Occhipinti 139 Cong Rec E 2773

139 Cong Rec E 2773, *

Congressional Record -- Extension of Remarks

Thursday, November 4, 1993

103rd Cong. 1st Sess.

139 Cong Rec E 2773

REFERENCE: Vol. 139 No. 153

TITLE: KEY DOCUMENTS PROVE INNOCENCE OF JOSEPH OCCHIPINTI

SPEAKER: HON. JAMES A. TRAFICANT, JR. OF OHIO
IN THE HOUSE OF REPRESENTATIVES

TEXT:
   Text that appears in UPPER CASE identifies statements or insertions which are not spoken by a Member of the House on the floor.
   Text that appears in UPPER CASE identifies statements or insertions which are not spoken by a Member of the House on the floor. [*E2773]

THURSDAY, NOVEMBER 4, 1993

MR. TRAFICANT. MR. SPEAKER, FOR THE LAST SEVERAL MONTHS, I HAVE BEEN INVESTIGATING THE CASE OF FORMER IMMIGRATION AND NATURALIZATION SERVICE AGENT JOSEPH OCCHIPINTI. SINCE HIS UNJUST CONVICTION IN 1991, JOE OCCHIPINTI HAS BEEN FIGHTING TO VINDICATE HIMSELF AND HIS GOOD NAME. MR. OCCHIPINTI HAS COMPILED STATEMENTS AND OTHER EVIDENCE THAT IS CRUCIAL TO HIS CASE. IN ORDER TO ENSURE THE INTEGRITY OF THIS EVIDENCE, I WILL -- BEGINNING TODAY -- SUBMIT COPIES OF THIS KEY EVIDENCE INTO THE CONGRESSIONAL RECORD.

MR. OCCHIPINTI IS FIGHTING FOR A NEW TRIAL AND HAS BEEN ORDERED BY A FEDERAL JUDGE TO TURN OVER ALL THE EVIDENCE HE HAS COMPILED TO THE U.S. ATTORNEY'S OFFICE. JOE OCCHIPINTI WAS A DEDICATED AND HONEST LAW ENFORCEMENT OFFICER WHO TRIED HIS BEST TO WIN THE WAR ON DRUGS. ANY OBJECTIVE REVIEW OF THE FACTS SURROUNDING HIS CASE RAISES SERIOUS QUESTIONS. I BELIEVE THAT JOE OCCHIPINTI WAS WRONGLY CONVICTED AND MAY HAVE BEEN THE VICTIM OF A CONSPIRACY BY THE DOMINICAN DRUG CARTEL IN NEW YORK CITY. I HAVE FILED FREEDOM OF INFORMATION REQUESTS WITH THE FEDERAL BUREAU OF INVESTIGATION, THE INS, AND THE NEW YORK CITY POLICE DEPARTMENT -- DEMANDING COPIES OF ALL FILES RELATED TO THE OCCHIPINTI CASE. I HAVE ALSO ASKED THE HOUSE JUDICIARY COMMITTEE TO INVESTIGATE THE CASE.

MR. OCCHIPINTI'S PROBLEMS STEMMED FROM OPERATION BODEGA, AN AGGRESSIVE INS/NYPD OPERATION HE HEADED FROM 1988 TO 1990 TO SUPPRESS A WIDE VARIETY OF ORGANIZED CRIME ACTIVITY IN THE WASHINGTON HEIGHTS SECTION OF NEW YORK CITY. THE OPERATION WAS CONDUCTED IN RESPONSE TO THE DRUG-RELATED MURDER OF NYPD OFFICER MICHAEL BUCZEK IN OCTOBER 1988. A TOTAL OF 55 BUSINESS ESTABLISHMENTS WERE INVESTIGATED IN WASHINGTON HEIGHTS DURING THE OPERATION EITHER BY COURT-OBTAINED SEARCH WARRANT OR CONSENSUAL SEARCH. ILLEGAL ACTIVITY WAS UNCOVERED AT EACH AND EVERY LOCATION. THE OPERATION RESULTED IN MORE THAN 25 CONVICTIONS, AND PUT EXTREME PRESSURE ON THE DOMINICAN DRUG LORDS. POLITICAL PRESSURE WAS BROUGHT TO BEAR ON LOCAL OFFICIALS BY A GROUP CALLED THE FEDERATION OF DOMINICAN MERCHANTS AND INDUSTRIALISTS OF NEW YORK -- A GROUP MANY LOCAL LAW ENFORCEMENT AGENTS DEFINED AS A FRONT FOR DOMINICAN ORGANIZED CRIME.

IN MARCH 1991, OCCHIPINTI WAS INDICTED FOR ALLEGED CIVIL RIGHTS VIOLATIONS IN CONNECTION WITH OPERATION BODEGA. ALL OF THE KEY WITNESSES AGAINST OCCHIPINTI HAD CRIMINAL RECORDS. THIS INFORMATION WAS NOT ALLOWED BY THE JUDGE TO BE PRESENTED TO THE JURY. THE PROSECUTION CONTENDED THAT MR. OCCHIPINTI'S SEARCHES VIOLATED THE CIVIL RIGHTS OF THE BUSINESSPEOPLE SEARCHED -- EVEN THOUGH ILLEGAL ACTIVITY WAS UNCOVERED AT EVERY LOCATION. LATER THAT YEAR, MR. OCCHIPINTI WAS FOUND GUILTY AND SENTENCED TO 37 MONTHS IN FEDERAL PRISON. AFTER LOSING HIS APPEAL 11 MONTHS LATER, OCCHIPINTI WENT TO PRISON IN JUNE 1992. ALTHOUGH PRESIDENT BUSH COMMUTED HIS SENTENCE ON JANUARY 15, 1993, MR. OCCHIPINTI'S CONVICTION STILL STANDS.

DURING HIS 22 YEARS AS AN INS AGENT, OCCHIPINTI COMPILED AN IMPRESSIVE RECORD, EARNING MORE THAT 78 COMMENDATIONS AND THREE ATTORNEY GENERAL AWARDS FOR VALOR AND MERITORIOUS SERVICE. HE IS THE MOST DECORATED FEDERAL AGENT IN U.S. HISTORY.

BELOW IS THE FIRST IN A SERIES OF SUBMISSIONS OF KEY EVIDENCE THAT I PLAN TO MAKE IN THE COMING DAYS:

Joe Occhipinti

Legal Defense Fund, Inc.,
Manalapan, NJ, November 1, 1993.

U.S. Representative James A. Traficant,
17th District, OH, Rayburn Office Bldg., Washington, DC.

Dear Congressman Traficant, thank you for offering to place in the Congressional Record Joe Occhipinti's brief in support of a motion for a new trial, and an overview of the evidence of his innocence.

Joe Occhipinti is an American hero. He was a front-line soldier in America's war on drugs. In his 22 years of service as a federal agent, he became one of the most highly decorated federal agents in U.S. history, with 78 commendations and awards. His reward for this service was being set up by Dominican drug lords on specious civil rights violations; being made to stand unfair trial before Judge Constance Baker Motley, who denied him a replacement defense attorney when his own had a nervous breakdown and became suicidal; having a one-hour appeals hearing wherein the judges did not review the briefs and were intimidated by hundreds of Dominican protestors chanting "No Justice, No Peace," and threatening to riot if the conviction was overturned; being sentenced to 37 months in a maximum security federal prison; and contrary to a court agreement, being sent to an Oklahoma prison and placed in "general population" with convicted alien drug dealers (a de facto death sentence). His life, and his family's has been ruined, and today they live knowing their safety is in jeopardy. For political expediency and Peace -- in Joe's case, there was -- No Justice!

For the last eleven months, I've been privy to all the intimate aspects of the Occhipinti case, and my relationship with Joe has afforded me access to in-depth evidence of his innocence, and personal interviews with key witnesses. Any objective review of the evidence will dictate the conclusion that Occhipinti was the target of a well-orchestrated conspiracy by a Dominican drug cartel, with the naive complicity of the Dinkins administration. Their motive was to neutralize Joe and his task force (Project Bodega), because its aggressive anti-organized crime operation was devastating the profits of their drug trade and related activity, was exposing the tentacles of their network and corruption in official governmental agencies, uncovered their role in voter fraud in the '89 election, and was about to reveal their "official" link to some members of the Dinkins administration. The above facts were clearly encapsulated in Mike McAlary's N.Y. Post series "The Framing of a Cop" (p. 262 enclosed).

