U.S. v. Spinelli

• Citation: 352 F.3d 48
• Decision Date: 10 December 2003
• Docket Number: Docket No. 99-1448.
• Parties: UNITED STATES of America, Appellee, v. Robert SPINELLI, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

352 F.3d 48

UNITED STATES of America, Appellee, v. Robert SPINELLI, Defendant-Appellant.

Docket No. 99-1448.

United States Court of Appeals, Second Circuit.

Argued: October 1, 2003.

Decided: December 10, 2003.

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Daniel S. Dorsky, Assistant United States Attorney, for Roslynn R. Mauskopf, United States Attorney, Eastern District of New York (Jo Ann M. Navickas, Assistant United States Attorney, of counsel), for Appellee.

Gail E. Laser, New York, NY, for Defendant-Appellant.

Before: MINER, CALABRESI, and STRAUB, Circuit Judges.

CALABRESI, Circuit Judge.

This case arises out of the brutal 1992 shooting of Patricia Capozzalo ("Capozzalo"), whose brother, Peter Chiodo ("Chiodo"), was a member of the Luchese crime family and was suspected by other members of cooperating with a government investigation. The defendant-appellant, Robert Spinelli ("Spinelli"), is the brother of Michael Spinelli ("Michael"), who served in Chiodo's "crew" and sometimes acted as his bodyguard. Because Spinelli drove a second getaway car for the perpetrators of Capozzalo's shooting, a jury convicted Spinelli of conspiracy to murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5); of assault with a dangerous weapon, in violation of 18 U.S.C. § 1959(a)(3); of conspiracy to tamper with a witness, in violation of 18 U.S.C. § 371; and of witness tampering, in violation of 18 U.S.C. § 1512(a)(1)(A). The district court (Dearie, J.) sentenced Spinelli to 120 months' imprisonment, three years of supervised release, and a $200 special assessment.

On appeal, Spinelli argues (1) that the district court erred in denying his motion to sever his trial from that of his brother, who was convicted of the same charges as Spinelli, as well as on two counts of using a firearm during a crime of violence; and (2) that his own sentence was improperly enhanced for committing a crime involving "permanent or life-threatening bodily injury," in light of the fact that the victim sustained only minor physical injuries in the murder attempt. We affirm the judgment of conviction, but vacate and remand for resentencing.

Background

On May 8, 1991, after his fellow Luchese crime "family" members came to believe (erroneously) that he was cooperating with the government, Peter Chiodo was assaulted and shot thirteen times. "Family" member Richard Pagliarulo ("Pagliarulo"), a member of Chiodo's crew, assigned the shooters and replaced Chiodo as "captain" after the murder attempt. Subsequently, Pagliarulo and an associate warned Chiodo through his attorney that Chiodo's wife would be killed if he cooperated with the government's investigation. They also advised Chiodo's father to warn Chiodo that his whole family would be assassinated if he cooperated. Chiodo nevertheless decided to cooperate with the government. While most of his family was relocated under the Federal Witness Protection Program, his sister Patricia Capozzalo declined to join them. Later, her husband was advised to abandon the job Chiodo had found for him at a warehouse, and the family considered moving as a precaution. But, after some time away, they decided to return to their home.

Four months after the attempt on his life, Chiodo testified against several organized crime members who were on trial for corruption in New York's window replacement industry. Pagliarulo and Michael sent individuals to monitor his testimony, and attempted to unearth information to discredit Chiodo. In early 1992, Chiodo was scheduled to testify in additional trials, including that of Luchese family boss Vittorio "Vic" Amuso ("Amuso"). Around this time, Pagliarulo asked crew members for Capozzalo's address and physical description. Michael told Dino Basciano ("Basciano"), another crew member, to expect to be asked to kill someone. Pagliarulo later told Basciano that the target was Capozzalo, and that Amuso had approved the hit. Pagliarulo apparently gave Michael the task of selecting the crew members who would carry out the murder, and Michael assigned his brother, Spinelli, to drive a second back-up, or "switch," getaway car. The crew members planned to use walkie-talkies so that Michael could signal Spinelli that the hit had occurred and that they were on their way to his getaway car. Spinelli secured the getaway car, but did not participate in the group's pre-hit surveillance of Capozzalo, or in the procurement of firearms.

