U.S. v. DeMasi

• Decision Date: 02 August 1994
• Docket Number: 92-2064,Nos. 92-2062,s. 92-2062
• Citation: 40 F.3d 1306
• Parties: UNITED STATES, Appellee, v. Ralph DeMASI, Defendant, Appellant. UNITED STATES, Appellee, v. Ronald MARTEL, Defendant, Appellant. UNITED STATES, Appellee, v. Robert PAPA, Defendant, Appellant. UNITED STATES, Appellee, v. Francis BONASIA, Defendant, Appellant. UNITED STATES, Appellant, v. Francis BONASIA, Defendant, Appellee. to 92-2066 and 92-2142. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1306

40 F.3d 1306

63 USLW 2335

UNITED STATES, Appellee, v. Ralph DeMASI, Defendant, Appellant.

UNITED STATES, Appellee, v. Ronald MARTEL, Defendant, Appellant.

UNITED STATES, Appellee, v. Robert PAPA, Defendant, Appellant.

UNITED STATES, Appellee, v. Francis BONASIA, Defendant, Appellant.

UNITED STATES, Appellant, v. Francis BONASIA, Defendant, Appellee.

Nos. 92-2062, 92-2064 to 92-2066 and 92-2142.

United States Court of Appeals, First Circuit.

Heard Aug. 2, 1994.

Decided Oct. 26, 1994.

Seth M. Kalberg, Jr., for appellant DeMasi; Cornelius H. Kane, Jr., for appellant Martel; Paul J. Garrity, Boston, MA, for appellant Papa; and J. Michael McGuinness, with whom McGuinness and Parlagreco, Salem, MA, was on brief, for appellant Bonasia.

Timothy Q. Feeley, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., Boston, MA, was on brief, for appellee.

Before SELYA, BOUDIN, and STAHL, Circuit Judges.

STAHL, Circuit Judge.

Following a seventeen-day criminal trial, defendants Francis Bonasia, Ralph DeMasi, Ronald Martel, and Robert Papa were convicted by a jury of various charges stemming from the attempted armed robbery of a Brink's armored truck. On appeal, DeMasi Martel, and Papa together, and Bonasia individually, raise a series of issues including denial of a suppression motion and challenges to sufficiency of the evidence and various portions of the jury instructions. Bonasia separately assigns error to the denial of severance motions and an evidentiary ruling. The government cross-appeals from the district court's decision in sentencing Bonasia to depart downward from the Sentencing Guidelines. We affirm the district court on all issues raised by the defendants. At the same time, we find that the district court incorrectly interpreted the Sentencing Guidelines in fashioning Bonasia's sentence. We therefore vacate Bonasia's sentence and remand for resentencing.

I. Background

Because the defendants challenge the sufficiency of the evidence supporting their convictions, we recite the facts in the light most favorable to the verdict. United States v. Innamorati, 996 F.2d 456, 469 (1st Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 409, 126 L.Ed.2d 356 (1993).

Near the end of July 1991, Federal Bureau of Investigation ("FBI") agents learned that, sometime in late June, DeMasi and Martel had rented a summer campsite at the Pines Campground in Amesbury, Massachusetts. Subsequently, during the noontime hour on the five Tuesdays preceding Tuesday, September 10, 1991, FBI agents observed Martel at the parking lot of the Port Plaza Shopping Center in Newburyport, Massachusetts. Throughout that summer, a Brink's armored truck made a scheduled stop between noon and 1:00 p.m. on Tuesdays at the Shawmut Bank in the Port Plaza Shopping Center. Martel's visits to the Port Plaza parking lot corresponded with the scheduled stop of the Brink's truck. DeMasi accompanied Martel on four of these five visits, missing only the visit on Tuesday, August 27, 1991. Papa and defendant George Pinto ¹ joined Martel and DeMasi at the parking lot during the visits on August 20, and September 3, 1991.

Bonasia was also present at the Port Plaza parking lot on Tuesday, September 3, 1991. While at the parking lot, he met separately with both DeMasi and Martel. A surveillance photograph taken during his meeting with Martel depicts Bonasia and Martel standing together looking toward the Shawmut Bank. Afterwards, Bonasia remained in the parking lot and observed the Brink's truck as it made its regularly scheduled stop at the Shawmut Bank.

On the evening of August 26, 1991, at around 9:45 p.m., an FBI agent observed Martel in the back seat of an automobile, registered to Bonasia's wife, stopped in front of the Shawmut Bank in the Port Plaza Shopping Center. Driving the automobile was an older white male who fit Bonasia's general physical description. After the vehicle stopped, DeMasi left the car, walked over to the bank and peered inside one of its windows. Later that evening, the vehicle was again observed at DeMasi and Martel's campsite. Bonasia's own gray Buick was observed entering and exiting the Pines Campground several times a week over the course of the summer, including at least three different times on August 30, 1991.

