Hudson County Facts

On 9/11, I was in Jersey City. I remember the stunned crowds on the Waterfront staring at the devastation. I saw one young man hysterically sobbing. Nobody was cheering.

My mother told me that during WWII — since St. Nick’s in the Heights was still then an ethnically German parish — all activities outside of church services and the regular school day were cancelled. This was by direction of the government. The anxiety was that enemy sympathizers would use the church and school as a base. How eliminating piano lessons at the convent actually helped the war effort is not easy for me to see.

The Our Jersey City original music was among the Nick Baffa material.

The Bureau of Special Service was a Hague innovation. The overt purpose was to treat wayward youth as troubled and by providing guidance and understanding so keep them out of the criminal justice system. The cynical maintained that the real reason was to hide the high juvenile crime rate.

It appears that irony of the use of the Bureau of Special Service stationary for writing Our Jersey City was unintended.

Superior Court of New Jersey,Appellate Division.
NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY and Banque Nationale de Paris, Houston Agency, Plaintiffs-Respondents, v. PAVONIA RESTAURANT, INC., Ernesto A. Tolentino, James A. McLaughlin, Jr., Paul S. Freeman, Manmohan Patel, William H. Constad, Donald Cinotti, Vincas M. Vyzas, K. Joseph Vyzas, Samuel A. DiFeo, Joseph C. DiFeo, Eleanor Hartnett and H. Clay Irving, III, Defendants,
Ray Vyzas, Francis E. Schiller, Eugene P. Squeo, John Seaholtz and Leona Seaholtz, Defendants-Appellants. v. Pavonia Restaurant, Inc., Ray Vyzas, Francis E. Schiller, K. Joseph Vyzas, Eugene P. Squeo, Samuel A. DiFeo, Joseph C. DiFeo, Eleanor Hartnett, John Seaholtz, Leona Seaholtz and H. Clay Irving, III, James A. McLaughlin, Jr., Paul S. Freeman, Manmohan Patel, William H. Constad, Donald Cinotti and Vincas M. Vyzas, Defendants, Ernesto A. Tolentino, Defendant/Appellant.
Decided: December 4, 1998
Before Judges MUIR, Jr., KEEFE and EICHEN. Schiller & Sasso, Warren, for defendants-appellants Ray Vyzas, Francis E. Schiller, Eugene P. Squeo, John Seaholtz and Leona Seaholtz on A-4568-96T3 (Theodore E. Schiller, on the brief). Margulies, Wind, Herrington & Knopf, Freehold, for defendant/appellant Ernesto A. Tolentino on A-5837-96T3 (no brief was submitted on behalf of this appellant). Dilworth, Paxson, Kalish & Kaufman, Cherry Hill, for plaintiffs-respondents (Francis P. Maneri, on the brief).
The opinion of the court was delivered by
In these consolidated appeals, defendants Ray Vyzas, Francis E. Schiller, Eugene P. Squeo, John Seaholtz and Leona Seaholtz, and Ernesto A. Tolentino (defendants), appeal from an order entered on February 6, 1997 granting summary judgment in favor of plaintiffs New Jersey Economic Development Authority (the EDA) and Banque Nationale de Paris (the Bank) in the sum of $1,530,392.88, and a subsequent order entered on March 21, 1997 denying their motion for reconsideration.   We affirm.
 The litigation arose out of the non-payment of a $1,470,000 loan (the loan) by the EDA and the Bank to Pavonia Restaurant, Inc. (Pavonia).   Pavonia was established to open and operate a new restaurant to be located in a newly-constructed eight-story office building in downtown Jersey City. The proceeds of the loan were used to start the restaurant which was known as “Hudson’s.”   Repayment of the loan was individually guaranteed by defendants,1 who are mostly professional and local business people and, with one exception, are also stockholders in Pavonia.
After Pavonia and defendants defaulted in their obligations to repay the loan, plaintiffs commenced this action.   Judge Thomas Brown granted summary judgment in favor of plaintiffs on their complaint, concluding there were no genuine issues of material fact on the enforceability of the guarantees.   The judge also  denied defendants’ motion to file an amended responsive pleading.   Thereafter, the judge denied defendants’ motion for reconsideration, and this appeal ensued.
Because this is an appeal from the grant of summary judgment, we are required to accept defendants’ evidence as true and to give them the benefit of all favorable inferences that can reasonably be drawn therefrom.  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535-36, 666 A.2d 146 (1995);  see also R. 4:46-2(c).   Accordingly, we will summarize the pertinent facts of the case in accordance with those principles.
To acquire the funds necessary to make the loan, the EDA issued and sold Economic Growth Bonds, Composite Issue (1992 Series P Bonds) to investors.   In order to encourage investment in the bonds, at the request of Pavonia and defendants, the Bank issued an irrevocable letter of credit pursuant to which it agreed to repay the bondholders in the event Pavonia defaulted.
On June 1, 1992, Pavonia executed a loan agreement, a promissory note, financing statements, and a security agreement pledging its leasehold improvements and restaurant equipment as security for repayment of the loan (the loan documents).   On the same date, defendants executed a Personal Guaranty Agreement whereby they each agreed individually to guarantee repayment of the loan to Plaintiffs in the event of a default by Pavonia (the guarantees).
Due to a four-month delay in the opening of the restaurant, insufficient advertising, a high-priced menu, staffing problems, and the shareholders’ failure to make the necessary capital contributions, Pavonia ran into financial difficulty and the loan went into default.   Consequently, as of August 19, 1994, the arrearages due from Pavonia to the EDA equalled $241,207.71, and plaintiffs sought payment from defendants in accordance with their guarantees.
Thereafter, Pavonia and defendants requested plaintiffs to forbear enforcement of their rights under the loan agreement and  guarantees.   Plaintiffs agreed and, on October 17, 1994, the parties entered into a “Loan Forbearance Agreement.”   The agreement essentially provided that plaintiffs would not accelerate the loan balance for a period of time if defendants paid the delinquent amounts due and advanced monthly payments through December 1, 1994 totalling $312,970.19.   In the agreement, defendants acknowledged that Pavonia had defaulted on the loan, that they had not cured the default, and that they had no defenses to plaintiffs’ claims under the loan documents or individual guarantees.2
On February 1, 1995, Pavonia again defaulted, and plaintiffs accelerated the loan balance.   In a letter dated June 22, 1995, counsel for plaintiffs made a demand upon defendants for full payment of the loan or possession of the assets Pavonia had pledged as collateral.   When defendants failed to respond, on July 2, 1995, plaintiffs filed a complaint in replevin against Pavonia and defendants, seeking possession of the pledged assets and judgment in the amount of the loan balance, interest, counsel fees and costs.   Plaintiffs also sought compensatory and punitive damages for conversion, wrongful detainer, and breach of contract.   Defendants filed an answer, defenses, and a counterclaim, essentially asserting, among other defenses, that both plaintiffs and defendants were suffering under a mutual mistake of fact when the loan was granted because both parties “erroneously assumed that the business of Pavonia ․ was capable of generating sufficient net revenue to enable defendant Pavonia” to repay the loan.
After extensive discovery, on December 18, 1996, plaintiffs moved for summary judgment.   Defendants opposed the motion and cross-moved to amend their responsive pleadings to assert defenses grounded in fraud, bad faith, and allegations that plaintiffs had failed to disclose material facts at the inception of the loan that materially increased their risk under the guarantees  rendering them unenforceable.   Specifically, defendants alleged that from the inception of the loan, plaintiffs knew and failed to disclose (1) that Pavonia’s assets were insufficient to secure the loan and (2) that plaintiffs were relying principally, if not exclusively, upon defendants’ guarantees as the source of repayment of the loan.
Defendants supported their cross-motion with various deposition transcripts and documents, including two “memoranda” which they maintained demonstrated that plaintiffs had relied solely on the creditworthiness of defendants, whose collective net worth was in excess of $56 million dollars, to secure repayment of the loan.   One memorandum was prepared on March 12, 1992 by Steven K. Szmutko, the senior loan officer of the EDA, and the other was a loan review document prepared on March 26, 1992 by Michael McKee, then vice-president of the Bank. The Szmutko memorandum dealt with the collateral for the loan.   It indicated that plaintiffs needed more than the leasehold improvements and restaurant equipment as collateral, mentioning that the guarantors had a substantial net worth to secure the loan.
At his deposition, Szmutko explained the memorandum, indicating that the EDA used three factors to evaluate the loan:  (1) the sufficiency of the anticipated cash flow from the restaurant business;  (2) the quality of the proposed management;  and (3) the sufficiency of the collateral pledged.   He explained that “where[ ] one part or one component of the loan evaluation process [is] weak, ․ [the EDA] seek[s] to mitigate that weakness by having ․ additional personal guarantees or whatever ․ additional collateral we can to strengthen it independent of the collateral.”   Szmutko stated that because the leasehold improvements and the restaurant equipment were not sufficient collateral to repay the loan in the event the restaurant failed, the creditworthiness of the guarantors was considered “the main source of repayment.”   However, he also stated that in evaluating the loan, he viewed the anticipated cash flow from the business as a significant source of repayment, noting the extensive business experience of Pavonia’s  president, defendant Ray Vyzas, and the restaurant’s general manager who had previously directed operations of four different restaurants. Szmutko also testified that he had analyzed the financial statements prepared by Pavonia’s accountant and that he relied upon the location and anticipated upscale clientele of the restaurant to generate a steady flow of income.   Szmutko stated:
