COUNSEL: Gerald M. Werksman, for Defendants.
Robert J. Erickson, AUSA (Anton Valukas, USA), U.S. Attorney's Office,
for Plaintiff.
JUDGES: Wood, Jr., and Posner, Circuit Judges, and Eschbach,
Senior Circuit Judge.
OPINIONBY: WOOD
OPINION: [*689] WOOD,
JR. Circuit Judge.
Were this attempted murder case not so serious, a recitation of some of
its facts might suggest a Marx Brothers skit instead of a relationship
to organized crime.
On April 11, 1984, defendants Richard Guzzino and Robert Ciarrocchi were
charged with conspiracy to deprive a United States citizen of his right
to provide information and testify as a witness in a judicial
proceeding, in violation of
18 U.S.C. § 241 (1982) (Count I), n1 obstruction of justice, in
violation of
18 U.S.C. § 1503 (1982) (Count II), n2 and use of a firearm in the
commission of a felony, in violation of
18 U.S.C. § 924(c)(1) (1982) (Count III). n3
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1
HN1
18 U.S.C. § 241 (1982) provides:
If two or more persons conspire to injure, oppress, threaten, or
intimidate any citizen in the free exercise or enjoyment of any
right or privilege secured to him by the Constitution or laws of the
United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the
premises of another, with intent to prevent or hinder his free
exercise or enjoyment of any right or privilege so secured --
They shall be fined not more than $10,000 or imprisoned not more
than ten years, or both; and if death results, they shall be subject
to imprisonment for any term of years or for life.
[**2]
n2
HN2
18 U.S.C. § 1503 (1982), with minor amendments since the time of the
alleged offenses, provides:
Whoever corruptly, or by threats or force, or by any threatening
letter or communication, endeavors to influence, intimidate, or
impede any grand or petit juror, or officer in or of any court of
the United States, or officer who may be serving at any examination
or other proceeding before any United States commissioner or other
committing magistrate, in the discharge of his duty, or injures any
such grand or petit juror in his person or property on account of
any verdict or indictment assented to by him, or on account of his
being or having been such juror, or injures any such officer,
commissioner, or other committing magistrate in his person or
property on account of the performance of his official duties, or
corruptly or by threats or force, or by any threatening letter or
communication, influences, obstructs, or impedes, or endeavors to
influence, obstruct, or impede, the due administration of justice,
shall be fined not more than $5,000 or imprisoned not more than five
years, or both.
n3
HN3
18 U.S.C. § 924(c)(1) (1982) provided in relevant part at the time
of the alleged offenses:
(c) Whoever --
(1) uses a firearm to commit any felony for which he may be
prosecuted in a court of the United States, or
(2) carries a firearm unlawfully during the commission of any felony
for which he may be prosecuted in a court of the United States,
shall, in addition to the punishment provided for the commission of
such felony, be sentenced to a term of imprisonment for not less
than one year nor more than ten years.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**3]
After a jury trial defendants Guzzino n4 and Ciarrocchi were convicted
of all three counts. n5
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 Additionally Guzzino was charged in Count IV with unlawful receipt of
a firearm by a previously convicted felon in violation of
18 U.S.C. § 922(h)(1) (1982), but this charge was dismissed before
trial upon the government's motion.
n5 Guzzino was sentenced to consecutive terms of seven and one-half
years imprisonment on Counts I and III; sentence on Count II was
suspended in favor of five years probation. Appellant Ciarrocchi was
sentenced to a maximum aggregate term of 25 years imprisonment and
committed for evaluation pursuant to
18 U.S.C. § 4205(c) (1982) (repealed effective Nov. 1, 1987). At the
completion of the evaluation, Ciarrocchi's sentence was reduced to
consecutive terms of six years imprisonment on Count I and four years
imprisonment on Count III, subject to the early release provisions of
18 U.S.C. § 4205(b)(2) (1982) (repealed effective Nov. 1, 1987); his
sentence on Count II was suspended in favor of five years probation.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*690] On
appeal defendants argue three issues: (1) whether the evidence was
sufficient to establish that this bungled murder attempt involved
federal
[**4] crimes;
(2) whether the evidence was sufficient to show defendants' knowledge
and intent to commit the charged crimes, and (3) whether certain
evidentiary trial rulings were erroneous. We affirm.
I. FACTUAL BACKGROUND
This is the story of a "mob" -related but unsuccessful conspiracy to
kill Alfred
Pilotto. Participants in the
conspiracy included the two defendants and also Sam Guzzino, now
deceased brother of defendant Richard Guzzino, and Daniel Bounds. Sam
Guzzino, who died prior to the return of the indictment, and Bounds were
named as co-conspirators but not as defendants. Bounds testified as the
government's principal witness.
Pilotto, a high-ranking official of the Laborers' International
Union, was indicted June 3, 1981, in the southern District of Florida
along with Anthony Accardo, the reputed head of the Chicago organized
crime family, and fourteen other defendants. All were charged with
conspiracy to conduct the affairs of an enterprise through a pattern of
racketeering activity (RICO), specifically, for receiving a two million
dollar kickback from union insurance programs, in violation of
18 U.S.C. § 1962(d) (1976).
See United States v. Accardo, No.
