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Case 3:14-cr-00060-RNC Document 314 Filed 12/05/15 Page 1 of 6

UNITED STATES DISTRICT COURT


DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA,
v.
STEVEN MARTONE and
JOHN VAILETTE,
Defendants.

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NO. 3:14 CR 60 (RNC)

December 5, 2015

DEFENDANT'S STEVEN MARTONE'S


TRIAL MEMORANDUM RE: TESTIMONY OF
ERIC LAPENNA, JR.
Introduction: As the argument conducted during the afternoon session of December 4,
2015 indicates, the extent to which the jury will be permitted to hear the testimony of Eric
LaPenna, Jr., during the course of the trial will be a hotly disputed issue. The defense will make
each argument that it can in order to present that testimony; the government will marshal its
arguments in order to prevent the jury from learning about that testimony; the Court will be
required to make some sophisticated evidentiary and constitutional decisions; and some of the
decisions which the Court will be required to make are, we believe, are not controlled by direct
appellate authority.
Whether the Court will be required to make new law, however, will be determined in the
future, during the course of the defense case. While the issues are not yet ripe for the Court's
decision-making, our anticipation of the manner in which the issues may arise and the authority
on which the Court should rely are properly the subject of a trial memorandum at this point.
Factual and procedural background:
On the day the fire killed Kathy Hardy, March 7, 2006, Eric LaPenna was in jail. On
April 6, 2006, he was interviewed by East Haven police. He told a fabricated story about
Charles Talmage balking at the price contract killers would charge to kill Kathy Hardy. East
Haven officers referred the matter to Branford officers, who interviewed LaPenna on April 26.
LaPenna told them the same story, adding that Dominic Pagano had been at the meeting.
On June 26, 2006. LaPenna provided the Branford investigators with a written, signed
statement that essentially recounted the events as he would describe them to the grand jury,
although some of the variances between the statement and the grand jury testimony are
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significant.
LaPenna testified before the grand jury on December 18, 2007. We do not believe that
we have the documents relating to the grant of immunity under which he testified, but the grand
jury transcript makes clear that LaPenna testified subject to an immunity order. 12/18/2007 Tr.
4. He testified with the understanding that if his testimony was truthful, the prosecutor would
recommend a reduction of his sentence, but "there are no promises." Id. at 5.
In his testimony, LaPenna described his long course of familiarity with Mark Saks,
Dominic Pagano, Charles Talmage, and Season Talmage. He testified that shortly before he was
arrested, he had met Mark Sachs at a restaurant called Supreme Seafood in order to deliver
marijuana to Sachs. They had dinner together. During dinner. Sachs told him that a woman with
whom he was sleeping1 was threatening to expose the affair to his wife. At the end of the dinner.
Sachs's cell phone beeped and they went outside where John Vailette and Pagano were waiting in
a pickup truck. Sachs talked with the two. He did not use the name "Kathy Hardy." He referred
to "Kat." Sachs handed Pagano a stack of money and Pagano told Sachs, "Don't worry. It's
done." Sachs asked LaPenna to purchase an ounce of cocaine and deliver it the next day, gaving
LaPenna money to make the purchase. 12/18/2007 GJ 9-13.
LaPenna purchased an ounce of crack cocaine and met the next day with Sachs, Pagano
and Vailette. He hand the crack to Sachs, who handed it to Pagano, who handed it to Vailette,
who put the crack in the glove compartment. Pagano said, "Don't worry. She's toast." Sachs
asked LaPenna if he wanted to go along with Pagano and Vailette. He declined. After Vailette
and Pagano had driven off, Sachs handed LaPenna a stack of money and said "Keep your mouth
shut, kid." Id. 14-20.
LaPenna was arrested shortly thereafter and was, as we have noted, incarcerated on the
day of the fire.
In this grand jury testimony, Steven Martone's name was never mentioned.
On January 29, 2014, Eric LaPenna was subpoenaed to appear again before the grand

These were not the exact words used.

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jury. The grand jury before which he had initially appeared had expired and, we believe,
prosecutors wanted to present LaPenna's testimony to the grand jury that would be asked to
return the indictment. When he appeared, he stated that he wanted an attorney and James Smart,
Esq., was appointed pursuant to the Criminal Justice Act. Smart told prosecutors that LaPenna
would invoke the privilege against self-incrimination in response to anticipated questions. The
prosecutors undertook to obtain immunity in order to compel his testimony.
Although the government has declined to provide to the defense documentation
concerning the immunity-approval process, the defense can state with some confidence that line
prosecutors prepared various documents in order to attain the assent of the United States
Attorney to the government's seeking immunity; that the United States Attorney approved and
forwarded the documents to Paul O'Brien, Deputy Assistant Attorney General in charge of the
Criminal Division of the Department of Justice, who had been designated by the Attorney
General to consider such matters. Acting on behalf of the Attorney General and Mythili Raman,
the Acting Assistant Attorney General, the Deputy Attorney General approved "your request for
authority to apply to the United States District Court for the District of Connecticut for an order,
pursuant to 18 U.S.C . 6002-6003, requiring Eric LaPenna to give testimony or provide other
information in the above matter and in any further proceedings resulting therefrom or ancillary
thereto. . . ." Emphasis added. The government moved under seal that the Court issue an
immunity order on December 8, 2007 and the Court did so.
LaPenna testified again on February 26, 2014. LaPenna testified to the same essential
facts -- Sachs paid Vailette and Pagano to kill Hardy -- with some significant variations, adding
some colorful details. (For example, LaPenna said that his father had been a large-scale
marijuana dealer and when the son inherited the business from the father, the son inherited Mark
Sachs as a customer. 2/26/2014 GJ 12.) In this second grand jury proceeding, Steven Martone's
name was mentioned very briefly: LaPenna testified that he knew who Martone was, but did not
know Martone. Id. at 10.
The prosecution has not vouched for the truth of LaPenna's statements, but it has
certainly suggested to various courts that the statements are reliable. Investigators have relied
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upon LaPenna statements in order to obtain search warrants. In an affidavit in support of an


