768 F.2d 809 (7th Cir. 1985), 83-3302, United States v. Rovetuso

Docket Nº:83-3302, 83-3303 and 84-1174.
Citation:768 F.2d 809
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Sam R. ROVETUSO, Tommy Hendrix and Juan Williams, Defendants-Appellants.
Case Date:July 16, 1985
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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768 F.2d 809 (7th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Sam R. ROVETUSO, Tommy Hendrix and Juan Williams,

Defendants-Appellants.

Nos. 83-3302, 83-3303 and 84-1174.

United States Court of Appeals, Seventh Circuit

July 16, 1985

Argued Dec. 4, 1984.

Rehearing and Rehearing In Banc Denied Sept. 11, 1985.

As Amended Sept. 27, 1985.

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Andrea L. Davis, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Kenneth N. Flaxman, Eileen Kavanagh, Judith A. Halprin, Chicago, Ill., for defendants-appellants.

Before CUDAHY, COFFEY and FLAUM, Circuit Judges.

COFFEY, Circuit Judge.

In 1983, the defendants-appellants, Sam R. Rovetuso, Tommy Hendrix, and Juan Williams, were indicted for and convicted of attempting to interfere with the testimony of a government witness in violation of 18 U.S.C. Sec. 1512 (Count I). They were also convicted of obstructing justice under 18 U.S.C. Sec. 1503 (Count II) and conspiring to intimidate a witness (Count IV). They appeal their convictions raising a number of allegedly prejudicial evidentiary rulings and challenging the sufficiency of the evidence. We affirm.

I.

The parties stipulated at the defendants' trial that from January 1980 through July 1983, the defendant, Sam Rovetuso, was the target of two Federal Grand Jury investigations. The first investigation concerned Rovetuso's company, National Investigations Bureau ("NIB"), which provided security guards to various government entities and private businesses. In 1979, NIB entered into a contract with the City of Chicago, funded by the Department of Housing and Urban Development, to provide security guards for the City. In January of 1980, a Federal Grand Jury began an investigation to determine if the company had submitted false and fraudulent billings. On February 20, 1980, Rovetuso appeared before the Grand Jury and was informed that he was the subject of the investigation. Shortly thereafter, Rovetuso also became the subject of a second investigation involving a bankruptcy fraud; allegedly, he had agreed to help the owners of an advertising agency launder the agency's assets prior to its filing for bankruptcy.

The Grand Jury investigating the NIB fraud indicted three NIB employees, including Allen Gilman, in July of 1982. Prior to their trial in March of 1983, Allen Gilman plead guilty and agreed to testify against the other indicted NIB employees. He testified at the trial of these employees on March 29, 1983. Gilman's testimony at this trial was extremely damaging to Rovetuso as it indicated that Rovetuso had ordered his employees to falsify time records submitted to the City of Chicago and to destroy documents subpoenaed by the Grand Jury. In July 1983, Gilman repeated this testimony before the Grand Jury investigating Rovetuso's participation in the NIB fraud and also testified in May 1983 before the Grand Jury investigating the bankruptcy fraud. Based upon Gilman's testimony, Rovetuso was indicted for bankruptcy fraud in June of 1983 and for the NIB fraud in July of 1983.

It was the government's contention at trial that Sam Rovetuso, along with his brother, Tommy Hendrix, 1 and a friend and part-time employee, E. Juan Williams, arranged for the murder of Allen Gilman by a contract killer. The person whom they approached to do the killing was Gilberto Oliveros, an FBI informant, working primarily in drug investigations. The government's evidence at trial consisted of tape recordings which Oliveros had secretly made of conversations he had with the defendants, along with his testimony as to the conversations between himself and the defendants.

The evidence at trial demonstrated that on April 14, 1983, Williams, an instructor at the school for training security guards, told Oliveros, a student at the school, that certain "Italians" he worked for wanted Oliveros to kill a witness who was cooperating

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with the Federal government. Oliveros had attracted Williams' interest by telling him that he had worked for the Panamanian police, that he had been a secret agent for the Panamanian government and that he had previously served a 12-year prison term in Panama for killing several persons.

