United States District Court, D. Vermont
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
A NEW TRIAL (DOC. 96)
Christina Reiss, District Judge
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.
is represented by David J. Williams, Esq. The United States
is represented by Assistant United States Attorneys Barbara
A. Masterson and Joseph R. Perella.
The Evidence at Trial.
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.
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,  but he was not
able to identify either of the robbers.
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.
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 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.
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.
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.
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
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.
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.
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.)
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.
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.
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.
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
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
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
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
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.
Evidence Presented at the October 15, 2019 Evidentiary
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.
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.
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
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
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.
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. ...