81-230-CR-ALH (S.D.
[**5] Fla.
June 3, 1981). n6 The
Accardo defendants were arraigned on June
19, 1981, pleaded "not guilty," and the court set trial for Monday, July
27, 1981. The facts of the present case, set primarily in Chicago,
Illinois, intervene in the
Accardo case time sequence. On July
25, 1981, two days before the date set for trial, Bounds, aided by
coconspirators Sam Guzzino, Richard Guzzino and Ciarrocchi, shot and
wounded, but did not succeed in killing
Pilotto.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 The cases of five of the sixteen defendants were severed before
trial. One of those defendants, Trafficante, has not yet been tried
because of his serious illness, but he will be tried separately. Four
defendants filed interlocutory appeals. Their appeals failed and they
were ordered to stand trial. A mistrial was declared and a new trial
ordered on their case on November 19, 1986.
Of the other eleven defendants, three, including Accardo, were
acquitted. The remaining eight, including
Pilotto, were sentenced September
14, 1982, and their convictions were affirmed in
United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
This intervening Illinois factual situation demonstrates that in
[**6] some
circles golfing is very serious business. It appears that you cannot
always trust the other members of your foursome, not just because they
may fudge a little on their scores, but because one of them may have you
murdered before the game is over.
This story, strenuously attacked by defendants, was revealed to the jury
largely through the testimony of unindicted coconspirator Daniel Bounds.
The defendants, Richard Guzzino and Robert Ciarrocchi, did not actually
pull the trigger on the eighth tee at the Lincolnshire Country Club in
Will County, Illinois, but they were important accessories. Sam Guzzino
"masterminded" the murder effort. Sam Guzzino was the brother of Richard
Guzzino and the former father-in-law of Bounds, a cab driver, whom he
hired to murder Alfred
Pilotto. Prior to these events,
Bounds had been married to Sam Guzzino's daughter and fathered a child,
who after the Boundses' divorce was in the custody of the mother.
On July 17, 1981, Sam Guzzino and Bounds were alone when Sam advised
Bounds he had a job for him -- murder. Bounds reluctantly accepted the
assignment, induced by Sam's assurances that he would make it easier for
Bounds to visit Bounds's daughter, and
[**7] that, in
addition, there would be certain financial benefits. Sam also promised a
down payment of $2,000, plus a weekly stipend and a job at
[*691] one
of his several businesses. Bounds's decision to accept this assignment
may have been slightly influenced by Sam's pointed reference to the way
these matters are customarily handled if, after a friendly discussion of
the job, the recruit hesitates. Sam explained the remedy for hesitation.
"Now [that] you know about the hit coming down," he said, "I can't
guarantee how long you're going to live." Sam also admitted that he
personally stood to gain "millions" from it. The hit was to be
accomplished "soon," but Sam declined to identify the victim because, as
he explained, "the least [Bounds] knew about it . . . the better off [he
was]."
The following morning Bounds, Sam Guzzino, and defendant Richard Guzzino
met at Sam's cab company where Bounds was employed. Defendant Guzzino
mentioned that he had heard Bounds had been picked for the job and
expressed his confidence in Bounds, adding that he himself was "too fat"
to handle it although he would "love" to do it. He further assured
Bounds of the many benefits that would result. Bounds, however,
[**8] was kept
in the dark about who the target was or when it would take place.
That afternoon at the cab company Bounds again met with Sam Guzzino and
defendant Guzzino. They were joined by defendant Robert Ciarrocchi, who
turned out to be the "weapons man." They all got in Sam's car and drove
to a rural area in Will County to determine if Bounds knew how to shoot,
a basic qualification of the job. Ciarrocchi extracted a rifle from a
golf club box, n7 adjusted the telescopic sight, and fitted a silencer
to the end of the barrel. Ciarrocchi fired at a small sign and hit it.
Sam complained that the rifle was too loud. Defendant Ciarrocchi
conceded he needed to do a little more work on it. Bounds then fired at
the sign and missed it. When they all inspected the target, they
discovered that Ciarrocchi's shot, although right on the mark, merely
dented the sign without penetrating it. Sam again complained and
defendant Ciarrocchi again conceded that the rifle needed more
adjusting. He assured Sam that the rifle would be ready on time.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7 For nongolfers, a golf club box, as distinguished from a golf club
bag, is a rectangular box characteristically used for storing, shipping,
and displaying golf clubs. It is designed to prevent damage to the
shafts and heads of the clubs while in transit.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**9]
Returning from the unsuccessful target practice, they drove by the
country club to look it over, not for golf, but for murder. Sam pointed
to the eighth tee, but added that that location would require the use of
a handgun, not the rifle. Another tee they examined would permit use of
the rifle, Sam thought, from a concealed area across the street. Bounds
wondered why the intended victim's golf game should be interrupted. Sam
satisfied Bounds's curiosity by explaining that Will County, in which
the country club was located, was a dumping ground for the mob because
the county had no money to investigate mob assassinations. Defendant
Ciarrocchi, his rifle now back in the golf club box, was dropped off
elsewhere, but Bounds and the two Guzzino brothers drove back to the
country club for another look. Sam Guzzino advised that he was going to
Las Vegas for a few days, but in the meantime Bounds and defendant
Guzzino were to work out the details. Sam made one more suggestion.
