Full opinion text
JUDGMENT, MEMORANDUM AND ORDER WEINSTEIN, Senior District Judge: I INTRODUCTION.........................................................1076 II FACTS...................................................................1077 A. Colombo War.........................................................1077 B. Orena Trial...........................................................1078 1. Verdict...........................................................1078 2. Sources of Evidence................................................1078 3. Testimony Identifying Orena as Acting Boss...........................1079 4. Ocera Murder.....................................................1079 5. Colombo War......................................................1080 6. Testimony of Special Agent DeVecehio................................1082 7. Testimony of Special Agent Favo.....................................1083 8. Sentence..........................................................1083 9. Appeal............................................................1083 C. Amato Trial...........................................................1083 1. Verdict...........................................................1083 2. Sources of Evidence................................................1084 3. Ocera Murder.....................................................1084 4. Testimony of Special Agent Favo.....................................1084 5. Sentence..........................................................1085 6. Appeal............................................................1085 D. Gregory Scarpa and R. Lindley DeVecehio................................1085 1. Scarpa’s Criminal Activity...........................................1085 2. Scarpa: Confidential F.B.I. Informant................................1086 3. Scarpa-DeVecehio Relationship......................................1086 4. Suspicions of DeVecchio’s Misconduct.................................1088 5. Post-Trials: DeVecehio-Searpa Details...............................1089 6. Defendants’ Claims of Suppression...................................1090 III LAW.....................................................................1090 A. Rule 33...............................................................1090 B. Brady Rule.......... 1090 1. Generally.........................................................1090 2. Suppression.......................................................1091 3. Materiality........................................................1091 C. Newly Discovered Evidence Claims......................................1092 IV APPLICATION OF LAW TO FACTS........................................1093 A. Inferences from DeVecchio’s Assertion of Privilege ........................1093 B. Brady Claim..........................................................1095 1. Suppression.......................................................1095 2. Defendants’ Materiality Arguments...................................1096 a. Ocera Murder.................................................1097 b. War Conspiracy...............................................1098 c. Remaining Charges............................................1100 3. Suppressed Evidence Not Material...................................1100 a. Defense Theories Not Supported By Suppressed Evidence..........1100 b. Assessment of Materiality Must Be Time Sensitive.................1104 c. Evidence Not Material for Purposes of Impeachment...............1106 C. Newly Discovered Evidence Claims......................................1108 1. Ocera Murder.....................................................1108 2. War Conspiracy....................................................1109 3. Claims Unrelated to Scarpa-DeVecchio Material.......................1110 V CONCLUSION ...........................................................1112 I INTRODUCTION These are disturbing cases. On the facts and the law, a decision for either side might be justified. After extended evidentiary hearings, briefings, argument and introspection, the court concludes that the defendants should be denied new trials. Defendants were proven by strong evidence to be murderous criminals. The jury found them guilty in separate trials — Orena in 1992 and Amato in 1993. Their offenses were committed while they were conducting the affairs, and later warring over control, of the Colombo organized crime family. Both were sentenced to life in prison and stripped of their worldly goods. The Court of Appeals affirmed. United States v. Sessa, 821 F.Supp. 870 (E.D.N.Y.1993), affirmed sub nom, United States v. Amato, 15 F.3d 230 (2d. Cir.1994) and United States v. Orena, 32 F.3d 704 (2d Cir.1994). Attempting to transform a troubling cloud of questionable ethics and judgment enveloping an F.B.I. Special Agent into a raging storm of reasonable doubt, petitioner-defendants move for dismissal of their indictments or for new trials pursuant to Rule 33 of the Federal Rules of Criminal Procedure and section 2255 of Title 28 of the United States Code. The claim is that the government violated its disclosure obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), after engaging in and covering up outrageous government misconduct. Orena and Amato contend that it was not they — the convicted criminals — but ex-F.B.I. Special Agent, R. Lindley DeVecehio, who conspired with one of the defendants’ associates — the murderer Gregory Scarpa — to cause the killing of their partner and loans-hark, Thomas Ocera, and to instigate an internecine mafia war. The evidence to prove this bizarre, but not entirely implausible, contention, defendants argue, should have been supplied to defense counsel so that they could rely on the jurors’ rationality or befuddlement (they claim either provides a justifiable basis for reasonable doubt) to achieve a verdict of not guilty, or at least disagreement sufficient for a mistrial. Scarpa has died in prison and can provide no help on the facts. DeVecehio, having been allowed to resign from the F.B.I. without explaining what happened, pleaded his Fifth Amendment privilege. While he remained silent in court at the earlier hearings and throughout his interminably delayed administrative and professional responsibility proceedings, he spoke freely to the media, apparently uninhibited by fear of cross-examination under oath. See, e.g., Frederic Dannen, The G-Man and the Hit Man, The New Yorker, Dee. 16, 1996, at 68. Finally, when the court indicated it would draw inferences adverse to the government from DeVeechio’s silence, see infra section IV(A), he was granted immunity, all documents relevant to his background were revealed, and he was subjected to fierce examination by defense counsel. Despite the seamy aspects of law enforcement revealed by the record, for the reasons indicated below, defendants’ factual assumptions and legal theories are unpersuasive. Their motions should be denied and their petitions dismissed. II FACTS A. Colombo War The Colombo Family is one of metropolitan New York’s five major organized criminal groups that together constitute our local Mafia. Others are the Bonnano, Gambino, Ge-novese, and Lucchese Families. For a description of the role and history of these mobs in New York City see, e.g., United States v. Sessa, 821 F.Supp. 870, 871-73 (E.D.N.Y.1993), affirmed, United States v. Orena, 32 F.3d 704(2d Cir.1994). With the exception of the Ocera murder, charges in the two instant