UNITED STATES OF AMERICA, Appellee v. CARL ANGELO DELUNA,
Appellant; UNITED STATES OF AMERICA, Appellee v. CARL JAMES CIVELLA, Appellant;
UNITED STATES OF AMERICA, Appellee v. CHARLES DAVID MORETINA, Appellant; UNITED
STATES OF AMERICA, Appellee v. CARL WESLEY THOMAS, Appellant; UNITED STATES OF
AMERICA, Appellee v. ANTHONY CHIAVOLA, SR., Appellant; UNITED STATES OF AMERICA,
Appellee v. CARL JAMES CIVELLA, Appellant
Nos. 83-2408, 83-2409, 83-2410, 83-2411, 83-2462, 84-1047
763 F.2d 897; 1985 U.S. App. LEXIS 30263; 18 Fed. R. Evid.
Serv. (Callaghan) 465
COUNSEL:
Edward D. Holmes, Justice Department, Kansas City, Missouri, for Appellee.
Ephraim Margolin, San Francisco, California, Melvyn L. Segal, Chicago,
Illinois, and Oscar B. Goodman, Las Vegas, Nevada, for Appellants.
JUDGES: McMillian, Circuit
Judge, Floyd R. Gibson, Senior Circuit Judge, and Arnold, Circuit Judge.
OPINIONBY: McMILLIAN
OPINION: [*903] McMILLIAN, Circuit Judge.
Carl Wesley
Thomas, Carl Angelo DeLuna, Carl James Civella, Charles David Moretina, and
Anthony Chiavola, Sr., appeal from a final judgment entered in the District
Court n1 for the Western District of Missouri upon a jury verdict finding them
guilty of knowingly transporting stolen money in interstate commerce, travelling
in and utilizing the facilities of interstate commerce with the intention of
establishing and managing an unlawful interest in a Nevada gaming establishment,
and conspiring with others to accomplish these ends in violation of
18
U.S.C. §§ 2, 371, 1952, 2314 (1982). For reversal appellants argue that the
district court erred in (1) refusing to grant their motions for
[**2] judgment of acquittal (Travel Act violations), (2)
upholding the validity of a search warrant issued by an allegedly partial
magistrate, (3) admitting co -conspirators written statements, (4) admitting
evidence in violation of appellants' confrontation rights, (5) permitting
government witness Agosto to testify in separate installments, (6) excluding
expert testimony, (7) admitting evidence of other crimes and bad acts, (8)
giving a Pinkerton instruction to the jury, (9) refusing to grant their motions
for dismissal of the conspiracy count on the grounds of prejudicial variance
between the indictment and the government's proof, (10) denying their motions
for severance, (11) refusing to dismiss on the grounds of statutory and
constitutional speedy trial violations, and (12) refusing to grant their motions
for acquittal because of insufficient evidence. Not all appellants join in each
allegation of error. For the reasons discussed below, we affirm the judgments of
the district court.
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n1 The Honorable Joseph E. Stevens,
Jr., United States District Judge for the Eastern and Western Districts of
Missouri.
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[**3] On November
5, 1981, eleven defendants were charged in a seventeen-count indictment with
conspiracy and substantive offenses in violation of
18
U.S.C. §§ 2, 371, 1952, 2314. Charges against six of the eleven defendants
were dismissed or disposed of in proceedings separate from the trial where the
five appellants in this case were convicted. Defendant Nick Civella died before
trial. Defendants Donald Joe Shepard, Billy Clinton Caldwell and Joseph Vincent
Agosto entered guilty pleas before trial. (Agosto, now deceased, was the
government's principal witness against the other defendants.) Defendant Carl
Caruso participated in the trial for a short time and then entered a guilty
plea. Defendant Peter Joseph Tamburello was acquitted.
[*904] Appellant Thomas was convicted on one count of
conspiracy, six counts of interstate transportation of stolen property, and
three counts of violation of the Travel Act. He was sentenced to a total of
fifteen years in prison.
