U.S. v. Procopio

Decision Date04 June 1996
Docket NumberNos. 95-1549,s. 95-1549
Parties45 Fed. R. Evid. Serv. 142 UNITED STATES of America, Appellee, v. Francis J. PROCOPIO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Vincent A. LATTANZIO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Bernard KILEY, Defendant, Appellant. to 95-1551. . Heard
CourtU.S. Court of Appeals — First Circuit

Richard J. Shea, by Appointment of the Court, Boston, MA, for appellant Francis J. Procopio.

Kevin G. Murphy, by Appointment of the Court, with whom Dusel, Murphy, Fennell, Liquori & Powers, Springfield, MA, was on brief, for appellant Vincent A. Lattanzio.

Stewart T. Graham, Jr., by Appointment of the Court, with whom Graham & Graham, Springfield, MA, was on brief, for appellant Bernard Kiley.

C. Jeffrey Kinder, Assistant United States Attorney, Springfield, MA, with whom Donald K. Stern, United States Attorney, Boston, MA, was on brief, for the United States.

Before SELYA, CYR and BOUDIN, Circuit Judges.

BOUDIN, Circuit Judge.

On April 9, 1991, three armed, masked men stole $1.2 million in cash about to be loaded into an armored car belonging to Berkshire Armored Car Services, Inc. ("Berkshire"). The crime occurred in Pittsfield, Massachusetts. On June 10, 1993, the government indicted Bernard J. Kiley, Vincent A. Lattanzio, Donald J. Abbott, Francis J. Procopio and Charles R. Gattuso. The government believed that the first three men had committed the robbery and that the other two had aided the venture.

The indictment charged all five men with conspiracy to interfere with, and interference with, commerce by means of robbery, 18 U.S.C. § 1951, and with robbery of bank funds, 18 U.S.C. §§ 2113(a). Kiley and Procopio were also charged with money laundering, 18 U.S.C. §§ 1956(a)(1)(B)(i), (ii). A superseding indictment was handed down on September 30, 1993, adding firearms counts against Lattanzio and Kiley, 18 U.S.C. §§ 922(g)(1) & 924(c)(1), (2), as well as a forfeiture count against Kiley, 18 U.S.C. § 982.

In due course, Gattuso pled guilty to conspiracy and entered into a cooperation agreement with the government. Abbott was murdered prior to trial. The district court severed the firearms charges from the other counts; the three remaining defendants (Kiley, Lattanzio and Procopio) were convicted on all other counts after a 14-day trial beginning on October 6, 1994. A second jury convicted Kiley and Lattanzio on the firearm counts on December 14, 1994. All three defendants appealed, praying for new trials on all counts.

In briefs and oral arguments by able counsel, Kiley, Lattanzio and Procopio raise three major challenges to their convictions. First, claiming that various government searches violated the Fourth Amendment, they contend that the district court erred in failing to suppress evidence. Second, defendants argue that the court erred in admitting evidence of possible preparations for a later robbery. Finally, defendants urge that remarks by one of the prosecutors constituted misconduct warranting a new trial. We affirm.

I. BACKGROUND

Because there is no challenge to the adequacy of the evidence, we do not describe what the jury would have been entitled to find, viewing the evidence in the light most favorable to the government. Instead, we offer a neutral description of the evidence at trial to illuminate the defendants' claims of error and to provide a background against which to judge defendants' claims of prejudice. Facts relevant to the suppression motions are set forth separately in the discussion of those issues.

The government's case began with the testimony of the two Berkshire guards, Allan Mongeon and James Cota. They testified that three men, armed and masked, accosted them while they were loading bags of money into a Berkshire armored truck in Pittsfield on April 9, 1991. The door of the loading bay was open, in violation of regular procedures, because the truck inside the bay was loaded with pallets, and a second truck, which the guards decided to use, was parked directly outside the bay.

Although the guards offered little physical description of the robbers, they said that one of the three men had been older and shorter than the other two and that he had a salt-and-pepper mustache; a false mustache matching that description was later recovered from Kiley's home. Mongeon was able to get a look at the right front portion of the robbers' get-away car; he described it at the time as a tan sedan of late-70s vintage, probably a Plymouth Volare; he later identified as the car he had seen a tan-and-brown 1979 Buick Regal, which had belonged to Procopio at the time of the robbery.

