United States v. Richitelli

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12078 FEB 3, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 0:09-cr-60229-JIC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAY ANTHONY RICHITELLI,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 3, 2011)
Before BLACK, HULL and WILSON, Circuit Judges.
PER CURIAM:
After a jury trial, Jay Richitelli appeals his convictions for conspiring and
attempting to commit a Hobbs Act robbery of a gas station money courier,
conspiring to use and carry and using a firearm during the commission of a crime
of violence, and being a felon in possession of a firearm. After review, we affirm.
I. BACKGROUND
A. Attempted Robbery of Gas Station Courier
We first review the government’s trial evidence. Twin Oil Company (“Twin
Oil”) owns 32 gas stations in Florida. John Cherico, Twin Oil’s money courier,
ran a regular, twice-weekly pick-up from Twin Oil’s seven Sunoco gas stations in
Broward County. The only person who knew Cherico’s route was his supervisor.
The last gas station on Cherico’s route was at 7520 Pembroke Road. On August
25, 2009, Cherico retrieved $64,000 from the seven gas stations.
On that date, due to a recent rash of burglaries, Pembroke Pines Detective
Dean Soubasis was patrolling in the area of 7520 Pembroke Road in an unmarked
car. Detective Soubasis saw a silver Volkswagen with a driver and a passenger
parked across a sidewalk. Just before the Volkswagen pulled away, Detective
Soubasis saw the passenger put on a pair of black gloves.
Detective Soubasis followed the Volkswagen and, when it failed to stop at a
stop sign, performed a traffic stop. Detective Soubasis issued the driver, Henry
Wainwright, a citation. Detective Soubasis smelled marijuana coming from the
car. Detective Soubasis asked Wainwright to exit the car, searched Wainwright
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and found a small bag of marijuana and some rolling papers in Wainwright’s
pocket.
Wainwright’s passenger, Niegel Smith, admitted to Detective Soubasis that
he and Wainwright were on their way to rob a money courier at a Sunoco gas
station around the corner (i.e., 7520 Pembroke Drive). Smith indicated that he and
Wainwright were waiting for a call from a third person, Defendant Richitelli, who
was watching the gas station’s courier. Detective Soubasis arrested Wainwright
and Smith. A search of Wainwright’s car uncovered a loaded firearm under the
front passenger’s seat and some black gloves.
Smith testified that, since November 2008, Defendant Richitelli had been
receiving information about the money courier’s route from an unknown “inside
person” who owed Defendant Richitelli money. Defendant Richitelli and
Wainwright approached Smith on August 13, 2009, and asked him to help rob the
money courier. Smith agreed. The three men decided to commit the robbery on
August 29, 2009, because, according to the inside person, the courier collected
more money when school was in session.
A week beforehand, Richitelli, Smith and Wainwright began planning how
to execute the robbery. Defendant Richitelli had a list of the courier’s stops, and
the three men conducted surveillance of the courier as he drove his route.
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According to their plan, Richitelli’s job during the robbery was to surveil the
courier and let Smith and Wainwright know when the courier was headed to the
last pick-up. Smith’s job was to approach the courier with the firearm and take the
money from him and drive away in the courier’s car. Wainwright’s job was to
drive Smith to the gas station and then meet Smith at a prearranged location after
the robbery.
The night before the planned robbery, Richitelli met with the inside person,
who gave Richitelli information about the courier. The morning of the robbery,
the three men met at Richitelli’s residence. Richitelli gave Smith a gun and some
black gloves to use in the robbery. The gun was wrapped in a white towel to avoid
fingerprints. Richitelli also gave Smith information about the courier’s route,
appearance, car, gun and amount of money. Richitelli left in a Chrysler to go to
the courier’s second-to-last stop to conduct surveillance. Wainwright and Smith
left in the Volkswagen and circled the area around the last stop.
Eventually, Wainwright parked on a sidewalk near the gas station to roll a
marijuana cigarette. Richitelli called and said the courier was leaving the second-
to-last pick-up. Wainwright drove the Volkswagen off the sidewalk and was
heading toward the gas station when he was pulled over by law enforcement.
