Moscatiello v. State, 4D15–3695
| Citation | 247 So.3d 11 |
| Decision Date | 06 June 2018 |
| Docket Number | No. 4D15–3695,4D15–3695 |
| Parties | Anthony MOSCATIELLO, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
J. Rafael Rodriguez of the Law Offices of J. Rafael Rodriguez, Miami, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
This is an appeal from appellant's conviction for premeditated murder and conspiracy to commit first degree murder. Although appellant raises many issues, one requires reversal. The trial court allowed into evidence, over the objection of the defense, the testimony of a witness at a bond hearing for appellant, where the witness had died subsequent to the bond hearing. In his testimony, the witness related statements by John Gurino which amounted to an admission that Gurino was the shooter in the murder and that he "got the work from Moscatiello [appellant]." We conclude that this statement—that Gurino "got the work from Moscatiello," which featured prominently in both the opening and closing arguments of the State, was inadmissible hearsay. Because the State has not shown that it was harmless beyond a reasonable doubt, we must reverse.
On February 6, 2001, Gus Boulis, a successful businessman, left his office in Broward County around 9 p.m. As he was heading south on Miami Road, a car stopped in front of him. Boulis stopped his vehicle, and another car pulled in behind Boulis so that he was boxed in. An innocent bystander was in a third car that stopped behind the first two cars. A red Jetta pulled up behind the bystander's car. While they were all stopped in a row, a black Mustang came from the opposite direction, and pulled up next to Boulis's vehicle. Someone in the Mustang fired several shots, killing Boulis. After the shooting, the bystander noticed that the red Jetta behind him drove off the road around him, and then took off. Later, he saw the red Jetta circling the block, perhaps looking for him. The bystander memorized the partial tag number of the temporary tag on the Mustang and, when he got home, called 911. Testimony revealed that both the Mustang and the Jetta were owned by Anthony "Little Tony" Ferrari, a co-defendant in this case.
The next day Dwayne Nicholson, an employee of Ferrari, called to report his knowledge about the murder. Eventually, he gave several statements implicating both Ferrari and Anthony "Big Tony" Moscatiello (appellant) in the murder. Thus, from 2001, the authorities knew of evidence connecting appellant to the murder. It took an additional four years for them to gather all the evidence and indict him, along with Ferrari and James Fiorillo, another employee of Ferrari, for the murder.
The State's theory of the case was that Moscatiello and Ferrari were hired by Adam Kidan to protect him from Boulis, from whom Kidan had purchased a business. For reasons somewhat unclear, Moscatiello determined that Boulis needed to be killed so that Moscatiello and Ferrari would not lose the protection payments from Kidan. The complicated story commences with the sale of the business from Boulis to Kidan. While there was some documentary evidence supporting meetings and payments, the direct testimony linking Moscatiello to the crime all came from witnesses each of whom received substantial benefits for their testimony.
The victim, Gus Boulis, had become successful as the owner of Miami Subs sandwich shops before founding SunCruz Casinos, a fleet of gambling casino boats. Eventually, the Attorney General's office advised Boulis that he had to sell SunCruz because he wasn't an American citizen when he started the business. As a result, Boulis sold the business to Adam Kidan and Jack Abramoff. Boulis received $23 million in cash and was supposed to get another $20 million, which he never received. The business relationship between Boulis and Kidan soured. Kidan was afraid that Boulis might harm him in retaliation for lack of payment, so he reached out to his connections in New York, and asked Moscatiello to assist him. Kidan wanted the word out that he, Kidan, had "connections." Moscatiello introduced Kidan to Ferrari in Miami to provide security or protection. Ferrari bragged to people that he was John Gotti's nephew and head of the Gambino family in Florida.1 For this protection, Kidan entered into a deal with Moscatiello for Moscatiello to be a "consultant" supplying beverages and paper goods for the gambling casino boat. Through Ferrari's business in Miami, Ferrari would arrange for Kidan's protection. Kidan paid Moscatiello monthly for the protection.
In November 2000, Moscatiello flew to Miami. Ferrari brought along Dwayne Nicholson and several other bodyguards as security to pick up Moscatiello from the airport. Ferrari, Moscatiello, and Nicholson rode in one vehicle, while the rest of the security team rode in others. While they were driving to a hotel, Nicholson testified that Ferrari and Moscatiello discussed the fact that they did not want to pay Boulis the extra money he was owed on the sale of Sun Cruz. Ferrari responded that Nicholson would take care of Boulis. Moscatiello turned to Nicholson and said, Nicholson did not say anything, because he thought he would be killed if he didn't agree. Ferrari had previously asked him whether he would kill Boulis, and Nicholson had declined.
