U.S. v. Capozzi

• Decision Date: 23 May 2007
• Docket Number: No. 05-2256.,05-2256.
• Citation: 486 F.3d 711
• Parties: UNITED STATES, Appellee, v. Derek CAPOZZI, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

486 F.3d 711

UNITED STATES, Appellee, v. Derek CAPOZZI, Defendant, Appellant.

No. 05-2256.

United States Court of Appeals, First Circuit.

Submitted November 8, 2006.

Decided May 23, 2007.

Terrance J. McCarthy on brief for appellant.

Timothy Q. Feeley, Assistant United States Attorney, Michael J. Sullivan, United States Attorney, Christopher F. Bator, and Ernest S. Dinisco, Assistant United States Attorneys, on brief for appellee.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

CAMPBELL, Senior Circuit Judge.

Defendant Derek Capozzi appeals from his convictions in the United States District Court for the District of Massachusetts for Hobbs Act conspiracy, witness tampering conspiracy, and being an accessory after the fact to witness tampering killing.¹ Capozzi makes three major contentions on appeal: (1) that the government's concession that the evidence was insufficient to establish two of the three objects of a multi-object conspiracy to violate 18 U.S.C. § 1512, the witness tampering statute, warrants a new trial; (2) that the district court erred in denying Capozzi the right to confront a government cooperating witness with the theory that his reward in exchange for testifying included avoidance of the death penalty; and (3) that his Hobbs Act conspiracy conviction must be vacated because there was insufficient evidence before both the grand jury and the petit jury. After a careful review of the trial record, we affirm Capozzi's convictions.

Background and Facts

Capozzi was a member of a drug organization led by co-defendant Paul A. DeCologero (known as the "DeCologero Crew" and sometimes referred to herein as the "crew"). Along with distributing drugs, the crew used force to gain control of Boston's drug trade and murdered a nineteen-year-old woman, Aislin Silva, when crew members thought she might betray them.

In October 2001, DeCologero and six associates, including the defendant here, were charged in a 23-count indictment with criminal racketeering in violation of the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1962(c) (2000); conspiracy to violate RICO, id. § 1962(d); and a number of related crimes. In addition to the RICO counts, the indictment specified a number of federal crimes charged in separate counts involving drugs, guns, robberies, and, in the case of Silva, murder for the purposes of witness tampering. See generally United States v. DeCologero, 364 F.3d 12 (1st Cir.2004) (affirming denial of DeCologero's motion to dismiss on double jeopardy grounds and reversing district court's order removing several racketeering acts from the trial of the RICO case).

Capozzi was charged in Counts 1 and 2 (RICO conspiracy and substantive charges, in violation of 18 U.S.C. § 1962(c) and (d)); Count 3 (witness tampering conspiracy, in violation of 18 U.S.C. § 371); Count 4 (witness tampering, in violation of 18 U.S.C. § 1951(a)); Count 7 (accessory after the fact to witness tampering killing); Count 8 (Hobbs Act conspiracy, in violation of 18 U.S.C. § 1951(a)); Count 9 (Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a)); Count 10 (possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)(A)); Count 11 (using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)); and Count 19 (felon-in-possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)).

One of Capozzi's co-defendants, John P. DeCologero, Sr., pled guilty to a RICO offense on February 28, 2003. On July 20, 2004, Capozzi moved to disqualify the counsel for three of his co-defendants on the grounds that they had conflicts of interest. As a result, counsel for co-defendants Paul A. DeCologero, John P. DeCologero, Jr., and Paul J. DeCologero withdrew from the case and were replaced by successor counsel. Because of the amount of time new counsel would need to prepare for trial, the government moved to sever Capozzi from his co-defendants, sever trial of the RICO charges and substantive witness tampering charge for a later date, and try Capozzi on the remaining charges beginning on September 24, 2004, the date on which the RICO trial had been scheduled to begin. The court granted the motion and on September 27, 2004 began trial against Capozzi on the Hobbs Act conspiracy, robbery, drug and firearms counts, with another trial to follow on the witness-tampering and murder-related counts. Capozzi elected to represent himself at trial (and throughout most of the pretrial proceedings), with standby counsel appointed by the court.

The counts before the jury in the first trial were Count 8 (Hobbs Act conspiracy), Count 9 (Hobbs Act robbery of a drug dealer, Michael Stevens), Count 10 (possession of marijuana with the intent to distribute), Count 11 (using a firearm during and in relation to the Stevens robbery), and Count 19 (felon-in-possession of a firearm). On October 13, 2004, the jury convicted Capozzi of the Hobbs Act conspiracy charge (Count 8) and acquitted him on the felon-in-possession of a firearm charge (Count 19). The jury failed to reach a unanimous verdict on the Stevens robbery and related charges (Counts 9, 10, and 11), and the court declared a mistrial as to those counts.

