United States v. DeCologero, 062308 FED1, 07-1086
|Docket Nº:||07-1086, 06-2569, 06-2392, 06-2391, 06-2390, 06-1274|
|Party Name:||UNITED STATES OF AMERICA, Appellee, v. PAUL A. DECOLOGERO; JOHN P. DECOLOGERO, JR.; PAUL J. DECOLOGERO; JOSEPH F. PAVONE, Defendants, Appellants.|
|Case Date:||June 23, 2008|
|Court:||United States Courts of Appeals, Court of Appeals for the First Circuit|
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Hon. Rya W. Zobel, U.S. District Judge
Alexander Bunin for appellant Paul A. DeCologero.
Mark W. Shea with whom Jean C. LaRocque and Shea, LaRocque & Wood, LLP were on brief for appellant John P. DeCologero, Jr.
Jeanne M. Kempthorne with whom Doug Cannon and Law Office of Jeanne M. Kempthorne were on brief for appellant Paul J. DeCologero.
Raymond Mansolillo for appellant Joseph F. Pavone.
Kirby A. Heller, Attorney, Criminal Division, United States Department of Justice, with whom Michael J. Sullivan, United States Attorney, Timothy Q. Feeley, Assistant United States Attorney, and Christopher F. Bator, Assistant United States Attorney, were on brief for appellee.
Before Lynch, Chief Judge, Merritt,[*] Senior Circuit Judge, and Howard, Circuit Judge.
LYNCH, Chief Judge.
Paul A. DeCologero ("Paul A."), his nephews Paul J. DeCologero ("Paul J.") and John P. DeCologero, Jr. ("John Jr."), and their friend Joseph F. Pavone appeal their assorted RICO,1 robbery, drug dealing, witness tampering, firearms, and related conspiracy convictions. After a thirty-nine day trial on eighteen counts, each defendant was found guilty on some and acquitted on other of the charges. Each now raises multiple claims on appeal regarding the management of the trial, evidentiary rulings, the sufficiency of the evidence against them, and other discrete matters.
We affirm the convictions and also reject John Jr.'s sentencing appeal.
Because three of the defendants question the sufficiency of the evidence behind their convictions, we relate the facts in the light most favorable to the verdict. United States v. Soto-Beníquez, 356 F.3d 1, 14 (1st Cir. 2004). We trace the general contours of the case here and leave further recounting for the analysis of particular arguments.
Paul A. ran a criminal enterprise (the "DeCologero crew") based out of a gym he operated in Woburn, Massachusetts. Paul J., John Jr., Pavone, and other associates assisted Paul A. in his efforts to control a portion of Boston's drug trade. Part of the crew's modus operandi was to beat up and to steal drugs and cash from other drug dealers. Aislin Silva, a young woman who was a friend of crew member Stephen DiCenso, was murdered and dismembered in an effort to protect the crew's activities.
Each defendant was convicted of conspiracy to engage in a pattern of racketeering activity, 18 U.S.C. § 1962(d), as well as the substantive offense of engaging in a pattern of racketeering activity, 18 U.S.C. § 1962(c). These convictions required that each defendant be found to have committed at least two predicate racketeering acts, which could be either state or federal crimes. A table of the counts and racketeering acts is provided in the appendix. We summarize the racketeering acts for which at least some of the defendants were convicted.
A. Soccorso Robbery - 19952
In 1995, Paul A. sent John Jr. and Thomas Regan to the house of Philip Soccorso, a marijuana dealer, to steal drugs from him. Regan tricked Soccorso into leaving his house and then forced him into their car at gun point. When Soccorso refused to disclose the location of his drugs, Regan and John Jr. drove to Paul A.'s house to pick him up and, as Regan recounted, Paul A. "read [Soccorso] the riot act" about dealing drugs in Paul A.'s territory. To add emphasis, John Jr. hit Soccorso with a handgun. Eventually Soccorso told them that his supplier, Gary Ramus, who was back at Soccorso's house, might have some drugs. They returned to the house, and Regan forced Ramus into the car at gunpoint.3] After some more haranguing (also at gunpoint), Soccorso and Ramus agreed to give Paul A. the marijuana stashed at Soccorso's house.
Regan, Ramus, and Soccorso testified for the government at trial. The jury found that Paul A. and John Jr. had committed the racketeering acts of armed robbery, the kidnaping of Soccorso and Ramus, and possession of marijuana with intent to distribute.
B. Pesaturo Robbery - November 1995
Around November 1995, Paul A. agreed with Regan that Richie Pesaturo, another drug dealer, needed to be taught a lesson because he owed Regan money and had been "running his mouth" about the crew. On Paul A.'s orders, Regan, Paul J., and John Jr. went to Pesaturo's apartment, where John Jr. and Regan beat Pesaturo and Regan "read him the riot act." The three crew members then ransacked the apartment until they found Pesaturo's cocaine supply and $11,000. Before leaving, the three men bound Pesaturo and his roommate Richard Bentley, who had returned home during the course of the robbery, with duct tape. They then went to Paul A.'s place to divide up the proceeds.
