Cite as: USA v. Razzoli, 12 Cr. 550 (DLC), NYLJ 1202578934542, at *1 (SDNY, Decided November 8, 2012)

District Judge Denise Cote

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Decided: November 8, 2012

ATTORNEYS

For the Government: A. Damian Williams, U.S. Attorney's Office, New York, NY.

For Defendant: Kevin Razzoli, Pro Se, MDC Brooklyn, Brooklyn, NY.

Standby Counsel for Defendant: Dawn Cardi, Dawn M. Cardi & Associates, New York, NY.

OPINION & ORDER

 

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Kevin Razzoli ("Razzoli") was indicted on July 17, 2012 on two counts for the crime of assaulting Deputy United States Marshals in violation of 18 U.S.C. §§111(a) and 1114. Razzoli requested a speedy trial, and on September 25, 2012, a jury found the defendant guilty on both counts. Razzoli chose to

 

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represent himself for his summation and has proceeded pro se since that time. This Opinion addresses Razzoli's pro se post-trial motions.

Background

The background necessary to put the motions in context can be briefly stated. Razzoli surrendered on June 8, 2012 to the custody of the United States Marshals Service pursuant to an arrest warrant that had been issued on a charge that he was in violation of his parole. Razzoli had arranged to surrender at the United States Courthouse at 500 Pearl Street in lower Manhattan in the late afternoon of June 8. Deputy United States Marshals Betancur and Payano were awaiting his arrival. He went through the metal detector screening process in the courthouse lobby that all visitors are required to use. Then the two Deputies took him downstairs and searched him more thoroughly, in anticipation of taking him to the Metropolitan Correction Center ("MCC") via an underground tunnel that connects the courthouse and the MCC. During this search, Deputy Betancur removed a religious scapular from around Razzoli's neck and Razzoli became very angry and eventually spit at Deputy Betancur. This incident forms the basis of the charge in Count Two.

 

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A team of Deputies arrived and escorted Razzoli to the MCC. While being processed at the reception center for entry into the MCC, Razzoli continued to express his anger and confronted one of the Deputies. Other Deputies then surrounded Razzoli, with Deputy Ramdas taking a position to the right rear of Razzoli. Razzoli swung his elbow and struck Deputy Ramdas in the face. This is the basis for the charge in Count One. Deputy Ramdas then placed his arms around Razzoli's body, moving his arms down to Razzoli's legs, and with the assistance of other Deputies, "took" Razzoli to the ground. Razzoli was thereafter placed in restraints and ultimately taken into the custody of MCC personnel. Both of the assaults were captured on tape and the tapes were played repeatedly for the jury.

As noted, Razzoli sought permission to represent himself for his summation, and after an allocution, the Court found that he had knowingly and voluntarily waived his right to counsel. His defense attorney, Mitchell Dinnerstein, was appointed stand-by counsel. Razzoli gave his own summation and has continued to represent himself. Following the jury's delivery of the verdict on September 25, the Court relieved Mr. Dinnerstein and appointed replacement stand-by counsel. On October 4, the defendant submitted a motion seeking a new trial. At a conference on October 5, the Court conducted a further

 

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allocution of Razzoli and determined that he was knowingly and voluntarily waiving his right to counsel for the sentencing phase of this prosecution. Razzoli also requested the opportunity to supplement his post-trial motion. On October 11, this Court received the defendant's supplemental submission.

Discussion

Razzoli's motion for a new trial makes eleven points. The first constellation of issues relates to Razzoli's claim that a new trial is necessary because the prosecution used perjured testimony to obtain the indictment and his conviction at trial. In connection with this claim, he also asserts that the Court did not permit the defendant to cross-examine witnesses to demonstrate the falsity of their testimony; his attorney withheld 3500 material from him; and the Court failed to instruct the jury that they must acquit the defendant if they found that any Government witnesses lied.

The defendant next complains that the Government illegally obtained recorded telephone calls between him and his attorneys, and that the Court denied the defendant the right to call or recall witnesses. The final issues may be addressed more quickly. They are that his First Amendment rights were violated because he was not permitted to attend a Roman Catholic mass, the Court erred in denying his request for Department of Justice

 

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employee files, he was not permitted to ask questions at trial and the Department of Justice destroyed unspecified evidence. For the following reasons, the defendant's post-trial motion is denied.

