U.S. v. Barton, s. 357 and 402

Citation647 F.2d 224
Decision Date27 April 1981
Docket NumberNos. 357 and 402,s. 357 and 402
PartiesUNITED STATES of America, Appellee, v. William BARTON, Anthony Chirico, Rosario Chirico, Dominic "Sonny" Celestino, Betti Frassetto, Frank Frassetto and Angelo Vaccaro, Defendants-Appellants. to 406, Dockets 80-1096, 80-1102, 80-1103, 80-1116, 80-1117 and 80-1130.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Kate Stith Pressman, Dept. of Justice, Washington, D. C. (Richard J. Arcara, U. S. Atty., W. D. New York, Donald J. Wisner, Dept. of Justice, Rochester, N. Y., William C. Bryson, Dept. of Justice, Washington, D. C., on brief), for appellee.

James L. Kemp, Rochester, N. Y., for defendant-appellant Barton.

Ronald S. Carlisi, Rochester, N. Y., for defendant-appellant Anthony Chirico.

Alfred P. Kremer, Rochester, N. Y., for defendant-appellant Rosario Chirico.

Jerrold B. Reilly, Rochester, N. Y., (Joan De R. O'Byrne, Rochester, N. Y., on the

brief), for defendant-appellant Dominic Celestino.

Charles A. Schiano, Rochester, N. Y., (James L. Hendricks and Charles O. Baisch, Rochester, N. Y., on brief), for defendants-appellants Betti Frassetto and Frank Frassetto.

John L. LaDuca, Rochester, N. Y., (LaDuca & McGinn, Rochester, N. Y., on brief), for defendant-appellant Angelo Vaccaro.

Before MOORE, NEWMAN, and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

William Barton, Anthony Chirico, Rosario Chirico, Dominic "Sonny" Celestino, Frank Frassetto ("Frassetto"), his wife, Betti Frassetto ("Betti"), and Angelo Vaccaro appeal from judgments entered in the United States District Court for the Western District of New York convicting them on all counts of an indictment, after a trial before a sequestered jury and the Honorable Lloyd F. MacMahon, Judge, now Chief Judge, of the United States District Court for the Southern District of New York, sitting by designation. The trial and convictions related to a series of bombings and attempted bombings in Rochester, New York, between December 1977 and June 1978, depicted as part of a struggle between rival underworld factions to gain control of gambling and other unlawful enterprises in the Rochester area. The theory of the prosecution was that the appellants represented one faction, seeking to unseat the rival group headed by one Salvatore Gingello. Gingello, who was released from jail in February 1978, was eventually killed when a bomb exploded under his car on April 23, 1978.

In a fourteen-count indictment, described in greater detail in the margin, 1 most appellants other than Betti Frassetto were charged with possession of destructive devices in violation of 26 U.S.C. §§ 5861(d), (f), and 5871 (1976), and with malicious damage to buildings in violation of 18 U.S.C. § 844(i) (1976); all appellants except Betti Frassetto were charged with conspiring to perform the above acts in violation of 18 U.S.C. § 371 (1976), and to conduct the affairs of an enterprise through a pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1962(c) and (d) (1976); and appellants Anthony Chirico and Betti and Frank Frassetto were charged with endeavoring to obstruct justice, in violation of 18 U.S.C. § 1503 (Supp. III 1979). After a three-week trial, appellants were convicted on all counts, and were We affirm the convictions.

sentenced to prison terms ranging from two years to thirty years. 2

FACTS

The government's case-in-chief was presented primarily through the testimony of 108 witnesses. As appellants make only limited attacks on the sufficiency of the evidence to convict them, an abbreviated summary will suffice to place the discussion of the most serious issues in proper perspective.

The government's main witnesses included Rodney Starkweather and Gary Haak, who were allied in various ways with appellants in their bombings and attempted bombings. Haak, a former business partner of Rosario Chirico, was engaged by the latter on various occasions to assemble remote control detonation devices. Starkweather, who opened an "after-hours" bar with leave of appellants' faction, became a confidant of appellants, purchasing explosives for them, meeting with them several times a week, and participating in some of the bombing efforts.