Although President Bush granted "executive clemency" and commuted Joe's sentence on 1/15/93, a full pardon was denied for political reasons. Hence, Occhipinti remains a known felon, devoid of civil rights -- in effect, a political prisoner. Since 1/16/93, he has labored unceasingly to clear his name, prove his innocence and expose the cartel. On 6/17/93 in a N.Y. Daily News article, an N.Y.P.D. spokesman confirmed that the "Federation" is simply a front for the drug cartel (p. 260 enclosed). In addition, the same article reveals that when the Checo brothers, who had testified against Occhipinti, were arrested on 6/16/93 on charges of illegal gambling and attempted bribery of police officers, an irate female employee screamed at the officers, "We're going to do you like we did Occhipinti."

N.J. ASSEMBLY RESOLUTION 107 (P.250), AND N.J. SENATE RESOLUTION 86 (P.252) MEMORIALIZES PRESIDENT CLINTON TO APPOINT A SPECIAL PROSECUTOR TO INVESTIGATE ALL ASPECTS OF THE CASE -- AND IF THE EVIDENCE WARRANTS, GRANT A FULL PRESIDENTIAL PARDON. OF, IF THE EVIDENCE IS INCONCLUSIVE, GRANT A NEW TRIAL. JOE IS WILLING TO RISK A POSSIBLE RETURN TO PRISON TO VINDICATE HIMSELF AT A NEW TRIAL.

ON 7/15/93, ANTHONY POPE, JOE'S ATTORNEY, FILED MOTIONS WITH THE ORIGINAL JUDGE, CONSTANCE BAKER MOTLEY, FOR: (1) A NEW TRIAL; (2) THE JUDGE TO RECUSE HERSELF FOR CONFLICT OF INTEREST; AND (3) A CHANGE OF VENUE OUT OF SOUTHERN DISTRICT, WHERE JOE'S PROJECT ESQUIRE HAD UNCOVERED CORRUPTION IN THE U.S. ATTORNEY'S OFFICE. TO DATE, IN HER ARROGANCE, SHE'S REFUSED TO ANSWER THE MOTIONS.

INSTEAD, SHE ISSUED AN ORDER TO OCCHIPINTI THAT HE MUST TURN OVER ALL EVIDENCE ACCUMULATED TO THE U.S. ATTORNEY'S OFFICE, ON OR BEFORE 10/18/93; IN SPITE OF THE FACT THERE'S NO PENDING TRIAL. IN RESPONSE, ANTHONY POPE DEMANDED AN EVIDENTIARY HEARING TO CREATE A RECORD (LETTERS ENCLOSED). HIS MOTION WAS DENIED BY MOTLEY. IN RESPONSE, SHE ISSUED ANOTHER ORDER THAT OCCHIPINTI OBTAIN A COURT-APPROVED INTERPRETER TO OFFICIALLY TRANSLATE THOSE AFFIDAVITS AND TAPES IN SPANISH TO ENGLISH (ESTIMATED COST: $25,000). POPE IMMEDIATELY FILED A MOTION FOR C.J.A. AID BECAUSE OCCHIPINTI IS INDIGENT. SHE DENIED THE MOTION.

WE ADDRESS THESE ISSUES TO YOU AND ASK YOUR AID FOR THE FOLLOWING REASONS:

(1) WE SUSPECT JUDGE MOTLEY WILL USE OCCHIPINTI'S FINANCIAL INABILITY TO MEET THE TRANSLATION ORDER AS AN EXCUSE TO DISMISS THE NEW TRIAL, RECUSAL, AND CHANGE OF VENTURE MOTIONS.

(2) IN JOE'S FIRST TRIAL, THE JUDGE ORDERED ORIGINAL PRIMARY DEFENSE EVIDENCE TURNED OVER TO FEDERAL MARSHALS AND THE U.S. ATTORNEY. EVIDENCE WAS DENIED HIM AT TRIAL AND DEFENSE WITNESSES WERE HARASSED AND PRESSURED. WE FEAR A REPLAY. HENCE, WE PRESENT YOU OUR EVIDENCE AND WITNESS LIST (ENCLOSED), TO PUT THE INFORMATION IN THE PUBLIC DOMAIN, VIA THE CONGRESSIONAL RECORD, IN THE HOPE OF PREEMPTING THE INTIMIDATION TACTICS OF THE U.S. ATTORNEY. ALSO, SOME WITNESSES' LIVES WILL BE IN DANGER IF THEIR NAMES ARE ARBITRARILY RELEASED BY THE U.S. ATTORNEY. PLEASE RECALL JOURNALIST MANUEL DE DIOS WAS EXECUTED BY THE DRUG CARTEL, AFTER COMING FORWARD WITH EVIDENCE OF OCCHIPINTI'S INNOCENCE!

(3) OCCHIPINTI'S FIRST TRIAL WAS A SHAM AND WE HOPE THAT EXPOSURE IN THE CONGRESSIONAL RECORD OF THAT FACT WILL AVOID ANOTHER TRAVESTY. [*E2774]

PLEASE RECALL THAT JOE WAS ONLY GIVEN TWO MONTHS TO PREPARE FOR TRIAL AFTER INDICTMENT -- UNHEARD OF IN A CRIMINAL TRIAL IN SOUTHERN DISTRICT. THE JUDGE WAS PRE-SELECTED, RATHER THAN CHOSEN BY LOT (THE WHEEL). THE JUDGE IS A POLITICAL ALLY OF DAVID DINKINS. THE JUDGE IS A SELF-PROCLAIMED "CIVIL RIGHTS ACTIVIST" BUT THE "REAL" RECORD (CONGRESSIONAL RECORD, 8/30/66, P. 239 ENCLOSED) REVEALS SHE'S A LIFELONG RADICAL, HAD BEEN, AND MAY STILL POSSIBLY BE, A COMMUNIST PARTY ACTIVIST, AND BECAUSE OF HER PERSONAL PHILOSOPHY AND AGENDA, SHOULD HAVE RECUSED HERSELF IN THIS CASE. A REVIEW OF THE FIVE-WEEK TRIAL AND 4,000 PAGE TRANSCRIPT WILL CONVINCE EVEN THE MOST SKEPTICAL THAT CIVIL RIGHTS ACTIVIST JUDGE CONSTANCE BAKER MOTLEY ROUTINELY VIOLATED THE CIVIL RIGHTS OF JOE OCCHIPINTI AND DENIED HIM A FAIR TRIAL. IT'S INTERESTING TO NOTE THAT EITHER BECAUSE OF INEPTITUDE OR PERSONAL PREJUDICE, WITH 33 YEARS EXPERIENCE ON THE FEDERAL BENCH, JUDGE MOTLEY HAS THE DISTINCTION OF BEING THE MOST "OVERTURNED" JUDGE IN THE SOUTHERN DISTRICT.

OF FURTHER IMPORT IS THE FACT THAT THE PROSECUTOR, JEH JOHNSON, SHOULD HAVE RECUSED HIMSELF FOR CONFLICT OF INTEREST. BESIDES BEING THE FORMER LAW CLERK AND FAMILY FRIEND OF JUDGE MOTLEY, HE'S ALSO ALLEGED TO BE HER "GODSON." FURTHERMORE, IT WAS JEH JOHNSON WHO WAS GIVEN THE EVIDENCE AND CLOSED DOWN OCCHIPINTI'SProject Esquire -- which uncovered corruption and official misconduct in Johnson's office. In addition, prosecutorial misconduct has been alleged in the fact that Johnson was given the information documenting the drug cartel conspiracy, a year prior to Occhipinti's indictment, by police informant Alma Camarena (affidavit on p. 54). Johnson bragged that he'd use the Occhipinti conviction as a stepping stone to a high-paying private sector job. He's achieved that goal through his present position with Paul, Weiss, Rifkind, Wharton, et al. While some of us decorate our office walls with golf trophies, family photos or other mementos, Johnson adorns his with photos of the Occhipinti trial.

IN CONCLUSION

The Occhipinti case far supercedes Joe. Every law enforcement officer has been adversely affected. For example, the metropolitan area Port Authority police, in gross nonfeasance, have "stood down" since Joe's conviction, and are no longer conducting consentual searches, or interdicting "illegals" or narcotics -- out of fear of civil rights charges.

Dick Callaghan, President of Federal Agents P.B.A., informed me that in the year prior to Occhipinti's conviction, the local office of the D.E.A. conducted 2,700 investigations. That number shrank to 500 in the year after the conviction because of the fear the agents had that the tactic used to send Occhipinti to prison would be used on them. And now, all over the country, we see the "civil rights" ploy being used to prosecute innocent lawman, such as Officer Della-Pizzi in New York City, or Sgt. Paul Mangelson in Utah.