I had asked for financial statements prepared by an independent accounting group which was provided, Sobel & Company, which were projections of balance sheet income statements, probably the cash flow statement as well as the assumptions which we use to prepare the projections and assumption ranging from the revenue, what the average price and rates would be, whether that’s consistent with other restaurants in Jersey City. We looked at it in terms of the value of the cash flow, the location of the restaurant which was near Journal Square which was in a building that was almost completely occupied and also in close proximity to other offices that would attract the type of clientele to this style of restaurant that they were proposing.   We relied on the Sobel projections during the course of the evaluation process.   I consulted with our director of finance, [Eugene Bukowski], and ultimately the project was presented to our board where we determined that the projections that were submitted by the applicant were reasonable.
The loan review document that McKee prepared contains his evaluation and analysis of the loan.   The document indicates that the primary source of repayment of the loan would be Pavonia’s cash flow from operation of the restaurant and that the secondary source would be the guarantors.   In an affidavit, McKee explained exactly how he evaluated the loan.   He stated that he had used projections prepared by Pavonia’s accountant and that based on these projections, which he noted seemed reasonable, he believed that the restaurant could generate sufficient cash flow to repay its debts.   In the affidavit, McKee clarified a comment he had made in the loan review document that “no value” was assigned to the cash flow generating ability of Pavonia or its collateral, explaining that “it was a start-up restaurant with no operational history, and therefore a value simply could not be placed on the [restaurant’s] ability to generate cash flow.”
Lloyd G. Cox, vice-president of the Bank, also testified at depositions and explained the criteria the Bank used in evaluating the loan:
 We looked at this loan and I made the final decision to include it into the composite [bond issue].   We looked at this loan from the standpoint that it was a start-up restaurant, projections were provided that showed that the restaurant could have ample cash flow to repay the indebtedness.   You had a large number of guarantors willing to guarantee the loan.   These were professional, successful businessmen and women, I guess, attorneys, doctors, who lived and worked in this area so we placed reliance that they understood their market, they understood their home town, if you will, and that carried a lot of weight.   We would not have entered into a relationship knowing that there was no chance that the restaurant would have made it and we would have had to collect against the guarantors.
Cox went on to state that, after analyzing the financial statements of the individual guarantors, he was satisfied Pavonia had the ability to repay the loan in the event of a default.   With respect to the high-risk nature of the restaurant business, Cox stated the following:
I wouldn’t have included it if I didn’t think it had much of a chance of making it.   I was relying on the New Jersey EDA having approved the loan and also relying on this group of professionals, successful business people who were willing to guarantee this loan and this venture, that they wouldn’t have done so if they didn’t think it had a likelihood of being successful.
Eugene Bukowski, the managing director of finance for the EDA agreed, testifying in his deposition that the financial projections prepared by Pavonia’s accountant were conservative when compared with industry standards and, that according to the financial projections, it appeared that Pavonia’s expected cash flow would be sufficient to repay the loan.
In granting summary judgment to plaintiffs and denying their motion for reconsideration, Judge Brown concluded that defendants had failed to support with sufficient evidential materials any of the theories they had advanced as defenses to the enforceability of the individual guarantees.   In so doing, the judge observed that a party is not required to disclose information to another unless a fiduciary relationship exists.   He also determined that plaintiffs were “not responsible to advise [defendants] of information that [was] readily available to them on their own.”   The judge found that “entering into a new restaurant arrangement [is] a high risk business, ․ [and] that defendants knew what they were getting into” at the inception of the loan and also when they executed the forbearance agreement.   The judge then denied defendants’ cross-motion to amend their pleadings to allege fraud, breach of good faith, and failure to disclose a material risk, concluding the contentions were “moot based on the Court’s decision on the [summary judgment] motion.”   The judge further stated that:
any of the asserted modifications to the pleadings at this late date are merely an effort to manufacture what might be a defense to hold up the proceeding until such time as there can be further motions made to strike them.   I see nothing in any-any of the papers that were submitted to this court that would legitimately indicate that there was any fraud, breach of good faith, or failure to disclose on the part of the plaintiffs.
In denying defendants’ motion for reconsideration, the judge added:
[T]here does not appear to be anything in the case that in any way suggests any fraud or bad faith on the part of any person in the bank.   The fact that this was a restaurant, an operation which success is generally known to be questionable, also the fact, as I indicated, that the investors ․ are all businessmen ․ they’re not 87 year old widows who are living on what they inherited and want to invest the money․ [T]hese are businessmen who were fully aware of what the obligations were, not only when they entered into the surety agreement, but also when they entered into the forbearance agreement.
On appeal, although defendants raise arguments under numerous separate point headings, the arguments are essentially twofold:  (1) that the evidence presented raised genuine issues of material fact from which inferences could be drawn of plaintiffs’ bad faith, fraud, and breach of duty to disclose;  and (2) that the judge abused his discretion in denying their motion to amend their responsive pleadings under R. 4:9-1.
I.
 “Every fraud in its most general and fundamental conception consists of the obtaining of an undue advantage by means of some act or omission that is unconscientious or a violation of good faith.”   Jewish Ctr. of Sussex County v. Whale, 86 N.J. 619, 624, 432 A.2d 521 (1981).   A plaintiff must establish a claim of fraud by clear and convincing evidence.  Baldasarre v. Butler, 254 N.J.Super. 502, 521, 604 A.2d 112 (App.Div.1992), rev’d in part on other grounds, 132 N.J. 278, 625 A.2d 458 (1993).   Legal fraud consists of five elements:  (1) a material representation by the  defendant of a presently existing or past fact;  (2) knowledge or belief by the defendant of that representation’s falsity;  (3) an intent that the plaintiff rely thereon;  (4) reasonable reliance by the plaintiff on the representation;  and (5) resulting damage to the plaintiff.  Id. at 520, 604 A.2d 112.   Equitable fraud, unlike legal fraud, does not require knowledge of the falsity and an intent to obtain an undue advantage.  Id. at 521, 604 A.2d 112.
 Deliberate suppression of a material fact that should be disclosed is equivalent to a material misrepresentation (i.e., an affirmative false statement).  Strawn v. Canuso, 140 N.J. 43, 62, 657 A.2d 420 (1995).   In other words, “[s]ilence, in the face of a duty to disclose, may be a fraudulent concealment.”  Berman v. Gurwicz, 189 N.J.Super. 89, 93, 458 A.2d 1311 (Ch.Div.1981) (emphasis and citation omitted), aff’d, 189 N.J.Super. 49, 458 A.2d 1289 (App.Div.), certif. denied, 94 N.J. 549, 468 A.2d 197 (1983).   However, the concealed facts “must be facts which if known ․ would have prevented [the obligor] from obligating himself, or which materially increase his responsibility.”  Ramapo Bank v. Bechtel, 224 N.J.Super. 191, 198, 539 A.2d 1276 (App.Div.1988) (internal punctuation and citation omitted).   Nonetheless, a party has no duty to disclose information to another party in a business transaction unless a fiduciary relationship exists between them, unless the transaction itself is fiduciary in nature, or unless one party “expressly reposes a trust and confidence in the other.”   Berman, supra, 189 N.J.Super. at 93-94, 458 A.2d 1311.   Indeed, as a general proposition, creditor-debtor relationships rarely give rise to a fiduciary duty “inasmuch as their respective positions are essentially adversarial.”  Globe Motor Car Co. v. First Fidelity Bank, 273 N.J.Super. 388, 393, 641 A.2d 1136 (Law Div.1993), aff’d, 291 N.J.Super. 428, 677 A.2d 794 (App.Div.), certif. denied, 147 N.J. 263, 686 A.2d 764 (1996).   Further, where information is equally available to both parties, neither party has a duty to disclose that information to the other.  Id. at 395, 641 A.2d 1136.
We have carefully reviewed the entire record, the arguments and factual contentions presented, and prevailing legal principles  and conclude that the motion judge properly determined that the evidence presented by defendants does not create a “genuine issue of material fact” under R. 4:46-2 requiring submission of their claims of fraud or bad faith to a jury.  “[T]he evidence ‘is so one-sided that [plaintiffs] must prevail as a matter of law.’  ” Brill, supra, 142 N.J. at 540, 666 A.2d 146 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 213 (1986)).
