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Dear John Marzulli & the staff at the NY Daily News, the New York Post, the Huffington Post, etc., etc. I give you permission to copy and paste this one.
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December 19, 2011

VIA ELECTRONIC MAIL


Re: United States v. Thomas Gioeli, et al.
Case No. 08-cr-240 (S-6) (BMC) (RER)

Dear AUSAs Geddes, Gatta and Posa:

We are attorneys for Thomas Gioeli in connection with the above matter. We are writing to request production of information pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and Kyles v. Whitley, 514 U.S. 419 (1995). Specifically, we are seeking any and all Brady material related to the following:

1. We have learned through several sources that an inappropriate social and possibly sexual relationship has developed between FBI Special Agent Scott Curtis and Andrea Calabro, the wife of government cooperating witness Dino Calabro. We also understand that complaints have been made directly to the United States Attorney#226;#128;#153;s Office for the Eastern District of New York regarding Agent Curtis having an inappropriate relationship with Andrea Calabro. Since this information will bear directly on the credibility of Agent Curtis, Dino Calabro and Andrea Calabro, who may all be witnesses in the upcoming trial, we ask that the government immediately produce any and all information regarding any social, romantic, sexual or otherwise inappropriate relationship between Agent Curtis and Andrea Calabro, including but not limited, the nature of the relationship, the date when it developed, and the dates, time, places and other information regarding contacts between Agent Curtis and Andrea Calabro related to the same.

2. During the course of our investigation, we have learned that the government has decided to not adopt, or otherwise abandon, information provided by several witnesses. These witnesses include Anthony Basile, Frank Sparaco, Anthony Kenny, Anthony Calandra, Gabriel Marquez, and Charles Diaz. We believe that these individuals have provided potentially exculpatory information about Gioeli to the government. We request any and all documents regarding interviews and/or testimony by these individuals regarding Gioeli and any of the charges in the present or any prior indictments in this case.

3. In addition to the foregoing, we also believe that prior FBI agents investigating Gioeli have provided exculpatory evidence regarding his involvement in the present case. These individuals include Special Agents Andre Curcio, Robert Shellhorn, and Special Agents Fallon and D#226;#128;#153;Agostino. We request any and all documents prepared by these individuals and/or testimony by them regarding Gioeli and any of the charges in the present or any prior indictments in this case.

4. In reviewing the 3500 material for Joseph Competiello, and comparing that information to the timeline of the initial superseding indictment charging Gioeli with the murder of William Cutolo, we are concerned that the source of Agent Scott Curtis#226;#128;#153;s testimony is, in fact, Dino Calabro. See Superseding Indictment, (S-4) 08-cr-240 (BMC) (RER), dated December 17, 2008, ECF Doc. No. 187. Moreover, given the timeframe, it may be the case that Agent Curtis was obtaining information from Calabro at a time that the latter was attending co-defendant meetings with Gioeli and his co-defendant, Dino Saracino. If this were the case, it would obviously raise serious concerns that the government inappropriately had a #226;#128;#156;spy in the camp#226;#128;#157; during these meetings. Accordingly, we ask that the government produce any and all testimony by Agent Curtis disclosing the source of his information in the initial indictment charging Gioeli with the murder of William Cutolo. See id.

With respect to each of the foregoing requests, you well know that Brady provides that exculpatory evidence is material if there is a reasonable probability that a conviction or sentence would be different if the materials are disclosed. While Gioeli maintains his innocence with respect to each and every charge, the government also knows that under Brady the terms #226;#128;#156;favorable to the accused#226;#128;#157; and #226;#128;#156;exculpatory#226;#128;#157; are not limited to evidence that goes towards proving that the defendant is innocent of the charges. In addition, due process also requires disclosure of any evidence that provides grounds for the defense to attack the reliability, thoroughness, and good faith of the police investigation, to impeach the credibility of the state#226;#128;#153;s witnesses, or to bolster the defense case against prosecutorial attacks. Kyles v. Whitley, 514 U.S. 419, 442 n.134, 445-451 (1995).

In light of the foregoing, we demand immediate disclosure of the information sought herein. We want to thank you in advance for your prompt response to this request.

Very truly yours,

Adam D. Perlmutter
Carl J. Herman