Bounds, he said, might use a bicycle to escape after the shooting.
Bounds was not very enthusiastic about that novel idea.
Nevertheless, the next day defendant Guzzino, driving his blue Eldorado
Cadillac, picked up Bounds
[**10] and
told him they were going to buy him a bicycle. They drove to a residence
where there was a sign nailed to a tree that announced "Bikes for Sale."
Bounds approached the house and inquired about buying a bicycle. He was
shown an old repainted ten-speed bicycle priced at $20. Bounds went back
to the car and defendant Guzzino gave him $20 to pay for the bicycle.
They then loaded this bicycle into the trunk, picked up Sam Guzzino at
the cab company, and drove out to the eighth tee for a practice bicycle
ride to some intended rendezvous point. Bounds tried to ride as fast as
possible, but as the
[*692] gears
and chain kept slipping they gave up on that idea. Bounds retired the
bike to his basement, no doubt to his great relief.
Bounds' marksmanship obviously left something to be desired so on the
morning of July 20, defendant Guzzino, Ciarrocchi, and Bounds drove to a
dump area in Will County for more practice. Ciarrocchi pulled a.45
caliber automatic pistol and a.357 magnum revolver from a brown paper
sack. The dump "Keep Out" sign was designated as the target. Bounds was
praised for emptying both guns into the sign, which he had accomplished
from a range of about fifteen feet.
The next
[**11]
morning Ciarrocchi and Bounds again went back to the golf course to make
a definite decision about the location for the shooting. Bounds strolled
around the eighth tee area. Then, back in the car, they drove for some
distance along a stream that flowed near the eighth green until they
came to a bridge. This appeared to be a good rendezvous point for
Ciarrocchi to retrieve Bounds if Bounds could get there somehow after
the murder at the eighth tee. They then drove back to the eighth tee so
Bounds could practice getting back to the rendezvous bridge by fast
footwork. That worked better than the bicycle.
The next step in these painstaking preparations was to get Bounds
properly outfitted. On July 22, defendant Guzzino took Bounds to a
K-Mart store where he bought Bounds some dark green coveralls (no doubt
so Bounds would not be so noticeable in the bushes at the eighth tee), a
baseball cap, and a knapsack. Apparently the conspirators believed that
Bounds for some reason would also need some special boots so defendant
Guzzino agreed to acquire boots for Bounds. Instead, defendant Guzzino
lent Bounds his boots even though they
[**12] were
much too big for Bounds. Bounds thought he needed a police scanner radio
so that after the murder he could follow police activities as he headed
for the rendezvous. When that idea had previously been discussed with
Sam Guzzino, Sam had opposed it. Sam explained that a scanner was not
needed because he would be in the foursome. After the murder, Sam
explained, he would offer to call the police and ambulance, but would
flounder around, and then when he did find a phone he would misdial.
Therefore Bounds could be assured of plenty of time to get to the
rendezvous without having to worry about the police.
Nevertheless, the conspirators later agreed to let Bounds purchase a
scanner at their expense. Bounds went to Radio Shack, but could not find
a suitable scanner so he purchased a citizens band (CB) radio. He
carried it out to the car to show to defendant Guzzino, but Guzzino did
not like the choice and sent Bounds back into the store. Bounds
exchanged the radio for a more powerful CB radio. Defendant Guzzino and
Bounds later gave the radio a field test, which it failed, so they took
it back for a refund.
These careful preparations were nearing completion. Bounds was sent to a
residence
[**13] in
Chicago Heights to pick up some videotapes to take to Sam Guzzino. Sam
explained that they were taken at his mother's seventy-fifth birthday
party. He exhibited them on a videocassette recorder so they could be
viewed. Sam Guzzino froze the frame on a party scene and for the first
time identified one of the partygoers, Alfred
Pilotto, as "the guy we want hit." Bounds was not enthusiastic to
learn who the victim was because, as he pointed out,
Pilotto's brother was the Chicago Heights Chief of Police.
Sam Guzzino's response is important to this case. Sam said he knew that,
but that
Pilotto had to die. He further explained that
Pilotto was seventy-one years old and that "he's got a case in
Miami, and we're afraid he is going to spill some names." Sam told
Bounds, "Don't worry about it, it's been blessed," which Bounds
understood meant that the killing "was okay, it was approved of" by
higher authority. Sam then went over some additional details with
Bounds. He instructed Bounds that when
Pilotto drove up to the tee in the
golf cart he was to be "hit" as soon as he
[*693]
stopped and put his left foot on the ground to get out of the cart. Sam
cautioned, however, that "if he hears a twig
[**14] crack
in them bushes, he's going to be in his golf cart and taking off." Sam
also warned Bounds that he had better come out of the bushes shooting
because
Pilotto had to die that day. Sam
added that by the time he himself would arrive at the tee in his golf
cart following behind
Pilotto, it should already be over,
and Bounds should be on his way. This was to happen the coming Saturday.