All Joe wants is a new trial and a fair trial. Since his conviction, voluminous evidence of his innocence has been accumulated. Yet, Judge Motley is stonewalling the motions. What is her fear? She won't even grant an evidentiary hearing. Why not? If there's not enough evidence submitted, the Occhipinti issue will simply die there.

Allow me to quote from just one of the enclosed affidavits -- that of Ramon Antonio Grullon, 8/19/93 (p. 201):

(1) "I am the former Consul of the Dominican Republic to Philadelphia, the former Consul General and Ambassador to Kingston, Jamaica, as well as other diplomatic positions I held for the Government of the Dominican Republic.

(2) On or about the end of 1989, I was personally told by Dominican businessmen Jose Delio Marte, Silvio Sanchez, Pedro Allegria and Ernesto Farbege that they needed my political assistance in "eliminating" former Immigration Officer Joseph Occhipinti. They explained to me that Occhipinti was a threat to their illegal businesses, which included loan sharking, gambling, drug distribution and the employment of illegal aliens. Pedro Allegria, Richard Knipping, Jose Delio Marte and a man called "Pepe," the brother-in-law to Delio Marte, operate a major loan sharking operation out of Sea Crest Trading Company where they set up Bodegas to conduct their illegal businesses. They also use Joel associates, Hamilton Drug Stores, and Hamilton Hardware located at West 136th and Hamilton Place from which illegal wire transfers from drug proceeds are made to the Dominican Republic.

I was told that Occhipinti would be eliminated on false allegations that he was shaking down the Bodega owners. They invited me to attend a press conference at the Club Deportivo (168th Street & Audubon Avenue) where they wanted to solicit the help of the Spanish media to publicize the false allegations. They told me I was needed because of my political position which give credibility to their allegations. I refused because I didn't want any trouble.

(3) On or about April, 1990, Jose Delio Marte and Silvio Sanchez again approached me to accompany them as a protestor at City Hall against Occhipinti to make the same false allegations. I again refused ..." (only a portion of the two affidavits.)

Congressman, I'm not an attorney; nor am I a Swiss watchmaker, but I do know how to tell time. As a layman -- putting aside hundreds of pages of documents, affidavits, 100 witnesses and countless undercover tape recordings -- the above three paragraphs are enough for me to demand that justice be done in this case! If Occhipinti is willing to risk a return to jail if a new trial goes against him, the bureaucrats should be willing to risk a few taxpayers' shekels to grant a new trial, or at the very least, an evidentiary hearing, in order to resolve this case once and for all.

Again, Congressman, I sincerely thank you for all your help. I believe your action, placing the following pages in the Congressional Record, will afford us a national public forum to plead our case, and if some of your colleagues join your cause, I'm convinced we'll win our day in court -- or a full presidential pardon.

Sincerely,
Greg Kaye,
Director.

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Joe Occhipinti

Legal Defense Fund, Inc.,
Manalapan, NJ.

INDEX OF BACKGROUND INFORMATION -- THE JOE OCCHIPINITI CASE FOR THE CONGRESSIONAL RECORD

Subject and page numbers

(1) Anthony Pope, Esq. brief in support of a motion for a new trial for Joe Occhipinti -- July '93. Pp. 1-27.

(2) Exhibit A -- Affidavit (Name redacted for security). Pp. 28-31.

(3) Exhibit B -- Affidavit (Name redacted for security). Pp. 32-35.

(4) Exhibit C -- Affidavit (Name redacted for security). Pp. 36-38.

(5) Exhibit D -- Affidavit (Name redacted for security). Pp. 39-44.

(6) Exhibit E -- Affidavit (Name redacted for security). Pp. 45-46.

[Note: All redacted names will be released at either evidentiary hearing, or in preparation for new trial.]

(7) Exhibit F -- Affidavit -- Marino Reyes. P. 47.

(8) Exhibit G -- Affidavit -- Victoria Lopez. P. 48.

(9) Exhibit H -- Affidavit -- William Franz. Pp. 49-52.

(10) Exhibit I -- Affidavit -- Manuel DeDios. P. 53.

(11) Exhibit J -- Affidavit -- Alma Camarena. Pp. 54-56.

(12) Exhibit K -- Affidavit -- Raul Anglada. Pp. 57-58.

(13) Exhibit L -- Affidavit -- Tony Reyes & Hilda Navarro. Pp. 59-60.

(14) Exhibit M -- Transcript of first trial dealing with Judge Motley's pre-selection, rather than selection by lot. Pp. 61-62.

(15) Exhibit N -- Affidavit of Angel Nunez. Pp. 63-80.

(16) Exhibit O -- Affidavit -- Richard L. Callaghan -- Pres., Federal Agents P.B.A. Pp. 81-85.

(17) Exhibit P -- Affidavit -- Ray Hagemann, Investigator, Borough President Guy V. Molinari's office. Pp. 86-99.

(18) Statement of Michael Capasso. P. 100

(19) Affidavit -- John Hickey. P. 101.

(20) Affidavit -- Hector Rodriguez. Pp. 102-107.

(21) Background Evidence. Pp. 108-124.

(22) Affidavit -- Luis Rodriguez. Pp. 125-132.

(23) Affidavit -- Ramon Rodriguez. Pp. 133-136.

(24) Affidavit -- Hector Rodriguez. Pp. 137-144.

(25) Exhibits -- Evidence in support of Affidavits. Pp. 145-176.

(26) Supplemental Affidavit -- Dick Callaghan. Pp. 177-194.

(27) Supplemental Affidavit -- Hector Rodriguez. Pp. 197-198.

(28) Letter -- John McAllister, Ass't. Director, Organized Crime Drug Enforcement Task Force, to Guy V. Molinari. Pp. 199-200.

(29)* Affidavit -- Ramon Antonio Grullon, former Counsel and Ambassador of Dominican Republic, documenting the conspiracy against Occhipinti. Pp. 201-202.

(30) Witness List -- List of 88 possible witnesses at trial & synopsis of their knowledge on Occhipinti case. Pp. 203-223.

(31) Witness List -- List of 19 supplemental witnesses and their knowledge on the Occhipinti case. Pp. 223-228.

(32) Anthony Pope, Esq.'s letters of 8/4/93, 9/10/93 and 9/29/93, to Federal Judge Constance Baker Motley regarding his unanswered motions for new trial, recusal of Judge Motley, and change of venue. Pp. 229-236.

(33) Letter from Joe Occhipinti to Paul Marcone, Chief of Staff -- Rep. James Traficant's office; Re: Evidence of Occhipinti's innocence. Pp. 237-238.

(34) Congressional Record, U.S. Senate, 8/30/66, detailing the radical background and Communist Party membership and activity of Constance Baker Motley, during her confirmation hearings. Pp. 239-241.

(35) Press releases -- 9/10/93, 9/15/93, 9/24/93, 10/8/93 from U.S. Rep. James Traficant; Re: Occhipinti case. Pp. 242-249.

(36) N.J. Assembly Resolution 107, on behalf of Occhipinti; and sponsor Dick Kamin's remarks. Passed unanimously on 2/18/93. Pp. 250-251.

(37) N.J. SENATE RESOLUTION 86, ON BEHALF OF OCCHIPINTI. PASSED SENATE COMMITTEE ON LAW AND PUBLIC SAFETY UNANIMOUSLY ON 7/13/93. DUE TO PASS FULL SENATE, NOV. 1993. PP. 252-253.

(38) CONGRESSIONAL RECORD ON OCCHIPINTI, 4/28/93, REP. DICK ZIMMER, N.J. 12TH DISTRICT. P. 254. [*E2775]

(39) SAMPLE OF PETITION TO PRESIDENT CLINTON, NATIONAL PETITION DRIVE ON BEHALF OF OCCHIPINTI. P. 255.

(40) LETTER TO PRESIDENT CLINTON ON BEHALF OF OCCHIPINTI; DRAFTED BY REP. SUSAN MOLINARI, AND CO-SIGNED BY TEN OTHER CONGRESSMEN. P. 256

(41) RECENT NEWS ARTICLES ON OCCHIPINTI. PP. 257-269.