Perjury

The defendant complains repeatedly that the Government knowingly submitted two pieces of false testimony to the Grand Jury to obtain the Indictment and at trial to obtain his conviction. Specifically, two Deputies described the scapular removed from his neck as rosary beads, and Deputy Ramdas falsely claimed that he held Razzoli's shoulders after Razzoli was placed on the ground at the MCC.

The 3500 material contains the following description of the object removed from Razzoli's neck on June 8. In a June 8 Field Report, Deputy Betancur describes the object as rosary beads. In front of the Grand Jury, Deputy Murphy stated that "Deputy Betancur attempted to take some rosary beads off Kevin Razzoli's neck which really agitated him and he spit in Deputy Betancur's face." Handwritten notes taken by prosecutors during a meeting with Deputy Betancur on September 5, also identify the object as rosary beads.

In contrast, at trial, Deputy Betancur testified that he removed a scapular from the defendant's neck. An exemplar of a

 

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scapular was received into evidence and Deputy Betancur identified it as similar to the object he had taken from the defendant. Deputy Betancur, who speaks Spanish as well as English, told the jury that the Spanish word for rosary beads and scapulars is the same: "In Spanish there is one word for rosary beads and scapular; there is only one word for it."

Defense counsel cross-examined Deputy Betancur extensively on his prior description of the object as rosary beads. The following excerpt is illustrative:

Q: When you first talked to Mr. Williams [the prosecutor] a couple of weeks ago; did you tell Mr. Williams that you removed rosary beads from Mr. Razzoli?

A. Yes, sir.

Q. Did you remove rosary beads?

A. No, I come to find out that the translation, the way I call it in Spanish is different. The way it's called in Spanish is different, so I guess I got lost in translation at that moment.

Q. But what you told Mr. Williams is that you took rosary beads, is that correct?

A. Yes.

Q. The item that you took from Mr. Razzoli, did that have any beads?

A. No, sir.

Q. But when you spoke with Mr. Williams you called them rosary beads, is that correct?

 

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A. Yes, sir.

Razzoli has not shown that there was any perjury before either the Grand Jury or at trial. Deputy Betancur explained that he used the wrong English word to describe the object removed from Razzoli's neck. The parties did not dispute at trial that the object was indeed a scapular and not rosary beads. The Court did not limit the defendant's ability to cross-examine either Deputy Murphy or Deputy Betancur on any prior inconsistent statement and defense counsel amply explored the topic. Moreover, it should be noted that the precise identity of the religious object that Razzoli was wearing on June 8 had little to do with any of the issues the jury had to decide.

The defendant also alleges that Deputy Ramdas falsely testified at trial that he held the defendant's shoulders while Razzoli was being subdued on the floor at the MCC and restraints were being placed on him. This claim also arises from descriptions in the 3500 material. In those materials, Deputy Ramdas described grabbing the defendant's legs, albeit when Razzoli was being "taken to the ground." A June 8 Field Report prepared by Deputy Ramdas states that:

DUSM Ramdas was struck in the right cheek by a right elbow. DUSM Ramdas then used both arms to wrap around inmate RAZZOLI's waist. Inmate RAZZOLI then began to

 

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kick wildly infront [sic] of him at which point DUSM Ramdas grabbed inmate Razzoli's leg.

Handwritten notes taken at a meeting between the prosecutor and Deputies Murphy and Ramdas on June 21, indicate that after the defendant hit Deputy Ramdas below his right eye, Deputy Ramdas "tried to grab him around the waist and then grabbed him around the legs."

At trial, Deputy Ramdas described his reaction after defendant elbowed him in the face:

At that point after he threw the elbow, he started to — and I grabbed his shoulders. His arms were basically locked away. He tried to kick the deputies in front of him. At that point once I saw him trying to kick the deputies in front of him, I slid my arms from his shoulder down to his legs along with the other deputies and basically he lost balance and we put him on the floor.

The issue of whether Deputy Ramdas held the defendant's legs or shoulders while Razzoli was on the ground became important because defense counsel tried to establish at trial that Deputy Ramdas had twisted Razzoli's leg while Razzoli was being restrained on the floor. To corroborate this argument, defense counsel relied on the videotape of the incident at the MCC, which ran for many minutes after the defendant had been subdued and led away. During that time, many of the United States Deputy Marshals who had escorted Razzoli to the MCC are seen standing next to a counter area, waiting for paperwork to

 

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be completed and for the MCC staff to open the doors that would allow them to re-enter the tunnel and return to the courthouse. At one point on the videotape, Deputy Ramdas is seen stepping away from the counter and balancing on one foot, adjusting the shoe on his other foot.

