U.S. v. Graziano

• Decision Date: 10 September 2008
• Docket Number: No. 07-CR-0508 (JFB)(MLO).,07-CR-0508 (JFB)(MLO).
• Citation: 616 F.Supp.2d 350
• Parties: UNITED STATES of America v. Carmine GRAZIANO, Defendant.
• Court: U.S. District Court — Eastern District of New York

616 F.Supp.2d 350

UNITED STATES of America v. Carmine GRAZIANO, Defendant.

No. 07-CR-0508 (JFB)(MLO).

United States District Court, E.D. New York.

September 10, 2008.

Evan Williams, Esq., of the United States Attorney's Office for the Eastern District of New York, Central Islip, NY, for the Government.

Benedict S. Gullo, Jr., Esq., Mineola, NY, and Joel R. Weiss, Esq., of Farrell Fritz, P.C., Uniondale, NY, for the defendant.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge.

On March 5, 2008, following a jury trial, defendant Carmine Graziano (hereinafter, "defendant" or "Graziano") was convicted of all counts contained in the three-count Superseding Indictment, 07-CR-508 (S-1)(JFB). Specifically, Graziano was convicted of the following: (a) one count of conspiracy to commit arson, in violation of Title 18, United States Code, Section 844(n) ("Count One"); (b) one count of arson, in violation of Title 18, United States Code, Section 844(i) ("Count Two"); and (c) one count of using a destructive device during a crime of violence, in violation of Title 18, United States Code, Section 924(c) ("Count Three"). The Indictment related to an arson of Roseanne's Cards Galore ("Roseanne's") in New Hyde Park, New York on August 11, 2003. The government submitted evidence at trial that Graziano approved of, and paid for, the August 11, 2003 fire at Roseanne's because of a several-year dispute between the owners of Roseanne's and Graziano, who owned a tavern named "Copperfields" located next door to Roseanne's. The government's theory of the case was that the arson was in retaliation for complaints by the owners of Roseanne's, Joseph and Anna Graham (collectively, the "Grahams") to local law enforcement, as well as municipal and state regulatory authorities, regarding, among other things, late night noise, violence, and underage drinking at Copperfields.

Graziano now moves, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, for judgment of acquittal on Count Three, which carries a mandatory 30-year consecutive sentence. Graziano moves on two separate grounds: (1) that the device that was described in Count Three and was the basis for conviction on that count—namely, "a plastic can containing flammable liquid with a cloth rag protruding as a fuse"—cannot, as a matter of law, constitute a "destructive device" under the applicable statute; and (2) that there was insufficient evidence for a rational jury to conclude that it was "reasonably foreseeable" to Graziano, under Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), that his co-conspirators would use a destructive device to commit the arson. The government opposes the motion.

For the reasons set forth below, after careful consideration of the parties' written submissions and the oral argument, the Court concludes that, although the device utilized in the instant case qualifies as a "destructive device" under the statute, there was insufficient evidence to support the defendant's conviction on Count Three under Pinkerton. In particular, the government's evidence at trial was that (1) the defendant was not present when the fire was set by the co-conspirators; and (2) there was no discussion whatsoever between the defendant and the co-conspirators regarding any method the co-conspirators would use to set the fire. In addition, there was no discussion about what level of damage should occur or any difficult issues that would be posed by the task at this particular store. In fact, the only evidence offered at trial regarding conversations with the defendant about the fire was an extremely brief discussion in which the co-conspirator told the defendant he was going to set a "small fire" to the store, which the defendant approved, without any further explanation regarding how he would set that fire. Viewing this evidence in the light most favorable to the government, there was insufficient basis for a rational jury to conclude that it was "reasonable foreseeable" to the defendant from such conversation or the surrounding circumstances that a destructive device would be utilized, especially where Roseanne's was adjacent to the defendant's bar. In other words, there is no reason for a defendant in such circumstances to reasonably believe that an incendiary bomb would beused to set a "small fire." In essence, in order for the Court to sustain a conviction on this count, the Court would have to find that it is rational to conclude that, any time that a defendant hires someone to set a "small fire" at a commercial store, it is reasonably foreseeable that the person hired to commit the task will use a destructive device, such as the incendiary bomb used in the instant case, because of the nature of the request and the task at hand. The Court is unwilling to find that such a conclusion can be reached by a reasonable jury, absent some other facts or evidence regarding defendant's knowledge—which do not exist in the instant case. In short, no rational jury could find in this case that utilizing an incendiary bomb was a necessary or natural consequence of a conspiracy to set a small fire at a card store. Accordingly, although a Rule 29 dismissal is an extraordinary remedy, such a dismissal on Count Three is warranted under the peculiar facts of this case.

