Appeal from judgments of the United States District Court for the Western District of New York, Thomas C. Platt, Jr., sitting by designation, following a jury trial in which appellants were convicted for conspiring to intimidate witnesses in violation of 18 U.S.C. § 371 (1982), and underlying substantive offenses, in violation of 18 U.S.C. §§ 401, 1512 (1982), Nos. 1268, 1269, 1261, Affirmed.
Mansfield, Oakes, and Meskill, Circuit Judges.
While not contesting the sufficiency of the evidence, Nick DiPaolo, Edward Weather, and Paul Snyder all appeal their convictions for conspiracy to intimidate witnesses and prevent communication to law enforcement officers of information relating to a Postal Service robbery in violation of 18 U.S.C. § 371 (1982), and the substantive crimes of using intimidation and physical force against Lucille Barone and against her sister-in-law, Joanne Barone, in violation of 18 U.S.C. § 1512 (1982). DiPaolo also appeals his conviction for criminal contempt of court under 18 U.S.C. § 401 (1982). Appellants were convicted before the United States District Court for the Western District of New York, Thomas C. Platt, Jr., Judge, sitting by designation.
Among other arguments, appellants claim that the trial judge acted improperly by unduly limiting their cross-examination of Joanne Barone as to her drinking problem and psychiatric history and refusing to allow extrinsic proof of prior bad acts. They also claim that the conduct of the trial judge through questioning witnesses and criticizing counsel unduly prejudiced the jury and prevented a fair trial, and that the assaults upon Joanne Barone were irrelevant to the attempt to cover up the post office robbery. In addition, they argue that an in limine ruling concerning impeachment of one of defendant Snyder's alibi witnesses by use of a prior conviction was erroneous and the Government's summation reference to the alibi witness's not testifying was prejudicial. And they contend that defendant Weather's motion for severance pursuant to Fed. R. Crim. P. 14 should have been granted and his membership in the Hell's Angels motorcycle gang should not have been admitted as evidence of intimidation.
Appellants also challenge their sentencing. Defendants Weather and Snyder were sentenced to five years' imprisonment on the conspiracy count and ten years' imprisonment on three substantive counts, with the sentences on the conspiracy and two of the substantive counts to run concurrent to each other but consecutive to the sentence on the substantive count involving intimidation of Lucille Barone, thus amounting to twenty years' imprisonment. Defendant DiPaolo was sentenced to five years' imprisonment on the conspiracy count, five years on the substantive count involving Lucille Barone, and ten years on each of the two counts involving Joanne Barone, with the latter two sentences running concurrently but consecutively to the sentences on the first two counts. DiPaolo was also sentenced to ten years' imprisonment for criminal contempt of court, to be served consecutively, in connection with the acts underlying the third and fourth counts above. In addition, each defendant was fined $25,000 with respect to the substantive count involving Lucille Barone. Appellants argue that the sentencing was excessive and that the court erred by imposing consecutive sentences for crimes arising out of the same transaction.
The Government's proof at trial amply showed that on April 19, 1984, a United States Postal Service contract carrier was hijacked and robbed of some $221,000 in blank American Express travelers checks. Soon thereafter a federal grand jury began hearing evidence regarding the robbery. An investigation into the robbery was coordinated by the United States Postal Inspection Service with the assistance of the Rochester Police Department and the New York State Police. In the winter of 1984 Rochester police officers Donald Agnello and James MacNamara were assigned to the 11 p.m. to 7 a.m. shift on adjacent beats in the northwest or "Lake" section of the City of Rochester. They met for meals at the Princess Restaurant, where Lucille Barone was a waitress on a similar shift. At first her conversations with the officers were general, but as their friendship developed, she discussed having problems with her boyfriend, appellant DiPaolo. In late February 1985, she indicated to the officers that she possessed information regarding the postal truck robbery and involving DiPaolo and DiPaolo's close friend, Edward Weather.
It was during this period that DiPaolo, Weather, and Snyder began accusing Lucille Barone of providing information to the police regarding the postal truck robbery. While in a bar, D.J.'s Lounge, in mid-or late February, Ms. Barone was approached by Weather, Snyder, and DiPaolo. DiPaolo told her they had information that she was a police informant and that she could "get into big trouble by speaking to the police so much." Weather, talking to DiPaolo, not to Lucille Barone directly, said to "tell her she could get seriously hurt." She told them she was not supplying information to the police and pretended by laughing and being "cocky" to get them to stop. At this point Snyder said, "Tell her that it's not a joke."