Defense counsel used this image of Deputy Ramdas, which he repeatedly played for the jury, to accuse the Deputy of twisting the defendant's leg while Razzoli was on the floor. The following exchange took place:

Q. When Mr. Razzoli was down on the ground did you twist any of his feet?

A. I was not next to his feet.

Q. What did you do when he is down on the ground?

A. I was subduing his shoulders.

Q. What do you mean, subduing his shoulders?

A. I was keeping his shoulders down so that the guys could handcuff him.

Q. Did you notice that anybody else twist any of his feet?

A. I wasn't paying attention to his feet; I was paying attention to his shoulders.

At one point during cross-examination, Mr. Dinnerstein directed Ramdas's attention to the portion of the video tape in which Ramdas is seen touching his shoe:

 

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Q. Now, how — what were you doing right then and there if you recall?

A. I was fixing my shoe.

Q. You were fixing your shoe?

A. Yeah.

Q. Were you perhaps showing the other deputies how you could have twisted the defendant's leg during the takedown?

A. No.

Q. Do you have any doubt in your mind that you weren't doing that?

A. No. The reason why was because my shoe came off when we took him down, so I was explaining to the gentlemen how I had to get my shoe and put it back on.

Q. Is there any reason why you would remember this shoe in particular?

A. Yeah, because that's the shoe. I was walking around in bare feet in the R & D.

Q. So just fixing your shoe; is that your testimony?

A. Yeah, that's all there was.

The defendant's contention that Deputy Ramdas committed perjury at trial reflects little more than confusion over a sequence of events. Immediately after Deputy Ramdas was hit in the face, he acted to prevent the defendant from kicking other deputies and to subdue him by grabbing the defendant's legs. Once the defendant was lying on the floor, Deputy Ramdas held the defendant's shoulders as other deputies restrained other

 

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parts of his body and placed shackles and handcuffs on Razzoli. Of course, to the extent that the defendant perceived inconsistencies in the prior statements given by the witness, he had a full opportunity to impeach the witness.

On a related point, the defendant claims that his attorney withheld the 3500 material from him. On the fourth day of the trial, the defendant complained that he had not seen the 3500 material before trial. The following exchange then took place:

THE COURT: With respect to that claim that Mr. Dinnerstein did not share the 3500 material with you, the 3500 material was provided to Mr. Dinnerstein I believe the Thursday or Friday before the trial which began on Wednesday. Mr. Dinnerstein, I would ask you to make a record with respect to the extent to which you shared the 3500 material with your client.

MR. DINNERSTEIN: Your Honor, Mr. Razzoli has a good point. I believe I received the 3500 material on Saturday which consisted of about 6 pages of notes that were not terribly relevant in my view towards anything, and I did not provide copies of the 3500 material to Mr. Razzoli, he didn't ask for it. Whether I should have, in hindsight maybe I should have, but there was really nothing in that material that I thought was actually anything pertinent to the defense.

THE COURT: Did you have it with you in the courtroom during the trial.

MR. DINNERSTEIN: Yes, I did.

THE COURT: So if Mr. Razzoli wanted to look at it during the trial while he was seated next to you, he could have.

MR. DINNERSTEIN: It was next to me in the trial. I made one reference to the 3500 material at the trial.

 

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That dealt with the issue of rosary beads with one of the witnesses, I believe it was marshal Betancur. That was the only time I made reference to it. The notes were very in my view superficial.

THE COURT: Thank you very much. I will take from the government a representation as to when the 3500 material was provided to Mr. Dinnerstein.

MR. WILLIAMS: The 3500 material was available on the Friday before trial at 5:00 p.m. Mr. Dinnerstein I believe picked it up on Saturday.

As this record demonstrates, the 3500 material was available to defense counsel on the Friday before a trial which began the following Wednesday. The 3500 material, which was not voluminous, was available to the defendant during trial. The defendant has not shown any deficiency in his attorney's representation of him in this regard or any reason to give him a new trial.

