Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
U.S. v. VOLPE
March 3, 1999
UNITED STATES OF AMERICA
JUSTIN A. VOLPE, THOMAS BRUDER, CHARLES SCHWARZ, THOMAS WIESE, MICHAEL BELLOMO, DEFENDANTS.
The opinion of the court was delivered by: Nickerson, District Judge.
The superseding indictment in this case contains thirteen
counts and makes various charges against the five defendants,
four New York City police officers and one police sergeant.
Count One charges that four defendants, Police Officers Justin
A. Volpe, Thomas Bruder, Charles Schwarz, and Thomas Wiese,
conspired to deprive Abner Louima of his federal civil rights by
assaulting him while handcuffed and in police custody in a police
car and in a 70th Precinct restroom. Counts Two through Four are
substantive counts alleging assaults in a police car and an
assault in the restroom.
Count Five charges Police Sergeant Michael Bellomo as an
accessory after the fact by assisting the officers to hinder and
prevent their apprehension and trial. Count Nine charges Volpe
with witness tampering by threatening Louima to prevent him from
telling a United States law enforcement officer of an assault.
Count Ten accuses Bellomo of making a false statement to the
Federal Bureau of Investigation that he had authorized an arrest
of Louima. Count Thirteen alleges that Bruder, Schwarz, and Wiese
conspired to obstruct justice by providing false statements to
the Kings County District Attorneys Office, the Police
Department, and the Federal Bureau of Investigation in an effort
to exculpate Schwarz as to the alleged assault of Louima in the
Count Six charges Volpe and Bellomo with conspiring to deprive
Patrick Antoine of his federal civil rights by unlawfully
assaulting him and then falsely arresting him to conceal the
assault. Counts Seven and Eight allege substantive counts
charging the assault and false arrest of Antoine. Count Eleven
charges Bellomo with falsely stating to the Federal Bureau of
Investigation that he saw Patrick Antoine charge into Volpe.
Count Twelve charges Bruder with a similar false statement.
On March 2, 1999 the government moved to dismiss Count Twelve.
The court will grant this motion.
The remaining charges in the superseding indictment can be
identified as follows:
1 CONSPIRACY TO DEPRIVE VOLPE, BRUDER,
CIVIL RIGHTS (ASSAULTS) SCHWARZ, AND WIESE
2 DEPRIVATION OF CIVIL SCHWARZ AND WIESE
RIGHTS (CAR ASSAULT # 1)
3 DEPRIVATION OF CIVIL VOLPE, BRUDER,
RIGHTS (CAR ASSAULT # 2) SCHWARZ, AND WIESE
4 DEPRIVATION OF CIVIL RIGHTS VOLPE AND SCHWARZ
5 ACCESSORY AFTER THE FACT BELLOMO
(CAR ASSAULT # 2)
9 OBSTRUCTION OF JUSTICE — VOLPE
10 FALSE STATEMENTS (LOUIMA ARREST) BELLOMO
13 CONSPIRACY TO OBSTRUCT BRUDER, SCHWARZ
JUSTICE (RESTROOM ASSAULT) AND WIESE
6 CONSPIRACY TO DEPRIVE CIVIL VOLPE AND BELLOMO
RIGHTS (FALSE ARREST)
7 DEPRIVATION OF CIVIL RIGHTS VOLPE
8 DEPRIVATION OF CIVIL RIGHTS VOLPE AND BELLOMO
11 FALSE STATEMENTS (ANTOINE ARREST) BELLOMO
The court will now decide the numerous motions made by the
Each of the five defendants seeks to sever his case from the
cases of one or more of his co-defendants or to sever some of the
charges. The government consents, and defendants do not object,
to the severance of Count Thirteen. Otherwise, the government
opposes defendants' motions. The court will sever Count Thirteen.
Persons indicted together for crimes arising out of a similar
series of acts or involving substantially the same evidence
should generally be tried together. See United States v. Corr,
543 F.2d 1042, 1052 (2d Cir. 1976). Joint trials allow witnesses
and the court to avoid the burden of successive trials on the
same issues and, in the case of complex cases, "permit the jury
to see a comprehensive presentation of the entire enterprise and
the role played by each participant." United States v. Persico,
621 F. Supp. 842, 852 (S.D.N.Y. 1985); see United States v.
Lyles, 593 F.2d 182, 191 (2d Cir. 1979).
