gets thrown out

[UTC]

I'll leave aside most of the factors brought up in the article, because we're mostly getting one side. However, the theory as to past crimes is that if I beat up my wife it means I'm a scumbag, but it doesn't mean I'm a liar. So showing that I'm a wife beater might prejudice the jury and cause them to dismiss what I said, even though there is nothing about my testimony that is not credible. So the prejudice outweighs the relevance. Of course it's usually the defense that is raising this argument. If I committed murder years ago, it is not relevant to whether I stole this car. The past record of course comes out at sentencing, but at trial usually only past crimes of witnesses based on dishonesty come into evidence.

[SonnyBlackstein]

I'll leave aside most of the factors brought up in the article, because we're mostly getting one side. However, the theory as to past crimes is that if I beat up my wife it means I'm a scumbag, but it doesn't mean I'm a liar. So showing that I'm a wife beater might prejudice the jury and cause them to dismiss what I said, even though there is nothing about my testimony that is not credible. So the prejudice outweighs the relevance. Of course it's usually the defense that is raising this argument. If I committed murder years ago, it is not relevant to whether I stole this car. The past record of course comes out at sentencing, but at trial usually only past crimes of witnesses based on dishonesty come into evidence.

Does not character play a part?

If someone has a history of deceit, irrational violence, mental ‘inconsistencies’/problems or issues, how can one accept their testimony at full weight with the above?

Would you accept someone with severe mental issues testifying against yourself without the jury being aware of such, even if it ‘wasn’t directly relevant to the crime’ at hand?
I’m not saying this is the above, it’s to illustrate the point.

[UTC]

Someone would have to have severe mental issues to testify against me.

[UTC]

Actually a history of deceit, as I and the article said, is relevant. Character in general does not necessarily play a part in itself. If mental problems impede a witness's ability to understand or perceive the facts he's supposed to testify to, then yes that's fair game as the article says. Otherwise, the judge applies a balancing test of whether the relevance of the past crime outweighs the prejudicial effect on the jury. If I'm on the stand and had committed a rape, that is likely not admissible to prove a lack of credibility.

[SonnyBlackstein]

Actually a history of deceit, as I and the article said, is relevant. Character in general does not necessarily play a part in itself. If mental problems impede a witness's ability to understand or perceive the facts he's supposed to testify to, then yes that's fair game as the article says. Otherwise, the judge applies a balancing test of whether the relevance of the past crime outweighs the prejudicial effect on the jury. If I'm on the stand and had committed a rape, that is likely not admissible to prove a lack of credibility.

So where does Cui Bono fit in?
A witness covicted of rape testifying in a unrelated murder charge. The unrelated rape has no relevance to the murder, except, the ‘witness’ getting off the rape charge in exchange for testifying about the murder.

As a juror the difference is relevant. A witness testifying without (selfish) motivation is plainly different than one testifying with motivation.

So although the instances themselves are unrelated. The testimony of the witness is not objective.

[SonnyBlackstein]

Someone would have to have severe mental issues to testify against me.

Sorry I missed, for or against?

[Fughedaboutit]

I'll leave aside most of the factors brought up in the article, because we're mostly getting one side. However, the theory as to past crimes is that if I beat up my wife it means I'm a scumbag, but it doesn't mean I'm a liar. So showing that I'm a wife beater might prejudice the jury and cause them to dismiss what I said, even though there is nothing about my testimony that is not credible. So the prejudice outweighs the relevance. Of course it's usually the defense that is raising this argument. If I committed murder years ago, it is not relevant to whether I stole this car. The past record of course comes out at sentencing, but at trial usually only past crimes of witnesses based on dishonesty come into evidence.

[UTC]

Don't know what that emoticon means. I assume it's complimentary though.

[UTC]

To testify for me you'd have to be merely eccentric.

[UTC]

Actually a history of deceit, as I and the article said, is relevant. Character in general does not necessarily play a part in itself. If mental problems impede a witness's ability to understand or perceive the facts he's supposed to testify to, then yes that's fair game as the article says. Otherwise, the judge applies a balancing test of whether the relevance of the past crime outweighs the prejudicial effect on the jury. If I'm on the stand and had committed a rape, that is likely not admissible to prove a lack of credibility.

So where does Cui Bono fit in?
A witness covicted of rape testifying in a unrelated murder charge. The unrelated rape has no relevance to the murder, except, the ‘witness’ getting off the rape charge in exchange for testifying about the murder.

As a juror the difference is relevant. A witness testifying without (selfish) motivation is plainly different than one testifying with motivation.

So although the instances themselves are unrelated. The testimony of the witness is not objective.

Yes, that motivation is a distinct issue as to credibility.