United States v. Bartelho

USCA1 Opinion











UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 96-1273

UNITED STATES,

Appellee,

v.

THOMAS J. BARTELHO,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge] ___________________

____________________

Before

Selya and Boudin, Circuit Judges, ______________

and McAuliffe,* District Judge. ______________

_____________________

Christopher W. Dilworth, by appointment of the Court, for ________________________
appellant.
Margaret D. McGaughey, Assistant United States Attorney, ______________________
with whom Jay P. McCloskey, United States Attorney, and Richard _________________ _______
W. Murphy, Assistant United States Attorney, were on brief for _________
appellee.



____________________

November 25, 1997
____________________


____________________

* Of the District of New Hampshire, sitting by designation.












McAULIFFE, District Judge. Thomas Bartelho was McAULIFFE, District Judge. ________________

convicted of three counts of armed bank robbery (18 U.S.C.A.

2113(a) and (d)), three counts of using a firearm in a crime

of violence (18 U.S.C.A. 924(c)), and one count of robbery

affecting commerce (18 U.S.C.A. 1951). On appeal, Bartelho

raises a number of evidentiary issues and challenges the district

judge's denial of his motion to sever the charges against him.

For the reasons that follow, we affirm his conviction.

I. BACKGROUND1 I. BACKGROUND

Four robberies occurred within four months in the same

area near the Maine coast. The Fleet Bank in Westbrook was

robbed on January 31, 1994, and on March 4 two banks, the Casco

Northern Bank in Gray and the Key Bank in Windham, were robbed

within twenty minutes of each other. On May 5, a jewelry store

in South Portland was robbed. The robberies were similar in that

in each, the robbers were masked, brandished guns, and drove

stolen cars. They netted approximately $64,000 in cash from the

banks and $109,000 worth of diamonds from the jewelry store. The

robbers activities, guns, and general appearance were noted by

bank employees, customers, and passersby, and were recorded by

bank surveillance cameras.

On July 2, 1994, the Windham (Maine) police received a

call reporting a domestic disturbance in the upstairs apartment
____________________

1 Bartelho does not challenge the sufficiency of the evidence.
The facts are presented only as background for subsequent
discussion of the issues raised on appeal, without favor to
either party. United States v. Morla-Trinidad, 100 F.3d 1, 2 ______________ ______________
(1st Cir. 1996).

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of a two-unit residence. The caller lived downstairs. The

upstairs tenants were reported to be Patricia Harris, her

boyfriend, "Tommy," and her two young children. The police found

a loaded semiautomatic rifle on the porch, and, when they called

out for "Tommy," Bartelho emerged from hiding. The rifle was

similar to one described by witnesses as having been used by the

bank robbers. Bartelho was arrested, on assault charges, and was

held in the Cumberland County jail until he made bail.

Agents of the Federal Bureau of Investigation ("FBI")

then sought and obtained a warrant to search Harris's apartment

for evidence connected to the January and March bank robberies.

During their search on July 7, agents found a quantity of

ammunition, a stock and case for a rifle, and other evidence

related to the bank robberies. The downstairs neighbor gave the

agents a .22 caliber revolver and ammunition that she said Harris

had given to her. A complaint charging Bartelho with the bank

robberies issued on July 8, 1994, but on October 12 it was

dismissed without prejudice on the government's motion.2

Bartelho was arrested on other charges in October and

imprisoned in Rhode Island. His cellmate told the FBI that

Bartelho bragged about his proficiency with guns, as well as his

____________________

2 In a separate indictment, Bartelho was charged with being a
felon in possession of a firearm. Before trial on that charge,
Bartelho moved to suppress evidence taken by the Windham police
in the warrantless July 2 search, and by the FBI in the July 7
search. The district judge denied his motion. Bartelho was
convicted and on May 26, 1995, he was sentenced to 120 months in
prison. His conviction was affirmed on appeal. United States v. _____________
Bartelho, 71 F.3d 436 (1st Cir. 1995). ________

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involvement in the robberies. Another inmate who knew Bartelho

at the Windham (Maine) Correctional Facility, where Bartelho was

imprisoned on gun possession charges, told the FBI that Bartelho

had admitted his part in the bank and jewelry store robberies.

William Yates, who was in prison with Bartelho at the Kennebec

(Maine) County Jail in March of 1995, also reported that Bartelho

made statements about his participation in the robberies. And,

one of Bartelho's accomplices, Gerald Van Bever, who had been

arrested for his part in the robberies, also made statements to

the FBI implicating Bartelho.

On May 16, 1995, a federal grand jury returned an

indictment against Bartelho charging him with three counts of

bank robbery in violation of 18 U.S.C.A. 2113, three counts of

using firearms during crimes of violence in violation of

18 U.S.C.A. 924, and one count of unlawful obstruction of

interstate commerce by robbery in violation of the Hobbs Act, 18

U.S