I. BACKGROUND

A. The Trial Evidence

On February 25, 2008, the trial commenced. The government called fifteen witnesses, including the following: (1) Investigator Joseph Whittaker ("Whittaker") of the Nassau County Office of the Fire Marshal's Bureau of Fire Investigation who, without objection, was permitted by the Court to testify as an expert in determining the origin and cause of fires; (2) Explosives Enforcement Officer Alex Guerrero ("Guerrero") of the Bureau of Alcohol, Tobacco, Firearms and Explosives who, without objection, was allowed by the Court to testify as an expert in the classification of explosives and explosive devices; (3) the Grahams; (4) William Norman ("Norman"), who testified about his participation in the arson with co-conspirator Frank Morrow ("Morrow"); and (5) Morrow, who testified about the defendant's hiring of him to commit the arson of Roseanne's and the execution of the arson with co-conspirator Norman. The government also offered numerous physical exhibits into evidence, including a videotape, taken from a surveillance camera at Roseanne's, of Morrow and Norman committing the arson on August 11, 2003, by Morrow throwing a rock through the front window of Roseanne's and Norman lighting a device—consisting of a cloth rag protruding from a plastic gas can containing gasoline—and throwing it through the window as the device burst into flames. A brief summary of the trial evidence is set forth below.

In 1999, Graziano opened a bar called J.P. McCauley's in New Hyde Park, New York. He later changed the name to Copperfields. Roseanne's, which was a stationery store owned and operated by the Grahams, was located next door to Copperfields. Over the next several years, an acrimonious relationship developed between Graziano and the Grahams. In particular, the Grahams had complaints about various aspects of Graziano's operation of Copperfields, including the following: (1) noise from the bar late at night, about which the Grahams received complaints from their tenant who lived in an apartment above Roseanne's; and (2) physical damage to the store, which the Grahams believed was caused either by a Copperfields patron, or by Graziano himself.¹ (Tr. 140-49.) As a result of these incidents, the Grahams installed surveillance cameras and a video recorder at Roseanne's, which were later upgraded. (Tr. 149-52; Government Exhibit ("GX") 50A, 50B.) The surveillance cameras were mounted at each upper corner of the store's front window, and included views of the sidewalk and street in front of Roseanne's. (Tr. 180; GX 1.) In addition, the Grahams took a number of other actions to address the problems with Copperfields, including the following: (1) filing a civil suit against Graziano in the Fall of 2000; (2) complaining to the New York State Liquor Authority about underaged drinking and violations with respect to Graziano's delivery of liquor to the bar; (3) filing complaints with the Nassau County Police Department; (4) organizing community meetings, including a June 2003 meeting attended by police representatives; (5) appearing at a hearing in February 2002 in the Town of New Hyde Park to oppose renewal of Copperfields's cabaret license; and (6) organizing a petition to mobilize against these activities at Copperfields. (Tr. 153-58, 297.) In the Summer of 2003, the police responded to the community complaints by issuing a zero tolerance policy towards any violations that occurred with respect to activities at Copperfields and the police advised Graziano that they were stepping up enforcement in the area around the bar because of several complaints by residents and people on that block about activities at the bar. (Tr. 344-53.)

The Grahams testified that, over the course of several years, Graziano sought to intimidate them and retaliate against them because of the problems they were causing by their complaints about the activities at the bar. For example, Anna Graham testified that, in September 1999 after the Grahams complained to the police about a drunken man on a motorcycle throwing his helmet through their store window, Graziano came to the store and pointed a gun at her and told her to stop complaining at the bar. (Tr. 284-86.) Ms. Graham also testified that, in April 2000, Graziano again came to the store, pointed a gun at her, told her to stop complaining about the bar, and threatened to harm her husband. (Tr. 288-92.) Ms. Graham further testified that Graziano made similar threatening comments on other occasions. (Tr. 293.)

In the Summer of 2003, Graziano spoke approximately three or four times with Morrow, who was a Copperfields patron, about the...