U.S. v. Volpe
| Decision Date | 03 March 1999 |
| Docket Number | No. CR 98-196(S-2).,CR 98-196(S-2). |
| Parties | UNITED STATES of America v. Justin A. VOLPE, Thomas Bruder, Charles Schwarz, Thomas Wiese, Michael Bellomo, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Zachary W. Carter, United States Attorney, Eastern District of New York, Brooklyn, NY (Loretta E. Lynch, Alan Vinegrad, and Kenneth P. Thompson, Assistant United States Attorneys, of counsel), for U.S.
Marvyn M. Kornberg, Kew Gardens, New York, for defendant Justin A. Volpe.
Stephen C. Worth, Hesslon, Bekoff & Worth, Mineola, New York, for defendant Charles Schwarz.
Stuart London, White Plains, New York, for defendant Thomas Bruder.
Russell M. Gioiella, Litman, Asche, Lupkin & Gioiella, New York City, for defendant Thomas Wiese.
Joseph Tacopina, Altchiler & Tacopina, New York City, for defendant Thomas Wiese.
John D. Patten, New York City, for defendant Michael Bellomo.
The superseding indictment in this case contains thirteen counts and makes various charges against the five defendants, four New York City police officers and one police sergeant.
Count One charges that four defendants, Police Officers Justin A. Volpe, Thomas Bruder, Charles Schwarz, and Thomas Wiese, conspired to deprive Abner Louima of his federal civil rights by assaulting him while handcuffed and in police custody in a police car and in a 70th Precinct restroom. Counts Two through Four are substantive counts alleging assaults in a police car and an assault in the restroom.
Count Five charges Police Sergeant Michael Bellomo as an accessory after the fact by assisting the officers to hinder and prevent their apprehension and trial. Count Nine charges Volpe with witness tampering by threatening Louima to prevent him from telling a United States law enforcement officer of an assault. Count Ten accuses Bellomo of making a false statement to the Federal Bureau of Investigation that he had authorized an arrest of Louima. Count Thirteen alleges that Bruder, Schwarz, and Wiese conspired to obstruct justice by providing false statements to the Kings County District Attorneys Office, the Police Department, and the Federal Bureau of Investigation in an effort to exculpate Schwarz as to the alleged assault of Louima in the restroom.
Count Six charges Volpe and Bellomo with conspiring to deprive Patrick Antoine of his federal civil rights by unlawfully assaulting him and then falsely arresting him to conceal the assault. Counts Seven and Eight allege substantive counts charging the assault and false arrest of Antoine. Count Eleven charges Bellomo with falsely stating to the Federal Bureau of Investigation that he saw Patrick Antoine charge into Volpe. Count Twelve charges Bruder with a similar false statement.
On March 2, 1999 the government moved to dismiss Count Twelve. The court will grant this motion.
The remaining charges in the superseding indictment can be identified as follows:
LOUIMA CHARGES
COUNT CHARGE DEFENDANTS
1 CONSPIRACY TO DEPRIVE VOLPE, BRUDER
CIVIL RIGHTS (ASSAULTS) SCHWARZ, AND WIESE
2 DEPRIVATION OF CIVIL SCHWARZ AND WIESE
RIGHTS (CAR ASSAULT # 1)
3 DEPRIVATION OF CIVIL VOLPE, BRUDER
RIGHTS (CAR ASSAULT # 2) SCHWARZ, AND WIESE
4 DEPRIVATION OF CIVIL RIGHTS VOLPE AND SCHWARZ
(RESTROOM ASSAULT)
5 ACCESSORY AFTER THE FACT BELLOMO
(CAR ASSAULT # 2)
9 OBSTRUCTION OF JUSTICE — VOLPE
WITNESS TAMPERING
10 FALSE STATEMENTS (LOUIMA ARREST) BELLOMO
13 CONSPIRACY TO OBSTRUCT BRUDER, SCHWARZ
JUSTICE (RESTROOM ASSAULT) AND WIESE
ANTOINE CHARGES
COUNT CHARGE DEFENDANTS
6 CONSPIRACY TO DEPRIVE CIVIL VOLPE AND BELLOMO
RIGHTS (FALSE ARREST)
7 DEPRIVATION OF CIVIL RIGHTS VOLPE
(ASSAULT)
8 DEPRIVATION OF CIVIL RIGHTS VOLPE AND BELLOMO
(FALSE ARREST)
11 FALSE STATEMENTS (ANTOINE ARREST) BELLOMO
The court will now decide the numerous motions made by the defendants.
