United States v. Carzoli, 18562.

• Citation: 447 F.2d 774
• Decision Date: 02 September 1971
• Docket Number: No. 18562.,18562.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dominic CARZOLI, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

447 F.2d 774 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Dominic CARZOLI, Defendant-Appellant.

No. 18562.

United States Court of Appeals, Seventh Circuit.

July 9, 1971.

As Amended on Denial of Rehearing September 2, 1971.

Julius Lucius Echeles, Chicago, Ill., for defendant-appellant.

William J. Bauer, U. S. Atty., Steven J. Kadison, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, Michael D. Marrs, Asst. U. S. Attys., of counsel.

Before KNOCH, Senior Circuit Judge, and CUMMINGS and PELL, Circuit Judges.

KNOCH, Senior Circuit Judge.

Dominic Carzoli, defendant-appellant, was convicted in a jury trial on a charge of wilfully endeavoring to obstruct communication of information by intimidation and threats in violation of Title 18, U.S.C., § 1510. He was sentenced to serve three years. This appeal followed. Although there was virtual agreement on the actual words spoken by the defendant, there were some sharp conflicts in the testimony at the trial presenting factual issues for determination by the jury.

The defendant asserts that the evidence was insufficient to prove the allegations of the indictment because he had no intent to utter a threat and his words were not considered a threat by the witness to whom they were addressed, and, further, that there was no proof the alleged threats prevented communication of information relative to a criminal offense. He also contends he was erroneously limited in his right to cross-examine, that his Fifth Amendment right to remain silent was the subject of unfair government comment, and that he was denied Miranda warnings. He alleges other errors at his trial included improper argument to the jury and misuse of an impeaching affidavit.

There was evidence from which the jury could have decided that Thomas J. Knitter, then a special agent with the Internal Revenue Service, was engaged in investigation of a possible criminal violation of the Internal Revenue Laws by defendant or one Vera Sanders. He was particularly trying to ascertain the person responsible for reporting the income of a concern called Gildom Cleaners in Chicago, Illinois.

Agent Knitter and Agent Thomas Isitoro (also of the Internal Revenue Service) had spoken to defendant at his home in July 1968, (warning him at that time of his constitutional rights) with respect to his tax liability for 1964-1966. Defendant had denied receiving income from Gildom Cleaners. Agent Knitter had spoken to defendant on subsequent occasions about his income.

Agent Knitter had met Betty Smith, who was an employee of Gildom Cleaners, and, on January 22, 1969, in the company of Special Agent Kevin Nestor, he had a conversation with Mrs. Smith and defendant at Gildom Cleaners. In answer to Agent Knitter's inquiry Mrs. Smith had said she left Agent Knitter's message for Vera Sanders, later found it gone and assumed it had been received. Agent Knitter then asked defendant if he knew where Vera Sanders was living and defendant said he did, but would not tell it to the Agents. When Mrs. Smith was asked the same question her answer was interrupted by defendant who raised his voice and said: "Betty, shut up. Don't tell them anything or you will end up in the trunk of a car." When Agent Knitter told Mrs. Smith she could be called as a witness, defendant said: "You had better not remember anything. You don't know anything about Sanders or the business. You only work at the cleaners. Don't tell the Agents anything else." Agent Knitter said Mrs. Smith's face became flushed, she stepped back, looked from one to the other of the three men and said "I know that I can end up in the trunk of a car for giving information to the government."

At the trial, Mrs. Smith testified for the defense that she understood defendant's remarks to be humorously intended, that she had asked "Where are you going to find a trunk big enough?" and everybody had laughed.

Mrs. Smith's 18-year-old son, Eugene, also testified that he was present at the time and that his mother's reaction to defendant's words were first amazement and then laughter. The two agents testified that they did not see Eugene Smith in the Gildom Cleaners on the date in question although Agent Knitter had gone through the premises to look at the back door. Agent Knitter described the interior of the premises in which the incident took place as approximately 15 by 30 feet. He said that if the son had been where he testified he was standing, he would have been directly across the counter from Agent Knitter. Mrs. Smith said that when she later responded to a subpoena at the Federal Building she told Assistant U. S. Attorney Sheldon Davidson, in the presence of Agents Knitter and Nestor, that the incident at the Cleaners on January 22, 1969, was all a joke.

