United States Court of Appeals
For the First Circuit
No. 05-2256
UNITED STATES,
Appellee,
v.
DEREK CAPOZZI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Terrance J. McCarthy on brief for appellant.
Timothy Q. Feeley, Assistant United States Attorney, Michael
J. Sullivan, United States Attorney, Christopher F. Bator,and
Ernest S. Dinisco, Assistant United States Attorneys, on brief for
appellee.
May 23, 2007
CAMPBELL, Senior Circuit Judge. Defendant Derek Capozzi
appeals from his convictions in the United States District Court
for the District of Massachusetts for Hobbs Act conspiracy, witness
tampering conspiracy, and being an accessory after the fact to
witness tampering killing.1 Capozzi makes three major contentions
on appeal: (1) that the government's concession that the evidence
was insufficient to establish two of the three objects of a multi-
object conspiracy to violate 18 U.S.C. § 1512, the witness
tampering statute, warrants a new trial; (2) that the district
court erred in denying Capozzi the right to confront a government
cooperating witness with the theory that his reward in exchange for
testifying included avoidance of the death penalty; and (3) that
his Hobbs Act conspiracy conviction must be vacated because there
was insufficient evidence before both the grand jury and the petit
1
A short while before scheduled oral argument of this case,
Capozzi moved on several occasions to have his appointed counsel
disqualified, to have counsel's brief stricken from the record, and
to preclude his counsel from presenting oral argument. After this
court denied Capozzi's various motions, his counsel moved to
withdraw. We granted that motion on November 9, 2006 and, having
determined that the decisional process would not be significantly
aided by oral argument, we directed that the case be submitted on
the existing briefs. Capozzi subsequently filed several motions
directing our attention to portions of the record; our decision
today is based on a thorough review of the record on appeal. He
additionally filed a further motion to reconsider striking his
counsel's brief, arguing, inter alia, that counsel had inaccurately
argued his first point on appeal. We denied that motion. To the
extent Capozzi sought in the motion to make a different argument
related to his first claim on appeal here, we have considered that
argument below in addition to the arguments presented in the
appellant's brief. See note 2, infra.
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jury. After a careful review of the trial record, we affirm
Capozzi's convictions.
Background and Facts
Capozzi was a member of a drug organization led by co-
defendant Paul A. DeCologero (known as the "DeCologero Crew" and
sometimes referred to herein as the "crew"). Along with
distributing drugs, the crew used force to gain control of Boston's
drug trade and murdered a nineteen-year-old woman, Aislin Silva,
when crew members thought she might betray them.
In October 2001, DeCologero and six associates, including
the defendant here, were charged in a 23-count indictment with
criminal racketeering in violation of the Racketeer Influenced and
Corrupt Organization Act ("RICO"), 18 U.S.C. § 1962(c) (2000);
conspiracy to violate RICO, id. § 1962(d); and a number of related
crimes. In addition to the RICO counts, the indictment specified
a number of federal crimes charged in separate counts involving
drugs, guns, robberies, and, in the case of Silva, murder for the
purposes of witness tampering. See generally United States v.
DeCologero, 364 F.3d 12 (1st Cir. 2004) (affirming denial of
DeCologero's motion to dismiss on double jeopardy grounds and
reversing district court's order removing several racketeering acts
from the trial of the RICO case).
Capozzi was charged in Counts 1 and 2 (RICO conspiracy
and substantive charges, in violation of 18 U.S.C. § 1962(c) and
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(d)); Count 3 (witness tampering conspiracy, in violation of 18
U.S.C. § 371); Count 4 (witness tampering, in violation of 18
U.S.C. § 1951(a)); Count 7 (accessory after the fact to witness
tampering killing); Count 8 (Hobbs Act conspiracy, in violation of
18 U.S.C. § 1951(a)); Count 9 (Hobbs Act robbery, in violation of
18 U.S.C. § 1951(a)); Count 10 (possession of marijuana with intent
to distribute, in violation of 21 U.S.C. § 841(a)(1)(A)); Count 11
(using a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)); and Count 19 (felon-in-possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1)).
One of Capozzi's co-defendants, John P. DeCologero, Sr.,
pled guilty to a RICO offense on February 28, 2003. On July 20,
2004, Capozzi moved to disqualify the counsel for three of his co-
defendants on the grounds that they had conflicts of interest. As
a result, counsel for co-defendants Paul A. Decologero, John P.
DeCologero, Jr., and Paul J. DeCologero withdrew from the case and
were replaced by successor counsel. Because of the amount of time
new counsel would need to prepare for trial, the government moved
to sever Capozzi from his co-defendants, sever trial of the RICO
charges and substantive witness tampering charge for a later date,
and try Capozzi on the remaining charges beginning on September 24,
2004, the date on which the RICO trial had been scheduled to begin.
The court granted the motion and on September 27, 2004 began trial
against Capozzi on the Hobbs Act conspiracy, robbery, drug and
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firearms counts, with another trial to follow on the witness-
tampering and murder-related counts. Capozzi elected to represent
himself at trial (and throughout most of the pretrial proceedings),
with standby counsel appointed by the court.
The counts before the jury in the first trial were Count
8 (Hobbs Act conspiracy), Count 9 (Hobbs Act robbery of a drug
dealer, Michael Stevens), Count 10 (possession of marijuana with
the intent to distribute), Count 11 (using a firearm during and in
relation to the Stevens robbery), and Count 19 (felon-in-possession
of a firearm). On October 13, 2004, the jury convicted Capozzi of
the Hobbs Act conspiracy charge (Count 8) and acquitted him on the
felon-in-possession of a firearm charge (Count 19). The jury
failed to reach a unanimous verdict on the Stevens robbery and
related charges (Counts 9, 10, and 11), and the court declared a
mistrial as to those counts.