cases arose primarily out of incidents connected to a deadly struggle for power between two Colombo factions — the Pérsicos and the Orenas — that began in the autumn of 1991 and lasted through the spring of 1992. The “Colombo War” left ten people dead and another fourteen wounded. Over the course of this fratricidal bloodletting the F.B.I., with the aid of the New York City Police Department, made 123 arrests of Colombo Family members. By September 1992, twenty-four of the fifty-four arrested were Pérsicos. All told, by War’s end, sixty-one of those arrested were on the Orena side; sixty were on the Pérsico side, which was one-third the size of its rival faction. In an effort to slow what was proving to be a particularly bloody struggle, the F.B.I. focused on stopping hit teams before they engaged in shooting. See United States v. Scopo, 19 F.3d 777, 779 (2d Cir.1994). As a result, thirty-five of the first thirty-seven arrests were for possession of firearms. Over 100 guns were seized during the course of the fray. Safehouses on both sides were surveilled and searched. Bugs and videotapes were installed in cars and elsewhere to gather evidence. A video-surveillance device and a bug were even installed at the United States prison facility at Lompoc, California to eavesdrop on jailed Colombo Boss Carmine Persico’s strategizing. Special Agent DeVec-chio, supervisor of an F.B.I. squad charged with investigating and surveilling the Colom-bos, oversaw and approved many of the F.B.I.’s activities investigating and hindering the warfare. In spite of the high casualty rate the F.B.I. must be credited with keeping the Colombo War death toll from growing exponentially. Through efforts that often meant sacrificing information and evidence-gathering, the Bureau forestalled a number of planned murders of members of both factions. For example, upon learning from a cooperator on February 27, 1992 that a Pérsico hit team had targeted defendant Amato, special agents attempted to arrest Amato in order to pluck him from harm’s way. Rather than proceeding in the customary methodical fashion to assure his arrest, agents rushed immediately to his house. Amato was not there; after learning of the arrest warrant, he had fled and remained on the lam until he turned himself in a month later. Similarly, on March 26, 1992, upon discovering that Pérsico captain Michael Sessa’s hit team had surveilled Orena soldier Louis “Bo Bo” Malpeso and was preparing to assassinate him, the F.B.I. alerted for dispatch to the scene New York City Police Department officers. Sessa’s hit men, detecting the police presence, aborted their attack. On another occasion, after having installed a listening device in the car of Pérsico associate Joseph Ambrosino, the F.B.I. learned of Am-brosino’s plan to murder an Orena captain. In order to thwart that scheme, the F.B.I. insisted upon the arrest of Ambrosino and his hit team, and, as a consequence, sacrificed the valuable electronic surveillance source inside Ambrosino’s car. To date, the United States Attorney’s Office, with the critical assistance of the F.B.I. and the New York City Police Department has prosecuted seventy-five Colombo Family members. Forty of those prosecuted were Pérsicos, and the rest Orenas. These figures do not include New York state’s prosecutions of Colombo Family members. A brilliant and dedicated prosecutorial staff clashed with a scintillating group of defense lawyers in a tenacious struggle over many years, involving many of this courts’ judges in difficult litigations. In addition to taking many vicious criminals off the streets by incapacitating them in prison, curtailing this urban guerilla strife undoubtedly saved many innocents from stray bullets. B. Orena Trial 1. Verdict On December 21, 1992, after a month-long trial, a jury found Orena guilty of violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c), (d); conspiracy to murder Colombo associate Thomas Ocera, 18 U.S.C. § 1959(a)(5); the murder of Ocera, 18 U.S.C. § 1959(a)(1) and (2); conspiracy to murder opposing members of the Colombo Family, 18 U.S.C. § 1959(a)(5); conspiracy to make extortionate extensions and collections of credit, 18 U.S.C. §§ 892, 894; use and carrying of a firearm in relation to a crime of violence, 18 U.S.C. § 924(c)(1); and unlawful possession of firearms by a convicted felon, 18 U.S.C. §§ 922(g)(1) and 924(a)(2). 2. Sources of Evidence The government provided compelling and voluminous proof of Orena’s guilt. Evidence was presented from a broad range of sources. The government called to the stand over a dozen witnesses, seven of whom were Orena’s colleagues in organized crime who had decided to cooperate. This latter group included Michael Maffatore, Harry Bonfiglio, Joseph “Joey Brains” Ambrosino, Kenneth Geller and Alan Quattrache — four associates and a soldier in the Colombo Family. Alphonse D’Arco, former Acting Boss of the Lucchese Family, and Salvatore “Sammy The Bull” Gravano, former Underboss of the Gambino family, testified at length. Both had dealt directly with Orena. F.B.I. Special Agent DeVecchio, a supervisor responsible for investigating the Colombo and Bonnano Families, was an expert witness. See infra section 11(B)(6). A wiretap from a “roving bug” placed in the car used by Orena and his associates revealed the defendant in all his thuggish traits. The recordings — the “Audino car tapes” — pertained principally to the racketeering and murder charges. Supporting portions of tapes from the Quattrache home and the Ambrosino car were also admitted. Numerous firearms and other physical evidence — ammunition, beepers, counter-surveillance equipment, large amounts of cash, and illegally-obtained telephone toll records — were introduced. Most of it had been obtained through a series of searches culminating in the April 1, 1992 search of the residence of Orena’s girlfriend, where he was staying at the time of his arrest. Much of this physical evidence was introduced during the testimony of F.B.I. Special Agent Chris Favo. See infra section 11(B)(7). How the testimony and physical evidence was connected to the principal charges in this case is outlined in the following sections. 3. Testimony Identifying Orena as Acting Boss In May 1988, about two years after Colombo Family Boss Carmine Pérsico was incarcerated and after a committee appointed to govern in his absence proved unworkable, Pérsico, from his jail cell, appointed Orena Acting Boss. Testimony of a number of the witnesses confirmed Orena’s high-ranking criminal status. Gravano, the Gambino Un-derboss, was present at the meeting of the Commission — the Mafia leadership circle comprised of representatives of each New York crime family — at which Orena was unanimously approved as the official Acting Boss. D’Arco, the Lueehese Acting Boss, testified that Orena told him that he had the power to “make members or kill guys” unless explicitly instructed otherwise by Pérsico— authority that only could be vested in a Boss or Acting Boss. Ambrosino, Bonfiglio, and Quattraehe also identified Orena as Acting Boss. Quattraehe, a “made member” of the Colombo Family, testified that he was formally inducted in a 1988 ceremony presided over by Orena. Bonfiglio referred to Orena in court as the “boss.” Additionally, the tapes of conversations in the car of Joseph “Chubby” Audino, a close associate of Orena, identified Orena as Acting Boss. For example, one recording established