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United States v. Chinnici

United States District Court, D. Vermont

December 19, 2019



          Christina Reiss, District Judge

         On July 27, 2018, a jury found Defendant John Chinnici guilty of obstructing commerce by robbery in violation of 18 U.S.C. § 1951. Pending before the court is Defendant's December 21, 2018 motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. (Doc. 96.) Defendant filed a supplemental memorandum on June 19, 2019, and the government opposed Defendant's motion on September 6, 2019. Defendant filed an additional memorandum on October 3, 2019 and replied to the government's opposition on October 4, 2019. The court held an evidentiary hearing on October 15, 2019, after which it took the motion under advisement.

         Defendant is represented by David J. Williams, Esq. The United States is represented by Assistant United States Attorneys Barbara A. Masterson and Joseph R. Perella.

         I. The Evidence at Trial.

         Shortly after midnight on January 11, 2016 in Bennington, Vermont, Martin's Mini Mart ("Martin's") employees Anthony Falace and Scott Galusha were on their way to deposit approximately $1, 700 of store funds when they were approached by two masked men in the parking lot of Citizen's Bank. One of the men was carrying a silver handgun, and demanded that the Martin's employees drop the bag containing the deposit. Mr. Falace and Mr. Galusha complied and the unarmed robber grabbed the bag.

         Mr. Falace observed that the robbers wore dark-colored hooded sweatshirts and their faces were covered. The armed robber's voice reminded Mr. Falace of a man he had encountered at Martin's who had a face tattoo, but he advised law enforcement that he did not know the man's name. Mr. Falace further recalled that the armed robber was heavy-set, while the other robber was slim. Mr. Falace testified that after the robbery, he reviewed Facebook photographs of individuals with face tattoos, [1] but he was not able to identify either of the robbers.

         Mr. Galusha estimated that the armed robber was approximately five feet nine inches tall and weighed 190 pounds, and that the other robber was approximately five feet seven inches tall and 160 pounds. The robbery itself consisted of a very brief encounter between perpetrators and victims, and Mr. Galusha said he did not focus on the robbers because his eyes were on the gun. He recalled that the armed robber had a New York accent. A Martin's surveillance video shows two unidentified men running away from the area of Citizen's Bank shortly after Mr. Galusha and Mr. Falace left the store to make the deposit. The video then depicts the employees walking back to the store, where they called the police, a few minutes later.

         Austin Mayhew testified at trial pursuant to a grant of judicial immunity providing that his statements would not be used to prosecute him for the Martin's robbery. He claimed that on January 10, 2016, he went to dinner in West Dover, Vermont with his girlfriend, Vanessa Garcia, and Defendant. After dinner, Ms. Garcia drove Defendant and Mr. Mayhew back to Bennington, and all three of them returned to Mr. Mayhew and Ms. Garcia's apartment. Mr. Mayhew testified that shortly after they arrived in Bennington, Defendant offered to forgive a $450 drug debt[2] if Mr. Mayhew helped him commit a robbery that night. Defendant and Mr. Mayhew dressed in dark clothing, covered their faces, and left the apartment in search of a business to target. Mr. Mayhew stated that Defendant carried a silver semi-automatic handgun with him.

         Martin's was the first open business Defendant and Mr. Mayhew encountered, so they decided to rob it. Inside the store, Mr. Mayhew recognized his sister's boyfriend, Mr. Galusha, and Mr. Falace, whom he knew from visiting the store. Mr. Mayhew persuaded Defendant not to commit the robbery at Martin's because he did not want anyone to get hurt. Instead, Defendant and Mr. Mayhew decided to rob the employees in the drive-through lane at Citizen's Bank when they made the night deposit. Mr. Mayhew did not explain how he and Defendant knew when and where the night deposit would be made. Once they had seized the Martin's deposit, Mr. Mayhew testified that he and Defendant ran from the scene. A video was shown to the jury which showed two men running from the Citizen's Bank. After they split up the night deposit, Mr. Mayhew returned to his apartment alone and, finding himself locked out, crawled in through a window.

         On January 14, 2016, Bennington Police Department ("BPD") officers executed a search warrant at Mr. Mayhew and Ms. Garcia's residence and seized three cell phones which were subsequently lost or misplaced by the BPD prior to trial. After the trial, two of those phones were discovered in a desk at the BPD. During an interview following the search, Mr. Mayhew admitted to committing the robbery, and, after some hesitation, identified Defendant as the person with the handgun.