Capozzi's second trial, on the witness tampering and murder-related counts, began on April 25, 2005, with Capozzi still representing himself, again with standby counsel. Before the jury were Count 3 (witness tampering conspiracy), Count 4 (witness tampering by misleading conduct), and Count 7 (accessory after the fact to witness tampering killing). On May 10, 2004, the jury convicted Capozzi of witness tampering conspiracy (Count 3) and accessory after the fact to witness tampering murder (Count 7), and acquitted him on the witness tampering by misleading conduct charge (Count 4).

On August 12, 2005, Capozzi was sentenced on the three counts of conviction to a total of 23 years' imprisonment. Upon imposition of the sentence, the government dismissed the RICO counts (Counts 1 and 2), and the counts related to the Stevens robbery on which the first jury had deadlocked (Counts 9, 10, and 11). Capozzi timely appealed from his convictions in both trials on August 16, 2005.

Evidence at Trial

The evidence at both trials showed that Paul A. DeCologero ("Paul A.") headed the DeCologero crew in 1995 and 1996. The crew, consisting mostly of his relatives and their close friends, dealt in cocaine and marijuana and stole from competing drug dealers. Cooperating witnesses for the government Thomas Regan and Stephen DiCenso testified to having themselves been members of the crew. They also identified as members Paul A. and co-defendants John P. DeCologero ("John Sr."), John P. DeCologero, Jr. ("John Jr."), Paul J. DeCologero ("Paul J."), Kevin Meuse ("Meuse"), and Capozzi. John Sr. and Paul A. are brothers, and John Jr. and Paul J. are John Sr.'s sons and Paul A.'s nephews. Meuse joined the crew in September 1996. Capozzi, a friend of Meuse, joined the crew at Meuse's invitation in October 1996.

i. First Trial

At the first trial, the evidence showed that when Meuse and Capozzi joined the crew in the fall of 1996, the other crew members were already engaged in a conspiracy to rob area drug dealers of drugs, money, and weapons. DiCenso testified about a spring 1996 robbery of a local marijuana dealer, Jeff North, which DiCenso had helped to plan with the approval of Paul A., and which two others committed on Paul A.'s orders. DiCenso also testified that North had at least one drug customer in Maine who later became DiCenso's customer. Regan testified to having committed robberies and an attempted robbery of area drug dealers in the company of John Jr., Paul J., and Paul A., on orders from Paul A. in 1995 and 1996.

Both Regan and DiCenso admitted robbing Michael Stevens on Halloween night, 1996, on the orders of Paul A. Stevens was a high volume marijuana dealer in Tewksbury who was known by members of the crew to be a supplier for North. Regan and DiCenso testified that they committed the armed robbery at Stevens' residence with Meuse and Capozzi, and that they took money, marijuana, and a handgun. The victims of the robbery—Stevens, his girlfriend, and a friend who came to the house during the robbery—testified about the robbery and said that the masked robbers beat and threatened Stevens and bound all of their arms and legs and covered their eyes with duct tape. All three victims were aware of only three robbers. DiCenso testified that he waited in the car while the other three robbers entered Stevens' townhouse and then joined them a few minutes later.

Capozzi asserted pro se in closing argument that Regan and DiCenso were lying about his own participation in the Stevens robbery, and that the victims correctly reported only three robbers that night (Regan, DiCenso, and Meuse). Additionally, he argued that the robbery of a local drug dealer did not "affect commerce," a required element of the crime. He finally argued there was insufficient evidence that the marijuana Stevens sold either came from or was sold outside Massachusetts. The jury did not reach a verdict for Capozzi on the Stevens-related counts (Counts 9, 10 and 11) but convicted him of Hobbs Act conspiracy to rob drug dealers along with other members of the DeCologero crew (Count 8).

ii. Second Trial

At the second trial, along with much of the same robbery evidence admitted at the first trial, Regan and DiCenso testified to a late October 1996 burglary of dealer North's apartment that they committed with Paul J. on Paul A.'s orders. They took money, marijuana, and a small arsenal of weapons and ammunition. Paul A. divided the money but told DiCenso to store some of the weapons and ammunition at the Medford apartment of a young woman, Aislin Silva, where Paul A. had recently been housing cocaine. About a week after the October robbery, Medford police heard that...