## Facts

- The prosecution arose from an internal power struggle within the Colombo organized-crime family, treated as a RICO enterprise.
- The government alleged that Alphonse T. Persico and John J. DeRoss, as high-ranking members, arranged the May 1999 murder of William “Wild Bill” Cutolo, Sr. to maintain Persico’s control within the organization.
- On the day Cutolo disappeared, his wife Peggy Cutolo spoke with him by phone; he stated he planned to go to Brooklyn to meet “The Kid,” whom she understood to refer to Persico.
- The district court admitted Peggy Cutolo’s testimony about Cutolo’s statement under Federal Rule of Evidence 803(3) as evidence of Cutolo’s then-existing intent.
- The government presented additional evidence linking defendants to the killing and to efforts to conceal it, including witness tampering and a conspiracy to tamper with witnesses.
- A jury convicted both defendants of murder in aid of racketeering and witness-related offenses; each received a principal sentence of life imprisonment.
- After trial, Cutolo’s body was discovered; defendants sought a new trial, arguing the discovery undermined the government’s theory.

## Issues

1. Whether the district court abused its discretion in denying a Federal Rule of Criminal Procedure 33 motion for a new trial based on the post-trial discovery of Cutolo’s body.
2. Whether Cutolo’s statement of intent to meet “The Kid” was admissible under Federal Rule of Evidence 803(3) when used to support an inference involving another person’s future conduct.
3. Whether challenged testimony from Cutolo’s widow and daughter should have been excluded under Federal Rules of Evidence 401–403 as unfairly prejudicial.
4. Whether the evidence was sufficient to support the convictions for murder in aid of racketeering and for witness tampering and conspiracy to tamper with witnesses.
5. Whether the government violated Brady/Giglio by suppressing material favorable information.

## Decision

- The Second Circuit affirmed the judgments in all respects.
- The court held the district court did not abuse its discretion in denying a new trial; the newly discovered evidence did not make acquittal probable.
- The court held Cutolo’s statement of intent was properly admitted under Rule 803(3) as a then-existing state-of-mind statement and could support a permissible inference about subsequent events involving another person.
- The court held the district court acted within its discretion in rejecting Rule 403 challenges to the contested testimony.
- The court held the evidence, viewed in the light most favorable to the government and considered cumulatively, was sufficient to sustain all challenged convictions.
- The court rejected the Brady/Giglio claim because the asserted material was not suppressed, not favorable, or not material to the outcome.

## Legal Principles

- A Rule 33 new-trial motion based on newly discovered evidence is reviewed for abuse of discretion and requires a showing that the new evidence would probably lead to an acquittal, not merely provide new impeachment or alternative interpretations.
- Under Federal Rule of Evidence 803(3), a declarant’s statement of then-existing intent or plan is admissible to prove the declarant’s state of mind and may support inferences about later events connected to that plan, including events involving other persons, if not used as a vehicle for inadmissible hearsay assertions of past fact.
- Rule 403 balancing is committed to the district court’s discretion; relevant evidence is excluded only if unfair prejudice substantially outweighs probative value.
- Sufficiency review requires viewing the evidence in the light most favorable to the government; circumstantial evidence and reasonable inferences may sustain convictions when considered together rather than in isolation.
- A Brady/Giglio violation requires suppression of favorable evidence that is material, meaning there is a reasonable probability of a different result with timely disclosure.

## Conclusion

The Second Circuit affirmed life-sentence convictions for murder in aid of racketeering and witness tampering, holding that the post-trial discovery of the victim’s body did not justify a new trial, that the victim’s intent statement was admissible under Rule 803(3) and could support inferences about subsequent events, and that neither the evidentiary challenges, sufficiency arguments, nor alleged Brady/Giglio violations warranted reversal.


United States v. Persico, 645 F.3d 85 (2d Cir. 2011)