The Ho norable Pasco M. Bowman became Chief Judge of the United State s 1 Court of Appeals for the Eighth Circuit on April 18, 1998.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-2646

_____________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. Fernando Bartolotta, * * Appellant. *

_____________ Submitted: December 9, 1997 Filed: August 18, 1998

_____________ Before BOWMAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges. 1

_____________ FLOYD R. GIBSON, Circuit Judge. On Ma rch 21, 1997, a jury convicted Fernando Bartolotta of interfering with
commerce by threats of violence, see 18 U.S.C. § 1951 (1994), transporting stole n property across state lines, see 18 U.S.C. § 2314, and bank robbery, see 18 U.S.C. § 2113(a). The district court sentenced Bartolotta to a 220-month term of imprisonment.
I. BACKGROUND-2-

On January 12, 1992, Bartolotta, along with several other men, burglarized a homein West Frankfort, Illinois. The men took $8,000 in cash, twelve gold coins, a .38 revolver, a gold necklace, and a Mickey Mouse watch from a safe in the basement of the home. On January 21, 1992, Bartolotta, Thomas Consiglio, and TimothyHinton robbed the First Bank in Creve Coeur, Missouri. Consiglio approached the drive-throug h window in his car, while Bartolotta and Hinton observed from a distance. Consiglio gave the bank teller, Erin Miller, a note which stated that he had a bomb and Mille r would die if she did not give him all the money in her drawer. Miller gave Consiglio approximately $6000 in cash, which Consiglio shared with Bartolotta and Hinton. Prior to the robbery, Miller provided Hinton with information about the bank an d had initially stated that she would like to be involved in the robbery. However, she l ater told Hinton that she did not wish to be involved and that she would turn the others in if the y continued with the plan. Finally, on March 22, 1992, Bartolotta, Hinton, and two other men attempted to rob an armor ed car courier who was scheduled to collect money from a Schnuck' s supermarket. During the attempted robbery, Hinton sprayed the armored car courier wit h chemical mace. One of Bartolotta's other accomplices, Robert Trask, spraye d mace in the face of Schnuck's employee, Barbara Kettler.
On March 21, 19 97, Bartolotta was convicted of interfering with commerce by threats of violence, see 18 U.S.C. § 1951, transporting stolen property across stat e lines, see 18 U .S.C. § 2314, and bank robbery, see 18 U.S.C. § 2113(a). The district court determined that Bartolotta's base offense level was twenty. The court increased Barto lotta's offense level for several reasons, including use of a dangerous weapo n during an offense in which serious bodily injury occurred. The court also found that Bartolotta had a criminal history category of six. Bartolot ta received a 220-month term of imprisonment.The HONORABLE E. RICHARD WEBBER, United States District Judge for 2 the Eastern District of Missouri. -3- Bar tolotta raises several issues on appeal: (1) he argues that the United States Attor ney engaged in prosecutorial misconduct; (2) he claims that the evidence wa s in sufficient to support his conviction; and (3) he contends that the district court erred in calculating his sentence. Because we conclude that the district court did not err, we

2 affirm Bartolotta's conviction and sentence.
II. DISCUSSION
A. Prosecutorial Misconduct Bartolotta argues that the government engaged in prosecutorial misconduct . "We evaluate claims of prosecutorial misconduct under a two-part test. First, we as k whether the prosecutor's comments were in fact improper, and s econd, if they were, we look to whether the remarks prejudiced the defendant's right to a fair trial." Unite d States v. Warfield , 97 F.3d 1014, 1028 (8th Cir. 1996), cert. denied , 117 S. Ct. 1119 (1997). We review the district court's refusal to grant a mistrial based on prosecutorial misconduct for an abuse of discretion. See id.
Bartolotta claims that the government committed prosecutorial misconduc t during its cross-examination of Bartolotta's brother, Leo, who provided Bartolotta' s primary alibi testimony for the January 12, 1992, b urglary of the West Frankfort home. January 12, 1992, fell on a Sunday, and Leo testified that Bartolotta always attended fa mily dinners on Sundays. The government attempted to discredit this testimony by asking Leo whether Bartolotta had attended any family dinners in 1994. Th e government

knew that Bartolotta could not have attended the family dinners in 199 4 because he was in prison at the t ime. Before allowing Leo to answer the question, the government therefore suggested to Bartolotta's attorney that he caution Leo not to-4-

reveal that Bartolotta missed the dinners due to his imp risonment. Bartolotta's attorney cautioned Leo, and Leo did not reveal Bartolotta's 1994 imprisonment.
Bartol ottaalso contends that, during its closing argument, the governmen t improperly suggested that Leo must have been lying ab out Bartolotta's alibi because he failed to inform the authorities about t he alibi when he first learned that Bartolotta was suspected of committing t

he crime. The government, however, claims that it made no such suggestion.
It is doubtful that the government committed any improper actions in its crossexamination of Leo or in its closing argument. However, even were we to assume that the government's actions were improper, we would still conclude that the government didnot engage in prosecutorial misconduct because the prosecutor's remarks did not prejud ice Bartolotta's right to a fair trial. See id. at 1029. The government severel y discredited Bartolotta's claimed alibi during its cross-examinati on of Leo. A video-tape of Leo's daughter's January 12 birthday party clearly esta blished that Leo lied about the timing of the day's events such that Bartolotta could have attended the party and still pa rticipatedin the West Frankfort burglary. Therefore, we conclude that even if th e prosecutor's cross-examination of Leo or comments during closing argument wer e improper, Bartolotta's right to a fair trial was not prejudiced as a result.
Bartolotta further argues that the government improperly questioned Timoth y Hintonabout his fear of Bartolotta during its redirect questioning. We conclude that th e prosecutor was merely clarifying an issue that was opened up by the defense o n cross-examination. See United States v . Braidlow , 806 F.2d 781, 783 (8th Cir. 1986). Therefore, the government did not commit prosecutorial misconduct during its redirect examination of Hinton. Finally, B artolotta claims that the district court should have granted a mistria l because the cumulative effect of the g overnment's errors prevented him from receiving-5-

