U.S. v. Tocco

• Decision Date: 16 January 1998
• Docket Number: No. 760,D,760
• Citation: 135 F.3d 116
• Parties: 48 Fed. R. Evid. Serv. 790 UNITED STATES of America, Appellee, v. Thomas TOCCO, Defendant, Mario Ferranti; Jack Ferranti, Defendants-Appellants. ockets 96-1282, 96-1266.
• Court: U.S. Court of Appeals — Second Circuit

Page 116

135 F.3d 116

48 Fed. R. Evid. Serv. 790

UNITED STATES of America, Appellee, v. Thomas TOCCO, Defendant, Mario Ferranti; Jack Ferranti, Defendants-Appellants.

No. 760, Dockets 96-1282, 96-1266.

United States Court of Appeals, Second Circuit.

Argued Feb. 4, 1997.

Decided Jan. 16, 1998.

Vivian Shevitz, Mt. Kisco, NY (Jane Simkin Smith, Carol E. Gette, Mt. Kisco, NY, of counsel), for Appellant Jack Ferranti.

Lauren J. Resnick, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney, Emily Berger, Assistant United States Attorney, Eastern District of New York, Brooklyn, NY, of counsel), for Appellee United States of America.

Before: WINTER, Chief Judge, CARDAMONE and CABRANES, Circuit Judges.

CARDAMONE, Circuit Judge:

This criminal prosecution arose out of a late-night fire in a three-story building in Queens, New York, on February 24, 1992 during which a firefighter lost his life. The subsequent investigation focused on the defendant Jack Ferranti (defendant or appellant) as the person who set the blaze in an effort to cut his losses from a failing business and to profit through the collection of insurance proceeds. Ferranti appeals from a judgment of the United States District Court for the Eastern District of New York (Weinstein, J.), convicting him following a two-week jury trial of arson homicide in violation of 18 U.S.C. § 844(i), arson conspiracy in violation of 18 U.S.C. § 371, 16 counts of mail fraud in violation of 18 U.S.C. § 1341, and witness tampering in violation of 18 U.S.C. § 1512(b).

On appeal Ferranti raises a number of issues of apparent legal substance, one or two of which are matters of first impression, challenging his conviction for arson homicide and a sentence of 435 months in prison--a period of time five years longer than his life expectancy. Although these legal challenges are skillfully articulated, they turn out, upon close analysis, to be unpersuasive and only hopeful thoughts. Therefore, for the reasons given below, we affirm.

BACKGROUND

I The Fire

Defendant Jack Ferranti owned a retail clothing store called "Today's Styles" which he operated in space he rented on the ground floor of a building located at 64-65 Grand Avenue in Maspeth, Queens. The two upper floors of the building consisted of four occupied residential apartments that housed eight people. At 5 p.m. on February 24, 1992 store employee Teresa Rodriguez closed the store. Just before 11 p.m., a witness saw After successfully fleeing the burning building, two residential tenants, Shelley and Michelle Anthony, spoke briefly with a man who asked them if all of the residents had escaped the fire. From a series of photographs, Shelley Anthony later identified defendant Thomas Tocco as the man with whom he spoke on the night of the fire. Although unable to make a definitive identification, Tocco's photograph was one of two or three that Michelle Anthony selected from the series presented to her.

smoke pouring out from the side of the building and called the fire department. When it responded and the fire trucks arrived at the scene, two firefighters entered the building and went to the second floor to see if any people were trapped inside. During the search one of the firefighters fell to his death from a second-story window. Two dozen other firefighters suffered minor injuries, and several building residents were treated for smoke inhalation. The structure was destroyed, its residents left homeless.

The following morning investigators found evidence indicating that the fire was arson committed by someone with access to the retail store because there was no evidence of forced entry. Two distinct flammable liquid patterns were found on the floor of the dressing room area in the rear of the retail store that investigators believed had been intentionally placed several feet apart and ignited. Between the two patterns was a portable electric heater plugged into the wall. Investigators concluded that whoever set the fire intended to lead them to believe that it was caused by a malfunction in the heater. Testing by the FBI laboratory, however, found no evidence to suggest that the heater's circuit was "energized" at the time of the fire, i.e., there was no electrical arcing, and therefore investigators concluded that the unit could not have been the cause of the fire's ignition.