Capozzi's second trial, on the witness tampering and
murder-related counts, began on April 25, 2005, with Capozzi still
representing himself, again with standby counsel. Before the jury
were Count 3 (witness tampering conspiracy), Count 4 (witness
tampering by misleading conduct), and Count 7 (accessory after the
fact to witness tampering killing). On May 10, 2004, the jury
convicted Capozzi of witness tampering conspiracy (Count 3) and
accessory after the fact to witness tampering murder (Count 7), and
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acquitted him on the witness tampering by misleading conduct charge
(Count 4).
On August 12, 2005, Capozzi was sentenced on the three
counts of conviction to a total of 23 years' imprisonment. Upon
imposition of the sentence, the government dismissed the RICO
counts (Counts 1 and 2), and the counts related to the Stevens
robbery on which the first jury had deadlocked (Counts 9, 10, and
11). Capozzi timely appealed from his convictions in both trials
on August 16, 2005.
Evidence at Trial
The evidence at both trials showed that Paul A.
DeCologero ("Paul A.") headed the DeCologero crew in 1995 and 1996.
The crew, consisting mostly of his relatives and their close
friends, dealt in cocaine and marijuana and stole from competing
drug dealers. Cooperating witnesses for the government Thomas
Regan and Stephen DiCenso testified to having themselves been
members of the crew. They also identified as members Paul A. and
co-defendants John P. DeCologero ("John Sr."), John P. DeCologero,
Jr. ("John Jr."), Paul J. DeCologero ("Paul J."), Kevin Meuse
("Meuse"), and Capozzi. John Sr. and Paul A. are brothers, and
John Jr. and Paul J. are John Sr.'s sons and Paul A.'s nephews.
Meuse joined the crew in September 1996. Capozzi, a friend of
Meuse, joined the crew at Meuse's invitation in October 1996.
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i. First Trial
At the first trial, the evidence showed that when Meuse
and Capozzi joined the crew in the fall of 1996, the other crew
members were already engaged in a conspiracy to rob area drug
dealers of drugs, money, and weapons. DiCenso testified about a
spring 1996 robbery of a local marijuana dealer, Jeff North, which
DiCenso had helped to plan with the approval of Paul A., and which
two others committed on Paul A.'s orders. DiCenso also testified
that North had at least one drug customer in Maine who later became
DiCenso's customer. Regan testified to having committed robberies
and an attempted robbery of area drug dealers in the company of
John Jr., Paul J., and Paul A., on orders from Paul A. in 1995 and
1996.
Both Regan and DiCenso admitted robbing Michael Stevens
on Halloween night, 1996, on the orders of Paul A. Stevens was a
high volume marijuana dealer in Tewksbury who was known by members
of the crew to be a supplier for North. Regan and DiCenso
testified that they committed the armed robbery at Stevens'
residence with Meuse and Capozzi, and that they took money,
marijuana, and a handgun. The victims of the robbery -- Stevens,
his girlfriend, and a friend who came to the house during the
robbery -- testified about the robbery and said that the masked
robbers beat and threatened Stevens and bound all of their arms and
legs and covered their eyes with duct tape. All three victims were
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aware of only three robbers. DiCenso testified that he waited in
the car while the other three robbers entered Stevens' townhouse
and then joined them a few minutes later.
Capozzi asserted pro se in closing argument that Regan
and DiCenso were lying about his own participation in the Stevens
robbery, and that the victims correctly reported only three robbers
that night (Regan, DiCenso, and Meuse). Additionally, he argued
that the robbery of a local drug dealer did not "affect commerce,"
a required element of the crime. He finally argued there was
insufficient evidence that the marijuana Stevens sold either came
from or was sold outside Massachusetts. The jury did not reach a
verdict for Capozzi on the Stevens-related counts (Counts 9, 10 and
11) but convicted him of Hobbs Act conspiracy to rob drug dealers
along with other members of the DeCologero crew (Count 8).
ii. Second Trial
At the second trial, along with much of the same robbery
evidence admitted at the first trial, Regan and DiCenso testified
to a late October 1996 burglary of dealer North's apartment that
they committed with Paul J. on Paul A.'s orders. They took money,
marijuana, and a small arsenal of weapons and ammunition. Paul A.
divided the money but told DiCenso to store some of the weapons and
ammunition at the Medford apartment of a young woman, Aislin Silva,
where Paul A. had recently been housing cocaine. About a week
after the October robbery, Medford police heard that Silva had a
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collection of weapons in her apartment. On November 5, 1996, local
police and ATF Special Agent John Mercer went to Silva's apartment,
obtained her consent to search her apartment for weapons, and found
a duffle bag of weapons under her bed. Inside the bag were an
automatic machine pistol, a .357 magnum revolver, and an AR-15
semiautomatic assault rifle, along with several hundred rounds of
ammunition and two non-functioning hand grenades. During the
search, DiCenso and Paul J. arrived at Silva's apartment, were
identified by police, and were then allowed to leave.
According to DiCenso, the night the weapons were seized,
Paul A. gathered some of the crew together and had DiCenso take
Silva to a local hotel so they could find out what she had told the
police. Paul A. concluded he needed more time to think through the
situation, so he had DiCenso stay with Silva and gave him orders to
keep her away from police. After two days, Paul A. sent DiCenso
and Silva to New York City for a long weekend and again gave
DiCenso orders to keep Silva away from law enforcement and tell her
that she needed to stay away until lawyers could handle the
situation.
The crew gathered again when DiCenso and Silva returned
to Boston on November 12, and Paul A. decided to kill Silva.
DiCenso contributed to the final decision by telling Paul A. he did
not think she would remain "solid." Paul A. sent Paul J. to Lowell
to buy high-grade heroin, planning to make Silva overdose. Paul A.
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gave the heroin to Meuse, and Meuse and DiCenso tried to get Silva
to take an overdose quantity by telling her it was cocaine. The
attempted overdose failed, and DiCenso and Silva stayed the night
of November 12 at DiCenso's apartment. The next morning, Meuse
arrived and sent DiCenso to the hardware store to buy a hacksaw and
cutting shears. When DiCenso returned to the apartment, Silva was
dead, and Meuse admitted he had broken her neck.