On cross-examination she was asked about an affidavit she signed in May 1969 in which she said her stomach had turned over and her heart was pounding after hearing the defendant's words. She was also asked whether she had not said in the affidavit that she thought it was stupid for him to say this before the agents, that he must mean it as a joke and she made some light remark about getting a trunk large enough, but she had also said in her affidavit that she left the store right after the agents did and never returned, that she was frightened then and still, that she refused to answer questions and would not testify in Court because of defendant's statement, that she feared for her own life and the lives of her family. At the trial Mrs. Smith said that although she had signed the affidavit she had not read all of it and that it was not all correct, that she had not meant that she was really frightened because of defendant's statement. She also testified on cross-examination that when she had testified to the Grand Jury on January 30, 1969, she had given only her name, answering "I don't remember" to all other questions, and on February 6, 1969, had taken the Fifth Amendment in response to all questions. We do not agree with defendant that it was necessary to show what questions were put to Mrs. Smith to negative the possibility that she refused to answer not out of fear but to avoid incriminating herself. When she came out of the Grand Jury room on January 30, 1969 she had said to Agent Knitter, "I always thought that I was patriotic. * * * Now I am called before a Federal Grand Jury and I can't help. * * * I just can't give him the answers."

As indicated, Agents Knitter and Nestor were present at the conversation between Mrs. Smith and Mr. Davidson. They testified to her statements that she had been frightened and was still frightened. They testified that her answers to Mr. Davidson's questions were incorporated in the affidavit she later signed. Agent Nestor testified that Mrs. Smith read the affidavit in his presence, that she said she did not want to sign it because there were certain items which she did not believe were true or were out of context. He said he instructed her to go ahead and change anything she wanted to. Mrs. Smith had also testified that she told the Agents there were certain things in the statement she did not agree with and she was told she could change any of the wording, but she had signed it without making any changes.

Special Agent Robert R. Fuesel testified that when Mrs. Smith signed the affidavit in his presence and Agent Nestor's, she told him she was fearful for her life and her husband's and children's lives and did not want to become involved, that she had attempted to move away from her present location but was unable to get an apartment. Mrs. Smith denied making any such statements.

The government argues persuasively that whether or not a victim feels threatened is immaterial to a prosecution under this statute (Title 18, U.S.C. § 1510) which is violated by a wilful endeavor, by means of intimidation or force, or threats thereof, to obstruct the communication of information (relating to a violation of any criminal statute of the United States) by any person to a criminal investigator. The Legislative History (U. S. Code Congressional and Administrative News, 90th Congress, First Session, 1967, p. 1760 et seq.) supports the government view. The purpose of this statute is stated as:

"* * * to plug a loophole in the protection the Government can now provide to its own witnesses and informants. This loophole results from the fact that presently it is not a Federal crime to harass, intimidate, or assault a witness who may communicate information to Federal investigators prior to a case reaching the court.

* * * * * *

"This frustration of criminal investigations and prosecutions should no longer be tolerated, but since there is no statute which presently protects witnesses during the investigative stage, there is need for the enactment of this legislation."

with respect to the meaning of the word "endeavor" we find:

"This act also uses the word `endeavors.\' Here `endeavor\' means any effort or essay to accomplish the evil purpose that this act is designed to prevent. The use of the word `endeavor\' avoids the technical difficulties which would be involved by the use of the word `attempt.\' Thus, where a person\'s acts have not progressed far enough to amount to an attempt, under the act such acts would come within the scope of the word `endeavor\' and thus be subject to punishment."

This supports the argument that success in the endeavor is not an element of the offense.

In the sole case which we have come across construing this statute, United States v. Kozak, 3 Cir., 1971, 438 F.2d 1062, actual force was charged in the second count of a two-count indictment. The two defendants were charged in the first count with wilful endeavor to use force to delay and prevent communication of information. One of the defendants was found guilty on the first count and not guilty on the second. He argued that the verdict could not stand for inconsistency. The Third...