(42)* N.Y. DAILY NEWS, 6/17/93, N.Y.P.D. SPOKESMAN LT. RAYMOND O'DONNELL CONFIRMS OCCHIPINTI'S CONTENTION THAT THE "FEDERATION OF DOMINICAN MERCHANTS AND INDUSTRIALLLISTS" IS A FRONT FOR THE DOMINICAN DRUG CARTEL. P. 260.

(43) N.Y. POST 10/9/91, MIKE MCALARY, "THE FRAMING OF A COP". PP. 262-263.

(44) "STRANGE JUSTICE -- UPDATED," ARTICLE WRITTEN BY GREG KAYE FOR CHRONICLES MAGAZINE, AN OVERVIEW OF THE OCCHIPINTI STORY. PP. 270-279.

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[In the U.S. District Court, Southern District of New York, Criminal No. 91CR168 (CBM)]

UNITED STATES OF AMERICA, PLAINTIFF, VERSUS JOSEPH OCCHIPINTI, DEFENDANT

STATEMENT OF FACTS

On November 26, 1991, following a trial by jury before the Honorable Constance Baker Motley, in the United States District Court for the Southern District of New York, a judgment of conviction was entered against former Immigration and naturalization Services (INS) Special Agent, Joseph Occhipinti.

The Indictment upon which Mr. Occhipinti was convicted, initially charged him with twenty five counts in which the jury returned guilty verdicts on seventeenth counts of same. Specifically the charges of the Indictment alleged various Civil Rights violations against Dominican natives, false statements on INS Reports and Embezzlement.

The charges resulting in a conviction, which related to Civil Rights Violations and False Statements, allegedly arose during the period of 1989 or 1990, during Occhipinti's "Project Bodega" investigation, conducted by himself and other Special Agents on behalf of the INS. This investigation was initiated as a result of the murder of New York Police Officer, Michael Buczek, who was believed to have been killed by Dominican drug dealer, Daniel Mirambeaux. During the curse of the investigation, information was discovered relating to convicted drug dealer, Freddie Antonio Then (hereinafter referred to as Then). This information indicated that Then was involved in money laundering, drug trafficking and other criminal conduct, in which he used storefronts (bodegas) as a go between for same, which resulted in the initiation of "Project Bodega."

At trial of the Government's thirty-five witnesses, a majority of same were several Dominican natives who were employed, owned and/or managed various grocery stores (bodegas) on the upper west side of Manhattan. Specifically, these witnesses testified that in 1989 or 1990, Occhipinti with other INS agents, conducted searches of their bodegas, and sometimes individuals, without obtaining consent of the person(s) during the subject search. Moreover, it was further elicited by the Government that some of the witnesses, at Occhipinti's request, executed blank consent to search forms.

In addition to the foregoing allegations, the bodega witnesses also testified that during the subject searches, monies were confiscated and never returned to them. However, it should be noted that the jury did not return a conviction on any of the counts charging Occhipinti with embezzlement.

The evidence that was established during the trial, established that at almost every bodega, illegal lottery numbers were sold, as well as engagement in other illegal conduct. In addition to same, with regard to the defense's case, Occhipinti testified on his own behalf. He denied searching any of the premises he entered during Project Bodega, unless he obtained consent to execute the search. Furthermore, Occhipinti reinstated his firm belief that a Dominican Criminal Enterprise, namely The Federation of Dominican Businessmen, (hereinafter referred to as the "Federation") was the underlying entity responsible for the bodega witnesses to falsely testify that the consent to search forms were signed after the subject searches.

On October 18, 1991, Occhipinti was sentenced by Judge Motley to a 37 month term of imprisonment, followed by a five year period of probation. Moreover, a special assessment of $600.00 was also imposed by the Court. On January 15, 1993, Occhipinti's sentence was commuted to probation by President George Bush.

During Occhipinti's confinement, Staten Island Borough President, Guy Molinari, along with his staff and several other concerned citizens and media personnel, launched an independent investigation to prove Occhipinti's innocence and substantiate his allegations of Dominican conspiracy to prosecute him due to his interference with the criminal activities of the Dominican underworld. In fact, Molinari's efforts produced newly discovered evidence, which was not ascertainable at trial, that substantiated Occhipinti's allegations that bodega witnesses perjured themselves at trial, by testifying falsely as it relates to searches of their businesses. Moreover, this evidence further revealed that a Dominican enterprise was the underlying force which conspired to frame Occhipinti for criminal prosecution and subsequent conviction.

It is on the basis of this newly discovered evidence, which Occhipinti premises his motion for a new trial.

LEGAL ARGUMENT -- NEWLY DISCOVERED EVIDENCE MANDATES THAT OCCHIPINTI BE GRANTED A NEW TRIAL

Federal case law and Rules of Procedure have acknowledged and upheld a defendant's right to a new trial. Specifically, Rule 33 of our Federal Rules of Procedure and Practice, prescribe a general standard governing same:

"The Court on motion of a defendant, may grant a new trial to that defendant, if required in THE INTEREST OF JUSTICE. If trial was by the Court without a jury, the Court on motion of a defendant for a new trial, may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. A MOTION FOR A NEW TRIAL BASED ON THE GROUNDS OF NEWLY DISCOVERED EVIDENCE, MAY BE MADE only before or within two years after final judgment, but if an appeal is pending, the Court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds, shall be made within 7 days after verdict or finding of guilty or within such further time as the Court may fix during the 7 day period." (Emphasis added).

Accordingly in short, Rule 33 provides that a Court may order a new trial for a defendant on the basis of newly discovered evidence if the interests of justice require it. Nevertheless, a motion for a new trial is addressed to the sound discretion of the trial court, and a decision to deny a new trial motion will not be reversed absent an abuse of discretion. UNITED STATES V. CHAMPION, 813 F.2d 1154 (11th Cir. 1987).

Federal case law, in interpreting the foregoing rule, has established a four prong test for a District Court to invoke when confronted with a motion for a new trial. For instance, to obtain a new trial based on newly discovered evidence, the defendant must show (1) that the evidence is truly newly discovered, i.e., discovered after trial; (2) that it could not, with due diligence, have been discovered prior to or during trial; (3) that the evidence is material and not cumulative or impeaching; and (4) that the evidence would probably lead to acquittal. UNITED STATES V. UNDERWOOD, 932 F.2d 1049, 1052 (2d. Cir.), cert denied, -- -- U.S. -- -- , 112 S.Ct. 382, 116 L.Ed.2d 333 (1991); UNITED STATES V. DIAZ, 922 F.2d 998, 1006-07 (2d. Cir. 1990). ("New" evidence must create "a reasonable doubt that did not otherwise exist"), cert. denied, -- -- U.S. -- -- , 111 S.Ct. 2035, 114 L.Ed. 2d 119 (1991); UNITED STATES V. TUTINO, 883 F.2d 1125, 1140 (2d. Cir. 1989), cert. denied, 493 U.S. 1081, 1082, 110 S.Ct. 1139, 107 L.Ed. 2d 1044 (1990); UNITED STATES V. DIPAOLO, 835 F.2d 46, 49 (2d. Cir. 1987); UNITED STATES V. GILBERT, 668 F.2d 94, 96 (2d. Cir. 1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2014, 72 L.Ed. 2d 469 (1982); UNITED STATES V. ALESSI, 638 F.2d 466, 479 (2d. Cir. 1980); UNITED STATES V. CASTANO, 756 F. Supp. 820, 823 (S.D.N.Y. 1991). However, as a matter of law, the trial court cannot grant a motion for a new trial based on newly discovered evidence once it has determined that the movant has failed to satisfy any part of the test, See UNITED STATES V. HALL, 854 F.2d 1269 (11th Cir. 1988).

In UNITED STATES V. MATOS, 781 F. Supp. 273 (S.D.N.Y. 1991), the United States District Court for the Southern District of New York, was confronted with a motion for a new trial premised upon newly discovered evidence. The Court, in applying the facts to each prong of the test, held that even though the newly discovered evidence was material and not cumulative or impeaching, the evidence failed to satisfy the remaining criteria of the test. For instance, the defendant's newly discovered evidence consisted of two purportedly exculpating affidavits of co-defendants. The Court ruled that said evidence was not newly discovered, due to the fact that the defendant chose not to call said "witnesses" at trial, because their post arrest statements led defendant to believe that these witnesses would "inculpate, albeit falsely, rather than exculpate Matos." ID. p. 280. Second, the Court ruled that the defendant failed to establish that he could not with due diligence have discovered that evidence prior to trial, since there was no attempt to subpoena either of the co-defendants prior to trial. Third, the Court further set forth that the defendant failed to establish that the purportedly newly discovered evidence would probably lead to an acquittal, due to the suspect credibility of the co-defendants, both of whom were convicted and serving sentences arising from the same incident as defendant. Accordingly, in light of the foregoing, the Court held that it would not be in the interests of justice to grant the defendant a new trial.

