United States v. DeCologero

• Decision Date: 11 July 2013
• Docket Number: CRIMINAL ACTION NO. 01-10373-RWZ
• Citation: United States v. DeCologero, CRIMINAL ACTION NO. 01-10373-RWZ (D. Mass. Jul 11, 2013)
• Parties: UNITED STATES OF AMERICA v. PAUL A. DECOLOGERO, et al.
• Court: U.S. District Court — District of Massachusetts

UNITED STATES OF AMERICA

v.PAUL A. DECOLOGERO, et al.

CRIMINAL ACTION NO. 01-10373-RWZ

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

July 11, 2013

MEMORANDUM OF DECISION

ZOBEL, D.J.

Paul A. DeCologero("Paul A."), Paul J. DeCologero("Paul J."), John P. DeCologero, Jr.("John Jr."), and Derek Capozzi("Capozzi") have moved under 28 U.S.C. § 2255 to vacate their sentences.Their motions are based on two FBI reports they claim are exculpatory material that the prosecution should have produced before trial.Capozzi has also filed a variety of other motions.

I.Background

In the 1990s, Paul A. ran a Boston-based criminal organization known as the "DeCologero crew."Its members included his brotherJohn P. DeCologero and his nephews Paul J. and John Jr., along with Capozzi and others.The crew traded in drugs and guns, and used force to compete with rival criminal factions.In 1996, members of the crew acting on orders from Paul A. murdered a nineteen-year-old woman named Aislin Silva("Silva"), because Paul A. was afraid she would betray the crew to thepolice.

In October 2001, the four defendants currently seeking relief were charged with violations of the Racketeer Influenced and Corrupt Organizations Act("RICO") and a number of related crimes.¹The latter included violations of the federal drug and gun laws, violations of the Hobbs Act by robbery from and extortion of rival drug dealers, and witness tampering by Silva's murder.

A.The Trials

Paul A., Paul J., and John Jr. were tried together in early 2006.All three were convicted on several counts, including the RICOandHobbs Act counts mentioned above.In addition, Paul A. and Paul J. were convicted for their role in Silva's death.The testimony at trial regarding Silva's death came primarily from Stephen DiCenso, a former member of the DeCologero crew who was closely involved in the killing.

According to DiCenso, Silva's murder occurred as follows: In November 1996, the police found a stash of guns that the DeCologero crew had hidden in Silva's apartment.After that discovery, Paul A. decided to kill Silva because he believed she would implicate the entire crew if she were interrogated about the guns.He first planned to trick Silva into overdosing on drugs.He told Paul J. to acquire some high-grade heroin, which Paul J. did.DiCenso and another crew member, Kevin Meuse, then gave Silva the heroin and told her it was really good cocaine.She took some of the heroin but did not overdose.

When the overdose plan failed, Paul A. decided that Meuse should kill Silva by force.On November 13, 1996, Meuse went to DiCenso's father's apartment, where DiCenso had brought Silva.He sent DiCenso out to buy a hacksaw and cutting shears.While DiCenso was gone, Meuse killed Silva by breaking her neck.DiCenso returned with the tools to find Silva dead.Meuse then left to get Capozzi so he could help dispose of the body.The three men used the tools to dismember Silva's body in DiCenso's bathtub.They stuffed her body parts into plastic garbage bags and then into gym bags, put the bags in Capozzi's car, and drove to a Home Depot to buy lime and a shovel.Using the shovel and lime, they buried Silva's remains in some woods on the North Shore.They left the bloody trash and gym bags in a dumpster near a car wash in Danvers.

DiCenso's testimony was corroborated by physical evidence, including the bloody trash bags and gym bags found in the dumpster in Danvers.DNA from the blood, hair, and tissue on the bags belonged to Silva.Four empty lime bags were also found in the dumpster.The Home Depot's security video showed Capozzi and Meuse leaving with four bags of lime and a shovel; a receipt from the Home Depot showed a purchase of four bags of lime, a shovel, gloves, flashlights, and doorknobs.Matching packaging for the flashlights and gloves was found in the Danvers dumpster, and matching doorknobs were found in Meuse's apartment.In addition, a box for a police scanner found in the dumpster showed Meuse's fingerprint, and a police scanner of the same model was found in Meuse's car.

DiCenso's testimony was also corroborated by other witnesses.A drug dealernamed Antonio Centeno testified to selling thirty bags of high-grade heroin to Paul J., and testified that Paul J. asked for heroin strong enough to make someone overdose.John P. DeCologero("John Sr.")—brother of Paul A., father of Paul J. and John Jr., and former member of the DeCologero crew— testified he heard Paul A. tell Paul A.'s son that the heroin intended for the overdose didn't work.John Sr. also heard from John Jr. the details of how Meuse had killed Silva, and how DiCenso and Capozzi had helped him dispose of her body.Finally, another member of the DeCologero crew named Thomas Regan testified that Paul A. told him that Meuse and DiCenso had killed Silva and cut up her body.

