U.S. v. Capozzi

• Decision Date: 06 October 2003
• Docket Number: No. 00-1670.,00-1670.
• Citation: 347 F.3d 327
• Parties: UNITED STATES of America, Appellee, v. Derek CAPOZZI, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 327

347 F.3d 327

UNITED STATES of America, Appellee, v. Derek CAPOZZI, Defendant, Appellant.

No. 00-1670.

United States Court of Appeals, First Circuit.

Heard July 31, 2003.

Decided October 6, 2003.

Patricia A. Garrity, with whom Joseph C. Laws, Jr., Federal Public Defender, was on brief for appellant.

Steven L. Lane, United States Department of Justice, with whom Michael J. Sullivan, United States Attorney, and Christopher F. Bator, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, STAPLETON,^* Senior Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

This case arises from defendant Derek Capozzi's unlawful attempt to force a used car dealer to refund the purchase price of a truck with which he was dissatisfied. After a ten-day trial, a jury convicted Capozzi of being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), attempted extortion affecting interstate commerce, see 18 U.S.C. § 1951(a) (the "Hobbs Act"), and use of a firearm during the attempted extortion, see 18 U.S.C. § 924(c). Capozzi challenges his convictions on several grounds. We affirm.

I.

We set forth the facts underlying Capozzi's convictions in the light most favorable to the verdict. See United States v. Diaz, 300 F.3d 66, 69 (1st Cir.2002). In January 1998, Capozzi purchased a used Chevy Blazer ("truck") for $4,500 from Gardner Park Auto Sales ("Gardner Park") in Peabody, Massachusetts. Capozzi quickly came to believe that the truck was a lemon. On the evening of February 17, 1998, Capozzi and his friend, Jason Stone, left the truck at Gardner Park with a note telling Michael McGrath, the owner of the dealership, that Capozzi wanted his money returned. At the time, Capozzi was living approximately three hundred yards from Gardner Park in Room # 2 at the Charles Hotel with his girlfriend, Erica Murphy. Stone and his companion, Santina Luca, were staying with Capozzi and his girlfriend.

The next afternoon Capozzi and Stone, both armed, returned to see McGrath. Capozzi, who was a convicted felon, carried a revolver that he had purchased from Stone several months earlier. Stone carried a knife that appeared to be a gun because the handle looked like the butt of a revolver. After entering McGrath's office, Stone waited by the door while Capozzi demanded a refund of his money. McGrath refused because Capozzi had put a large dent in the truck. Capozzi tried to bargain, telling McGrath that he would accept $4,000 instead of $4,500. When McGrath again refused, Capozzi unzipped his coat and showed McGrath the gun that was tucked into his pants. McGrath still refused to return Capozzi's money. Angered, Capozzi placed the barrel of the gun to McGrath's head and screamed, "I'll f____ kill you if you don't give me my money."

As the dispute turned violent, a business associate of McGrath's, Carlo Fahkri, and his brother, John Fahkri, happened to arrive at Gardner Park to see McGrath. They entered McGrath's office and tried to defuse the situation. As the Fahkris attempted to mediate, a telephone rang in another part of the building. McGrath told Capozzi that he needed to answer the call and bolted from the room. After escaping, McGrath called the police. Stone, suspecting that McGrath would call the police, took the gun from Capozzi and returned to the Charles Hotel, where he hid Capozzi's gun and his knife. Shortly, the Peabody police arrived at Gardner Park and arrested Capozzi. Several minutes later, another officer located Stone walking from the Charles Hotel toward Gardner Park and arrested him. Because Stone's knife appeared to be a gun, the witnesses on the scene incorrectly told the police that both Stone and Capozzi were carrying guns.

At the time of the Gardner Park incident, authorities were investigating whether Capozzi was involved in a bank robbery in Beverly, Massachusetts. In due course, a federal grand jury returned a five count indictment against Capozzi. The first three counts (identified in the introduction) related to the attempted extortion at Gardner Park; the other two involved the alleged bank robbery. The district court severed the counts relating to the attempted extortion and, following the denial of Capozzi's suppression motion (which we discuss in greater detail infra), the case proceeded to trial. As set forth above, a jury convicted Capozzi of all three counts.

II.