Meuse left the apartment and came back with Capozzi. The
three dismembered Silva's body in the apartment's bathtub, stuffed
the body parts into plastic garbage bags and then into duffle bags,
and carried her remains to Capozzi's rental car. They drove to a
Home Depot, where Capozzi and Meuse bought a shovel and lime and
then drove to a location on the North Shore chosen by Capozzi,
where they buried Silva's remains. They then drove to a car wash
in Danvers to dispose of evidence and clean the car used to
transport Silva's body. DiCenso went to a nearby Ann & Hope store
and bought three pairs of sneakers to replace the ones worn during
the burial of Silva's remains.
Physical evidence introduced at trial lent significant
support to DiCenso's testimony. The day after Silva was killed,
bloody plastic bags, duffle bags, and four empty lime bags, among
other evidence, were found in and around a trash dumpster at the
Danvers car wash in question. Meuse's fingerprint was found on one
item. The blood, hair and tissue found on and in the plastic bags
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were determined through DNA testing to belong to Silva. A Home
Depot security video showed Capozzi pushing a shopping cart out of
the store containing what looked like four bags of lime and Meuse
leaving the store with a shovel. A receipt from the Danvers Ann &
Hope found in DiCenso's wallet two days later showed that he
purchased an iced tea at the store at about 9 p.m. on the night
Silva was killed. Another Ann & Hope receipt showed that he
purchased three pairs of sneakers and three sweat suits at about
the same time.
As noted above, on May 10, 2004, the jury convicted
Capozzi of Counts 3 and 7: witness tampering conspiracy and
accessory after the fact to witness tampering murder, and acquitted
him on Count 4, the witness tampering by misleading conduct charge.
Discussion
Capozzi argues on appeal that the court erred in
upholding his witness tampering conspiracy conviction (Count 3 in
the second trial) after the government conceded there was
insufficient evidence as to two of the three possible objects of
the conspiracy. Second, he argues that he should have been
permitted to cross-examine DiCenso regarding the benefit DiCenso
allegedly received of not being subject to the federal death
penalty. Finally, Capozzi asserts that his Hobbs Act conspiracy
conviction should be vacated because (1) there were defects in the
indictment; (2) the government failed to sustain its burden of
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proof relative to the interstate nexus requirement; and (3) the
district court erred in refusing to unseal the grand jury
transcript. We find no merit in any of these contentions.
A. Witness Tampering Conspiracy
Capozzi appeals from his conviction in the second trial
on Count 3, the multi-object witness tampering conspiracy. He
argues that the government's concession that two of the three
asserted objects of the conspiracy (conspiring to attempt to kill
Silva and engaging in misleading conduct towards her, as opposed to
conspiring to kill her) were insufficiently supported by the
evidence, combined with the general verdict returned by the jury,
necessarily means he is entitled to a new trial on Count 3.
Count 3 charged Capozzi and four co-defendants with a
violation of the general conspiracy statute, 18 U.S.C. § 371. It
alleged a multi-object conspiracy to violate various provisions of
18 U.S.C. § 1512, the federal witness tampering statute. The
charging language of Count 3, as it went to the jury, included in
relevant part the following:
the defendants herein, and co-conspirator Kevin Meuse
[now deceased] did knowingly, willfully, and unlawfully
combine, conspire, confederate, and agree with one
another and with others known and unknown to the grand
jury, to commit offenses against the United States; that
is, to kill and attempt to kill another person and to
engage in misleading conduct toward another person, with
intent to hinder, delay, and prevent the communication to
a law enforcement officer of the United States relating
to the commission or possible commission of federal
offense, . . . in violation of Title 18 United States
Code, Sections 1512(a)(1)(c), 1512(b)(3), and 2.
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The indictment followed the usual practice of using the conjunction
"and" in reference to the planned offenses, but guilt can be
established by adequate proof on any one of the three charged
grounds. See Griffin v. United States, 502 U.S. 46, 51, 59-60
(1991) (holding that the Due Process Clause does not require a
general guilty verdict on a multi-prong conspiracy be set aside if
the evidence is inadequate to support conviction as to one of the
objects).
The district court properly instructed the jury that
guilt must be based upon proof of an agreement to commit any one of
the three objects of the conspiracy and that the jury had to be
unanimous as to which if any of the three objects were proved
beyond a reasonable doubt. Before the case went to the jury,
Capozzi requested a special verdict on Count 3, arguing that a
special verdict was needed in order to clarify sentencing issues,
specifically the application of the advisory sentencing guidelines.
The court denied the request. Capozzi did not then assert that a
special verdict was needed to evaluate the sufficiency of the
evidence as to each object of the conspiracy, nor did he claim in
a post-verdict Fed. R. Crim. P. 29 motion for acquittal that the
conviction needed to be set aside because the government had failed
to prove one or more of the three objects. He argued only that
there was insufficient evidence to support each of the three
objects of the witness tampering conspiracy, not that a general
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verdict prevented a determination of which prong of the conspiracy
the jury really focused on in convicting him.
In response to Capozzi's motion for acquittal, the
government conceded there was insufficient evidence offered at
trial to establish that Capozzi agreed to the commission of witness
tampering by misleading conduct or by the heroin overdose attempted
killing of Silva. But the government contended there was ample
evidence to support the first charged object of the alleged witness
tampering conspiracy, to wit, the successful killing of Silva.
This being so, the Count 3 conviction fell within the well-
established principle repeated by this court in United States v.
Murray: "When a jury returns a guilty verdict on an indictment
charging several acts in the conjunctive, the verdict stands if the
evidence is sufficient with respect to any one of the acts
charged." 621 F.2d 1163, 1171 n.10. See Griffin v. United States,
502 U.S. 46, 51, 59-60; see also Turner v. United States, 396 U.S.
398, 420 (1970); United States v. Richman, 600 F.2d 286, 298 (1st
Cir. 1979).