At approximately 8:15 a.m. on September 10, 1991, DeMasi and Martel left the Pines Campground. At 9:30 a.m., they were observed standing next to a dark green cargo van which was located on the far side of the Market Basket Mall directly adjacent to the Port Plaza Shopping Center. At this time, FBI agents identified the license plates on the van as stolen. Shortly before noon, DeMasi and Martel met with Bonasia in the Port Plaza parking lot. A series of photographs taken contemporaneously shows Bonasia first walking away from DeMasi's automobile, then turning back toward DeMasi, and finally looking down at his watch. That same morning, Papa and Pinto were also observed and photographed driving through the Port Plaza parking lot in a separate vehicle.

After meeting with Bonasia, DeMasi and Martel returned to the green van parked on the far side of the Market Basket Mall, where they were joined by Papa and Pinto. The four defendants exited their automobiles, leaving them unlocked and with the keys in the ignitions. ² The green van, with Papa driving, was next observed entering the Port Plaza parking lot just prior to the time for the expected arrival of the Brink's armored truck. Upon entering the parking lot, Papa drove the green van away from the direct route to the Shawmut Bank and towards where Bonasia was parked. Bonasia had just moved his gray Buick from a more crowded area of the parking lot to a location more easily accessed by the green van.

Papa pulled the van adjacent to Bonasia's gray Buick and paused. Bonasia then leaned forward in his seat and gave Papa a "thumb's up" signal. After receiving this signal, Papa drove the green van away from Bonasia's automobile towards the Shawmut Bank.

Shortly thereafter, FBI agents stopped the green van and arrested DeMasi, Martel, Papa, and Pinto. At the time of the arrests, DeMasi was wearing brown cotton gloves, a nylon stocking pulled down over his forehead, and a bullet-proof vest. Pinto was wearing similar gloves, a nylon stocking, and had a pair of handcuffs in his waistband. Martel also wore gloves, and a third nylon stocking was found in the back of the van next to where he had been sitting. In the front seat next to where Papa had been sitting was a blue ski mask and an additional set of gloves. An operating portable scanner rested on the empty front passenger seat. A loaded semi-automatic nine millimeter Uzi carbine was found behind the front seat, and two loaded semi-automatic nine millimeter pistols and a loaded six-shot revolver were found in the rear compartment of the van.

At approximately the same time, Bonasia, who had been walking from a pay phone towards his gray Buick, was arrested by a Rhode Island State Trooper. At the time of his arrest, Bonasia was approximately five to eight feet from his automobile. Immediately after the arrest, an FBI agent standing near Bonasia's automobile observed a pair of binoculars on the front passenger seat inside the gray Buick. ³

Defendants were tried together before a jury. Bonasia, DeMasi, Martel, and Papa were convicted of conspiring and attempting to commit bank robbery, in violation of 18 U.S.C. Sec. 371 and 18 U.S.C. Sec. 2113(a), and conspiring and attempting to affect interstate commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. Sec. 1951. Additionally, all defendants were convicted on four counts of using or carrying a firearm in violation of 18 U.S.C. Sec. 924(c). Following the return of the verdicts on these charges, additional evidence was offered, and the jury subsequently found DeMasi, Martel, and Papa guilty on three counts of violating the felon-in-possession statute, 18 U.S.C. Sec. 922(g)(1).

II. Discussion

A. Alleged Pre-Trial Errors

1. Suppression Ruling

Our review of the decision whether to grant or deny a suppression motion is "plenary." United States v. Sanchez, 943 F.2d 110, 112 (1st Cir.1991). We defer, however, to a district court's factual findings if, on a reasonable view of the evidence, they are not clearly erroneous. United States v. Beltran, 917 F.2d 641, 642 (1st Cir.1990).

DeMasi, Martel, and Papa challenge the district court's refusal to suppress evidence seized from the green van at the time of their arrests. ⁴ They concede that the FBI had probable cause to make the arrests and that, if their arrests were lawful, the van's search and the seizure of evidence were also lawful. Defendants contend, however, that the arrests violated the Fourth Amendment because the FBI effected them without a warrant. They maintain that probable cause arose no later than early on the morning of the arrests, when the FBI identified the green van that DeMasi and Martel had visited as bearing stolen license plates, and that the government should have procured an arrest warrant at that time. Ultimately, they argue that the government's delay and ultimate failure to obtain a warrant negates the legality of their arrests and the subsequent search and seizure of evidence. We disagree.

Defendants' argument rests on the proposition that the government's allegedly "predesigned" and "improper" delay somehow invalidated the defendants' otherwise proper arrests. The Supreme Court, however, has refused to attach significance to the fact that the government had ample time to obtain a warrant but declined to procure one. See United States v. Watson, 423 U.S. 411, 423-24, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976). Specifically, the Court stated that "[t]he necessary inquiry ... [is] not whether there was a warrant or whether there was time to get one, but whether there was probable cause" at the time of the arrest. Id. at 417, 96 S.Ct. at 824. Indeed, the government in Watson conceded...