DeCologero v. United States, s. 13–1938

• Decision Date: 21 September 2015
• Docket Number: 13–1946.,13–1945,Nos. 13–1938,s. 13–1938
• Parties: Paul A. DeCOLOGERO, Paul J. DeCologero, and John P. DeCologero, Jr., Petitioners, Appellants, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

802 F.3d 155

Paul A. DeCOLOGERO, Paul J. DeCologero, and John P. DeCologero, Jr., Petitioners, Appellants

v.UNITED STATES of America, Respondent, Appellee.

Nos. 13–1938

13–1945

13–1946.

United States Court of Appeals, First Circuit.

Sept. 21, 2015.

Matthew D. Thompson, with whom Butters Brazilian LLP was on brief, for appellant Paul A. DeCologero.

Jeanne M. Kempthorne for appellant Paul J. DeCologero.

Mark W. Shea, with whom Jean C. LaRocque and Shea and LaRocque, LLP were on brief, for appellant John P. DeCologero, Jr.

Jennifer Hays Zacks, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, SOUTER,^* Associate Justice, and LIPEZ, Circuit Judge.

Opinion

LIPEZ, Circuit Judge.

Appellants Paul A. DeCologero (“Paul A.”), Paul J. DeCologero (“Paul J.”), and John P. DeCologero, Jr. (“John Jr.”) were members of a Boston-based criminal organization known as the “DeCologero crew.” In 2006, all three were convicted of violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) and a number of related crimes. Appellants have now moved under 28 U.S.C. § 2255 to vacate their convictions. Their motions are based on two Federal Bureau of Investigation (“FBI”) reports that they claim are exculpatory evidence that the prosecution should have produced before trial under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court denied the motions, finding that the prosecution team was not aware of the reports prior to the trial and that the reports were not material for Brady purposes. We only address the materiality issue and affirm on that basis.

I.

We recite the pertinent facts in the light most favorable to the verdicts. Bucci v. United States, 662 F.3d 18, 20 (1st Cir.2011). The facts are described in greater detail in our opinion on the direct appeals. See United States v. DeCologero, 530 F.3d 36 (1st Cir.2008) (“DeCologero I ”).

In the 1990s, Paul A. ran the “DeCologero crew” criminal enterprise out of a gym he operated in Woburn, Massachusetts. His nephews Paul J. and John Jr., and other associates, assisted Paul A. in his efforts to control part of Boston's drug trade. The crew traded in guns and drugs, and used force to compete with rival criminal factions.

A. The Silva Murder

In 1996, members of the crew, acting on orders from Paul A., murdered a 19–year–old woman named Aislin Silva, because Paul A. was afraid that she would betray the crew to the police. The testimony at trial regarding Silva's killing came primarily from Stephen DiCenso, a former member of the DeCologero crew who was closely involved in the murder. According to DiCenso, in November 1996, the police found a stash of guns that the DeCologero crew had hidden in Silva's apartment. Paul A. decided to kill Silva because he was afraid that she would implicate him and his associates if the police interrogated her about the guns.

Initially, Paul A. planned to get Silva to overdose on heroin, and he instructed Paul J. to acquire some high-grade heroin for that purpose. DiCenso and another DeCologero crew member, Kevin Meuse, then gave Silva the heroin and told her that it was good cocaine. She took the heroin but did not overdose. When that plan failed, Paul A. ordered Meuse to kill Silva by force. DiCenso testified that Meuse brought Silva to DiCenso's father's apartment and killed her by breaking her neck. DiCenso and Derek Capozzi, another DeCologero crew member, subsequently arrived at the apartment to help Meuse dispose of the body. The three of them dismembered her body in a bathtub, stuffed her body parts into plastic garbage bags and gym bags, and then drove to Home Depot to purchase a shovel and other items to assist with Silva's burial. Then, they drove to a wooded-area on the North Shore of Massachusetts and buried her remains there. They disposed of the garbage bags and gym bags in a dumpster in Danvers, Massachusetts.

DiCenso's testimony was corroborated by the testimony of two other former members of the DeCologero crew, John P. DeCologero (“John P.”) and Thomas Regan. As a crew member, Regan took orders from Paul A. and robbed a number of Boston-area drug dealers with other associates. John P. was the brother of crew leader Paul A. and father of Paul J. and John Jr. John P. testified that he had heard Paul A. say that the heroin intended to kill Silva did not work. He also testified that John Jr. told him that Meuse had killed Silva and that DiCenso and Capozzi had helped Meuse dispose of her body. Regan testified that Paul A. told him that Meuse and DiCenso had killed Silva and cut up her body.

