US v. Merlino, No. 02-1712
In a prosecution of a defendant for violating the Hobbs Act and for carrying firearms in relation to a crime of violence after the FBI foiled a planned robbery of the Loomis Fargo armored car facility, district court's judgment is affirmed in part, reversed in part, and remanded where: 1) district court's determination that defendant made the decision not to testify was not clearly erroneous; 2) given the significant downward adjustments, coupled with its refusal to depart further despite its authority to do so, defendant failed to demonstrate a reasonable probability that the district court would give him a lesser sentence; 3) district court's grant of a judgment of acquittal for carrying an explosive grenade is reversed as co-defendants' testimony was sufficient to establish that it was reasonably foreseeable to defendant that one of his co-conspirators would be carrying a hand grenade; and 4) district court abused its discretion in granting defendant's motion for a new trial on the explosive grenade conviction.
Appeal from the United States District Court for the District of Massachusetts
Decided January 15, 2010
Opinion: Hansen, Circuit Judge
For Appellant: Judith H. Mizner
For Appellee: John-Alex Romano, Michael J. Sullivan, United States Attorney