In the matter at hand, Occhipinti respectfully submits newly discovered evidence to this Court, in support of his motion for a new trial. This evidence consists of numerous exculpating affidavits of individuals, working with Staten Island BoroughPresident, Guy Molinari, and their consensually monitored conversations with individuals with personal knowledge and "bodega" witnesses whom testified at trial on behalf of the Government. As previously set forth, most of the Government's case-in-chief consisted of bodega witnesses, who testified that Occhipinti conducted searches at the subject bodegas without obtaining consent to search. However, the annexed affidavits contain various categories of newly discovered evidence, which detail improprieties, fraud, and perjury of these same Government bodega witnesses. [*E2776] Moreover, these affidavits further substantiate concerted efforts by a number of individuals, some of whom were Government witnesses, to frame Occhipinti for prosecution and conviction. The underlying reason for the conspiracy, as stipulated in the affidavits, was to terminate Occhipinti's investigation of the criminal conduct of the Federation, in which members of same, owned or operated bodegas.

Particularly, the affidavits describe, INTER ALIA:

1. newly discovered evidence which confirms that certain members and associates of the Federation conspired and arranged to have Occhipinti framed and prosecuted by soliciting witnesses to assert false allegations to the authorities and then to testify falsely in the grand jury and trial;

2. newly discovered evidence which establishes that various substantive Government witnesses, whom testified against Occhipinti, lied under oath at the grand jury proceedings and at trial, consistent with the overall plan to frame Occhipinti; and

3. newly discovered evidence which supports Occhipinti's allegations at trial that a majority of the Government's bodega witnesses, used their "legitimate" businesses to commit and harbor illegal conduct and have continued to do same with the knowledge and tacit approval of the Government.

Before addressing the specifics of some of the affidavits, it should be noted that a number of the affiants have expressed fear for their safety and family members. Accordingly, most of the affiants will be identified herein as CI(1), CI(2), et seq. and generically as "he" to avoid identifying the sex of the affiant. Subject to this Court's approval and discretion, the original affidavits will be submitted, including the names and signatures of the affiants UNDER SEAL. It should be noted that the identities of these confidential informants are within the possession of the Government. In fact, many of these informants were interviewed by FBI, Special Agent, Lionel Baron.

In addressing the newly discovered evidence, which is submitted by way of affidavits, specifically the affidavit of CI(1), which is annexed hereto as Exhibit A, it should be evident to this Court that Occhipinti should be granted a new trial. For instance, Exhibit A itemizes conversations of CI(1) with numerous individuals who testified on behalf of the Government, and/or were approached by the Federation to falsify allegations against Occhipinti, and/or have first hand knowledge of the framing of Occhipinti. Specifically, Martha Lozano, the owner of Commercial Travel Agency in Manhattan, admitted to CI(1) that she was APPROACHED BY MR. SIMON DIAZ OF THE FEDERATION AND ASKED TO FALSELY TESTIFY THAT OCCHIPINTI UNLAWFULLY SEARCHED HER AGENCY. MS. LOZANO REFUSED TO DO SAME, EVEN THOUGH SHE WAS PREVIOUSLY ARRESTED BY OCCHIPINTI AND CONVICTED IN FEDERAL COURT, BECAUSE SHE SET FORTH OCCHIPINTI "PERFORMED HIS DUTIES LAWFULLY." SECOND, CI(1) MET WITH MR. PEDRO CASTILLO-REYES, THE OWNER OF UNIVERSAL TRAVEL AGENCY IN QUEENS. MR. REYES ADMITTED TO CI(1) THAT OCCHIPINTI WAS FRAMED, BUT HE REFUSED TO IDENTIFY THE CONSPIRATORS. IT SHOULD ALSO BE NOTED THAT MR. REYES WAS PREVIOUSLY CONVICTED IN FEDERAL COURT FOR OFFERING A BRIBE TO OCCHIPINTI. THIRD, MR. REYMUNDO TEJEDA ALSO VOLUNTARILY CONVERSED WITH CI(1). MR. TEJEDA TESTIFIED AT TRIAL ON BEHALF OF THE GOVERNMENT, THAT OCCHIPINTI CONDUCTED AN ILLEGAL SEARCH OF HIS TRAVEL AGENCY (UPTOWN TRAVEL AGENCY). IT SHOULD BE NOTED, MR. TEJEDA ADMITTED AT TRIAL TO PERJURING HIMSELF BEFORE THE GRAND JURY WITH RELATION TO HIS CRIMINAL ACTIVITIES. HOWEVER, IN HIS CONVERSATIONS WITH CI(1), MR. TEJEDA ADMITTED OCCHIPINTI DID NOT CONDUCT AN UNLAWFUL SEARCH, BUT HE FELT PRESSURED TO TESTIFY IN THE MANNER HE DID, BY THE UNITED STATES ATTORNEY'S OFFICE. FOURTH, THOMAS GALAN, A COLLEGE PROFESSOR, WHO WAS PRESENT DURING THE TEJEDA SEARCH, STATED TO CI(1), IN A CONSENSUALLY MONITORED TAPED CONVERSATION, THAT OCCHIPINTI DID NOT CONDUCT AN UNLAWFUL SEARCH. IN FACT, MR. GALAN ASSERTED THAT HE GAVE A STATEMENT TO THE U.S. ATTORNEY'S OFFICE PRIOR TO TRIAL STATING SAME, BUT WAS NOT CALLED AS A GOVERNMENT WITNESS. HOWEVER, IRRESPECTIVE OF SAME, THE DEFENSE WAS NOT PROVIDED WITH GALAN'S NAME OR STATEMENT. ACCORDINGLY, THIS NEWLY DISCOVERED EVIDENCE NOT ONLY REVEALS IMPROPRIETIES CONDUCTED BY OUTSIDE FORCES TO FRAME OCCHIPINTI, BUT ALSO PROSECUTORIAL MISCONDUCT FOR FAILING TO FURNISH EXCULPATORY INFORMATION TO THE DEFENSE. FIFTH, NURYS BRITO, THE OWNER OF NURYS' TRAVEL AGENCY, WAS ALSO A GOVERNMENT WITNESS, WHO ADMITTED TO PERJURING HIMSELF AT TRIAL TO CI(1). AT TRIAL, MS. BRITO TESTIFIED THAT OCCHIPINTI CONDUCTED AN UNLAWFUL SEARCH OF HER PREMISES, BUT LATER ADMITTED TO CI(1) THAT OCCHIPINTI CONDUCTED HIMSELF LAWFULLY, BUT SHE FELT PRESSURED TO TESTIFY IN THE MANNER SHE DID.

EXHIBIT A, STANDING ALONE, RAISES SERIOUS CONCERNS OF PROSECUTORIAL MISCONDUCT, PERJURY AND OTHER IMPROPRIETIES, WHICH WERE THE CATALYST TO THE FRAMING, PROSECUTION AND CONVICTION OF OCCHIPINTI. IN SUPPORT OF SAME, THE COMMON THREAD THAT HAUNTINGLY APPEARS IN EXHIBIT A, IS PERJURY COMMITTED BY GOVERNMENT WITNESSES BECASUE THEY FELT "PRESSURED" TO TESTIFY BY THE U.S. ATTORNEY'S OFFICE AND THE FEDERATION. MOREOVER, THESE GOVERNMENT BODEGA WITNESSES HAVE NO MOTIVE TO PRESENTLY CHANGE THEIR TESTIMONY, ESPECIALLY SINCE THEY ARE EXPOSING THEMSELVES TO PERJURY CHARGES. LIKEWISE, THE BODEGA WITNESSES IN THE AFFIDAVIT, THAT DID NOT TESTIFY AT TRIAL, ALSO LACK A MOTIVE TO PRESENTLY LIE BY SETTING FORTH THAT THEY WERE APPROACHED BY THE FEDERATION TO FALSELY TESTIFY, ESPECIALLY SINCE THEY WERE PREVIOUSLY ARRESTED AND CONVICTED BY OCCHIPINTI'S LAW ENFORCEMENT EFFORTS. HOWEVER, THE NEWLY DISCOVERED EVIDENCE ILLUSTRATED IN EXHIBIT A, IS ONLY "THE TIP OF THE ICEBERG" OF THE "TOTO" OF THE NEWLY DISCOVERED EVIDENCE SUBMITTED TO THIS COURT.