As a preliminary matter, the government argues that
Capozzi forfeited his claim on this issue by failing to raise it at
the district court level. See United States v. Lilly, 13 F.3d 15,
17-18 (1st Cir. 1994) ("arguments not seasonably addressed to the
trial court may not be raised for the first time in an appellate
venue"). Because he did not preserve the particular claim related
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to the general verdict issue, we review his arguments only for
plain error. No matter the standard, however, Capozzi's claim
fails.
On appeal Capozzi no longer argues, as he did below, that
there was insufficient evidence as to all three objects of the
conspiracy. In fact, in his appellate brief he writes, "[i]t is
apparent that the verdict in this matter is required to be set
aside because it is un-supportable on two ground[s], but not
another, and it is impossible to tell which ground the jury
selected" (emphasis supplied). He thus effectively concedes that
there was sufficient evidence for the jury to find beyond a
reasonable doubt that he joined a conspiracy to engage in witness
tampering by killing Silva. Capozzi instead relies on Yates v.
United States, 354 U.S. 298 (1957), for his argument that the
general verdict does not demonstrate whether the jury convicted on
a reasonably supported basis.
The Supreme Court distinguished Yates in its later
decision in Griffin, 502 U.S. at 56. The issue in Griffin was
"whether, in a federal prosecution, a general guilty verdict on a
multiple-object conspiracy charge must be set aside if the evidence
is inadequate to support conviction as to one of the objects." Id.
at 47 (emphasis supplied). The Griffin Court distinguished Yates
and its prior decision in Stromberg v. California, 283 U.S. 39
(1931), as dealing with general verdicts in which there were legal
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or constitutional (but not merely evidentiary) defects in one of
several charged means that may have supported the jury's verdict.
Griffin, 502 U.S. at 536-56. The Griffin Court relied on its post-
Yates holding in Turner that "when a jury returns a guilty verdict
on an indictment charging several acts in the conjunctive, as
Turner's indictment did, the verdict stands if the evidence is
sufficient with respect to any one of the acts charged." Griffin,
502 U.S. at 56-7 (citing Turner, 396 U.S. at 420). Here, where the
evidence was sufficient as to one prong of the three-pronged
charged conspiracy (and Capozzi does not argue otherwise on
appeal), Griffin makes clear that the district court did not err in
upholding Capozzi's conviction on Count 3.2
2
As noted, after the completion of appellate briefing, Capozzi
filed a renewed motion to strike his counsel's legal brief on the
ground that counsel made an improper legal argument on Count 3 by
focusing on evidentiary sufficiency instead of legal error in the
indictment. Capozzi urges us now to consider an argument he
previously made pro se to the district court in a belated new trial
motion in which he cited, besides Yates, our decision in United
States v. Boots, 80 F.3d 580 (1st Cir. 1996) (a legal error in the
substantive crime charged required reversal on the conspiracy
charge, following Yates). We have consistently held that arguments
not raised in the initial appellate legal brief are considered
waived. See United States v. Pizarro-Berrios, 448 F.3d 1, 5 (1st
Cir. 2006). And it is also very doubtful whether the argument
Capozzi now seeks to make pro se was preserved below. But even
were we to reach the substance of Capozzi's pro se argument, it
fails. Capozzi appears to argue that the indictment was legally
flawed because it is impossible to charge a conspiracy both to
attempt to kill and to kill. But especially where, as here, the
government charged a conspiracy to attempt to kill Silva and a
distinct, successful killing after the heroin overdose attempt had
failed, there is no reason the attempt crime and the substantive
offense could not both be charged in the indictment. There was no
legal error in the charge.
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B. Sixth Amendment Right to Confrontation
Capozzi next challenges a restriction placed by the
district court on his cross-examination of DiCenso in both trials.
He argues that the court violated his Sixth Amendment right to
confrontation by preventing him from seeking to establish that
DiCenso benefitted from his plea agreement with the government by
not being prosecuted under the federal death penalty statute. We
hold that such restriction as was placed on the cross-examination
of DiCenso did not violate Capozzi's Sixth Amendment rights and was
within the court's discretion to impose.
i. Background
As a result of statements Silva made to friends before
weapons were found in her apartment, and some other evidence,
DiCenso was charged by criminal complaint in February 1997 with
being a felon in possession of the recovered guns. Because of
health problems stemming from a November 1996 heroin overdose and
following his motion for a competency evaluation under 18 U.S.C. §
4241 et seq., DiCenso was examined by mental health professionals
and found incompetent to stand trial. The government thus
dismissed the complaint on June 27, 1997.
Following dismissal of the firearms complaint, DiCenso
lived at his mother's home and spent a great deal of time in
internet chat rooms. ATF agent Mercer, acting in an undercover
capacity and using a female identity, "Julie," engaged in a lengthy
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online "relationship" with DiCenso. More than 400 pages of chats
and emails were preserved by Mercer and provided to a psychiatrist
for an evaluation of DiCenso's competency during that period. On
June 30, 1999, the government filed a second felon-in-possession
complaint against DiCenso. After lengthy competency proceedings,
DiCenso was found competent for trial.
The government then began to discuss with DiCenso his
possible cooperation. On October 12, 2000, the parties signed a
proffer agreement, and lengthy debriefings (or "proffers")
followed. The proffers, protected by direct use immunity,3
included DiCenso's admissions of his own involvement in the murder,
dismemberment, and burial of Silva. On October 6, 2001, DiCenso
signed a plea and cooperation agreement with the government.