The group made two unsuccessful attempts to carry out the hit: in the first, as they approached Capozzalo's car, a girl came out of a nearby house, and Michael radioed Spinelli that the hit was off. The second attempt was also foiled by the arrival on the scene of a potential witness. Then, on March 10, 1992, as Capozzalo returned home from driving her children to school, Michael blocked her car with his van while Basciano walked to the driver's side of Capozzalo's car and fired two shots through the window. The gun's adaptor apparently disintegrated, causing the gun to begin to fall apart. Basciano fired additional shots and then jumped into the van. Though Capozzalo was able to duck under her dashboard, one bullet lodged in her neck and another ricocheted off her back. She was treated at St. Vincent's Medical Center at Richmond, where the bullet was dislodged and she received three sutures for a minor wound behind her ear. Remarkably, tests revealed no internal injuries or other physical harm, and Capozzalo was released after only a couple of days in the hospital.

As Michael and Basciano made their escape, Michael apparently radioed Spinelli that they were on their way to him. They got into Spinelli's getaway car and drove to Michael's house. Spinelli took the guns, walkie-talkies, ski masks, and other items used in the crime to his sister's house and disposed of the switch car. They only learned later that Capozzalo had survived the attack.

Michael and Robert Spinelli were indicted together, and were scheduled to be tried together. Prior to trial, Spinelli made a motion for severance. Michael submitted an affidavit to the court supporting his brother's request. In this statement, Michael swore that he had been advised by counsel that in a joint trial, he should invoke his Fifth Amendment privilege not to testify. If, however, the brothers were tried separately, Michael averred, he would waive the privilege and "testify that Robert Spinelli played no role in connection with the shooting of Patricia Capozzalo." His affidavit concluded, "if the Court grants a severance, and allows me to be tried first, I fully intend to testify on Robert Spinelli's behalf at his trial."

Spinelli also submitted a memorandum of law in support of his motion for severance. He argued that the availability of Michael's exculpatory testimony was conditioned upon separate trials for the two brothers; that Michael's testimony would not be cumulative since the evidence against Spinelli was minimal; that neither trial was expected to last more than one or two weeks, rendering concerns about judicial economy inapposite; and that Michael's testimony would not be subject to substantial impeachment. Spinelli's motion for severance was denied.

At trial, Basciano testified that Pagliarulo had ordered the shooting of Capozzalo, and that Basciano and Michael gathered a group together to carry out the hit. He added that Jody Calabrese and Gregory Cappello carried weapons and drove the first back-up car. According to Basciano, Michael selected his brother to drive the second back-up, or "switch," car unarmed. Basciano also testified about the numerous violent crimes in which he had participated as a member of the Luchese crime family, including an aborted murder attempt involving Michael, Cappello, and Calabrese.

Capozzalo testified about the events leading up to the shooting, and described the shooting itself. She was unable to identify any of the perpetrators. Dino Marino, a Luchese family associate, testified to Michael's involvement in physical assaults on union officials, and described his own participation in murders and attempting killings. Marino also testified that Spinelli worked at a legitimate construction job.

In exchange for leniency, Luchese family member Frank Gioia testified about prison conversations he had had with the Spinelli brothers while the brothers were incarcerated on unrelated charges. Gioia testified that Michael told him details about the Capozzalo shooting, including the fact that Spinelli was involved. Michael apparently complained to Gioia that, despite Michael's key role in the attempt on Capozzalo's life, he had not been inducted into the Luchese family. The family indicated to Michael through intermediaries that they were interested in inducting him, and also apparently arranged to pay his attorneys' fees to discourage him from cooperating with the government. Michael eventually was inducted into the Luchese family by an underboss while in prison. Spinelli allegedly told Gioia that Michael had been seduced into participating in the Capozzalo hit because of the alluring possibility of joining the Luchese family as a "made" member. Spinelli said that it was this desire on Michael's part that had led to the brothers' involvement in the Capozzalo shooting. Spinelli added that he feared that "eventually we're going to get indicted." Also according to Gioia's testimony, Michael had been given the opportunity to plead guilty to the Capozzalo shooting and receive less jail time, but Luchese bosses convinced him not to include that crime in his plea agreement.

Spinelli called no witnesses in his defense. Michael called two: himself, and Scott Konop. Before Michael testified, Spinelli again moved for a severance. The judge expressed bemusement at this motion, noting that Spinelli's prior motion for severance was premised solely on the necessity from Spinelli's point of view of getting Michael to testify, an event that was now about to occur despite the lack of...