Battaglini Gets Another Day In Court

By George Anastasia
For BigTrial.net

Gary Battaglini's never been to law school but the one-time South Philadelphia bookmaker has apparently learned to speak legalese.

And speak it fairly well.

Filing motions on his own behalf, Battaglini has won the right to an evidentiary hearing that he hopes will result in either his conviction being overturned or will earn him a reduced sentence or a new trial.

If you're taking book on it, make it a longshot. But that hasn't stopped the soft spoken but street-savvy Battaglini from trying. The hearing, on his rule 2255 motion, is tentatively set for Thursday morning before Judge Eduardo Robreno who presided over the mob racketeering trial in 2012 that ended with Battaglini, 54, and three others being convicted. Battaglini was sentenced to eight years.

As he had throughout the trial, Battaglini from prison has continued to insist that his conviction was without merit and that he was swept away in an anti-Mafia prosecution in which the feds played fast and loose with the rules.

Among other things, inmate Battaglini, from his prison cell, filed a civil against his chief prosecutor, Assistant U.S. Attorney Frank Labor 3d, and FBI Agent John Augustine alleging they withheld and distorted evidence that could have resulted in his acquittal.

In a move that demonstrated the legal equivalent of chutzpah, Battaglini sought $1.5 million in compensatory damages and $5 million in punitive damages. The suit was dismissed as baseless shortly after it was filed.

But the issues remain part of Battaglini's ongoing legal battle. Whether he and his recently appointed attorney Hope Lefeber are able to fold them into the scheduled hearing could be problematic. Judge Robreno has limited the hearing to just one of six issues raised in a brief filed by Battaglini more
than a year ago.

The hearing is set to determine whether Battaglini's trial lawyer, Lawrence O'Connor, provided ineffective counsel by failing to file a timely notice of appeal after the convictions were announced on Feb. 5, 2013.

The government contends the issue is fairly straight forward. O'Connor never filed a notice of appeal because "Battaglini never directed him to do so." Battaglini, of course, disputes that contention.

The other issues on "ineffective counsel" focus on witnesses, government actions and the failure of his defense attorney to raise issues and objections during the trial. Those seem to be off point in terms of the timely filing of an appeal notice, but in an broader sense outline what that appeal might have been based on.

Robreno rejected most of the arguments during trial, but that's what an appeal process is all about. Battaglini is arguing that he never got the chance to take his case to a higher court.

In his motion, he cites several specific issues, including the failure of his defense attorney to challenge the credibility of government witness Michael Orlando and the admission of tapes from another government cooperator, Peter Albo, who was not called as a witness.

Orlando, whose testimony was interrupted when he was briefly hospitalized, was described by the defense as a one-time drug abuser who was saying whatever the government wanted him to say in order to avoid prosecution for his own criminal activities.

In his motion, Battaglini contended that from the witness stand Orlando was "free to weave any tale attendant to a smorgasbord of uncorroborated assertions, including that Battaglini was a bookmaker and loanshark...and that Battaglini boasted to the witness his mob association."

He also argued that his defense failed to make a distinction between a $5,000 debt Orlando owed to mobster Steven Mazzone and a $500 "legitimate" loan that Orlando owed to Battaglini.

Battaglini said the evidence showed that he only "advised" Orlando to pay the mob debt and that the $500 loan "was a legitimate debt having nothing to do with mob activities." He also pointed out that while Orlando claimed to know Battaglini, Orlando failed to identify him on three different occasions while on the witness stand.

Just as detrimental to his defense, Battaglini said, was his attorney's failure to attack the tape conversations of government cooperator Peter Albo who was not called to testify, but who had secretly recorded a series of conversations that were introduced as evidence.

Like Orlando, Albo was described as in debt to the mob. Why he was not called as a witness is at the heart of Battaglini's argument. He contends that only after all the Albo tapes were played for the jury through the testimony of FBI Agent John Augustine did the government disclose that during the trial -- in fact while the tapes were being played in court  -- Albo recanted two key points in a debriefing with the FBI.

That, Battaglini implies, is the reason Albo was never called to the stand, even though he was listed as a potential witness. An FBI memo of the debriefing, which was provided later in the trial, notes that "Albo directly contradicts, more or less, all of the information that he provided the government over the course of this investigation."