DiCenso then pled guilty to a one-count information charging him
with a substantive violation of RICO, 18 U.S.C. § 1962(c). The
racketeering activity charged in the RICO information included
conspiracy to murder, attempted murder, and aiding and abetting
murder, as well as Hobbs Act conspiracy, Hobbs Act robbery and
related offenses stemming from the robberies of Michael Stevens,
Alfred Sapochetti, and Jeffrey North, and marijuana and cocaine
conspiracies. The maximum punishment for a RICO violation is 20
3
Direct use immunity allows the government to use information
derived from a witness's statements but forbids the use of the
information in those statements against the witness in subsequent
prosecution. See United States v. Plummer, 941 F.2d 799, 803 (9th
Cir. 1991).
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years' imprisonment, increased to life "if the violation is based
on a racketeering activity for which the maximum penalty includes
life imprisonment." 18 U.S.C. § 1963(a). In DiCenso's case,
aiding and abetting state law murder and federal witness tampering
killing, both charged as racketeering acts in the information, are
punishable by life imprisonment. Mass. Gen. Laws ch. 265, § 1; id.
ch. 274, § 2; 18 U.S.C. §§ 1512(a)(3)(A), and 2.
DiCenso's plea agreement stated that he faced a minimum
and maximum punishment of life imprisonment under the information.
The then-mandatory sentencing guidelines called for a guideline
sentencing range of life. U.S.S.G. § 2A1.1 (first degree murder).
The plea and cooperation agreement also provided for a departure
motion to be made by the government for substantial assistance,
pursuant to U.S.S.G. § 5K1.1, and a departure motion to be made by
DiCenso based on his physical impairments, pursuant to U.S.S.G. §
5H1.4.
As noted earlier, Capozzi's first trial focused on the
robbery, drug and firearms charges because the district court
severed the trial of these counts from the witness
tampering/murder-related counts in order to avoid possible
prejudice to Capozzi because of the time needed by co-defendants'
newly retained counsel to prepare. Because at the time of the
first trial, DiCenso stood convicted (by his guilty plea) of a RICO
offense and would be subject to impeachment on that basis, and the
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facts of the murder would not be otherwise admissible in the first
trial,4 the government moved in limine to preclude cross-
examination about the specific racketeering acts in the information
and the offense conduct underlying those acts. The court ruled
that Capozzi could elicit the specific racketeering acts during his
cross-examination of DiCenso but could not go into the underlying
offense conduct relating to the murder of Silva. During the
discussion about Capozzi's planned cross-examination, Capozzi
informed the court that he intended to establish that DiCenso was
charged with a death eligible offense and that he was benefitting
under his plea agreement because the government did not seek the
death penalty.
A lengthy discussion followed. Capozzi claimed the
maximum penalty for RICO was based on the underlying racketeering
activity, and if the underlying racketeering activity (here,
witness tampering killing) was punishable by death, then RICO was
punishable by death. There is, however, no provision for a death
penalty sentence for a RICO conviction. 18 U.S.C. § 1963(a).
Capozzi further argued that if the government had elected not to
4
The government successfully argued that under Fed. R. Evid.
609(a)(1), Capozzi was not permitted to cross-examine Dicenso on
the underlying facts of his conviction, only on the conviction for
the RICO offense itself. See, e.g., Cummings v. Malone, 995 F.2d
817, 826 (8th Cir. 1993) ("The ability to introduce the specific
crime is not a license to flaunt its details, however; cross-
examiners are limited to eliciting the name, date and disposition
of the felony committed").
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pursue the death penalty on the RICO offense charged against
DiCenso, that was a benefit that DiCenso received from his
cooperation, and Capozzi should be able to establish it before the
jury. In response, the government argued that DiCenso had never
been vulnerable to the death penalty, and that the government's
evidence that DiCenso had aided and abetted in Silva's murder came
from his protected proffer statements, which the government could
not use against him without his consent. Capozzi argued that
information from another defendant, Jason Stone, showed DiCenso's
involvement in the murder, but the government responded that
Stone's testimony would not "enlighten the court as to who it was
that actually killed Ms. Silva."
During the discussion about death penalty eligibility,
counsel for DiCenso, George Gormley, entered the courtroom, and the
district court inquired whether DiCenso and his counsel thought
that DiCenso was death eligible at the time of the plea and
cooperation agreement. DiCenso's counsel responded that DiCenso
was never thought to be vulnerable to the death penalty, that the
death penalty was never discussed during plea negotiations, and the
absence of a death eligible offense in the information was not, in
his view, a benefit received by DiCenso in consideration for his
cooperation with the government.
The court ruled, "Mr Capozzi may go into the predicate
acts, he may not go into the conduct under the predicate acts. Do
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you understand? Just what they were charged, what the predicate
acts are, which include conspiracy to murder, attempt to murder,
and a bunch of others." The court also had the following colloquy
with Capozzi:
The court: You can ask him about racketeering acts 1
through 8 and what the benefit is he gets from having
pled to those and to one life sentence, to the maximum of
one life sentence, which of course, is likely to be
reduced when he's actually asked.
Capozzi: The maximum is the death penalty.
The court: Life.
Capozzi: The statute says death. That's misleading to
the jury.
The court: Well, I mean you can ask about that if you
want. But I'm going to tell the jury that, as best as I
understand it, it is life imprisonment.
. . . .
Capozzi: We don't know what [punishment] Mr. DiCenso
thought he was exposed to.
The court: But that's what you're entitled to ask him
about.
Capozzi: Exactly. But I'm prevented now from asking him
questions is my issue.
The court: No. You're entitled to ask him what he
thought his exposure was. But we know from his counsel
that his exposure, he thought, was not death.
Capozzi: But because I opened with this and now I'm
being prevented from going into it, I would ask this
court--I would now move for a mistrial.
The court: That's denied. And you're not being
prevented from getting into it. You may not have the
precise question that you want to ask.