DiCenso's testimony was also corroborated by physical evidence, including the bloody trash bags and gym bags found in the dumpster in Danvers. DNA from the blood, hair, and tissue on the bags belonged to Silva. A security video from Home Depot showed Capozzi and Meuse leaving the store with a shovel and other items; a receipt from the Home Depot included the purchase of a shovel, gloves, and flashlights. Packaging for the flashlights and gloves was found in the Danvers dumpster. Meuse's fingerprint was also found on an item in the dumpster.

At trial, appellants attempted to argue, with little success, that another Boston-based criminal organization led by Vincent Marino, also known as Gigi Portalla, was responsible for Silva's murder. First, appellants contended that DiCenso was actually a member of Portalla's crew, not the DeCologero crew, because DiCenso had allegedly told a government informant that he worked for Portalla. However, on cross-examination, DiCenso denied that he made the statement and said that he had not worked for Portalla. Second, Portalla was seen at Silva's apartment a few weeks before her murder. However, the evidence demonstrated that Portalla was there with Paul A. to inspect the guns stored at the apartment to see if he wanted to purchase any guns from the DeCologero crew's stash. Finally, appellants argued that Regan was lying because he was not a member of the DeCologero crew, but in fact was a member of the rival Salemme faction.

Appellants' case was hurt by their failure to get Portalla and his associates to testify at trial. Paul A.'s initial witness list included Portalla and Portalla's crew members Charles McConnell and Robert Nogueira. However, Nogueira had died years earlier, and McConnell was never subpoenaed. Portalla was subpoenaed during trial, but he was in federal custody at the time, and could not be transferred quickly enough to testify. Paul A. appealed the district court's refusal to expedite Portalla's transport from a federal penitentiary in Pennsylvania or to provide a continuance until Portalla had arrived. We affirmed the district court's decision, faulting Paul A. for waiting until the middle of trial to make his request and stating that Portalla's proffered testimony was “tangential and potentially cumulative.” DeCologero I, 530 F.3d at 75.

For his part in ordering Silva's death, Paul A. was convicted of witness tampering conspiracy, witness tampering by misleading conduct, witness tampering by attempting to kill, and witness tampering by killing. Several predicate acts underlying his substantive RICO conviction also stemmed from his role in Silva's death. Paul J. was convicted of witness tampering conspiracy, witness tampering by misleading conduct, and witness tampering by attempting to kill; the latter two crimes were also predicate acts for his RICO conviction. John Jr. was not charged with any offenses relating to the Silva killing. All three were also convicted of other crimes not directly relevant to this appeal. Paul A. received a life sentence, Paul J. was sentenced to 25 years, and John Jr. was sentenced to 210 months. On direct appeal, we affirmed their convictions and sentences. See id. at 79.

B. The FBI Reports

In September 2010, more than four years after appellants' convictions, Paul J.'s former attorney received a fax containing two FBI reports describing interviews with a woman named Michelle Noe (the “Noe reports”). According to the reports, the interviews with Noe took place in the fall of 1999, about two years before appellants were indicted by a federal grand jury¹ and three years after Silva was killed. The first report is three pages and describes two interviews that Noe had with Lt. Eugene A. Kee Jr. of the Massachusetts State Police and Detectives Thomas J. Romeo and Michael P. Murphy of the North Reading Police soon after she was arrested on an outstanding warrant for an unarmed bank robbery on September 10, 1999. Noe reported that, in mid-November 1996, McConnell—her then-boyfriend—came home in a panic with his clothes and arms covered in blood. After washing the blood off his arms, McConnell put the bloody clothes in a green garbage bag, and left the house. About 30 minutes later, Noe looked outside the window and saw McConnell talking to Portalla on the sidewalk. When McConnell returned to the house, he initially told Noe that Portalla would kill her if he told her what had happened. Eventually, McConnell said, “I did something, I can't believe I did. She was your age. I'm not going into details. Remember the girl I used to take you by the house with [Portalla]. She worked at MVP. We did something to her, she ratted.” McConnell stated that Portalla and Nogueira were with him at the time, and if the police talk to Noe, she should say that McConnell was with her the entire evening. Although the report does not identify Silva by name, the parties do not dispute that Noe was referring to Silva as the girl who “worked at MVP,” a sporting goods store.

Later (Noe was not sure of the time frame), when the news reported that human remains were found in a dumpster, McConnell told Noe, “They're going to put the puzzle together. I had to get rid of the knife in salt water.” Noe also stated in the interview that she had visited Silva's apartment in Medford, Massachusetts...