In addition, Mongeon testified that one of the robbers had called out "Chuck, what are you doing." None of the individuals claimed by the government to have carried out the robbery--Kiley, Lattanzio, and Abbott--was named Chuck, but Gattuso was sometimes referred to by that name. However, the government established that Gattuso was well known to Mongeon (Gattuso having been fired by Berkshire two weeks before the robbery); the point was to suggest that Mongeon would have recognized Gattuso's voice had he been present.

Gattuso then testified. He said that Kiley had approached him early in March 1991, at the suggestion of Gattuso's brother Dino, for help in planning the Berkshire robbery. Gattuso later decided to join, bringing his close friend Procopio to a second meeting. At a final meeting, Gattuso gave Kiley details of Berkshire's operations; Procopio agreed to provide and dispose of the getaway vehicles. Kiley told Gattuso that he would carry out the robbery along with two unnamed confederates. Procopio later told Gattuso that one of the participants in the robbery was named "Vinnie."

Charles Parise, an unindicted co-conspirator and friend of Gattuso's, testified that Procopio brought a car--the same Buick Regal identified by Mongeon as the get-away car--to Parise's garage at his home in Pittsfield on the night of the robbery. Parise said that he was forced to hide the car--Procopio threatened him and his family--and to change its tires, and was later paid $8,000 for his trouble. This money he returned to the government. The defense cast doubt on Parise's credibility by pointing to statements by Parise's girlfriend suggesting that he had received more than $8,000.

The next several days of the trial were devoted to the government's painstaking presentation of evidence of cash transactions, totaling nearly $330,000, by the defendants and their families in the months immediately following the robbery. For example, Kiley and Lattanzio travelled together to Jamaica, also treating several friends to the trip. The defendants' lavish spending occurred in spite of the fact that Kiley had no visible means of support, Procopio had been insolvent prior to the robbery, and Lattanzio had never declared over $15,000 of income in any one year.

In addition, the government presented evidence of guns, a state police uniform, handcuffs, and a radio scanner that were seized from Kiley's apartment at 81 Intervale Street at the time of his arrest in June 1993; there was evidence that Lattanzio, whose father owned the building, was also spending time in the apartment, and that two of the guns seized there belonged to Lattanzio. Finally, the government played tapes of telephone conversations among Kiley and Lattanzio (who were in custody) and Procopio (out on bail) in which they discussed getting "back into business" and holding "another party" to which no "children" would be invited.

The defendants called a total of five witnesses, who testified to alternative sources for the funds that the defendants spent following the robbery. The defense claimed Kiley had funds from prior crimes; that Procopio had money from legitimate and illegitimate businesses that he had been hiding from the IRS and his ex-wife; and that John Lattanzio, Sr., Vincent's father and the depositor of much of the cash in question, had gambling winnings, again not reported to the IRS. In addition, the defense tried to establish that Kiley had been in Florida at the time Gattuso alleged some of their meetings had taken place.

II. SEARCH AND SEIZURE

Defendants challenge the district court's denial of several suppression motions before trial. Procopio objects to a search of his residence (in 1992); Kiley to searches of his residence (in 1992 and 1993) and to searches of his papers, recovered from a stolen safe (in 1991) and a briefcase seized after a traffic stop (in 1992). Lattanzio joins in the challenge to the admission of evidence seized from Kiley's Intervale Street apartment in 1993.

June 1992 search of Kiley's and Procopio's properties. In June 1992, Agent Howe of the IRS prepared an affidavit in support of a warrant to search four Pittsfield properties:

* 37 Taubert Ave. (Kiley's residence)

* 124 Crane Ave (Gattuso's residence)

* 56 South Onota St. (Procopio's residence)

* 483 West Housatonic St. (Procopio's garage)

Howe's affidavit set out tips from four confidential informants. A first confidential informant (CI-1) had said that Kiley, Charles and Dino Gattuso, and Procopio had participated in the robbery; CI-1 had the information from Armand Bigelow, who heard it from his friend Dino Gattuso. The second tip, from CI-2, was that Charles Gattuso had talked about a $10,000 trip to California with his family, and had said that he still had $80,000 in cash that he was not "stupid enough to put in the bank." CI-3 stated that Charles Gattuso had buried money in his back yard and corroborated the information about the Gattuso family trip to California. CI-4 said that he had overheard a conversation in which Kiley's nephews said that Kiley was responsible for the "armored car heist" and flashed a large amount of currency to back up the boast.

The Howe affidavit also described a pattern of spending by Kiley, Gattuso, and Procopio that was...

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