The next day, Ferrari and Nicholson picked up Moscatiello and drove to the SunCruz office to show Nicholson the office, the ships, and the vehicle that Boulis drove. Moscatiello said that Boulis had to be taken care of prior to an upcoming court date. After Moscatiello was dropped off, Nicholson again complained to Ferrari that he wasn't going to kill Boulis. Ferrari told him just to surveil Boulis, and he would figure out later what to do.
Meanwhile, Kidan became frustrated with his relationship with Ferrari and his protection service. While Kidan was out of the country, he terminated his relationship with Ferrari. That same day, Boulis was killed.
James Fiorillo was another assistant to Ferrari, who was more like a son to him. Fiorillo did multiple errands for Ferrari and other tasks. On the day of the murder, Fiorillo arrived at Ferrari's home in a black Mustang belonging to Ferrari, which Fiorillo frequently drove. He then switched vehicles with Ferrari. Ferrari drove away, and Ferrari's girlfriend followed in his red Jetta. Fiorillo also had access to several of Ferrari's phones.
Although the innocent bystander witnessed the murder, he could not identify anyone in any of the vehicles. The partial license number he obtained did match up to the black Mustang. Thus, no independent witness testified as to who was present at the scene. However, Fiorillo knew about the murder and what occurred.
Fiorillo went to Ferrari's home after the murder. Ferrari gave him a bag containing a gun, which Fiorillo disposed of. Fiorillo also drove the Mustang to a repair shop. The next day, Fiorillo met with Ferrari and Moscatiello at a hotel. Moscatiello told Fiorillo to drive to New York and to report the Mustang as stolen, which he did. In New York, Fiorillo met with Moscatiello. When Moscatiello asked for the details of the events leading up to the murder and the murder itself, Moscatiello became very angry. He told Fiorillo to stay in New York, and Ferrari's girlfriend allowed Fiorillo to stay with her for a week there, after which he stayed in a hotel. Fiorillo worked for Moscatiello for a while and then returned to Florida sometime in April. Ultimately, Fiorillo was arrested and charged with conspiracy to commit murder for which the State was seeking the death penalty, as the State originally believed that he was the shooter. He reached a plea deal in which he agreed to testify against Moscatiello and Ferrari in exchange for a six-year prison sentence.
When Kidan returned to Florida after the murder, he met Moscatiello in his hotel room and asked if he knew what happened. Moscatiello said, "Yes, it was very unfortunate, it wasn't supposed to happen that way." Moscatiello admitted that it was his decision. He explained that the plan was to kidnap Boulis, kill him, and bury his body on a farm where he would not be found for years. Kidan asked who was involved, and Moscatiello told him that the shooter came down from New York and went home on Amtrak. Fiorillo drove the car, and Ferrari was in another car. Kidan knew that a Mustang had been used in the murder and he knew Fiorillo had one, so he asked Moscatiello if that was the same car. Moscatiello told him it was the same Mustang. Kidan complained that that car should not have been used.
Kidan had made significant payments to both Moscatiello and Ferrari for protection. In June 2001, Kidan made a last payment, and then SunCruz went into bankruptcy. Later, Kidan was being investigated by the FBI in connection with the murder. In April 2004, Kidan met Moscatiello in New York and explained that he was being investigated by the government. He told Moscatiello that he thought someone was cooperating with the government. Kidan asked about the shooter, and Moscatiello told him that the shooter had died after he was shot in a deli in Boca Raton. Kidan googled the incident and discovered that the man who had been shot was named John Gurino.2
Kidan was convicted of wire fraud in connection with the SunCruz purchase and sale and went to prison in 2006. He contacted law enforcement about cooperating in the Boulis murder investigation in 2006, and his original sentence of five years was cut to twenty-seven months. He testified against Moscatiello at the trial, giving details of the SunCruz sale and Moscatiello's activities.
The day after the murder, Nicholson was watching the news and saw that Gus...
To continue reading
Request your trial
-
Ferrari v. State, 4D14-464
...presented in the trial of Ferrari. Moscatiello appealed, and this court reversed his conviction for a new trial. Moscatiello v. State , 247 So.3d 11 (Fla. 4th DCA 2018). In our opinion, we extensively recited the facts, which are the essential facts of this appeal as well. We therefore repe......
-
Adams v. State
...the statement that inculpated the defendant was inadmissible unless the statements were inextricably intertwined. Moscatiello v. State , 247 So. 3d 11, 21 (Fla. 4th DCA 2018)3 (discussing Brooks v. State , 787 So. 2d 765 (Fla. 2001) ).In Moscatiello , we noted our two prior decisions, which......
-
Hearsay exceptions: declarant unavailable
...by cross-examination to bring out inconsistencies and contradictions, the search for the truth has occurred. Moscatiello v. State , 247 So.3d 11 (Fla. 4th DCA 2018). HEARSAY EXCEPTIONS: DECLARANT UNAVAILABLE 12.3 Florida Family Law Trial Notebook 12-6 Wilson v. State Party could not establi......