Appellant DeLuna was convicted of one count of
conspiracy, seven counts of interstate transportation of stolen property, and
five counts of violation of the Travel Act. He was sentenced to a total of
thirty years in prison
[**4] and probation for
five years following the imprisonment.
Appellant Civella was convicted
of one count of conspiracy, six counts of transportation of stolen property, and
two counts of violation of the Travel Act. He was sentenced to a total of thirty
years in prison.
Appellant Moretina was convicted of one count of
conspiracy and three counts of interstate transportation of stolen property. He
was sentenced to a total of twenty years in prison and five years probation
following the imprisonment.
Appellant Chiavola was convicted of one
count of conspiracy and one count of interstate transportation of stolen money.
He was sentenced to a total of fifteen years in prison.
All appellants
were assessed heavy fines and ordered to pay the costs of the prosecution and to
make restitution to the Tropicana Hotel and Country Club.
During the
period covered by the indictment (January 1, 1975, to April 1, 1979), the state
of Nevada required that persons conducting gaming operations be licensed in
accordance with state law and regulations. See Appendix. Any person who owned,
managed, or operated a gambling casino, or received directly or indirectly a
share of the moneys played therein,
[**5] had to
make his identity known to Nevada gaming authorities and had to be licensed. Key
employees, that is, persons who had significant influence over casino
management, were required to be licensed. Certain employees, including managers,
were required to obtain work permits. Persons who had been convicted of
felonies, had poor reputations, or were excluded by law from casinos, and others
known to associate with such persons were not likely to be licensed. Donald
Shepard and Billy Caldwell were licensed with respect to the Tropicana casino in
Las Vegas. Carl Thomas was licensed with respect to his own casinos, Bingo
Palace and Slots-of-Fun. None of the other defendants charged in the indictment
was licensed or had been issued a work permit.
The government charged
and sought to prove that the defendants conspired to gain control over the
casino operations at the Tropicana Hotel and Country Club in Las Vegas, Nevada,
in order to "skim" money from the casino by removing cash before it was counted
or reported and to transport this skimmed money in interstate commerce. The
evidence consisted primarily of the testimony of co -conspirator Joseph Agosto,
tape recordings, notes made by DeLuna
[**6] and
other defendants, surveillance testimony by FBI agents, testimony of Tropicana
officials, and stipulations. The events described below are based primarily on
Agosto's testimony.
Agosto met with Carl DeLuna and Nick and Carl
Civella in January 1975 to discuss means by which Agosto could infiltrate and
obtain control of the Tropicana so that Agosto could eventually skim money from
the casino. DeLuna and the Civellas told Agosto that they would see to it that a
Teamsters loan to Tropicana's part-owner Deil Gustafson would be disapproved in
order to facilitate Agosto's takeover. The Tropicana at the time was in serious
financial trouble. Agosto purchased the Folies Bergere, the successful floor
show at the Tropicana, and used this as a base to acquire influence over casino
operations.
Agosto, a convicted felon, knew he could never be licensed
by the Nevada gaming authorities. The Civellas were in the "Black Book" of
persons excluded from Nevada casinos and therefore knew that they could not be
licensed. Because Agosto and the Civellas could not be licensed, they agreed to
use code names to "camouflage"
[*905] their
true identities and connections with the Tropicana.
Nick
[**7] Civella instructed Agosto to keep DeLuna informed of
his progress in infiltrating the casino. Agosto began to acquire great influence
over the daily operations of the hotel and casino. Agosto reported this to
DeLuna, who in turn informed the Civellas. Agosto frequently travelled from Las
Vegas to Kansas City to meet with DeLuna, Moretina and the Civellas, who
occasionally travelled to Las Vegas to discuss Agosto's progress.
At
Agosto's request in 1975, Nick Civella was able to rid the Tropicana of
competing "hidden" interests. Agosto, DeLuna, and the Civellas then decided to
use Carl Thomas to take charge of the skimming at the Tropicana.