Finally, the defendant claims that his attorney should have requested that the jury be charged as follows: if it found that any Government witness was telling a falsehood, it "must" acquit the defendant. The Second Circuit has made clear that it is the task of the jury to decide what weight to give a witness's testimony, even when a witness is untruthful:

Where there are conflicts in the testimony, we must defer to the jury's resolution of the weight of the evidence and the credibility of the witnesses. When testimonial inconsistencies are revealed on crossexamination, the jury is entitled to weigh the evidence and decide the credibility issues for itself. It is the province of the jury and not of the court to

 

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determine whether a witness who may have been inaccurate, contradictory and even untruthful in some respects was nonetheless entirely credible in the essentials of his testimony.

United States v. O'Connor, 650 F.3d 839 (2d Cir. 2011) (citation omitted) (emphasis added). Even if it is clear that a witness has committed perjury, "cross-examination and jury instructions regarding witness credibility will normally purge the taint of false testimony." United States v. Joyner, 201 F.3d 61, 82 (2d Cir. 2000) (citation omitted). When it is undisputed that a Government witness lied on the stand, a new trial will only be justified if "the jury probably would have acquitted in the absence of the false testimony." United States v. Truman, 688 F.3d 129, 141 (2d Cir. 2012) (citation omitted).

At the trial, the Court instructed the jury on witness credibility as follows:

If you find that a witness is intentionally telling a falsehood, that is always a matter of importance that you should weigh carefully. If you find that any witness has lied under oath at this trial, you should view the testimony of such a witness cautiously and weigh it with great care. It is, however, for you to decide how much of the witness's testimony, if any, you wish to believe. Few people recall every detail of every event precisely the same way. A witness may be inaccurate, contradictory, or even untruthful in some respects and yet entirely believable and truthful in other respects. It is for you to determine whether such inconsistencies are significant or inconsequential, and whether to accept or reject all or to accept some and reject the balance of the testimony of any witness.

 

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This charge conforms to governing law and Razzoli has not shown that there was any error in giving this charge to the jury. Moreover, the charge that Razzoli now suggests — a charge that a jury must acquit a defendant if it finds that a witness committed perjury — is not a correct statement of the law and the Court would not have given it if it had been requested. For these reasons, the failure to request this charge does not suggest any deficiency in defense counsel's representation of Razzoli.

It should be noted as well that defense counsel had ample opportunity to cross-examine every Government witness. Indeed, at the close of the Government's case, Razzoli could not identify any question of the Government's witnesses which his attorney had failed to ask. Instead, Razzoli complained about two misstatements on the parole warrant paperwork, one in which his race was listed as black, and one in which he was listed as a former member of the Army rather than Navy. He also spoke about his underlying 1987 conviction. None of the trial witnesses had prepared this paperwork, and these three issues were not relevant to either the Indictment's charges or the testimony given by any trial witness. The colloquy with the Court was as follows:

 

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THE COURT: So, is there any question that you wished Mr. Dinnerstein to ask that he failed to ask a witness at this trial?

THE DEFENDANT: Well, I really, on two occasions, yes.

THE COURT: What were those questions and of which witness?

THE DEFENDANT: One surrounding the validity of United States marshal's paperwork, which is clearly incorrect because I'm not a member of United States Army. I'm U.S. Navy, as her Honor knows. I am not a black male, obviously, as you can see. And also the fact is that my sentence was for a 25-year sentence issued on a August 31, 1987 arrest, which, as you know, to date would put it out of — would put it into the expiration category and, therefore, I would not have been into the U.S. marshal's custody nor at the courthouse.

THE COURT: Any other question that you wished that Mr. Dinnerstein had asked of a witness that he did not ask?

THE DEFENDANT: No, ma'am.

(Emphasis supplied.) The jury was therefore well equipped to weigh Razzoli's arguments when he gave his summation to the jury, and to bear these arguments in mind during its deliberations as it weighed the credibility of each trial witness.

Tape Recordings of Defendant's Telephone Calls

The defendant next argues that the prosecutors obtained and listened to recordings of telephone calls he had with his attorneys in which he discussed defense strategy. In a letter of October 2, the Government explained the circumstances in

 

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which it had obtained and listened to recordings of the defendant's telephone calls.