Written by Augustine, the memo noted that Albo said he never felt threatened by either Battaglini or Louis Barretta, another bookmaker who pleaded guilty to gambling charges. What's more, he recanted an earlier statement that Barretta was a mob associate, claiming instead that Barretta "liked to throw names around."

The FBI memo, a so-called 302, is reprinted here in full:

During the interview of PETER ALBO on November 19, 2012, ALBO made a number of statements to the investigating agent and to Assistant United States Attorney (AUSA) Frank Labor, which were contradictory to previous statements and information provided to the Government by ALBO from 2002 up until that 11/19/2012 interview. The contradictory statements made by ALBO are summarized as follows:
1. ALBO now stated that he never felt personally threatened by GARY BATTAGLNI or LOUIS BARRETTA as a result of demands to ALBO that he repay the sports betting debt he incurred in 2002. This statement contradicts numerous previous statements made by ALBO to the investigating agent in which ALBO expressed significant concern for his personal safety due to the fact that he was threatened to repay this debt. 

2. ALBO now stated that he was unaware of LOUIS BARRETTA'S association with Philadelphia organized crime. ALBO stated that BARRETTA 'liked to throw names around," when questions about BARRETTA'S affiliation with Philadelphia LCN member STEVEN MAZZONE. These statements contradict numerous previous statements made by ALBO to the investigating agent in which ALBO directly linked BARRETTA to MAZZONE and advised that BARRETTA was running a bookmaking operations on MAZZONE'S behalf while MAZZONE was incarcerated.
The investigating agent noted that these statements contradict not only ALBO'S previous statements, but also voluminous evidence including recorded statements made by ALBO, BATTAGLINI and BARRETTA during the period of investigation. 

Battaglini argued that the defense was not informed of the recantation memo until Nov. 27, 2012, even though the interview occurred on Nov. 19, 2012. During this time the trial was underway and Augustine was testifying about tapes Albo had made.
 

Labor, Battaglini contended in his legal brief, "sought to cover up or smooth over this wrinkle in his case by failing to mention it until every iota of Albo evidence was back-doored" through the testimony of Augustine and another FBI agent. That, he contended, should have been grounds for a defense motion barring the Albo takes or a motion for a mistrial.

In fact, Robreno had heard defense arguments to that effect, but allowed the tapes to be played. Again, while Robreno's ruling seems to undermine a part of Battaglini's ineffective counsel argument, the issue of the Albo tapes would certainly have been part of an appeal had it been filed.
 

Three other defendants convicted with Battaglini raised similar appeal issues which were rejected. Earlier this year, a Third Circuit Appellate Court panel denied appeal motions filed on behalf of mob underbosss Joseph "Mousie Massimino, mob capo Anthony Staino and mob soldier Damion Canalichio and ruled that their convictions should stand.
 

Three other defendants in the case, mob boss Joseph Ligambi, mob capo Joseph "Scoops" Licata, and mob leader George Borgesi, beat the charges.
 

Battaglini was the only defendant not described as a made member of the Philadelphia crime family. Prosecutor's labeled him as an associate, a description that Battaglini disputed.
 

At one point in his brief he argued that, "It was Battaglni's position that, however illegal, his taking of sports bets was an individual activity and not part of a mob enterprise." For that reason as well, Battaglini argued that his lawyer failed to object to a closing argument by Assistant U. S. Attorney John Han in which Han said the defense had conceded "these seven defendants are all associated with the Philly mob."
 

Battaglini said his defense never conceded that issue and that there should have been a strong objection to that characterization.
 

The prosecution contends, however, that Battaglini's lawyer provided him with a defense on all the issues raised and that the judge considered and rejected the issues being raised again. There was more than enough evidence to warrant a conviction, prosecutors argue, including Battaglini's own words in a secretly recorded conversation with one of the deadbeat gamblers who owed money to the mob.
 

"You're about to see a side of me you ain't gonna fucking enjoy," Battaglini said as the tape picked up every word. "Cause right now I wanna fucking put a bullet in your head. Do you fucking understand me? Stevie's in jail. Stevie ain't got nothing to do with nothing no more. That book don't belong to him. They wiped all that stuff off the books...There's a new boss in town. It's Uncle Joe's book and everything gets kicked upstairs to him now. He don't want to know nothing. He just wants his money. That's all he wants, his fucking envelope and that's it."
 

George Anastasia can be reached at George@bigtrial.net