In a meeting that was tape recorded on April 19, 1983, Williams told Oliveros that he would receive $2,000 for killing a witness. He also told Oliveros that the witness had testified against two men who were previously convicted and sentenced to confinement. In another meeting on May 9, 1983, not recorded on tape, Williams confirmed the $2,000 fee and also stated that the "Italians" would ask Oliveros to prove his sincerity by traveling to Texas to bring back a woman who had deserted her husband. On May 10, 1983, Oliveros met with Rovetuso and Hendrix for the first time, along with Williams, at Rovetuso's home to discuss the plans for Gilman's murder. Rovetuso told Oliveros that the witness he wanted killed was cooperating with the Federal government, that Oliveros would receive $2,000 for killing the witness, and that he did not care how the witness was murdered, but the body was to be moved from Illinois to Mexico to hamper its discovery.

On May 12, 1983, Oliveros again met with the three defendants at Rovetuso's home. The discussions in the house were not taped because Oliveros left the recording device in the car since he feared that he might be searched by the defendants and the taperecorder discovered. Oliveros testified that during the meeting in the house, Rovetuso handed a piece of paper to Williams containing the license plate number, description of the witness's car as well as the address of the witness's mother. Oliveros was also instructed that he would be taken to the witness's place of employment either by Williams or another man. Also, during the May 12 meeting Rovetuso mentioned to Oliveros for the first time his interest in having Oliveros arrange for the purchase of several kilos of cocaine. Oliveros agreed to attempt to organize a cocaine deal. After Oliveros and Williams left Rovetuso's house and climbed into Oliveros' car, Williams handed the piece of paper to Oliveros and allowed him to transfer the information regarding the intended victim onto another card. 2 This transfer of information was recorded by the taperecorder in the car.

Oliveros again met with the defendants on May 13 and the killing of the witness was discussed. It was decided that Oliveros would accompany Williams to visit the night club where Gilman was employed in order that Williams might point out Gilman to Oliveros. When Williams failed to appear that evening, Oliveros went to the club alone.

In a taped conversation that took place on May 16, 1983, Oliveros was told by Hendrix that they had decided to alter the murder plan to make it look like a robbery. According to the new plan Gilman was to be killed, his jewelry and money taken, and the body left in a bad neighborhood. The three defendants also discussed the method of how Oliveros was to obtain a gun and the approximate date of the murder, and it was on this occasion Hendrix informed Oliveros that the intended victim was Allen Gilman. The defendants also suggested that they might hire Oliveros to kill Michael Velez, a man who had allegedly killed a brother of one of the defendant's friends. The price for this murder was also to be $2,000. 3

At the May 16 meeting the cocaine deal was again brought up and Oliveros was told to return with a sample. When Oliveros next met with the defendants on the following day, May 17, he did not have the requested cocaine sample. Oliveros' inability to procure the cocaine as promised

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aroused the suspicion of the defendants that he was a government informant. 4 Their suspicion was heightened when Hendrix spotted an FBI surveillance car parked outside the house on May 16 and traced its license plate number to the Federal government. On May 17, as Oliveros entered an unmarked FBI car after his meeting with the defendants, his activated taperecorder emitted a loud noise which apparently was caused by interference with the radio in the FBI car. On May 19, Juan Williams informed Oliveros that the cocaine deal was off because of his failure to deliver the cocaine sample and because of their suspicion that he was involved with the FBI. 5 Shortly thereafter, on May 26, 1983, all three defendants were arrested on the charges contained in this indictment.

The defendants raise numerous grounds for reversal contending, among other things, that: the district court improperly limited the cross-examination of the government's chief witness, Gilberto Oliveros, and made other erroneous evidentiary rulings during the course of the trial; the evidence was insufficient to demonstrate any attempt to kill Allen Gilman; 18 U.S.C. Sec. 1503 allegedly no longer covers witness tampering; and Juan Williams was incompetent to stand trial.

II.

On direct examination, Gilberto Oliveros, the government's key witness, revealed that he was a Panamanian citizen residing in Chicago, Illinois as an illegal alien. On cross-examination, Oliveros claimed that when he was in Panama he was employed as a Panamanian intelligence officer. On appeal, the defendants argue that the district court improperly limited cross-examination of Oliveros when it prohibited examination of Oliveros as to his means of support while in Panama between the ages of 12 and 15, the specifics of his activities while working as a Panamanian secret agent, and the reason for his conviction for an alleged twelve-year jail sentence in Panama. They also contend that the district court improperly excluded extrinsic evidence of...

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