If it appears that a defendant or the government is
prejudiced by a joinder of offenses or of defendants
in an indictment or information or by such joinder
for trial together, the court may order an election
or separate trials of counts, grant a severance of
defendants or provide whatever other relief justice
Such a severance is justified only where joinder would
"compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt or
innocence." Zafiro, 506 U.S. at 539, 113 S.Ct. at 938. Even if
defendants can establish prejudice, Rule 14 does not require
severance but "leaves the tailoring of the relief to be granted,
if any, to the district court's sound discretion." Id. at
538-39, 113 S.Ct. at 938.
Volpe seeks severance from all of his codefendants except
Bellomo on the ground that his defense and those of other
defendants are mutually antagonistic. He cites (1) Schwarz's
televised statement on the television show 60 Minutes that
Louima was assaulted in the restroom in the manner described by
Louima; (2) Schwarz's and Wiese's assertions that they are not
guilty of the car assault charges (Counts Two and Three); (3)
Bruder's statement to federal agents implicating Volpe in a
confrontation with Louima outside of the Club Rendezvous and in
an assault of Louima in the restroom; and (4) Wiese's statement
to the Kings County District Attorney's Office on August 17, 1997
implicating Volpe in the restroom assault.
A "mutually antagonistic" defense is one creating a conflict so
irreconcilable that acceptance of one defendant's defense will
lead the jury to convict the other. See United States v.
Salameh, 152 F.3d 88, 116 (2d Cir. 1998). "A simple showing of
some antagonism between defendants' theories of defense does not
require severance." United States v. Carpentier, 689 F.2d 21,
27-28 (2d Cir. 1982).
As Zafiro v. United States makes clear, "[m]utually
antagonistic defenses are not prejudicial per se." 506 U.S. at
538, 113 S.Ct. at 938. But such defenses may violate a specific
trial right of a defendant by compromising the opportunity to
present an individual defense. There are only a few reported
cases where the facts establish the existence of mutually
antagonistic defenses between co-defendants. See, e.g., United
States v. Tootick, 952 F.2d 1078 (9th Cir. 1991); United States
v. Romanello, 726 F.2d 173 (5th Cir. 1984). Such a case is one
where, in effect, a defendant's counsel becomes a "second
prosecutor," who "in order to zealously represent his client . .
. [does] everything possible to convict the other defendant."
Tootick, 952 F.2d at 1082. The antagonism in the defenses thus
may inhibit the jury from evaluating the evidence against each
defendant based on that defendant's own acts and statements,
before concluding the prosecution has proved its case beyond a
reasonable doubt as to each defendant.
Volpe does not articulate any specific prejudice that might
arise from the allegedly antagonistic defenses. He simply states
that his co-defendants have made out-of-court statements
suggesting they have defenses he alleges are antagonistic to his
defense. He claims this is a sufficient ground for severance.
This is not the law.
All of these statements if offered at trial would be admissible
against the defendants making them. But unless some exception to
the hearsay rule applies, they would not be admissible against
others and would be subject to the rules developed under Bruton
v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476
Volpe first argues that his and Schwarz's defenses to the
bathroom assault charge are mutually antagonistic because Schwarz
allegedly said on television that he believed that Louima had
been sexually assaulted in the manner described by Louima. Such a
belief is hardly evidence. In any event, Schwarz allegedly stated
also that he did not know who committed the assault and that he
did not participate in it. Even if this statement were admitted,
the jury could believe that Schwarz did not participate in the
assault without concluding that Volpe did participate. There is
no irreconcilable conflict or prejudice arising from Schwarz's
Volpe's defenses to the two alleged car assaults are not
mutually antagonistic to Schwarz's and Wiese's defenses. Volpe is
not charged in the first car assault (Count Two). The government
states that it will not offer proof that Volpe was an unindicted
participant in that assault. Volpe does not explain what he
thinks Schwarz, Bruder, and Wiese will offer as a defense to the
second car assault nor why his defense will be mutually
antagonistic. Apparently those three will argue that there was no
such assault (as Wiese has previously stated), a defense not
inconsistent with a claim by Volpe that he did not commit such an
Volpe argues that two sets of Bruder's statements made pursuant
to a proffer agreement are antagonistic to his defense: (1)
statements implicating Volpe in the initial confrontation outside
the Club Rendevous leading to Louima's arrest, and (2) statements
implicating Volpe in the restroom assault of Louima. The first
set of statements do not appear to inculpate Volpe but seem to
exculpate him. Moreover, in conformity to the proffer agreement
with Bruder, the government presumably was going to use the
statements only to prove Count Twelve against Bruder. As stated
above, that count will be dismissed.
