46 F.3d 152 (2nd Cir. 1994), 39, United States v. LaPorta

Docket Nº:39, 89 and 90, Dockets 93-1826 to 93-1828.
Citation:46 F.3d 152
Party Name:UNITED STATES of America, Appellant-Cross-Appellee, v. Michael LaPORTA and Vincent Sicurella, also known as
Case Date:December 30, 1994
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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46 F.3d 152 (2nd Cir. 1994)

UNITED STATES of America, Appellant-Cross-Appellee,

v.

Michael LaPORTA and Vincent Sicurella, also known as

"Jimmy," Defendants-Appellees-Cross-Appellants.

Nos. 39, 89 and 90, Dockets 93-1826 to 93-1828.

United States Court of Appeals, Second Circuit

December 30, 1994

Argued Oct. 4, 1994.

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Anthony M. Bruce, Asst. U.S. Atty., Buffalo, NY (Patrick H. NeMoyer, U.S. Atty., W.D.N.Y.), for appellant-cross-appellee.

Herbert L. Greenman, Buffalo, NY (Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, of counsel), for defendant-appellee-cross-appellant Vincent "Jimmy" Sicurella.

Joel L. Daniels, Buffalo, NY, for defendant-appellee-cross-appellant Michael LaPorta.

Before: MESKILL, MAHONEY and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Michael LaPorta and Vincent "Jimmy" Sicurella were arrested after they had burned Sicurella's car to collect on the car's insurance and after they fell for a government sting operation by setting a government car

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on fire. They were indicted for: (1) conspiracy to commit mail fraud and destroy government property, in violation of 18 U.S.C. Sec. 371; (2) mail fraud, in violation of 18 U.S.C. Sec. 1341; (3) use of fire to commit mail fraud, in violation of 18 U.S.C. Sec. 844(h)(1); (4) destruction of government property, in violation of 18 U.S.C. Sec. 1361; and (5) use of fire to destroy government property, in violation of 18 U.S.C. Sec. 844(h)(1). After a jury trial in the United States District Court for the Western District of New York (John T. Curtin, Judge ), they were convicted on all five counts. Subsequently, the district court dismissed the fifth count, finding that the crime charged therein should have been charged under 18 U.S.C. Sec. 844(f), rather than (h)(1).

The government appeals the dismissal of the fifth count. LaPorta and Sicurella cross-appeal, contending that the district court erred by: (1) ruling that defendants' ignorance that the car they burned was a government car was not a defense to destruction of government property; (2) ruling that "consent" was not a defense to destruction of government property; and (3) refusing to grant a hearing on defendants' motion to dismiss the destruction of government property counts based on their claim of manufactured jurisdiction. Sicurella adds arguments that: (4) the government improperly obtained a superseding indictment just to circumvent a magistrate judge's order severing the original indictment; and (5) the proof that Sicurella had his own vehicle torched did not suffice to support his conviction.

AFFIRMED.

BACKGROUND

In August, 1989, an FBI informant in Buffalo happened to notice that Vincent Sicurella's car was burned-out. He reported his observation to the FBI. Shortly thereafter, Sicurella told the Buffalo police that his car had been stolen. Sicurella submitted a claim to his insurance company for the loss of the vehicle. As part of the claim process, Sicurella mailed sworn statements to the company that he had not participated in the loss. He received $2,144.76 from the company.

Trying to determine whether arson was involved in the burning of Sicurella's car, the FBI wired their informant and had him ask Sicurella whether he would torch the informant's "daughter's" car (actually a government Buick) to collect the insurance. Sicurella admitted that he had had his own car "done," agreed to broker the arson, and instructed the informant how to report the loss to the police and make the insurance claim.

A few weeks later, the informant gave Sicurella the keys to the government Buick, along with $200 for brokering the deal and another $200 to pay the arsonist. Soon after, Michael LaPorta received a second set of keys to the Buick. FBI surveillance agents followed LaPorta as he drove it to a local garage he owned. He parked the car on the street; half an hour later, it was taken into the garage. Thereafter, Donald Oliver drove it back to the street.

That night, Oliver drove the Buick to a remote location. He was followed by a second car registered to LaPorta. After the government Buick was parked for a brief period, it suddenly burst into flames. The fire burned the dashboard and front seat area of the Buick, the same burn pattern found in Sicurella's car.