that members of the opposing faction tried to kill Orena rather than ask him to “step down.” 4. Ocera Murder A central event in the government ease was the 1989 murder of Colombo associate, Tommy Ocera. The government’s theory was that Orena, as Acting Boss, directed subordinates to murder Ocera. One of these subordinates was Scarpa, who would, two years later find himself opposed to Orena in the Colombo War. In the early fall of 1989, Ocera and his girlfriend were stalked at Ore-na’s direction. On November 13,1989 in the Merrick, Long Island home of defendant Am-ato, Ocera was murdered. Ocera “disappeared” into a shallow grave on Orena’s order. Testimony at Orena’s trial established his role in the Ocera killing. Orena had a number of motives to kill Ocera. Gravano testified that one was to please John Gotti, the Gambino Family Boss. Other .circumstances bore this out. At the time, it was believed in mob circles that Ocera had murdered Greg Reiter, the son of a close associate of Gotti, and that Gotti had been “ripping mad” at Ocera after Reiter’s murder. Gravano was present one day when Orena paid a visit to Gotti at the Gambino Boss’ headquarters, the Ravenite Social Club. Gravano had observed that, prior to Orena’s arrival, Gotti seemed agitated. After Orena arrived and conversed privately with Gotti, Gotti appeared calmer. Gotti later reported to Gravano that “they whacked that Tommy Ocera.” D’Arco’s testimony corroborated Gravano’s as to this motive. At a December 1989 dinner for Colombo and Lueehese Family leaders, Orena boasted to D’Arco that he had had Ocera “whacked,” as a favor to Gotti because Ocera had killed Reiter. Another motive may have been to punish Ocera for skimming money from Orena’s money lending business. This would communicate to others what would happen to them if they did the same. Orena’s primary motive, however, was to silence Ocera after he put Orena in jeopardy with law enforcement. On October 5, 1989, the Suffolk County police executed a search warrant at the Ocera-operated Manor Restaurant in Merrick, New York. The search resulted in the seizure of Oeera’s loansharking records. Orena had been using the Man- or on Monday nights as a regular meeting place, and the seized records implicated Ore-na. Ocera’s girlfriend, Diane Montesano, testified that about four days after the seizure of the loansharking records, Ocera tried unsuccessfully to retrieve them. He had Montesa-no go to the police station to ask for them. When Montesano failed to bring back all the records, Ocera became despondent. In an effort to blunt his anxiety, Ocera uncharacteristically got drunk, rapidly consuming four or five martinis; Montesano had to leave him at her house so that he could sleep it off. Later that day two of Orena’s sons paid an unexpected visit to the Manor in search of Ocera. After checking with Ocera, who said it was okay, Montesano brought them to her house to see him. Later that month, Montesano and Ocera were followed as they left the Manor. As was their custom after closing, Montesano was taking home that night’s proceeds and Ocera intended to follow her to make sure she arrived safely. Departing the restaurant, Montesano noticed two cars without license plates parked at the railway station across from the Manor. Ocera watched her enter her car and leave. Later, when Mon-tesano approached her house, one of the cars she had noticed earlier appeared and veered directly at her, head-on. She managed to avoid a collision, and the car disappeared. Montesano was able to make out the profile of one of the drivers, testifying that it might have resembled Gregory Scarpa. The following night, Orena appeared at the Manor and told her that he heard she was a good driver and that she had “done a great job the night before.” A number of weeks later, in mid-November, Ocera was murdered. Testimony directly linked Orena to the crime. Bonfiglio testified that Gioachino “Jack” Leale, a Colombo soldier in Amato’s crew, told him that Orena ordered Ocera murdered. Maffatore and Bonfiglio had driven Lealé to a meeting with Orena outside of Orena’s club in Cedarhurst, New York. Remaining in the car, they observed Leale and Orena go on a “walk-talk” — Mafia parlance for a conversation held while walking outdoors in order to avoid audio-surveillance. When Orena and Leale approached the car, Bonfiglio overheard Ore-na tell Leale that he wanted “this thing taken care of.” At first, Bonfiglio did not understand the reference, but Leale later told Maf-fatore and Bonfiglio that Orena had given him a contract to “whack” Ocera — i.e., to murder him. Leale’s participation in the murder did not go unrewarded. The next day — November 14,1989 — Leale was “given” Ocera’s two gambling clubs, in keeping with mafia practice. After a “made-member” of a family dies, his criminal enterprises revert to the family for redistribution. Slightly less than two years after the killing, Maffatore agreed to cooperate with the F.B.I. Although he did not participate directly in the murder, he admitted that he and Bonfiglio dug Ocera’s grave on the night of November 13, 1989. Using directions provided by Maffatore, F.B.I. agents found and exhumed Ocera’s body in Forest Park, Queens. The metal wire described by Ore-na’s underlings as having been used to strangle the loanshark was still around his neck. The method of killing' and disappearance of the body so the victim and his mourners would be denied the dignity of a funeral and formal burial (and the widow, life insurance proceeds) was one chosen by Acting Boss Orena. Arrest warrants were issued for Bonfiglio, Leale, and two other participants in the burial. Leale was not apprehended. Four weeks later, he was found dead in a Long Island hotel parking lot. Maffatore’s and Bonfiglio’s testimony linking Orena to Ocera’s murder was substantially buttressed by other evidence. For example, as already noted, D’Arco testified that at the December 1989 dinner meeting of the Colombo and Lucehese Family leadership, Orena admitted to D’Arco that he had ordered the murder. Orena bragged that “we whacked Tommy Ocera. We gave him a luparo bianco, ” meaning that they made his body disappear. 5. Colombo War As to the counts relating to the Colombo War, the central proposition in the government’s theory was that two years after the Ocera murder Orena and his minions initiated and prosecuted an internal struggle within the Colombo Family in order to gain complete control. Orena sought to wrest dominion from the jailed Pérsico and his son and heir apparent, Alphonse “Allie Boy” Pér-sico. By 1991, Orena’s ambitions prompted a Pérsico faction attempt on his life. After a five-month truce, Orena broke the tenuous peace by ordering his men to target Scarpa, who at that point was aligned with Pérsico. For the next few months Orena and his subordinates engaged in shooting hostilities, collecting munitions, traveling around armed, and tracking down Pérsico loyalists in order to eliminate them. Evidence from a number of sources established Orena’s extensive role in prosecuting the War between rival factions of the Colombo Family. D’Areo, Ambrosino, and Gravano testified to Orena’s ambition to gain greater control of the Family, specifically his aspiration to become official Boss. Through a campaign of publicly disparaging and discrediting his jailed superior, Orena intended to persuade the Commission to remove Pérsico as Boss. Orena announced that Pérsico