Later
in 1975, Mitzi Briggs became part-owner of the Tropicana and Agosto's
infiltration and exercise of authority ceased temporarily because of Briggs'
distrust of Agosto. By 1977, however, Agosto was able to gain Briggs' confidence
and by 1978, Agosto was effectively running the hotel and casino. Briggs never
knew that any skimming was taking place.
Upon Carl Thomas'
recommendation, Agosto hired Shepard as casino manager. Later Agosto hired
Caldwell as assistant casino manager. Shepard and Caldwell were to do the actual
skimming under Thomas'
[**8] supervision.
In March 1978, Agosto and Thomas met or spoke with Nick Civella in Los
Angeles and Civella ordered them to start skimming. In April 1978, 1,500 was
skimmed by Shepard and transported to Kansas City by DeLuna.
In May
1978, Shepard hired Jay Gould as cashier to skim cash from the cashier's cage of
the casino and to falsify fill slips to document the "loss" of cash. Signatures
and initials of other casino employees were forged by Caldwell. Caldwell
supervised Gould, who passed the skimmed money to Shepard. This money was
skimmed before the casino owner or the Nevada gaming authorities knew of its
existence.
From June through October 1978, Shepard, Caldwell and Gould
skimmed over $40,000 a month and gave it to Agosto. Agosto then gave it to Carl
Caruso, who transported the money to Kansas City and delivered it to Moretina.
Caruso made at least eighteen trips between Las Vegas and Kansas City. Moretina
gave Caruso $ 1,000 after each delivery. The remaining money was distributed to
Joseph Aiuppa and Jack Cerone in Chicago. Anthony Chiavola, Sr., the nephew of
the Civellas and a Chicago police officer, aided DeLuna and Nick Civella in the
distribution of Aiuppa's and Cerone's
[**9]
shares. Moretina acted as DeLuna's assistant in dealing with Agosto and in
receiving the skimmed money from Caruso.
By late September 1978, Agosto
and the Civellas were concerned that Shepard or his subordinates might be doing
"unauthorized" skimming on their own, thereby reducing their profits. At
Agosto's suggestion, a "moratorium" on skimming was ordered by Nick Civella in
the months of November and December 1978, so that Carl Thomas could do a study
of the Tropicana to determine if unauthorized skimming was occurring. In these
same months, Agosto sent $50,000 and $60,000 of his own money to the Civellas
because they still demanded money. Agosto was later reimbursed for $30,000 of
this amount by Shepard with skimmed Tropicana money.
On November 26,
1978, Agosto and Thomas flew to Kansas City to meet with the Civellas and DeLuna
to discuss lifting the moratorium and more efficient ways of skimming. Skimming
resumed in January 1979 and $80,000 in skimmed money was transported to Kansas
City on February 14, 1979. Several defendants' homes were searched on that date
by FBI agents pursuant to search warrants. The FBI seized $80,000 from Caruso.
Notes (referred to during the trial
[**10] as a
"dairy" [sic]) and other items were seized from DeLuna and Tamburello.
From approximately June 1978 until March 1979, many telephones and
meeting places of the defendants were subject to court-authorized electronic
surveillance.
[*906] Immediately following the
searches, Agosto, the other defendants, Aiuppa, and Cerone engaged in a series
of meetings and telephone conversations to assess the damage done by the
searches. Evidence about these meetings and telephone conversations obtained by
electronic and visual surveillance and from government witness Agosto was
introduced at the trial.
Travel Act Violations Appellants
argue that the district court erred in refusing to grant their motions for
judgment of acquittal on the ground that the government failed to prove an
essential element of the conspiracy charged in count one of the indictment and
of the substantive Travel Act violations,
18
U.S.C. § 1952. Appellants argue that the government failed to prove any
criminal violations of Nevada gaming law. We disagree.