After the car was stopped, Smith saw Richitelli’s Chrysler drive by.
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B. Richitelli’s Confession
Later that day, Gerard Starkey, a task force officer assigned to the Federal
Bureau of Investigation (“FBI”), interviewed Defendant Richitelli at the Pembroke
Pines Police Department. After receiving a Miranda warning, Defendant Richitelli
admitted his participation in the attempt to rob the money courier, but claimed that
Wainwright planned the operation. Richitelli said that he was a confidential
informant (“CI”) working with Detective John Sousa of the Broward County
Sheriff’s Office (“BCSO”), but admitted that he had not told Detective Sousa
about the planned robbery. Agent Starkey contacted Detective Sousa and
confirmed that Richitelli was a CI and that Detective Sousa was unaware of the
plan to rob the money courier.
C. Richitelli’s CI Relationship with Detective Sousa
Detective Sousa met Richitelli in November 2008 through the Broward
County State Attorney’s Office. Richitelli was contracted to be a CI by Detective
Sousa on behalf of the BCSO. Under his CI contract, Richitelli: (1) was not
allowed, inter alia, to possess a firearm or be involved in any criminal activity, and
(2) was required to notify Detective Sousa and await permission before
investigating anyone. At the time of the attempted robbery, Richitelli was
working with Detective Sousa on a prescription-pain-killer drug operation.
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Although Detective Sousa and Richitelli spoke on the telephone on August 24 and
25, 2009, Richitelli never mentioned a robbery planned for August 25.
According to Detective Sousa, Richitelli had a tendency to talk a lot and,
during one investigation, waited three days before alerting Detective Sousa that he
had been approached about committing a crime. Detective Sousa had counseled
Richitelli to contact him before meeting with any suspects.
D. Indictment
After his confession, Richitelli was arrested. Richitelli was appointed
counsel, who filed a written invocation of Richitelli’s right to remain silent and to
counsel. A superseding indictment charged Richitelli, along with Wainwright and
Smith, with conspiracy to commit a Hobbs Act robbery, in violation of 18 U.S.C.
§ 1951(a), (Count 1); attempting a Hobbs Act robbery, in violation of 18 U.S.C.
§ 1951(a), (Count 2); conspiring to use and carry a firearm during and in relation
to a crime of violence, in violation of 18 U.S.C. § 924(o), (Count 3); carrying a
firearm during and in relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A), (Count 4); and possessing a firearm after being convicted of a
felony, in violation of 18 U.S.C. § 922(g)(1), (Count 6). Richitelli filed a notice of
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public authority defense, claiming that, at the time of his arrest, he was working as
a documented CI for Detective Sousa.1
E. Richitelli’s Recorded Call to Detective Sousa
On October 30, 2009, while Richitelli was in pretrial detention at the
Federal Detention Center (“FDC”) in Miami, Richitelli called Detective Sousa.
Because all calls from the FDC are recorded, the government had a recording of
Richitelli’s call to Detective Sousa.
Prior to trial, Richitelli moved to suppress the recorded call, arguing that, at
the time of the call, he had appointed counsel and had not waived his right to
counsel. The government responded that Richitelli knew when he placed the call
to Detective Sousa that it would be recorded because (1) he was advised during
intake at the FDC that phone calls were recorded; (2) signs posted in the FDC
alerted him that phone calls were recorded; and (3) interruptions during phones
calls stated that calls were recorded. The district court denied Richitelli’s motion
to suppress, finding that Richitelli had initiated contact with Detective Sousa
voluntarily and had impliedly waived his Fifth and Sixth Amendment rights.
1
The public authority defense is an affirmative defense under which the defendant must
show that he reasonably relied upon the authority of a government official authorizing the
defendant to engage in an illegal activity. United States v. Baptista-Rodriguez, 17 F.3d 1354,
1368 n.18 (11th Cir. 1994); United States v. Johnson, 139 F.3d 1359, 1365 (11th Cir. 1998).