was a “rat” because Pérsico had violated the prohibition against admitting the existence of the Mafia — the code of omertá. He also leveled more specific charges against his Boss. For instance, Orena criticized Pérsico for having provided information on the mob to a New York Daily News journalist and for having discussed with CBS’s 60 Minutes the possibility of appearing on that show. According to Gravano, these accusations were the sort that would lead the Commission to label Pér-sico “no better than an informer” — a fatal black mark in mob circles. Orena believed Scarpa was in the way of his efforts to become the Boss. D’Arco and Gravano testified that Orena approached them with a request for assistance in murdering Scarpa, who Orena suspected was fiercely loyal to Pérsico. D’Areo was unwilling to provide such assistance absent the authorization of his own superiors, Lucchese Boss Vie Amuso and Underboss Anthony “Gaspipe” Casso, both of whom were fugitives at the time. Gravano was, on Gotti’s instructions, to assist Orena; his crew monitored Scarpa and was prepared to Mil him. They never followed through, however, because Orena retracted his request, having decided that having another family eliminate Scarpa would not look good for an Acting Boss and might cause too much political strife. In early 1991 Carmine Pérsico announced that “Allie Boy,” upon his anticipated release from prison in June 1993, would become Boss of the Colombos. The announcement raised tensions between Family members loyal to Orena and those loyal to Pérsico. Strains escalated after Orena suggested that Colombo Consigliere Carmine Sessa disparage Carmine Pérsico to Colombo captains. Specifically, Orena cajoled Sessa to label the elder Pérsico a “rat” who should be “knocked down.” Sessa demurred, instead reporting Orena’s slur to Allie Boy’s brother and Colombo captain, Teddy Pérsico. Upon learning of Sessa’s disobedience, Orena planned to have Sessa killed at a “maMng” ceremony for new Mafia members. Sessa caught wind of Orena’s plan and attempted to strike first. He and three others waited in a car outside Orena’s home on the night of June 20, 1991 with the intention of killing him. Orena, however, spotted them and was able to escape unharmed. Other Pérsico loyalists, after failing to Mil a captain aligned with Orena that same night, fearing retaliation, retreated to a New Jersey hotel. Ambrosino, D’Arco and Gravano testified that efforts were initiated by the other crime families to prevent these incidents from igniting a full-scale shooting conflagration. The Gambino, Lucchese and Genovese Families established a special committee to communicate with, and mediate between, the two Colombo factions. This Alternative Dispute Resolution strategy proved only partly successful in postponing hostilities even though it continued throughout the summer of 1991. Orena was present at all the ADR meetings, but Sessa refused to return after attending the initial one. Both the Luccheses and Gambinos supported Orena, and according to D’Arco, the committee’s efforts to keep the peace were directed primarily at Orena, since he controlled a majority of the Colombo soldiers and seemed eager to open hostilities. The detente ended on November 18, 1991. A crew led by William “Wild Bill” Cutolo, a captain allied with Orena, fired shots at Scar-pa. Overall, the government’s evidence regarding the conduct of the War, and Orena’s engineering of it, derived from three principal sources: (1) the testimony of Quattrache and Ambrosino; (2) the Audino car tapes; and (3) searches of various locations, including Orena’s girlfriend’s residence on April 1, 1992, the day of his arrest. Ambrosino and Quattrache testified about the Pérsico faction’s efforts to kill Orena and his supporters. Activities included the formation of “hit teams” and urgent attempts to locate Orena faction members. For example, in an effort to kill defendant Amato, Ambro-sino and some others surveilled Amato’s house and his wife for six weeks. The taped conversations from “Chubby” Audino’s ear — intercepted between February 6, 1992 and March 1,1992 — revealed many of the Orena faction’s activities during the fray. Orena and his associates carried guns, frequently switched cars to avoid surveillance, and voiced concerns about being tracked by Pérsico factionalists. Orena would arrange meetings and determine whether associates should come “loaded” with a weapon. The tapes showed not only that the Orena crews were actively trying to kill Pérsico faction members, but which ones were deeply involved in that endeavor. In a February 26, 1992 conversation, “Chubby” Audino identified three Orena murder-crews by reference to their captains: defendant Amato, Vic Ore-na, Jr. and “Wild Bill” Cutolo. The April 1, 1992 search of Orena’s girlfriend’s residence in Valley Stream, New York uncovered a plethora of incriminating evidence. When agents entered, Orena was in the basement with his sons, Vic, Jr. and John. Agents found an arsenal. There were fully loaded shotguns in each of the three basement closets. Extra ammunition was stored with the shotguns, including hollow-point bullets, shotgun shells, and a 16-round, 9 millimeter clip. On the main floor of the house agents found a fully-loaded pistol-grip shotgun and an ammunition belt holding numerous shotgun shells. In the crawl-space under the backyard wooden deck, they retrieved a black plastic garbage bag containing six loaded operable handguns and two extra clips. Aside from the weaponry, the search uncovered a bullet-proof vest and three sets of mobile phones and beepers. Orena’s briefcase was found in the second floor bathroom. It contained $55,000 in cash. Also seized were corruptly-obtained telephone toll records — the sort that may be lawfully obtained only by subpoena — and Coles directories, used to find the address to which a particular telephone number is assigned. Handwritten documents in the basement revealed that someone had already made lists of addresses, using the telephone numbers from the toll records, including those for the homes of Joseph Russo and Doris Schmelling, a friend of Teddy Pérsico. Russo and Teddy Pérsico were Pérsico faction captains who, according to Ambrosino, Orena had ordered killed. The records from Orena’s basement revealed an effort to track them down through their telephones. 