Capozzi appeals his convictions alleging three errors. He first challenges the district court's refusal to suppress evidence of the gun used in the attempted extortion, arguing that the search warrant under which the police seized the gun was obtained without probable cause and in bad faith. Capozzi next contends that the Hobbs Act count should have been dismissed because application of the Act to Capozzi's conduct exceeds Congress' Commerce Clause authority. Finally, Capozzi argues that even if the government could have proceeded with the Hobbs Act prosecution, the district court nevertheless should have dismissed the Hobbs Act count because the government failed to establish that Capozzi's conduct interfered with interstate commerce.

A. The Suppression Ruling.

The district court agreed with Capozzi that the search warrant which led to the discovery of the gun used in the extortion attempt was issued without probable cause. Nonetheless, the court declined to suppress the evidence of the gun, relying on "the good faith exception" established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Capozzi contends the district court's Leon ruling was erroneous. Applying de novo review (but accepting the district court's factual findings absent a demonstration of clear error), see United States v. Owens, 167 F.3d 739, 743 (1st Cir.1999), we disagree.

We begin our explanation with a recitation of necessary background. Immediately after the Peabody police arrested Capozzi and Stone, the officers on the scene shared information with each other about the crime. One officer told his colleagues that he recently had responded to an emergency call from Capozzi's room at the Charles Hotel. Based on this information, the police obtained Capozzi's consent to search his room while he remained in custody. With Erica Murphy and Santina Luca present, several Peabody officers searched the room for more than an hour but could not find any weapons.¹

The next day, February 19, 1998, Capozzi and Stone were arraigned in the Peabody District Court. Murphy and Luca were among those present at the arraignment. Later that day, while walking his beat, Peabody Officer Daniel Murphy, who had been involved in the searches of Capozzi's hotel room, saw Erica Murphy and Santina Luca on the street near the Peabody District Court. Officer Murphy recognized the women from the previous day and asked them if Capozzi had made bail. One woman replied that they had just come from the court and that Capozzi's bail had been set at $50,000; the other stated that the next court date was set for February 23, 1998.

That same afternoon, Sergeant Thomas Griffin of the Salem Police Department received a telephone call from an informant. The informant told Griffin that she had previously provided tips to another Salem detective and that she had new information to report. She reported that she had been present at the Peabody District Court that morning where she overheard two women discussing a gun and a knife hidden in a hotel room in Peabody. The informant overheard the women say that the police had been unable to find the weapons because they were wrapped in a sock. The informant specified that the gun and knife were used in an assault on a Peabody businessman. The informant remained anonymous.

After receiving this tip, Griffin called the Peabody police to report the tip, but they took no immediate action. Griffin also told Salem Detective Harry Rocheville about the information he had received. Rocheville, in turn, relayed the tip to F.B.I. Special Agent Gerald Mohan, who was investigating Capozzi's possible involvement in the Beverly bank robbery.

While traveling to work on February 19, 1998, Massachusetts State Police Trooper Robert Irwin learned from the media that Capozzi and Stone had been arrested for the Gardner Park incident. Capozzi was a suspect in two of Irwin's ongoing investigations. Later that day, Irwin contacted Peabody Detective Richard Robillard, who had been involved in investigating the Gardner Park incident, to learn more about the attempted extortion. Robillard told Irwin that Capozzi was suspected of having a gun, but that searches of the Charles Hotel, Gardner Park, and the surrounding area had failed to uncover it.

Irwin offered Robillard the services of the State Police Dive Team for the next day to search a waterway located behind Gardner Park. The dive team's search did not locate any weapons. Officer Murphy was among those present at the dive search; he told Irwin about his encounter the day before with Erica Murphy and Santina Luca. F.B.I. Agent Mohan was also present at the dive search; he told Irwin that he had learned from Rocheville about the anonymous tip in which two women at Capozzi's arraignment stated that the gun used in the crime was hidden in a hotel room in Peabody.

After the dive search, Irwin began to prepare a search warrant affidavit based on the information that he had collected. Before completing the affidavit, Irwin called Rocheville at the Salem Police Department to learn more about the anonymous tip. Rocheville described the substance of the informant's telephone call.

Irwin prepared an affidavit to obtain a search warrant for Capozzi's room at the Charles Hotel. The Irwin affidavit described the crime and the unsuccessful search to which Capozzi consented. It also described the fruitless searches of the areas surrounding Gardner Park. Further, it reported the substance of the informant's anonymous tip to the Salem Police and Officer...