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

with whom Jay P. McCloskey, United States Attorney,

_________________
W. Murphy, Assistant
_________
appellee.

United States Attorney,

Attorney,

and Richard
_______

were on brief

for

____________________

November 25, 1997

____________________

____________________

Of the District of New Hampshire, sitting by designation.

McAULIFFE,
McAULIFFE,

District
Judge.
District
Judge.
________________

Thomas

Bartelho

was

convicted

of three

2113(a) and

of

of armed

bank robbery

(d)), three counts of using

violence (18

affecting

counts

U.S.C.A.

commerce (18

924(c)), and

U.S.C.A.

1951).

(18 U.S.C.A.

a firearm in a crime

one count

On

of robbery

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.
I.

Four

area

near the

robberies occurred within four months in the same

Maine

robbed on January 31,

Northern Bank

BACKGROUND1
BACKGROUND

coast.

The Fleet

Bank in

1994, and on March 4 two

in Gray and the

banks, the Casco

Key Bank in Windham,

within twenty minutes of each other.

Westbrook was

were robbed

On May 5, a jewelry

store

in South Portland was robbed.

in

each, the

robbers were

stolen cars.

They netted

The robberies were similar in that

masked,

brandished guns,

and drove

approximately $64,000 in cash from the

banks and $109,000 worth of diamonds from the jewelry store.

robbers

bank

activities, guns,

and general appearance were

employees, customers, and

passersby, and were

The

noted by

recorded by

bank surveillance cameras.

On July 2, 1994, the Windham (Maine)

call reporting a

domestic disturbance in the

police received a

upstairs apartment

____________________

1
The

Bartelho
facts

discussion

does not challenge the sufficiency

are

presented

of

the issues

either party.

only
raised

as

of the evidence.

background
on appeal,

for
without

United States v. Morla-Trinidad,

______________
______________

(1st Cir. 1996).

-2-

subsequent

favor to

100 F.3d

1, 2

of

a two-unit

upstairs

residence.

tenants

were

The

reported

caller lived

to

be

Patricia

boyfriend, "Tommy," and her two young children.

a loaded semiautomatic rifle on

out for

"Tommy," Bartelho

downstairs.

Harris,

her

The police found

the porch, and, when they called

emerged from hiding.

The

rifle was

similar to one described by witnesses as having been used by

bank robbers.

The

the

Bartelho was arrested, on assault charges, and was

held in the Cumberland County jail until he made bail.

Agents of

then sought and

for

the Federal Bureau of

Investigation ("FBI")

obtained a warrant to

search Harris's apartment

evidence connected to the January

and March bank robberies.

During

their

ammunition,

search on

a stock

July

and case

related to the bank robberies.

7,

agents

for a

found a

rifle, and

quantity

of

other evidence

The downstairs neighbor gave the

agents a .22 caliber revolver and ammunition that she said Harris

had given to

her.

robberies issued

A complaint

on

July 8,

charging Bartelho with the

1994,

but on

October

12 it

bank

was

dismissed without prejudice on the government's motion.2

Bartelho was arrested

imprisoned

in Rhode

Island.

on other charges in

His

cellmate told

Bartelho bragged about his proficiency

October and

the FBI

that

with guns, as well as his

____________________

In a separate indictment,

felon

Bartelho was charged

in possession of a firearm.

Before trial on that charge,

Bartelho moved to suppress

evidence taken by the

in

search, and by the

the warrantless July 2

search.

The

district judge

denied his

convicted and on May 26, 1995, he

prison.

Windham police

FBI in the July 7

motion.

Bartelho was

was sentenced to 120 months in

His conviction was affirmed on appeal.

Bartelho, 71 F.3d 436 (1st Cir. 1995).

________

-3-

with being a

United States v.
_____________

involvement in the

at

robberies.

Another inmate

who knew Bartelho

the Windham (Maine) Correctional Facility, where Bartelho was

imprisoned on gun

had admitted

possession charges, told the FBI that Bartelho

his part in

William Yates,

the bank and jewelry

who was in

store robberies.

prison with Bartelho at

the Kennebec

(Maine) County Jail in March of 1995, also reported that Bartelho

made statements about

one of

his participation in the robberies.

Bartelho's accomplices,

arrested for his

Gerald Van

Bever, who

part in the robberies, also

And,

had been

made statements to

the FBI implicating Bartelho.

On

May 16,

indictment against

1995,

a federal

Bartelho charging

bank robbery in violation of 18

grand

jury returned

an

him with

three counts

of

U.S.C.A.

2113, three counts of

using

firearms

18 U.S.C.A.

during

924,

and

crimes

one count

interstate commerce by robbery in

U.S

of

violence

of

in

unlawful

violation

of

obstruction of

violation of the Hobbs Act, 18