U.S. v. Giangrosso

• Decision Date: 21 January 1986
• Docket Number: No. 84-2697,84-2697
• Citation: 779 F.2d 376
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rose GIANGROSSO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 376

779 F.2d 376

UNITED STATES of America, Plaintiff-Appellee, v. Rose GIANGROSSO, Defendant-Appellant.

No. 84-2697.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 1985.

Decided Dec. 13, 1985.

As Amended Jan. 21, 1986.

Steven Miller, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Suzanne Philbrick, Oak Lawn, Ill., for defendant-appellant.

CUDAHY and COFFEY, Circuit Judges, and PELL, Senior Circuit Judge.

COFFEY, Circuit Judge.

The appellant, Rose Giangrosso, was convicted of conspiring to possess and distribute cocaine in violation of 21 U.S.C. Sec. 846 and unlawful use of communication facilities to facilitate a drug transaction in violation of 21 U.S.C. Sec. 843(b). ¹ Giangrosso was sentenced to eighteen months imprisonment for violating section 846 to be followed by a probationary term of five years for violating section 843(b). We affirm.

I

The record reveals that the government, pursuant to a valid court order, recorded the phone conversations originating from the telephone line of a Pam Fernandez, the girlfriend of Lenny Kucala who was the subject of a drug investigation, for a thirty-day period from August 5 to September 4, 1983. During this period, Lenny Kucala placed several calls from Fernandez's home located at 2515 West 70th Street in Chicago to Rose Giangrosso in Fort Lauderdale, Florida. At trial, defense counsel stipulated that Giangrosso was properly identified as one of the participants to these conversations, and that the transcripts of these conversations were accurate. During several conversations recorded on August 13 and 14, 1983, Lenny Kucala and Giangrosso discussed an exchange of money. On August 15, 1983, three conversations took place. During the first conversation Kucala informed Giangrosso that "a three and a five's coming." After this comment, the following conversation took place:

"Kucala: You know, you know where your, your nephews at?

Giangrosso: Uh huh

Giangrosso: Yeah I know

Kucala: Okay. Okay. Seventy-three fifteen."

Immediately thereafter, a Western Union wire transfer of $5,300 was sent to Giangrosso in Fort Lauderdale, Florida from Chicago. Later that day, Lenny Kucala called to determine if Giangrosso received the cash.

"Kucala: Did you get it?

Giangrosso: Yes

Kucala: How much?

Giangrosso: Fifty-three

Kucala: Can you talk

Giangrosso: No."

On August 16, 1983, the following day, a one pound Express Mail package with a Florida return address was delivered to Terry Kucala, the son of Lenny Kucala, at 7315 South California Avenue, Chicago, Illinois. Terry Kucala lived at this address with his mother. Officer Cummings, a Chicago police officer who had staked out the house, observed Terry Kucala wait out in front of the house for approximately ninety minutes before the package arrived. During this time he noticed Kucala pacing intermittently between the porch of the house and the sidewalk, and looking up and down the street. After receiving the package, Terry Kucala drove to Pam Fernandez's home, previously referred to as the location where the phone conversations were recorded. After a conversation with a person at the door, he then proceeded to a house located at 6617 West 63rd Place, entered a truck parked in an alley behind the house and removed a package. He entered and subsequently exited the house and returned to Pam Fernandez's house with the package.

The wire intercepts reveal that on September 2, 1983, Lenny Kucala again called Giangrosso who spoke about waiting "until tomorrow" to deliver something to an unidentified third party. The next day, Saturday, September 3, Giangrosso, while speaking with Kucala on the phone, stated that she assumed "he [Kucala] would want it to be there on Tuesday" and that the address for the delivery was "7315." Pursuant to a validly executed search warrant, the DEA intercepted a package sent from Fort Lauderdale to Chicago and inspected its contents. It was discovered that this package contained 943 grams of 94% pure cocaine. The Express Mail label on the package stated that the package was to be delivered to 7315 South California Avenue, Chicago, Illinois. The label also noted that the package was delivered to the Fort Lauderdale Post Office at 10:15 a.m. on September 3, 1983, approximately one hour after the recorded conversation between Giangrosso and Lenny Kucala took place. After the package was inspected and rewrapped, it was forwarded routinely to the 7315 South California Avenue address on September 6th. That same day a search warrant was obtained for the cocaine at this address, the residence was searched, and the cocaine was seized from a rear bedroom. Rose Giangrosso was subsequently arrested in Florida and charged with conspiring to deliver cocaine and unlawful use of a communication facility to facilitate a drug transaction.

