U.S. v. Pipola

• Citation: 83 F.3d 556
• Decision Date: 29 April 1996
• Docket Number: D,No. 490,490
• Parties: 44 Fed. R. Evid. Serv. 456 UNITED STATES of America, Appellee, v. Anthony PIPOLA, Defendant-Appellant. ocket 95-1264.
• Court: U.S. Court of Appeals — Second Circuit

Page 556

83 F.3d 556

44 Fed. R. Evid. Serv. 456

UNITED STATES of America, Appellee, v. Anthony PIPOLA, Defendant-Appellant.

No. 490, Docket 95-1264.

United States Court of Appeals Second Circuit.

Argued Nov. 21, 1995.

Decided April 29, 1996.

John L. Pollok, New York City (Michael S. Pollok, Daniel E. Katcher, Hoffman & Pollok, New York, New York, of counsel), for Defendant-Appellant.

Mark W. Lerner, Assistant United States Attorney, Brooklyn, New York (Zachary W. Carter, United States Attorney, Emily Berger, Assistant United States Attorney, Eastern District of New York, Brooklyn, New York, of counsel), for Appellee.

Before: CARDAMONE, WALKER, and PARKER, Circuit Judges.

CARDAMONE, Circuit Judge:

Defendant Anthony Pipola appeals from a May 4, 1995 judgment entered in the Eastern District of New York following a jury trial before United States District Judge Sterling Johnson convicting him of a robbery conspiracy to obstruct commerce in violation of 18 U.S.C. § 1951(a) (1994) (count one), of aiding and abetting the obstruction of commerce by means of a robbery in violation of 18 U.S.C. §§ 2(a), 1951(a) (counts two and four), and of aiding and abetting the use or carrying of a firearm during a crime of violence in violation of 18 U.S.C. §§ 2(a), 924(c)(1) (counts three and five). He is presently serving concurrent 97-month prison sentences for the robbery and conspiracy counts and consecutive terms of 60 months and 240 months for each of the firearms charges. The total term of imprisonment is 397 months.

The principal issue for us to decide is whether the defendant's conviction for aiding and abetting the use and carrying of a firearm during a crime of violence should be affirmed. That is, we must decide whether Pipola acted simply as a cheerleader, egging on his co-conspirators to commit the robberies, or whether he actively assisted the other defendants in their use of firearms during the crimes they committed after leaving his house all-armed, so that his assistance facilitated the successful achievement of this additional offense. We conclude that Pipola performed the latter, not the former, role. Hence, we affirm.

FACTS

A. The Two Robberies

The charges against defendant and six other defendants arose in connection with two armed robberies, one on September 21 and the other on September 26, 1992, during which cash and checks were taken from employees of Anchor Armored Delivery, Inc. (Anchor). The earlier robbery took place outside the Dubovsky & Sons warehouse on Otto Road in Glendale, a neighborhood in Queens County, New York. The later crime occurred at Citibank on Metropolitan Avenue, in Ridgewood, Queens.

1. Early Failures

In the summer of 1992, before the September robberies occurred, Pipola suggested to some of his co-conspirators the possibility of robbing armored vehicles. After two scouting trips to observe the Dubovsky & Sons location, Pipola and several of the other defendants went to the warehouse in two cars. During that visit, Pipola slightly modified the robbery plan and, in anticipation of the appearance of the armored vehicle, handed a pistol to co-conspirator James Loizzo. That Pipola then enlisted defendant Steven Small's help in late August 1992 for a planned robbery at the Metropolitan Avenue office of Citibank. Small testified that his role was "to supply a getaway car, a gun, a police scanner, and walkie-talkies." When Pipola also asked Small if he had any friends who would participate, Small recruited defendant Thomas Donohue.

robbery attempt was aborted when the armored vehicle failed to appear.

When--in accordance with Pipola's instructions--Small, Donohue, and Donohue's brother went to Pipola's house in early September, Small spoke with Pipola privately and was told to follow defendant Don Louis "Dominick" Martorella to the bank on Metropolitan Avenue, where he and Martorella were to wait in a pre-arranged location. The plan was for the Donohues to lie in wait close to the bank and intercept the guards once they exited the armored truck. Small gave Donohue a .22 caliber pistol to use in the hold-up. Because Martorella and Small chose the wrong spot, they did not see the armored truck arrive and the four defendants were forced to return to Pipola's residence empty-handed. A similar attempt by Small and the Donohue brothers to rob the bank was equally unsuccessful.