6. Testimony of Special Agent DeVec-chio DeVeechio, at the time a twenty-five year veteran of the F.B.I., took the stand as the government’s expert on organized crime. His testimony was in two parts. First, he provided a general overview of organized crime activity and F.B.I. investigations, briefly covering the rules, structure and terminology common to organized crime and a description of F.B.I. surveillance techniques. Second, he testified as to his knowledge regarding those who died during the Colombo Family War. Specifically, DeVeechio described the general structure of the New York organized crime families, explaining their relation to each other and their internal hierarchies. Included were descriptions of the roles of the Boss, Underboss, Consigliere, captains, soldiers and associates. DeVeechio testified that the Boss sets family policy, sanctions murders, settles disputes, and generally is knowledgeable about all the family’s activities. He explained that it is not uncommon for families to install an individual in an “acting” position, and that he could recall a number of times when families operated under the charge of an Acting Boss. DeVeechio also discussed ways in which the families generate money: through extortion, loansharking, infiltration of legitimate unions and businesses, and gambling. In the second portion of his testimony DeVeechio briefly discussed a fratricidal war in the early 1960’s, and then proceeded to describe the Colombo War by summarizing the official reports of other F.B.I. Special Agents. He noted that ten individuals had been killed and fourteen had been injured. The first recorded incident was the botched November 18 shooting at Scarpa. He cata-logued what the reports showed of other incidents that followed soon thereafter, listing a number of individuals who were shot and the dates on which they were shot. All of the shootings occurred between November 18,1991 and June 4,1992. DeVecchio’s testimony was general and historical in nature. It was “boilerplate,” based on well known information and records of law enforcement agencies. It could have been supplied by a considerable number of F.B.I. agents or New York City Police Department officers who had worked in anti-mafia task forces over many years. The court instructed the jury that it should not conclude from DeVecchio’s testimony that the defendant was a member of any of the organized crime families described or that he committed any of the acts described. The purpose of the testimony was to create a context in which the jury could better understand the specific evidence that it was to receive during the trial. On cross-examination, defense counsel offered no impeachment of DeVecchio regarding his truthfulness, bias or motive to obtain a conviction against Orena. 7.Testimony of Special Agent Favo Special Agent Favo’s testimony pertained to the particulars of the investigation. He explained that as a Special Agent assigned to the Colombo Family he supervised cooperating witness Maffatore and had made a surreptitious recording of Maffatore’s October 1, 1991 conversation with Bonfiglio. He explained how the F.B.I. then proceeded to arrest Bonfiglio and to issue arrest warrants for three others, including Leale, in connection with the Ocera homicide. Favo also described the various searches and arrests of individuals allegedly associated with Orena. During his testimony, the government introduced evidence — mostly guns — retrieved from the searches. 8. Sentence Orena was sentenced in the spring of 1993. United States v. Sessa, 821 F.Supp. 870 (E.D.N.Y.1993). He received concurrent sentences of life in prison for racketeering, life for racketeering conspiracy, life for the underlying murder, ten years twice for murder conspiracy, twenty years twice for loansharking, and ten years for illegal possession of a firearm. Orena was also sentenced to an additional five years for use of a firearm in connection with a crime of violence. Also imposed were fines totaling $2,250,000 and a special assessment of $450. Orena was ordered to pay the cost of his imprisonment. 9. Appeal On appeal, Orena raised a number of challenges to his conviction and sentence, none of which are related to the present motion. He presented eleven arguments for reversal, ranging from a challenge to the RICO convictions based on insufficiency of evidence, to a claim of improper admission of evidence pertaining to the loansharking charges, and to the propriety of the fines and payments ordered at sentencing. Orena also appealed the court’s denial of a earlier motion for a new trial which was based on alleged perjury on the part of Gravano and alleged prosecu-torial misconduct in connection with Grava-no’s testimony and that of Montesano. The court of appeals addressed each issue and affirmed the conviction and the order denying the motion for new trial. United States v. Orena, 32 F.3d 704 (2d Cir.1994). C. Amato Trial 1. Verdict On January 25, 1993, Amato was found guilty by a jury of substantive and conspiracy violations of RICO, 18 U.S.C. § 1962(c), (d); conspiracy to murder Ocera, 18 U.S.C. § 1959(a)(5); the murder of Ocera, 18 U.S.C. § 1959(a)(1) and (2); conspiracy to make extortionate extensions and collections of credit, 18 U.S.C. §§ 892, 894; and unlawful possession of firearms by a convicted felon, 18 U.S.C. § 922(g)(1). 2. Sources of Evidence The bulk of evidence of Amato’s guilt came from two sources: testimony of the cooperating witnesses — Maffatore, Bonfiglio, Ambro-sino, who was a former member of Amato’s crew, and D’Arco; and court-authorized and consensual tape recordings. The cooperating witnesses testified to the existence of the Colombo Family and to Amato’s position in it. Amato had risen in the Colombo ranks to captain in 1987 and was at one time promoted by Orena to Acting Underboss, only to be later reduced in rank to captain. Ambrosino and Amato had known each other for years as members of the same crew. Physical evidence — e.g., a diary and a .38 pistol — seized by law enforcement was introduced to support the loansharking and weapons charges respectively. Although Amato was not charged with participation in the Colombo War, the government introduced evidence of the War to support the charges against him. The evidence was admissible to prove relationships and background to, inter alia, the murder conspiracy charge. 3. Ocera Murder Evidence established that Amato knew and associated with Ocera as a fellow criminal. He and Leale met regularly with Ocera mornings at the Manor before it opened. Photographs showed Amato, Leale and Oc-era together at various Colombo Family wakes. The materials that were seized by the Suffolk County police contained numerous references to “Patty [Amato]” and “Pat A.” next to dollar figures. Ocera feared that he was in trouble after the Suffolk County police seized his loansharking records implicating Orena and Am-ato. See supra Section 11(A)(4). Soon after Montesano’s failed attempt to retrieve the seized materials, Ocera conveyed to her his fears of being killed. He told her where he wanted to be buried should something happen to him. Similarly, according to Maffa-tore, Ocera had informed Leale that if he were killed, he hoped that his body would be found so that his wife could collect the insurance. During this period Ocera received two anonymous phone calls, one informing him that he was “dead,” the other instructing him to run. Maffatore and Bonfiglio linked Amato to the Ocera murder. After Leale “received a contract to whack” Ocera from Orena, Leale instructed Maffatore to drive to a gambling club in Merrick. Bonfiglio went with Maffa-tore, and when they got to the club, Leale met with Amato for approximately fifteen minutes. Maffatore and Bonfiglio were standing nearby, and were not included in the conversation. As already noted, however, Maffatore overheard Amato tell Leale that he did not want the body found. Ocera was scheduled to be present at a 10:30 a.m. meeting at the Manor on Monday, November 13,1989. He left home early that morning, but never arrived at the restaurant because he stopped at Amato’s house in Merrick. There, he was thrown to the ground by Amato, and strangled with a metal wire by Leale. Ocera’s body was then dumped into the trunk of Bonfiglio’s car, which Leale had borrowed. That night, Bon-figlio, Maffatore, Leale and two others buried the body in Forest Park, Queens. Bonfiglio testified that he did not know at the time that Leale had killed Ocera; a few weeks later, Leale told him that “Patty” held down Ocera while Leale garroted him. Thereafter, Amato — contrary to his previous practice— never came to the Manor or called the restaurant again. After Maffatore agreed to cooperate with the F.B.I. two years later, he surreptitiously taped a conversation with Bonfiglio. Implicating Amato in the murder, Bonfiglio expressed annoyance that he never received “credit” from Amato for his role in disposing of Oeera’s body. 4.Testimony of Special Agent Favo Special Agent Favo served as the F.B.I. case agent for the prosecution of Amato. He sat at the government table throughout the trial, and was the first witness to be called. Favo first testified about his supervision of Maffatore. He explained the logistical details of arranging the taping of Maffatore’s inculpating October 1,1991 conversation with Bonfiglio and described how Maffatore showed agents where Ocera was buried and how Bonfiglio decided to cooperate after he was found guilty for his role in Ocera’s murder. The government introduced the tapes and photographs of Ocera’s burial spot during this testimony. On cross examination, Favo explained that he did not initiate contact with Maffatore, but that Maffatore was referred to him by F.B.I. Special Agent Gandolfo. Gandolfo had in the past received information from Maffatore on other matters; he had referred Maffatore to Favo when he learned that Favo was working on the Ocera homicide. Favo was called to the witness stand a second time, and testified that he conducted searches and seized records and weapons in relation to the F.B.I. investigation of the Colombo Family. He described the January 31, 1992 search of Amato’s residence, during which he found a Davis .380 automatic pistol and a loaded magazine clip in the detached garage. 5. Sentence Amato was sentenced concurrently to life in prison for racketeering, life for racketeering conspiracy, life for the underlying murders, ten years for murder conspiracy, twenty years twice for loansharking, and ten years for illegal possession of firearms. Fines totaling $1,750,000 and a special assessment of $350 were imposed. Amato was ordered to pay the cost of his imprisonment. United States v. Sessa, 821 F.Supp. 870 (E.D.N.Y.1993). 6. Appeal On appeal Amato’s principal challenges were directed toward the sufficiency of the loansharking evidence, evidentiary rulings regarding the loansharking counts, and the sentence which he claimed was not individualized. The court of appeals affirmed. United States v. Amato, 15 F.3d 230 (2d. Cir. 1994). Nothing in his appeal relates to the present motion. D. Gregory Scarpa and R. Lindley De-Vecchio 1. Scarpa’s Criminal Activity Gregory Scarpa Sr. was a life-long associate of organized crime. He engaged heavily in criminal activity from the 1970’s onward, cultivating strong criminal relationships with various members of the Colombo Family, including Carmine Sessa and Lawrence Maz-za, who would remain closely tied to him during the period of the Colombo War. His criminal specialties over the years included credit card fraud, extortion, narcotics trafficking, and homicide. It is alleged that he had murdered at least eight people before the War commenced, and as a result of his penchant for killing, had earned from his associates the sobriquets the Grim Reaper, the Mad Hatter, and General Schwarzkopf. In 1986, Scarpa was the subject of a federal indictment charging possession and trafficking in false credit cards. He had signed a plea agreement which could have resulted in up to seven and a half years of imprisonment and a $250,000.00 fine, but was sentenced only to probation and a $10,000 fine. Scarpa operated a criminal enterprise with departments specializing in gambling, narcotics, and loansharking from his club, the Wimpy Boys Social Club. In 1987, ten federal indictments resulting from a Drug Enforcement Agency investigation were handed down in relation to Wimpy Boys activity. Scarpa was not among those indicted. His charmed life vis-a-vis law enforcement may be attributed to the fact that he was a long time informer for the F.B.I. See infra section 11(D)(2). Scarpa’s criminal endeavors did not cease after the commencement of the Colombo War. Although there was no violence for the five months after Sessa targeted Orena, Scarpa did not believe the peace would last. He warned, in reports to the F.B.I. in early 1991 that violence was about to explode. On November 18, 1991, Scarpa reported that he had been the subject of an attempted “hit” by the Orena faction. Claiming to act in retaliation for the shooting, Scarpa ■ launched a violent campaign against the Orenas. ■ He was a prolific killer, perhaps the most violent combatant in the War, apparently having Mlled four and wounded two. In early December he participated in the murder of Vincent Fusaro. In early January of the next year he helped murder Nicky “Black” Grancio. In late May 1992 he assisted in the murder of Larry Lampesi. Over the course of the War Scarpa conspired to murder others. On Thanksgiving Day, 1991, Scarpa planned to kill ‘Wild Bill” Cutolo by disguising himself as an Hasidic Jew and ambushing the unwitting Cutolo as he left his girlfriend’s house. The plan was called off when a New York Post article that very day mentioned that Scarpa might be an informant. In February 1992 Scarpa wounded Joe Waverly, shooting him in the stomach following a point-blank shoot-out. Ambrosino was arrested in early June 1992 and agreed to cooperate with the F.B.I. He provided information that implicated Scarpa in the murders of Fusaro, Grancio and Luc-chese Family member Gaetano Amato. Scarpa was not indicted even though two of his henchmen, Mazza and Delmasto, were. Scarpa was arrested by the New York City Police Department on August 31, 1992 on a firearms charge. Shortly thereafter, a federal indictment charging Scarpa with the commission of the three murders, among other crimes, was handed down. Scarpa was released on bail under strict house confinement as one of the conditions of release because of his health. ■ He was suffering from full-blown AIDS. In late December 1992, his bail was revoked because of his involvement in a shooting. Scarpa was sentenced to ten years in prison in December 1993 after pleading guilty to two counts, one of which involved the murder of Fusaro. He died of AIDS in federal prison in Minnesota in June of 1994. 2. Scarpa: Confidential F.B.I. Informant Scarpa was a long-time and active confidential informant to the F.B.I. F.B.I. briefing synopses — Form “209’s” — indicate that he began providing the Bureau with information in 1980. Earlier' the F.B.I. reportedly had enlisted Scarpa to help break the silence of the Mississippi Ku Klux Klan in relation to the disappearance of three civil rights workers. Scarpa is said in unconfirmed rumor to have acquired information the Bureau desired after kidnaping a Klansman and intimidating him with a gun supplied by the F.B.I. Classified as “Top Echelon,” Scarpa was a valuable informant. Prior to the onset of the War, the bulk of the information he passed on pertained to activity within the Colombo Family: who occupied certain positions, who was proposed as a new member, who was working with whom, and who operated what rackets and where. Scarpa’s reports increased substantially once the War commenced in late November 1991. From then on Scarpa gave the Bureau detailed reports from the front line of perpetrators and targets of “hits” executed by the opposing factions, various strategies and plans of attack, and failed attempts by other families to call a truce, among other things. Scarpa was closed as an informant on March 3, 1992 after it was rumored that he was conspiring to murder someone. He was reopened on April 8,1992. He received scant attention in defendants’ trials. The government argued, based on Montesano’s testimony, that Scarpa may have stalked Ocera a few weeks prior to his murder in 1989. Ambrosino testified that Scarpa was suspected of being an informant, referencing the November 28, 1991 New York Post article. 