Further testimony from DiCenso and others explained how Silva became involved with the DeCologero crew, how the crew acquired the guns they stored at Silva's apartment, and how the crew kept Silva away from the police after the guns were discovered.There was also substantial evidence describing many of the DeCologero crew's other criminal acts under Paul A.'s leadership.That evidence need not be recounted in detail here, but it was extensive and thoroughly corroborated.

Paul A. attempted to call as a witness the leader of another criminal faction, Gigi Portalla, to show that Portalla was involved in Silva's murder.That theory corresponded with early press reports about the Silva murder that indicated police were investigating Portalla and his crew.However, Portalla was in federal custody at the time of Paul A.'s trial, and could not be transferred in time to testify because Paul A. did not request his presence until the trial had already run for twenty-nine days.In any case, as the First Circuit confirmed on appeal, Portalla's proffered testimony was "tangential andpotentially cumulative."United States v. DeCologero, 530 F.3d 36, 75(1st Cir.2008).

Paul A. was convicted of witness tampering conspiracy, witness tampering by misleading conduct, witness tampering by attempting to kill, and witness tampering by killing, among other crimes.Several predicate acts underlying his substantive RICO conviction also stemmed from his role in Silva's death.Paul J. was convicted of witness tampering conspiracy, witness tampering by misleading conduct, and witness tampering by attempting to kill, among other crimes; the latter two crimes were also predicate acts for his RICO conviction.John Jr. was not charged with any offenses relating to the Silva killing.

Capozzi was tried separately in two trials.At the first, in late 2004, he was convicted of Hobbs Act conspiracy for conspiring with the DeCologero crew to rob other drug dealers.²At the second, in 2005, he faced charges related to his role in the Silva killing.The government again presented DiCenso, who testified along the lines discussed above.In addition, Capozzi's friend Jason Stone testified that Capozzi had twice confessed to him his role in Silva's killing.Capozzi did not contest the government's evidence that he, Meuse, and DiCenso dismembered and buried Silva.Instead, he staked his hopes on a technicality.He argued that (contrary to DiCenso's testimony) DiCenso, not Meuse, actually broke Silva's neck.³Therefore, he argued, he was innocent of the charged offense, because the indictment charged him as accessoryto Meuse's killing of Silva when it should have charged him as accessory to DiCenso's killing of Silva.He also argued that he had no advance knowledge of any conspiracy to kill Silva; this argument was unavailing because, as a matter of law, the conspiracy to kill Silva continued so long as the conspirators were acting together to destroy incriminating evidence.SeeUnited States v. Medina, 761 F.2d 12, 18(1st Cir.1985).In any case, the testimony at trial indicated that Capozzi could have known of the conspiracy to kill Silva in advance.Capozzi was convicted of witness tampering conspiracy and accessory after the fact to witness tampering by killing.

All four defendants unsuccessfully appealed their convictions and sentences.

B.The New Evidence

In 2010, Paul A., Paul J., and John Jr. became aware of two FBI reports that, they claim, the prosecution should have disclosed before trial.⁴The first is a three-page report, stamped with Batesnumbers 000438-440, describing a September 10, 1999, interview of a woman named Michelle Noe.The interview took place shortly after Noe's arrest on an outstanding warrant for an unarmed bank robbery.It was apparently conducted by Lt. Eugene A. Kee Jr., of the Massachusetts State Police, along with Detectives Thomas J. Romeo and Michael P. Murphy of the North Reading Police.

Noe reported that in mid-November of 1996, her boyfriend, Charles McConnell, had come home one night in a panic with his clothes and his arms covered in blood.McConnell apparently changed his clothes, washed off the blood on his arms, put the bloody clothes in a green garbage bag, and smoked a hit of cocaine.He then left thehouse with the garbage bag.About thirty minutes later, Noe looked out the window and saw McConnell on the sidewalk talking to Gigi Portalla.McConnell returned to the house, took some heroin, and overdosed.Noe resuscitated him and asked what had happened.McConnell responded that Noe would get killed, apparently by Portalla, if he told her.He then reportedly said, "I did something, I can't believe I did.She was your age.I'm not going into details.Remember the girl I used to take you by the house with Gigi.She worked at MVP [a sporting goods store].We did something to her, she ratted."Docket # 2006, Ex. Bat 2.He stated that Gigi Portalla and another acquaintance, Robert Nogueira, were also there, and told Noe that if the police asked her any questions, she should say that he had been home all night.Noe further...