U.S. v. Gironda

• Decision Date: 01 April 1985
• Docket Number: 83-2828 and 84-1389,83-2827,Nos. 83-2796,s. 83-2796
• Citation: 758 F.2d 1201
• Parties: 17 Fed. R. Evid. Serv. 1321 UNITED STATES of America, Plaintiff-Appellee, v. Joseph GIRONDA, John Heckens, John Speiss, and John Balzano, Defendants-Appellants. *
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1201

758 F.2d 1201

17 Fed. R. Evid. Serv. 1321

UNITED STATES of America, Plaintiff-Appellee, v. Joseph GIRONDA, John Heckens, John Speiss, and John Balzano,

Defendants-Appellants.

Nos. 83-2796, 83-2827, 83-2828 and 84-1389. ^*

United States Court of Appeals, Seventh Circuit.

Argued Jan. 24, 1985.

Decided April 1, 1985.

Mary L. Mikva, Patrick A. Tuite, Ltd., Kenneth N. Flaxman, Donald V. Morano, Chicago, Ill., for defendants-appellants.

Ted S. Helwig, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and PELL, Senior Circuit Judge.

PELL, Senior Circuit Judge.

After a jury trial, defendants John Balzano, Joseph Gironda, John Heckens, and John Speiss were convicted of conspiring to steal money from the Continental Bank (Continental) and the First National Bank of Chicago (First National) in violation of 18 U.S.C. Sec. 371. Because defendants conspired to steal money and property having a value exceeding $100, the district court imposed felony and not misdemeanor sentences. The jury also convicted defendants Balzano, Gironda, and Heckens of violating 18 U.S.C. Sec. 924(c)(2), which prohibits the unlawful carrying of a firearm during the commission of a felony. The jury acquitted the same three defendants, however, on the charge that they violated 18 U.S.C. Sec. 924(c)(1) by using a firearm to commit a felony. Defendants appeal their convictions.

I. The Facts

Defendants' conspiracy to wire funds from Continental and First National into accounts owned or controlled by them began in February 1982 with a meeting between defendant Heckens and two unindicted coconspirators. The two unindicted coconspirators, Felipe Ruiz and Joseph Nichols, maintained a painting contractor partnership, and John Heckens had employed them to perform certain renovation work for him. In late February 1982, Heckens met with Ruiz and Nichols to discuss the work, and, at this meeting, Heckens mentioned that he had unlawfully transferred $65,000 by wire from a north suburban bank with the assistance of a woman whom he knew in the computer room. Ruiz then informed Heckens that he knew two people who worked in computer rooms at different banks and said that he would speak to them about engaging in a wire transfer.

In early March, Heckens again met with Ruiz and Nichols. At this meeting, Ruiz was accompanied by Ishmael Velazquez, his brother-in-law, who worked in the computer room at Continental. After meeting Velazquez, Heckens stated that, with Velazquez' help, he wanted to transfer five or six million dollars to various accounts. Velazquez agreed to help, and, among other things, he drew a diagram for Heckens explaining how to execute a wire transfer. Also, at this meeting, the four discussed the manner in which the proceeds of the wire transfer would be divided and agreed that Ruiz, Nichols, and Velazquez would take half and Heckens and his group would take the other half.

The same individuals met two more times in March to discuss the details of their plan. Although Nichols was not present at the first of these meetings, he did attend the second. During the second meeting, Heckens gave Velazquez certain information pertaining to the accounts into which the funds were to be transferred. With respect to one of these accounts, Heckens gave Velazquez a check bearing the name and account number.

In late March or early April, Heckens, Ruiz, Nichols, and Velazquez met with defendants Balzano and Gironda. At this meeting, Heckens, Balzano, and Gironda took Velazquez aside and told him that he needed to move more quickly with the transfer scheme. Specifically, Balzano informed Velazquez that people were putting pressure on him and told him that if he was in trouble so was Velazquez. Velazquez then agreed to conduct a $10,000 test run and telephone Ruiz with the results. At this time, however, Velazquez decided that he did not want to continue with the conspiracy and lied to Ruiz about the test run. Despite the fact that he never performed the transfer, he told Ruiz that the transfer attempt had created problems, prompting bank security guards to interview him.

At the next meeting, attended by Heckens, Ruiz, Nichols, Balzano, and Gironda, Gironda told Ruiz that he thought that Velazquez was not going to perform the transfer. They agreed that Ruiz should meet with his other contact in a bank computer room, Charles Geiger at First National. Nevertheless, Velazquez met with various of the conspirators two more times in April. At the first meeting, not attended by Balzano or Gironda, Heckens told Ruiz that there was going to be trouble if Velazquez did not perform the transfer. At the second meeting, Velazquez again agreed to perform a test run and to inform Ruiz of the results. As before, Velazquez did not perform the transfer. Nonetheless, he told Ruiz that the run had been unsuccessful and that, because of the problems with the test runs, he wanted to withdraw from the conspiracy. Ruiz relayed this information to Heckens, and Velazquez had no further contact with any defendants.