 Defendants claim that plaintiffs placed sole reliance on their individual guarantees for repayment of the loan.   As reflected in the factual recitations previously given, the record does not support that assertion.   Rather, it reflects that both plaintiffs and defendants anticipated that the revenues from the restaurant would support repayment of the loan.   The information concerning the anticipated revenues was, in fact, derived from Pavonia’s accountant, Sobel & Company.   Although defendants maintain that the McKee loan review document concluded that “no reliance could be placed on the ‘collateral or cash flow generating ability of the restaurant,’ ” the record clearly belies this assertion.   The record discloses that McKee believed, based on the projections made by Pavonia’s accountant, that the restaurant would generate sufficient cash flow to repay the loan.   As Lloyd Cox, vice-president of the Bank, indicated, the Bank never would have included the loan to Pavonia in the composite bond issue if it did not believe that Pavonia would be successful.   Despite defendants’ attempts to make it appear as though plaintiffs knew Pavonia would be unable to repay the loan and therefore insisted on the guarantees, nothing in the record supports this proposition.   Defendants have not pointed to any evidence that even suggests plaintiffs had information about Pavonia’s ability to repay the loan which defendants did not have.   Indeed, everyone understood that opening a restaurant in a new location was an inherently risky business.   Plaintiffs hoped that the restaurant’s success would comport with the financial projections of Pavonia’s accountant just as defendants did.   The obvious fact is that external factors  impeded Pavonia’s success, factors which were completely unrelated to plaintiffs’ evaluation of the loan agreements.3
In sum, defendants have utterly failed to demonstrate what facts plaintiffs had, but defendants lacked, that materially increased the risk beyond that which plaintiffs knew defendants intended to assume.
Impliedly recognizing that they could not prove their case under these theories, defendants argue that their claims are viable under the principles of law contained in the Restatement of Security:  Suretyship § 124 (1941) (the Restatement ).4  That section provides in relevant part:
Where before [a] surety has undertaken his obligation the creditor knows facts unknown to the surety that materially increase the risk beyond that which the creditor has reason to believe the surety intends to assume, and the creditor also has reason to believe that these facts are unknown to the surety and has a reasonable opportunity to communicate them to the surety, failure of the creditor to notify the surety of such facts is a defense to the surety.
Defendants argue that plaintiffs violated these principles of law by failing to disclose facts to them that materially increased their risk under the guarantees, specifically, that unbeknownst to defendants, plaintiffs were relying on their guarantees as the primary security for repayment of the loan and failed to disclose this fact to them.   They maintain they would not have undertaken the risk if they had known the guarantees were the principal security for the loan.
New Jersey typically gives considerable weight to Restatement views, and has on occasion even adopted those views as the law of this state.  Citibank, N.A. v. Estate of Simpson, 290 N.J.Super. 519, 530, 676 A.2d 172 (App.Div.1996).   Although we find it  unnecessary to formally adopt the Restatement here, we have employed its principles, in part, to evaluate defendants’ claims.
 Section 124 prescribes three conditions precedent to imposing a duty on a creditor to disclose facts it knows about the debtor to the surety:  (1) the creditor must have reason to believe that those facts materially increase the risk beyond that which the surety intends to assume;  (2) the creditor must have reason to believe that the facts are unknown to the surety;  and (3) the creditor must have a reasonable opportunity to notify the surety of such facts.   See, e.g., Sumitomo Bank of Cal. v. Iwasaki, 70 Cal.2d 81, 73 Cal.Rptr. 564, 447 P.2d 956, 963 (1968).
 However, the comments to Section 124 of the Restatement explain that:
[this rule] does not place any burden on the creditor to investigate for the surety’s benefit.   It does not require the creditor to take any unusual steps to assure himself that the surety is acquainted with facts which he may assume are known to both of them.
****
Every surety by the nature of his obligation undertakes risks which are the inevitable concomitants of the transactions involved.   Circumstances of the transactions vary the risks which will be regarded as normal and contemplated by the surety.
[Restatement of Security:  Suretyship § 124 cmt. b (1941) ].
For the reasons previously stated in our rejection of defendants’ claims of fraud and bad faith, we are satisfied that defendants failed to raise any factual issue applying the principles derived from the Restatement.   Suffice it so say, plaintiffs were not in possession of any facts that defendants were not aware of;  both parties hoped the restaurant would generate sufficient cash flow to repay the loan.   Regrettably, it did not.
Defendants’ reliance on out-of-state cases are equally unavailing. All of the cases involve facts that are clearly distinguishable from those in the instant case.   See Morris v. Columbia Nat’l Bank of Chicago, 79 B.R. 777, 785-86 (N.D.Ill.1987) (observing that creditor may have acted in bad faith in allowing debtor to engage in a transaction favorable to the creditor but adverse to  the surety, when creditor knew debtor was having financial problems);  Camp v. First Fin. Fed. Sav. & Loan Ass’n, 299 Ark. 455, 772 S.W.2d 602, 604-05 (1989) (holding that failure to disclose to surety that interest on loan to debtor was delinquent and that lender was making secret side loans to debtor discharged liability of surety);  Georgia Pacific Corp. v. Levitz, 149 Ariz. 120, 716 P.2d 1057, 1059 (1986) (holding that guarantor was discharged from liability on a continuing guarantee where creditor knew guarantor was unaware of debtor’s insolvency but continued to extend credit to debtor, thereby materially increasing the guarantor’s risk beyond that which guarantor intended to assume);  Sumitomo Bank of Cal. v. Iwasaki, supra, 73 Cal.Rptr. 564, 447 P.2d at 966-67 (holding same);  McHenry State Bank v. Y & A Trucking, Inc., 117 Ill.App.3d 629, 73 Ill.Dec. 485, 454 N.E.2d 345, 349 (1983) (concluding that a creditor’s release of collateral without the consent of the guarantor will discharge the guarantor of his obligations);  Maine Nat’l Bank v. Fontaine, 456 A.2d 1273, 1275-76 (Me.1983) (reversing jury verdict on judge’s erroneous refusal to charge jury that creditor had duty to disclose to an accommodation party that it had terminated efforts on behalf of debtor to obtain a Small Business Association loan, and holding that jury could have determined that circumstance materially increased risk beyond that which accommodation party had agreed to take);  Security Bank, N.A. v. Mudd, 215 Mont. 242, 696 P.2d 458, 460-61 (1985) (holding that creditor’s failure to disclose its decision not to apply collateral to reduce debtor’s loan discharged guarantor);  see also Ramapo Bank v. Bechtel, supra, 224 N.J.Super. at 199, 539 A.2d 1276 (reversing summary judgment and remanding to trial court to consider whether concealed pre-loan side agreement by bank not to pursue a co-guarantor in event debtor defaulted in repaying loan constitutes fraud).
 Finally, aside from the merits of the instant case, there is an additional reason why summary judgment was properly granted.   The record clearly reflects that defendants waived their claims and defenses relating to the loan when they entered into  the forbearance agreement.   See Cedar Ridge Trailer Sales, Inc. v. National Community Bank, 312 N.J.Super. 51, 62-65, 711 A.2d 338 (App.Div.1998).   Their assertion that the waiver is unenforceable because they lacked knowledge of plaintiff’s alleged “fraud” until they conducted discovery is unavailing in view of the absence of any evidence of “fraud,” as we previously noted.
II.
 We also reject defendants’ claim that the court abused its discretion in denying their motion to file an amended responsive pleading.   The judge did not abuse his discretion when he noted that any “modifications to the pleadings at this late date [were] merely an effort to manufacture what might be a defense to hold up the proceeding until such time as there can be further motions made to strike them.”   See Stuchin v. Kasirer, 237 N.J.Super. 604, 609, 568 A.2d 907 (App.Div.) (holding that since the “showing of fraud was marginal at best, and the amendment would only have protracted [the] litigation,” there was no abuse of judicial discretion in denying the amendment), certif. denied, 121 N.J. 660, 583 A.2d 346 (1990).   While we recognize that such amendments should be “freely given in the interest of justice,” R. 4:9-1, we perceive no abuse of discretion by the motion judge in determining to disallow the filing of an amended pleading to assert these new theories where they could not be supported on this record.
Accordingly, we affirm the summary judgment entered in favor of plaintiffs on their complaint.
FOOTNOTES
1.  For convenience and ease of reference, we use the term “defendants” to refer interchangeably to all of the individual guarantors and the defendants-appellants even though not all of the guarantors have participated in this appeal.Although a notice of appeal was filed on behalf of K. Joseph Vyzas, Samuel E. Difeo, Joseph C. Difeo, Eleanor Hartnett, and H. Clay Irving, III, these guarantors did not file a brief.   Consequently, we consider the appeal dismissed as to them.Defendant Ernesto A. Tolentino filed a separate notice of appeal and a separate appendix, and he apparently has joined in defendants-appellants’ brief.   Accordingly, his appeal is considered perfected.The guarantors James A. McLaughlin, Jr., Paul S. Freeman, Manmohan Patel, William H. Constad, Donald Cinotti, and Vincas M. Vyzas, did not file a notice of appeal.
2.  The forbearance agreement also states:[Defendants] have no set-offs, defenses or counterclaims against [plaintiffs] with respect to the Indebtedness, and ․ are indebted to the Secured Parties for the amounts recited in this Agreement.
3.  We note that although Pavonia was unsuccessful in establishing a viable restaurant business, its successor, Laico’s of Journal Square, has not been.
4.  Section 124 of the Restatement was revised in 1996.   See Restatement (Third) of Suretyship and Guaranty § 12 (1996).   However, there were no substantive changes to the section that affect this decision.
 EICHEN, J.A.D.