The next day, Friday, was the final dress rehearsal. Defendant Guzzino
picked up Bounds, dropped him off near the eighth tee, where Bounds hid
in the bushes. At the appointed time Sam Guzzino rode up in a golf cart
accompanied by defendant Ciarrocchi. Sam got out of the cart and said
loud enough for Bounds to hear, "Are you there?" Bounds responded. Sam
endeavored to see him and finally did, remarking "that's great, that's
beautiful." He instructed Bounds to continue the dress rehearsal by
running to the rendezvous point so his run could be timed.
Saturday, the chosen day, arrived. Bounds shaved off his moustache and
mad a nylon stocking mask. Ciarrocchi picked him up at 2:20 a.m. They
rode to Ciarrocchi's apartment. There Ciarrocchi loaded two pistols,
wiping the guns and ammunition free of fingerprints.
[**15] He
also provided Bounds with a pair of gloves, which like Bounds's boots
were also too big and made Ciarrocchi a little concerned about whether
Bounds could pull the trigger. Sam Guzzino stopped by briefly to let
them know that "everything is a go. They're supposed to start teeing off
at 6:00 [sic] o'clock." Defendant Guzzino arrived with a police radio
scanner he had borrowed from an employee at the cab company. All was now
ready. Bounds put the scanner in the backpack he was wearing, and he and
Ciarrocchi left about 8:00 a.m. because they had to be on the golf
course by 8:30.
Bounds got into the bushes on time and soon saw a golf cart coming up to
the tee. He had no trouble recognizing
Pilotto. Riding with
Pilotto was Nicholas Fushi, whom
Sam had instructed Bounds to be sure not to shoot as Fushi was Sam's
friend. The foursome, including Sam Guzzino, was rounded out by Rudy
Bamonti, who rode along in Sam's golf cart. All were members of the club
and had played together regularly for five or six years.
Pilotto got out of the cart, teed
off, and walked back towards his golf cart while the others teed off.
Bounds was behind schedule, because Sam and his partner had arrived and
were
[**16]
already teeing off. Bounds heard Sam say "go ahead and shoot." Assuming
Sam was talking to him and not just telling Sam's golfing partner to tee
off, Bounds shot, hitting
Pilotto in the shoulder. Bounds
then stood up and walked out of the bushes.
Pilotto fell down, held up his
hands, and pleaded with Bounds not to shoot. Bounds explained in his
testimony that because he was already committed, he shot three more
times at
Pilotto at close range. By that
time Fushi had run the other way to hide behind a tree. Then Bounds
turned to leave, but just missed shooting himself in the foot as his gun
went off again accidentally. Bounds started running for the rendezvous
but forgot to take along his knapsack and radio which were left behind
in the weeds. He made much better time to the rendezvous than he had
during the dress rehearsal, and arrived ahead of Ciarrocchi. Bamonti and
Sam Guzzino used their golf towels on
Pilotto's wounds, then loaded him
in a golf cart. They drove the cart about a block to some condominiums
to find a phone.
The next morning Bounds met both Guzzinos at the cab company. Bounds,
who knew he had not lived up to expectations, inquired how
Pilotto was. Sam replied that
[**17] it
looked like he was going to be okay, "but maybe it is good he didn't die
anyway, because now the war is on." Bounds went about his cab driving
business as usual.
Later, however, Sam Guzzino informed Bounds that he had received some
feedback that there was suspicion that Bounds was the one who had
attempted the assassination.
[*694]
Defendant Guzzino gave Bounds some money to go to Atlanta to see a
friend of the Guzzinos. Bounds went to Atlanta, saw the Guzzinos'
friend, and thereafter moved from place to place until November 30,
1981, when he finally turned himself in to the Chicago Crime Commission
and the FBI. Bounds began cooperating. This resulted in some recorded
conversations between Bounds and defendant Guzzino. The unsuccessful
murder escapade was over.
At trial, Bounds admitted on cross-examination to the regular use of
various unlawful drugs, including heroin, cocaine, and marijuana. He was
revealed as an ex-felon, wife beater, and a paid witness in the
government's witness protection program. The Guzzinos' friend whom
Bounds saw in Atlanta described Bounds as a "crumb-bum." Nonetheless,
Bounds's tale of this bungled murder remained substantially intact
despite inconsistencies regarding dates, times, and other details
developed on
[**18]
cross-examination.
The government called a variety of other witnesses to reinforce
supporting details.
Pilotto, the intended murder
victim, testified as an immunized witness. n8 He related that he had
known both Guzzinos all their lives, but had not known Bounds, Sam's
former son-in-law. He described his wounds. He said that he was shot in
the forearm and elbow, shot in the leg and groin, shot in the collarbone
and shoulder blade, and sustained other shots in the knuckle and the
chest, but somehow survived. he confirmed that he had not testified at
his own trial in Miami, the
Accardo case.