During the months of April and May, Ruiz spoke frequently with Heckens about the possibility of using Geiger at First National to wire funds out of the bank. In late May, Nichols received a phone call from Gironda. According to Ruiz, Gironda told Nichols that, if Ruiz and Velazquez did not follow through with the scheme, they were going to end up dead in the trunk of a car. As a result of this threat, Ruiz moved out of his residence, which he shared with Nichols, and had no further contact with defendants until he began cooperating with the Government.

The Government became aware of the conspiracy through a somewhat unrelated course of events. As stated previously, Ruiz performed certain renovation work for Heckens throughout the initial stages of the conspiracy. According to Ruiz, he attempted unsuccessfully, on many occasions, to secure payment for his work from Heckens. He further testified that, after one of the meetings previously discussed, he accompanied Heckens to his car where Heckens gave him an envelope containing certain Peat, Marwick and Mitchell checks. Heckens told him that the checks were stolen from a mail room, but that Ruiz had at least a week within which to cash them before the theft would be discovered. Ruiz attempted to cash one of the checks and, as a result, on June 30, 1982, was interviewed by a United States Postal Inspector about the check. During this interview, Ruiz confessed his involvement in the conspiracy and agreed to cooperate with the Government.

In cooperation with the Government, Ruiz telephoned Heckens and agreed to introduce him to Charles Geiger. Heckens told Ruiz that a friend who had five different bank accounts that could be used to float money back and forth would accompany him to the meeting with Geiger and Ruiz. On August 5, 1982, Heckens and defendant Speiss met with Ruiz and two Postal Inspectors posing as Geiger and Geiger's girlfriend. At this meeting, Heckens agreed to pay "Geiger" $2,000 as earnest money in return for Geiger's agreement to transfer $400,000. Heckens told the Postal Inspector impersonating Geiger that, to facilitate the transfer, he should use one of Speiss' bank accounts to receive the funds. In accordance with these instructions, defendant Speiss turned over a check to the Inspectors, which bore the account number of the account designated to receive the funds.

Ruiz postponed further meetings with defendants until August 16, 1982, when he agreed to meet with Speiss at a building site to discuss renovation work. Ruiz testified that when he arrived at the building, Heckens and Speiss took him inside. According to Ruiz, defendants Balzano and Gironda arrived shortly thereafter and threatened to kill Ruiz for failing to follow through with the wire scheme. Although the jury acquitted defendants on the charge of using a gun in connection with this incident, Ruiz testified that defendants Balzano and Gironda committed various acts of physical violence against him. As a result of defendants' intimidation tactics, Ruiz agreed to arrange a meeting with Geiger.

The next day, August 18, 1982, Ruiz informed Heckens and Speiss that Geiger had agreed to meet them the following morning at the Lincoln Park Zoo. On August 19, 1982, the Postal Inspectors set up surveillance at the zoo. Shortly thereafter, defendants Balzano and Gironda arrived at the zoo, and the Inspectors arrested them. When arrested, defendant Balzano was carrying a pistol hidden in the waistband of his pants. At the same time, the Inspectors also seized a briefcase, located in the car that Balzano and Gironda had driven to the zoo, which contained numerous documents connecting the other defendants to the conspiracy.

On August 19, 1982, Postal Inspector Michael Aiesi arrested defendant Speiss. According to Inspector Aiesi, he advised Speiss of his Miranda rights at the time of the arrest at Speiss' home and again at the main post office where he took Speiss immediately following his arrest. Inspector Aiesi testified that Speiss signed a form waiving his rights and told Inspector Aiesi that he wanted to talk. During this conversation, Speiss confessed his involvement in the conspiracy.

Inspector Aiesi further testified that Speiss called him in mid-October to arrange a meeting. At this meeting, according to Inspector Aiesi, he again informed Speiss of his Miranda rights. In response, Speiss executed a handwritten statement in which he stated that his attorney did not know about the meeting and that he did not want his attorney to know about it. During this meeting, Speiss again confessed his involvement in the conspiracy.

II. The Proceedings Below

On September 17, 1982, a federal grand jury returned a three-count indictment against the defendants. Count I charged all four defendants with conspiracy to steal $400,000 from the First National Bank of Chicago in violation...