Here are some emails that I received from Michael Galdieri in 2012:

If you are asking who  I think wrote ‘we the people” letter.  I think it might have been Jack Hill.  I remember telling him when they first grabbed me out side my apt, that what ever you find up there belongs to me.   The 3 people inside my apt were 3 friends.  One in medical school, another just off probation and another an older gentleman just helping me out.  Jack Hill said to me at the time, you dont have to take the heat for what;s not yours, and what I was doing was ‘stand up” and they should thank you for it.

As far as election records and SS#, I will say probably not, but I will look through my records.  I dont want to say yes and be unable to provide any documents.
On Sat, Oct 27, 2012 at 2:30 PM, Anthony Olszewski wrote:
The arrest was after 1996?  Can you supply copies of the election reports with the names and SS#s?  Who do you think wrote the letter?
 
Anthony Olszewski
 
# # #

Anthony,

I was arrested on April 21, 2005, my first attorney had information I assumed he would act on, but he did not.  My second attorney talked me into accepting the plea, he assured me I would receive probation.  A week before my first scheduled sentencing February 23, 2007 I received a call from pre sentencing to do an interview for a presentencing report.  This interview conducted by phone was cut short when the caller said ” you are not a career criminal, will you come to the courthouse?”  When I arrived at the court house I showed the person the paperwork my second attorney gave me.  It was at that moment I learned I did not have all of the paperwork and what my attorney told me was not in fact true.  I would not be getting probation!  I told the person if thats the case then I plan on withdrawing my plea.  I then asked were any motions filed on my behalf.  To my surprise and disgust the only motion filed was a motion filed by the prosecution to revoke my bail the day after my sentencing!.    

Once again I was misled by my attorney,   Misled so much so that when I went to his office that day and confronted him about not filing motions and misleading me, he gave me back $6,500.00 of the money I paid him.  This of course was accompanied by a letter he hand wrote stating this did not amount to malpractice.

I scrambled to obtain another attorney.  I went to my sentencing the next week without an attorney.  My second attorney did not show up.  I told judge Callahan I wanted to withdraw my plea and should have an attorney asap.

My 3rd attorney told me how my 2nd attorney pled me to a second degree charge without ever requesting a true weight of the substance and how it was only 2nd degree by 2.16 grams.  He decided to base my guilty plea withdrawal on that fact.   At first I said no way.  I dont even do coke.  I wanted to base my withdrawal on ineffective assistance of counsel.  He said his way was easier.  He said you would ‘ve done 2 grams right Michael.  I followed my attorney’s lead.  

You might think it was foolish to trust an attorney, but you probably didn’t know my father.  My father was not your typical attorney.  My father was a straight shooter who would never mislead a client.  He explored every angle for his clients.  For 30+ years I watched him work that way.  I never in a million years would’ve thought my lawyer would not do everything he could for me.  I found out my father was one in a million.  

That’s how I resolve what I said when appealing to withdraw my guilty plea.  This was not stated at the time I accepted the plea.  The plea was orchestrated by my second attorney and the prosecution.

I trusted 3 attorney’s that did the least amount of work as possible.  3 attorney’s who did NOT represent me to the best of their abilities.  

I’ll end this email with this.  3 weeks before my arrest I spoke at a debate at the Lowes Theatre.  I stated that I along with the MUA Director uncovered a scam where a systematic diversion of Jersey City’s water had been ongoing.  I said i would have a press conference in 2 weeks to name the town(s) and the elected officials who set this scam up.  
On Sat, Oct 27, 2012 at 2:40 PM, Anthony Olszewski wrote:
 People expressing opinions at GETNJ is not the only thing delivered by Google:
http://law.justia.com/cases/new-jersey/appellate-division-unpublished/2008/a5245-06-opn.html
“…
He also claimed, despite his admission at the time of the plea, that he intended to use some of the 16.16 grams himself and to distribute only a portion of the cocaine that weighed less than the amount required for conviction of a crime of the second degree.”
…”
# # #
How does one resolve the above with this?
“…
My drug issue stemmed from an accident after which I was prescribed pain killers that unfortunately took on a life of its own and became an issue.  However, my medical records will reflect along with countless drug tests that I have not used since January 26, 1996.”
…”
# # #
 
 
On 10/27/12, Michael Noone wrote:
 
(1) From Author “Press Release”
“The true culprits of the crimes alleged were the persons who happened to be visiting Michael Galdieri at the time   of the raid on his home”   
The only facts contained in the post titled “Press Release” is: 
I was a candidate for council.  
I was an aide to Lou Manzo.
The rest of the post is all conjecture on the part of the poster

(2) “JC Insider”
” taking election money for challengers and never paying them, submittting false names of people who worked, his has numerous alco*** and Dru*** issues , among other issues,”
Anyone who contributed to an election and had their name submitted by me to be paid, was paid.  I never submitted a false name and had a check issued.  Every individual who submitted their SS# was issued a check in total compliance with NJ Election Laws.  I’ve never had a problem with alcohol.  My drug issue stemmed from an accident after which I was prescribed pain killers that unfortunately took on a life of its own and became an issue.  However, my medical records will reflect along with countless drug tests that I have not used since January 26, 1996.   

(3) “Guest”

The only person who wrote this letter was mike himself.Go to Rehab mike and get some f____ sleep.

I did not write the letter.

(4) “Endorsement”
“Mikey THE DOPE ENDORSES SOAP ON A ROPE”
I’ve never owned soap on a rope, never saw it as a viable alternative to a bar of soap.  Plus I’m told soap on a rope is a republican thing.

(5) “Election Worker”

“you can begin with the schundler elections, manzo ‘s , lipski ‘ etc mike we the real challengers know what went on,”
I did not have anything to do with anyone getting paid in a Schundler Election.  Manzo election I was not the point person to pay anyone.  Every challenger election worker that legitimately worked and had their name submitted along with their SS# was paid.  There was not one worker not paid.

On Sat, Oct 27, 2012 at 1:18 PM, Anthony Olszewski wrote:
What part  is true and what is false?
 
