U.S. v. Merlino

• Decision Date: 15 January 2010
• Docket Number: No. 02-1712.,No. 03-1039.,No. 07-2379.,02-1712.,03-1039.,07-2379.
• Citation: 592 F.3d 22
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. William MERLINO, Defendant, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — First Circuit

592 F.3d 22

UNITED STATES of America, Appellee/Cross-Appellant, v. William MERLINO, Defendant, Appellant/Cross-Appellee.

No. 02-1712.

No. 03-1039.

No. 07-2379.

United States Court of Appeals, First Circuit.

Heard May 6, 2009.

Decided January 15, 2010.

Judith H. Mizner, for appellant/cross-appellee.

John-Alex Romano, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee/cross-appellant.

Before LIPEZ, HANSEN,^* and HOWARD, Circuit Judges.

HANSEN, Circuit Judge.

William Merlino and his three codefendants, Carmello Merlino (William's uncle) David Turner, and Stephen Rossetti, were charged with violating the Hobbs Act, 18 U.S.C. § 1951, and with carrying firearms in relation to a crime of violence, 18 U.S.C. § 924(c), after the FBI foiled their planned robbery of the Loomis Fargo armored car facility in Easton, Massachusetts. A jury found the defendants guilty, but the district court granted William Merlino a judgment of acquittal on count three, one of the § 924(c) counts. He appeals his convictions on the other counts on the basis that he was denied his right to testify in his own defense. He also brings a Booker¹ challenge to his sentence. The Government cross-appeals, challenging the district court's judgment of acquittal on count three. We affirm William Merlino's convictions and his sentence, but we reverse on the Government's cross-appeal and remand for further proceedings.

I.

Anthony Romano, a former FBI informant, worked with Carmello Merlino (hereinafter "Carmello" for clarity's sake) at TRC, an automobile repair shop. Carmello approached Romano about helping him find someone who could work inside an armored car facility to help stake it out for a robbery. The FBI had been watching Carmello and codefendant Turner for some time because of their suspected involvement in the unsolved theft of several historic paintings from the Isabella Stewart Gardner Museum in Boston. Unbeknownst to Carmello, Romano was already providing information to FBI Agent David Nadolski about the paintings heist, and Romano informed Agent Nadolski about Carmello's plan to rob the armored car facility. Romano became a cooperating witness for the FBI, taping conversations he had with Carmello about the planned robbery. Carmello involved Turner and Rossetti, who helped surveil the armored car facility and plan the robbery. Romano suggested using Carmello's nephew, William Merlino (hereinafter "Merlino"), in the plan as well. Although Merlino had been trying to stay away from drugs and crime following the death of his wife, Romano testified at trial that Merlino expressed unhesitating interest in the plan when Romano described it to him as involving a $50 million score and an easy hit using insiders.

The robbery was planned for the early morning hours of February 7, 1999. The prior evening, Carmello, Romano, Turner, Rossetti, and Merlino all met at TRC to discuss the final plans and to prepare for the robbery. Merlino was to drive the van into the facility once it was secured and possibly guard the money after the robbery. He brought ski masks and four large duffle bags to the meeting in preparation for the robbery.

The following morning, federal agents arrested Carmello, Turner, and Rossetti as they converged on TRC, the designated meeting point. Merlino was later arrested at a nearby gas station, where he was using a pay phone after having arrived at TRC and finding no one there.

Merlino was charged in four counts of a six-count indictment against the four codefendants. Counts one and two charged conspiracy and attempt to affect commerce by robbery, 18 U.S.C. § 1951, and counts three and four charged the codefendants with carrying firearms (count three involved a hand grenade and count four involved semi-automatic pistols and a rifle) during and in relation to a crime of violence, 18 U.S.C. § 924(c). Merlino raised an entrapment defense at trial, asserting that Romano had used intimidation and fear to pressure Merlino into joining the conspiracy against his will. He attempted to distance himself from his codefendants and portrayed his role as one of a mere gopher ("go-for"), who was kept on the periphery of the conspiracy.

The jury returned a guilty verdict on all counts against all defendants. The codefendants each filed motions for a new trial and for acquittal. In a published opinion, the district court denied all of the motions for a new trial, as well as all of the motions for acquittal, except that it granted Merlino's motion for acquittal on count three related to the hand grenade. See United States v. Merlino, 204 F.Supp.2d 83, 92 (D.Mass.2002). The Government filed a timely appeal from the judgment of acquittal on June 5, 2002.

