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).
-2-
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