After this meeting at D.J.'s Lounge, Lucille Barone stressed to DiPaolo that she was not an informant. Then one day, either at the end of February or in the beginning of March, DiPaolo and Weather came to her house around midafternoon in Weather's brown pickup truck. Weather sat at her kitchen table and DiPaolo said they had to talk about her being an informant. Weather had some folded papers that he pretended were a "transcript." They told Ms. Barone that she could get "seriously hurt" if she were an informant, and that the papers were proof that she was an informant. She started laughing and taunted them to show her her name on the "transcript." Weather refused and told DiPaolo to "tell her she could get seriously hurt." DiPaolo said he had tried to protect her but that he would have to stand out of the way because there was nothing he could do. He told her that she could get her legs broken and get seriously hurt, and that Weather "and the Hell's Angels would not really appreciate [her] going around blabbing to the police any of the information." Her laughing did not help matters but rather agitated them to the point where DiPaolo slapped her on the back of the head and said, "We're not kidding. This is no joke. You have to stop thinking we are fooling around."
Meanwhile, Ms. Barone was continuing to work at the Princess and talking to the two officers. After learning that Ms. Barone had information regarding the postal truck robbery, Officer Agnello began encouraging her to meet with Postal Inspectors to discuss the robbery. Ms. Barone often expressed concerns to Officer Agnello about her safety and the safety of her children. At times Weather and DiPaolo would see her talking to the officers as they drove by the restaurant. She would attempt to explain that her conversations were innocent but DiPaolo would frequently tell her that Weather and he did not appreciate her talking to the police.
Ms. Barone testified that sometime in late February or early March, appellant Snyder knocked at her door. When she saw it was him she tried to shut the door, but Snyder pushed it open, hitting her in the side of the face. He began yelling at her that "they had told [her] a hundred times not to talk to the police any more and that they weren't joking." He backed her up forcefully into the living room, yelling at her, saying that she was a cop lover and that she obviously did not take their threats very seriously. He then pushed her on the couch and raped her, after which he said that "next time he wouldn't be so nice." As a result of the assault and rape she had a red mark on her neck. She did not tell anyone of the assault because she was afraid she "would probably end up dead." She did tell Officer Agnello, however, that she had a "close encounter" with "Dusty," i.e., Snyder, but did not tell him about the actual rape. A few days after the incident DiPaolo told her that he and Weather had put Dusty on an airplane to Florida.
Subsequently, DiPaolo again insisted to Ms. Barone that he was going out of his way to try to protect her but there would be absolutely nothing he could do for her if she persisted in talking to the officers. He told her that he would not be able to stop the Hell's Angels from harming her, and that Officer Agnello and his family might also be harmed. Ms. Barone testified without objection that she knew Weather to be a member of the Hell's Angels, both from the fact that he had told her that he was and that he regularly wore a Hell's Angel patch on the back of his jacket. She said that she was fearful of the Hell's Angels. She also testified that appellants DiPaolo and Snyder associated with members of the Hell's Angels, although they themselves were not members.
When Ms. Barone next saw the officers they again encouraged her to speak with federal Postal Inspectors and accept federal protection. On the night of March 21, 1985, Officer Agnello met with Lucille Barone and told her he had made arrangements for her to meet with the Postal Inspectors. Ms. Barone told Agnello she had to go home because her children were still in the house and DiPaolo had called her that night to tell her "he would be at the house waiting for [her] when she got off work." Ms. Barone returned home and after DiPaolo left she went with Agnello to speak with the Postal Inspectors. She and her children were put under protective custody on March 22, 1985. Weather and DiPaolo were placed under arrest that same morning.
Following Lucille Barone's being taken into protective custody, on the afternoon of April 15, Joanne Barone, the sister-in-law of Lucille, was in her front yard with her two small children when a car pulled in front of the house. The driver remained in the car and DiPaolo came out of the passenger side of the vehicle carrying a screwdriver. DiPaolo struck her several times on the face with the handle of the screwdriver. As he was beating her, he told her that she should tell her husband, John Barone, and his brothers "to keep out of Lucille's business." He further told her that if she told anybody about the incident he would return and hurt her children. Photographs of Joanne's face after the assault were introduced in evidence.
As a result of the assault of April 15 the Government moved for an order revoking DiPaolo's bail on the basis that it violated a condition of his release that he not contact Lucille Barone or members of her family. An arrest warrant was issued and DiPaolo was arrested on April 19, 1985, with the hearing on the Government's application to revoke the bail scheduled for April 25. On April 21, 1985, however, Joanne Barone was again assaulted while sitting on the porch with her two children. An unknown male came onto her porch and told her "not to testify against Nick DiPaolo" and struck her in the face. Thereafter, she and her children were also taken into protective custody. At the conclusion of the bail revocation hearing on April 25, DiPaolo was detained without bail and a magistrate ordered the United States Attorney to prepare an order to show cause citing DiPaolo for criminal contempt pursuant to 18 U.S.C. § 401 (1982). The ...