On November 25, 2002, Merlino was sentenced to concurrent 100-month sentences on counts one and two and a consecutive 60-month sentence on count four's gun charge. Merlino filed a timely notice of appeal from his convictions and sentence on December 3, 2002. On December 5, 2002, he filed a motion for a "Conditional Determination by the Court Whether a Motion for New Trial Should Be Granted if the Judgment of Acquittal is Reversed," which the district court granted on February 4, 2003.

Merlino filed a second motion for a new trial on September 16, 2003, alleging ineffective assistance of counsel based on an alleged conflict of interest. That motion was denied in a published opinion. See United States v. Merlino, 523 F.Supp.2d 66, 76 (D.Mass.2007). Merlino filed a timely notice of appeal on August 2, 2007.

II.

On appeal, Merlino challenges the district court's determination that he was not denied his Sixth Amendment right to testify at trial on his own behalf, and he challenges his sentence based on Booker. In its cross-appeal, the Government challenges the district court's grant of a judgment of acquittal on count three related to the hand grenade.

A. Sixth Amendment Right to Testify

Merlino challenges the district court's denial of his motion for a new trial based on his assertion that he was denied his right to testify at trial.² "We review the denial of a motion for a new trial for abuse of discretion," United States v. Lnu, 544 F.3d 361, 369 (1st Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1379, 173 L.Ed.2d 633 (2009), reviewing the district court's factual findings for clear error, id.

There is no doubt "that a defendant has a `fundamental constitutional' right to testify in his own defense," Owens v. United States, 483 F.3d 48, 58 (1st Cir.2007) (quoting Rock v. Arkansas, 483 U.S. 44, 53 n. 10, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)), and that the defendant, not his attorney, is the one who makes the ultimate decision whether to testify or not, id. (noting that a defendant's attorney cannot waive the defendant's right to testify). The district court held an evidentiary hearing to address Merlino's motion for a new trial. Peter Parker, Merlino's trial counsel, testified at the hearing that although he had agreed at the beginning of trial to call Merlino to the stand, his trial strategy changed based on the way the evidence had come in, and he then attempted to convince Merlino not to testify. During a heated "blowout" that occurred on one of the days of trial in the lock-up area of the courthouse, Parker and Merlino disagreed about whether to call Romano's ex-wife as part of his defense and about whether to cross examine FBI Agent Nadolski. According to Attorney Parker, Merlino finally agreed not to take the stand if Parker would ask specific questions of the FBI agents on cross-examination, which Parker did. Parker testified that Merlino made the final decision not to testify and that if Merlino would have insisted, Parker would have put him on the stand.

Merlino testified at the hearing that Parker had agreed all along that Merlino would testify as part of their trial strategy and that Merlino did not know that he would not be called to testify until Parker rested his case without calling him. Merlino claimed that he did not bring his desire to testify to the court's attention because he did not know he had the right to do so. Merlino recounted a blowout similar to the one testified to by Parker, but he recalled that it took place after Parker rested the case without calling Merlino to testify, which, according to Merlino, was the subject of the blowout. In an affidavit filed in support of his motion for a new trial, Merlino stated that he and Parker had had a heated argument about Parker's refusal to cross examine the two FBI agents, and he recounted in the affidavit another violent argument about Parker's refusal to call Romano's ex-wife. Merlino never mentioned in his affidavit that he and Parker had argued about Parker's refusal to call him to the stand.

After hearing all the evidence, the district court found that Parker's testimony was more credible and that Merlino in fact made the final decision not to testify. Where a district court's "factual findings are based on credibility determinations[,] . . . `error is seldom considered "clear" unless the credibility assessments were based on testimony which was inherently implausible, internally inconsistent, or critically impeached.'" Awon v. United States, 308 F.3d 133, 141 (1st Cir.2002) (internal citation omitted) (quoting Keller v. United States, 38 F.3d 16, 25 (1st Cir.1994)). After review, we conclude that the district court's determination that Merlino made the decision not to testify was not clearly erroneous. See Lnu, 544 F.3d at 369-70 (denying a motion for new trial based on alleged denial of defendant's right to testify where the district court's findings were made after a full hearing).

B. Sentencing

Merlino was sentenced prior to Booker, the Supreme Court's decision that significantly changed the federal sentencing scheme and made the United States Sentencing Guidelines advisory. See 543 U.S. at 245, 125 S.Ct. 738. Merlino challenges the sentence he received on the basis...