84 F.3d 61 (2nd Cir. 1996), 715, United States v. Pascarella

Docket Nº:715, 716 and 784, Dockets 95-1213 (L), 95-1247 and 95-1250.
Citation:84 F.3d 61
Party Name:UNITED STATES of America, Appellee, v. John PASCARELLA, Mark D'Andrea, John Breheney, Defendants-Appellants.
Case Date:May 10, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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84 F.3d 61 (2nd Cir. 1996)

UNITED STATES of America, Appellee,


John PASCARELLA, Mark D'Andrea, John Breheney, Defendants-Appellants.

Nos. 715, 716 and 784, Dockets 95-1213 (L), 95-1247 and 95-1250.

United States Court of Appeals, Second Circuit

May 10, 1996

Argued Jan. 16, 1996.

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[Copyrighted Material Omitted]

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Christine E. Yaris, New York City (Nancy A. Perry, New York City, of counsel), for Defendant-Appellant, John Pascarella.

Felix T. Gilroy, Staten Island, NY, for Defendant-Appellant, Mark D'Andrea.

Emily Daniel, New York City (Milner & Daniel, New York City, of counsel), for Defendant-Appellant, John Breheney.

Paul Weinstein, Assistant United States Attorney for the Eastern District of New York (Zachary W. Carter, United States Attorney, Emily Berger And Shari D. Leventhal, Assistant United States Attorneys for the Eastern District of New York, of Counsel), for Appellee, U. S.

Before: NEWMAN, Chief Judge, MAHONEY and FRIEDMAN, [*] Circuit Judges.

FRIEDMAN, Circuit Judge:

The appellants Pascarella, D'Andrea and Breheney were convicted by a jury in the United States District Court for the Eastern District of New York (Glasser, J.) of conspiracy in violation of 18 U.S.C. § 371 and interstate transportation of stolen property, in violation of 18 U.S.C. § 2314. Pascarella and D'Andrea also were convicted of bank fraud, in violation of 18 U.S.C. § 1344. The appellants challenge their convictions on various grounds. We affirm.


Viewed in the light most favorable to the government, the evidence shows the following facts:

This criminal prosecution grew out of a conspiracy by the appellants and numerous others to steal and cash, according to the government's approximation, one-half million dollars in Ford Motor Company (Ford) rebate checks. Ford sends rebate checks to its dealerships around the country for issuance to purchasers of vehicles during promotional programs. The checks were for different amounts (frequently $2,000), had a blank space for the payee's name (which the dealer filled in), and were signed by Ford. Although the customers usually use the checks as a down payment on a vehicle, the checks are negotiable and may be cashed or deposited in customers' bank accounts. The checks here involved were stolen from Ford dealerships in New Jersey, where some of the conspirators worked, and transported to Staten Island, N.Y., where they were cashed or deposited in bank accounts.

The conspiracy began in the summer of 1992, when a co-defendant, George Bannon, stole rebate checks from Bannon's employer, Sansone Lincoln Mercury (Sansone), after

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Bannon was forced to leave his job there as a result of theft accusations. Although Bannon initially did not expect payment for the checks when he turned them over to co-defendant Jack Smith, the latter paid Bannon for them. Smith or his associates then cashed the checks on Staten Island at two check-cashing establishments. Over the next several months, Bannon continued to steal rebate checks from Sansone and several other Ford dealerships and turn them over to Smith for cashing.

As part of his efforts to obtain rebate checks for Smith, Bannon told James Fox about the scheme. Fox agreed with Bannon that they would split one-third of the value of any check that Fox obtained and gave to Bannon and that was cashed. Fox subsequently received money from Smith for checks Fox had obtained from Bannon.

Among the people at automobile dealerships to whom Fox spoke about obtaining rebate checks was Victor Vega, who then approached the appellant Breheney. Vega had worked previously with Breheney, both at automobile dealerships and in the gambling business--Breheney as a bookmaker and Vega as his "runner." Vega, with the help of another co-defendant, subsequently obtained rebate checks and gave them to Fox and Bannon. Vega expected to be paid about $60,000 for one batch of stolen checks, which he intended to split equally with Breheney and another conspirator.

Other members of the conspiracy made similar arrangements, thereby creating a network of New Jersey automobile dealership employees who stole rebate checks from their employers, and go-betweens who transmitted the checks to Fox, Bannon and Smith.

