U.S. v. Merlino

• Decision Date: 07 March 2002
• Docket Number: No. Crim. 99-10098-RGS.,Crim. 99-10098-RGS.
• Citation: 204 F.Supp.2d 83
• Parties: The UNITED STATES of America v. Carmello MERLINO, Stephen Rossetti, David Turner, and William Merlino.
• Court: U.S. District Court — District of Massachusetts

204 F.Supp.2d 83

The UNITED STATES of America v. Carmello MERLINO, Stephen Rossetti, David Turner, and William Merlino.

No. Crim. 99-10098-RGS.

United States District Court, D. Massachusetts.

March 7, 2002.

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Robert E. Richardson, United States Attorney's Office, Boston, MA, for Plaintiff.

Martin Boudreau, Milton, MA, Robert A. George, Robert A. George, PC, William J. Cintolo, Cosgrove Eisenberg & Kelly, Robert M. Goldstein, Peter Parker, Boston, MA, for Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS FOR JUDGMENTS OF ACQUITTAL OR IN THE ALTERNATIVE FOR A NEW TRIAL

STEARNS, District Judge.

After an extended trial, defendants were convicted of conspiracy and attempt to violate the Hobbs Act, 18 U.S.C. § 1951, and of two counts of carrying or possessing a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c).¹ Defendants singularly and collectively have filed motions for judgments of acquittal pursuant to Fed.R.Crim.P. 29, or in the alternative, for a new trial pursuant to Fed.R.Crim.P. 33. The legal standards to be applied are well-rehearsed. In acting on a motion for judgment of acquittal, "the trial judge must resolve all evidentiary conflicts and credibility questions in the prosecution's favor; and, moreover, as among competing inferences, two or more of which are plausible, the judge must choose the inference that best fits the prosecution's theory of guilt." United States v. Olbres, 61 F.3d 967, 970 (1st Cir.1995). "The remedy of a new trial is rarely used; it is warranted `only where there would be a miscarriage of justice' or `where the evidence preponderates heavily against the verdict.'" United States v. Andrade, 94 F.3d 9, 14 (1st Cir.1996). Because I find no merit to the motions, they will be summarily denied, with the exception of one aspect of the motion for judgment of acquittal filed by defendant William Merlino, which warrants more extended consideration.

Motion for Judgment of Acquittal on Counts Three and Four

Counts Three and Four of the Indictment charged all defendants with carrying or possessing firearms during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c).² In challenging their convictions on these two counts, defendants argue that a conspiracy to violate 18 U.S.C. § 1951, colloquially known as the Hobbs Act, is not a crime of violence. More specifically, defendants maintain that because federal agents knew through an informant (Anthony Romano) of the defendants' plans to execute the robbery, "there was never any risk of physical force being used in either the planning or commission of a fictional event." Defendants concede, as they must, that the cases uniformly hold that a Hobbs Act conspiracy constitutes a "crime of violence" because the crime by its very definition, "involves a substantial risk that physical force may be used against the person or property of another." United States v. Elder, 88 F.3d 127, 129 (2d Cir.1996). See also United States v. Taylor, 176 F.3d.331, 337-338 (6th Cir. 1999). Defendants' claim of legal impossibility based on the certainty of their planned robbery being thwarted by law enforcement has also been rejected in every context in which it has been raised. See, e.g., United States v. Phan, 121 F.3d 149, 153 (4th Cir.1997); United States v. Yang, 281 F.3d 534, 544 (6th Cir.2002).

Motion for Judgment of Acquittal on Count Two

Count Two of the Indictment charged all defendants with an unsuccessful attempt to violate the Hobbs Act. An attempt under federal law is informed by the common law principle that mere preparation does not ordinarily suffice to make out an attempt. "But some preparations may amount to an attempt. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a [crime], although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime." Commonwealth v. Peaslee, 177 Mass. 267, 272, 59 N.E. 55 (1901) (Holmes, C.J.).

