U.S. v. DeVillio

Decision Date21 January 1993
Docket NumberNos. 246,D,503,s. 246
Citation983 F.2d 1185
Parties37 Fed. R. Evid. Serv. 1247 UNITED STATES of America, Appellee, v. John DeVILLIO, Joseph DeFigueroa, Salvatore Fusco, Frank Smith, Michael Bloome, Thomas Roberto, Richard Santiago, Angel Soto, Anthony Vega, Anthony Zappola, George Zappola, Vincent Zappola, Dominick Costa, Defendants, Philip DeAngelo and Peter Spoto, Defendants-Appellants. ockets 92-1141, 92-1155.
CourtU.S. Court of Appeals — Second Circuit

Joel Cohen, New York City, for defendant-appellant Peter Spoto.

Martin Geduldig, Hicksville, NY, for defendant-appellant Philip DeAngelo.

Eric Corngold, Asst. U.S. Atty., E.D.N.Y. (Jack Wenik and Michael Considine, Asst. U.S. Attys., and Andrew J. Maloney, U.S. Atty., E.D.N.Y., of counsel), for appellee.

Before ALTIMARI and McLAUGHLIN, Circuit Judges, and SPATT, District Judge. *

SPATT, District Judge:

In this chronicle of RICO co-conspirators, F.B.I. informants, secret tape recordings, stolen cargo and bungled burglaries, two of the defendants emerge to challenge their convictions on the basis of the purportedly prejudicial linkage between themselves and their co-defendants. The case presents some interesting evidentiary questions for the Court's consideration, including Massiah and Bruton issues as well as the application of Fed.R.Evid. 404(b).

Appellants Philip DeAngelo and Peter Spoto were found guilty after a jury trial on three counts of a 14-count superseding indictment, namely, transporting a stolen vehicle in interstate commerce, in violation of 18 U.S.C. § 2312 (1988); transporting stolen goods in interstate commerce, in violation of 18 U.S.C. § 2314 (1988 & Supp. III 1991); and stealing goods from an interstate shipment, in violation of 18 U.S.C. § 659 (1988).

DeAngelo and Spoto bring this appeal jointly, claiming that the District Court erred in: (1) refusing to admit the tape recorded statement of an unavailable witness which allegedly exculpated the appellants; (2) failing to suppress certain tape recordings made by a co-defendant on behalf of the Government after the appellants' right to counsel had attached; (3) denying their motion for severance from the defendants charged with RICO conspiracy; (4) admitting testimony in violation of the Bruton rule; (5) admitting "similar act" evidence. We affirm.

BACKGROUND

Philip DeAngelo and Peter Spoto were convicted on October 23, 1991, after a jury trial in the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge ). All of the charges in the indictment, with the exception of one involving the attempted murder of Dominick Costa, a government informant, arose from a series of commercial burglaries committed in and around New York City between July, 1985 and July, 1988. Five of the defendants, including appellants DeAngelo and Spoto, as well as Michael Bloome, Salvatore Fusco and Vincent Zappola went to trial.

All of the remaining defendants pleaded guilty to various felony charges, with the exception of George Zappola who remains a fugitive. DeAngelo and Spoto's co-defendants were charged with RICO conspiracy and ten predicate acts, including the one count of attempted murder of Dominick Costa. Richard Santiago and Angel Soto--not to be confused with appellant Peter Spoto--both pleaded guilty and testified as witnesses for the Government at trial.

Apart from appellants DeAngelo and Spoto, the co-defendants were charged with racketeering, racketeering conspiracy, and six other burglaries or attempted burglaries of commercial premises, including banks, jewelry shops and department stores. Fusco and Bloome were also charged with the attempted murder of Dominick Costa. The charges against appellants DeAngelo and Spoto were based solely on the burglary of a Bulova Watch Company warehouse over the 1986 Thanksgiving Weekend. Because DeAngelo and Spoto were charged only with the Bulova Watch Company burglary, their counsel The case against appellants DeAngelo and Spoto was presented primarily through the testimony of two cooperating witnesses, Angel Soto and Ricky Santiago--co-defendants who pleaded guilty and agreed to testify for the Government. Soto and Santiago were part of the John Otto Heidel organization. Heidel was a professional burglar and long-time informant for the F.B.I. Soto and Santiago had committed other burglaries with Heidel both before and after the Bulova burglary. Soto was permitted to testify over objection that Tommy Roberto, another pleading co-defendant, told him that appellants DeAngelo and Spoto were two of the best "safecrackers" in the business.