-22-
Capozzi's cross-examination of DiCenso at the first trial
established that DiCenso had pled guilty to what he believed was a
mandatory sentence of life imprisonment, with the expectation that
he could get a lower sentence based on his cooperation with the
government, and that he hoped to receive a sentence of time served
when his cooperation was complete. Capozzi also elicited testimony
that DiCenso expected the pending firearms indictment related to
the discovery of the guns from Silva's apartment would be dismissed
based upon his cooperation. DiCenso further admitted having
informed the government of substantial uncharged conduct, including
drug dealing (marijuana and cocaine), robbing a drug associate of
$100,000, and conspiring to kill a Mafia-related individual with a
car bomb. DiCenso also admitted that he had pled guilty (in his
RICO information) to the underlying racketeering activity of
conspiracy to murder, attempted murder, and aiding and abetting
murder, conspiracy to rob numerous individuals, robbing Michael
Stevens, kidnaping Stevens and his friends, possessing marijuana
with intent to distribute, robbing Al Sapochetti, aiding and
abetting the kidnaping of Sapochetti and his friends, robbing
Jeffrey North, and dealing cocaine.
Before the second trial, Capozzi filed a motion in limine
related to DiCenso's alleged susceptibility to the death penalty.
In addition to repeating the incorrect argument that the maximum
penalty under the RICO statute was death, he argued that DiCenso
-23-
could have been charged, as was Paul A., with the substantive
offense of witness tampering killing, a death eligible offense when
the killing consists of murder as it did here. 18 U.S.C. §
1512(a)(3)(A). The government opposed the motion in a written
submission. It contended, as previously, that the government could
not have so charged DiCenso because DiCenso's proffer statements to
the government, as well as his expected testimony at trial, could
not be used by the government in any criminal prosecution of
DiCenso given the direct use immunity granted DiCenso. Without
DiCenso's protected statements, the government argued it did not
have a chargeable case against DiCenso for aiding and abetting
witness tampering murder. The district court denied Capozzi's
motion without written opinion.
At the second trial, DiCenso's plea agreement was
introduced into evidence. DiCenso testified that he committed each
of the charged racketeering acts, and understood that his sentence
would be life imprisonment unless it was reduced as a result of his
cooperation with the government or his own physical impairments.
He also acknowledged that whether he received a reduction for his
cooperation was dependent upon the government's determining that
his testimony was truthful.
ii. Analysis
The Supreme Court has held that it is a violation of the
Confrontation Clause of the Sixth Amendment to preclude a defendant
-24-
entirely from all cross-examination about an event that a jury
might reasonably have found furnished the witness a motive for
favoring the prosecution. Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986). But the Court also noted that:
[i]t does not follow, of course, that the Confrontation
Clause of the Sixth Amendment prevents a trial judge from
imposing any limits on defense counsel's inquiry into the
potential bias of a prosecution witness. On the
contrary, trial judges retain wide latitude insofar as
the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on
concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness' safety,
or interrogation that is repetitive or only marginally
relevant.
Id.
We "review de novo the district court's conclusion that,
even though cross-examination was limited, the defendant was
afforded 'sufficient leeway to establish a reasonably complete
picture of the witness' veracity, bias, and motivation.'" United
States v. Byrne, 435 F.3d 16, 21 (1st Cir. 2006) (quoting United
States v. Gonzalez-Vazquez, 219 F.3d 37, 45 (1st Cir. 2000)). If
we determine that "the defendant's 'opportunity to impeach adverse
witnesses' met or exceeded this constitutionally guaranteed
'threshold,' we review for abuse of discretion the district court's
decision to '"impose reasonable limits" on cross-examination in
order to avoid confusion of the issues or extended discussion of
marginally relevant material.'" Byrne, 435 F.3d at 21 (quoting
-25-
Gonzalez-Vazquez, 219 F.3d at 45 (quoting United States v. Twomey,
806 F.2d 1136, 1139 (1st Cir. 1986))).
At the first trial, the district court plainly had
discretion to prevent Capozzi from questioning DiCenso about the
death penalty in the context of the RICO statute, which simply does
not provide for it. Capozzi asked the court to allow him to
establish that the RICO charge in the information to which DiCenso
pleaded was potentially punishable by the death penalty and that
DiCenso had avoided that possibility by cooperating with the
government. But the maximum punishment provided for under the RICO
statute is life imprisonment, not death. 18 U.S.C. § 1963(a). It
is not a Sixth Amendment violation to keep a defendant from
pursuing a line of cross-examination based on a mistaken view of
the law.
At the second trial, the district court prevented Capozzi
from inquiring about an uncharged offense carrying a possible death
penalty, witness tampering murder, with which, Capozzi argues,
DiCenso could have been charged. There was no evidence the
government had ever threatened or said it meant to charge DiCenso
with this offense, but Capozzi says he had a right to inquire
whether avoidance of being charged with this potential death
penalty offense formed a part of DiCenso's motive in cooperating
with the government.
-26-
In responding to this argument, both here and below, the
government insists that it never could have so charged DiCenso as
it lacked the admissible evidence to make out a case of witness
tampering murder. While DiCenso's own immunized testimony might
have supported the charge, that testimony was not available to the
government after the granting of use immunity. See Kastigar v.
United States, 406 U.S. 441 (1972) (use immunity is coextensive
with the scope of the privilege against self incrimination; any
subsequent prosecution must prove that evidence proposed to be used
derives from a legitimate source wholly independent from the
compelled testimony).
Capozzi responds that the government had ample
independent evidence to have charged DiCenso without his proffer,
based on an affidavit prepared by Special Agent Mercer in 1999 and
2000, and trial testimony by a government informant, Jason Stone,
implicating DiCenso in the murder. The government replies that
while Stone's account of two conversations he had with Capozzi in
1997 and 1998 when Capozzi confessed to being an accessory after
the fact to Silva's murder and implicated DiCenso was clearly
admissible against Capozzi, it was not so clearly admissible
against DiCenso. The district court excluded that "confession"
evidence in the severed RICO trial of Capozzi's co-defendants.
Moreover, Capozzi's "confession" to Stone implicated DiCenso only
in post-murder conduct, not in the actual killing itself.