The defendant has been incarcerated in the MCC since his arrest on June 8. Inmates in the MCC are warned that all of their telephone calls will be recorded and that none are confidential. An inmate may arrange, however, to have a non-recorded, private telephone call with his or her attorney by asking a unit team member to arrange for the inmate to speak with counsel on an unmonitored telephone. Prior to trial, the Government subpoenaed recordings of telephone calls made by the defendant at the MCC between June 8 and August 31, 2012. The subpoena directed that conversations between the defendant and his attorney, Mr. Dinnerstein, should be excluded.

There is no evidence that the CD of recorded calls prepared by the MCC and given to the Government did in fact include any telephone calls between Mr. Dinnerstein and the defendant. The defendant's motion assumes, however, that the CD did include recordings of telephone calls between the defendant and attorneys who represent him on other matters, including apparently on the parole violation proceedings which prompted his surrender on June 8.1 The prosecutor who listened to the CD

 

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has represented that he ceased listening to any recorded call that he believed might be a call between the defendant and any attorney. The defendant has not described the substance of any privileged communication about this case which he had with attorneys representing him on other matters or explained how it would have prejudiced him at trial if the Government had heard it.

In light of this record, there is no reason to believe that the Government acted improperly. The Government is entitled to subpoena the MCC's recordings of a defendant's telephone calls. Razzoli does not deny that he was warned that those calls would be recorded and would not be treated as confidential. To the extent that Razzoli used such a telephone line to speak with an attorney, he assumed a risk that the conversation would not remain private. But, in any event, there is no basis to find that the Government listened to any conversation that the defendant may have had with an attorney, or that any such conversation would have disclosed information to the Government which it used in its prosecution of Razzoli at this trial. The defendant has, therefore, failed to show that the Government engaged in any misconduct or that he was prejudiced by the Government obtaining or listening to the recorded telephone calls.

 

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Calling Certain Witnesses

The defendant claims that the Court erred in prohibiting him from calling "certain witnesses." The defendant does not identify the witnesses to whom he is referring, but states that he would have questioned them about a "past pattern that lead up to" the Indictment in this case. The "past pattern" may be a reference to the defendant's contention that over the course of many years Government officers had violated his rights by charging him improperly with violations of parole, by trying to coerce his cooperation in investigations of organized crime, and by harassing and threatening him at his place of business. As explained to the defendant prior to trial, evidence regarding alleged misconduct by federal officials that was unrelated to the events of June 8 was irrelevant and inadmissible at the trial.

The defendant's requests to call witnesses at trial were discussed at a pre-trial conference and again during the trial. These discussions are summarized below.

At a pre-trial conference held on September 11, 2012, the Court discussed the defendant's list of 21 proposed witnesses. During this lengthy conference, defense counsel consulted frequently with the defendant and made proffers of the witnesses' anticipated testimony. The Court determined that

 

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only two of the proposed witnesses might have evidence admissible at trial. The Court added:

Of course, I will allow defense counsel to explore these matters further with Mr. Razzoli, and if he wishes to revisit any of these particular issues or witnesses with a further developed proffer, I would be happy to hear that.

During the trial, the defendant called four witnesses: Laquana Leftwich, a Supervisory Correctional Systems specialist, Felix Berrios, a Lieutenant at the Bureau of Prisons, Jabraddrick Durant, a Correctional Systems Officer at the MCC, and Nadine Jean, an MCC nurse who examined Razzoli on the evening of June 8. During the trial, defense counsel also discussed calling seven other witnesses: Probation Officer Robin Rice, Father McDevitt, Chaplain Mung, Dr. Miller, Dr. Ryan, Michael Riconoscuito and Joe Russo. The defendant made proffers regarding the testimony he hoped to elicit from each person.

The defendant believes that his Probation Officer, Officer Rice, is biased against him. He wanted to prove at trial that her bias against him had prejudiced the Deputies with whom he interacted on June 8. On September 19, defense counsel proposed questioning Officer Rice about whether she had discussed Razzoli with any of the Marshals involved in his surrender on June 8. The Court acknowledged that the bias of a witness is always relevant and that each of the witnesses could be examined about

 

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their conversations with Officer Rice. Over the course of the Government's case, the Government witnesses testified either that they had never heard of or seen Razzoli prior to meeting him on June 8.2 In particular, Deputy Gomez, who selected the two Deputies who accepted Razzoli's surrender, explained how the United States Marshals learned on June 8 that Razzoli would be surrendering that day. He denied any prior knowledge of Razzoli or communication with Officer Rice. On September 20, Dinnerstein indicated that he would not call Officer Rice, Saying

[A]t this point, I don't see an argument I can make for calling Robin Rice because the argument that I did have was that Rice articulated to someone as to who Mr. Razzoli, Mr. Razzoli's history. Since there is no witness and I don't believe there will be that will say they were either in direct contact or indirect contact with Rice, there is no reason to think that such a thing is going to happen. So I don't think Rice is going to be a witness that I will call.