On appeal, Giangrosso claims that she was denied effective assistance of counsel at trial and that the evidence submitted was insufficient to support her conviction.

II

Giangrosso complains that her trial counsel committed five errors during the course of the trial that deprived her of her Sixth Amendment right to effective assistance of counsel:

1. That her counsel failed to file a motion with the court, pursuant to Fed.R.Crim.P. Rule 14, for a trial separate from co-defendant Terry Kucala;

2. That her counsel improperly stipulated that the transcripts of the recorded telephone conversations properly identified her as one of the speakers;

3. That her counsel improperly allowed the government to reopen its case for the purpose of admitting in evidence a stipulation that Giangrosso was the person who picked up the Western Union wire transfer money order in Florida on August 15, 1983;

4. That her counsel failed to request that the court give a limiting instruction to the effect that Officer Cummings' testimony concerning his observations of the movements of Terry Kucala outside the 7315 South California address should not be used as evidence of guilt against Giangrosso;

5. That her counsel failed to produce any character witnesses on Giangrosso's behalf even though she had never previously been arrested.

The Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), recently set forth the standards for evaluating whether or not the defendant has been deprived of effective assistance of counsel. The analysis involves two steps. "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."

Id. 104 S.Ct. at 2064. In United States v. Noble, 754 F.2d 1324 (7th Cir.1985), we stated:

"Under the first prong of the analysis, 'the defendant must show that counsel's representation fell below an objective standard of reasonableness'.... This showing includes identifying 'the acts or omissions of counsel that are alleged not to have been the results of reasonable and professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.' ... The second prong of the analysis requires that the defendant 'affirmatively prove prejudice.' ... This requires that 'there is a reasonable probability that but for counsel's unprofessional errors, the results of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' ... In setting out this two pronged analysis the Strickland Court noted that 'there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.' "

Id. at 1355 (quoting Strickland, 466 U.S. at ----, 104 S.Ct. at 2065-67). We now turn to defense counsel's alleged errors at trial to determine if Giangrosso was deprived of effective assistance of counsel.

Giangrosso initially claims that she was denied effective assistance of counsel when her attorney failed to file a motion requesting a separate trial from Terry Kucala. Specifically, she alleges that had her trial been severed from Kucala's trial, Kucala could have presented exculpatory testimony in her behalf that the first package shipped to Chicago, which was never retrieved by the police, did not contain cocaine.

Terry Kucala, Giangrosso and others were charged with conspiring to deliver cocaine. "The general rule is that persons jointly indicted together should be tried together, especially in conspiracy cases." United States v. Madison, 689 F.2d 1300, 1305 (7th Cir.1982). This circuit has expressed "a strong policy in favor of joint trials where the charge against all defendants may be proved by the same evidence and results from the same acts." United States v. Ras, 713 F.2d 311, 315 (7th Cir.1983); United States v. Burton, 724 F.2d 1283, 1286-87 (7th Cir.1984). In such a situation, separate trials are not favored and the defendant bears the burden of demonstrating prejudice from joinder with other defendants. Thus, the defendant must demonstrate "more than the fact that a separate trial offer[s] ... a better chance for acquittal." Ras, 713 F.2d at 315 (citing United States v. Tanner, 471 F.2d 128, 137 (7th Cir.1972)). The speculative possibility that a co-defendant may testify for another defendant, if the trial is severed, is insufficient to establish the requisite prejudice justifying severance. United States v. Duzac, 622 F.2d 911, 912 (5th Cir.1980). In this case, Giangrosso merely...