-27-
Regardless of the possible additional evidence against DiCenso, the
fact remains that he was at no time charged with a death eligible
offense, nor is there evidence that the government contemplated
such a charge or threatened DiCenso with it.
We conclude that the district court did not commit
constitutional error when it declined to allow Capozzi to inquire
into the subject of DiCenso's avoidance of the potential death
penalty attached to this uncharged crime which DiCenso had
supposedly avoided by cooperating with the government. See Brown
v. Powell, 975 F.2d 1, 5 (1st Cir. 1992). Moreover, without
referring to the questionable, uncharged death eligible offense,
Capozzi had considerable ammunition from the RICO offense actually
charged from which to demonstrate that DiCenso had a powerful
motive to testify in a manner supportive of the government. Knight
v. Spencer, 447 F.3d 6, 13 (1st Cir. 2006) (to establish prejudice,
first question is whether absent limit on cross-examination, "would
the jury have received a significantly different impression of the
witness's credibility?").
Utilizing the available evidence, Capozzi was able to
explore thoroughly the implications of DiCenso's plea agreement at
both trials. He demonstrated during his cross-examination that
DiCenso had pled guilty to a crime punishable by life imprisonment,
and that DiCenso's cooperation allowed him to be sentenced to a
much lower sentence. DiCenso was shown to have had a powerful
-28-
motive -- avoidance of a life sentence and possibly of prison
altogether -- to cooperate with the government and to testify
falsely if necessary. Whether he faced life imprisonment alone or
an additional charge that could include the possibility of the
death penalty, DiCenso plainly had a strong incentive to seek the
deal with the government that he made, and to testify in support of
the government's theory of the case. See Brown, 975 F.2d at 4 (not
a Sixth Amendment violation where jury not told that first degree
murder carried a sentence of life without parole but otherwise "had
more than sufficient information to conclude that [the witness] had
a strong incentive to lie in order to receive a lesser sentence").
Thus we find no Sixth Amendment violation in the court's
limitation.
Nor did the court's decision to bar the questioning
constitute an abuse of its general discretion. See Byrne, 435 F.3d
at 22. We have "long . . . recognized that trial courts retain
'"wide latitude to impose reasonable limits" on cross examination
in order to avoid confusion of the issues or extended discussion of
marginally relevant material.'" Id. (quoting Gonzalez-Vazquez, 219
F.3d at 45 (quoting Twomey, 806 F.2d at 1139)). Any risk that
DiCenso would have been charged with the death penalty offense was
at best, for reasons already discussed, wholly speculative. On the
-29-
record before us, the district court did not abuse its discretion
in closing off the line of questioning on the death penalty.5
C. Hobbs Act Conspiracy
Capozzi challenges his conviction from the first trial on
Count 8, the Hobbs Act conspiracy charge pursuant to 18 U.S.C. §
1951(a). Capozzi's main argument, which was rejected by the
district court when it denied his Rule 29 motion for acquittal,
challenges the sufficiency of the evidence supporting the "affects
commerce" requirement of the statute. He additionally challenges
the district court's denial of pretrial motions which sought
dismissal of the Hobbs Act charge based on a claimed lack of
evidence presented to the grand jury. Finally, he argues that the
district court erred in denying his post-conviction motion to
unseal grand jury minutes so that he could attack the sufficiency
5
Capozzi makes an abortive argument that the government
violated the requirement of United States v. Giglio, 405 U.S. 150
(1972), that the government disclose all material evidence to the
jury by "failing to disclose the alleged promise made to its key
witness that he would not be subject to death penalty prosecution
if he testified for the government." There are at least three
problems with this argument. First, it was not raised at the
district court. Second, no such promise seems to have been made,
as questioning of DiCenso at trial and the plea agreement offered
into evidence established. Finally, the fact that DiCenso was not
charged with a death eligible offense does not constitute Giglio
material. See United States v. Bender, 304 F.3d 161, 164 (1st Cir.
2002) ("Brady applies to material that was known to the prosecution
but unknown to the defense."). The absence of a death eligible
offense charge would be apparent to anyone reading the information
and was not information withheld by the government.
-30-
of the government's presentation of evidence to the grand jury. We
find all three arguments to be lacking in merit.
i. Sufficiency of the Evidence
Capozzi preserved his sufficiency of the evidence claim
on Count 8, so we review the issue de novo. United States v.
McCormack, 371 F.3d 22, 27 (1st Cir. 2004), cert. denied, 543 U.S.
1098 (2005). "The issue is whether a rational factfinder,
considering all of the evidence in the light most favorable to the
verdict, could have found beyond a reasonable doubt that [the Hobbs
Act conspiracy] 'in any way or degree obstruct[ed], delay[ed] or
affect[ed] commerce.'" Id. (citing 18 U.S.C. § 1951(a) and United
States v. Boulerice, 325 F.3d 75, 79 (1st Cir. 2003) (standard of
review for denials of Rule 29 motions)). We take a hard look at
the record and "reject only those evidentiary interpretations and
illations that are unreasonable, unsupportable, or overly
speculative." United States v. Spinney, 65 F.3d 231, 234 (1st Cir.
1995).
Count 8 charged Capozzi with conspiring to affect
commerce by means of robberies, including but not limited to the
robberies of nine named individuals. Capozzi contends that the
evidence was insufficient to establish the "affects commerce" prong
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of 18 U.S.C. § 1951(a),6 arguing the government failed to prove
that the drug dealers robbed were dealing interstate.
We have regularly held that commerce is "affected" for
the purposes of the Hobbs Act if there is a "realistic probability
of a de minimis effect on interstate commerce." United States v.
McKenna, 889 F.2d 1168, 1171-72 (1st Cir. 1989). The government's
required showing is "not onerous." United States v. DiGregorio,
605 F.2d 1184, 1191 (1st Cir. 1979). Even potential future effects
may be the basis for interstate commerce jurisdiction under the
Hobbs Act. McKenna, 889 F.2d at 1172 n.5.
