United States v. Perisco, No. 08-5266-cr (2d Cir. May 3, 2011) (Jacobs, Kearase, Leval, CJJ)
Defendants Perisco and DeRoss, former high-ranking members of the Colombo crime family, were convicted of murder-in-aid-of racketeering and related offenses in connection with the murder of one William Cutolo, in connection with an intra-family power struggle. In this long opinion, which deals with several not-very-interesting evidentiary and sufficiency claims, the circuit affirms.
The opinion addresses only one noteworthy issue. At the time of the defendant’s trial, Cutolo’s body had not been located. And the theory of the government, based on other evidence, was that the body had been dumped at sea. Post-trial, the body was found buried on Long Island, which prompted the defendants to move for a new trial under Fed. R. Crim. P. 33.
The circuit affirmed the denial of that motion. It agreed with the district court that the discovery of the body was not “material” and was not “likely to result in an acquittal.” While the discovery was “relevant,” it did not impeach the credibility of any of the government’s key witnesses, even if it did contradict the “theory advanced in summations as to how Cutolo’s dead body had been concealed.” Moreover, nothing about the discovery undercut the government’s contention that the murder was brought about by Perisco and DeRoss.