United States v. Brichetto , 121 F. App'x 876 ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1820
UNITED STATES,
Appellee,
v.
THOMAS PAUL BRICHETTO, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Bruce M. Merrill for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
February 15, 2005
LYNCH, Circuit Judge. A jury convicted Thomas P.
Brichetto, Jr. of bank robbery and aiding and abetting bank robbery
(Count One), and using, carrying and brandishing a firearm during
and in relation to the commission of a violent felony (Count Two),
see 18 U.S.C. §§ 2, 924(c)(1)(A)(ii), 2113(a), 2113(d). The jury
found that on December 12, 2001, he had, with three accomplices,
robbed at gunpoint a branch of the Gorham Regional Federal Credit
Union in Gorham, Maine, of $7,079. The jury also acquitted him on
a charge of being a felon in possession of a firearm (Count Three),
see id. §§ 922(g)(1), 924(e). Largely based on what he considers
to be inconsistency in the jury verdicts, Brichetto appeals from
his conviction, saying he should have been granted a directed
verdict or given a new trial.
His argument is that since the government introduced
evidence of only one firearm in this case -- a .25 caliber Mauser
semiautomatic pistol -- "The jury's verdict of Not Guilty on Count
Three cannot be reconciled with the Guilty verdicts on Counts One
and Two." He argues that the jury necessarily found a failure of
proof as to an essential element of the crimes charged in Counts
One and Two,1 namely: the use of the firearm in the robbery.
1
The armed robbery statute cited in Count One provides:
(a) Whoever, by force and violence, or by
intimidation, takes . . . from the person or
presence of another . . . any property or
money or any other thing of value belonging to
. . . any . . . credit union . . . . [and]
-2-
"[A] straightforward claim that the jury verdict is
internally inconsistent. . . . is essentially unreviewable."
United States v. Alicea, 205 F.3d 480, 484 (1st Cir. 2000) (citing
United States v. Powell, 469 U.S. 57, 66 (1984), Dunn v. United
States, 284 U.S. 390, 393-94 (1932), and United States v. Lara, 181
F.3d 183, 206 (1st Cir. 1999)). "In a single, multi-count trial,
acquittal on one or more counts does not preclude conviction on
other counts based upon the same evidence, as long as that evidence
(d) . . . in committing, or in attempting to
commit, any offense defined in subsection[]
(a) . . . of this section, assaults any
person, or puts in jeopardy the life of any
person by the use of a dangerous weapon or
device, shall be fined under this title or
imprisoned not more than twenty-five years, or
both.
18 U.S.C. § 2113 (emphasis added). The statute cited in Count Two
provides:
[A]ny person who, during and in relation to
any crime of violence . . . uses or carries a
firearm . . . shall, in addition to the
punishment provided for such crime of violence
. . . if the firearm is brandished, be
sentenced to a term of imprisonment of not
less than 7 years . . . .
18 U.S.C. § 924(c)(1)(A) (emphasis added). The statute cited in
Count Three provides:
It shall be unlawful for any person . . . who
has been convicted in any court of, a crime
punishable by imprisonment for a term
exceeding one year . . . to . . . possess in
or affecting commerce, any firearm or
ammunition . . . .
18 U.S.C. § 922(g) (emphasis added).
-3-
is legally sufficient to support a finding of guilt on the count(s)
of conviction." Id. To his credit, Brichetto, ably represented by
appointed counsel, admits this principle, but says we should factor
the acquittal into our review of the sufficiency of the evidence
and of the motion for a new trial.
Our test, however, is the usual one for sufficiency of
the evidence. The reviewing court "must uphold any verdict that
is 'supported by a plausible rendition of the record.'" United
States v. Hernández, 218 F.3d 58, 64 (1st Cir. 2000) (quoting
United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)); see
also United States v. Castellini, 392 F.3d 35, 44 (1st Cir. 2004)
("On challenges to sufficiency of the evidence, we take all the
evidence and inferences in the light most favorable to the verdict
and ask whether a rational factfinder could find, beyond a
reasonable doubt, that the prosecution successfully proved the
essential elements of the crime.").
There is more than sufficient evidence in the record here
to allow a jury to find Brichetto guilty beyond a reasonable doubt
on Counts One and Two.2 The teller at the robbed bank testified
that she saw the robber pointing a "small black handgun" at her and
that he threatened to "blow [her] head off." David Tanguay, one of
Brichetto's accomplices, testified that he obtained the gun and
2
The government proffers a series of reasons for explaining
why the jury might have acquitted Brichetto on Count Three, which
we need not address.
-4-
brought it to Brichetto before the robbery. Tanguay said Brichetto
went into the credit union, carrying the gun. Tanguay testified
that after the robbery, he told Brichetto to throw away the gun
during the getaway ride, and he saw Brichetto rolling down the car
window and throwing the gun away as they drove alongside an area
"[l]ike a boggy marsh." The police were unable to recover the gun
after searching the area. Brichetto, on Tanguay's evidence, had
the gun before and after the robbery and went into the bank with
the gun. That left the question of whether Brichetto was the
robber the teller saw. The teller said the robber had a gun and
wore a ski mask. Tanguay testified that Brichetto wore a "stocking
cap" on the day of the robbery. A knit cap was recovered from
Tanguay's car, and laboratory analysis of the DNA on the hat band
showed that it matched Brichetto's DNA. Additionally, a photograph
taken from the surveillance camera inside the bank during the
robbery shows the robber wearing a knit ski cap vaulting over the
counter with an object in his hand that a jury could easily
conclude was a gun. Indeed, the jury found by special verdict that
Brichetto had brandished a firearm in the course of the robbery.
The fact that no gun was ever found or that the witnesses
described the gun in different ways does not mean that the evidence
was insufficient to convict. For example, it is not uncommon for
a person who has a gun pointed at her to describe the gun as large,
even if bystanders would describe it as smaller.
-5-
For the same reasons that the evidence was sufficient
(indeed, ample), there was no abuse of discretion in denying
Brichetto's motion for a new trial.
Brichetto has appropriately waived the Booker claim of
sentencing error he originally pursued on appeal. See United
States v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005). Brichetto's
conviction is affirmed.
-6-