Considine, had "read . . . [the document] . . . out loud," when, in fact, he had not. Tr. at 1411-1413. This type of behavior had occurred throughout the trial, and Breitbart had received warnings. The transcript reveals that the Court harbored no bias or prejudice against Breitbart or the defendant Raymond Argentina when read fully in context. In addition, it is undisputed that the Court's statement was directed at Mr. Breitbart, and not his client.
The responsibility rests with the district court to conduct an orderly trial, supervise the conduct of attorneys, control the mode and order of interrogating witnesses and presentation of evidence, and keep the proceedings moving along in a reasonable manner. As the First Circuit has aptly stated, "federal trial judges are not puppets; they are expected -- indeed they are duty-bound -- to maintain proper decorum and order in the courtroom." Campana v. Eller, 755 F.2d 212, 216 (1st. Cir. 1985). Reprimanding Breitbart at certain times during the trial was a regrettable but completely necessary exercise of these duties. Raymond Argentina's argument must fail because it assumes that federal trial judges have no affirmative obligation to take corrective action in the face of a pattern of misconduct and contumacious behavior by counsel. Under Raymond Argentina's theory, federal trial judges might as well be replaced with puppets because any attempt to regulate an attorney's misconduct with a reprimand could be parried with a claim of judicial bias.
The Second Circuit has repeatedly held that "misconduct by defense counsel may be properly taken into account . . . in determining whether a defendant was prejudiced by the judge's response." U.S. v. Robinson, 635 F.2d 981, 985 (2d Cir. 1980), cert. den. 451 U.S. 992, 68 L. Ed. 2d 852, 101 S. Ct. 2333 (1981); U.S. v. Mickens, 926 F.2d 1323, 1327 (2d Cir. 1991), cert. den. Mickens v. U.S., U.S. , 112 S. Ct. 940, 117 L. Ed. 2d 111 (1992) ("remarks were provoked to some extent by one defense counsel's despicable verbal assault on the court"); U.S. v. Roldan-Zapata, 916 F.2d 795, 807 (2d Cir. 1990), cert. den. Roldan-Zapata v. U.S., U.S. , 111 S. Ct. 1397, 113 L. Ed. 2d 453 (1991) ("the judge's comments in front of the jury, even if at times stern or sarcastic, were appropriate responses to counsel's improper questioning of witnesses, inappropriate requests and disrespectful gestures"); U.S. v. Pisani, 773 F.2d 397, 403-04 (2d Cir. 1985) ("some . . . comments were provoked by counsel's continuing to do things that the court had specifically cautioned him to avoid. . . ."). Under these precedents, Raymond Argentina cannot avail himself of the Court's rebukes against his counsel's inexcusable pattern of gross misconduct exhibited during the trial. Even setting Breitbart's provocative misconduct aside, Raymond Argentina was not prejudiced by any of the Court's reprimands because they had nothing to do with the merits of the case. U.S. v. Di Tommaso, 817 F.2d 201, 220 (2d Cir. 1987) ("rebukes of defense counsel reflected not upon the merits of the case but rather on the way it was handled"). Furthermore, the jury was instructed during the charge that "you should not allow any prejudice against the attorney or his client because the attorney objected to the admissibility of evidence or asked the [sic] conference at the sidebar out of the hearing of the jury or asked the Court for a ruling on the law." Tr. at 1837. The jury was also charged that, "anything that . . . [the Court] . . . said during the trial of this case . . . is not to be substituted for your own recollection of the evidence. It is you that are the sole judges of the facts and of the evidence in this case." Tr. at 1838. Thus, the Court finds that Raymond Argentina received a fair trial in spite of his defense counsel's pattern of provocative misconduct.
3. Denial of Motions to Excuse Juror No. 7
During the trial, a juror handed the Court Deputy a newspaper clipping taken from Newsday which stated that, "there is no reason for this abusive delay which has been compounded by last-minute attempts to manipulate the judicial process." See App. A. The clipping was a quotation from the April 21, 1992 decision in Gomez v. United States Dist. Court, U.S. , 112 S. Ct. 1652, 18 L. Ed. 2d 293 (1992) as reported in Newsday. It contained no direct reference to the instant trial. Several days later, based on the Court Deputy's recollection that Juror No. 7 handed him the clipping, the defendants moved to have Juror No. 7 removed for cause. This application verged on the frivolous and clearly falls within the category of de minimus non curat lex. Although there was no necessity to pursue the matter, the Court nevertheless conducted an in camera voir dire of Juror No. 7 in order to determine whether she could still render a fair and just verdict. Tr. at 1705-09. A court reporter transcribed the interview.
Juror. No. 7 explained that the clipping was given to the Deputy as a "joke" to make light of the fact that "we've been sitting around for so long. . . . Every time we come early and we sit there for 45 minutes and wait." Tr. at 1706. Juror No. 7 stated that the clipping had "nothing to do with anything," and that she remained absolutely impartial. Tr. at 1706. Finally, she indicated that while she had not given the clipping to the Court Deputy, she agreed with the other jurors that it should be "put up on the wall." Tr. at 1708. The Court concluded that there was no basis to excuse Juror No. 7 for cause because the clipping was a joke and she continued her pledge to render an impartial verdict in the case. Similarly, the Court concluded that there was no reason to engage in further inquiry with other jurors about the clipping.