Anthony Olszewski
 
 
On 10/27/12, Michael Noone wrote:
 
Hi Anthony,

I’ve recently noticed that a series of posts about me have all of a sudden shown as results I’m assuming when one searches my name.  In particularly is the series from the URL listed below.  A majority of what is posted as facts are not facts at all.  The posts from whomever wrote the one about the prosecutor despite much being factual its still conjecture on the part of the poster.  Each subsequent post contains more of the same as well as out right lies.  I would be most appreciative if the posts were deleted.

http://ontheerie.com/upper/viewtopic.php?p=4906&sid=e761b4e685830850cf5daf80c23e83b1

Thank you,

Michael Galdieri

Back around ’99 or so, when I was working in City Hall, I happened to be in the City Clerk’s office one day. I was up front in the public reception area talking to a slight older woman on the other side of the counter. Two women entered. One was petite and conventionally very pretty. She was smiling. Accompanying her was another woman, quite a bit taller than my 5’ 10”. This gal exuded an aura of sinewy strength –- and was not smiling. She pushed past me –- literally -– and addressed the City Clerk’s Office employee that I’d been speaking with.

“WE WANT TO GET MARRIED!”

“Uh . . . One moment please.” She then walked quickly to the back.

Robert Byrne, City Clerk for Jersey City – all 6’ 2” and 240 lbs of him — approached the front desk. By the expression on her face, the tall woman seemed surprised to be greeted by someone much larger than herself.

“Hello. I’m Robert Byrne, City Clerk of the City of Jersey City. As City Clerk of the City of Jersey City, I’m denying your request. This is not a personal decision on my part. As City Clerk, I must act in accordance with the laws of the State of New Jersey and the law clearly states that marriage is between a man and a woman. Do you have to accept this? No. You can write your elected representatives and demand that they change the law. When that happens, I’ll gladly accept your application.”

Robert Byrne handed the couple a 8.5” X 11” sheet of paper listing the local elected representatives and their contact information. The women took that, thanked Robert Byrne and left.

Back in 2003, some sore losers tried to overturn the election of then Jersey City Mayor Glenn Cunningham to the State Senate. One of the votes called into question was that cast by one Fr. Anthony Azzarto, S.J. — a teacher at St. Peter’s Prep High School. The media found the action ridiculous and the courts ultimately agreed.

UNCLE HARVEY LOSES SAME ELECTION TWICE-COURT KICKS HARVEY’S CASE OUT OF ELECTION CHALLENGE

By David Friedland

In 1965, a young man (Tommy D) asked for my help as a lawyer. He was a teamster driver and had just been arrested (the second time) for robbing a Federal Bank of $2500. In the first robbery, he parked his car in the delivery area of the Bank, went in without a mask armed with a toy gun, collected some money, and was arrested by a cop who was writing a ticket on his car and nabbed him on the spot. Tommy was appointed a public defender and entered a plea of guilty. He had 7 children and his wife died giving birth to his young daughter. He lost his job, was desperate and robbed the bank. He was released on bail. Several weeks later another Bank was robbed, two blocks from the first, and the teller positively identified Tommy as the culprit.

I told him I would defend him for $500, and since he had no money, I told him he could pay me when he had the money.

I tried his case before a jury in the US District Courthouse in Trenton, the same courthouse that I was sentenced in. The Jury found him innocent after deliberating for about an hour. The Judge called me into his chambers. He said “I have never seen a performance like yours in my thirty years on the bench. You do know that your client was guilty , do you not.” I said: “Judge, I thought he was innocent until the very moment the jury found him innocent, and then I knew that he was guilty”. The Judge smiled and told me “Get the f—ck out of my office.”

I did not hear from Tommy after that for many years. He never paid me, nor did I ask him for the money.

In 1986, after they captured me , they held me at the MCC NY in maximum security (after all I was a dangerous desperado). My lawyer called me one day and asked me if I knew a Tommy D. I said no. I had completely forgotten who he was. My lawyer said “You tried a bank robbery case for him years ago.”

I remembered and said “Yes. I remember Tommy now, how is he?”

My lawyer Brian Shaughnessy said “ He just sent me $10,000 for your criminal defense”

Convicted of plotting to kill John Gotti, Hudson County Mob Boss Bobby Manna allegedly planned to murder United States Attorney Samuel A. Alito, Assistant United States Attorney Michael Chertoff, and (Donald Trump’s sister) Judge Barry.

“. . . an FBI report . . . purportedly establishes that the FBI was apprised by some informant that Manna was involved in a plot to murder: the trial judge, Maryanne Trump Barry; and the United States Attorney, Samuel A. Alito; and the chief prosecutor, Michael Chertoff . . .”

United States v. Manna
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
October 25, 2006
UNITED STATES OF AMERICA PLAINTIFF,
v.
LOUIS ANTHONY MANNA DEFENDANT.

Mr. Louis Anthony Manna #09211-050 Fci Fairton P.O. Box 420 Fairton, New Jersey 08320 Pro Se

Christopher J. Christie United States Attorney 970 Broad Street Newark, New Jersey 07102 By: Joseph Gribko Assistant U.S. Attorney

The opinion of the court was delivered by: Debevoise, Senior District Judge

NOT FOR PUBLICATION

OPINION

In this extensively litigated case Petitioner, Louis Anthony Manna, moves i) to disqualify the United States Attorney’s Office of Newark, New Jersey, ii) for relief pursuant to Fed. R. Civ. P. 60(b)(6) from the June 29, 1998 judgment of the Honorable Maryanne Trump Barry denying Petitioner’s petition for a writ of habeas corpus, and iii) for leave to file additional materials. The motion for leave to file additional materials will be granted, and the additional materials will be considered in connection with the other motions.

I. Background

In 1989 a jury found Petitioner guilty, among other things, of RICO offenses involving predicate violations of the Hobbs Act (extortion) and the Taft-Hartley Act (bribery), organized gambling and three separate murders relating to the affairs of the Genovese Crime Family. The convictions for conspiracy to murder in aid of racketeering involved the planned murder of John and Gene Gotti, high-ranking members of the Gambino organized crime family, and Irwin Schiff in August 1987. On September 26, 1989 Judge Barry sentenced then sixty year old Petitioner to eighty years imprisonment.

The Court of Appeals affirmed Petitioner’s conviction without opinion. United States v. Manna, 919 F. 2d 733 (3d Cir. 1990) (table). The United States Supreme Court denied Petitioner’s petition for certiorari, Manna v. United States, 499 U.S. 949 (1991).

On April 21, 1997 Petitioner filed a petition for a writ of habeas corpus. The petitioner’s principal claim was ineffective assistance of Petitioner’s trial counsel, Raymond A. Brown, Esq. Subsidiary claims were misconduct by the police and/or the prosecution, including Brady violations. In a January 29, 1998 opinion, Judge Barry carefully analyzed and rejected the claims of ineffective assistance of counsel. She found the claims of prosecutorial misconduct unpersuasive and after consideration rejected them. The court dismissed the petition. Petitioner moved for reconsideration. He also filed a notice of appeal and applied for a certificate of appealability. Prior to that time, through a series of Freedom of Information Act (“FOIA”) document requests and lawsuits, Petitioner had obtained a vast quantity of documents, and he continued thereafter to obtain additional documents through such means. While the motion for reconsideration was pending, on three occasions (March 5, 1998, March 20, 1998, and July 23, 1998), Petitioner submitted and requested the court to review “hundreds upon hundreds of pages of various memoranda, declarations, and exhibits submitted by petitioner” (August 3, 1999 opinion of Judge Barry at p. 3).

The first wave of documents and memoranda, submitted on March 5, 1998, purported to demonstrate “a further Brady violation and withholding of material information on the government’s part” and one document purportedly showed “both a withholding of critical information concerning witness Vivian Lewis and her identification of DeSciscio as a participant in the Schiff murder, and the joint participation of the New York City police with the Newark and New York FBI” (Id. at 4). Petitioner sought to strengthen his thesis with the documents submitted on March 20, 1998. Judge Barry dealt with these contentions and also with contentions based on other documents dealing with, among other things, the government’s handling of potential witnesses Tom Smith, Dennis Roman and Joe Petrizzo. She found no basis for Petitioner’s claims.

Petitioner’s July 23, 1998 submission consisted of a forty-seven page declaration in further support of the motion for reconsideration attached to which were hundreds of pages, (in three volumes, each several inches thick), containing all kinds of materials, including the “entire array” of documents Petitioner received pursuant to his FOIA request concerning Schiff.*fn1 Judge Barry accepted this material for its arguable relevance to the Brady claim raised in the petition.