Count one of the
indictment charged appellants and others with conspiring in violation of
18
U.S.C. § 371 from about January 1, 1975, to about April
[**11] 1, 1979, to travel in interstate commerce and to
use facilities in interstate commerce
with the intent to promote, manage, establish, carry on and
facilitate the promotion, management, establishment and carrying on of an
unlawful activity, namely: the management, operation, conducting, maintaining
and carrying on of gaming operations of a licensed gaming establishment in Las
Vegas, Nevada, that is, the Tropicana Hotel and Country Club, and the indirect
receipt of moneys played therein, by persons who were not licensed or found
suitable for licensing by, and whose interests in said gaming establishment
had been concealed from, agencies of the State of Nevada, in violation of the
Nevada Gaming Control Act, including Sections 463.130, 463.160, 463.165,
463.170, 463.200, 463.335, 463.339, 463.360 and 463.530 of the Nevada Revised
Statutes, and regulations of the Nevada Gaming Commission promulgated
thereunder, including Regulations 3.080, 3.100, 3.110, 8.010 and 15.1594-6,
and to thereafter perform and attempt to perform acts to promote, manage,
establish, carry on and facilitate the promotion, management, establishment,
and carrying on of said unlawful activity in violation of [**12] Title 18,
United States Code, Section 1952.
The indictment
also alleged appellants and others conspired to "transport in interstate
commerce moneys having a value in excess of $5,000, knowing the same to have
been stolen, converted, and taken by fraud, in violation of Title
18,
United States Code, Section 2314."
Appellants argue that the
government proved only that an unlicensed show producer had assumed de facto
control of some operations of the Tropicana Hotel through which he ultimately
brought employees into the hotel to steal casino revenues. Appellants argue that
theft is a crime in Nevada but not under the Nevada gaming laws. Appellants also
argue that the operation or control of a gambling game without a license is not
a criminal offense under Nevada law and that such conduct in violation of Nevada
gaming regulations only cannot support a Travel Act violation.
Similar
arguments involving the Nevada gaming laws and federal prosecution for
violations of the Travel Act were rejected by the Sixth Circuit in a
comprehensive opinion in
United
States v. Goldfarb, 643 F.2d 422, 426-32 (6th Cir.),
cert.
denied,
454
U.S. 827, 70 L. Ed. 2d 101, 102 S. Ct. 117, 102 [**13] S. Ct. 118
(1981). The Travel Act,
18
U.S.C. § 1952, prohibits travel in interstate commerce or the use of
facilities of interstate commerce to "promote, manage, establish, carry on, or
facilitate the promotion, management, establishment, or carrying on, of any
unlawful activity," which is further defined as "any business enterprise
involving gambling . . . in violation of the laws of the State in which they are
committed." "It is the violation of federal law which is the gravamen of a
Travel Act offense."
United
States v. Goldfarb, 643 F.2d at 426 (citations omitted). As noted in
United
States v. Goldfarb, 643 F.2d at 426, which involved conduct similar to
that alleged in the present
[*907] case, "it is
abundantly clear that as a predicate to a Travel Act conviction, absent a
distinct violation of a law of the United States, the defendants must have
engaged in some form of unlawful activity prohibited by the law of the State of
Nevada."
We agree with the Sixth Circuit that "a violation of a Nevada
Gaming Commission regulation could [not in and of itself] form the predicate
state law violation required for a federal prosecution under the Travel Act."
Id.
at 429; [**14] cf. United
States v. Gordon, 464 F.2d 357 (9th Cir. 1972) (violation of nonpenal
regulations of state gaming commission insufficient for engaging in "illegal
gambling business" in violation of
18
U.S.C. § 1855). However, according to the government's indictment and the
district court's instructions, the unlawful activity under the Travel Act in the
present case was not based upon violation of state regulations alone but also
upon violation of the related Nevada
statutes. See United
States v. Goldfarb, 643 F.2d at 430. Appellants also argue that
the unlawful activity with which they are accused is not a crime under Nevada
state law. The government argues that appellants violated Nevada state law by
conducting gambling operations without the necessary licenses, Nev. Rev. Stat. §
463.160 (1)(a), and by indirectly receiving gambling moneys without the
necessary licenses,
id. § 463.160 (1)(c).
Although there is
no specific penalty for violation of these provisions, the "catch-all" section,
id. § 463.360, which makes such a violation a gross misdemeanor, and
thus a crime, would apply.