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At trial, the government played the recorded call and introduced redacted
transcripts.2 During the call, Richitelli denied being involved in the planned
robbery. Richitelli said that Wainwright “popped up,” and Richitelli “wanted to
see what was going on.” Richitelli claimed that Wainwright broke into his shed
and took the firearm without his knowledge. Detective Sousa scolded Richitelli
for getting involved in crimes outside his CI relationship, repeatedly told Richitelli
that he (Sousa) had nothing to do with Richitelli’s federal robbery case, and
advised Richitelli to cooperate with the FBI.
F. Proposed Defense Witness Steve Emerson
At trial, Richitelli asked to call Steven Emerson, Richitelli’s former
supervising agent at the Florida Department of Law Enforcement. Defense
counsel argued that Emerson’s testimony was relevant “to show Mr. Richitelli’s
actions as a confidential informant, how he acts in a very - - that he’s very active,
that he talks a lot, that sometimes he doesn’t think before he acts, and that he’s not
- - he’s very good at gathering information, he’s very good at conducting
investigations and that he somewhat needs very strict supervision, and as late as
2007, he was able to refer a case for prosecution.” After defense counsel
2
For reasons that are not pertinent to this appeal, portions of the transcript were redacted
pursuant to the district court’s pre-trial order.
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conceded that Emerson had not had any contact with Richitelli since 2008 and did
not have anything to do with the instant case, the district court denied the request.
G. District Court’s Inquiry Into Richitelli’s Decision to Testify
During trial, but out of the jury’s presence, the district court asked defense
counsel, “Do you mind if I inquire of your client regarding his right to testify and
his right not to testify?” Defense counsel responded that he “would support the
Court to do that,” and the district court confirmed with Richitelli that: (1) he
understood that he had a right to testify and not to testify; (2) he understood that if
he elected to testify, information about the number of felony convictions he had
could be brought out and he would be subject to cross-examination; (3) he had
fully discussed the issue of whether to testify with his attorney; and (4) he had not
yet decided whether to testify.
The next day, before the defense rested, the district court asked whether
Richitelli was going to testify. Defense counsel stated, “I don’t believe so, but at
this time I would invite the Court to voir dire him.” The district court pointed out
that it had already asked Richitelli some questions and then confirmed that the
government would not object to a jury instruction on the public authority defense
even if Richitelli did not testify. Defense counsel then asked Richitelli whether he
wanted the district court to inquire. Richitelli nodded his head affirmatively.
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The district court again discussed with Richitelli his decision whether to
testify and learned that Richitelli had decided not to take the stand, as follows:
THE COURT: All right. Well, I will be more than happy to.
As I was explaining to you yesterday, you essentially have two
rights. You have a right to testify and you have a right not to testify. If
you do elect to testify, you would be subject to cross-examination by the
government.
In other words, Mr. Chase could ask you questions, and he could
bring out the fact that you’ve been convicted of more than one felony.
Now, I don’t know how many felony convictions you have, but
whatever number that is, Mr. Chase could bring that out. As it stands
right now, the jury is only aware of one felony conviction.
Now, if you elect not to testify, the jury is advised that that cannot
be considered by them in any way in arriving at their verdict. They can’t
conclude that by virtue of the fact that you elected not to testify that
you’ve got something to hide, and you are guilty.
Have you had enough time to discuss the issue of whether or not
you should testify with your two lawyers?
THE DEFENDANT: Yes, Your Honor. I discussed with Mr. Tucker
about me testifying in the case, and he gave me his statement and, you
know, his theory on it. And since I had my accident with an aneurysm
and my IQ level ain’t very high, so I decided I ain’t going to testify
because I won’t remember everything periodically because I lose my
memory sometimes.
THE COURT: Is that your decision?
THE DEFENDANT: Yes, Your Honor.
H. Jury Instruction on Count 3
During the charge to the jury, the district court instructed the jury on the
elements of Counts 1 and 2, which charged Richitelli with conspiracy and attempt
to commit a Hobbs Act Robbery. As to Count 3, which charged Richitelli with
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conspiracy to use a firearm during the commission of a crime of violence, the
district court stated:
Now, Count 3 charges that defendant Jay Anthony Richitelli did
knowingly and intentionally combine, conspire, confederate, and agree
with others to use and carry a firearm during and in relation to a crime
of violence. That is, a violation of Title 18 United States Code Section
1951(a) as set forth in Counts 1 and 2 of the indictment and to possess
said firearm in the furtherance of such crimes, all in violation of Title 18
United States Code Section 924(c)(1)A.