Defense counsel also proposed to call Chaplain Mung and Father McDevitt to 1) testify that the Bureau of Prisons permits inmates to wear scapulars, 2) describe a scapular, and 3) explain how Catholics view the significance of the removal of a scapular. On September 19, the Court explained that testimony regarding the Bureau of Prisons policy would be irrelevant:

 

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The Bureau of Prisons is a different institution with different rules than the U.S. Marshals. When someone surrenders on an arrest warrant or is arrested, there are different rules and procedures that apply compared to someone who is an admitted inmate residing in a facility. So, the Bureau of Prisons policy with respect to the wearing of scapulars is absolutely irrelevant to the issues at this trial.

When someone is arrested, they are processed. Articles of clothing, objects on a person are inspected, removed. A person is physically inspected. A lot happens to make sure that the person doesn't present any danger or issues with respect to himself or others. Once a person is processed and everything is studied and looked at, some items are returned, no doubt, religious or otherwise. And the Bureau of Prisons can have its own regulations, religious or otherwise, with respect to what people can wear and have with them in their cell or on their person. That's a completely different issue than whether — what someone who's being arrested is permitted to do, how they're permitted to behave, and what they're permitted to wear.

The Court also refused to permit witnesses to testify generally about the views Catholics might hold regarding scapulars:

With respect to the third reason given which was they would be able to testify about a Catholic's view about the significance of the removal of a scapular, that's not relevant testimony at this trial either. The issue is the defendant, his motives, his intentions, his state of mind, and whether the government proves the necessary elements with respect to that state of mind on June 8 beyond a reasonable doubt.

With respect to the identification of a scapular, the Court reserved judgment. On September 20, defense counsel indicated he would not call either Chaplain Mung or Father McDevitt:

 

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MR. DINNERSTEIN: And I also presume based upon your rulings, your Honor, that Father McDevitt and Chaplain Mung I am not going to be permitted to call.

THE COURT: There were certain parts of my rulings yesterday that I reserved on and permitted you to make additional argument, and I'm not changing those rulings. You have — you could have a variety of reasons for calling or not calling or pursuing your motion to call certain witnesses.

MR. DINNERSTEIN: At this time, your Honor, I feel that based upon your rulings, I won't be calling the doctor or the nurse and that I won't be calling Father McDevitt and Chaplain Mung. I will make another argument regarding the nurse at some point.

Defense counsel proposed to call two doctors who worked at the MCC, Drs. Miller and Ryan, to testify that the defendant "has no significant mental problems and is a low risk of danger and poses no risk to others." The Court barred their testimony, for several reasons, including the fact that it was inadmissible expert testimony and irrelevant to the issues before the jury.

Defense counsel also discussed calling Michael Riconoscuito, a federal prisoner in a California detention facility, to testify that he had conversations with unnamed United States Marshals while being transported through Atlanta, Georgia, and the Marshals told him that members of either the United States Marshals Service or the Bureau of Prisons "are out to hurt Mr. Razzoli." The Court then addressed the admissibility of this proposed testimony:

 

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I think there are layers of problems here. There is no proffer of any admissible testimony whatsoever. There's no showing of relevance. This is not a case of self-defense.

The only assault on the defendant that has been proffered to me potentially is when the defendant was taken to the ground after the two incidents with which he is charged. If excessive force was used on that occasion, Mr. Razzoli may and, indeed, should bring a 1983 action to address that abuse of his constitutional rights. But it does not provide a defense to Mr. Razzoli assaulting officers, if he did so, earlier in the day. A later abuse of him is not a defense to spitting at a marshal, is not a defense to throwing an elbow at a marshal.

So there's no showing of relevance here with respect to any conspiracy to assault the defendant because there's no alleged assault of the defendant at any relevant point in time with respect to the issues at trial here.