Volpe's motion for severance based on the second set of
statements is without merit. Those statements relate to matters
with which Bruder is not charged. There is no basis for Bruder to
offer the statements on his case or as inculpatory of Volpe.
Similarly, while Volpe argues that Wiese's statements to the
Kings County District Attorney's Office implicating Volpe in the
alleged restroom assault of Louima are antagonistic to his
defense, there is no basis for Wiese to offer them in his defense
or as inculpatory of Volpe. Moreover, Wiese is not even charged
with the restroom assault.
Volpe is not entitled to a severance.
Schwarz seeks severance from Wiese and Bruder alleging that
otherwise he will be denied his constitutional right to call
witnesses and present a complete defense. He states that at a
separate trial, he will seek to call Wiese and Bruder as
witnesses to support a defense that he did not assault Louima
either in the patrol car or the restroom. Wiese has apparently
stated he did not see Schwarz assaulting Louima in either of
those places. Bruder has allegedly stated he did not see Schwarz
go with Louima to the restroom.
In deciding these claims the court will consider: (1) the
sufficiency of the showing that the co-defendant would testify at
a severed trial and waive his Fifth Amendment privilege; (2) the
degree to which the exculpatory testimony would be cumulative;
(3) the counter arguments of judicial economy; and (4) the
likelihood that the testimony would be subject to substantial,
damaging impeachment. These factors are not exclusive. See
United States v. Finkelstein, 526 F.2d 517, 524 (2d Cir. 1975).
These factors weigh against Schwarz's motion. First, he has not
made a sufficient showing that Bruder and Wiese would waive at a
separate trial their Fifth Amendment privilege and testify on
Schwarz's behalf. Bruder and Wiese have not submitted affidavits
to that effect. See United States v. Turoff, 652 F. Supp. 707,
712 (E.D.N.Y. 1987) (a co-defendant's "proffer of testimony, in
the absence of an affidavit stating his willingness to take the
stand, cannot create much confidence that he actually would
testify were the trials severed."). In addition, the alleged
willingness of Bruder and Wiese to testify for Schwarz is
conditioned on their being tried first, thus drawing into
question their good faith. See United States v. Bari,
750 F.2d 1169, 1177 (2d Cir. 1984); Turoff, 652 F. Supp. at 713.
Moreover, it appears that any such testimony by Bruder and
Wiese will be subject to substantial impeachment.
In addition, Schwarz asks for severance on the ground that the
court's decision to empanel an anonymous and partially
sequestered jury will prejudice him, whereas if he were tried
alone, he would not incur this prejudice. The fact that a jury is
anonymous and partially sequestered does not mean it cannot be
fair and impartial. See, e.g., United States v. Amuso,
21 F.3d 1251, 1264 (2d Cir. 1994). Schwarz is not entitled to severance.
Bruder moves for severance from Volpe on the ground that at a
joint trial the jury will attribute Volpe's acts to him. The
claim is speculative. Bruder fails to show any genuine risk of
prejudicial spillOVER. tHE MOTION IS DENIED.
Wiese moves for severance from Volpe, Bruder, and Bellomo.
Alternatively, he seeks severance of the Louima-related assault
counts (Counts One through Four) from the remaining counts
(Counts Five through Eleven).