Each of the five defendants seeks to sever his case from the cases of one or more of his co-defendants or to sever some of the charges. The government consents, and defendants do not object, to the severance of Count Thirteen. Otherwise, the government opposes defendants' motions. The court will sever Count Thirteen.
Persons indicted together for crimes arising out of a similar series of acts or involving substantially the same evidence should generally be tried together. See United States v. Corr, 543 F.2d 1042, 1052 (2d Cir.1976). Joint trials allow witnesses and the court to avoid the burden of successive trials on the same issues and, in the case of complex cases, "permit the jury to see a comprehensive presentation of the entire enterprise and the role played by each participant." United States v. Persico, 621 F.Supp. 842, 852 (S.D.N.Y.1985); see United States v. Lyles, 593 F.2d 182, 191 (2d Cir.1979).
Although there is a "preference" for joint trials of defendants indicted together, Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993), Rule 14 of the Federal Rules of Criminal Procedure provides that where it appears joinder may prejudice a defendant or the government, the court may sever counts or defendants. That rule states in relevant part:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.
Such a severance is justified only where joinder would "compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539, 113 S.Ct. at 938. Even if defendants can establish prejudice, Rule 14 does not require severance but "leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion." Id. at 538-39, 113 S.Ct. at 938.
Volpe seeks severance from all of his codefendants except Bellomo on the ground that his defense and those of other defendants are mutually antagonistic. He cites (1) Schwarz's televised statement on the television show 60 Minutes that Louima was assaulted in the restroom in the manner described by Louima; (2) Schwarz's and Wiese's assertions that they are not guilty of the car assault charges (Counts Two and Three); (3) Bruder's statement to federal agents implicating Volpe in a confrontation with Louima outside of the Club Rendezvous and in an assault of Louima in the restroom; and (4) Wiese's statement to the Kings County District Attorney's Office on August 17, 1997 implicating Volpe in the restroom assault.
A "mutually antagonistic" defense is one creating a conflict so irreconcilable that acceptance of one defendant's defense will lead the jury to convict the other. See United States v. Salameh, 152 F.3d 88, 116 (2d Cir.1998). "A simple showing of some antagonism between defendants' theories of defense does not require severance." United States v. Carpentier, 689 F.2d 21, 27-28 (2d Cir.1982).
As Zafiro v. United States makes clear, "[m]utually antagonistic defenses are not prejudicial per se." 506 U.S. at 538, 113 S.Ct. at 938. But such defenses may violate a specific trial right of a defendant by compromising the opportunity to present an individual defense. There are only a few reported cases where the facts establish the existence of mutually antagonistic defenses between co-defendants. See, e.g., United States v. Tootick, 952 F.2d 1078 (9th Cir.1991); United States v. Romanello, 726 F.2d 173 (5th Cir.1984). Such a case is one where, in effect, a defendant's counsel becomes a "second prosecutor," who "in order to zealously represent his client ... [does] everything possible to convict the other defendant." Tootick, 952 F.2d at 1082. The antagonism in the defenses thus may inhibit the jury from evaluating the evidence against each defendant based on that defendant's own acts and statements, before concluding the prosecution has proved its case beyond a reasonable doubt as to each defendant.
Volpe does not articulate any specific prejudice that might arise from the allegedly antagonistic defenses. He simply states that his co-defendants have made out-of-court statements suggesting they have defenses he alleges are antagonistic to his defense. He claims this is a sufficient ground for severance. This is not the law.
All of these statements if offered at trial would be admissible against the defendants making them. But unless some exception to the hearsay rule applies, they would not be admissible against others and would be subject to the rules developed under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
Moreover, Volpe has not articulated any defense that would be mutually antagonistic with any of his codefendants' alleged defenses. Even if some inconsistences are present in the defenses, the court can correct through instructions any potential prejudice.
Volpe first argues that his and Schwarz's defenses to the bathroom assault charge are mutually antagonistic because Schwarz allegedly said on television that he believed that Louima had been sexually assaulted in the manner described by Louima. Such a belief is hardly evidence. In any event, Schwarz allegedly stated also that he did not know who committed the assault and that he did not participate in it. Even if this statement were admitted, the jury could believe that Schwarz did not participate in the assault without concluding that Volpe did participate....
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