Now, of course, an individual witness's bias towards the defendant is always relevant, as I've said before, and I will allow defense counsel to explore whether the witnesses at this trial harbored any bias against the defendant. And, theoretically, if there were extrinsic evidence of bias of a witness who denied having any bias, I would take a proffer and allow that to be admitted. But I don't hear that coming through Mr. Riconosciuto either. A conversation he had a year ago with unnamed persons in a city other than New York about some generalized conspiracy would not be admissible evidence to prove that an individual witness at this trial himself harbored bias.

Lastly, the defendant wanted to call Joe Russo, principally to support his assertion that the warrant for his arrest — the warrant that led to his surrender on June 8 — had been issued as a result of a Government conspiracy against him. Razzoli believed that Russo had witnessed federal officers, who may have

 

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been United States Marshals, manhandling Razzoli at Hunts Point Market in 2009. The defendant and Russo both worked at the market. The defendant also believed that federal officers, who may have been United States Marshals, had come to Russo's residence and asked him to make up lies about Razzoli sometime long before 2012.3 The Court again acknowledged that evidence of bias would be admissible at trial, but noted that no proffer had been made to suggest that Russo would have any relevant information about the bias of any trial witnesses. The Court also explained that even if the arrest warrant had been issued as a result of a Government conspiracy, that evidence would not be relevant to the assault charges.

In sum, the defendant has not shown any improper denial of his right to call witnesses in his defense. Most of the witnesses he sought to call had no admissible testimony about the events of June 8.

Recalling Four Witnesses

The defendant next complains that the Court refused his request to recall witnesses. On Friday, September 21, the Government rested its case. On that same day, the defendant presented his case, calling the four witnesses identified above.

 

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One of these four witnesses, Felix Berrios, had already testified as a witness for the Government. In a letter dated September 22, defense counsel reported that "Mr. Razzoli wants me to recall Deputy Marshalls [sic] Betancur, Keegan, Payano and Gomez to testify that they all knew Mr. Razzoli from a previous occasion."

The Court addressed the defendant's September 22 request on Monday, September 24, as follows:

There's a request to re-call four witnesses so they could testify that they all knew Mr. Razzoli from a previous occasion. They were available for cross examination on that issue. That's not a new issue in this case. There's no showing that they should be re-called. And, indeed, on Friday, the defendant indicated there were no questions he wished his attorney had posed to any witness at this trial that the attorney had failed to ask.

This issue was not a "new" issue because it had arisen prior to trial. At pre-trial conferences of September 7 and September 11 defense counsel had conveyed his client's belief that this prosecution was part of a long-term Government conspiracy against him and that one of the Deputies whom he saw on June 8 may have questioned him on a prior occasion in the Bronx.

The Court acknowledged that a witness' bias is always a proper subject for examination and that defense counsel was free to inquire of the Government's witnesses whether they knew the

 

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defendant or had ever seen him before. During the trial, the Government asked its witnesses whether they had ever heard of Razzoli or seen him before June 8. All but Officer Hodge answered no unequivocally. Officer Hodge was not one of the four witnesses that the defendant sought to recall for additional questioning.

A court's discretion in deciding whether to permit a party to recall a witness is "especially broad" when the party was aware at the time of cross-examination of the information prompting the request to recall the witness. United States v. Blackwood, 456 F.2d 526, 529-30 (2d Cir. 1972); see also UnitedStates v. Rivera, 971 F.2d 876, 886 (2d Cir. 1992); United States v. Guanti, 421 F.2d 792, 797-98 (2d Cir. 1970). Here, the defendant believed before the trial even began that at least one of the Deputies who held him in custody on June 8 may have interacted with him on a prior occasion. Defense counsel cross-examined each witness thoroughly, asked several Government witnesses whether they knew the defendant from a previous occasion, and had the opportunity to ask others. Thus, it was not error to deny the defendant's request to recall these four witnesses.

 

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Miscellaneous

The defendant also makes a number of other arguments for a new trial. He contends that his First Amendment rights were violated because he was "refused to be allowed to attend Roman Catholic mass." The defendant never made a request to the Court to be allowed to attend Mass.

The defendant claims the Court committed error when it denied him access to United States Department of Justice employee files. To the Court's knowledge, defense counsel never requested access to such files. There are legal procedures to be followed to obtain government employee records, and any dispute regarding compliance with those procedures may be brought to the Court's attention. Neither the Government nor defense counsel ever raised the issue with the Court.