FOR EXAMPLE, IN REFERRING TO THE AFFIDAVIT OF CI(2), WHICH IS ANNEXED HERETO AS EXHIBIT B, ONCE AGAIN, TWO OF THE SAME GOVERNMENT BODEGA WITNESSES, NAMELY NURYS BRITO, AND REYMUNDO TEJEDA, REITERATED THEIR ADMISSION OF PERJURY THAT WAS SET FORTH TO CI(1). FOR INSTANCE, NURYS BRITO ADMITTED TO CI(2) IN EXHIBIT B, THAT SHE GAVE OCCHIPINTI PERMISSION TO SEARCH HER PREMISES AND SHE PERSONALLY LAID OUT FILES TO FACILITATE THE SUBJECT SEARCH. MOREOVER, REYMUNDO TEJEDA ADMITS TO CI(2) THAT HE LIED TO THE GRAND JURY BECAUSE HE CONSENTED TO THE SEARCH OF HIS PREMISES, PRIOR TO THE EXECUTION OF SAID SEARCH. MOREOVER, CI(2) ELICITS FROM MARTHA LOZANO, THE SAME INDIVIDUAL WHO RENDERED STATEMENTS TO CI(1), A REITERATION OF THE SAME STATEMENT. FOR INSTANCE, MS. LOZANO SETS FORTH, ONCE AGAIN, THAT SHE RECEIVED A REQUEST TO FALSELY TESTIFY AGAINST OCCHIPINTI THAT HE CONDUCTED AN ILLEGAL SEARCH, BUT REFUSED TO DO SAME. THUS EXHIBIT B IS A CRUCIAL PIECE OF NEWLY DISCOVERED EVIDENCE, BECAUSE IT SUBSTANTIATES AN INDICIA OF CREDIBILITY TO ITSELF AND EXHIBIT A, THAT THESE INDIVIDUALS WHO RENDERED CONVERSATIONS TO CI(1) AND CI(2) ARE STATING THE TRUTH, WITH NO HIDDEN MOTIVE.

EXHIBIT B IS ALSO VERY IMPORTANT TO THE PENDING MOTION, DUE TO THE FACT THAT IT BRINGS INTO THE PICTURE A NEW GOVERNMENT WITNESS THAT ADMITS TO PERJURY. FOR INSTANCE, MR. JOSE PUELLO AN EXECUTIVE BOARD MEMBER IN THE FEDERATION, REITERATES, IN A CONSENSUALLY MONITORED CONVERSATION TO CI(2) THAT HE HAD WITH A CRUCIAL GOVERNMENT WITNESS, NAMELY JOSE LIBERATO WHO ALSO IS AN EXECUTIVE BOARD MEMBER IN THE FEDERATION. THE SUBSTANCE OF THIS CONVERSATION WAS THAT MR. LIBERATO INFORMED MR. PUELLO, THAT THE ALLEGATIONS AGAINST OCCHIPINTI WERE UNTRUE AND INITIATED BY MEMBERS OF THE FEDERATION TO PREVENT OCCHIPINTI FROM INTERFERING WITH THE ILLEGAL ACTIVITIES OF THE FEDERATION. IN FACT, LIBERATO ADMITTED THAT HE SOUGHT ADVICE FROM HIS ATTORNEY WHO IS NAMED IN EXHIBIT B, ON HOW THE FEDERATION COULD STOP OCCHIPINTI'S INTERFERENCE. LIBERATO WAS INSTRUCTED BY COUNSEL VARIOUS BODEGA MERCHANTS, THAT HAD A HISTORY WITH OCCHIPINTI'S LAW ENFORCEMENT EFFORTS, TO FALSELY STATE THAT CONSENT TO SEARCH WAS NEVER RENDERED AND THAT MONIES WERE ALSO STOLEN WHILE THE UNLAWFUL SEARCH WAS CONDUCTED. ACCORDINGLY, EXHIBIT B DEPICTS TO THE COURT A THIRD GOVERNMENT WITNESS, WHO ALSO ADMITS TO PERJURY IN ADDITION TO MS. BRITO AND MR. TEJEDA, AS WELL AS ADMITTING TO INITIATING THE CONSPIRACY TO FRAME OCCHIPINTI AS WELL AS THE UNDERLYING MOTIVE FOR SAME.

HOWEVER, JOSE LIBERATO'S PRIDE-FILLED BRAGGING OF HIS CONSPIRING EFFORTS DID NOT STOP WITH JOSE PUELLO, AND IN TURN CI(2). IN FACT, AS EVIDENCED BY THE AFFIDAVIT OF CI(3), WHICH IS ANNEXED HERETO AS EXHIBIT C, MR. LIBERATO BRAGGED TO CI(3) HOW HE "F -- -- -- THE FEDERALES," BY FALSELY TESTIFYING AGAINST OCCHIPINTI FOR CONDUCTING UNLAWFUL SEARCHES AND STEALING MONIES. FURTHERMORE, LIBERATO CONTINUED TO BRAG OF THE FEDERATION'S EFFORTS OF ORGANIZING VARIOUS BODEGA OWNERS TO FALSELY TESTIFY.

MOREOVER, THE ALLEGATIONS ENCOMPASSING THE AFORESAID CONSPIRACY HEIGHTEN WITH REGARD TO THE NUMBER OF PLAYERS INVOLVED. SPECIFICALLY, REFERRING TO THE AFFIDAVIT OF CI(4) ANNEXED HERETO AS EXHIBIT D, IT SETS FORTH THE CONVERSATION BETWEEN SAID INFORMANTand the brother of Jose Elias Taveras, the latter who was also a Government witness at trial. This conversation details the admissions of Taveras' brother to the informant and others, which indicates that Jose Elias Taveras was instrumental in the framing and conviction of Occhipinti.

The contents of the affidavit of CI(4) is corroborated by the affidavit of CI(5), which is annexed hereto as Exhibit E. The affidavit of CI(5) details a conversation with the brother of Jose Elias Taveras, who refused to reveal his first name. Taveras' brother, once again, admits to a different informant that Jose Elias intentionally perjured himself against Occhipinti for the purposes of framing him.

In addition to the foregoing affidavits that have been submitted under seal, also attached are affidavits submitted by brave individuals, who have chosen to reveal their identities in the interest of justice. Exhibit F is the affidavit of Marino Reyes, the owner of Jose Grocery, New York, New York. Once again, this affidavit focuses upon the conversations of Jose Liberato in relation to the framing of Occhipinti. As illustrated by Exhibit F, in October of 1992, Mr. Reyes met with Liberato and was informed of the difficulty Liberato was confronted with in finding witnesses to falsely testify against Occhipinti. Moreover, Liberato reiterated to Reyes his motive for framing Occhipinti; his law enforcment efforts were interfering and damaging the Federation's illegal activities.

As depicted by Exhibit G. Victoria Lopez, a customer in Liberato's bodega in March of 1990, overheard his conversation with another individual, in which he set forth that he was attempting to locate individuals that would lie about their encounters with "the federal agent." In fact, as stated by Ms. Lopez, Liberato was emphatic that the "federal agent" would be placed in jail, for his interference, irrespective of the cost. In December of 1991, Ms. Lopez learned that Liberato asserted allegations against Occhipinti for Civil Rights violations, in which at that time she realized "the federal [*E2777] agent" referred to by Liberato in his previous statements, was in fact Occhipinti. Furthermore, referring to the Affidavit of William Franz, annexed hereto as Exhibit H, the contents of same sets forth portions of a audio taped conversation between a confidential informant and Raphame Liberato, who also was a Government witness, in which the latter bragged that himself and Jose Elias Taveras, had "taken care of" an agent. Thus, the foregoing affidavits that detail statements made by Jose Liberato and Jose Elias Taveras, evidences to this Court that they were key players in the framing of Occhipinti. For example, they not only admit their roles and the motives for same, but also the bragging to confidential informants and any individuals that were willing to listen to them, which clearly adds an indicia of credibility to their statements. After all, one must question their personal knowledge of the specifics of the aforesaid circumstances, if they were not being candid with their bragging.

