U.S. v. Sasso

• Decision Date: 05 July 1995
• Docket Number: 994,D,Nos. 782,s. 782
• Citation: 59 F.3d 341
• Parties: 42 Fed. R. Evid. Serv. 801 UNITED STATES of America, Appellee, v. Robert SASSO, Jr., and Anthony Armienti, Defendants-Appellants. ockets 94-1345, 94-1346.
• Court: U.S. Court of Appeals — Second Circuit

Page 341

59 F.3d 341

42 Fed. R. Evid. Serv. 801

UNITED STATES of America, Appellee, v. Robert SASSO, Jr., and Anthony Armienti, Defendants-Appellants.

Nos. 782, 994, Dockets 94-1345, 94-1346.

United States Court of Appeals Second Circuit.

Argued Feb. 6, 1995.

Decided July 5, 1995.

Ellen M. Corcella, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty. for the E.D. of N.Y., David C. James, Asst. U.S. Atty., Brooklyn, NY, on the brief), for appellee.

David Breitbart, New York City (Richard Rubenstein, New York City, on the brief), for defendant-appellant Robert Sasso, Jr.

Vivian Shevitz, Mt. Kisko, NY (Jane Simkin Smith, Mt. Kisko, NY, on the brief), for defendant-appellant Anthony Armienti.

Before: KEARSE, CARDAMONE, and MAHONEY, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Robert Sasso, Jr., and Anthony Armienti appeal from judgments entered in the United States District Court for the Eastern District of New York following a jury trial before Sterling Johnson, Jr., Judge, convicting them of conspiring to deal in firearms and to possess and receive firearms with obliterated serial numbers, in violation of 18 U.S.C. Sec. 371 (1988), and of dealing in firearms, in violation of 18 U.S.C. Sec. 922(a)(1)(A) (1988); convicting Sasso of possessing defaced firearms, in violation of 18 U.S.C. Sec. 922(k) (1988 & Supp. II 1990); and convicting Armienti, a previously convicted felon, of possessing a firearm, in violation of 18 U.S.C. Sec. 922(g)(1) (1988). Sasso and Armienti were sentenced principally to 51 and 115 months' imprisonment, respectively, to be followed by three-year terms of supervised release, and each was fined $50,000. On appeal, defendants contend, inter alia, that the district court made erroneous evidentiary and discovery rulings, and that it erred in denying their motion for a new trial on the ground that one of the government's key witnesses committed perjury. In addition, Sasso contends that his rights under the Confrontation Clause of the Sixth Amendment were violated by the admission at trial of hearsay statements of Armienti implicating Sasso in the offenses; Armienti challenges the calculation of his offense level under the federal Sentencing Guidelines ("Guidelines") and the imposition of a fine. For the reasons below, we affirm.

I. BACKGROUND

The present prosecution arises out of an investigation by a task force of New York City Police Department officers and Bureau of Alcohol, Tobacco, and Firearms ("BATF") agents into unlawful weapons trafficking. The evidence at trial included testimony from coconspirator Richard C. Van Allen, who began cooperating with the government following his arrest in December 1992 and recorded certain conversations thereafter; testimony from Armienti's former girlfriend; and telephone records. Taken in the light most favorable to the government, the evidence showed that Van Allen unlawfully supplied Sasso with guns from 1989 to 1992 and that Armienti was involved from 1990 to 1992.

A. The Evidence as to the Events

Van Allen, a sometime truck driver who held a BATF license to sell firearms from his home in Long Island, New York, met Sasso in 1989 when both worked in construction in New York City. Sasso asked whether Van Allen could obtain guns for Sasso. Thereafter, Sasso began buying from Van Allen 5-15 small-caliber handguns a week.

In 1990, Sasso introduced Armienti to Van Allen, arranging for Armienti to deliver money or pick up weapons ordered by Sasso. Armienti performed these duties from time to time from mid-1990 until mid-1992. During that period, Sasso also introduced Frank Angelo to Van Allen, stating that Angelo wanted to come in "almost like a partner ... only he was going to be doing all the leg work," delivering the money and picking up the firearms. (Trial Transcript ("Tr.") at 423.) In a January 1993 tape-recorded conversation, Angelo confirmed to Van Allen that Sasso placed the orders and received a share of the profits, but had Angelo do the leg work.

Over time, the size and frequency of the orders Van Allen received from Sasso increased. Van Allen testified that during the period in question, he purchased and sold nearly 3,000 guns, some 2,000 of them in 1992. He said that "99 and a half percent" of his firearms sales in 1992 were made to Sasso (Tr. at 430; see also id. at 588 ("99.9 percent" overall); id. at 589 ("99.99 percent" overall)), either directly or through Armienti and Angelo. Van Allen also testified that after he obtained guns, he, Sasso, and Angelo removed their serial numbers, using a variety of tools.