Pilotto, however, was not permitted
to testify as to whether or not he had ever intended to testify in that
trial. Ciarrocchi, who had no prior record, testified in his own
defense, denied any involvement in the conspiracy, and offered a reason
why Bounds had framed him. Another defense witness confirmed animosity
between the two. Ciarrocchi denied that he had ever used a silencer or
tried to teach Bounds how to shoot.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8
Pilotto is now serving a
twenty-year sentence imposed upon conviction in the
Accardo case.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The defense also offered the testimony of two attorneys who represented
certain
[**19]
defendants in the
Accardo case in Miami. They explained that the
Accardo case had been declared a complex case early in July of
1981 and that therefore the Speedy Trial Act n9 guidelines were not
applicable. The case, according to their testimony, was not actually
expected to commence on July 27, 1981, the date originally set for
trial. The purpose of this testimony was to try to show that the
Pilotto shooting could not have
been related to the
Accardo case because there was in fact no
rush for the murder to be committed July 25. There were several other
defense witnesses but they presented nothing significant. The defendants
also offered a newspaper article about the
Accardo trial and the
attempt on
Pilotto. It was read to the jury to
suggest that Bounds could have fabricated his story of the shooting
prompted by that article.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n9
18 U.S.C. §§ 3161-3174 (1982 & Supp. II 1984).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
II. ANALYSIS
A. Sufficiency of the Evidence to Establish Federal Jurisdiction
The first issue is whether Bounds's version of the attempted murder,
which the jury believed, can be subsumed under federal law. The
defendants maintain that the
Accardo Miami indictment was totally
unrelated
[**20] to the
attempt on
Pilotto's life. Thus, they argue,
the attempted murder is within the province of Illinois law and the
federal court has no jurisdiction. The defendants in addition attack the
credibility of Bounds. Although they concede that Bounds was in some way
involved, the defendants argue, with very little to go on, that "most
probably" Bounds was not the actual shooter and that his story was
contrived.
We have closely scrutinized the conspiracy evidence in the record, as
the defendants have strongly urged, and find it to be sufficient for the
jury to relate the
[*695]
attempted murder to the
Accardo Miami trial beyond a reasonable
doubt.
See
United States v. Papia, 560 F.2d 827, 835 (7th Cir. 1977);
United States v. Buschman, 527 F.2d 1082, 1085 (7th Cir. 1976).
That determination admittedly depends to a large extent on Bounds's
testimony about his conversation with Sam Guzzino. The most
controversial and critical testimony was Bounds's assertion that Sam
Guzzino had told him that
Pilotto had to die because there
was fear
Pilotto would "spill some names" in
the Miami case and that the murder had been "blessed." n10 According to
the defendants, "it is this single statement
[**21] by a
dead man, outside the presence of the defendants, testified to by a
moral degenerate, convicted felon and chronic multiple drug user upon
which federal jurisdiction is based." That is largely true, but we will
not second-guess the jury's determination of Bounds's credibility.
See
United States v. Noble, 754 F.2d 1324, 1332 (7th Cir.),
cert. denied,
474 U.S. 818, 106 S. Ct. 63, 88 L. Ed. 2d 51 (1985). The jury heard
all about Bounds's unsavory character and heard his inconsistent
testimony about some dates and other details. nevertheless, his story
remained substantially intact and the jury obviously chose to believe
it. Bounds's testimony was sufficient to form a basis for the
convictions of his accomplices, defendants Guzzino and Ciarrocchi.
See
United States v. Velasquez, 772 F.2d 1348, 1352 (7th Cir. 1985),
cert. denied,
475 U.S. 1021, 106 S. Ct. 1211, 89 L. Ed. 2d 323 (1986) (a
conviction may properly be based on accomplice testimony).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n10 The defendants have not argued that the district court mistakenly
admitted Sam Guzzino's statement. Coconspirator declarations are
admissible if the judge finds from a preponderance of the independent
evidence that a conspiracy existed and that the accused were members of
it.
United States v. Dalzotto, 603 F.2d 642, 644 (7th Cir.),
cert. denied,
444 U.S. 994, 100 S. Ct. 530, 62 L. Ed. 2d 425 (1979).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**22]
The defendants further contend that there was no hurry to kill
Pilotto, and thus the attempted
murder had no relation to and could not have been intended to obstruct
the
Accardo trial. There is no dispute that
Pilotto was a defendant in the
Accardo case along with some other notorious figures and that the
case was docketed to go to trial on Monday, July 27, 1981, after the
Saturday, July 25 murder attempt.
Accardo had, however, been
declared a complex case, which would take it out of the time restraints
of the Speedy Trial Act. Although it was docketed to begin on Monday,
defendants argue, none of the attorneys expected it to begin then. It
did not begin until April of the following year.
We can assume that the factual basis of that defense argument is true,
but that does not change the relationship between the murder attempt and
the
Accardo case. If
Pilotto was in fact a danger to the
others in the
Accardo trial it is possible that the others
determined that
Pilotto might as well be eliminated
sooner rather than later, regardless of the time of trial, lest he
bargain away some information in the meantime. It appears, in any event,
that Sam Guzzino, while he was
[**23]
arranging the murder, believed that speed was of the essence regarding
the
Accardo case, and said so. Perhaps he was just not aware of
the complexities of the Speedy Trial Act, or knew only that it was still
set to begin on Monday and that the trial judge would have to be
persuaded to continue it. Perhaps he did not care about those minor
details. We know only that Sam Guzzino said there was fear about
Pilotto and the
Accardo case
and proceeded to direct the actions to eliminate the danger.