"One common method for the government to establish the
required 'de minimis effect' on interstate commerce is to show that
the defendant's activity 'minimally depletes the assets of an
entity doing business in interstate commerce.'" United States v.
Capozzi, 347 F.3d 327, 337 (1st Cir. 2003) (quoting United States
v. Nguyen, 246 F.3d 52, 54 (1st Cir. 2001)).
The government's evidence at Capozzi's first trial, which
included Count 8, showed that each victim of an actual robbery was
involved in the distribution of drugs from his residence. Each
6
The text of the statute reads: "Whoever in any way or degree
obstructs, delays, or affects commerce or the movement of any
article or commodity in commerce, by robbery or extortion or
attempts or conspires to do so, or commits or threatens physical
violence to any person or property in furtherance of a plan or
purpose to do anything in violation of this section shall be fined
under this title or imprisoned not more than 20 years, or both."
18 U.S.C. § 1951(a).
-32-
robbery or attempted robbery was designed to obtain illegal drugs
and/or drug proceeds (and possibly firearms) from the victim. The
evidence also established that the crew specifically targeted each
robbery and attempted robbery victim because he was involved in the
distribution of drugs in the crew's territory.
As conceded by Capozzi, Jeffrey North, one of the named
victims in the conspiracy charge, was a high-volume marijuana
dealer selling repeatedly to customers in both Maine and New
Hampshire. Stevens testified about the quantities of marijuana he
sold to North, and DiCenso and Stephen Butler, who drove North to
Maine and New Hampshire to sell to his marijuana customers,
testified about North's out-of-state marijuana business. Thus,
without more, the conspiracy to rob drug dealers, at least one of
whom had a substantial out-of-state marijuana business, had the
possibility or potential of an effect on interstate commerce by
depleting the assets of that interstate drug business. There was
sufficient evidence here for the jury to find a violation of 18
U.S.C. § 1951(a), including the "affects commerce" prong.
ii. Grand Jury Sufficiency
Capozzi also argues that the district court erred in
failing to order the release of the grand jury transcripts. Prior
to trial, Capozzi moved to dismiss Count 8 (Hobbs Act conspiracy)
and Count 9 (Hobbs Act robbery of Michael Stevens). He argued that
the government had failed to present sufficient evidence to the
-33-
grand jury to establish the "affects commerce" element of the Hobbs
Act charges. He did not then, and does not now, claim that the
Hobbs Act charges were not properly pled in the indictment under
Fed. R. Crim. P. 7(c)(1). The district court denied Capozzi's
motion, stating that "The allegations are sufficient. The
sufficiency of the evidence is for trial and the court should not
inquire as to the sufficiency of the evidence before the grand
jury."
A court called upon to determine whether grand jury
transcripts should be released has substantial discretion. United
States v. McMahon, 938 F.2d 1501, 1504 (1st Cir. 1991). It is
"well settled that '[a]n indictment returned by a legally
constituted and unbiased grand jury, . . . if valid on its face, is
enough to call for trial of the charge on the merits.'" United
States v. Maceo, 873 F.2d 1, 2-3 (1st Cir. 1989) (quoting Costello
v. United States, 350 U.S. 359, 363 (1956)). As we stated in
Maceo, "A court should not inquire into the sufficiency of the
evidence before the indicting grand jury, because the grand jury
proceeding is a preliminary phase of the criminal justice process
and all constitutional protections will be afforded during trial."
Id. at 3. The government rightly argues that since Capozzi has
never challenged the facial validity of Count 8, the district court
-34-
correctly rejected his attempt to attack the sufficiency of the
evidence presented to the grand jury.7
iii. Post-Trial Request for Grand Jury Transcripts
After both of his trials had ended, Capozzi filed motions
to unseal the grand jury transcripts in the case. The district
court denied both motions. Capozzi argued he needed the entire
presentation to the grand jury in order to show that "no evidence,"
as opposed to "insufficient evidence," was presented to support the
"affecting commerce" element of the Hobbs Act charges. On appeal,
he again frames his attack on the grand jury proceedings in the
language of subject matter jurisdiction of the district court, see
note 7, supra. But his brief makes clear that he wishes to attack
the sufficiency of the presentation to the grand jury. There is no
reason, and Capozzi suggests none, why our holding in Maceo, supra,
does not apply equally to a post-conviction attack on the
sufficiency of a presentation to the grand jury. The trial went
forward, Capozzi was afforded all constitutional protections, and
7
Capozzi claims the alleged failure of the government to
present to the grand jury an interstate commerce connection
deprived the district court of jurisdiction and required the court
to dismiss the Hobbs Act charges prior to trial. This argument,
however, "confuses the constitutional limits on Congress' power
with the jurisdiction of the federal courts: whether the facts of
a given case present a sufficient nexus to interstate commerce to
be regulated by Congress is not an issue of the federal court's
subject matter jurisdiction." United States v. Cruz-Rivera, 357
F.3d 10, 13-14 (1st Cir. 2004). The district court correctly
understood the issue to be one of sufficiency of the evidence
before the grand jury.
-35-
a petit jury found him guilty beyond a reasonable doubt of Hobbs
Act conspiracy after sound legal instruction. The "'indispensable
secrecy of grand jury proceedings' must not be broken except where
there is a compelling necessity." United States v. Procter &
Gamble Co., 356 U.S. 677, 682 (1958). The burden of showing
particularized need rests squarely on the defendant. Pittsburgh
Plate Glass Co. v. United States, 360 U.S. 395 (1959). Here
Capozzi claims he needs the grand jury transcripts to present an
appeal to this court of a non-justiciable issue: his incorrect
claim that the court lacked subject matter jurisdiction and, more
generally, his challenge to the sufficiency of the evidence before
the grand jury. The district court properly denied his motion for
the transcripts.
For the reasons discussed above, Capozzi's convictions
are affirmed. All pending motions are denied as moot.
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