Exhibit I is the affidavit of Manual DeDios the former editor of El Diario/La Riensa and Canbyo periodicals. During the course of his investigatory work for his periodical, DeDios interviewed numerous individuals who were members of the Federation. Even though these individuals refused to permit DeDios to reveal their identities, due to concerns for their safety, they set forth that Occhipinti was framed by the Federation and the allegations against him were fabricated. Ironically, shortly after his willingness to submit his affidavit (Exhibit I), DeDios was tragically murdered in an execution-style shooting. Moreover, in a consensually-monitored conversation, DeDios confirmed Jose Liberato's involvement in the conspiracy to frame Occhipinti, as well as his involvement in ongoing alleged criminal activity.

Up to this point, the newly discovered evidence focused primarily upon the admission of perjury by key Government witnesses, at the hands of the Federation, in a conspiracy to frame Occhipinti, due to his interference with the drug cartel. However, the affidavit of Alma Camarena, the former legal assistant of a New York law firm and present informant, also presents new evidence regarding the outside players in this conspiracy. (See Exhibit J).

Ms. Camarena was employed by the same law firm from which Liberato sought legal advice for his problem named "Occhipinti" (See Exhibit B). In fact, this law firm was the target of Occhipinti's prior investigation, labeled "Project Esquire," that was assigned to Assistant U.S. Attorney Jeh Johnson, and subsequently failed to materialize. As evidenced by her affidavit, Ms. Camarena, in 1988, provided Occhipinti with information for his investigation into Officer Buczek's homicide, and the drug cartel, which was implicated in said homicide. Additionally, in 1989, she informed Occhipinti and others, that her employers were involved in ''activities" other than legal assistance. Based upon same, Ms. Camarena had two meetings with Occhipinti, other law enforcement officers and Assistant U.S. Attorney Jeh Johnson, who "ironically" was the U.S. Attorney who prosecuted the case against Occhipinti. At those meetings, Ms. Camarena informed Mr. Johnson of the illegal activities of her employers and information of Freddie Then. However, no action was taken by the U.S. Attorney's office.

More importantly, in 1989, the affiant overheard a conversation at her employer's office, in which one partner complained to the other of the tremendous pressure Occhipinti was placing on the illegal activities of the firm's Dominican clients. The "elimination" of Occhipinti, was suggested. Instead, it was agreed that Occhipinti would be framed for prosecution for civil rights violations of Dominican bodega owners. In fact, the lawyer set forth that his "contacts" in the U.S. Attorney's office would aid him in the conspiracy. In August of 1989, Ms. Camarena reported this conversation to Assistant U.S. Attorney, Jeh Johnson. However, once again, no action was taken and this exculpatory information was not divulged to the defense. Unfortunately, shortly thereafter, the affiant was compelled to flee the state for her safety, once she learned that her employers were informed of her communication with the Government, by their contacts with the U.S. Attorney's Office.

The affidavit of Alma Camarena presents to this court seriousquestions of prosecutorial misconduct, improprieties in the U.S. Attorney's Office and illegal conduct of a New York law firm. Moreover, it also presents evidence which substantiates and correlates the contents of the other affidavits that Occhipinti was framed by the Federation, upon the advise of counsel, which nailed his prosecution and conviction based upon perjurious testimony. As previously stated, the common thread that flows from the contents of these affidavits is devastating due to the fact that they cannot be overlooked as mere coincidence. The fact of the matter remains, that a conspiracy was arranged by powerful Dominican drug lords, to frame an innocent man for his efforts in fulfilling his law enforcement duties to protect the public.

It should be noted that additional affiants and documents are annexed hereto in support of Occhipinti's motion for a new trial. Specifically, annexed hereto as Exhibit K is the affidavit of Raul Anglada, a New York City Detective, who accompanied Ms. Camarena to Jeh Johnson's office, when she reported the conspiracy to frame Occhipinti by her employers and their clients. Exhibit L is the affidavit of Tony Reyes, which details his personal knowledge of the conspiracy, as well as the law firm's involvement in same. Also, Exhibit M is the affidavit of Hilda Navarro, which introduces a new player in the conspiracy, namely Alfredo Placeras, an attorney with the Federation. This attorney admitted his involvement in the conspiracy and his efforts to "finish" Occhipinti.

Exhibit N is the affidavit of Angel Nunez, Esq., an attorney licensed to practice in the State of Pennsylvania. It should be noted that this affidavit contains information, a portion of which is not relevant to the present application. However, focusing on page eleven of said affidavit, Mr. Nunez refers to an individual identified as "Source A." "Source A," was a Dominican merchant, who defaulted on a loan to a Dominican loan shark. Source A's identity must remain confidential and his whereabouts not revealed, due to the fact that there exists a contract for assassination on his life. This source confirms that the conspiracy to frame Occhipinti was facilitated through fabricated civil rights violations and embezzlement allegations by Government witness, Jose Liberato. Mr. Nunez's affidavit also details the personal knowledge of other sources, which confirms the subject conspiracy and the players. This information was obtained from Source A post conviction.

Richard Callaghan, a retired Federal Agent and New York City Detective, affidavits are annexed hereto as Exhibit O. Mr. Callaghan executed two affidavits, memorializing the results of his investigation conducted on behalf of Staten Island Boro President, Guy Molinari. These affidavits detail newly discovered evidence, which could not have been ascertained prior to or during the trial, due to improprieties of the U.S. Attorney's Office. Specifically, the first affidavit details Occhipinti's search of Jaime Caba's bodega. Mr. Caba stated to Callaghan that he never made complaints against Occhipinti and that his civil rights were not violated, due to the fact that the agent was courteous and did not seize any MONEY. IRRESPECTIVE OF SAME, CABA SET FORTH THAT HE WAS INTERVIEWED BY INVESTIGATORS AND A U.S. ATTORNEY IN WHICH HE TOLD THEM THAT HE REFUSED TO PRESS CHARGES OR TESTIFY, DUE TO OCCHIPINTI'S LAWFUL CONDUCT. THIS EXCULPATORY WITNESS WAS NEVER REVEALED TO THE DEFENSE BY THE GOVERNMENT. IN ADDRESSING CALLAGHAN'S SECOND AFFIDAVIT, YEHYE ABUZAID, THE OWNER OF UPTOWN DELI AND GROCERY, THIS INDIVIDUAL STATED THAT HE VOLUNTARILY SIGNED THE CONSENT TO SEARCH PRIOR TO OCCHIPINTI CONDUCTING THE SEARCH OF HIS BODEGA. ABUZAID WAS CONTACTED BY THE U.S. ATTORNEY'S OFFICE WITH REGARD TO SAME, BUT THIS INFORMATION ALSO WAS NEVER DISCLOSED TO THE DEFENSE. THUS, OCCHIPINTI WAS CONFRONTED WITH TWO CONSPIRACIES, THE CONSPIRACY TO FRAME HIM BY THE FEDERATION AND THE CONSPIRACY OF CONVENIENT UNDISCLOSURE OF EXCULPATORY EVIDENCE BY THE GOVERNMENT.

EXHIBIT P IS THE AFFIDAVIT OF RAY HAGEMANN, A CHIEF INVESTIGATOR EMPLOYED BY MOLINARI. HAGEMANN'S AFFIDAVIT IS CRITICAL TO OCCHIPINTI'S PENDING APPLICATION BECAUSE IT CORROBORATES THE CONTENTS OF OTHER AFFIDAVITS DETAILED HEREIN, SPECIFICALLY THE AFFIDAVIT OF ALMA CAMERENA. MOREOVER, HAGEMANN'S AFFIDAVIT DETAILS A TAPED CONVERSATION BETWEEN A CONFIDENTIAL INFORMANT AND JOSE PRADO, A GOVERNMENT WITNESS. DURING THIS TAPED CONVERSATION, PRADO ADMITTED THAT HE RECEIVED FROM JOSE LIBERATO THE SUM OF $35,000.00 TO FALSELY TESTIFY AGAINST OCCHIPINTI. A TRANSCRIPT OF THIS CONVERSATION IS ANNEXED TO HAGEMANN'S AFFIDAVIT FOR THIS COURT'S REVIEW. ASIDE FROM TAPING A CONVERSATION WITH PRADO, THE SAME INFORMANT ALSO TAPED A CONVERSATION HE HAD WITH JOSE ELIAS TAVERAS, WHICH WAS PROVEN TO BE AUTHENTIC BY AN INDEPENDENT VOICE ANALYSIS EXPERT. (SEE RESULTS ANNEXED TO HAGEMANN'S AFFIDAVIT.) THIS CONVERSATION SPECIFIES TAVERAS' ADMISSIONS THAT HE PERJURED HIMSELF IN THE GRAND JURY AND AT THE SUBJECT TRIAL. THUS, HAGEMANN'S AFFIDAVIT BRINGS TO FOCUS THE UNDERLYING REASON WHY NUMEROUS BODEGA OWNERS WERE WILLING TO COMMIT PERJURY AT THE DIRECTION OF LIBERATO AND THE FEDERATION. THE REASON BEING IS AT LEAST ONE WITNESS, NAMELY JOSE PRADO, WAS PAID A SUBSTANTIAL AMOUNT OF MONEY FOR A DASTARDLY SERVICE. ACCORDINGLY, THIS NEWLY DISCOVERED EVIDENCE PRESENTS A CHILLING QUESTION TO THIS COURT: THE TRIER OF FACT, BASED UPON PERJURED TESTIMONY, PROCURED BY BRIBES AND OTHER ILLICIT MEANS, TAKEN TOGETHER WITH THE ABSENCE OF EXCULPATORY EVIDENCE DUE TO PROSECUTORIAL MISCONDUCT, CONVICTED AN INNOCENT MAN.