Wiese first argues that his defenses to the assault charges are
mutually antagonistic to Volpe's defenses. Volpe and Wiese are
charged jointly in only one assault, Count Three. Volpe's
apparent defense to that count is that he did not participate in
the car assault. That defense does not require a jury finding
that Wiese did participate. The jury could believe (as Wiese
previously has stated) that the car assault did not occur at all.
Wiese next argues that two of Bruder's statements if offered in
evidence would incriminate Wiese. These statements are: (1)
Bruder's statement to law enforcement officers that he saw Wiese
and Volpe walking Louima toward the rear of the stationhouse in
the direction of the restroom; and (2) Bruder's statement to
Wiese that "I thought we were supposed to be partners" to which
Wiese replied, "I told them everything, Tommy, I told them
The government states it will not offer either of these
statements during its case-in-chief at the trial of Counts One
through Eleven. Of course were Bruder to testify the government
could cross-examine him.
Wiese's third argument that severance will somehow serve the
interests of judicial economy is without merit and requires no
Fourth, Wiese argues that the Louima-related assault counts
(Counts One through Four) are improperly joined with the
Antoine-related charges because they are wholly unrelated. Rule
8(b) of the Federal Rules of Criminal Procedure states in
pertinent part: "[t]wo or more defendants may be charged in the
same indictment . . . if they are alleged to have participated in
the same act or transaction or in the same series of acts or
transactions constituting an offense or offenses." That language
means that joinder is proper where two or more persons' criminal
acts are "unified by some substantial identity of facts or
participants, or arise out of a common plan or scheme." United
v. Cervone, 907 F.2d 332, 341 (2d Cir. 1990) (internal
Wiese argues that the only factual connection between the two
conspiracies (the Louima-related charges and the Antoine-related
charges) is that they occurred on the same evening. This
statement is not supported by the proof that the government says
it intends to offer.
According to the government, the two conspiracies are unified
by a substantial identity of facts and participants. The
government says it will show that both grew out of the same
event, namely, a fight that occurred outside the Club Rendezvous
on Flatbush Avenue around 4:00 A.M.; the assaults occurred within
less than a block of each other and within moments of each other;
the assaults were both motivated by a desire to inflict excessive
and unjustified force on the two arrestees; and two of the
defendants, Volpe and Bellomo, participated in both assaults.
Wiese is charged only in connection with the assaults of Louima.
Of course, under Rule 8(b), "all of the defendants need not be
charged in each count." Fed.R.Crim.P. 8(b).
Counts One through Four and the Antoine-related charges arise
from the same series of acts or transactions, and joinder is
Wiese's motion for severance pursuant to Rule 14 is also
unsubstantiated. Wiese argues that he will be "prejudiced"
because the jury will unfairly attribute the violation of
Antoine's civil rights to him. He has not been indicted in any of
the Antoine-related charges. He suggests no basis for the claim,
and makes only a conclusory statement that "massive amounts" of
evidence relating to the Antoine charges and the obstruction
charges will prejudice him. The government says that the quantity
of proof of the Louima assaults will far outweigh the proof of
the other charges. The court will make clear to the jury that it
must consider the case against each defendant separately.
Wiese argues that the Louima-related assault charges (Counts
One through Four) and the Louima-related accessory, obstruction,
and false statement charges (Counts Five, Nine, and Ten) should
be severed pursuant to Fed.R.Crim.P. 8(b) and 14. The court
rejects the arguments.
The claims are properly joined under Rule 8(b) because all of
the charges are part of the "same series of acts or
transactions." The accessory and false statement counts (Counts
Five and Ten) charge Bellomo with hindering the prosecution of
those, including Wiese, who allegedly assaulted Louima. Plainly
these counts are related to the assault charges. So too is the
witness tampering count in which Volpe is charged with
threatening Louima in order to prevent him from reporting the
alleged assault to authorities.
Finally, Wiese argues that severance of Counts One through Four
from Counts Five, Nine, and Ten is warranted because it will be
"impossible" for the jury to determine whether Wiese assaulted
Louima without considering the evidence that Bellomo tried to
cover up that assault. It is hard to see why this should be so.
The court will ...