While represented by counsel, the defendant did make a written request for employee files for Government agents who had "covered up" murders. In a submission drafted by Razzoli and dated on August 4, 2012, Razzoli requested

US Marshals, & other US DOJ Agents Employee Files both (Retired/Currently Employed) since such will prove "Conspiracy Defense" as seen in US v. Lavallee, 439 F3d 670 (10th Cir. 2006)…which 'US DOJ Agent(s) covered up murders' for present & past employees such allegations will be proven by files of Kevin Razzoli.

This submission was one of several that Mr. Dinnerstein attached to his own letter dated August 10. The August 10 letter

 

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requested a status conference and indicated that Mr. Dinnerstein did not "see at this time how the submissions made by Mr. Razzoli…are relevant to the charges brought against Mr. Razzoli in this indictment."

At a conference held on September 11, the Court addressed a request by Razzoli to represent himself at trial, along with a number of Razzoli's requests to present certain evidence and witnesses at trial. Razzoli's desire to present evidence about the United States Government's efforts to cover up murders was addressed as follows:

I'm concerned that the defendant's request to represent himself at trial is based on an inaccurate understanding of what he will be permitted to do at trial.

The rules of evidence will apply whether the defendant is represented by counsel at trial or represents himself. Therefore, the defendant will have no greater leeway in calling witnesses or presenting certain arguments to the jury if he represents himself than he would have if he were represented by counsel. Inadmissible evidence is inadmissible. Inappropriate arguments are inappropriate.

There are many issues that the defendant feels strongly about, as reflected in the attachments to Mr. Dinnerstein's August 10 letter to me that, while important to the defendant, will have no place at this trial.

So let's turn to the third complex of issues, and that is that the U.S. government and various individuals

 

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and agencies associated with the U.S. government have engaged in misconduct. One specific incident or reference was to misconduct by an attorney associated with the FBI, Ms. Caproni, who is described as counsel to the FBI.

Another area of misconduct is the U.S. government's use of illegal roving bugs. I think that's the terminology the defendant uses.

And a third category of misconduct is that the U.S. government has covered up murders.

Again, generally speaking, those issues will not be litigated in our trial next week. Whether or not the government engaged in that misconduct vis-a-vis other people or even in some way that affected the defendant in the past personally would as a general matter not be the subject of this trial, the trial of whether or not the defendant assaulted marshals on June 8 of this year.

Thus, as Razzoli's submission demonstrates, his request for the production of DOJ employee files was a request to utilize such files to prove that the Government engaged in a cover-up of murders. Because the files would not have been relevant to Razzoli's trial, it would not have been error to deny such production even if a request for the files had been preserved.

In any event, the Government has an obligation to produce Giglio material, and there is no evidence that it failed to abide by that obligation. The defendant provides no basis to find that any employee file would have contained information relevant or helpful to his case.

 

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The defendant also complains that he was not permitted to ask questions of witnesses at trial. While testimony was taken at the defendant's trial, the defendant was represented by Mr. Dinnerstein. At the pre-trial conference held on September 11, the defendant withdrew his request to proceed pro se. It is well-established that "[t]he defendant has no absolute right" to serve as "co-counsel" in his defense and "the decision to grant or deny hybrid representation lies solely within the discretion of the trial court." United States v. Stevens, 83 F.3d 60, 67 (2d Cir. 1996). Moreover, as already described, the defendant was unable to identify any question he would have asked the Government witnesses that his attorney failed to ask. Thus, the request for a new trial on this basis is denied.

Lastly, the defendant speculates that the Government may have destroyed evidence which would have supported a charge of prosecutorial misconduct. The defendant's motion does not identify the destroyed evidence or explain how it pertained to his case. As a result, the defendant's request for a new trial on this basis must be denied.

 

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CONCLUSION

The defendant's request for a new trial, contained in his submissions received on October 4 and October 11, is denied.

1. The defendant was provided with a copy of the CD on the third day of the trial and perhaps on prior occasions as well.

2. Officer Hodge testified that he did not remember if he had seen Razzoli before June 8.

3. Defense counsel acknowledged that he had spoken to Russo and Russo had not been "anxious to discuss the matter" and had "not describe[d] what had happened."