Raymond Argentina asserts that the clipping was used by the jurors as a reference to Breitbart's behavior at trial or the Court's response to it. This is unfounded speculation. Juror No. 7 specifically stated that the clipping had "nothing to do with anything" except for the many delays in starting the proceedings each morning. Tr. at 1706. The jurors, many of whom travelled long distances early in the morning each day, sat idly in the juryroom during these times as they waited to be summoned into the courtroom. Their frustration was understandable, but clearly had nothing to do with Breitbart's behavior or the Court's response to it during the proceedings.
4. Alleged Secret Ex Parte Meeting Concerning Juror No. 7
The defendants erroneously contend that the Court had a secret ex parte discussion with the government on the evening prior to the Court's interview with Juror No. 7. The record indicates that the government told the Court and defense counsel that it would call Chambers concerning its position on the matter that evening or early the next morning. Tr. at 1699, 1702-1703, 1710, 1832-33. The record clearly shows that defense counsel was well aware of that fact and that no objection was made. In any event, the Court's decision to deny the motions to excuse Juror No. 7 was based exclusively on the basis of its in camera voir dire of her.
5. Molinelli's Claim of Inconsistent Verdicts
Robert Molinelli argues that the verdict was inconsistent because the jury could not have found him guilty of conspiracy without also finding him guilty of the substantive crimes charged. Such a conclusion requires second-guessing the jury's assessment of the evidence. Assuming arguendo that the jury's verdict is inconsistent, which it is not, such inconsistency does not provide a basis for acquittal or retrial. U.S. v. Powell, 469 U.S. 57, 64-69, 83 L. Ed. 2d 461, 105 S. Ct. 471 (1984); U.S. v. Chang-An-Lo, 851 F.2d 547, 559-60 (2d Cir. 1987), cert. den. Chang-An-Lo v. U.S., 488 U.S. 966, 109 S. Ct. 493, 102 L. Ed. 2d 530 (1988).
6. Introduction of Coin Devices Corporation ("CDC") Evidence
After extensive pre-trial briefing and argument, the Court granted the government's motion in limine to introduce certain evidence through Guarino concerning a prior conspiracy to rob a CDC armored truck. The defendants claim that the decision was erroneous. Defendant Molinelli, who had nothing to do with plans to heist a CDC truck, claims prejudicial spillover. Guarino's CDC conspiracy testimony was admissible against the defendants other than Molinelli under Fed.R.Evid. 404(b) because it served to inform the jury about the background to the Rapid conspiracy and to help explain how the illegal relationship among some of the participants developed. U.S. v. Coiro, 922 F.2d 1008, 1015-16 (2d Cir. 1991), cert. den. U.S. , 111 S. Ct. 2826, 115 L. Ed. 2d 996 (1991); U.S. v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990), U.S. , 111 S. Ct. 1397, 113 L. Ed. 2d 453 (1991). The jury was instructed to consider the CDC evidence against these defendants, if at all, only for these limited purposes. Tr. at 1894-95. Since Molinelli was not connected to the CDC plan, the Court specifically instructed the jury during the trial and in the charge not to consider the CDC similar act evidence "in any way" against him. Tr. at 341-42, 1894. Molinelli was not prejudiced by the CDC evidence in light of these instructions. U.S. v. Cervone, 907 F.2d 332, 341-42 (2d Cir. 1990), cert. den. Bernesser v. U.S., U.S. , 111 S. Ct. 680, 112 L. Ed. 2d 672 (1991).
7. Applications For Bail Pending Appeal
Defendants Daidone, Raymond Argentina and Taglianetti argue that they should be released pending appeal because they were convicted of conspiracy to commit bank robbery or larceny. 18 U.S.C. § 3142(f)(1)(A) and § 3143(a)(2) provide that when a defendant is convicted of a "crime of violence," the defendant shall be detained unless the Court determines that there is a "substantial likelihood" that a motion for a new trial or acquittal will be granted. 18 U.S.C. § 3142(f)(1)(A) and § 3143(a)(2). Conspiracy to commit armed bank robbery can be a crime of violence under these statutes. U.S. v. Chimurenga, 760 F.2d 400, 404 (2d Cir. 1985); see also U.S. v. Patino, 962 F.2d 263 (2d Cir. 1992). This conspiracy was a crime of violence because evidence showed that the defendants contemplated use of or access to a shotgun under Molinelli's control. Release pending sentence and appeal must be denied as a matter of law under these circumstances. Assuming arguendo that the conspiracy is not a crime of violence, the applications nonetheless fail under 18 U.S.C. § 3143(a)(1). After a lengthy detention hearing, Magistrate Judge Chrein found that the defendants were a danger to the community. The defendants never appealed this specific finding and it remains accepted by this Court.
The Court has carefully considered the merits of the defendants' motions. For the reasons stated above, all motions are hereby DENIED.
Dated: Brooklyn, New York
June 26, 1992
UNITED STATES DISTRICT JUDGE
'There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process.'
-- Supreme Court's unsigned ruling
June 30, 1992
Mead Data Central
LEXIS Opinion Collection
8891 Gander Creek Dr.
P.O. Box 8809
Dayton, Ohio 45401
Re: United States v. Louis Daidone, et al. 92-CR-185 (June 26, 1992)
I am pleased to enclose herewith a copy of my opinion in the above matter.
Very truly yours,
JOHN R. BARTELS
United States District Judge
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