
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1273                                    UNITED STATES,                                      Appellee,                                          v.                                 THOMAS J. BARTELHO,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                          Selya and Boudin, Circuit Judges,                                            ______________                           and McAuliffe,* District Judge.                                           ______________                                _____________________               Christopher  W. Dilworth, by  appointment of the  Court, for               ________________________          appellant.               Margaret  D. McGaughey,  Assistant  United States  Attorney,               ______________________          with whom Jay  P. McCloskey, United States Attorney,  and Richard                    _________________                               _______          W. Murphy, Assistant  United States Attorney,  were on brief  for          _________          appellee.                                 ____________________                                  November 25, 1997                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                    McAULIFFE,  District   Judge.    Thomas   Bartelho  was                    McAULIFFE,  District   Judge.                                ________________          convicted  of three  counts  of armed  bank robbery  (18 U.S.C.A.             2113(a) and  (d)), three counts of using  a firearm in a crime          of  violence (18  U.S.C.A.    924(c)), and  one count  of robbery          affecting  commerce (18  U.S.C.A.    1951).  On  appeal, Bartelho          raises a number of evidentiary issues and challenges the district          judge's denial  of his motion  to sever the charges  against him.          For the reasons that follow, we affirm his conviction.                                   I.  BACKGROUND1                                   I.  BACKGROUND                    Four  robberies occurred within four months in the same          area  near the  Maine  coast.   The Fleet  Bank in  Westbrook was          robbed on January 31,  1994, and on March 4 two  banks, the Casco          Northern Bank  in Gray and the  Key Bank in Windham,  were robbed          within twenty minutes of each other.   On May 5, a jewelry  store          in South Portland was robbed.  The robberies were similar in that          in  each, the  robbers were  masked,  brandished guns,  and drove          stolen cars.  They netted  approximately $64,000 in cash from the          banks and $109,000 worth of diamonds from the jewelry store.  The          robbers  activities, guns,  and general appearance were  noted by          bank  employees, customers, and  passersby, and were  recorded by          bank surveillance cameras.                    On July 2, 1994, the Windham (Maine)  police received a          call reporting a  domestic disturbance in the  upstairs apartment                                        ____________________          1  Bartelho  does not challenge the sufficiency  of the evidence.          The  facts  are  presented  only  as  background  for  subsequent          discussion  of  the issues  raised  on appeal,  without  favor to          either party.   United  States v. Morla-Trinidad,  100 F.3d  1, 2                          ______________    ______________          (1st Cir. 1996).                                         -2-          of  a two-unit  residence.   The  caller lived  downstairs.   The          upstairs  tenants  were  reported  to  be  Patricia  Harris,  her          boyfriend, "Tommy," and her two young children.  The police found          a loaded semiautomatic rifle on  the porch, and, when they called          out for  "Tommy," Bartelho  emerged from hiding.   The  rifle was          similar to one described by witnesses as having been used by  the          bank robbers.  Bartelho was arrested, on assault charges, and was          held in the Cumberland County jail until he made bail.                      Agents of  the Federal Bureau of  Investigation ("FBI")          then sought and  obtained a warrant to  search Harris's apartment          for  evidence connected to the January  and March bank robberies.          During  their  search on  July  7,  agents  found a  quantity  of          ammunition,  a stock  and case  for a  rifle, and  other evidence          related to the bank robberies.   The downstairs neighbor gave the          agents a .22 caliber revolver and ammunition that she said Harris          had given to  her.  A complaint  charging Bartelho with the  bank          robberies issued  on  July 8,  1994,  but on  October  12 it  was          dismissed without prejudice on the government's motion.2                    Bartelho was arrested  on other charges in  October and          imprisoned  in Rhode  Island.   His  cellmate told  the FBI  that          Bartelho bragged about his proficiency  with guns, as well as his                                        ____________________          2   In a separate indictment,  Bartelho was charged  with being a          felon  in possession of a firearm.   Before trial on that charge,          Bartelho moved to suppress  evidence taken by the  Windham police          in  the warrantless July 2  search, and by the  FBI in the July 7          search.   The  district judge  denied his  motion.   Bartelho was          convicted and on May 26, 1995, he  was sentenced to 120 months in          prison.  His conviction was affirmed on appeal.  United States v.                                                           _____________          Bartelho, 71 F.3d 436 (1st Cir. 1995).          ________                                         -3-          involvement in the  robberies.  Another inmate  who knew Bartelho          at  the Windham (Maine) Correctional Facility, where Bartelho was          imprisoned on gun  possession charges, told the FBI that Bartelho          had admitted  his part in  the bank and jewelry  store robberies.          William Yates,  who was in  prison with Bartelho at  the Kennebec          (Maine) County Jail in March of 1995, also reported that Bartelho          made statements about  his participation in the robberies.   And,          one of  Bartelho's accomplices,  Gerald Van  Bever, who  had been          arrested for his  part in the robberies, also  made statements to          the FBI implicating Bartelho.                    On  May 16,  1995,  a federal  grand  jury returned  an          indictment against  Bartelho charging  him with  three counts  of          bank robbery in violation of 18  U.S.C.A.   2113, three counts of          using   firearms  during  crimes  of  violence  in  violation  of          18 U.S.C.A.    924,  and  one count  of  unlawful  obstruction of          interstate commerce by robbery in  violation of the Hobbs Act, 18          U.S
