U.S. v. LiCausi

• Decision Date: 15 September 1998
• Docket Number: 97-2014 and 97-2030,Nos. 97-2013,s. 97-2013
• Parties: 51 Fed. R. Evid. Serv. 618 UNITED STATES of America, Appellee, v. John LiCAUSI, Defendant, Appellant. United States of America, Appellee, v. James Fogarty, III, Defendant, Appellant. United States of America, Appellee, v. Christopher Durfee f/k/a Christopher Dupre, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 36

167 F.3d 36

51 Fed. R. Evid. Serv. 618

UNITED STATES of America, Appellee, v. John LiCAUSI, Defendant, Appellant.

United States of America, Appellee, v. James Fogarty, III, Defendant, Appellant.

United States of America, Appellee, v. Christopher Durfee f/k/a Christopher Dupre, Defendant, Appellant.

Nos. 97-2013, 97-2014 and 97-2030.

United States Court of Appeals, First Circuit.

Heard Sept. 15, 1998.

Decided Jan. 27, 1999.

Glenn G. Geiger, Jr. with whom Geiger & Heiser was on brief for appellant James Fogarty, III.

Stephen A. Cherry with whom Wright, Cherry & Callen was on brief for appellant Christopher Durfee.

John H. LaChance with whom Victoria L. Nadel was on brief for appellant John LiCausi.

Donald A. Feith, Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, was on brief for appellee.

Before SELYA, Circuit Judge, ALDRICH, Senior Circuit Judge, and BOUDIN, Circuit Judge.

ALDRICH, Senior Circuit Judge.

John LiCausi, James Fogarty, III, and Christopher Durfee ¹ were convicted in the United States District Court for the District of New Hampshire of multiple offenses in connection with the robbery and attempted robbery of several grocery stores and restaurants. They allege several points of error as they challenge their convictions and sentences. We affirm.

I. BACKGROUND

A. Facts

We consider the evidence in the light most favorable to the prosecution, see United States v. Josleyn, 99 F.3d 1182, 1185 n. 1 (1st Cir.1996), as we determine the basic facts the jury reasonably could have found. We will add to our sketch other facts as they become necessary to the discussion of particular claims of error.

On several occasions in November of 1995, Bernie Subocz and defendants Durfee and Fogarty met at Fogarty's garage in Lawrence, Massachusetts to discuss committing armed robberies of supermarkets. As the meetings continued into December, defendant LiCausi was introduced to the group by Fogarty and participated in the discussions. Subocz also had several robbery-related telephone conversations with Fogarty and Durfee during this time.

Topics of discussion included the division of responsibilities in obtaining necessary equipment. Subocz already owned a scanner for listening in on law enforcement radio transmissions, a frequency guide to use in programming the scanner, and two-way radios for communicating during robberies. LiCausi was to obtain a shotgun, while Subocz would obtain one or two pistols. Fogarty contributed $300 towards the pistol purchase, and Subocz later had his girlfriend, Lori Munroe, buy two nine-millimeter semiautomatic pistols, a Beretta and a Smith & Wesson, and hollow-point ammunition. Subocz later acquired a shotgun and radio frequency guides for several different local areas. Fogarty later bought hats, gloves, jumpsuits, and three pairs of rubber boots.

Members of the group soon began seeking out targets. Subocz and Fogarty started things off by robbing a D'Angelo Sandwich Shop in Stoneham, Massachusetts on December 8, 1995. Wearing masks and gloves and carrying the two loaded pistols, they made off with between one hundred and two hundred dollars each. The pair then attempted to rob a supermarket in Ohio on December 17. After casing the market and buying hats and a frequency guide for the area, they entered the store wearing gloves and hats and each concealing a pistol. Subocz initially spoke to the manager regarding a rotten head of lettuce he claimed to have purchased, then pulled his shirt up to his eyes and showed his weapon. On their way to the store safe, however, the manager stopped to speak to an employee, unnerving the robbers and prompting them to leave immediately.

Durfee started participating in actual robberies about a week later. A few days after spending the evening of December 23 with Subocz but failing to find a suitable target, the pair robbed a Burger King in Kittery, Maine after one of the group's meetings. They each carried one of the two pistols, Durfee having "rented" the Smith & Wesson from Fogarty for one or two hundred dollars. They both showed their weapons, and Subocz forced the manager to hand over all of the cash in the office, some $1,400. The pair netted substantially more, some $66,000 in cash, from their next robbery, that of a Vista Foods supermarket in Manchester, New Hampshire on January 3, 1996. Subocz first cased the market a few days before and notified Durfee of its potential. Then, on the designated evening, they hid in a closet next to the manager's office with the two pistols and waited for the store to close. They burst out of the closet, surprising the manager, and threatened him with their weapons. They had him open the safe, then cleaned it out and made their escape.