Kristine Kramer, Armienti's girlfriend for most of the period from August 1991 to June 1992, testified to her observations and her conversations with Armienti during that time. Kramer, a truck driver in her mid-40's, was a member of the Teamsters Union and was thereby acquainted with Sasso and with Sasso's father, who was president of Teamsters Local 282, and she knew Van Allen by sight.

In late 1991, Kramer invited Armienti to spend the Thanksgiving and Christmas holidays with her and her four children. When he declined, she asked whether he was married or was seeing another woman. Armienti explained that he was in fact married and that he could not leave his wife because she had incriminating information that she would report to law enforcement authorities if he left her. Pressed for elaboration, Armienti stated that he owed a favor to Sasso's father and that he was repaying that debt by "running ... guns" for Sasso. (Tr. at 1012.) Armienti told Kramer that he obtained the guns from an individual he referred to as "Rambo," whom Kramer eventually saw and identified as Van Allen. Kramer recognized Van Allen as someone she had seen with Sasso at Teamster Union meetings.

As a result of Armienti's revelations, Kramer broke off their relationship. They soon reconciled, however, and in February 1992 Armienti began living with Kramer. Thereafter, Kramer observed that Armienti was often paged on his beeper. He left her home to return the page on public telephones, informing her that the calls were from "Rambo." While living with Kramer, Armienti had frequent meetings with Van Allen, and Kramer accompanied him when he set out for six such meetings. Armienti would generally leave Kramer at a restaurant, returning 15-30 minutes later to pick her up. When Armienti returned on one occasion in June 1992, he stated that he had missed his connection with "Rambo"; however, as Kramer and Armienti began to leave the restaurant parking lot, Van Allen arrived. Armienti went to Van Allen's van and was handed a package that he placed in the trunk of his car. Kramer testified that the weight of the package caused the back of the car to sink. Armienti later stated that he had to make a gun delivery to someone he called "Peter," and he showed Kramer one of the guns in the package he had placed in the trunk of the car.

After his meetings with Van Allen, Armienti normally proceeded to meet Sasso. Armienti did not want Sasso to see or know about Kramer, however; thus, she would wait in the car, parked or driving around, while Armienti met Sasso on a street corner. From her vantage point, Kramer observed Armienti meet and speak with Sasso.

Armienti told Kramer that he and his cohorts ground the serial numbers off the guns. They kept a grinder at Sasso's girlfriend's house and were acquiring a second grinder because Armienti had additional customers of his own. He also described an incident that had created problems for him with Sasso's father, in which Armienti had improvidently allowed someone to witness Sasso grinding gun serial numbers.

B. The Proceedings in the District Court

Sasso was indicted in February 1993, and Armienti in August 1993, on the charges indicated above. The jury convicted them on all of those counts.

After the verdicts, defendants moved for a new trial on the basis that Van Allen had committed perjury by testifying (a) that he had not made gun sales after his arrest, and (b) that Sasso, Angelo, and Armienti had bought virtually all of the guns Van Allen sold. The district court denied the motion.

Defendants were sentenced as indicated above, and these appeals followed.

II. DISCUSSION

On appeal, defendants claim, inter alia, that they are entitled to a new trial because their confrontation rights were violated and because there was new evidence that Van Allen committed perjury. We find no merit in any of their contentions.

A. Confrontation Claims

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." Both defendants contend that their confrontation rights were violated when the trial court ruled that they could not cross-examine Kramer as to her treatment by a psychiatrist and her ingestion of mood-altering drugs. Sasso contends that his rights were further violated by the admission against him of Kramer's testimony as to statements of Armienti that inculpated Sasso. We reject both contentions.

1. Limitation on the Cross-Examination of Kramer

At an in limine hearing outside the presence of the jury, it was revealed that in 1988, a truck that Kramer was driving accidentally struck and killed a fellow worker. Kramer testified that she became depressed and twice visited a psychiatrist for counseling. Shortly after these two visits, Kramer's family physician prescribed the antidepressant drug Prozac, which Kramer took "on and off" during the following year. Defendants sought permission to bring these facts out in the presence of the jury. They later contended also that Kramer committed perjury in the in limine hearing as to the extent of her ingestion of antidepressant drugs. As support for this contention, they proffered pharmacy records showing that Kramer had a Prozac prescription filled in December 1990 and a prescription for Elovil filled in October 1992. Defendants...