U.S. v. Moschiano
| Decision Date | 29 November 1982 |
| Docket Number | Nos. 81-2017,s. 81-2017 |
| Citation | 695 F.2d 236 |
| Parties | 12 Fed. R. Evid. Serv. 124 UNITED STATES of America, Plaintiff-Appellee, v. Louis MOSCHIANO and Robert Fred Bishop, Defendants-Appellants. In re Stephen M. KOMIE, Respondent-Appellant. to 81-2019. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Terence F. MacCarthy, Carol Brook (June B. Fournier on the brief) Federal Defender Program, Chicago, Ill., for Moschiano.
Stephan M. Komie, Chicago, Ill., for Bishop.
Robert S. Bailey, Paul Bradley, Allan A. Ackerman, Stephen J. Broussard, Melvin Lewis, James Montgomery, George C. Pontikes, Chicago, Ill., for Komie.
Michele E. Smith, Katherine Goldwasser, Asst. U.S. Attys., Dan K. Webb, U.S. Atty., for plaintiff-appellee.
Julius L. Echeles, Caroline Jaffe, National Ass'n Criminal Defense Lawyers, Chicago, Ill., amicus curiae.
Before CUMMINGS, Chief Judge, GIBSON, Senior Circuit Judge, * and CUDAHY, Circuit Judge.
These consolidated appeals arise out of the joint trial of defendants Louis Moschiano and Robert Fred "Pete" Bishop on charges of conspiracy to distribute heroin (Count One) and distribution of heroin (Count Two) in violation of 21 U.S.C. Secs. 841(a)(1), 846 (1976). The jury found Moschiano guilty on both counts but found Bishop guilty only on Count One. 1 Moschiano, who asserted at trial a defense of entrapment, assigns as error the admission into evidence of his own statements made during the course of a post-indictment drug transaction; this evidence was offered by the government to prove Moschiano's predisposition to commit the offense charged. Bishop contends on appeal that he was prejudiced by the joint trial and that his motions for severance were erroneously denied. We affirm the convictions of both defendants.
We also have before us the appeal of respondent Stephen M. Komie, counsel for Bishop, who was found guilty of criminal contempt by the trial court for his pursuit of a prohibited line of questioning during the trial. Because we conclude that the district court improperly resorted to summary procedures, we reverse Komie's conviction and remand the case for plenary disposition.
The criminal charges in the instant case were the product of a fairly typical undercover investigation by the Drug Enforcement Administration ("DEA"). This investigation culminated on September 11, 1980, in the sale by Moschiano of one pound of heroin to confidential informant Robert Milas and DEA Agent Arthur Tahauri. We briefly recite the facts relating to this transaction, which are largely undisputed, as well as the other evidence bearing on these appeals.
On September 8, 1980, Milas met Moschiano at a restaurant in Calumet City and discussed the purchase of heroin from him. Moschiano said that the heroin would cost $1,600 an ounce and also showed Milas some heroin in the trunk of his car. The next day, Moschiano called Milas to say that he had something for Milas, and the two met later in the day to examine a cellophane bag containing what Moschiano represented was heroin. Milas and Moschiano agreed to meet again on September 11 to complete the sale.
Milas was accompanied at the September 11 meeting by Agent Tahauri, who posed as Milas' buyer. Moschiano was accompanied by Bishop, who was there, according to Moschiano, to negotiate the deal. Bishop got into Agent Tahauri's car and the two discussed the proposed sale, agreeing finally on the sale of one pound of heroin for a price of $22,000. Moschiano and Bishop departed, presumably to get the heroin, but returned empty-handed, demanding to see their buyers' money before delivering the goods. Eventually, Moschiano returned to the scene alone and handed Agent Tahauri a paper bag containing heroin, boasting that, "[T]his is the best heroin you can have in the area." Moschiano was immediately placed under arrest. Bishop was arrested more than two months later.
At trial Bishop did not present any evidence. Based on the cross-examination of government witnesses and on the testimony of Moschiano, Bishop argued that he was an unwitting participant in, or had withdrawn from, the scheme to sell heroin. Specifically, Bishop relied on testimony by Milas that he was surprised to see Bishop with Moschiano on September 11 and that he heard Bishop say, Moschiano also testified that he never told Bishop that he was selling heroin and that Bishop walked out when he discovered the truth.