Judge Barry reviewed Petitioner’s contentions. She considered once again his claim that Special Agent Mullaney had falsely stated that a photograph or photo spread of DeSciscio had not been shown to Ms. Lewis and his claim that the government had falsely denied that information Detective Remo Franceschini had given to the New York City Police Department had not been shared with the government. Judge Barry once again found these claims to be baseless.

The mammoth July 23 submission raised two principal new claims. The first concerned an FBI investigation beginning in 1987 into approximately nine unsolved murders committed between 1977 and 1987 and their connection, if any, to the Genovese Family hierarchy and Vincent “Chin” Gigante. The FBI concluded that there was insufficient evidence that these murders were interrelated or ordered by the Genovese Family. Judge Barry found that these murders were not relevant to Petitioner’s case and that there was no Brady violation for not turning over 302 forms concerning their investigation.

The other principal claim raised in the July 23 submission constituted Petitioner’s contention that one or more New York FBI agents who listened to the August 1987 tapes, and importantly the August 5 1987 tape, failed to identify the speakers. This, Petitioner claimed, was information that should have been turned over to the defense. Judge Barry rejected this contention because no one who reviewed the tapes “was even remotely” familiar with any of the voices thereon, including the voice of the Petitioner. Judge Barry proceeded to analyze carefully why the 302s upon which Petitioner relied were not Brady material.

After completing her extensive review of the arguments and mountains of material that Petitioner submitted to her, Judge Barry concluded that he had not established that she erred in January, 1998 when she held that Petitioner had failed to demonstrate ineffectiveness of his trial counsel or Brady violations. She denied the motion for reconsideration on August 3, 1999.

On February 19, 1998 Petitioner had filed a notice of appeal and applied for a certificate of appealability. On March 2, 1998, the Court of Appeals stayed Petitioner’s application and appeal pending disposition of the motion for reconsideration. After denial of the motion for reconsideration, the Court of Appeals on October 31, 2000 denied Petitioner’s motion for a certificate of appealability. The Supreme Court denied Petitioner’s petition for certiorari, Manna v. United States, 532, U.S. 1009 (2001). Petitioner continued to make FOIA requests and continued to receive documents in response thereto. According to his petition, on August 16, 2002 Petitioner received documentation establishing that after he had been convicted but before he was sentenced the FBI had received information (which was communicated to Judge Barry) that the Judge and United States Attorney Samuel A. Alito and Assistant United States Attorney Michael Chertoff were the subject of death threats from Petitioner. This information was not disclosed to defense counsel.

The information as received by Petitioner consisted of a serious of highly redacted copies of memoranda included as Exhibit 2 of Volume 1 of his Appendix in Support of Motion for Relief from Judgment. A July ’89 memorandum from FBI New York to Director FBI/Priority and FBI Newark/Priority read in part:

Subject: Martin Casella; Frank Daniello; Richard DeSciscio; Louis Anthony Manna; AKA Bobby Manna [redacted] AKA; [redacted] USDC Judge Maryanne Trump Barry; USA Samuel A. Alito; AUSA Michael Chertoff – Victims; AFO conspiracy; OU:NK.

Renktel to Director, dated July 14, 1989.

On July 19, 1989 [redacted] Metropolitan Correctional Center, New York City, New York advised that Louis Anthony Manna, Inmate Number 092111-050 has been visited by [redacted] . . .

[redacted] Advised no records are kept of destination for outgoing mail or origin of incoming mail. Further [redacted] records indicate AUSA/NK has subpoenaed visitors list for the month of June. [redacted] added that the type of subjects in captioned matter most often pass messages outside jail through attorneys.

A memorandum, the date of which is undecipherable, from ADIC New York to SAC Newark recited that its subject matter was Louis Anthony Manna and other inmates and USDJ Maryanne Trump Barry – victim; USA Samuel A. Alito – victim; AUSA Michael Chertoff -victim. It referenced “AFD; Conspiracy” and recited that on July 25, 1989 the Federal Correction Institute at Otisville, New York made available correspondence and visitors lists regarding the subject inmates.

There are other memoranda concerning the investigation of the conspiracy referred to in the previously mentioned memoranda suggesting continued investigation by the FBI. The final document in Petitioner’s Exhibit 2 consists of pages ten, eleven and twelve of a larger document and this segment is entitled “Threat Assessment: Traditional Organized Crime.” It includes the following:

Louis Anthony Manna is alleged to be and, in fact, was convicted on 6/26/89 of controlling a particularly violent faction of the Genovese LCN. The trial of Manna, et al, was an intensive effort by AUSA, Mike Chertoff and it is certainly conceivable that Manna would hold Chertoff singularly responsible for the convictions. Likewise, Judge Maryanne Trump Barry’s courtroom presence could be perceived by Manna to have been a detriment to his defense strategy.

At this point, no available information exists to make an informed judgment as to Manna’s continued stature within the Genovese LCN and it therefore must be assumed that he continues to maintain a position within the herearchy (sic) of the Family. Manna’s reputation and evidence presented at his trial indicate that he is more than capable of ordering the execution of others. Manna’s conviction for plotting the execution of both John and Gene Gotti is basis to belive (sic) that he is capable of ordering the execution of a U.S. District Court Judge or Assistant U.S. Attorney.

Mana’s (sic) incarceration should not be viewed as a barrier to any continued control he may have over other Genevose members or associates . . . Additionally, other members of Manna’s organization capable of commission of violent acts, continue to be under the control of Manna. Newark has made appropriate notifications to USMS, Newark, Captioned victims, and Chief USDC Judge Newark.

On September 4, 2003, Petitioner filed a motion which he characterized as a “Motion for Discovery In Connection With Proceeding Pursuant to 28 U.S.C. § 2255”. Because Judge Barry had been appointed to the Court of Appeals, the motion was assigned to the Honorable William J. Martini. In his June 29, 2004 opinion, Judge Martini described Petitioner’s ground for relief as follows:

Although it is not clear how or when he came by it, an FBI report – now an exhibit to the instant motion – purportedly establishes that the FBI was apprised by some informant that Manna was involved in a plot to murder: the trial judge, Maryanne Trump Barry; and the United States Attorney, Samuel A. Alito; and the chief prosecutor, Michael Chertoff – all three of which [sic] are now Third Circuit judges. Furthermore, this FBI report was apparently communicated to Judge Barry after conviction, but prior to his sentencing. Manna argues that upon receipt of this information Judge Barry had a statutory duty to communicate this information to Defendant’s counsel and to recuse herself. Manna’s instant motion seeks discovery against the Government to further develop these materials. He argues that were a proper foundation developed, the Court would have cause to vacate the prior habeas petition and/or vacate the prior sentence – ostensibly imposed by a biased judge.

(June 29, 2004 Opinion at 2, 3).

In that case Petitioner argued that his motion to compel discovery was ancillary to the original habeas petition, not a successive petition. The government, on the other hand characterized the motion as a new or successive habeas petition – and, therefore, beyond the jurisdiction of the district court absent certification from the Court of Appeals. Thus the court observed that the first issue to be determined was one of characterization. “Is this motion substantively a motion to hear a new habeas petition – leaving the Court with no jurisdictional basis to hear the action? Or, is the relief sought ancillary to the prior, but otherwise concluded, habeas petition first filed in 1997?” Id. at 3. The court addressed these questions in the context of the “unusual constellation of facts – alleged bias of the trial judge caused by facts brought to her attention by the Government ex parte between the time of Defendant’s conviction and sentencing.” Id.

The court rejected Petitioner’s contention that the proceeding was not a new, second, or successive proceeding but, rather a continuation of his original habeas action, stating:

Moreover, this action is not in any meaningful sense ancillary to the first filed, but now concluded habeas petition. Petitioner seeks through discovery evidence that Judge Barry may have been biased (or, more properly, may have appeared to have been biased) during prior proceedings. But the prior habeas petition did not seek such relief, i.e., he removal of Judge Barry, nor would the information Petitioner now attempts to elicit have aided Petitioner in developing the claims made in the prior petition. Petitioner is not seeking to use discovery to vindicate claims made in his first petition. Here the claim is new: appearance of or actual judicial bias. And here the relief sought is new: vacation of the prior habeas petition. Thus the substance of the motion is that it is part and parcel of a new habeas petition, seeking, inter alia, the vacation of the prior habeas action on a theory of judicial bias – actual or apparent.

Id. at 5.