LiCausi started participating in actual robberies with an attempt on a Market Basket in Woburn, Massachusetts during that January. Subocz, Fogarty, and either Durfee or LiCausi were slated to participate, and LiCausi ultimately got the call. After one or more of the men had cased the store over the course of several days, all three went there between five and seven o'clock the morning of their attempt. In addition to the standard robbery attire, including masks and gloves, they had the pistols, the scanner, the frequency guide, and the two-way radios. LiCausi wore a jumpsuit that Fogarty had purchased. They ultimately abandoned their attempt because they feared a newspaper delivery truck parked in front of the store contained a SWAT team or other police officers.

Jason Fournier, an acquaintance of Subocz, Fogarty, and Durfee who had agreed sometime during the previous year to become involved in robberies, then joined LiCausi and Subocz in an attempt on a Star Market in Saugus, Massachusetts in the early morning of February 2. LiCausi again wore a jumpsuit that Fogarty had acquired and carried one of the radios and the Beretta pistol. Fournier wore another jumpsuit and carried the other radio. Subocz carried the shotgun he had acquired. After successfully entering the store, detaining those inside, and finding the safe, they fled empty-handed upon seeing a man walking to an automatic teller machine outside the store. Later that day, the trio robbed a Market Basket in Nashua, New Hampshire, netting approximately $18,000. This time LiCausi wore a jumpsuit and carried Subocz's shotgun, while Fournier carried the Beretta pistol.

Durfee then joined Subocz and Fournier for two attempts on a Market Basket in Portsmouth, New Hampshire. The first, on March 20, involved just the three of them. Subocz carried the shotgun and one of the radios while Durfee carried the Beretta. Fournier stayed outside with the other radio. They abandoned their attempt, however, when the battery in one of the radios died. LiCausi joined them a few days later for a second try. Fournier was to be the lookout again while Durfee and LiCausi would enter the store armed with the shotgun and the Beretta. They left immediately, however, when they saw the manager become alarmed and pick up the phone.

LiCausi was also involved in the next three incidents. He, Fournier, and Subocz made an attempt on a Market Basket in Tewksbury, Massachusetts on April 17. After hiding in a crawl space above the ceiling of the men's restroom, LiCausi and Fournier dropped down wearing their masks and gloves and carrying the Beretta and a BB pistol LiCausi had provided. They went onto the sales floor, found the manager, and almost had the safe open when Subocz warned them over the radio that two people outside were running towards a pay phone. They immediately left the store and drove off with Subocz, then fired several shots at a pursuing vehicle. The next day, LiCausi and Subocz made an attempt on a Market Basket in Warner, New Hampshire. After they stole a car, got dressed, and readied their weapons, they abandoned the attempt when a crowd outside the store failed to disperse and the scanner picked up a transmission about the car they had just stolen. Finally, LiCausi, Subocz, and Fournier attempted to rob a Pic-N-Pay in Portsmouth, New Hampshire on April 24. LiCausi carried the shotgun, Fournier carried the Beretta, and Subocz listened to the scanner and maintained radio contact from the outside. After binding several employees with duct tape, LiCausi and Fournier tried forcing the manager to open the safe. This time, the manager fought back, and Fournier shot and wounded him in the hand. The robbers escaped the struggle but left behind the Beretta pistol and one of the radios. This and other problems, along with diligent investigative work, finally led to the group's undoing.

As these stories indicate, each of the defendants was involved in several aspects of the continuing criminal association among them and others. They also used much of the same equipment in almost all of their robberies. Many times one or more of the persons involved in a particular robbery used equipment that an associate had purchased.

In addition, the defendants and others used many of the same procedures during their robberies and attempts. They often cased their targets, sometimes for several days. Before carrying out an attempt they carefully wiped down all of their equipment, including their two-way radios and weapons, to remove any fingerprints. The robberies often involved three individuals, two of whom entered the target premises wearing masks and gloves and carrying weapons while the third stood lookout outside. In many cases, too, a stolen "drop" car was used for transport to and from the robbery site while a "safe" car waited elsewhere.

Finally, we note that, while each defendant's participation in actual robberies ebbed and flowed over the course of the association, communications and relationships continued among the three defendants and others during that time. For example, after the D'Angelo Sandwich Shop robbery, committed by Subocz and Fogarty, the two spoke by telephone two to...