3. Scarpa-DeVecchio Relationship In the 1970s and perhaps back to the 1960s Scarpa had been regularly in touch with an F.B.I. agent. The relationship was broken off until DeVecchio succeeded in renewing Scarpa’s informer status in December 1980. DeVecchio acted as Scarpa’s F.B.I. handler from that time until Scarpa was finally terminated as an informer after the War. Throughout this period, DeVecchio served as Scarpa’ lone handler in spite of Bureau protocol that informants be handled by two agents at a time. Those guidelines had been waived on account of Scarpa’s distrust of anyone else. It was, however, arranged that in emergencies, Scarpa could be contacted by Favo. Scarpa was well-paid by the F.B.I. for his information. What is possible, but not self-evident, is that DeVecehio also “paid” Scarpa by passing along information, creating a two-way street for communication that was dangerous and unauthorized. Did DeVecehio do this? Was he so captivated by Scarpa as to have reversed their roles? Defendants emphatically answer “yes” to both questions. Over the course of their relationship De-Vecchio may well have made a number of unauthorized disclosures of information to Scarpa. In 1986, DeVecehio arguably warned Scarpa of his pending arrest on federal credit card fraud charges, and he may have intervened with the sentencing judge to request lenient treatment of his informant. There is a suspicion that in 1987 he leaked to Scarpa information that the Wimpy Boys Social Club was subject to court-ordered electronic surveillance. Indications were that DeVecehio tipped off Scarpa to the planned D.E.A. arrest of his son, Gregory Jr., and others in connection with the criminal activity at the social club, and that one of the targets of arrest, Cosmo Catanzano, was likely to cooperate with law enforcement. It is argued that as a result, Scarpa ordered that Catanzano be killed and warned his son, who then became a fugitive. Within the Colombo Family, there was a strong suspicion in the 1980s and 1990s that Scarpa derived protection from a law enforcement source, and it was widely rumored in the 80’s that he was an informer. Carmine Sessa, Scarpa’s protégé, harbored deep apprehensions. While the credit card case was pending, Scarpa was in the hospital receiving treatment for a stomach ulcer; Ses-sa’s wife, who had come to visit, answered the phone for him and the caller identified himself as a “Mr. Della” or “Mr. Dello.” Later, Scarpa’s wife told Sessa that Scarpa’s “friend” had called to inform him that he would not have to go to jail.. DeVecehio, defendants suggest, continued to pass information to his informant, Scarpa, throughout the Colombo War. In January 1992, DeVecehio was suspected by some of having revealed to Scarpa defendant Orena’s hiding place. Around that same time, he was, it is said, believed to have conveyed to Scarpa the address at which Salvatore Miei-otta, another Orena faetionalist, was residing. On or about February 27,1992, DeVecehio, it was inferred by defendants, told Scarpa that one of his men, Carmine Imbriale, was cooperating with authorities. DeVecehio, say defendants, may even have aided and abetted Scarpa in criminal pursuits. In April 1992, DeVecehio is thought by them to have supplied Scarpa with the addresses of his loanshark victims. DeVee-ehio had asked Special Agent Favo to obtain subscriber information for a telephone number he had received from Scarpa, and later is said to have told Favo that he was supplying Scarpa with addresses for his “business” customers. On March 3,1992, Scarpa was closed as an informant after the Assistant Special Agent in Charge of the Criminal Division of the New York F.B.I. office, Donald North (a superior of DeVeechio’s), found credible allegations that Scarpa was involved in planning violent criminal activity. Criminal violence would have disqualified retention of a person on the F.B.I.’s informer rolls. In informal conversations with North, DeVecehio was allegedly “adamant” that Scarpa was not involved in violent activity. ' Early in April 1992 DeVecehio initiated the process of having Scarpa “re-opened.” The Bureau granted authority to reopen Scarpa on April 8, pending completion of a “suitability inquiry.” On April 22, DeVecehio notified Bureau headquarters that such an inquiry had been conducted and that Scarpa was deemed suitable. DeVecehio did not inform North of this action or seek North’s authorization for it. North has testified that his authorization was not required to reopen Scarpa. After Ambrosino’s briefing of law enforcement officials in early June 1992, DeVecehio is believed by some to have informed Scarpa that arrest warrants had been issued for his henchmen, Mazza and Delmasto, and that they could avoid arrest by steering clear of their normal haunts. Mazza and Delmasto were not immediately arrested. On June 25, 1992, the Manhattan District Attorney’s Office and New Jersey law enforcement officials executed an arrest warrant and took into custody a number of individuals. (It was learned later that Scarpa may have been at the arrest location shortly before the arrests were made.) The F.B.I. then rearrested them pursuant to a federal warrant so that they would not be released. When Special Agent Favo advised DeVecchio what had occurred, DeVecchio upbraided him and the other agents present. DeVecchio instructed the agents to “do paperwork” instead of making arrests, and to arrest no one without his specific approval. Immediately after Scarpa’s federal arrest, DeVecchio asked prosecutors to consent to Scarpa’s release on bail, reasoning that he was of more value to the F.B.I. on the street than in jail. Scarpa was then released, only to have bail revoked, as already noted, when he became embroiled in a shooting incident. None of the information about the DeVec-chio-Scarpa relationship was presented at defendants’ trials. Defendants contend that had they known, the information would have been presented to a jury and that it would have resulted in acquittals. 