U.S. v. Sarro
| Decision Date | 27 September 1984 |
| Docket Number | No. 83-5266,83-5266 |
| Citation | 742 F.2d 1286 |
| Parties | 16 Fed. R. Evid. Serv. 971 UNITED STATES of America, Plaintiff-Appellee, v. Robert Paul SARRO, John Michael Tiedeberg, James Gennaro Tortoriello, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
H. Dohn Williams, Jr., Williams & Gulkin, P.A., Hollywood, Fla., for sarro.
Steven E. Kreisberg, Stephen M. Pave, Miami, Fla., for J.G. Tortoriello.
Bruce Zimet, Linda Collins Hertz, David Leiwant, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Theodore Sakowitz, Federal Public Defender, Robyn J. Hermann, Asst. Federal Public Defender, Miami, Fla., for Tiedeberg.
Appeals from the United States District Court for the Southern District of Florida.
Before TJOFLAT and HATCHETT, Circuit Judges, and GARZA *, Senior Circuit Judge.
Appellants, Robert Sarro, James Tortoriello, Jr., and John Michael Tiedeberg, appeal their conviction for conspiracy to transport in interstate commerce two paintings valued at $5,000 or more, knowing the paintings to have been stolen, in violation of 18 U.S.C.A. Sec. 371 (West 1966), and 18 U.S.C.A. Sec. 2314 (West 1970). We affirm the convictions of Robert Sarro and James Tortoriello, Jr., but we reverse the conviction of John Michael Tiedeberg.
In July, 1982, Federal Bureau of Investigation (FBI) Agents Brown and Hanlon sought to recover two paintings which had been stolen two years earlier. On July 28, 1982, Agent Hanlon, in his undercover capacity, telephoned Phillip Shapiro. During the conversation, Shapiro told Hanlon that two paintings by the famous artist Rubens were in the Fort Lauderdale, Florida, area and could be purchased for $1 million each. Agent Hanlon told Shapiro that he was interested if the paintings could be authenticated by an appraiser. Agent Hanlon and Shapiro agreed to meet on July 29, 1982, at the Marriott Motor Hotel in Fort Lauderdale. Agent Hanlon tape recorded this telephone conversation.
On July 29, 1982, Agents Hanlon and Brown met with Shapiro and two other men at the Marriott Motor Hotel. At this meeting, Shapiro informed the agents that two paintings by the artist Rubens were available for $1 million each. Shapiro further stated that the paintings had been "boosted" in a burglary in south Florida, and persons known to him were in possession of the paintings and were seeking a buyer. Agent Hanlon responded that he knew some South and Central American individuals who were in possession of large sums of cash and who were looking for investments. In addition, Hanlon stated that the only problem he could foresee with the purchase of these paintings would be authenticating them as originals. Agents Brown and Hanlon tape recorded this meeting.
On July 30, 1982, Agents Hanlon and Brown met Shapiro at the Bagel Joint in Fort Lauderdale. At that time, Shapiro indicated that a meeting had been arranged for Agents Hanlon and Brown to meet with the individuals who had actually "boosted" the paintings. Shapiro scheduled this meeting for later that same afternoon at the River Watch Lounge in the Marriott Motor Hotel.
At the lounge, Shapiro introduced the agents to Mark Tortoriello and appellants, James Tortoriello, Jr. and Robert Paul Sarro. Then, Mark Tortoriello handed Agent Hanlon a grocery bag containing two paintings wrapped in a towel. Hanlon asked Mark Tortoriello if they could move to a more secluded place to examine the paintings.
The group, consisting of appellant, James Tortoriello, appellant, Robert Paul Sarro, Mark Tortoriello, Shapiro, and Agents Brown and Hanlon, then moved to a table at the rear of the lounge. The agents then closely examined the paintings. The agents then explained to James Tortoriello, Sarro, Shapiro, and Mark Tortoriello that the paintings were impressive, and if they were authentic, the agents could find a buyer.
James Tortoriello responded that the two paintings were worth $1 million each and that the paintings were stolen from the Whitney house in Palm Beach County approximately two years earlier. James Tortoriello further stated that the paintings had been in his possession since that time, and that he had researched their approximate value.
The agents informed the men that the paintings needed to be authenticated by their art expert who lived in New York, and that once the paintings were authenticated, the agents had some Latin American clients who would be interested in purchasing them. The agents explained that the paintings would be taken from the United States to their clients' residences in South or Central America, where they would be hung without fear of detection.