Addressing the government’s contention that the petition was a second or successive petition, leaving the Court without jurisdiction absent Court of Appeals certification, the court held:

Although the Court agrees in part with the Government characterization, in that this action is not ancillary to the prior habeas action, the Court does not believe that this action must be construed as a second or successive motion as a matter of Third Circuit law . . . Here the facts alleged in support of the claim made of judicial bias, the relief sought directly in the motion (discovery), and the ultimate relief sought (vacatur of the prior habeas) are all new claims, not made in the prior habeas. In these circumstances, where none of the claims are repetitious with claims made in the prior petition, there may be no abuse of the writ. Absent abuse of the writ, Petitioner Manna’s motion for discovery might be characterized as a first petition, not a second or successive petition. Id. at 6.

Apparently the parties and the court did not address the question whether the discovery Petitioner sought was a prelude to a Rule 60(b) motion attacking the validity of the judgment that Judge Barry rendered on Petitioner’s original habeas motion. On June 29, 2004 the court denied Petitioner’s motion on the ground that it was barred by the 1-year limitation period imposed by 28 U.S.C. §2255(4). The information upon which he based his motion was discovered more than one year prior to the date when he filed the motion. Petitioner moved for reargument, and on October 4, 2004 Judge Martini denied the motion for the reasons set forth in the June 29, 2004 opinion.

Petitioner sought to appeal, and on April 20, 2005 the Court of Appeals denied his application for a certificate of appealability. Its order read:

The foregoing request for a certificate of appealability is denied. A certificate of appealability may issue only on a substantial showing of the denial of a constitutional right. 28 U.S.C. §2253(c)(2). We can deny a certificate of appealability on any ground with support on the record. See Szuchon v. Lehman, 273 F.3d 299, 318 n.8 (3d Cir. 2001). Because Appellant’s motion to compel discovery anticipated an attack on “the manner in which the earlier habeas judgment was procured” it implicated Fed. R. Civ. P. 60(b)(6). Claims brought pursuant to Rule 60(b)(6) must be made within a “reasonable time.” Appellant’s claim, filed over thirteen months after the alleged judicial impropriety was discovered, was not brought within a reasonable period of time. Cf. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 (1988) (regarding the timeliness of recusal motions in closed litigation).

On August 16, 2005 Petitioner filed the instant motion.

II. Pending Motions

A. Motion to Disqualify United States Attorney’s Office

Petitioner’s first motion is to disqualify the entire United States Attorney’s Office of Newark, New Jersey (presumably including in the scope of the motion the United States Attorney’s branches in Trenton and Camden). By way of background Petitioner refers to the allegations contained in his parallel motion for relief pursuant to Fed. R. Civ. P. 60(b)(6) in which he charges in great detail that in his trial and on his motions there existed “a system employed by the ‘U.S. Attorney’ that cast the entire proceedings into doubt, and suspicion of foul play. It has been shown that the ‘U.S. Attorney’ has suborned perjury, elicited false testimony, produced erroneous material to numerous Courts and violated the ethics and basic principles of upholding the sanctity of the United States Constitution.” (Motion at 3). More of the details of Petitioner’s allegations will be set forth in the description of his Rule 60(b)(6) motion.

Petitioner suggests that the personnel of the United States Attorney’s Office will be called as witnesses as part of his proof that “the ‘U.S. Attorney’ and a Federal Judge cooperated in a conspiracy to deprive an American citizen of his Constitutional right to Due Process of Law.” (Id. at 5). And further, “[t]he nature of the reality highlighted by Mr. Manna involves three Appellate Court Judges and an entire U.S. Attorney Office, concealing crucial discovery material during a trial, appellate review, habeas proceedings and now numerous FOIA litigation. This concealment yielded an 80-year prison sentence. Furthermore, with the evidence now divulged (albeit only partly) it is also shown that this systematic concealment and suppression by the ‘U.S. Attorney’ was a deliberate and calculated tactic employed by the ‘U.S. Attorney’ to systematically hinder Mr. Manna from proving his innocence.” (Id. at 7).

Petitioner contends that these same tactics continued when he brought the “threat factor” before Judge Martini and that the entire U.S. Attorney’s Office is representing the interests of the past and present attorneys employed by that office and no longer its client, the public. Thus, according to Petitioner, there exists a fatal conflict of interest requiring disqualification of the entire United States Attorney’s Office.

B. Rule 60(b)(6) Motion

The basis of Petitioner’s Rule 60(b)(6) motion is the discovery that he describes as follows:

On August 16, 2002, a “FOIA” request was forwarded to Mr. Manna at F.C.I. FAIRTON, through the F.C.I. FAIRTON Legal Mail Division. The materials sent through that package contained a 14 page priority “FBI” report containing material evidencing the fact that the Chief Judge John J. Gerry (who is now deceased), District Court Judge Maryanne Trump Barry and United States Attorneys Samuel A. Alito and Michael Chertoff (who are all presently Third Circuit Appellate Judges) were notified of an alleged threat to harm/kill the Judicial and Prosecution team involved in the USA v. Manna trial.

Rule 60(b)(6) Motion at p. 4.

Petitioner alleges that “Judge Barry proceeded through trial, sentencing and Mr. Manna’s Title 28 U.S.C. §2255 habeas corpus proceedings, denying petition 1/29/98 and consideration for rehearing 09/04/99 without telling Mr. Manna of the alleged threat or the Judge’s knowledge of it” (Id. at 5). He states that “Judge Barry was notified during Mr. Manna’s trial by the government, namely; The United States Attorney’s Office for Newark New Jersey and their FBI Agents . . . of an alleged threat on her life.” (Id. at 7). As a result of this threat, which was not communicated to the defendants or their attorneys Judge Barry was, according to Petitioner, biased against him throughout the trial and subsequent proceedings.

Petitioner recites a number of rulings during the trial which he asserts were wrong and evidence this bias. Judge Barry dealt specifically with a number of these claims in her January 29, 1998 and August 3, 1999 opinions, such as the alleged falsehoods of Special FBI Agent Mullaney; in general the failure to turn over the contents of eight boxes containing 302 forms, which Petitioner contends included important Brady material; and failure to correct misidentification of persons who were tape recorded, and specifically the persons meeting in Casella’s restaurant in August 1987.

Much of Petitioner’s fifty-seven page Rule 60(b)(6) motion memorandum is a regurgitation of the arguments made before Judge Barry and with which Judge Barry dealt in January 1998. In the first wave of the habeas proceeding Petitioner relied primarily upon his ineffective assistance of counsel argument, with some reliance upon asserted Brady violations. In the motion for reconsideration phase before Jude Barry Petitioner relied primarily upon prosecutorial misconduct and massive Brady violations. In the proceeding before Judge Martini Petitioner advanced the claim that because a death threat by Petitioner had been communicated to her, Judge Barry’s rulings throughout the trial had been infected by bias.

In the present proceeding the claim of bias first advanced before Judge Martini is again asserted, and it is backed up by all the evidence previously submitted to support Petitioner’s earlier grounds for relief. The adverse rulings and the alleged prosecutorial misconduct previously relied upon are asserted to be the result of bias and evidence of a conspiracy between Judge Barry and the prosecution

Petitioner has moved for leave to file additional materials. He asserts that he discovered this material during May, 2006.

Exhibit 1 that Petitioner seeks to introduce into the record is the May 17, 2006 trial testimony of Peter Caporino in the case of United States v. Michael Crincoli, Docket No. 2:05-Cr.- 6079 WJM. Caporino testified that during the course of his cooperation with the government he had a handler, one Steven Foster, with whom he became pretty good friends. During his cooperation he committed certain crimes but did not ask the FBI for assistance in connection with them. His testimony included the following:

Q: Well, you told the FBI about people that were your competition, didn’t you?

A: No, not the competition, no.

Q: No?

A: No, I don’t think so. Whatever they asked me about . . . it was mostly about what we’re discussing here.

Q: Oh.

A: Marty Casella and what was going on there. Bobby.

Q: Bobby Manna?

A: [No verbal response].

Q: Did you have anything to do with Bobby Manna’s prosecution?

A: Yeah, I guess I did, yes.

Q: Oh. And was he your friend.

A: No.

Exhibit 2 that Petitioner seeks to introduce into the record is a transcript of a portion of the cross examination of Special Agent Foster in the Manna trial, in which he had testified that he believed that the individual shown in a photograph was the brother of John Derrico and that the basis of his belief was a confidential informant had looked at the photograph and thought he was John Derrico’s brother.