application for a Talmage-phone-record warrant, Branford officers set forth the information
LaPenna provided the East Haven officers. Perotti affidavit dated 4/19/2006. The same
LaPenna statement is set forth in a 4/4/2006 warrant application. Perotti 4/14/2006 affidavit.
During the Vailette trial the government relied upon the LaPenna statements in order to
convey highly incriminating evidence to the jury and, in so doing, strongly suggested to the Court
that the statements were reliable. During the testimony of Detective Perrotti, the following
exchange took place:
Q. [The Prosecutor]: What was the information you received regarding the
nature of the relationship between Mr. Sachs and Mr. Vailette?
A. [Detective Perrotti]: We had information that Mark Sachs paid John Vailette
cash and money There was an objection and the prosecution responded:
MR. GAILOR: Your Honor, counsel specifically asked about the nature of the
relationship between the individuals involved in this investigation. This is just a
follow-up on his question
THE COURT: It sounds to me like you're doing more than just following up. I
should see you at the sidebar.
SIDEBAR CONFERENCE, AS FOLLOWS:
THE COURT: What are you asking the witness?
MR. GAILOR: Counsel had specifically asked if Mr. Sachs had relationships with
other suspects in the case. Mr. Vailette was another suspect in the case. I'm asking
specifically what was the relationship between Mr. Sachs and Mr. Vailette.
THE COURT: And what do you expect him to say?
MR. GAILOR: He indicated Mr. Sachs paid Mr. Vailette to commit the fire.
THE COURT: Right. That's fairly powerful, and I'm wondering where that's going
to lead us.
MR. GAILOR: I don't intend to go any further with it, Your Honor.
MR. RAABE: It's based on hearsay. It's based on hearsay statements by witnesses.
MR. DURHAM: The entire cross was hearsay.
THE COURT: The government is entitled to in effect rehabilitate the witness,
provided it can do so through appropriate means, and I'm not sure that this
qualifies. What is the source of the information?
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MR. GAILOR: During the course of this investigation, he received information


from many different sources.
THE COURT: Is there an individual who made the statement?
MR. GAILOR: There is at least one, but actually several made it. One individual
in particular would be an individual by the name of Eric LaPenna.
THE COURT: Eric LaPenna?
MR. GAILOR: There were other individuals who provided information along
those lines as well.2
THE COURT: I think it would be best if you refrained for the time being from
seeking to suggest to the jury that Sachs paid Vailette to do this. But I think you
are entitled to do it in a more general way.
MR. GAILOR: Okay.
Vailette Transcript, Vol V. 1194-1196.
There followed a discussion, difficult to understand, about striking the detective's answer
that Sachs paid John Vailette cash and money, but the bottom line is that the answer was not
struck and the jury was never instructed to disregard the detective's highly incriminating response
-- a response based on LaPenna's statements -- that Sachs had paid Vailette cash and money.
The jury could thus well have based its verdict in part upon information from LaPenna,
information that the prosecution seemed to represent to the Court was reliable..
For this trial, the government did not list LaPenna among the names of potential
witnesses recited during jury selection. During the course of the first week, the government has
properly objected to the introduction of testimony that might contain recountings of what
LaPenna has said. We do not anticipate that LaPenna will appear as a government witness.
We have delivered a subpoena to the marshal for service on LaPenna and have left
messages for Mr. Smart. We anticipate that LaPenna may rely on his fifth amendment privilege
and refuse to answer defense questions when called as during the defense case-in-chief.
Discussion: During the course of the defense case, we anticipate that if Mr. LaPenna
relies on his fifth amendment privilege, the Court will be required to determine:
First, does LaPenna continue to enjoy a fifth amendment privilege? LaPenna's delivery of
2

We are uncertain who those individuals may have been.

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drugs to Sachs, which was probably at the heart of his first claim of self-incrimination, could not
now be prosecuted because of the statute of limitations. There may be limited questions that
LaPenna could answer without fear of self-incrimination.
Second, do the immunity orders issued by the Court immunize only testimony before the
grand jury, or do they cover ancillary and subsequent proceedings, such as this trial?
Third, are confrontation rights and due process offended when the government obtains an
indictment based in part upon immunized testimony, and obtains a conviction of a co-defendant
based in part upon that immunized testimony being presented to the jury as hearsay, and then
prevents the same testimony from being presented to a petit jury? If so, may the Court order the
government to seek a grant of immunity for the witness's trial testimony? Should the Court give
the government the choice between immunity and dismissal of the indictment?
Fourth, if LaPenna does not testify, may the grand jury transcripts be offered in place of
his testimony, if not under an enumerated exception to the hearsay rule, then under the catchall
exception of Rule 807, Fed. R. Evid.?
Conclusion: These will be difficult issues to resolve and this memorandum is intended
to alert to Court to the anticipated issues.
Respectfully submitted,
s/s
JEREMIAH DONOVAN
123 Elm Street--Unit 400
P.O. Box 554
Old Saybrook, CT 06475
(860) 388-3750
FAX 388-3181
Juris no. 305346
Fed.bar.no. CT 03536
jeremiah_donovan@sbcglobal.net

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