It is further alleged that the firearm is a Beretta .40 caliber pistol.
The definition of a conspiracy was explained in Count~1 the -- in the
Count~1 instruction. Such information will not be repeated, but
reference can be made during deliberations to the portion of Count 1 that
addresses conspiracy if the need arises.
Title 18 United States Code Section 924(c)(1) makes it a separate
federal crime or offense for anyone to carry a firearm during and in
relation to a crime of violence or possess a firearm in furtherance of a
crime of violence.
The defendant can be found guilty of the conspiracy offense
charged in Count 3 of the indictment only if all of the following facts are
proved prosecute [sic].
First, that the defendant conspired to commit the crime of
violence charged in Count~1 of the indictment.
Second, that during the commission of that offense, the defendant
knowingly carried or possessed a firearm as charged.
And third, that the defendant carried the firearm in relation to or
possessed the firearm in furtherance of the crime of violence.
After concluding the jury charge, the district court asked the parties whether they
had any new objections to the instructions or the manner in which they were read.
Defense counsel responded that he had no objections.
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The jury found Richitelli guilty on all counts. The district court sentenced
Richitelli to imprisonment terms of life on Counts 1 and 2, 240 months’
imprisonment on Count 3, and 180 months’ imprisonment on Count 6, all to run
concurrently, and 60 months’ imprisonment on Count 4, to run consecutively to
the other counts. Richitelli filed this appeal.
II. DISCUSSION
A. Motion to Suppress Recorded Call to Detective Sousa
Richitelli contends that the district court should have suppressed his
recorded call to Detective Sousa because Richitelli had already invoked his right
to counsel and did not waive it before speaking to Detective Sousa.3
“[O]nce the adversary judicial process has been initiated, the Sixth
Amendment guarantees a defendant the right to have counsel present at all
‘critical’ stages of the criminal proceedings.” Montejo v. Louisiana, 556 U.S. __,
129 S. Ct. 2079, 2085 (2009). “Interrogation by the State is such a stage.” Id. A
Sixth Amendment violation occurs when (1) government agents (2) deliberately
elicit incriminating statements from an accused after he has been indicted, outside
the presence of counsel, and (3) in the absence of any waiver of his Sixth
3
With respect to a district court’s denial of a motion to suppress, we review its findings of
fact for clear error and its interpretation and application of the law de novo. United States v.
Emmanuel, 565 F.3d 1324, 1330 (11th Cir.), cert. denied, 130 S. Ct. 1032 (2009).
12
Amendment rights. Fellers v. United States, 540 U.S. 519, 523-25, 124 S. Ct.
1019, 1022-23 (2004). The district court concluded that Richitelli impliedly
waived his Sixth Amendment right to counsel when he initiated the call to
Detective Sousa from the FDC knowing that the call would be recorded.
We need not reach the waiver issue for two reasons. First, a review of the
transcript of the conversation reveals that Detective Sousa, even if he qualified as
a “government agent,” did not take any action designed to deliberately elicit
incriminating statements from Richitelli. See Kuhlmann v. Wilson, 477 U.S. 436,
459, 106 S. Ct. 2616, 2630 (1986) (explaining that the defendant must show that
the government agent “took some action, beyond mere listening, that was designed
deliberately to elicit incriminating remarks). Detective Sousa did not directly
question Richitelli about his involvement in the attempted robbery and did not
play on Richitelli’s emotions to elicit incriminating statements. Detective Sousa
did not engage in a prolonged discussion of the details of the offenses or
Richitelli’s involvement in them. Indeed, Detective Sousa repeatedly informed
Richitelli that he knew nothing about the federal robbery case and could not help
Richitelli. The main thrust of Detective Sousa’s statements to Richitelli was to
stress the seriousness of the federal charges and to urge Richitelli to cooperate
with the FBI in any way that he could.