Nor is it important whether or not
Pilotto actually testified in
Accardo, or ever intended to testify and thereby possibly endanger
others. The evidence of
Pilotto's actual intent about
testifying was correctly not admitted by the trial judge. What is
important, is what the concerns, thoughts, and fears of the
coconspirators may have been about
Pilotto's possible actions, even if
those concerns were totally mistaken. The evidence suggests that they
were taking no chances with
Pilotto and the
Accardo
case. We find that the evidence, regardless
[*696] of
how it is weighed, when viewed in the light most favorable to the
government, could have persuaded a rational trier of fact beyond a
reasonable
[**24] doubt
of the nexus between the attempted murder and the
Accardo trial.
See
United States v. Howard, 774 F.2d 838, 841 (7th Cir. 1985);
United States v. Redwine, 715 F.2d 315, 319 (7th Cir. 1983),
cert. denied,
467 U.S. 1216, 81 L. Ed. 2d 367, 104 S. Ct. 2661 (1984).
Sensing that we might view the evidence as sufficient, defendants
contend that even if the evidence may be considered sufficient, it does
not have adequate probative value to establish federal jurisdiction. The
defendants argue that "if Sam Guzzino had wanted
Pilotto killed for other reasons --
paranoia, a private feud, desire to move up in the 'mob,' -- he may well
have made that statement to give Bounds a feeling of confidence that it
had, indeed[,] been blessed." That is a jury argument, which apparently
did not impress the jury any more than it does us.
B. Sufficiency of the Evidence of Knowledge and Intent
The defendants claim that the evidence is insufficient to sustain their
convictions under Counts I and II because there is no direct evidence
that the defendants knew of the
Accardo trial or evidence to show
that the defendants' intent was to prevent
Pilotto from attending the
Accardo trial. n11 Defendants cite
United [**25] States v.
Guest, 383 U.S. 745, 760, 16 L. Ed. 2d 239, 86 S. Ct. 1170 (1966),
for its holding that
HN4in a
criminal conspiracy prosecution under
18 U.S.C. § 241, the government must show a specific intent to
interfere with a protected federal right. The government has no quarrel
with that specific intent requirement, or the application of the
specific intent requirement in a substantial obstruction of justice
prosecution under
18 U.S.C. § 1503. HN5To prove a
violation of section 1503, the government must show that each defendant
knew of the pending judicial proceeding and specifically intended to
impede its administration.
See
United States v. Ardito, 782 F.2d 358, 361 (2d Cir.),
cert. denied,
476 U.S. 1160, 106 S. Ct. 2281, 90 L. Ed. 2d 723 (1986).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n11 The defendants concede that the government need not prove that the
defendants knew that a
federal judicial proceeding was involved,
but must prove only that the defendants knew of some judicial
proceeding.
United States v. Ardito, 782 F.2d 358, 360-62 (2d Cir.),
cert. denied,
476 U.S. 1160, 106 S. Ct. 2281, 90 L. Ed. 2d 723 (1986). That
concession makes little difference because the evidence in this case
concerns only the federal
Accardo trial.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
It is difficult to find in this record direct evidence of the requisite
[**26]
knowledge and intent of the defendants.
HN6Direct
evidence, however, although it may be considered more reliable, is by no
means the only evidence from which a jury may find the necessary
knowledge and intent.
United States v. Cogwell, 486 F.2d 823, 828 (7th Cir. 1973),
cert. denied,
416 U.S. 959, 40 L. Ed. 2d 310, 94 S. Ct. 1975 (1974). It has long
been established that "the verdict of a jury must be sustained if there
is substantial evidence, taking the view most favorable to the
government, to support it." n12
Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S.
Ct. 457 (1942). The "substantial evidence" necessary to prove a
criminal conspiracy need not be proved by direct evidence as the common
conspiratorial purpose and plan may be inferred from "a 'development and
a collocation of circumstances.'"
Id. (quoting
United States v. Manton, 107 F.2d 834, 839 (2d Cir. 1939)).
As we noted in
United States v. Zuideveld, 316 F.2d 873, 878 (7th Cir. 1963),
cert. denied,
376 U.S. 916, 84 S. Ct. 671, 11 L. Ed. 2d 612 (1964), it is indeed a
"rare case" where there is direct evidence to show the requisite
knowledge and intent of coconspirators.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n12 The defendants have not claimed that the jury was not properly
instructed on that issue to help it consider the evidence.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**27]
We recognize that an appellate court must exercise caution in reviewing
a verdict based on circumstantial evidence. The verdict must not rest
"solely on the piling of inference upon inference"; but neither should
we view each bit of evidence
[*697] in
isolation.
United States v. Redwine, 715 F.2d 315, 319 (7th Cir. 1983),
cert. denied,
467 U.S. 1216, 81 L. Ed. 2d 367, 104 S. Ct. 2661 (1984). In
Redwine, we held that as a practical matter it is necessary for a
reviewing court to "'use its experience with people and events [in
determining] that the evidence correctly points to guilt [to guard]
against the possibility'" of mistakenly affirming a guilty verdict based
only on an "'innocent or ambiguous inference.'"