See United
States v. Goldfarb, 643 F.2d at 431; United
States v. Polizzi, [**15] 500 F.2d 856, 873 & n. 17 (9th
Cir. 1974) ("Once a violation of a state criminal
statute has been proved it is irrelevant whether that violation is classified as
a felony or misdemeanor."),
cert. denied,
419
U.S. 1120 (1975). The cited Nevada statutes are set forth in an appendix.
Validity of Search Warrant Appellants argue that the search
of the DeLuna residence authorized by the magistrate was invalid because the
magistrate was not a neutral and detached judicial officer who could objectively
assess whether probable cause existed. Specifically, appellants argue that the
magistrate, while an Assistant United States Attorney from 1961 to 1971,
received extrajudicial information about the Civellas and their associates.
Appellants argue that during this ten-year period, Carl DeLuna and the Civellas
were the subject of an investigation which included electronic surveillance.
Further, appellants argue that, during the period the magistrate served as an
Assistant United States Attorney, the magistrate (1) was privy to investigative
reports which suggested that Carl DeLuna was engaged in anti-social behavior,
(2) participated in and supervised the writing and presentation to
[**16] the court of applications for search warrants
relating to Carl DeLuna, (3) presented evidence before the Grand Jury, and (4)
prosecuted appellant Carl Civella. Lastly, appellants argue that the magistrate
had a long-standing working relationship with the affiant, FBI Agent Ousley,
which added to the appearance of impropriety.
Every magistrate,
judge and justice must "disqualify himself [or herself] in any proceeding in
which his [or her] impartiality might reasonably be questioned."
Hale
v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1329 (8th Cir.
1985); see Hall
v. SBA, 695 F.2d 175, 178 (5th Cir. 1983); 28
U.S.C. § 455(a). Disqualification is appropriate only if the facts provide
what an objective, knowledgeable member of the public would find to be a
reasonable basis for doubting the judge's impartiality.
In
re United States, 666 F.2d 690, 695 (1st Cir. 1981); United
States v. Poludniak, 657 F.2d 948, 954 (8th Cir. 1981), cert.
denied,
455
U.S. 940, 71 L. Ed. 2d 650, 102 S. Ct. 1431 (1982). A magistrate or
judge must also disqualify himself or herself if "he [or she] has served in
governmental employment and in such capacity participated as counsel
[**17] . . . concerning the proceeding."
28
U.S.C. [*908] § 455(b)(3). If an indictment
or investigation leading directly to the indictment began after a former
prosecutor took office as a judge, he or she is not considered to have been "of
counsel" and is not required by § 455 to disqualify himself or herself.
Barry
v. United States, 528 F.2d 1094, 1098-99 (7th Cir.),
cert.
denied,
429
U.S. 826, 97 S. Ct. 81, 50 L. Ed. 2d 88 (1976). We hold that the
magistrate was not required by § 455 to disqualify himself. The magistrate was
not government counsel in this case. Appellants do not argue that the
investigation which led to the present prosecution was related to the
investigation and prosecution handled by the magistrate when he was an Assistant
United States Attorney or that the magistrate was still in the United States
Attorney's office when the present investigation began. Neither are there facts
alleged which would cause a reasonable person, knowledgeable of all the facts,
to believe that the magistrate was unable to impartially assess the existence of
probable cause.
Knowledge of and
from prior investigation does not necessarily require recusal.
Appellants next argue
[**18] that the
search warrant was a "general warrant" and was invalid because it did not state
with specificity the items to be seized. We do not agree.
Where the
precise identity of goods cannot be ascertained at the time the warrant is
issued, naming only the generic class of items will suffice because less
particularity can be reasonably expected than for goods (such as those stolen)
whose exact identity is already known at the time of
issuance.
United
States v. Johnson, 541 F.2d 1311, 1314 (8th Cir. 1976) (citations
omitted).
