final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Ilona Maxine Holmes, Judge; L.T. Case No.
Rafael Rodriguez of the Law Offices of J. Rafael Rodriguez,
Miami, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for
an appeal from appellant's conviction for premeditated
murder and conspiracy to commit first degree murder. Although
appellant raises many issues, one requires reversal. The
trial court allowed into evidence, over the objection of the
defense, the testimony of a witness at a bond hearing for
appellant, where the witness had died subsequent to the bond
hearing. In his testimony, the witness related statements by
John Gurino which amounted to an admission that Gurino was
the shooter in the murder and that he "got the work from
Moscatiello [appellant]." We conclude that this
statement-that Gurino "got the work from Moscatiello,
" which featured prominently in both the opening and
closing arguments of the State, was inadmissible hearsay.
Because the State has not shown that it was harmless beyond a
reasonable doubt, we must reverse.
February 6, 2001, Gus Boulis, a successful businessman, left
his office in Broward County around 9 p.m. As he was heading
south on Miami Road, a car stopped in front of him. Boulis
stopped his vehicle, and another car pulled in behind Boulis
so that he was boxed in. An innocent bystander was in a third
car that stopped behind the first two cars. A red Jetta
pulled up behind the bystander's car. While they were all
stopped in a row, a black Mustang came from the opposite
direction, and pulled up next to Boulis's vehicle.
Someone in the Mustang fired several shots, killing Boulis.
After the shooting, the bystander noticed that the red Jetta
behind him drove off the road around him, and then took off.
Later, he saw the red Jetta circling the block, perhaps
looking for him. The bystander memorized the partial tag
number of the temporary tag on the Mustang and, when he got
home, called 911. Testimony revealed that both the Mustang
and the Jetta were owned by Anthony "Little Tony"
Ferrari, a co-defendant in this case.
next day Dwayne Nicholson, an employee of Ferrari, called to
report his knowledge about the murder. Eventually, he gave
several statements implicating both Ferrari and Anthony
"Big Tony" Moscatiello (appellant) in the murder.
Thus, from 2001, the authorities knew of evidence connecting
appellant to the murder. It took an additional four years for
them to gather all the evidence and indict him, along with
Ferrari and James Fiorillo, another employee of Ferrari, for
State's theory of the case was that Moscatiello and
Ferrari were hired by Adam Kidan to protect him from Boulis,
from whom Kidan had purchased a business. For reasons
somewhat unclear, Moscatiello determined that Boulis needed
to be killed so that Moscatiello and Ferrari would not lose
the protection payments from Kidan. The complicated story
commences with the sale of the business from Boulis to Kidan.
While there was some documentary evidence supporting meetings
and payments, the direct testimony linking Moscatiello to the
crime all came from witnesses each of whom received
substantial benefits for their testimony.
Prelude to the Murder
victim, Gus Boulis, had become successful as the owner of
Miami Subs sandwich shops before founding SunCruz Casinos, a
fleet of gambling casino boats. Eventually, the Attorney
General's office advised Boulis that he had to sell
SunCruz because he wasn't an American citizen when he
started the business. As a result, Boulis sold the business
to Adam Kidan and Jack Abramoff. Boulis received $23 million
in cash and was supposed to get another $20 million, which he
never received. The business relationship between Boulis and
Kidan soured. Kidan was afraid that Boulis might harm him in
retaliation for lack of payment, so he reached out to his
connections in New York, and asked Moscatiello to assist him.
Kidan wanted the word out that he, Kidan, had
"connections." Moscatiello introduced Kidan to
Ferrari in Miami to provide security or protection. Ferrari
bragged to people that he was John Gotti's nephew and
head of the Gambino family in Florida. For this
protection, Kidan entered into a deal with Moscatiello for
Moscatiello to be a "consultant" supplying
beverages and paper goods for the gambling casino boat.
Through Ferrari's business in Miami, Ferrari would
arrange for Kidan's protection. Kidan paid Moscatiello
monthly for the protection.
November 2000, Moscatiello flew to Miami. Ferrari brought
along Dwayne Nicholson and several other bodyguards as
security to pick up Moscatiello from the airport. Ferrari,
Moscatiello, and Nicholson rode in one vehicle, while the
rest of the security team rode in others. While they were
driving to a hotel, Nicholson testified that Ferrari and
Moscatiello discussed the fact that they did not want to pay
Boulis the extra money he was owed on the sale of Sun Cruz.
Ferrari responded that Nicholson would take care of Boulis.
Moscatiello turned to Nicholson and said, "Now, you know
what he means . . . we need Gus killed. Are you able to do
it?" Nicholson did not say anything, because he thought
he would be killed if he didn't agree. Ferrari had
previously asked him whether he would kill Boulis, and
Nicholson had declined.
next day, Ferrari and Nicholson picked up Moscatiello and
drove to the SunCruz office to show Nicholson the office, the
ships, and the vehicle that Boulis drove. Moscatiello said
that Boulis had to be taken care of prior to an upcoming
court date. After Moscatiello was dropped off, Nicholson
again complained to Ferrari that he wasn't going to kill
Boulis. Ferrari told him just to surveil Boulis, and he would
figure out later what to do.
Kidan became frustrated with his relationship with Ferrari
and his protection service. While Kidan was out of the
country, he terminated his relationship with Ferrari. That
same day, Boulis was killed.
Murder and its Aftermath
Fiorillo was another assistant to Ferrari, who was more like
a son to him. Fiorillo did multiple errands for Ferrari and
other tasks. On the day of the murder, Fiorillo arrived at
Ferrari's home in a black Mustang belonging to Ferrari,
which Fiorillo frequently drove. He then switched vehicles
with Ferrari. Ferrari drove away, and Ferrari's
girlfriend followed in his red Jetta. Fiorillo also had
access to several of Ferrari's phones.
the innocent bystander witnessed the murder, he could not
identify anyone in any of the vehicles. The partial license
number he obtained did match up to the black Mustang. Thus,
no independent witness testified as to who was present at the
scene. However, Fiorillo knew about the murder and what
went to Ferrari's home after the murder. Ferrari gave him
a bag containing a gun, which Fiorillo disposed of. Fiorillo
also drove the Mustang to a repair shop. The next day,
Fiorillo met with Ferrari and Moscatiello at a hotel.
Moscatiello told Fiorillo to drive to New York and to report
the Mustang as stolen, which he did. In New York, Fiorillo
met with Moscatiello. When Moscatiello asked for the details
of the events leading up to the murder and the murder itself,
Moscatiello became very angry. He told Fiorillo to stay in
New York, and Ferrari's girlfriend allowed Fiorillo to
stay with her for a week there, after which he stayed in a
hotel. Fiorillo worked for Moscatiello for a while and then
returned to Florida sometime in April. Ultimately, Fiorillo
was arrested and charged with conspiracy to commit murder for