Sicurella and Oliver were arrested and charged with several crimes. The original indictment charged them with: (1) mail fraud; (2) use of fire to commit mail fraud; (3) conspiracy to injure property of the United States; (4) injuring property of the United States; and (5) using fire to injure property of the United States. The first two counts related to the earlier arson of Sicurella's car; the last three involved the arson of the government Buick.

Oliver pled guilty and began cooperating with the government. Sicurella, on the other hand, moved to sever counts (1) and (2), the mail fraud counts pertaining to his own car, from the remaining three counts, which concerned the destruction of the government Buick. The stated ground for the severance was that he wanted to testify about his own car, but feared that doing so would expose him to cross-examination about the Buick. The district court referred Sicurella's motion to a magistrate judge (Leslie G. Foschio,

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Magistrate Judge ), who, acting under his authority to resolve non-dispositive pre-trial motions under 28 U.S.C. Sec. 636(b)(1)(A), granted it.

In response, the government obtained a five-count superseding indictment. The first count covered both cars, charging Sicurella with conspiring to (1) commit mail fraud in connection with the arson of his car, and (2) destroy the government Buick. Counts Two and Three concerned the arson of his car: Count Two charged him with mail fraud, in violation of 18 U.S.C. Sec. 1341; and Count Three charged him with using fire to commit mail fraud, in violation of 18 U.S.C. Sec. 844(h)(1). The last two counts involved the destruction of the government Buick: Count Four charged Sicurella with destruction of government property, in violation of Sec. 1361; and Count Five charged him with using fire to destroy government property, in violation of 18 U.S.C. Sec. 844(h)(1). A second superseding indictment filed thereafter added LaPorta as a defendant on all five counts.

Because the new indictment mooted the original indictment as well as the magistrate judge's decision to sever parts of it, and still wishing to testify only about his car and not the government Buick, Sicurella moved again to sever Counts Four and Five from the rest, and to sever Count One "within itself." Sicurella, thus, wanted two trials: in one, the mail fraud conspiracy would be tried along with the Second and Third Counts (all involving his own car), and in the other, the destruction of government property conspiracy would be tried with the Fourth and Fifth Counts (all involving the Buick). This time, the magistrate judge denied the motion.

On the eve of trial, the defendants moved to dismiss the parts of the indictment involving the arson of the government car. They claimed that the FBI had "manufactured" federal jurisdiction. They also claimed that to be convicted of destroying government property, the government had to prove that they knew they were burning a car owned by the government. The district court denied the motion in both respects.

At the defendants' joint trial, which lasted four days, Oliver testified that LaPorta recruited him to torch both cars. Oliver also described the manner in which the cars were torched. His testimony was confirmed by an FBI lab report. The government also introduced the recorded conversations between its informant and Sicurella. In addition, an FBI agent testified about his surveillance of the defendants the day the government Buick was burned.

At the close of evidence, the defendants moved to dismiss the destruction of government property count, claiming that the government had conceded that they did not know the Buick was a government car. The motion was denied. Alternatively, they requested a jury charge that they could not be convicted of destroying government property if the jury found that the defendants did not know that the Buick they torched belonged to the government. They also requested an instruction that they could not be convicted of destroying government property if the jury found that the government had consented to the arson of the Buick. The district court denied these requests.

After a day of deliberations, the jury found both defendants guilty of all five counts. The district court subsequently dismissed Count Five--the Sec. 844(h)(1) charge concerning the arson of the Buick--over the government's objection. See United States v. Sicurella, 834 F.Supp. 621 (W.D.N.Y.1993). Thus, the defendants were convicted of conspiracy involving the two cars; mail fraud and use of fire to commit mail fraud, both involving Sicurella's car; and destruction of the government Buick. Sicurella was sentenced to sixty-six months' imprisonment, and LaPorta was sentenced to seventy-two months.

The government appeals from the dismissal of Count Five of the indictment; and Sicurella and LaPorta cross-appeal from various aspects of their trial and conviction.

DISCUSSION

I. The Government's Appeal

Count Five charged a violation of Sec. 844(h)(1), use of fire to commit "any felony." The predicate felony is charged in Count Four, willful destruction of government

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property, in violation of Sec. 1361. The district court ruled that another part of Sec. 844-Sec. 844(f)--specifically covered destruction of government property by fire, and thus trumped the Sec. 844(h)(1) charge, which the court then dismissed. We are the first Circuit (and only the...

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