a fair trial. We disagree. The evidence against Bartolotta on all counts was quit e strong, and there is nothing which would compe l us to conclude that he did not receive a fair trial. The district court did not abuse its discretion in failing to find prosecutorial misconduct.
B. Sufficiency of the Evidence
Bartolot taargues that the government did not present evidence sufficient t o sustain his conviction for bank robbery under 18 U.S.C § 2113(a), "which criminalizes the taking o f money or property from a bank, credit union, or savings and loan, either by force and violence, or by intimidation." United States v. Smith , 973 F.2d 603, 604 ( 8 th Cir. 1992). "Intimidation is conduct reasonably calculated to put another in fear

. . .[, and ] the acts of the defendant must constitute an intimidation to an ordinary , reasonable person." Id. (citation and quot ations omitted). Bartolotta contends that the governm ent

did not establish that Consiglio took the money from First Bank b y intimidation because th e bank teller, Erin Miller, knew about the planned robbery and therefore could not have been intimidated by Consiglio's threat to bomb the bank.
When considering the sufficiency of the evidence, we consider the evidence in the light most favorable to the guilty verdict. See United States v. Wade , 111 F.3d 602, 604 (8th Cir. 1997). We must give the government "the benefit of all reasonabl e inferences th at might be drawn from the evidence . . . [and w]e will reverse a conviction for insufficient eviden ce and order the entry of a judgment of acquittal only if no construction of the evide nce exists to support the jury's verdict," United States v. Da rden , 70 F.3d 1507, 1517 (8th Cir. 1995) (quotation and citation omitted), cert
. denied , 116 S. Ct. 1449 (1996). After considering the evidence in this light, w e conclude that the government presented evidence sufficient to support Bartolotta' s conviction under section 2113(a).B artolotta argues that this case is similar to United States v. Harris , 44 F.3 d 3 1206, 1214- 16 (3rd Cir.), cert. denied , 514 U.S. 1088 (1995), in which the Thir d -6- While Miller initially agreed to participate in the bank robbery, she eventually toldHinton that she did not want to be involved, and would inform the authorities of the responsible parties if the crime occurred. Miller testified at trial that she was not certain that Consiglio was a part of th e scheme Hinton had informed her about. Miller reasonably co uld have feared that Consiglio was not involved in the scheme of which Hinton had informed her and was thus willing to set off a bomb if she did not give him the money. We therefore conclude that the evidence was sufficient tosupport the jury's verdict.
C. Sentencing Issues

Barto lotta

raises two sentencing issues on appeal. First, he claims that th e district court erred in concluding that mace is a dangerous weapon under United States Sen tencing Commission, Guidelines Manual ("U.S.S.G.") §2B3.1(b)(2)(D) (Nov

. 1997). A dangerous weapon is "an instrument capable of inflicting death or seriou s bodily inj ury." U.S.S.G. §1B1.1, comment (n. 1(d)). A serious bodily injury is on e "involving extreme physical pain or the protracted impairment of a function of a bodily memb er, organ, or mental faculty; or requiring medical intervention such as surgery , hos pitalization, or physical rehabilitation." Id. , comment (n.1(j)). After a thoroug h review of the record, we conclude that serious bodily injury did in fact result from the use of the mace. Barbara Kettler, the Schnuck's employee who was sprayed in the face with mace during the attempted robbery of the armored car, testified that she developed chemical pneumonia as a result of the incident, and that she missed almost two weeks of work. Kettler had to take daily steroid shots for over four months and steroid pills foro ne year to cleanse the mace from her system. Thus, we conclude that th e government's eviden ce sufficiently established that the mace was used as a dangerous weapon in this case. 3Circuit determined that the government had n ot established that mace was a dangerous

weapon. However, unlike Bartolotta's cas e, the victims of the mace spraying in Harris did not testify about hav ing any significant effects from the mace. See id. at 1216. In Bartolotta's case, Kettler's testim ony established that a serious bodily injury did in fact result from the use of the mace. -7- Bartolotta also claims that the district court erred in assessing his cr iminal history category because the district court imp roperly counted his prior sentences as unrelated sentences under U.S.S.G. §4A1.2(a)(2). "We review for clear error a district court's deter minationof whether the government has proven that a defendant's prior crime s were unrel ated." United States v. Maza , 93 F.3d 1390, 1400 (8th Cir. 1996), cert
. denied , 117 S. Ct. 1008 (1997). "[P]rior sentences are considered related if the y resulted from offenses that (1) occurred on the same occasion, (2) were part of a single
commonscheme or plan, or (3) were consolidated for trial or sentencing." U.S.S.G. §4A1.2 , comment (n. 3). Bartolotta's prior offenses did not occur on the sam e occasi on, nor were they part of a single plan. Furthermore, the crimes were no t con solidated"because no formal order of consolidation was issued and the case s proc eeded to sentencing under separate docket numbers." Maza , 93 F.3d at 1400

. Therefore , the district court did not err in determining Bartolotta's criminal history category.
III. CONCLUSION
For the reasons set forth in this opinion, we affirm the judgment of the district court.
Affirmed.-8-

A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.