Moschiano asserted a defense of entrapment and testified in his own behalf. In summary, Moschiano's testimony was that Milas had, since April 1980, repeatedly asked Moschiano to sell him drugs and that in order to get Milas off his back he decided to play "big shot" by supplying Milas with the requested heroin. Moschiano freely admitted that he delivered the heroin to Agent Tahauri on September 11, but he insisted that it was all Milas' idea. 2
To discharge its burden of rebutting Moschiano's entrapment defense, raised in opening argument, the government introduced in its case-in-chief evidence of Moschiano's participation in other narcotics transactions occurring prior to his arrest on September 11, 1980. In June 1980, Moschiano agreed to sell an undercover DEA Agent one ounce of cocaine; this deal ultimately failed when the white powder tendered by Moschiano was discovered not to be cocaine. In August 1980, Moschiano negotiated a purchase of 300 to 500 pounds of marijuana from Milas; this transaction was not consummated because Moschiano was unable to raise the necessary money. These two transactions were placed in evidence by the testimony of government agents and by tape recordings of conversations involving Moschiano.
Following Moschiano's testimony about entrapment, the government offered in rebuttal the testimony of DEA Agent Richard Kazmar. His testimony figures in all three appeals presently under consideration. Agent Kazmar was allowed to testify that on December 5, 1980, approximately one month after the return of the indictment against the defendants, he met with Moschiano, posing as a pharmaceuticals salesman. Moschiano asked Agent Kazmar to sell him 50,000 Preludin 3 tablets, and indicated that he intended to sell the pills to truck drivers. Agent Kazmar told Moschiano that the price for these pills would be approximately $50,000. During the course of this conversation, Moschiano also made a number of statements concerning his previous heroin sale and subsequent arrest on September 11. Agent Kazmar testified that he met with Moschiano on two subsequent occasions but that the negotiations were discontinued by Moschiano because he thought he was being followed. The proposed transaction was never consummated.
Moschiano's appeal focuses exclusively on the testimony of DEA Agent Kazmar. As indicated above, Agent Kazmar was permitted to testify at trial that after Moschiano's indictment, he met with Moschiano and, posing as a pharmaceuticals salesman, negotiated an illegal sale of $50,000 worth of Preludin tablets to Moschiano. Significantly, the government sought to introduce Moschiano's statements only with respect to the Preludin negotiations and did not seek to use Moschiano's admissions relating to the pending heroin charges. Agent Kazmar's testimony was offered by the government on two theories: as evidence of Moschiano's predisposition to commit the heroin offenses charged in the indictment, and also as evidence impeaching certain statements made by Moschiano during cross-examination. The district court accepted the testimony on both theories but we consider the evidence only with respect to Moschiano's entrapment defense because the district court instructed the jury to consider Agent Kazmar's testimony for this purpose only, without mentioning impeachment.
Moschiano contends that Agent Kazmar's testimony was inadmissible for two reasons. First, Moschiano argues that the introduction into evidence of his own statements, deliberately elicited by a government agent in the absence of counsel, violated the sixth amendment right to the assistance of counsel, as enunciated in Massiah v. U.S., 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Second, he maintains that evidence of subsequent crimes is inadmissible under Rule 404(b) of the Federal Rules of Evidence when offered to prove predisposition. We address these claims in turn, reject both of them, and affirm Moschiano's conviction. 4
Our starting point in analyzing Moschiano's sixth amendment claim is the Supreme Court's decision in Massiah v. U.S., 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In that case, the defendant, after having been indicted and having retained counsel, made incriminating statements to his co-defendant (turned government informer), in whose car government agents had installed a radio transmitter. At trial, the defendant's incriminating statements were brought before the jury through the testimony of the government agent who monitored the receiving device. The Court held that the defendant
was denied the basic protections of that guarantee [assistance of counsel under the sixth amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.
377 U.S. at 206, 84 S.Ct. at 1203. See also United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); United States v. Malik, 680 F.2d 1162 (7th Cir.1982). This holding rests on the proposition that once adversary proceedings have been commenced against an individual, he has a right to legal representation when the government interrogates him. Brewer v. Williams, 430 U.S. 387, 401, 97 S.Ct. 1232, 1240, 51 L.Ed.2d 424 (1977).
The Court in Massiah made clear, however, that it was entirely proper to continue the investigation of the suspected criminal...
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