Regan and Bentley testified at trial about this robbery and beating. The jury found that Paul A., John Jr., and Paul J. had committed the racketeering acts of robbery under the Hobbs Act,4 the kidnaping of Pesaturo and Bentley, and possession of cocaine with intent to distribute.
C. Finethy Extortion - January/February 1996
In January or February 1996, Paul A. sent John Jr. and Pavone to the house of Shane Finethy, who sold marijuana on Paul A.'s behalf. Finethy had kept $8000 in proceeds from drug sales without Paul A.'s permission, using it for a down payment on a house, and had failed to pay Paul A. back. Upon arrival, John Jr. realized that Finethy had sold the house in question and was preparing to move. John Jr. became angry, and he and Pavone hit Finethy until his face was covered with blood; after Finethy's wife and baby came into the room, Finethy left the house and John Jr. and Pavone followed. Out on the street, they attempted to force Finethy into their car, with John Jr. threatening Finethy at gunpoint. The arrival of a police cruiser broke up the scene, and Finethy returned to his house.
Finethy and his wife testified at trial, and the jury found that Paul A., John Jr., and Pavone had committed the racketeering act of extortion.
D. Sapochetti Robbery - October 1996
In the fall of 1996, Kevin Meuse and Derek Capozzi were released from jail and joined the DeCologero crew. That October, the crew planned to rob and kill Albert "Big Al" Sapochetti, a bookmaker and drug dealer. With Paul A.'s agreement, John Jr. and Meuse robbed Sapochetti at gunpoint and beat him, leaving him, his neighbor, and his girlfriend hog tied with duct tape and wires. John Jr. and Meuse threatened to return for more money and told Sapochetti they were sparing his life because of his girlfriend's presence.
Sapochetti's girlfriend testified at trial. In addition to finding that Paul A. and John Jr. had committed the racketeering acts of kidnaping all three victims, the jury also convicted them of using or carrying a firearm, or aiding and abetting such use, during the commission of a violent crime. The government alleged that Paul J. participated in this robbery as well, but the jury found his participation not proved.
E. Stevens Robbery - October 1996
Also in October 1996, the crew targeted Michael "Slim" Stevens, who was selling marijuana in Paul A.'s territory. Paul A. gave guns to Regan, Capozzi, and Meuse and sent them with Stephen DiCenso, another member of the DeCologero crew, to Stevens's townhouse. Regan and Capozzi beat Stevens and threatened to cut off his ear with a knife. Stevens eventually turned over what money he had and led Regan and Capozzi to a stash of marijuana. Before leaving, Regan and Capozzi tied up Stevens, his girlfriend, and another friend of Stevens who had arrived during the robbery.
Stevens, his girlfriend, Regan, and DiCenso testified about this incident at trial. The jury convicted Paul A. of robbery under the Hobbs Act, possession of marijuana with the intent to distribute, and aiding and abetting the use of a firearm during the commission of a violent crime. These crimes, along with armed robbery and kidnaping, were also proved as to Paul A. as racketeering acts under RICO.
F. North Burglary - October 1996
The crew also burgled the home of Jeffrey North, another marijuana dealer, that same October. When DiCenso told Paul A. that North was in jail pending bail, Paul A. sent DiCenso, Paul J., and Regan to burgle North's apartment. DiCenso broke into the apartment and, with the help of the others, found a cache of weapons, two safes, night vision goggles, and about ten pounds of marijuana.5 The burglars packed most of the goods into duffel bags and heaved the safes over the balcony of the apartment to the yard below. They then loaded "the bags, a box of grenades, and the safes" into a car and returned to Paul A.'s house. There Meuse pried open the safes in the presence of the others. The safes contained various firearms, including two MAC-11s (submachine gun/pistol), an Uzi (submachine gun), and another machine gun with a silencer, as well as money and more drugs.6 Paul A. gave most of the guns to DiCenso to store in the home of Aislin Silva, a nineteen-year-old woman who permitted her friend DiCenso to keep drugs in her apartment on behalf of the crew.
In connection with this burglary, Paul A. and Paul J. were found guilty of conspiracy to possess marijuana with intent to distribute, which the jury also found to be a racketeering act, and of being felons in possession of a firearm.
G. Silva Witness Tampering and Murder - November 1996
Paul A. went to Silva's apartment later that month with DiCenso and Vincent Marino (a.k.a. Gigi Portalla) to show Marino the guns. On November 5, when DiCenso and Paul J. returned to Silva's apartment on Paul A.'s instructions to pick up some of the guns, they found the police, who had received a tip...
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