                moved for a severance of those counts and that motion was denied by Judge Glasser.   Bloome, Fusco and Vincent Zappola were convicted of all charges while appellants DeAngelo and Spoto were convicted of the three counts lodged against them in the indictment
                

Evidence obtained from two co-conspirators, Heidel and Frank Spatafora, linked appellants DeAngelo and Spoto to other burglaries that were tied to racketeering defendant Vincent Zappola. Heidel was named by Spatafora as an accomplice in the previous Atlantic Liberty Savings Bank burglary which took place over the Martin Luther King holiday weekend in January, 1987. As part of his cooperation agreement, Spatafora recorded a number of conversations, most of which took place with Heidel and a few with appellant Spoto. In the Heidel conversations, Spatafora discussed the Atlantic Liberty Savings Bank burglary and the participation of other co-defendants in the Bulova burglary. In addition, Heidel talked about the possibility of burglarizing the Harkels Jewelry Manufacturing Company ("Harkels") and suggested using appellants Spoto and DeAngelo, two of his "safecrackers." At a planning meeting, appellant Spoto was heard on tape assuring Spatafora that he was a "professional safecracker."

Under F.B.I. supervision, Spatafora planned the burglary of Harkels with Heidel and appellant Spoto. Spatafora informed the F.B.I. of the intended break-in set for August 16, 1987, and DeAngelo and Spoto were apprehended while attempting to hide inside the building.

Shortly after being arrested for the Harkels burglary, Heidel agreed to cooperate with the F.B.I. and he, too, recorded a series of conversations. On these tapes, Heidel encouraged appellants Spoto and DeAngelo and co-defendants Vincent Zappola and Tommy Roberto to discuss past burglaries, including details of the Bulova, Atlantic Liberty and Harkels burglaries. Heidel was murdered on October 8, 1987, prior to the trial. The appellants objected to the Government's attempt to introduce Heidel's recordings at trial, alleging a Massiah violation. At the time the recordings were made, appellants Spoto and DeAngelo had been arraigned on the Harkels burglary and were represented by counsel. Nevertheless, Judge Glasser admitted the tapes into evidence. The appellants also objected when Judge Glasser refused to admit into evidence another section of one of the same tapes, in which Heidel made statements purportedly exculpating DeAngelo and Spoto, on the ground that the appellants had not demonstrated that the particular section of the tape was "trustworthy."

Heidel, DeAngelo and Spoto were initially arrested on a federal complaint in the Harkels burglary, but the charge was later dismissed. Appellants DeAngelo and Spoto were subsequently indicted in state court for the Harkels burglary, pleaded guilty to one count of felony burglary, and were sentenced to five years probation.

The Spatafora and Heidel tapes corroborated the accounts of the Bulova burglary provided by the testimony of cooperating defendants Soto and Santiago. In addition, the Government introduced into evidence an array of burglar's tools, including cutting torches, drills, walkie talkies, police scanners, and lists of government radio frequencies--all of which were seized from appellant Spoto's home at the time of his arrest on November 14, 1990. The appellants objected to the introduction of this

evidence as well as other "similar act" evidence.

DISCUSSION
A. Exclusion of the Alleged Exculpatory Statement

The appellants assert that the District Court erred in concluding that the tape recorded statement of an unavailable witness, purportedly exculpating the appellants, was inadmissible in the defense case where the court had already determined that the same tapes were reliable in the Government's case-in-chief. Appellant Spoto argues that the District Court improperly excluded a portion of the September 2, 1987 taped conversation between John Otto Heidel and co-defendant Tommy Roberto in which Heidel stated "I'm the only watch guy they took."

Both Spoto and DeAngelo had been arrested at the scene of the Harkels burglary. The September 2, 1987 taped conversation included statements concerning both the Harkels burglary and the prior Bulova burglary. Based on Heidel's comment that he was "the only watch guy they took," Spoto attempted to offer that portion of the tape as proof that Heidel was the only person involved in both the Bulova and Harkels burglaries. Appellant Spoto contends that Heidel's statement exculpated him and DeAngelo from any connection with the Bulova burglary. Counsel reasoned to Judge Glasser that this hearsay statement should have been admitted under Fed.R.Evid. 804(b)(3) as a declaration against Heidel's penal interest or under Fed.R.Evid. 804(b)(5), the residual hearsay exception.

The appellants point out that the District Court had previously admitted this series of tapes when offered by the Government, finding them to be sufficiently reliable under Fed.R.Evid. 804(b)(3) as containing statements against penal interest made by Heidel. The appellants argued that other portions of the tapes should be admitted to complete the story and to enhance the jury's understanding of circumstances in which those statements were made. When the appellants attempted to admit the ...

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