Ferranti initially told investigators that he had been out of town for several days when the fire occurred. He also said that a former employee, whom he had since fired, had purchased the heater for the store a couple of years earlier. When questioned by police, that employee denied making such a purchase. While Rodriguez, a current employee, initially told police there had been a portable heater at the store, her friend, Betzida Aviles, who had been at the store on the day of the fire, told police that there was no heater there. Before the grand jury, Ms. Rodriguez recanted, testifying that Ferranti had met with her on the morning after the fire at his real estate office in Manhattan and instructed her to lie to the investigators and tell them that there had been a portable electric heater at the store.

In the weeks following the fire, Ferranti filed a claim with his insurance company under his fire policy. The company asked attorney Stuart Markowitz to handle its investigation of the Today's Styles fire, and Markowitz corresponded with Ferranti and his representative requesting information about the fire. On June 11, 1992 after the company had examined Ferranti under oath and requested an examination of employee Rodriguez, Ferranti wrote the company withdrawing his insurance claim.

Defendant was subsequently indicted, along with his brother, Mario Ferranti, and Thomas Tocco, on charges of arson homicide, arson conspiracy, witness tampering, and mail fraud. Ferranti and his brother successfully moved for severance, and their case proceeded to trial separately from co-defendant Tocco.

II The Trial Proceedings

At trial the government developed the connection between defendant Ferranti, his brother Mario, and Tocco. In addition to the Anthonys' identification of Tocco at the fire scene, another witness testified that she had seen a dark-colored Cadillac matching the description of Tocco's car parked across the street from the building 10 to 15 minutes before she noticed smoke coming from inside it. She also stated that when she later observed the fire, the Cadillac was gone. Government witness Vincent Marziano, a convicted felon and friend of Tocco and Mario Ferranti, provided the link between Tocco and Ferranti. Marziano testified that at 2 a.m. on the night of the fire, Tocco came to his Bronx home and told him that he and Mario Ferranti had just set a Queens building on fire for Jack Ferranti. One week The government also produced evidence of Jack Ferranti's motive: to obtain an insurance award for an ailing business. Although he carried no insurance on his other store, Jack Ferranti renewed Today's Styles' fire policy, which had lapsed at the end of 1991, in the weeks immediately preceding the fire. He had informed investigators that his business was doing well, but evidence at trial--including a business diary and testimony of the store's employees--indicated that business had been extremely slow. Moreover, Ferranti had been unable to pay rent, which was scheduled to increase, on the store's five-year lease for the three months preceding the arson. Firefighters and insurance adjusters who inspected the building after the blaze discovered empty clothes racks with little debris beneath them, indicating that inventory had been removed from the store prior to the fire.

later, Marziano warned Mario Ferranti that Tocco had confessed their crime to him, and Mario responded by nodding his head affirmatively.

In addition to this circumstantial evidence, the government called as a witness Lisa Ziccardi, who testified that in the months prior to the fire, Jack Ferranti had told her that he would burn the heavily-insured store if business did not improve. Ziccardi had submitted a signed affidavit to investigators reporting Ferranti's statements and had similarly recounted his statements to an insurance company investigator. Yet, in the government's initial examination of her, she claimed a memory loss regarding Ferranti's statements, even when confronted with her own sworn, hand-written affidavit. Judge Weinstein subsequently held a hearing--outside the jury's presence--at which he concluded Ziccardi was feigning memory loss as the result of coercion by Ferranti. Because the defendant had effectively made her unavailable as a witness, the trial court ruled her sworn affidavit would be admissible as substantive evidence, under Fed.R.Evid. 803(5), if her feigned memory loss continued. When Ziccardi was recalled to the stand, she reluctantly stated that she remembered hearing Ferranti state his intention to set fire to the business. Because Ziccardi now recalled and testified to Ferranti's prior statements, Judge Weinstein denied the government's motion to introduce into evidence her sworn affidavit.

Jack Ferranti's defense consisted primarily of two experts who challenged the conclusion that the fire was intentionally set. First, Thomas Klem, a former employee of the National Fire Protection Association, testified that the fire could have been caused by an electrical short in the building since he had observed evidence of electrical arcing on the electrical outlet that was connected to the portable heater--evidence which he asserted had been subsequently altered. Second, Michael Higgins, who was called by the defense as a chemical expert, testified that the police reports did not conclusively establish that traces of a flammable accelerant were present in the materials taken from the store. But Higgins conceded that the large quantities of water used to extinguish a fire may wash away the chemical...