U.S. v. Romanello

• Decision Date: 17 February 1984
• Docket Number: No. 83-2206,83-2206
• Citation: 726 F.2d 173
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony John ROMANELLO, Victor Antonio Mendez and Gerald Thomas Vertucci, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

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726 F.2d 173 UNITED STATES of America, Plaintiff-Appellee,
v.
Anthony John ROMANELLO, Victor Antonio Mendez and Gerald
Thomas Vertucci, Defendants-Appellants. No. 83-2206. United States Court of Appeals,
Fifth Circuit. Feb. 17, 1984.

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Ramsey Clark, Lawrence W. Schilling, New York City, Harold Borg, Kew Gardens, N.Y., for Romanello and Mendez.

William W. Burge, Houston, Tex., for Vertucci.

James R. Gough, Ronald G. Woods, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before GOLDBERG, GEE and TATE, Circuit Judges.

GOLDBERG, Circuit Judge:

... I saw a lizard come darting forward on six great taloned feet and fasten itself to a [fellow soul].... [T]hey fused like hot wax, and their colors ran together until neither wretch nor monster appeared what he had been when he began.... ¹

The joint trial of conspiracy defendants was originally deemed useful to prove that the parties planned their crimes together. However, it has become a powerful tool for the government to prove substantive crimes and to cast guilt upon a host of co-defendants. In this case, we are concerned with the specific prejudice that results when defendants become weapons against each other, clawing into each other with antagonistic defenses. Like the wretches in Dante's hell, they may become entangled and ultimately fuse together in the eyes of the jury, so that neither defense is believed and all defendants are convicted. Under such circumstances, the trial judge abuses its discretion in failing to sever the trials of the co-defendants. Today we hold that the defense of Gerald Vertucci was antagonistic to the defenses of Anthony Romanello and Victor Mendez and that Vertucci should have been severed from his co-defendants.

I. FACTS

On December 3, 1981, Italian citizens Marcello Farneda and Giuseppi Longhin arrived at the Houston airport, carrying suitcases containing gold chains. Farneda and Longhin were en route from Italy to Mexico. Vertucci, an employee of Air France, met Farneda and Longhin in the Customs area of the terminal. After a Customs inspection, Farneda and Longhin gave their bags to Vertucci for storage until they left for Mexico the next day (Dec. 4). Vertucci placed the bags in the Air France storeroom.

At approximately 6:30 that night (Dec. 3), Vertucci asked an Air France manager to open the storeroom. Vertucci removed the bags and loaded them into a van parked outside the terminal. Vertucci drove off. Later at trial, Vertucci's counsel would argue that Vertucci was transferring the gold to another terminal from which Longhin and Farneda planned to depart the next day. The government would argue that

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Vertucci was removing the gold from the airport permanently.

At approximately 2:00 a.m. on December 4, 1981, one Kenneth Ellis was awakened by his dogs. He discovered Vertucci handcuffed to a light pole at the end of Ellis' driveway. Ellis lived in Chambers County, Texas, approximately 50 minutes by car from Houston airport.

Ellis freed Vertucci. In subsequent statements to police officials, Vertucci maintained that he had been robbed of the gold. According to his story, one man holding a gun accosted him while he was loading the gold into the van at the Air France terminal. The gunman ordered him into the van and directed him to drive away. The gunman was joined by a second man at a nearby motel parking lot. They loaded the gold into an automobile and drove off with the captive Vertucci. As they entered the automobile, Vertucci looked at the license plate but could not read it because it was bent. A short time later, the driver stopped and got out of the car, and Vertucci heard a banging noise as if the license plate were being straightened. Vertucci described the automobile as having a light-colored exterior and a dark interior. It was a large four-door, maybe a Chevrolet, about four or five years old. It had a radar detector.

According to Vertucci's statements he was driven out to Chambers County, and handcuffed to the light pole. The gunman held his weapon against Vertucci's head, and clicked the hammer; then he punched Vertucci three times in the head. The gunman told Vertucci that if he described his assailants they would return and kill him and his family. The assailants then drove off in their car.

Despite the threat, Vertucci described the two men to the police. He described the gunman as a white male, 5'6" to 5'7", 140 to 150 pounds, with a youngish face. The man was clean shaven with short, black, combed-back hair. He had large, brown eyes and a medium-to-olive complexion. He was wearing a leather jacket and a pullover shirt.

Vertucci described the second man as a white male, about 30 years old, six feet tall, weighing approximately 210 pounds. He had short black hair, combed back into a kind of "close Afro." He was clean-shaven and had no sideburns. He had dark eyes and wore jeans and a long-sleeved polo shirt. He was bigger and had a lighter complexion than the gunman.

On December 5, 1981, Nick Theodos of the New Jersey State Patrol stopped a vehicle for speeding on the New Jersey Turnpike. Mendez was driving and Romanello was asleep in the back. Mendez invited Officer Theodos to search the car, and the trooper discovered two packages containing gold chains. Officer Theodos arrested Mendez and Romanello. A subsequent investigation revealed that the gold was the same as that which Longhin and Farneda had brought into the Houston airport.

At trial Officer Theodos described the car as a two-toned, blue 1977 Chevrolet with four doors. It had a radar detector and a bent license plate. Officer Theodos did not describe Romanello and Mendez who were present at trial.

During the investigation of Romanello and Mendez, John Hensely (one of the agents who had questioned Vertucci) determined that Vertucci's description of his assailants and their vehicle matched Romanello and Mendez and their automobile. However, Vertucci was not able to pick their photographs out of a line-up.

On December 18, Romanello and Mendez were indicted by Texas state authorities for the offenses of aggravated kidnapping and robbery of Vertucci. On February 10, 1982, the state charges were dismissed.

On March 29, 1982, Romanello, Mendez and Vertucci were all indicted in four felony counts by a federal grand jury. The counts were:

1. stealing jewelry in violation of 18 U.S.C. Secs. 659 and 2;

2. importing jewelry into the United States in violation of 18 U.S.C. Secs. 542 and 2;

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3. transporting stolen goods in interstate commerce in violation of 18 U.S.C. Secs. 2314 and 2;

4. conspiring to commit the offenses described in counts 1-3 as well as to obstruct justice in violation of 18 U.S.C. Sec. 371.

The government's theory was that all three defendants participated in the conspiracy and performed various acts in furthering the planned crimes. Vertucci allegedly took the gold from the airport; then he was handcuffed to a pole in order to create the appearance of a robbery. His description of his "assailants" was accordingly partly accurate and partly vague. Accuracy on some points would help him remember details and appear consistent before the police; vagueness on other points would prevent the police from actually catching his co-conspirators. According to the government, Romanello and Mendez were to carry out the next stage of the theft, transporting the gold to New York. However, they were stopped by Officer Theodos before they reached their destination.

II. PROCEEDINGS BELOW

The three defendants were tried together before a jury in the United States District Court for the Southern District of Texas.

The defendants filed pretrial motions and supplemental motions for severance pursuant to Fed.Rule Crim.Proc. 14. They alleged, inter alia, ² that their defenses were antagonistic and that joinder would have the effect of denying them a fair trial. The...