U.S. v. Morano
| Decision Date | 10 February 1983 |
| Docket Number | No. 81-5712,81-5712 |
| Citation | 697 F.2d 923 |
| Parties | 12 Fed. R. Evid. Serv. 488 UNITED STATES of America, Plaintiff-Appellee, v. Joseph MORANO, Defendant-Appellant. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Thomas F. Almon, Miami, Fla. (court-appointed), for defendant-appellant.
Stanley Marcus, U.S. Atty., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT, JOHNSON and HATCHETT, Circuit Judges.
Appellant Joseph Morano was convicted by a jury in the Southern District of Florida for damaging and destroying the building which contained his business, "Price Cutter, Inc.", by means of an explosive device, in violation of 18 U.S.C.A. Secs. 2 and 844(i). The jury also convicted him for devising a scheme to defraud the United States Fire Insurance Company of New York by filing false and fraudulent insurance claims through the mails, in violation of 18 U.S.C.A. Sec. 1341, and for conspiring to violate 18 U.S.C.A. Secs. 844(i) and 1341, in violation of 18 U.S.C.A. Sec. 371.
Price Cutter, Inc., which was solely owned by appellant Morano at the time of its destruction, occupied most of the building which Morano leased on a month-to-month basis from its owner, Nazdar, Inc. Morano sublet the remaining portion of the building to Carter and Eunice Benfield, doing business as Carolina Furniture. Carolina Furniture and Price Cutter were separated by a wall, but a sliding door connecting the two businesses was always left open.
Between February 1977 and September 1977, sales at Price Cutter plummeted. During this period, Morano discussed his business with the Benfields and told them he would destroy his business for insurance rather than go down with it. The Benfields protested that they had no insurance. In a discussion between Morano and Matthew Constant, whom Morano was trying to interest as an investor, Constant asked how much inventory Price Cutter had. According to Mr. Constant, Morano grinned and replied that "he had $100,000 worth of fire insurance that he could collect if it would burn out."
In September 1977, Nazdar, Inc., sent an eviction notice to Price Cutter, ordering appellant to vacate by October 1, 1977. Throughout the last week of September, Morano and his wife removed substantial amounts of property from the store, including sewing machines, heavy coats, jewelry and pottery. On September 29, 1977, Morano closed Price Cutter early. The building was protected against fire and theft by a monitored audio alarm system, but the alarm was not functioning that evening. The wall outlet plug that was taped to the wall had been pulled, and the wires from the backup battery power system had been disconnected. Morano was informed by a manager of the monitoring company that the alarm system was not working. According to the manager's testimony, Morano replied in an uncharacteristically unconcerned manner, "Okay, fine, we'll call the system--the company tomorrow and have them come in and check it out."
Within a few hours an explosion and fire destroyed Price Cutter and severely damaged the contents of Carolina Furniture. An investigation by the Naples, Florida, Fire Department and the Bureau of Alcohol, Tobacco and Firearms (ATF) revealed that the arsonist's entry into the building had not been forced. Pressurized aerosol cans containing ether with M-80 firecrackers taped to them had been placed in strategic locations throughout the store. Two plastic five gallon containers of gasoline had been emptied throughout Price Cutter and ignited. According to both the Fire Marshal, who had investigated approximately two hundred fires, and the ATF Special Agent assigned to the investigation, this method of setting a fire was unusual and unique. In light of this fact, ATF Agent Velasco sent a teletype to every ATF office in the United States requesting information as to whether a similar method had been used in any other arsons. Agent Velasco received only one report of an arson started by that particular method. About a year later, ATF Agent Jenson of Melville, New York, advised Velasco that Anthony Ottomonelli had recently been convicted in New York for using the same method of arson. Agent Jenson forwarded a set of five photos, including a photograph of Ottomonelli to Velasco who arranged them into a photospread. Velasco then displayed the spread to Carter Benfield, co-owner of Carolina Furniture. Benfield immediately and positively identified the photograph of Ottomonelli as that of the well dressed man he had seen in Price Cutter talking to Morano a day or two before the fire. Benfield had observed Ottomonelli and another man talking to Morano; when he approached the three men they stopped talking and moved to the back of the store. When Ottomonelli left the store, Morano told Benfield that he was a salesman from New York who was trying to buy the business outright.
After the fire, Morano hired a public adjuster to prepare the fire loss for filing with his insurance company. Morano told the adjuster that all the books and records had been destroyed when, in fact, the fire department had informed appellant that the records had been salvaged and stored. Appellant provided the figures as to quantity and cost for an inventory of the items destroyed by the fire. The inventory and proof of loss, which claimed a loss of $143,653.15 on the day of the fire, were sent by United States mail to the insurance company at Morano's instructions. Included in the inventory were items that had been observed being removed prior to the fire, such as jewelry and sewing machines, and items that had little or no cost. Morano submitted grossly inflated figures--for example, $11,000 for an air conditioner that had cost $1,000 including installation. When Morano was arrested in his home, the arresting officer observed two commercial sewing machines very similar to those Morano had claimed were destroyed in the fire.
Morano claims that it was reversible error for the district court to allow evidence of Ottomonelli's prior arson convictions and testimony concerning his unusual method for starting fires. He suggests that the evidence could not have been used against Ottomonelli under Fed.R.Evid. 404(b) if he were the defendant, so it should not be admitted in Morano's trial. He also argues that Benfield's identification of Ottomonelli was insufficient to connect Ottomonelli with the Price Cutter fire, so the evidence should have been excluded under Fed.R.Evid. 403.
The district judge apparently admitted this evidence because it was relevant to the existence of a common plan between Morano and Ottomonelli, Fed.R.Evid. 402; see United States v. Jimenez, 600...
To continue reading
Request your trial
-
U.S. v. Haimowitz
...inferences and credibility choices in favor of the fact-finder's verdict. United States v. Pullen, at 790-791; United States v. Morano, 697 F.2d 923, 927 (11th Cir.1983). We hold that the record supports the finding by the district court that Haimowitz conspired to and participated in a sch......
-
Winston v. State
...not have been introduced to show that he acted in conformity with some criminal propensity to commit murders. See United States v. Morano , 697 F.2d 923, 926 (11th Cir. 1983).On facts similar to these, numerous courts have held that a co-defendant, like Cannon, cannot invoke the analogous f......
-
U.S. v. Gonzalez-Sanchez
...they were not improper. Rule 404(b) does not apply to evidence of past crimes of persons other than the defendants. United States v. Morano, 697 F.2d 923, 926 (11th Cir.1983). Moreover, later discussions concerning evidence directly implicating the defendants in past crimes shows that the t......
-
United States v. Ballou
...401 against considerations such as prejudice, undue waste of time and confusion of the issues under Rule 403.”); United States v. Morano, 697 F.2d 923, 926 (11th Cir.1983) (“But although Rule 404(b) does not control this situation, the exceptions listed in the Rule should be considered in w......