Defendants argue evidentiary insufficiency, based on an alleged failure of the government to show the taking of a "substantial step" towards the commission of the offense. A substantial step consists of conduct that is "strongly corroborative" of the firmness of a defendant's criminal intent. United States v. Mandujano, 499 F.2d 370, 376 (5th Cir.1974). In this regard, defendants argue that there is no evidence that they "ever c[a]me within miles of the Loomis facility" on the appointed day. The argument focuses on defendants' lack of geographical proximity to the intended target to the exclusion of the preparatory acts relied upon by the government to establish the defendants' intent: that defendants "cased" the Loomis facility; prepared a "stolen" van; acquired cell telephones and police scanners; gathered an arsenal of weapons, masks, and bulletproof vests; met on the penultimate day to finalize plans for the robbery; and were either at or driving towards the assembly point with the tools of the trade when they were arrested. While cases like United States v. Buffington, 815 F.2d 1292, 1302 (9th Cir.1987), have emphasized physical proximity to the target of the robbery as a critical corroborating element, this case is closer in its facts to United States v. Chapdelaine, 989 F.2d 28, 33 (1st Cir.1993), and United States v. Del Carmen Ramirez, 823 F.2d 1, 2 (1st Cir. 1987), where convictions for attempted robbery were upheld on less evidence of confirmatory preparation than was shown here.³

Motion for Judgment of Acquittal on Counts One and Two

This motion is directed to the sufficiency of the government's evidence regarding the interstate commerce element of the Hobbs Act, and to the constitutionality of the Hobbs Act itself. The first contention is a variant of defendants' legal impossibility argument. In essence, defendants maintain that because the success of the robbery was not viable (because of the government's pre-existing knowledge of the plot), it follows that no potential to affect interstate commerce existed. The argument misapprehends the proper test to be applied, which measures the impact on interstate commerce that would have occurred had the conspirators succeeded in their crime. See United States v. Jannotti, 673 F.2d 578, 591 (3d Cir.1982); United States v. Nguyen, 246 F.3d 52, 54 (1st Cir.2001). A successful robbery of an armored car depository storing some seventy million dollars in cash could hardly be said to have had but a slight impact on interstate commerce, much less no impact.

Defendants' second argument is more difficult to grasp, but I understand it to say that the Supreme Court's decisions in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) and United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (holding respectively that the federal civil remedy for ender-motivated crimes of violence provided by the Violence Against Women Act and the gun possession proscriptions of the Gun-Free School Zones Act are unconstitutional for want of a sufficient showing of a nexus to interstate commerce), have either undermined the constitutionality of the Hobbs Act or the reasoning of cases like Jannotti that have upheld inchoate Hobbs Act convictions despite the absence of a showing of a substantial impact on interstate commerce. The short answer to this argument is that it has been rejected by every Circuit Court of Appeals that has considered it. See United States v. Gray, 260 F.3d 1267, 1272-1274 (11th Cir.2001); United States v. Peterson, 236 F.3d 848, 852 (7th Cir.2001); United States v. Malone, 222 F.3d 1286, 1294-1295 (10th Cir. 2000). Cf. United States v. Cardoza, 129 F.3d 6, 11 (1st Cir.1997). I see no reason to recite the distinctions drawn by these cases with Morrison and Lopez other than to note their emphasis on the difference between noneconomic crimes like domestic violence and gun possession, whose impact on interstate commerce is indirect at best, and robbery, which is an economic crime with a direct effect on interstate commerce.

Turner's Motion for Judgment of Acquittal on Grounds of Entrapment

Defendant Turner argues that the he was entrapped as a matter of law. Whether such a thing as entrapment as a matter of law exists in the real world is open to some doubt. The defense of entrapment rests ultimately on a defendant's predisposition (or lack thereof), which is a quintessential issue of fact. See United States v. Coady, 809 F.2d 119, 122 (1st Cir.1987). (One might imagine a case, as the Ninth Circuit did in Poehlman, infra, in which no facts regarding inducement or predisposition are in dispute, although one would think that any resulting error would have more to do with the judge's instructions than with the jury's verdict). Turner cites a 1966 First Circuit case that states in dicta that entrapment may be found as a matter of law, see Sagansky v. United States, 358 F.2d 195, 203 (1st Cir.1966), a thought more recently articulated by the Ninth Circuit in United States v. Poehlman, 217 F.3d 692, 698 (9th Cir.2000). Assuming that a judge in an appropriate case could find the government's evidence so unbelievable as to warrant the entry of a verdict for a defendant as a matter of law, this is not that case. Turner's ardent embrace of the plot, his contribution of the cellular telephone to facilitate communications with the "insider," his role in transporting the firearms on the morning of the planned heist, his own admission on tape that he had prior experience with armored car robberies, and his prior firearms convictions were more than sufficient to validate the verdict.

Motion for a New Trial

Defendants Turner and Rossetti object to the fact that statements of Carmello Merlino, surreptitiously recorded by Romano prior to the alleged advent of the conspiracy, vouching for defendants' status as "veterans"...