See also Andresen
v. Maryland, 427 U.S. 463, 475-82, 49 L. Ed. 2d 627, 96 S. Ct. 2737
(1976). This lack of specificity is often encountered and has been expressly
approved.
United
States v. Coppage, 635 F.2d 683, 687 (8th Cir. 1980); United
States v. Williams, 633 F.2d 742, 745 n.5 (8th Cir. 1980); United
States v. Dennis, 625 F.2d 782, 792 (8th Cir. 1980); In
re Search Warrant Dated July 4, 1977, 187 U.S. App. D.C. 297, 572 F.2d 321,
328 n.4 (D.C. Cir. 1977), cert. denied,
435
U.S. 925, 98 S. Ct. 1491, 55 L. Ed. 2d 519 (1978). The pertinent part of the
warrant in the present case authorized seizure of certain generic
[**19] classes of items and "other means of transferring,
distributing and concealing casino proceeds" in violation of the named statutes.
The description of the items to be seized by generic classes was reasonably
specific under the circumstances of the present case.
The government
argues that appellants Civella, Moretina, and Chiavola lacked standing to object
to the validity of the search warrant and the seizure of items pursuant to the
search warrant. We need not decide this issue because DeLuna had standing to
challenge the search of his house.
Admissibility of Writings Seized from
Co-conspirators Thomas argues that the notes or writings seized
pursuant to a search warrant from the homes of DeLuna and Tamburello were
improperly admitted under the co -conspirator statement exception to the hearsay
rules. Thomas argues that the independent evidence presented by the government
was insufficient to prove that the statements were made "in furtherance of" the
charged conspiracy.
A statement,
including a writing, is not hearsay under Fed. R. Evid. 801(d)(2)(E) if it is "a
statement by a co -conspirator of a party during the course and in furtherance
of the conspiracy." In
United
[**20] States v. Bell, 573 F.2d 1040, 1044 (8th Cir.
1978), this court stated that
before an
out-of-court declaration of a co -conspirator may be admitted against a
defendant, the government must prove that (1) a conspiracy existed, (2) the
defendant and the declarant were members of the conspiracy, and (3) the
statements were made during the course and in furtherance of the conspiracy.
The district
court determines the admissibility of the co -conspirators statement under Fed.
R. Evid. 801(d) (2) (E) and must be satisfied that "it is more likely
[*909] than not that the statement was made during the
course and in furtherance of an illegal association to which the declarant and
the defendant were parties."
DeMier
v. United States, 616 F.2d 366, 371 (8th Cir. 1980), citing United
States v. Bell, 573 F.2d at 1044. In order to be made in furtherance of
the conspiracy, a statement "must somehow advance the objectives of the
conspiracy, not merely inform the listener [or reader] of the declarant's
activities."
United
States v. Snider, 720 F.2d 985, 992 (8th Cir. 1983) (citations
omitted),
cert. denied,
465
U.S. 1107, 80 L.Ed 2d 142, 104 S. Ct. 1613 (1984). In the present
[**21] case the district court conditionally
admitted several cryptic writings containing code names, telephone numbers, and
references to disbursements of moneys. At the close of the government's
evidence, the district court made an explicit finding in the record, as required
by
United States v. Bell, that the government proved by independent
evidence that the proffered writings were more likely than not made during the
course and in furtherance of a conspiracy of which Thomas and other appellants
were members.
In
United
States v. Singer, 732 F.2d 631, 636 (8th Cir. 1984) (citations
omitted), this court, in discussing the admissibility of the co -conspirators
statements, stated that
although "the
evidence must be independent,
i.e. exclusive of the challenged
statements, . . . it may be circumstantial . . . . The district court's
determination will not be reversed unless [it is] clearly erroneous." Therefore,
we must decide whether the district court's conclusion that the challenged co
-conspirators statements were made in furtherance of the conspiracy was clearly
erroneous.
Agosto testified at length concerning Thomas' involvement in
the casino skimming conspiracy. Agosto
[**22]
explained that the handwritten cryptic notes referred to activities between
DeLuna and Carl Thomas, such as meetings, telephone conve