On receiving the stolen checks, Smith arranged for them to be cashed by a friend at a check-cashing agency. The appellants Pascarella and D'Andrea cashed stolen rebate checks that could be traced back to Smith and the co-defendants who stole the checks from the dealerships.

D'Andrea obtained $14,000 in stolen rebate checks from his business partner, Ronald Bartiromo. He tried to cash the checks, but upon learning from a bank employee that a cash transaction of more than $10,000 would trigger a government reporting requirement, he instead deposited the checks in his personal bank account. Later the same day, Bartiromo cashed three separate $3,800 checks drawn on D'Andrea's account, thereby again avoiding the reporting requirement. Several days later, when the bank discovered that the checks were stolen, D'Andrea repaid the $11,400.

Pascarella assisted his nephew in opening a bank account on Staten Island under a fictitious name, which was used to cash stolen rebate checks. He also cashed some checks himself through a local used car dealer.

When Ford discovered the theft of the checks, it stopped payment on them. After the banks refused to pay the stolen checks, the participants in both the check-stealing and check-cashing aspects of the conspiracy sought to collect the money allegedly due them.

On the check-stealing end, Vega began pressuring Bannon about payment for the checks. Breheney also spoke with Bannon on the telephone several times, stating that he had been told that the checks in fact had cleared and that he wanted his money. He and Vega made a series of calls to Bannon and others to determine what had happened to the checks.

Breheney also met with Smith, who gave him dishonored rebate checks to show that they had not cleared and explained that Bannon had been paid for the checks before they discovered that the checks were not clearing. Afterwards, Breheney told Vega that in the future they could turn over any rebate checks directly to Smith, without working through Bannon. Following this meeting, Smith and Breheney also became involved together in various gambling transactions.

On the check-cashing end, during the summer of 1993, Smith and his associates, including co-conspirators Gene Lamberti and Carl Benfante, began threatening Bannon and Fox and demanding that they return the money Smith had given them for the checks that later bounced. Benfante told Bannon that he wanted "his money," and said, "you don't want anything to happen. You don't

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want to have to work with a broken arm or a broken leg. Just get me my money." Bannon finally paid a total of $16,800, although he stated that the checks for which he was paid were not the ones that did not clear. At one point, Lamberti told Bannon that "[y]ou have to think of checks as a loan, not that they are forever, and you're going to have to pay him back."

Fox also was asked to repay the money he had received for the checks. Fox refused to pay, however, and told Smith that "that's not the agreement you made." Another extorter told him, "it looks like we're going to have to come up there and rip your fucking arm off." He claimed that the money he received was for checks that had cleared.

Smith and his associates hired Vega and Breheney to locate Bannon and to lure Fox to a meeting with Smith and his associates in order to force them to return the money they had received. Breheney, through Vega, found Bannon and told Smith where he was. Breheney also spoke to Fox about the checks. Although Breheney later decided to discontinue working with Smith, Breheney told Vega that he and Smith's associates were going to "grab" Fox, apparently to attack him in order to convince him to pay them. At the planned meeting, Lamberti was to "smack [Fox], wave a gun in his face, scare him." Before the meeting could took place, however, Breheney was arrested.


Pascarella's contentions relate to problems of conflict of interest involving his attorneys and his decision to represent himself at trial.

A. The facts relating to these issues are as follows:

During the investigation of this case, attorney Susan Shatanoff represented Pascarella. At his arraignment hearing on April 5, 1995, however, Felix Gilroy represented him. At that hearing, the prosecutor pointed out a potential conflict of interest because Gilroy had represented D'Andrea in the investigative phase of the case.

The magistrate judge then explained at length to Pascarella the potential dangers of two defendants sharing counsel, told him that he had the right to a separate lawyer (if necessary, court appointed) who would have no conflict, and "strongly recommend[ed]" that "you have a lawyer in this case who has never had anything to do with anybody else in this case." Pascarella stated that he understood the problem, but decided to "just go ahead and keep Mr. Gilroy."

A few days later the prosecution wrote to the district court stating that at the arraignment hearing the magistrate judge "expressed concern that the Curcio inquiry was not sufficiently broad, and asked that Your Honor be made aware so that a renewed Curcio inquiry could be undertaken."

At the initial case conference on April 14, 1995, a different attorney, Eugene Lamb, represented Pascarella. The judge did not pursue the conflict question.

The trial began on Monday, October 31, 1995. On the Thursday before that date, Pascarella sought to substitute attorney Christine Yaris for Lamb...

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