         BPD Detective Sergeant Lawrence Cole testified that he spoke with Defendant about the robbery three times on January 14, 2016. In the first recorded interview, which took place at Defendant's parents' residence at approximately 11:30 a.m., Defendant initially denied that he was with Mr. Mayhew and Ms. Garcia on the night of the robbery, but later admitted that he had dinner with them. Defendant was arrested that same day and interviewed again at approximately 6:30 p.m. after waiving his rights under Miranda v. Arizona, 384 U.S. 436 (1966). In the second recorded interview, Defendant asserted that Robert and Trisha Farkas would corroborate that he stayed at their home in Dover, Vermont on the night of January 10, 2016. He stated that he suffered a panic attack while at the Farkas residence which prompted him to walk to Wilmington, Vermont and catch a 6:55 a.m. bus back to Bennington on January 11, 2016. Detective Cole subsequently reviewed the video from the bus that Defendant claimed to have taken from Wilmington to Bennington on the morning of January 11, 2016, and did not see Defendant on board. During the interview, Defendant also suggested that Mr. Galusha might have committed the robbery with Mr. Mayhew to which BPD officers replied that Mr. Galusha was one of the victims.

         Defendant spoke with Detective Cole a third time on January 14, 2016 and asked to use his cell phone to access additional evidence to prove that he was not involved in the Martin's robbery. Defendant's father brought the cell phone to the police station and provided it to Detective Cole, who gave it to Defendant, and then retrieved it because he was concerned Defendant would delete information from it. Detective Cole obtained a search warrant for the cell phone. Thereafter, BPD Detective Anthony Silvestro extracted the cell phone's data using Cellebrite software. Defendant's cell phone was also lost or misplaced by the BPD prior to trial and has not been recovered.

         Frank Thornton, an expert in digital forensics, testified on behalf of the government regarding the reliability of a Cellebrite extraction and explained location data obtained from AT&T which showed that Defendant's cell phone traveled from Bennington to the Dover area and then back to Bennington on the evening of January 10, 2016. The phone remained in use in Bennington until approximately 9:42 a.m. on January 11, 2016.

         Trisha Farkas testified that Defendant stayed at her house on the night of January 7, 2016 and authenticated a Facebook message sent by Defendant on January 8, 2016 wherein he explained that he had left early in the morning due to a panic attack and returned to Bennington by bus. Ms. Farkas confirmed that Defendant, Mr. Mayhew, and Ms. Garcia had dinner in Dover on January 10, 2016 and left thereafter. She also confirmed that Defendant did not stay at her home that night. On January 14, 2016 at 12:07 p.m. Defendant sent Ms. Farkas a Facebook message informing her that Mr. Mayhew and Ms. Garcia had asserted they were with Defendant "on a certain night when [he] stayed at the pizzeria," but he contended that "they left and [he] stayed at [Ms. Farkas's] house[.]" (Doc. 148-3.)

         Detective Silvestro testified that, like Detective Cole, he viewed the video from the bus Defendant claimed to have taken from Wilmington to Bennington on January 11, 2016 and did not see Defendant. A screenshot from the video was shown to the jury to corroborate that claim. Detective Silvestro further testified about using Cellebrite to extract data from Defendant's cell phone, and about the contents of the extracted data. Those contents included internet history showing that Defendant had checked the bus schedule while he was being interviewed at his parents' home on January 14, 2016, and had viewed a news article about three recent local robberies, including the Martin's robbery. The cell phone's call log revealed calls to and from Robert and Trisha Farkas and calls and text messages to and from Stephanie Dockery, Defendant's then-girlfriend, on January 10 and 11, 2016.

         On the evening of January 10, 2016 at 9:20 p.m. Defendant told Ms. Dockery in a text message that he was returning to Bennington and meeting a friend at midnight. At 11:58 p.m., Defendant texted Ms. Dockery that he had to go immediately. Ms. Dockery and Defendant resumed text messaging at 12:37 a.m. on January 11, 2016 when Ms. Dockery texted that she was worried, and at 12:44 a.m. Defendant responded that he was "back safe and sound[.]" (Doc 148-4 at 9.) At 7:17 a.m., Defendant texted Ms. Dockery and wrote in part, "I only got a bullshit 836 last night. I'm gonna send you 500. Can I do it through Walmart so that way it's cheaper?" Id. at 10. Photographs extracted from Defendant's cell phone show that he transferred $960 to Ms. Dockery in two installments between January 11, 2016 and January 13, 2016.

         II. Procedural History.

         Defendant was indicted by a grand jury on August 10, 2017, and Ernest M. Allen, III, Esq. was appointed to represent him. On June 20, 2018, the government moved for a hearing pursuant to United States v. Curcio, 680 F.2d 881 (2d Cir. 1982) to investigate potential conflicts of interest between Attorney Allen and two potential trial witnesses. One of the witnesses at issue was Mr. Galusha, who was represented by Attorney Allen in a 1993 prosecution for bank robbery for which he sustained a federal felony conviction.