MOREOVER, HAGEMANN'S AFFIDAVIT ALSO DETAILS HIS KNOWLEDGE OF A CONVERSATION WITH HIMSELF, MOLINARI AND LENNY LEMER, A DETECTIVE SERGEANT OF THE NEW YORK CITY POLICE DEPARTMENT, ASSIGNED TO THE DEA TASK FORCE. LEMER VOLUNTARILY WENT TO MOLINARI AND HAGEMANN, WITH REGARD TO THE RESULTS OF HIS INVESTIGATION OF SEA CREST TRADING CO., WHICH IS ASSOCIATED WITH THE FEDERATION. LEMER SET FORTH THAT DURING THIS INVESTIGATION, HE DISCOVERED EVIDENCE WHICH WOULD PROVE OCCHIPINTI WAS FRAMED. THUS, LEMER'S STATEMENT IS IMPORTANT DUE TO THE FACT THAT IT PORTRAYS THE VOLUNTARINESS OF INDEPENDENT LAW ENFORCEMENT PERSONNEL, APPROACHING MOLINARI AND HAGEMANN, WITH REGARD TO EVIDENCE PROVING OCCHIPINTI'S INNOCENCE, WHICH WAS DERIVED FROM A SEPARATE INVESTIGATION.

However, Lemer isn't the only independent law enforcement personality which has publicly stated Occhipinti is innocent. For instance, James Fox, the Assistant Director of the FBI, publicly proclaimed that an independent federal investigation uncovered newly discovered exculpatory evidence, that could prove Occhipinti's innocence. In fact, [*E2778] Mr. Fox also publicly proclaimed that in light of same, Occhipinti deserves a new trail. It should be noted that Occhipinti has previously requested the release of any and all reports generated by the FBI in this investigation, which to date, have not yet been released.

Moreover, the State of New Jersey, after examining various pieces of evidence relating to the framing of Occhipinti, unanimously approved assembly resolution 107. This resolution called for a special prosecutor and a Congressional investigation into the alleged drug cartel conspiracy and the Justice Department's cover up of Dominican organized crime and its handling of the Occhipinti prosecution. In fact, Occhipinti was previously debriefed by the New Jersey Senate and will be testifying before them.

In addition to the foregoing, the aforesaid New Jersey resolution, was introduced into the U.S. Congressional record on April 28, 1993, by U.S. Congressman Dick Zimmer, and placed under Order 93.

The White House has also responded to this resolution, and has referred this matter to the U.S. Office of Special Counsel under file number: MA-93-1357.

Accordingly, premised upon this newly discovered evidence, it is obvious that the credibility emanating from same, has warranted the public and legal support of many influential government agencies and individuals. Thus, the only issue that remains, is whether this evidence meets the legal plateau for an award of a new trail.

Application of the facts in the case at bar to the foregoing legal principles governing the award for a new trail, clearly evidence to this Court that Occhipinti should be awarded a new trail for the following reasons. First, there can be no dispute that the contents of the affidavits, and documentation submitted is material to the issues presented and for cumulative or impeaching. For instance, the "newly discovered evidence" brings to light, for the first time, the existence of a conspiracy to frame Occhipinti, the underlying motive for same, admissions of perjury by key Government witnesses, prosecutorial misconduct as well as improprieties committed by Government agencies and certain members of the legal profession. Thus, this evidence is material due to the fact that it is submitted and offered for reasons other than to impeach the credibility of Government witnesses who testified at trail. In fact, it emanates beyond the realm of being material due to its content and relevance to the issues presented to this Court.

Second, the evidence submitted is truly newly discovered and, in fact, could not have with due diligence, been discovered prior to or during the trail. After all, it is reasonable to conclude that the Government witnesses, who presently admitted to committingperjury, the motive for same or the underlying conspiracy, would not have revealed this information prior to or during the trial. After all, if this evidence could have been discovered prior to or during the course of the trial, there would not have been a trial in the first place, or the matter may have been dismissed. Moreover, referring to the affidavit of Victoria Lopez, annexed hereto as Exhibit G, her knowledge was impossible to discover prior to or during the trial, since she did not realize the identity of the "federal agent" Liberato was referring to until December of 1991, which was well after the trial and conviction of Occhipinti. Additionally, the affidavit of Alma Camarena, annexed hereto as Exhibit I, discloses that even though she had knowledge of the conspiracy and some of the players, this information was never disclosed to the Court or the defense by the U.S. Attorney's Office. To complicate matters further, Ms. Camerena was compelled to flee the state shortly after her meeting with the U.S. Attorney Jeh Johnson, due to threats and concern for her safety. Thus, Ms. Camarena was unavailable as a defense witness, even if her knowledge was presented to the defense, in accordance with legal procedure. The factors at play, specifically the efforts to frame Occhipinti by powerful conspirators, taken together with prosecutorial misconduct and other improprieties, clearly prevented Occhipinti from ascertaining this evidence prior to or during the trial.

Fourth, based upon the contents of the "newly discovered evidence," it is obvious that this evidence would probably lead to an acquittal of Occhipinti, if he was awarded a new trial. For instance, for the first time, the trier of fact would have access to the contents of the evidence relating to a conspiracy to frame Occhipinti for his interference with the illegal activities of the Federation. This, of course, can be substantiated by Ms. Camerena and Raul Anglada, who was present with her, when she met with U.S. Attorney Jeh Johnson. (See affidavit annexed hereto as Exhibit J). Moreover, the conspiracy can also be established by Martha Lozano, (referred to in Exhibit A and B), Pedro Castillo-Reyes (Exhibit A), Thomas Galan (Exhibit A), Jose Puello (Exhibit B), Marino Reyes (Exhibit F), Victoria Lopez (Exhibit G), Hilda Navarro (Exhibit M), Tony Reyes (Exhibit L), as well as the confidential informants and the host of other persons named and/or disclosed in the "newly discovered evidence." Moreover, the Government would not have the availability of their key witnesses, namely Jose Liberato, Jose Elias Taveras, Reymundo Tejeda, Nurys Brito and others, unless these individuals were willing to openly admit to perjury in Court. Thus, the causal effect this bears on the Government's case-in-chief at a new trial, would be devastating for the following reasons. On the firsthand, the Government's witness list would be severely hampered, due to the elimination of perjured testimony previously submitted to and evaluated by the trier of fact in reaching a verdict. Second, the Government would have substantially less bodega witnesses to testify that Occhipinti conducted an unlawful search and a stole monies, which bears directly upon the counts of the Indictment, which previously led to a conviction. Furthermore, without the existence of prosecutorial misconduct and the other improprieties which plagued the defense in the first trial, it is apparent that the submission of this new evidence would create "a reasonable doubt that did not otherwise exist." (See previous citation).

Accordingly, the foregoing application has established that Occhipinti has satisfied every prong of the test governing an award for a new trial. The overwhelming evidence submitted warrants an award for a new trial, because it pursues the interest of justice, which is the ideal our legal system was founded upon. After all, Occhipinti was stripped of his fundamental right to be presumed innocent, until proven guilty, due to the underlying forces conspiring against him. Therefore, the time has come for this Court to remedy the injustice that was befallen on an innocent man, by aiding him in his struggle to eliminate his conviction and the stigma of guilt that surrounds him by proving his innocence by way of an award for a new trial.

CONCLUSION

Based upon the foregoing, it is respectfully requested that defendant, Joseph Occhipinti, be granted a new trial.

Respectfully yours,
Pope and Bergrin, P.A., Attorneys for defendant Joseph Occhipinti.
By: Anthony J. Pope.