A convicted mobster should have been provided some level of access to material under seal as part of his ongoing post-conviction relief efforts, a panel of the U.S. Court of Appeals for the Second Circuit found Tuesday.
The panel of Circuit Judges José Cabranes and Reena Raggi, with District Judge Lawrence Vilardo of the Western District of New York sitting by designation, issued a summary order reversing the denial of Anthony Donato’s motion to unseal documents previously released to co-defendant Vincent “Vinny Gorgeous” Basciano, a Bonanno crime family boss. Basciano was convicted in two separate racketeering and murder trials in the Eastern District of New York, for which he’s serving life in prison.
Donato pleaded guilty in 2008 to being part of a murder conspiracy in 2001 in which Donato, Basciano and another co-defendant gunned down Frank Santoro from Donato’s car as Santoro walked his dog near his Bronx home.
Donato, who did not appeal his conviction, filed a habeas challenge in 2009, but his petition was denied by U.S. District Judge Nicholas Garaufis, who oversaw his original conviction. Part of Donato’s argument was that the government withheld an exculpatory letter written by a cooperating witness during his trial.
That letter, according to court documents, supposedly would have supported Donato’s defense that another cooperating witness, former Bonanno captain Dominick Cicale, fabricated Donato’s involvement in the murder.
At issue before the appellate panel was an attempt by Donato to have Garaufis unseal material related to what is described in court documents as a bogus jailhouse murder plot involving a Colombian drug-dealing hit man and Cicale. That plan, concocted by Cicale, reportedly was to have the Colombian falsely claim Basciano had sought a Bureau of Prison’s officer’s help to get the hit man to kill Cicale.
The details of the plot were presented during Basciano’s 2011 trial as a way to undermine Cicale’s testimony against his former boss. Yet the details of the plot, though shared with Basciano’s legal team and widely reported in the press, remained under seal, despite Donato’s attempts otherwise.
On Tuesday, the appellate panel said Garaufis had correctly determined that the documents at issue were judicial documents rather than discovery material, which would have meant a greater burden for Donato.
However, the panel said the district court abused its discretion in keeping them under seal. While it acknowledged there were “higher values” issues, like the law enforcement and cooperating witness issues cited by Garaufis that could overcome the presumptive First Amendment right-to-access concerns, those concerns in the current case were applied “too broad for wholesale sealing,” the panel found.
The panel’s own review found they were “largely cumulative of the information discussed” in Garaufis’ order and “would require minimal redaction if unsealed,” despite the district court’s claims otherwise. Information about witnesses in the witness protection program should understandably not be disclosed, the panel noted.
Donato is proceeding pro se in the matter.