5 F.3d 1100 (7th Cir. 1993), 91-3514, United States v. Levine

Docket Nº:91-3514.
Citation:5 F.3d 1100
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert M. LEVINE, Defendant-Appellant.
Case Date:September 27, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1100

5 F.3d 1100 (7th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert M. LEVINE, Defendant-Appellant.

No. 91-3514.

United States Court of Appeals, Seventh Circuit

September 27, 1993

Argued June 7, 1993.

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[Copyrighted Material Omitted]

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Andrew B. Baker, Jr. (argued) Ronald J. Kurpiers, Asst. U.S. Attys., Dyer, IN, for plaintiff-appellee.

Richard S. Kling, Chicago-Kent College of Law, Chicago, IL (argued), for defendant-appellant.

Before BAUER, Chief Judge, KANNE, Circuit Judge, and ALDISERT, Senior Circuit Judge. 1

BAUER, Chief Judge.

Not too long after the Seventh Day, two brothers, Cain and Abel, were in a field. Cain attacked Abel--and killed him. Although life today is different than it was a generation removed from Eden, some things remain the same. In this case, Robert Levine hired an assassin to kill his brother, Donald Levine, and to kill Donald's family. The assassin killed Donald and his wife Marsha, and tried to kill Donald's son Mark. Robert Levine was convicted of one count of conspiring to use interstate commerce to effect murder for hire and of four counts of using interstate commerce to effect murder for hire. 18 U.S.C. Secs. 371, 1958. Levine appeals his conviction and sentence.

I.

Robert and Donald Levine worked together in a variety of business ventures, mostly involving real estate. Robert and his wife, Pat Steward, lived near Phoenix, Arizona. Robert and Pat formed the Elles Corporation to manage office buildings, homeowners associations, and commercial real estate properties, including three Phoenix shopping centers. The Elles Corporation developed shopping centers owned by various partnerships that included Robert, Pat, and Donald. Donald supplied the money for the shopping center partnerships, both by using money from his wife's family trust and by bringing in other investors.

Donald lived with his family in Munster, Indiana and operated his own commercial retail development business in Chicago. In 1987, Donald and Marsha purchased a home in Phoenix and began spending winters there. Mark Levine was their only child.

In 1988 and 1989, Robert's and Pat's finances were hurt by the collapse of the Phoenix real estate market and they struggled to pay their bills on the shopping centers. They turned to Donald for help and he loaned them money from Marsha's trust. Despite Donald's help, by June 1989 Robert and Pat were in default on a $250,000 loan for which they had pledged the partnership interests.

Donald did not get along with Pat and wanted her out of the business. To do this, he formed a new corporation with Robert, RCDS, to take over the development and management of the shopping centers from the Elles Corporation. In May 1989, Donald planned to move the real estate development operation from the Elles Corporation offices to new offices that he leased for RCDS. Just prior to the move, while Robert and Pat were vacationing in Italy, Donald exploded in a rage. He accused Robert and Pat of stealing from him and misappropriating funds. Donald promised that he would see to it that both of them were put in jail. He dictated letters that accused Pat of mismanagement

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and of the illegal transfer of funds. He also attempted to gain access to Robert's locked office door by physically breaking it down. Donald canceled the management contracts for the three shopping centers which provided income to the Elles Corporation, and Marsha Levine demanded repayment of $73,500 that Robert owed her. Donald and Marsha Levine widely disseminated their allegations against Robert and Pat to financial backers that Donald brought to the partnership and to friends and business associates in Phoenix, Chicago, and Munster. When Robert returned from his trip and learned of Donald's activities, Robert hired an attorney and threatened to sue Donald if Donald did not stop making his accusations.

Attorney David Kruetzenberg mediated a meeting between Robert and Donald in June 1989 to resolve the dispute. The result was an agreement that stripped Robert and Pat of much of their authority over the partnerships. They were removed as general partners in two of the shopping centers, but continued as limited partners. Robert and Pat also had their partnership interest reduced in return for forgiveness of certain loans. Additionally, Robert and Pat agreed to pay a combined $110,000 back to the shopping center partnerships. Donald withheld Robert's salary at RCDS until Robert and Pat signed the settlement documents.

After their June 1989 meeting and settlement, Robert and Donald continued doing business together at RCDS. Donald was planning on cutting back his Chicago business and concentrating more in Phoenix. He also planned on moving to Phoenix. By July, the dispute appeared settled. It wasn't.

The conflict and resulting settlement between Donald, Robert, and Pat proved disastrous for the Elles Corporation. The management and development contracts that the Elles Corporation lost to RCDS crippled it. Donald also used RCDS to manage the shopping centers formerly managed by the Elles Corporation. Because of the lost revenues, the Elles Corporation was forced to lay off many employees. Moreover, at RCDS, Donald acted as the boss and denied Robert decision-making authority despite corporate papers that described the two brothers as equal owners.

The relationship between Marsha and Robert also deteriorated. In late September 1989, Marsha told Byron Weis, a business associate and her first cousin, that Robert better hope that Donald lived a long time, because if Donald died, she would put Robert "out on the street." Tr. 1935. Marsha also refused to speak to Robert when he called.

Beginning as early as August 1989, Donald again suspected that Robert was stealing from him and their businesses. Donald told Don Trossman, one of Donald's business associates, that he and Robert had a falling out and that he no longer wanted to be in business with Robert. In early November 1989, Donald told Weis that he believed that Robert was stealing from him again. He repeated that allegation to another of his partners, Robert Greiner, and added that he was going to Phoenix to look at the books.

Meanwhile, in the summer of 1989, Robert visited former Elles Corporation employee Bruce McKinney. McKinney would become Robert Levine's hired assassin. Robert told McKinney that he had a big blowup with Donald, but that everything was going well. In subsequent meetings with McKinney, however, Robert changed his tune. He complained that Donald overreacted to a small accounting error, that Donald told their investing partners that Robert was a thief, and that Donald was going to put Robert in jail. Robert blamed Donald for taking away the management contracts of the Elles Corporation which, he said, caused the company to struggle to meet its payroll. Finally, Robert told McKinney that Donald was coming to Phoenix after Thanksgiving to ruin Robert.

In September or October 1989, Robert allowed McKinney to use Donald's office at RCDS. He explained to RCDS employees that McKinney was going to look for some properties on behalf of RCDS. McKinney, however, was not placed on the RCDS payroll. When McKinney was out of the office, he called Robert four or five times a day. When McKinney was at the office, he and Robert always met alone, behind closed doors. McKinney rented an apartment from Robert and Pat and eventually became manager

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of the building, thereby reducing his rent.

Robert told McKinney that he had "permission" to kill Donald and even promised to make McKinney a millionaire if he killed Donald. Robert explained to McKinney that once Donald was out of the way, he (Robert) would become general partner in all of the partnerships that owned the shopping centers. As general partner, Robert said that he would have control and be able to do whatever he wanted with the partnerships' assets.

McKinney agreed to kill Donald. The two men discussed various ways to commit murder, including the use of bombs...

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