James Tortoriello stated that he would travel anywhere to have the paintings appraised, or for the sale, but he would not relinquish control of the paintings prior to their sale.
The parties agreed that after the appraiser or art expert verified the paintings' authenticity, the paintings would be taken to one location and held, along with one of the buyer's representatives, and then the buyer or another of his representatives would go to another location with the money. After the money was exchanged, a telephone call would be made, and the paintings would be released to the buyer or his representative.
Near the end of this meeting, appellants, Robert Sarro and James Tortoriello, requested that the agents find a purchaser for the paintings as soon as possible, and urged that the deal be completed within a two-week period. This meeting adjourned with the understanding that another meeting would be held on August 1, at the Fort Lauderdale Holiday Inn.
On August 1, 1982, Agents Hanlon and Brown arrived at the Airport Holiday Inn and met with Shapiro. Hanlon informed Shapiro that his art expert/appraiser would be available to look at the paintings on August 4, 1982, in Hartford, Connecticut. Shapiro indicated that he would ask "Mr. Tortoriello" and his group about this arrangement, and advise Hanlon later. This meeting terminated without a firm time or place being set for the art appraisal. Agents Hanlon and Brown tape recorded this meeting.
On August 2, 1982, Agent Hanlon and Shapiro had a telephone conversation concerning movement of the paintings from Florida to New York for authentication. Connecticut was also a possible site for the paintings' appraisal.
During one of these telephone conversations, Shapiro stated that the "big guy was afraid to fly," so Hanlon would have to bring his appraiser to Florida. In any event, plans for the New York or Connecticut appraisal fell through, and the appraisal was later scheduled to take place in Fort Lauderdale, Florida.
On August 4, 1982, FBI Agent Thomas M. McShane, working undercover as an art expert, met Shapiro in the lobby of the Marriott Hotel in Fort Lauderdale. At that time, Shapiro informed McShane that his "people" had not yet arrived. McShane told Shapiro that he was pretty exhausted because at the last minute, the appraisal plans were changed. Shapiro apologized for the rearrangement of plans, and explained that at the last minute, one of the people in his party decided that he did not want to fly to New York. According to Shapiro, the person was afraid of flying.
Shapiro informed Agent McShane that he would have to be searched before the deal went through. Agent McShane stated that he would cooperate fully and that Shapiro could also search his hotel room. Agent McShane then returned to his hotel room to shower and shave.
Soon thereafter, Shapiro and appellant, John Michael Tiedeberg met with McShane in his hotel room. Upon entering, Tiedeberg searched McShane and then searched his room. After the searches, Shapiro asked Tiedeberg if he were satisfied, and Tiedeberg nodded his head in affirmance. Shapiro then told Tiedeberg to stay in the room with McShane; Shapiro left the room.
Shortly after Shapiro left the room, Tiedeberg answered a knock at the hotel room's door. Shapiro and appellant, Sarro, entered the room. Shapiro carried a brown shopping bag containing the paintings.
At this point, Agent McShane began to check the paintings for size, medium, and condition. During this examination, Sarro, Tiedeberg, and Shapiro were standing next to McShane. Agent McShane went into the bathroom with the paintings so he could closely examine them with a black light. Tiedeberg accompanied Agent McShane into the bathroom.
At the end of his examination, McShane reentered the room and told Shapiro, Sarro, and Tiedeberg that the paintings looked very good and that they could be Rubens. Agent McShane then asked if the paintings were "hot," and Shapiro stated that they were "out for two years." Sarro interrupted and stated that the paintings "had been out for seven years" instead of two.
Agent McShane then informed the parties that the paintings would have to be taken to New Jersey and eventually would be going to a customer in Central America. Shapiro asked Agent McShane how the money would be transferred. McShane stated that they could "do it here or do it in New York." Shapiro said it did not matter.
Agent McShane asked Shapiro and Sarro if they would accompany him to the lobby and help him retrieve his x-ray machine. Sarro and Shapiro consented. Prior to leaving, Shapiro ordered Tiedeberg to remain in the room with the paintings. Once outside the hotel room, law enforcement officers arrested Sarro and Shapiro.
A few minutes later, Agent McShane returned to his hotel room and found it empty. McShane went onto the balcony and observed a brown paper bag with the paintings in it in the bushes directly below the balcony. Agent McShane did not see Tiedeberg.
Shortly thereafter, appellant, James Tortoriello, telephoned Agent McShane, and they agreed to meet in the hotel lounge to further discuss the sale of the paintings.
Agent McShane went to the lounge where he and James Tortoriello discussed the paintings and their value....
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