137 F.3d 24 (1st Cir. 1998), 96-1173, United States v. DeLuca

Docket Nº:96-1173, 96-1221 and 96-2231.
Citation:137 F.3d 24
Party Name:UNITED STATES of America, Appellee, v. Robert P. DeLUCA, Sr., Defendant, Appellant. UNITED STATES of America, Appellee, v. Gerard T. OUIMETTE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Gerard T. OUIMETTE, Defendant, Appellant.
Case Date:February 27, 1998
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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137 F.3d 24 (1st Cir. 1998)

UNITED STATES of America, Appellee,

v.

Robert P. DeLUCA, Sr., Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Gerard T. OUIMETTE, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Gerard T. OUIMETTE, Defendant, Appellant.

Nos. 96-1173, 96-1221 and 96-2231.

United States Court of Appeals, First Circuit

February 27, 1998

Heard May 5, 1997

Rehearings and Suggestions for Rehearings En Banc Denied

April 14, 1998.

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John W. Mitchell, Concord, NH, with whom Andrew J. Weinstein, New York City, Law Offices of Anthony M. Cardinale, Boston, MA, and LaRossa, Mitchell & Ross, New York City, were on brief, for appellant DeLuca.

Sara Rapport, Boston, MA, for appellant Ouimette.

Margaret E. Curran, Assistant United States Attorney, with whom Sheldon Whitehouse, United States Attorney, Kenneth P. Madden and James H. Leavey, Assistant United States Attorneys, Providence, RI, were on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN and CYR, Senior Circuit Judges.

CYR, Senior Circuit Judge.

Defendants Robert P. DeLuca, Sr. ("DeLuca Sr.") and Gerard T. Ouimette appeal their respective convictions for conspiring to use extortionate means to collect extensions of credit, in violation of 18 U.S.C. § 894, and for aiding and abetting the use of extortionate means to collect extensions of credit, in violation of 18 U.S.C. §§ 2, 894. Their principal claim asserts a violation of the Sixth Amendment right to a public trial, see Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), relating to the spectator screening procedure implemented sua sponte by the United States Marshals Service and ratified by the district court. We affirm the district court judgments.

I

BACKGROUND

At issue below were alleged extortion schemes directed against Paul Calenda, a Rhode Island factory and restaurant owner ("Calenda extortion"), and David Duxbury ("Duxbury extortion"). We relate the background facts in the light most favorable to the verdicts. See Stewart v. Coalter, 48 F.3d 610, 611 (1st Cir.1995).

  1. The Calenda Extortion Scheme

    The Calenda extortion was triggered by the March 1994 murder of Ronald Coppola, a close friend and loansharking partner of appellant DeLuca Sr. Coppola had disclosed to DeLuca Sr. that he had advanced $125,000 to a friend and business associate, Paul Calenda. After the Coppola murder, DeLuca Sr. decided to collect the debt himself but was unable to arrange a meeting with Calenda. Eventually, DeLuca Sr. told Coppola's widow, Paula, that he intended to give Calenda a "whack" in retribution for not meeting with him. At about the same time, DeLuca Sr. discussed Calenda with appellant Gerard Ouimette, who in turn informed another Coppola acquaintance, James "Slugger" Gellerman.

    In January 1995 Ouimette told Paula Coppola that he would "break [Calenda's] ... legs" if he failed to repay the $125,000 he owed Coppola. When Calenda denied owing either Coppola or DeLuca Sr., Ouimette and Gellerman visited Calenda at his factory in an effort to collect the Coppola debt. Subsequently, Ouimette confronted Paula Coppola at her home, where he told her boyfriend, Robert Buehne, to summon Calenda by phone. When Calenda arrived at the Coppola residence Ouimette informed him that a power struggle had developed following Ronald Coppola's death, which Ouimette intended to win, and that Calenda could either pay the $125,000, give Ouimette the restaurant Calenda owned, or risk being blown up in his car.

    Sometime around February 20, Ouimette and Gellerman appeared at the Calenda factory and announced that Ouimette intended to take over the Calenda restaurant. A few days later Ouimette met with Joe DeLuca, brother of appellant DeLuca Sr., to discuss the Calenda problem. Following their meeting, Ouimette told Gellerman that he wanted Calenda placed in sufficient fear to cause him to go to Joe DeLuca for help. A few days later Ouimette instructed Gellerman to give Calenda a "smack" and collect $50,000 rather than the $125,000 demanded earlier. Ouimette told another underling, Paul Parenteau, to accompany Gellerman.

    On February 27 Gellerman and Parenteau met with Calenda at the Calenda factory. The meeting began with a handshake from

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    Gellerman, accompanied by a sudden, violent blow to Calenda's head. Following the formal introduction, Gellerman instructed Calenda to have the $50,000 ready by the next day. Throughout the encounter, Parenteau remained by the door to prevent anyone from entering or leaving. When Gellerman reported back to Ouimette he was told to stay away from Calenda and not go back to the factory.