2. Dubovsky Warehouse Robbery

Meanwhile, Pipola, undeterred by the earlier failed attempt to rob the armored vehicle at the Dubovsky & Sons warehouse, brought defendants Loizzo, Small, Donohue, and Martorella together at his house to discuss that target. During the discussions Small was told that he was to play the same role as he had for the aborted Citibank robbery--supplying a gun, scanner, and walkie-talkies, and bringing Donohue. When the group convened at Pipola's residence on September 20, it was decided that the robbery would take place the next day. Donohue arrived at Small's house on the day of the robbery and picked up two pistols: a .22 caliber pistol belonging to Small and Donohue's own .380 caliber pistol. After purchasing walkie-talkies, Small met Donohue, Loizzo, James Rogers, and Martorella at a McDonald's restaurant. Martorella and Loizzo had just come from Pipola's house, where they had discussed the plan with Pipola. The entire group then proceeded in two cars to the Dubovsky warehouse.

Loizzo testified that he and Donohue, wearing ski masks and brandishing guns, robbed the Anchor guards upon their arrival at the warehouse. Defendant Rogers, who also wore a mask, took the bag of money from one of the guards. Small and Martorella waited in other vehicles near the scene. Loizzo, Martorella, and Rogers went from the scene of the robbery to Pipola's house where Pipola opened the bag and distributed shares of the crime's proceeds to the participants. Small and Donohue also returned to Pipola's place that day and discussed the robbery, and later collected their share of the stolen money from Martorella.

3. Citibank Robbery

On September 25, 1992 Small and Donohue again went to Pipola's house, where they met with Pipola and Martorella to discuss the Citibank robbery. Small and Martorella were to take up positions in their vehicles near the bank; Donohue and Rogers were to wait near the deposit box. Small testified that although he was supposed to supply a gun, the others still had his gun from the September 21 robbery. Pipola, Martorella, Small, Donohue, Rogers, and Mark Jacobowitz met on the day of the Citibank robbery and finalized the plan. According to defendant James Rogers' testimony at trial, Pipola told the others that Jacobowitz--a Pipola associate who had not previously been involved--"was just going to drive around, more or less keep tabs on everybody and make sure everything [went] okay." After Pipola ascertained that everyone was ready, the other defendants left Pipola and drove to Metropolitan Avenue in three different vehicles, including a stolen getaway car. Shortly after the robbers took up their positions, the armored vehicle appeared. Rogers and Donohue approached the two guards, pointing their weapons. After disarming one of the guards, they took a bag of money and escaped.

Following the commission of this crime, Small picked up Rogers and Donohue and brought the money to Pipola, who again divided

                the proceeds into shares for the various defendants.   A few days later, several of the conspirators met twice at Pipola's house, drinking first to "a job well done" and later receiving a warning from Pipola not to spend the money or talk about the robberies
                

B. The Arrests, Trial, and Conviction

Fingerprints taken from the getaway car abandoned after the Dubovsky robbery led to the identification of defendant James Rogers. James Loizzo then became a confidential informant. The other conspirators were thereafter arrested and charged. The six co-conspirators--Loizzo, Rogers, Small, Donohue, Martorella, and Thomas Nocella--entered guilty pleas. Pipola stood trial and was convicted before a jury.

At trial, cooperating witnesses Small, Loizzo, and Rogers described the roles of the participants, including Pipola, as explained earlier. The government also produced the Anchor employees who witnessed the crimes, tapes of conversations in which Pipola incriminated himself, and telephone records reflecting communications between the conspirators. Jose Ledesma, an Anchor guard, testified that on September 21, 1992 he was attacked by three men as he exited the Dubovsky & Sons warehouse. Two of the assailants threatened him and his partner with guns, and took a bag containing checks and cash. Jose Lugo, another Anchor guard, described the September 26 robbery, stating that two men armed with handguns forcefully took currency that he and his partner were delivering to Citibank.

Pipola was convicted of all five counts. On appeal he contends the jury was improperly charged with respect to the aiding and abetting the use or carrying of firearms, the evidence produced against him was insufficient to support his convictions on those counts, and the trial court erred in admitting evidence of previous transactions involving him and his co-conspirators. We discuss each of these contentions in order.

DISCUSSION

I The Contested Jury Charge

A. Charge of Aiding and Abetting

It is Pipola's argument that the jury instruction with respect to aiding and abetting the use or carrying of a firearm was inconsistent with the rule laid down in United States v. Medina, 32 F.3d 40 (2d Cir.1994). Because Pipola did not object at trial to the charge he now challenges on appeal, his only hope for relief is in Rule 52(b) of the Federal Rules of Criminal Procedure, the "plain error" rule. But our authority to reverse for errors not urged to the trial court is narrow indeed. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993). First, of course, there must be an error;...