4. Suspicions of DeVecchio’s Misconduct In the summer of 1992, Special Agent Favo had become strongly suspicious of De-Vecchio, believing that he was engaged in misconduct. DeVecchio’s reaction to news of a rise in the intensity of the War led to Favo’s heightened concern. On May 22, 1992 Favo learned that Orena factionalist Larry Lampesi was killed. After Favo told DeVecchio of Lampesi’s demise, DeVecchio reportedly excitedly slapped his hand on his desk and exclaimed, “We’re going to win this thing.” Favo reminded DeVecchio that the F.B.I. was not interested in which faction won. DeVecchio then responded that he meant the F.B.I. would win. Favo, from that moment on, began, he testified, to withhold from DeVecchio information pertaining to Scarpa, surmising that DeVecchio might have blurred the line between agent and informant, becoming a “cheerleader” for the Pérsico faction. He believed that DeVecchio might disrupt current investigations. The fact that Scarpa was not arrested after Ambrosino decided to cooperate in early June 1992 further buttressed Favo’s distrust of DeVecchio. For some time, Favo wanted to arrest Scarpa in view of information obtained from the Imbriale and Ambro-sino briefings. He believed that Scarpa was not forthcoming as an informer and was of little value to the Bureau. Although the New York F.B.I. anti-mafia squads could not arrest Scarpa due to DeVecchio’s prohibition, Favo hoped that the Brooklyn District Attorney’s Office would. On August 30, 1992, the New York Police Department informed Favo of its plans to arrest Scarpa. Favo told DeVecchio, and DeVecchio appeared visibly upset according to Favo. By autumn 1992, after Scarpa had been arrested, Special Agent Leadbetter also began to believe that DeVecchio had attempted to interfere in or stall an investigation of Scarpa. Similarly, Special Agent Tomlinson grew suspicious of DeVecchio after the Am-brosino briefings. None of DeVecchio’s subordinates reported to superiors or to the United States Attorney their concerns about Scarpa’s violence or DeVecchio’s possible misconduct. Favo was, he testified, concerned that no one would believe him, particularly since DeVecchio was a well-respected veteran of the Bureau. Tomlinson believed that someone else would make a report. The agents held back even though they had good reason to suspect that Scarpa was a murderer, and despite the fact that Justice Department Guidelines require an agent to report any knowledge of an informant committing violent crimes. None of these suspicions were presented at defendants’ trials. Defendants’ counsel were not alerted to these specifics. That highly experienced defense counsel at Orena and Amato’s trials could have made inquiries about Scarpa’s informant role had they wished to, and that they could then have unearthed much of what was later divulged is highly likely. That their clients were aware of Scarpa’s suspected role as an informer is equally likely. Since Scarpa’s name came up a number of times at the trials, defendants could have been expected to have mentioned to counsel the suspicions permeating their organization. That stone, however, was not turned over by the defense. Scarpa was alive. Unmasking him would probably have added to the number of well-connected turncoats already lined up as cooperating witnesses against defendants. In June 1994 this danger evaporated when, as already pointed out, Scarpa died in prison never having testified against his former comrades. 5. Post-Trials: DeVecchio-Scarpa Details Months after Orena’s and Amato’s trials, in April 1993, Carmine Sessa, the Colombo Family Consigliere, was taken into custody by the F.B.I. Sessa agreed to cooperate with the government. His debriefings were supervised by Special Agent Tomlinson. Among other things, Sessa recounted how he began to suspect that Scarpa had a law enforcement source when, .in 1987, on the eve of the D.E.A. arrests, Scarpa showed him a list of names of those in the Wimpy Boys crew that were eventually arrested. Sessa also recounted how he had discovered a bug on the Wimpy Boys telephone line, and how Scarpa remained unperturbed when Sessa showed it to him. Sessa recalled that Scarpa would regularly receive calls from a “Mr. Della” or “Mr. Dello.” In the Fall of 1993, William Meli agreed to cooperate with the Bureau. Special Agent Leadbetter conducted the debriefings. Meli’s disclosures corroborated those of Ses-sa. In 1987, Meli had learned from Scarpa’s son that his father had a friend, an F.B.I. agent who warned him of the impending Wimpy Boy arrests and Catanzano’s possible cooperation. It was not until these debriefings that Special Agent Favo learned of De-Vecchio’s alleged 1987 leaks pertaining to the Wimpy Boys Club. Scarpa’s confederate, Lawrence Mazza began cooperating in January 1994. Both he and Parlagrecco further corroborated the account that Scarpa had received advance notice of the Wimpy Boys arrests. Scarpa also had informed Mazza that he was being supplied information from a law enforcement source, who Scarpa referred to as “the girlfriend.” Whenever Scarpa received a phone call from “the girlfriend,” he would interrupt whatever he was doing. When at home, Scarpa would retreat to the basement to return “girlfriend” calls. Among other things, Scarpa told Mazza that “the girlfriend” told him that the Orena faction was close to killing him. Mazza also believed that Scarpa had received from “the girlfriend” the partial address of the house in Queens at which Orena was staying. After this series of debriefings, the Agents’ suspicions passed a point of critical mass. Favo believed that DeVeechio had lost perspective due to a consuming desire to protect his source. On January 17, 1994, Favo, Le-adbetter and Tomlinson went to Donald North, Special Agent in Charge of the Criminal Division of the New York F.B.I. office, to report their mounting concerns. North instructed each agent individually to prepare affidavits setting forth the information that led them to suspect DeVeechio of illegally leaking confidential law enforcement information to Scarpa. Consistent with Bureau policy, North immediately submitted a report to the Bureau’s Office of Professional Responsibility (“O.P.R.”). O.P.R. interviewed cooperating witnesses, F.B.I. agents, Assistant United States Attorneys and judicial officers who had had contact with Scarpa, and determined that DeVeechio was appropriately a subject of investigation. DeVec-chio was transferred from the anti-mafia squad to another supervisory position within the Bureau as coordinator of drug enforcement for the northeast region of the United States. In December 1994, O.P.R. referred the matter to the Public Integrity Section of the Department of Justice for an opinion. In connection with the instant motions, hearings were held beginning in May of 1996. Defendants called DeVeechio to the stand. DeVeechio refused to waive his Fifth Amendment privilege against self-incrimination. In early September 1996, the Public Integrity Section finally determined that prosecution of DeVeechio was not warranted. The O.P.R. investigation was closed. DeVeechio retired from the Bureau in October 1996. Favo, whose actions were in accordance with F.B.I. policy and were in good faith designed to protect the F.B.I.’s integrity, was transferred out of New York to a less vital post. Towards the end of February 1997, the government granted DeVecchio immunity. At final hearings in February and March of 1997 both Favo and DeVecchio testified. Favo proved a fully credible witness as to the facts, although his conclusions that DeVee-chio had been deliberately supplying substantial F.B.I. information to Scarpa was not, in retrospect, fully supported. In context, and at the time in question, however, Favo’s suppositions were sound and his actions appropriate and proper. DeVecchio proved a far less credible witness whose memory lapses were not believable. That he had largely inadvertently fallen under Scarpa’s spell and furnished him with some warnings to protect Scarpa personally and as a source is likely. That DeVecchio conspired with Scarpa on the side of the Pérsico faction or that he stirred up the War is not. The hearings demonstrated that the DeVecchio-Scarpa relationship was irrelevant to any events or evid