    About the same time, Paula Coppola, Buehne and Calenda decided to cooperate in a joint investigation by the United States Drug Enforcement Administration (DEA) and the Providence Police Department; of Ouimette and DeLuca Sr. On March 6, during a telephone conversation recorded by the DEA, Buehne told Ouimette that Calenda had something for him and wanted to get together. After voicing concern as to whether Calenda was "on the level," Ouimette agreed to the meeting, adding that DeLuca Sr., not Ouimette, had sent Gellerman to the factory to collect the debt and that Gellerman's "impetuous" assault on Calenda had not been authorized by Ouimette. Ouimette also stated that he was going to warn Gellerman to stop using force because he wanted no part of "shakedowns [which] ... went out with the roaring twenties."

    Later that afternoon Ouimette and Calenda met at Calenda's condominium. During their surreptitiously videotaped meeting Ouimette repeated the substance of his earlier conversation with Buehne and reassured Calenda that it had been DeLuca Sr. who sent Gellerman to the factory to collect from Calenda. When Calenda asked how much he would have to pay, Ouimette told him that he and DeLuca Sr. would accept $50,000 even though Calenda owed $125,000. Ouimette then agreed to accept $5,000 per week and Calenda paid him the first installment. Ouimette explained that future installments were to be paid to Buehne, who would deliver them to Ouimette.

    At that point Calenda protested that he owed Coppola nothing. Ouimette responded that he knew only what he had been told, then launched into a graphic description of Gellerman's earlier assault against David Duxbury. See infra Section I.B. After assuring Calenda that he planned to impress upon Gellerman the need to refrain from using force in the future, Ouimette urged Calenda to call if anyone bothered him or there was anything Ouimette could do to help. Following the meeting with Calenda, Ouimette met Gellerman and told him that Buehne would be receiving $5,000 a week from Calenda, out of which Gellerman would get $1,000 weekly. Ouimette then handed Gellerman $1,000 and remarked: "Pauly's [i.e., Calenda's] paying."

    On March 11, Ouimette joined Buehne and Paula Coppola at a Providence restaurant, where Buehne was to deliver a $5,000 installment from Calenda. Their conversation was recorded by the DEA, at whose instruction Buehne tendered Ouimette only $1,500 on the pretext that that was all Calenda had given him. Angered, Ouimette told Buehne that Calenda would be in danger unless he came up with the $3,500 balance by the following Monday. Adding that "maybe [by] Tuesday he's going to get a shot," Ouimette also threatened to break the legs of Calenda's longtime friend and housekeeper. Ouimette cautioned that he was unable to control Gellerman, then recounted an abbreviated version of Gellerman's role in the Duxbury assault.

    The next day the DEA and Providence Police assumed protective responsibility for Paula Coppola and Buehne, who ultimately entered into a witness protection program. Later, in several recorded conversations with Buehne, Ouimette indicated his continuing intention to collect from Calenda, stating that he would threaten violence to coerce payment.

    Finally, an FBI search of the Ouimette residence on March 18 in Fall River, Massachusetts, disclosed currency bearing the recorded serial numbers of bills included in the $5,000 installment Calenda paid Ouimette on March 6 and the $1,500 partial installment Buehne delivered to Ouimette on March 11.

  2. The Duxbury Extortion Scheme

    On March 1, 1995, as Ouimette and Gellerman were having a drink with codefendant Kenneth Raposa, Ouimette informed them that Robert DeLuca, Jr. ("DeLuca Jr.") had

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    "a little problem"; someone was trying to "shake him down" for $2,500. Thereafter, Ouimette, Gellerman and Raposa went to the Satin Doll, a Providence nightclub, to confront David Duxbury who was suspected of the attempted "shake down."

    At the Satin Doll they escorted Duxbury to the basement, where Ouimette demanded to know why Duxbury was trying to extort money from DeLuca Jr. After Duxbury told Gellerman that "it was a joke," Gellerman punched him in the face, causing his nose to bleed profusely. Thereupon, Ouimette grabbed Duxbury, slapped him across the face, told him to show DeLuca Jr. some respect, then informed him that he would have to pay a $5,000 "fine" by the next day for attempting to extort money from DeLuca Jr. As Duxbury wiped the blood from his face, Raposa kicked him twice and reminded him to bring the $5,000 "fine" payment the next day. The Satin Doll incident, lasting about ten minutes, was witnessed in part by three Satin Doll dancers.

    Following the assault, Duxbury contacted the FBI and volunteered to cooperate in its investigation of DeLuca Sr. and Ouimette. On March 2 Ouimette instructed Gellerman to collect the $5,000 "fine" from Duxbury....

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