The purpose of Exhibit 1 is to show that “an informant by the name of Peter Caporino revealed that he was integral to the Manna prosecution. This fact was never divulged to Mr. Manna or any defense attorneys.” (Request to File Additional Materials at p. 16). Apparently Exhibit 2 is offered for Attorney David Ruhnke’s argument to Judge Barry when Special Agent Foster was not required to identify the confidential informant: “If it’s a potential witness in this case we have a right to know [his identity], because it may be a witness who’s on record as providing inaccurate information to the Government.”

These two exhibits will be admitted into the record.

III. Discussion

A. Disqualification Motion

Petitioner’s proposition that the entire United States Attorney’s Office in New Jersey has joined three of its prior members (present Court of Appeals Judge Barry, present Supreme Court Justice Alito and present Secretary of Homeland Security Chertoff) to form a conspiracy to convict, and then prevent the exoneration of, Petitioner is preposterous and certainly is not supported by any evidence that Petitioner has submitted. The most that he can argue is that errors were made during the course of his trial, appeals, petitions and motions. He can argue that government agents were untruthful or withheld exculpatory material and that this resulted in an erroneous conviction, but the governmental conspiracy theory, will be rejected out of hand. It represents his fourth theory: first, ineffective assistance of counsel; second, extensive Brady violations and other prosecutorial misconduct; third, bias of the trial judge arising out of possible death threats against her; and fourth, the governmental conspiracy theory.

Only the most extraordinary circumstances would justify the removal of an entire United States Attorney’s Office from a case, e.g., United States v. Dyess, 231 F. Supp. 2d 493 (S.D. W. Va. 2002). Disqualification of an entire United States Attorneys Office is nearly unprecedented. See, e.g., United States v. Whitaker, 268 F.3d 185 (3d Cir. 2001).

Even the disqualification of a single United States Attorney is a “drastic measure and a court should hesitate to impose it except where necessary.” United States v. Bolden, 353 F. 3d 870, 878 (10th Cir. 2003). The persons in the United States Attorney’s Office who were responsible for the trial, sentencing and § 2255 petition in the Manna case are no longer with the Office, and thus even if attorney improprieties had been shown, which they have not, there would be no basis to disqualify anyone from that office from handling that case now.

The motion to disqualify the United States Attorney’s Office of New Jersey will be denied.

B. Rule 60(b)(6) Motion

The first question that must be addressed is the exact nature of Petitioner’s application, which he characterizes as a Rule 60(b)(6) motion. It will be recalled that Petitioner brought a § 2255 petition before Judge Barry. She decided against him, denied his motion for reconsideration (after extended proceedings) and was affirmed on appeal. That was unambiguously a first § 2255 motion, and before a second or successive § 2255 motion can be filed in the district court, it must be certified by the Court of Appeals as provided in 28 U.S.C. § 2244.

It will also be recalled that thereafter Petitioner filed an application that he styled a “Motion For Discovery In Connection With Proceeding Pursuant to 28 U.S.C. § 2255.” It was occasioned by Petitioner’s discovery that Judge Barry had been informed that she had received a death threat. The application was ambiguous as to whether it was simply a discovery motion as a preclude to a Rule 60(b) motion to attack Judge Barry’s order denying the motion for reconsideration or whether it was a full scale § 2255 challenge. Judge Martini, to whom the motion was assigned upon Judge Barry’s elevation to the Court of Appeals, treated the motion as a hybrid, neither ancillary to the prior motion for consideration nor a successive petition. He denied it as out of time. Affirming this order, the Court of Appeals treated the application as a Rule 60(b)(6) motion, subject to dismissal as untimely.

The present motion is a greatly fleshed out version of the motion before Judge Martini, relying upon the threat to Judge Barry and her asserted bias, but also relying upon the vast array of alleged governmental improprieties alleged in prior proceedings.

The Court of Appeals has spelled out the means of determining whether an application designated a Rule 60 (b) motion is truly such a motion or whether it is in fact a § 2255 application subject to § 2244’s second or successive petition limitation.

We concur, and hold that in those instances in which the factual predicate of a petitioner’s Rule 60(b) motion attacks the manner in which the earliest habeas judgment was procured and not the underlying conviction, the Rule 60(b) motion may be adjudicated on the merits. However, when the Rule 60(b) motion seeks to collaterally attack the petitioner’s underlying conviction, the motion should be treated as a successive habeas petition.

Pridgen v. Shannon, 330 F. 3d 721, 727 (3d cir. 2004).

Petitioner’s application carries the appearance of both a § 2255 motion and a Rule 60(b) motion. At great length it attacks the underlying conviction. Petitioner charges the government authorities with numerous instances of misstatements, withholding crucial evidence that would establish Petitioner’s innocence and knowingly submitting false testimony to the jury. All this goes to the issue of guilt or innocence – a challenge to the underlying conviction. Even the new challenge, the trial of the case by a biased judge who failed to disclose the nature of her bias to the parties, is on attack upon the underlying conviction.

Viewed in this light, Petitioner’s motion is deemed to be brought under § 2255 and cannot be brought in this court absent a certificate of appealability issued by the Court of Appeals. Petitioner would have to establish to the satisfaction of that Court that there existed one of the circumstances set forth in § 2254 that justified a second or successive appeal.

There are circumstances, however, that suggest that this application should be treated as a Rule 60(b)(6) motion. The substance of most of Petitioner’s attack on his conviction was addressed either in his original § 2255 motion or in the motion for reconsideration submitted to Judge Barry, as supplemental by the three subsequent submissions. Most of the documents supporting the instant motion were placed before her. The motions were decided on the merits and affirmed by the Court of Appeals. The material that is new, Petitioner’s more recently acquired knowledge that Judge Barry had known that she was subject to a death threat, was not part of the original § 2255 motion and the motion for reconsideration of its denial. That fact could not in any event have gone to the validity of the conviction because knowledge of the threat was not conveyed to Judge Barry until after the jury verdict.

In this view of the pending motion, it should be regarded not as an attack on the judgment of conviction (except possibly upon the validity of the sentence imposed after Judge Barry had been informed of the threat). Rather it should be viewed as an attack on the validity of the § 2255 motion and motion for reconsideration as infected by judicial bias. In that light the regurgitation of all the alleged trial improprieties of the government and the Judge would be mere surplusage, because the Judge had not been informed of the threat at the time of the alleged improprieties and could not have been affected by bias.

From the petitioner’s perspective there is a major problem when his application is viewed as a Rule 60(b) motion. None of the Rule 60(b) subsections apply except Rule 60(b)(6), under which he brings his motion, and the district court and the Court of Appeals have already ruled against him on that very same application. Upon essentially the same record Judge Martini held he was time barred, and the Court of Appeals ruled, specifically treating his application as a Rule 60(b)(6) motion, that Petitioner is time barred. If Petitioner was time barred when he filed his petition on September 4, 2003, he was certainly time barred when he filed his petition relying on the same grounds on August 16, 2005, three years after he received the evidence purportedly showing Judge Barry’s bias. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 (1988). The additional evidence that Petitioner introduced into the record through his most recent motion adds nothing that assists him. Consequently, in accordance with the Court of Appeals decision, his Rule 60(b)(6) motion must be dismissed.

IV. Conclusion

The court will grant Petitioner’s motion to supplement the record with the two exhibits he has submitted. The court finds that his application is not a § 2255 motion, but that if it were, the court would lack jurisdiction to hear it because he has not obtained from the Court of Appeals a certificate of appealability. The court further finds that the motion is, as it purports to be, a Rule 60(b)(6) motion and as such is time barred. The court will file an order implementing this opinion.

DICKINSON R. DEBEVOISE U.S.S.D.J.

Opinion Footnotes *fn1 In support of Petitioner’s pending Rule 60(b)(6) motion he has submitted four volumes of documents (each four inches thick) which presumably include the three volumes submitted to Judge Barry and an additional volume presumably containing additional gleanings from FOIA. He has also submitted six tape recordings reflecting conversations in Casella’s Restaurant and four tape recordings reflecting document reviews with Thomas F. Smith, Joseph Petrizzo, Rocco Napoli and Dennis Roman.

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From MafiaNJ.com

The settlers implemented a final solution to the question of the place of Native Americans in Colonial society. After promising to protect the Lenape Indians from the Mohawk, the Dutch slaughtered virtually the entire local tribe – including the women and children – while they slept. This pioneering example in genocide took place in what is now Liberty State Park