         The court held a Curcio hearing on July 12, 2018. At the hearing, Defendant represented that he waived any conflict of interest resulting from Attorney Allen's previous representation of Mr. Galusha. When the court asked Defendant "[D]o you understand that there may be some hesitation for an attorney to vigorously cross examine, and, for example, show the person is a liar if it's a former client of theirs?" he responded "I do, but honestly not in this case." (Doc. 82 at 23:10-15.) Defendant also declined to consult with another attorney about the potential conflict.

         The court discussed the conflict with Attorney Allen, including asking: "[W]hat if Mr. Galusha is cross examined about the issue that he has a prior robbery of his own and may have fabricated this?" Id. at 25:14-16. Attorney Allen responded, "I don't think I would be able to get it in" and stated, "if you think it's a good strategy, your Honor, we will consider it, but I'm thinking it's a loser." Id. at 25:17-22. Attorney Allen further confirmed that any harm from the conflict of interest had already been incurred because he had interviewed Mr. Galusha in preparation for Defendant's trial.

         At the court's request, Defendant filed a signed waiver of the potential conflict on July 17, 2018. Mr. Galusha also filed a signed statement waiving any potential conflict of interest that could arise from being cross-examined by his former attorney.

         A jury trial was held from July 24 to July 27, 2018 at which Defendant's primary defense was a challenge to his identity as one of the masked robbers. Only Mr. May hew unequivocally testified that Defendant was the armed robber. In his questioning of Mr. Galusha, Attorney Allen elicited that at the time of the robbery (and at the time of trial) he was dating Mr. Mayhew's sister. Attorney Allen also asked Mr. Galusha if he called Mr. Mayhew on the morning after the robbery, but Mr. Galusha denied doing so and Mr. Allen did not pursue the issue further. In his closing argument, Attorney Allen reminded the jury of the connection between Mr. Galusha and Mr. Mayhew's sister and suggested that the robbery was an inside job, describing it as "an armed robbery that had some planning to it, knew where the night deposit was, knew what time they closed up, knew where they'd be going off a little inside information." (Doc. 87 at 74:20-23.) The jury found Defendant guilty of the robbery.

         On August 14, 2018, Attorney Allen filed a motion to withdraw because Defendant intended to pursue a claim for ineffective assistance of counsel. The court granted the motion to withdraw on August 21, 2018, and on that date Attorney Williams was substituted as Defendant's counsel.

         III. Evidence Presented at the October 15, 2019 Evidentiary Hearing.

         The court held an evidentiary hearing on Defendant's motion for a new trial on October 15, 2019. At the hearing, Attorney Allen testified about his previous representation of Mr. Galusha, his recollection of his interview with Mr. Galusha in connection with Defendant's case, and his subsequent discussion with Defendant about the potential conflict of interest. He also discussed his strategic decisions regarding the investigation and presentation of Defendant's case.

         Attorney Williams called Martin's owner, David Dupee, to testify about a burglary of Martin's on November 19, 2015 in which a locker in a storage shed was breached by force and the money stored inside was stolen. Mr. Dupee opined that a burglar would not have been able to locate those funds without inside information. Mr. Dupee testified that he hired Mr. Galusha in 2015 shortly before the burglary occurred and that he does not trust him.

         Defendant's mother, Cynthia Chinnici, testified that, prior to trial she communicated with Attorney Allen about her belief that Frank Chinnici, Defendant's uncle, was involved in the robbery. Attorney Williams introduced evidence that Frank Chinnici more closely resembled the description of the armed robber, had a criminal record, and lived with Ms. Garcia after the robbery.

         Mrs. Chinnici also provided Attorney Allen with contact information for Ashley Raleigh, a family acquaintance who claimed she had been messaging with Defendant at the time of the robbery. She further described the circumstances in which Trisha Farkas had retracted her initial statement that Defendant was at her house on the night of the robbery and declined to make a second statement supporting Defendant's alibi.

         Ms. Raleigh testified at the hearing, recalling that she communicated with Defendant on Facebook messenger shortly before midnight on the night of the robbery but had purged her cell phone of those messages. She informed Defendant's mother that she was messaging Defendant at the time of the robbery, but she did not contact Defendant's counsel directly.

         Ms. Garcia testified that after returning from Dover to Bennington on the night of January 10, 2016, she drove to Taco Bell and then went home, where she remained for the rest of the evening. Attorney Williams cited her testimony as evidence that Mr. ...

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