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Second, even if Richitelli satisfied all three requirements to show a Sixth
Amendment violation, any error in admitting the recorded call to Detective Sousa
was harmless beyond a reasonable doubt. See United States v. Gari, 572 F.3d
1352, 1362 (11th Cir. 2009) (explaining that the “test for determining whether a
constitutional error is harmless . . . is whether it appears beyond a reasonable
doubt that the error complained of did not contribute to the verdict obtained”
(quotation marks omitted)), cert. denied, 120 S. Ct. 1562 and Rodriguez v. United
States, 130 S. Ct. 1560 (2010). The government presented overwhelming
evidence of Richitelli’s guilt, including: (1) Smith’s testimony that Richitelli
provided the gun and information about the courier and his route, helped plan the
robbery and acted as surveillance, notifying Smith and Wainwright when the
courier reached his last stop; (2) Agent Starkey’s testimony that Richitelli
admitted being involved in the robbery scheme; and (3) Detective Sousa’s
testimony that Richitelli did not have the authority to be involved in the robbery as
his CI.
During the recorded conversation, Richitelli did not admit that he was
involved in the robbery scheme. At most, the recorded conversation constituted
evidence that Detective Sousa never gave Richitelli the authority, as his CI, to
become involved in the robbery. As such, however, this evidence was cumulative
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of Detective Sousa’s testimony that he was unaware of the planned robbery and
Agent Starkey’s testimony that, during Richitelli’s confession, Richitelli admitted
that he had not told Detective Sousa about the robbery. Under the circumstances,
we readily conclude beyond a reasonable doubt that the admission of the recorded
conversation did not contribute to the jury’s guilty verdict.
B. District Court’s Inquiry into Richitelli’s Decision not to Testify
Richitelli argues that the district court erred in discussing his decision
whether to testify. We agree with the government that Richitelli invited any error
in this regard.
We are precluded “from reviewing an issue raised on appeal if it has been
waived through the doctrine of invited error.” United States v. Brannan, 562 F.3d
1300, 1306 (11th Cir. 2009). This Court has applied the invited error doctrine
when the alleged error was the result of a defendant’s responses to the district
court’s questions. See, e.g., United States v. Thayer, 204 F.3d 1352, 1355 (11th
Cir. 2000).
Here, the district court received defense counsel’s permission before
directly addressing Richitelli about his right to testify. Later, defense counsel
asked the district court to discuss the issue again with Richitelli. When the district
court seemed reluctant and pointed out that he had already discussed Richitelli’s
15
right to testify with him, defense counsel asked Richitelli whether he wanted the
district court to discuss his right to testify again. Richitelli indicated that he did.4
Even if Richitelli has not invited error, he did not object to the inquiry in the
district court, and there is no plain error. See United States v. Peters, 403 F.3d
1263, 1270 (11th Cir. 2005). To be “plain,” an error must be clear under current
law. United States v. Frank, 599 F.3d 1221, 1239 (11th Cir.), cert. denied, 131 S.
Ct. 186 (2010). The cases Richitelli relies upon conclude only that a trial court is
not required to advise a criminal defendant of his right to testify and do not, as
Richitelli suggests, restrict trial courts from such an inquiry. See United States v.
Teague, 953 F.2d 1525, 1532-33 (11th Cir. 1992); United States v. Van De
Walker, 141 F.3d 1451, 1452 (11th Cir. 1998). Richitelli has not shown that the
district court’s inquiry was plain error.
C. Jury Instruction on Count 3
Richitelli argues that the district court’s jury instruction as to Count 3
constitutes reversible error because it did not state the proper object of the
conspiracy.
Because Richitelli did not raise this objection to the Count 3 instruction in
4
To the extent Richitelli’s argument could be construed as a claim of ineffective
assistance of counsel, we decline to address this issue on direct appeal. See United States v.
Souder, 782 F.2d 1534, 1539-40 (11th Cir. 1986).
16
the district court, our review here is also for plain error.5 See United States v.
Felts, 579 F.3d 1341, 1343 (11th Cir. 2009) (explaining that “jury instructions that
are challenged for the first time on appeal are reviewed for plain error”). “Jury
instructions will not be reversed for plain error unless the charge, considered as a
whole, is so clearly erroneous as to result in a likelihood of a grave miscarriage of
justice, or the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Starke, 62 F.3d 1374, 1381 (11th Cir.