The bombing attempts directed at Gignello and his associates commenced in December 1977, when Barton, Celestino, and Vaccaro sought, unsuccessfully, to detonate a bomb on the car of a Gignello associate. In February 1978, appellants placed a bomb in a telephone booth at the Blue Gardenia restaurant, which Gignello had been known to visit daily. Their scheme to lure Gignello into the telephone booth failed in the execution. In late February or early March 1978, Celestino and Starkweather several times placed bombs in a snowbank outside the Blue Gardenia. They succeeded in detonating one such bomb, but failed to kill Gignello on that occasion. Finally, on April 23, 1978, Celestino, with the aid of Vaccaro and Frassetto, placed and detonated a bomb under Gignello's car, killing Gignello and injuring two of his companions.

In the period following Gignello's death, appellants directed their attentions chiefly toward two buildings that housed gambling operations run by Gignello's associates: the Social Club of Monroe, located at 1266 Clifford Avenue ("Clifford building"), and the 1455 Social Club, located at 1455 University Avenue ("University building"). It appears that most of these bombing attempts succeeded. Celestino and Starkweather exploded bombs damaging the Clifford building on May 19 and June 8. And Frassetto, Celestino, and Starkweather exploded a bomb damaging the University building on May 22.

On June 18, Celestino and Frassetto were arrested. 3 After the arrest, Frassetto telephoned Starkweather and asked him to go to Frassetto's house to pick up any "stuff" On June 28, two agents from the Bureau of Alcohol, Tobacco, and Firearms ("ATF") approached the attendant at the Arco station, Frederick Ledtke, to ask who owned the Wise Potato Chip truck. The attendant did not know, but put the agents in touch with the owner of the station. The owner later called Vincent Frassetto, Frank's brother, and asked how he could contact Betti Frassetto. Vincent Frassetto called his home, where Betti and Frank Frassetto had been staying, and relayed the station owner's telephone number to his wife, Margaret.

that was there. Starkweather went to the house and was given a garbage bag by Betti Frassetto, which contained a New York State dealer's license plate and other items that were not identified at trial. Apparently certain incriminating evidence had already been moved from Frassetto's house. Starkweather testified that sometime between June 8 and June 18, Frassetto had told him that he had moved "the stuff" from his basement to the back of a Wise Potato Chip truck. The truck, which Frassetto had bought for use in surveillance of the Gignello faction, was generally kept either at Frassetto's house or at a certain Arco service station. On or prior to June 28 Frassetto made several abortive attempts to have the truck moved from the service station.

Margaret Frassetto testified that she gave the message to Betti and that in her presence, Betti made a telephone call, and asked who was asking about the truck. Margaret testified that Frank Frassetto asked Betti to go to the Arco station to see what was going on, and Betti said she would. At Frank's request Margaret got permission from her neighbor to use the neighbor's telephone, because Frank feared the Frassettos' phone was tapped. Betti made a call on the neighbor's telephone, then borrowed the neighbor's car, a green Dodge with a vinyl top. Ledtke, the service station attendant, testified that between 11:30 a. m. and 12:30 p. m. on June 28 he received a telephone call from a woman whom he did not know, asking who was making inquiries about the truck. When Ledtke responded that the inquirers were special agents, the woman said that she would be right down. A short time later, a woman arrived at the station in a green car with a vinyl top. The woman asked Ledtke if he was the person she had spoken to, and asked again about the men who had questioned him about the truck. Ledtke asked the woman if she had the keys to the truck. According to Ledtke, the woman said she too was looking for the keys, and then "kind of under her breath she said how am I going to move the truck ." The woman then left the station. At trial, Ledtke was unable to identify the woman in the green car as anyone in the courtroom. An ATF agent who had been watching the station on June 28, testified that shortly after noon, a woman arrived in a green car, got out, and walked around the truck inspecting it. 4

Later on June 28, Frassetto finally got Starkweather and Anthony Chirico to go to the Arco station, remove a beer cooler from the truck, and throw it into the bushes behind the service station. Starkweather and Chirico were followed from the station by ATF agents and apprehended. The cooler was recovered by ATF agents; in it were found explosives, blasting caps, timing devices, and electrical boosters.

DISCUSSION

Appellants have made numerous attacks on their prosecution, raising such issues as the timing of their trial 5 and a veritable

checklist of other claims. Few of their contentions merit extended discussion. 6

A. Voir Dire

Appellants claim numerous defects in the court's voir dire which, they argue, was inadequate to safeguard their constitutional rights to be tried by an impartial jury. They contend principally that overcrowding in the courtroom created a chaotic atmosphere that resulted in anti-defense bias, and that the court's questioning was inadequate to ascertain the effects of the widespread pretrial publicity generated by the case and to allow an adequate screening of the venire. We disagree.

The conduct of the voir dire is...

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