Id. (quoting
United States v. Kwitek, 467 F.2d 1222, 1226 (7th Cir.),
cert. denied,
409 U.S. 1079, 93 S. Ct. 702, 34 L. Ed. 2d 668 (1972)).
HN7Juries
must also use experience and are entitled to use ordinary common sense
in determining whether the evidence proves guilt beyond a reasonable
doubt.
United States v. Perry, 747 F.2d 1165, 1169 (7th Cir. 1984).
Common sense is no substitute for evidence, but common sense should be
used to evaluate what reasonably may be inferred from circumstantial
evidence. Knowledge and specific
[**28] intent
are as susceptible of proof in that manner as is any other criminal
requisite. That must be so lest conspirators be permitted to avoid the
consequences of their illegal acts because of a factfinder's artificial
and unrealistic view of real life.
We are satisfied that the jury could reasonably conclude that these
defendants knew when they contributed to this murderous enterprise that
Pilotto was to be killed to prevent
him from testifying in the
Accardo case. Defendants concede, as
they must, that this murder attempt occurred, as inefficient as it was.
The evidence clearly reveals that both defendants were crucially
involved in the planning, training, supplying, rehearsing, and staging
of the scheme, and in Bounds's escape after it failed. Even the later
recorded conversations between Bounds and defendant Guzzino affirm
defendant Guzzino's deep involvement.
There was a time schedule, which the participants considered absolute.
The murder had to take place Saturday. The
Accardo trial was to
begin on Monday. Defendant Guzzino and Sam Guzzino were brothers working
together, defendant Guzzino's only regret being that he himself was too
fat to do what Bounds was privileged
[**29] to do.
The evidence strongly suggests that defendant Guzzino was not kept in
the dark about what was going on, but fully knew what and why. Bounds
was informed by Sam Guzzino that the hit had to be done to be sure that
Pilotto did not talk in the
Accardo trial. It is fanciful and totally unrealistic to think that
the two defendants, one Sam's brother, who were both instrumental in the
attempt and to whom Sam left the planning, even the decision about which
tee to use for the hit, were not as well informed as was Bounds. The
defendants would have us believe that Bounds, an unreliable drug addict
among other things and the former son-in-law of Sam Guzzino, was better
informed than either of them. Ciarrocchi had the guns and did his best
to teach Bounds how to use them. Both defendants were in the car with
Sam and Bounds when they drove out to look at the golf course. The golf
course would be used, Sam explained, because it was a dumping ground for
the "mob." There is no doubt that the affair had been "blessed" as Sam
said, and all were satisfied. Sam's after-the-fact comment that "maybe
it is good [that
Pilotto] didn't die anyway, because
now the war is on" is not explained. Defendants
[**30] strain
to make something out of this statement to show that the government
relationship theory is wrong, but its ambiguity renders it worthless for
any purpose. It could be argued simply that Sam Guzzino's golfing
partner,
Pilotto, got the message without
being killed in the process.
All of the above circumstances could lead a jury exercising ordinary
common sense to infer that both defendants knew that the purpose of the
planned murder was to prevent
Pilotto from testifying in the
Accardo case.
C. Evidentiary Rulings
The defendants argue that the trial judge erred in certain rulings and
that the errors
[*698] were
so restrictive as to deny them a fair trial. n13
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n13 Defendants explain that no offers of proof were made because there
had been a previous trial which had resulted in a mistrial. Defendants
say they relied upon the former partial trial since the trial judge was
already familiar with the evidence and its purpose.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Defendants first contend that the court erred in sustaining a government
objection to a question put by defense counsel to
Pilotto. During cross-examination
of
Pilotto, defense counsel attempted
to inquire if
Pilotto had ever intended to
testify at the
[**31]
Accardo trial. The government's objection, as we have already
indicated, was properly sustained. The relevant issue was what the
conspirators believed regarding
Pilotto's possible cooperation with
the government, not what
Pilotto's intent to cooperate may
actually have been. Just because the anticipated denial from
Pilotto as to his actual intentions
to cooperate might have been of some use in diverting the jury from the
pertinent issue does not make that testimony relevant and admissible.
Pilotto was in his seventies and
faced a possible prison sentence if convicted in
Accardo.
Apparently the conspirators considered him a possible risk to others. In
their profession that is enough.
The defendants also argue that the trial judge erred in refusing to
permit a former assistant United States attorney who represented a
defendant in the
Accardo trial to professionally speculate
whether any lawyer familiar with the
Accardo case actually would
have expected the case to go to trial on Monday, July 29, 1981. The
government objection was properly sustained. The relevant issue is not
what a lawyer would think but what the defendants understood regarding
when the
Accardo trial
[**32] would
begin.
Even if the defense claims of error regarding the above two restrictions
on testimony were valid, which they are not, they would have been
harmless beyond a reasonable doubt. In each instance, the essential
content of the expected but repressed answers were elicited through
other testimony. The jury could have deduced
Pilotto's intentions despite the
limited restriction on
Pilotto's testimony.
Pilotto informed the jury that he
had never been approached by federal agents regarding his possible
cooperation, that he had not talked to federal agents between the time
of his arraignment on June 19, 1981, and his shooting, and that in fact
he did not testify during the
Accardo trial.