1995).
Here, the district court did not commit error, much less plain error.
Contrary to Richitelli’s contention, the district court’s instruction on Count 3
correctly stated at the outset that the object of the conspiracy was “to use and carry
a firearm during and in relation to a crime of violence.” The district court then
explained that the “crime of violence” charged in Count 3 was the conspiracy to
rob the money courier charged in Count 1 and the attempt to rob the money
courier charged in Count 2. By quoting only the district court’s subsequent
5
We reject the government’s argument that Richitelli invited any alleged error as to the
Count 3 instruction. There was never any discussion between the district court and defense
counsel about the Count 3 instruction. This fact distinguishes Richitelli’s case from the invited
error cases cited by the government. See United States v. Silvestri, 409 F.3d 1311, 1326-27
(11th Cir. 2005); United States v. Fulford, 267 F.3d 1241, 1247 (11th Cir. 2001). Defense
counsel’s response to the district court’s general inquiry at the conclusion of the jury charge
indicating that he had no objections to the charge as a whole did not invite error as to the Count 3
instruction.
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statement about what the government needed to prove for Richitelli to be found
guilty, Richitelli ignores the basic principle that “the correctness of a jury charge
must be considered in the context of the instructions as a whole.” United States v.
Wilk, 572 F.3d 1229, 1238 (11th Cir. 2009), cert. denied, 130 S. Ct. 1095 (2010).
Viewed in its entirety, the district court’s Count 3 instruction did not omit the
object of the conspiracy charged in Count 3.
D. Proposed Defense Witness Agent Emerson
Richitelli argues that the district court erred when it excluded Agent
Emerson’s testimony on the ground that it was not relevant.
“Evidence which is not relevant is not admissible.” Fed. R. Evid. 402. “A
district court’s decision to exclude evidence on grounds of relevance will not be
disturbed unless it constitutes a clear abuse of discretion.” United States v.
Baptista-Rodriguez, 17 F.3d 1354, 1364 (11th Cir. 1994). The district court’s
discretion, however, does not extend to the exclusion of crucial, relevant evidence
necessary to establish a valid defense. Id.Richitelli argues that Agent Emerson’s testimony was relevant to show
Richitelli’s modus operandi as a CI—that he tended to conduct initial
investigations before receiving permission from his supervising agent—and was
evidence that went to Richitelli’s intent. To the extent Richitelli argues that Agent
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Emerson’s testimony was relevant to either his public authority defense or his
“innocent intent,” Richitelli did not argue these grounds for relevance in the
district court. See United States v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007)
(explaining that to preserve an issue for appellate review, the defendant must
clearly raise the specific grounds for the objection). Instead, Richitelli told the
district court that Agent Emerson’s testimony would show that Richitelli, although
a productive CI, was very active, talked a lot and needed strict supervision. This
information had already been elicited from Detective Sousa. See United States v.
Dohan, 508 F.3d 989, 993 (11th Cir. 2007) (explaining that a district court is
within its discretion to exclude even relevant evidence that is cumulative).
Furthermore, Agent Emerson’s proposed testimony was not relevant to any
valid public authority defense in this particular case. This Court has concluded
that a defendant may assert a valid public authority defense only if his reliance
was on a real, rather than apparent, authority to perform the illegal acts in
question. United States v. Anderson, 872 F.2d 1508, 1516 (11th Cir. 1989).
Detective Sousa testified that he did not authorize Richitelli to engage in the
robbery scheme as part of their CI relationship. Richitelli’s modus operandi with
his previous supervising agent was irrelevant to whether Richitelli reasonably
relied upon the real authority of Detective Sousa. See, e.g., United States v.
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Johnson, 139 F.3d 1359, 1365-66 (11th Cir. 1998) (concluding that the district
court properly refused to admit evidence relating to public authority defense
because the defendant failed to show any government involvement in the
conspiracy). Under these circumstances, we find no abuse of discretion.
AFFIRMED.
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