Teddy Moustakis - Prosecutor Misconduct

Moustakis, Teddy ; threats, bribery; NRE: prosecutor misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, knowingly permitting perjury, prosecutor lied in court

NRE synopsis (by Maurice Possley):

"On May 5, 1990, police in New York City arrested 28-year-old Teddy Moustakis and Ronald Tellier on charges of threatening and attempting to bribe Charles Schrader, "The arrest came one day after police had arrested several people for a brazen burglary of Nahan Galleries in New York City. The gallery windows had been smashed and art and antiquities estimated to be worth more than $1 million had been taken. The people who were arrested were part of a burglary gang headed by Robin and Ronald Tellier.

"Schrader told police that Moustakis said that the suprisingly quick arrests led him and other gang members to suspect Schrader was an informant. After threatening to harm him, Schrader said Moustakis and Ronald Tellier offered him money to leave the city.

"In fact, Schrader was an informant and indeed had provided information that resulted in the arrests for the art gallery heist -- although none of the art or treasures had been recovered.

"His cooperation began two months earlier, in March 1990, when police arrested Schrader for burglarizing a Radio Shack store in Queens. That night, [NYPD] detective Thomas Coyne and a Queens County [ADA] persuaded Schrader to cooperate with the police and prosecutors in the investigation and prosecution of Robin Tellier and others, who were suspected of running a commercial burglary ring.

"In return for the hope of leniency for his own crimes, Schrader agreed to tape-record conversations, to be debriefed by law enforcement, and to testify in any cases against others involved in the burglaries.

"After Moustakis was arrested for threatening and attempting to bribe Schrader, but before Moustakis's trial, Schrader was interviewed by a Assistant U.S. Attorney from the Southern District of New York. The federal prosecutor told him that the federal government intended to prosecute Moustakis, the Telliers, and numerous others on federal racketeering (RICO) charges.

"At that time, Schrader entered into a verbal cooperation agreement with federal prosecutors. As part of his federal agreement, Schrader agreed to plead guilty to federal racketeering charges, and to testify as a witness against the defendants. Schrader also agreed to cooperate fully with the [NYPD] in a joint police and FBI investigation of Tellier and other defendants, and to be fully debriefed by federal authorities and the New York detectives.

"In return for Schrader's cooperation, federal prosecutors said they would bring his cooperation with law enforcement agencies to the attention of the federal judge who would sentence him on racketeerig charges; they would also make a motion that would allow the judge to give Schrader leniency -- even probation -- for his federal crimes."

"The trial of Robin Tellier and others for the Nahan Art Gallery burglary began in January 1992. Schrader was the main prosecution witness and the prosecutor was [ADA] Kenneth Appelbaum.

"At the time, Appelbaum knew that the U.S. Attorney's Office was preparing a racketeering case against the same defendants, including Moustakis. And he knew that Schrader had agreed to be a witness for federal prosecutors and to cooperate with them in their preparation of the federal prosecuton of the defendants.

"Before the trial, Appelbaum had gone to the U.S. Attorney's Office in Manhattan, where a prosecutor gave him 18 pages of handwritten notes that were taken by prosecutors during debriefings of Schrader. The notes included statements by Schrader concerning his own involvement in criminal activity -- including robberies, a shooting, illegal weapons dealing, and burglaries.

"Appelbaum disclosed to te defense attorneys only one and one-half pages from the 18 pages of notes. He did not reveal the source of the notes or that the notes came from federal prosecutors.

"Instead, on the first day of Schrader's testimony in the Nahan burglary trial, when the defense attorneys asked whether Schrader was cooperating with federal authorities and whether there were any notes from debriefings by federal authorities, Appelbaum said no such agreement existed and there were no debriefing notes.

"Robin Tellier and the others were convicted for the Nayhan burglary in February 1992. In May 1992, Moustakis went on trial with Ronald and Robin Tellier (who had been charged after Moustakis and Robin tellier were arrested) in Queens County...Court on the charges of threatening and attempting to bribe Schrader.

"Appelbaum still did not reveal that Schrader had been cooperating with federal authorities or that he had been debriefed on his crimes.

"Schrader testified that on May 5, 1990, Robin Tellier, who had been arrested for the art gallery burglary, called him from jail and said that he was to meet with two people in the park. Schrader said that when he went to the park, Moustakis and Ronald Tellier threatened him with physical harm and offered him money to leave New York so he would not testify before the grand jury.

"Moustakis testified that Schrader's testimony about being threatened and being offered a bribe was false. Rather, he testified, Schrader had tried to solicit money from him.

"During both direct and cross-examinationm Schrader testified about his own prior crimes. By that time, all his pending state charges had been dismissed. As a result, he testified that he had nothing to gain by testifying. He testified only about his agreement to cooperate with the Queens [DA]. He did not reveal that he had agreed to plead guilty to federal racketerring charges, or that he agreed to cooperate with federal authorities, or that he hoped his testimony in the Queens County trials would help him get leniency when it came time for him to be sentenced in federal court.

"On cross-examination, when Schrader was asked about his prior robberies and burglaries, he claimed a complete loss of memory. However, the 16 and a half pages of federal debriefing notes in Appelbaum's possession showed that in fact, Schrader had a precise memory of the details of his crimes. Nonetheless, Appelbaum said nothing when Schrader claimed he couldn't remember his other crimes.

"Moustakis and the Tellier brothers were convicted and on May 4, 1992, Moustakis was sentenced to five years of probation.

"In October 1992, Moustakis, Robin Tellier, and others were indicted and charged with violating federal racketeering laws. Moustakis was once again charged with bribing Schrader as part of an alleged pattern of racketeering.

"In November 1993, Moustakis went on trial with Robin Tellier and others in federal court. During the trial, prosecutors introduced Moustakis's threatening and bribery conviction as evidence against him on the racketeering charge. Schrader was the key witness again. However, prior to this trial, the federal prosecutors gave the defense lawyers all 18 pages of the Schrader debriefing notes. At the concluson of a four-month trial, Moustakis was acquitted of all charges.

"Based upon evidence that came to light in the federal trial, including the debriefing notes and Schrader's testimony that he had entered into a cooperation agreement with federal prosecutors before the trials in Queens, Moustakis moved to vacate the threatening and bribery conviction.

"In February 1995, Queens County...Court Justice Alan LeVine granted the motion and ordered a new trial for Moustakis. Justice LeVine noted that the prosecution agreed that Appelbaum had not turned over all the debriefing notes.

"Judge LeVine, who had presided over the Nahan burglary trial as well, noted that before Schrader took the witness stand, there had been a conference in the judge's chambers. When the defense asked whether certain people among the courtroom spectators might be FBI agents and federal prosecutors, Appelbaum said, 'It's nobody involved in this case or potential witnesses and I don't think it's correct for the [prosecution] to identify people in the audience.'

"When Robin Tellier's defense lawyer said that the spectators coud be potential witnesses if they had spoken to Schrader about Tellier, Judge LeVine said, 'Mr. Appelbaum has told me as officer of the Court these people are in no way, shape or form involved in the case.'

"Appelbaum remained silent.

"During the evidentiary hearing on Moustakis's motion for a new trial, Appelbaum admitted that someone in the audience that day was the prosecutor who had handed him Schrader's debriefing notes.

"Judge LeVine ruled that Appelbaum had failed to disclose evidence relating to Schrader to the defense and that Appelbaum had allowed Schrader to testify falsely when he said he did not remember his other crimes.

"The prosecution appealed Judge LeVine's ruling and on April 1, 1996, the Appellate Division, Second Department upheld the granting of a new trial.

"The prosecution then dismissed the charges against Moustakis."