Pilotto was permitted on
cross-examination to say all that could be said when he further
testified that it had never entered his mind to become a government
witness. Similarly, the jury was fully informed by the
Accardo
attorney-witnesses for the defense as well as by the government case
agent in
Accardo that based on their experience the trial was not
expected to begin as scheduled. That evidence was adequate to support
the defense argument that the shooting was not related by any
[**33] time
rush to
Accardo.
The defendants next allege as error the district court's refusal to
allow defense counsel to question a former United States attorney for
his opinion whether "defendants generally are very concerned lest
anything happen to somebody during the course of the proceedings." That
line of questioning was properly terminated by the trial judge. The
trial judge likely did the defense a favor. If the judge had allowed the
testimony, government cross-examination and other rebuttal evidence
could have demonstrated, as is well known, that criminal defendants are
not always reluctant to silence a potentially adverse witness by violent
means.
See, e.g.,
United States v. Walker, 710 F.2d 1062, 1064-65 (5th Cir. 1983),
cert. denied,
465 U.S. 1005, 79 L. Ed. 2d 229, 104 S. Ct. 995 (1984);
United States v. Bufalino, 683 F.2d 639, 640-41 (2d Cir. 1982),
cert. denied,
459 U.S. 1104, 74 L. Ed. 2d 952, 103 S. Ct. 727 (1983);
United States v. Thevis, 665 F.2d 616, 623-24, 648 (5th Cir.
1982);
United States v. Smith, 623 F.2d 627, 628-29 (9th Cir. 1980).
The last defense claim is that the court erred in not letting an old and
close friend of Sam Guzzino's, Peter Guidotti,
[*699]
answer on cross-examination whether there was any
[**34] reason
why Sam Guzzino would have wanted
Pilotto shot. Apparently, defense
counsel anticipated that Guidotti would say he knew of no reason for Sam
to kill
Pilotto. The issue here depends on
an interpretation of
Federal Rule of Evidence 701, which limits the admissibility of lay
opinion. n14 The government argues that courts in applying Rule 701
"have commonly barred testimony concerning a witness' impressions
regarding a third person's thoughts and motivations." n15 This court,
however, in
Bohannon v. Pegelow, 652 F.2d 729 (7th Cir. 1981), analyzed
Rule 701 and concluded that lay opinion testimony as to the mental state
of another is indeed competent under that rule.
Id. at 731-32. Such testimony is therefore neither
conclusively nor presumptively inadmissible, as the government appears
to argue. In determining whether the testimony should be admitted, the
trial judge should employ the criteria set forth in Rule 701.
HN8The
testimony must be within the personal knowledge of the witness and
"'helpful to a clear understanding of [the witness's] testimony or the
determination of a fact in issue.'"
Id. at 732 (quoting
Fed. R. Evid. 701). Ultimately, "the decision as to admissibility
[**35] is
within the sound discretion of the trial judge and the issues involved
are peculiarly suited to his determination."
Id. Thus to justify
reversal, a trial judge's decision must be a "clear abuse of
discretion."
Id.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n14
Fed. R. Evid. 701 provides:
If the witness is not testifying as an expert, his testimony in the
form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of his testimony or
the determination of a fact in issue.
n15 To support its argument, the government cites
United States v. Ness, 665 F.2d 248, 249-50 (8th Cir. 1981)
(bank employees precluded from offering opinions on whether coworker
intended to defraud the bank);
United States v. Cox, 633 F.2d 871, 875-76 (9th Cir. 1980),
cert. denied,
454 U.S. 844, 102 S. Ct. 159, 70 L. Ed. 2d 130 (1981) (error to
allow witness to offer impressions regarding what the accused meant by
accused's statements and contemporaneous conduct);
United States v. Jackson, 569 F.2d 1003, 1011 n.17 (7th
Cir.),
cert. denied,
437 U.S. 907, 57 L. Ed. 2d 1137, 98 S. Ct. 3096 (1978) (district
court properly refused to permit wife to give reasons for husband's
depression).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**36]
In
Bohannon, the trial judge admitted the testimony of a lay
witness who suggested that a certain arrest was motivated by racial
prejudice. We rejected the argument that the witness' opinion was not
within her personal knowledge, because she had observed the arrest.
Id. Employing the foregoing analysis, we held that the witness'
testimony was "technically admissible" and that the appellant had not
shown a clear abuse of discretion by the trial judge in admitting the
testimony.
Id. at 733.
In the present case we likewise find no clear abuse of discretion. The
trial judge could have determined that Guidotti's response that he knew
of no reason why Sam Guzzino would have wanted
Pilotto shot would not be helpful.
The statement would not have revealed the facts causing Guidotti to
reach that conclusion, and thus the jury would have had no basis on
which to have made an independent judgment. In addition, this narrow
restriction imposed on the particular inquiry could have little
significance. Guidotti's lack of knowledge regarding reasons why Sam
Guzzino might want to have
Pilotto killed could mean very
little.
As with the other evidentiary issues raised contesting restrictions
[**37] on
testimony, there was already evidence in the record to permit the
defendants to argue their position. Sam Guzzino and
Pilotto were old friends and
golfing companions, and
Pilotto had even attended Sam's
mother's birthday party. There could be, at least theoretically, no
conceivable reason