857 F.2d 373 (7th Cir. 1988), 87-2838, United States v. Leibowitz

Docket Nº:87-2838.
Citation:857 F.2d 373
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Carl LEIBOWITZ, Defendant-Appellant.
Case Date:September 07, 1988
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 373

857 F.2d 373 (7th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,


Carl LEIBOWITZ, Defendant-Appellant.

No. 87-2838.

United States Court of Appeals, Seventh Circuit

September 7, 1988

Argued June 7, 1988.

Rehearing and Rehearing En Banc Denied Nov. 15, 1988.

Page 374

Kenneth E. Barden, Richmond, Ind., for defendant-appellant.

Thomas O. Plouff, Asst. U.S. Atty., James G. Richmond, U.S. Atty., South Bend, Ind., for plaintiff-appellee.

Before CUDAHY and EASTERBROOK, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

Defendant Carl Leibowitz ("defendant") was convicted after a jury trial of hiring a "hit man" to kill his business partner. Specifically, he was found guilty of conspiracy to use interstate commerce facilities in the commission of a murder-for-hire (18 U.S.C. Sec. 371), use of interstate commerce facilities in the commission of murder-for-hire (18 U.S.C. Sec. 1952A), obstruction of justice (18 U.S.C. Sec. 1503), and witness tampering (18 U.S.C. Sec. 1512). He appeals from his conviction on several grounds: 1) there was a fatal variance between the indictment, which charged him with use of the telephone to facilitate a murder-for-hire on or about October 12, 1986 and the government's evidence, which established that the call took place on September 21, 1986; 2) there is newly-discovered evidence which

Page 375

would serve to impeach the testimony of the government's chief witness; 3) the verdict was not supported by substantial evidence; 4) the government improperly referred to the guilty plea of its chief witness in its final argument to the jury; and 5) defendant was denied effective assistance of counsel. For the reasons stated below, we affirm the judgment of the district court.



  1. The Murder-for-Hire Scheme

    Defendant is a lawyer (currently suspended from practice) and a promoter of tax shelters. In 1984, he became the subject of a two-year federal grand jury investigation into a tax shelter business known as "OPEC" in which he and his business partner, Gary Van Waeyenberghe ("Van Waeyenberghe"), leased non-existent ethanol equipment to investors. Van Waeyenberghe had already been indicted in connection with an unrelated tax shelter scheme and was a potential grand jury witness in the OPEC investigation.

    During the summer of 1986, defendant contracted to have Van Waeyenberghe murdered by one Donald Wrobel, presumably to prevent Van Waeyenberghe from testifying against defendant in the OPEC investigation. The history of Wrobel's various attempts on Van Waeyenberghe's life reads like a macabre comedy of errors. According to the evidence adduced at trial, defendant first contacted Wrobel in or around July 1986 and hired him to murder Van Waeyenberghe. The precise terms of the contract are unclear. Defendant made an initial payment of $300 to Wrobel, but Wrobel told an employee that defendant had agreed to pay him an additional $3,000 upon completion of the murder. In August 1986 defendant promised to provide Wrobel with free legal services for the rest of his life as compensation for the contract murder of Van Waeyenberghe. On August 16, 1986, defendant sent a $300 Western Union money order to Wrobel to reimburse him for expenses in attempting to execute the murder. Thus defendant paid Wrobel a total of $600 to perform the contract.

    During August 1986, defendant contacted Wrobel by telephone on several occasions, provided Wrobel with detailed information about Van Waeyenberghe's physical appearance, and again instructed him to kill Van Waeyenberghe. During one of those telephone conversations, defendant told Wrobel that he and Van Waeyenberghe were at a lawyer's office and asked Wrobel to "choke Van Waeyenberghe in the elevator." Wrobel declined to do so.

    Notwithstanding that he had already contracted for Van Waeyenberghe's murder, defendant had several telephone conversations with Van Waeyenberghe in August and September 1986, in which he warned Van Waeyenberghe not to talk to the federal government or any other agency and that to do so could be "detrimental to Van Waeyenberghe's health."

    During the month of September 1986 Wrobel made five abortive attempts to murder Van Waeyenberghe at various pay phones in Indiana where Van Waeyenberghe had been "set up" to receive a telephone call from defendant. The first unsuccessful attempt on Van Waeyenberghe's life occurred on September 4, 1986, in the Americana Hotel in South Bend, Indiana. Defendant had told Van Waeyenberghe that he would be calling him at a pay phone in the hotel, and instructed Wrobel to shoot Van Waeyenberghe at the phone. Wrobel arrived at the hotel with a snub-nose .357 magnum and went to a set of pay phones located upstairs. Van Waeyenberghe, however, had gone to a second set of pay phones downstairs. Defendant called the upstairs telephone. Wrobel answered and said that Van Waeyenberghe had not shown up.

    The next three unsuccessful attempts on Van Waeyenberghe's life occurred at a pay phone booth on Ireland Road in Mishawaka, Indiana during the two weeks following the Americana incident. Twice Van Waeyenberghe appeared at the phone booth, at defendant's request. Wrobel was present, as well, armed with a rifle, but could not manage to get a shot off. On the third

    Page 376

    occasion, Wrobel went to the Ireland Road location, but Van Waeyenberghe did not appear.

    The next attempt by Wrobel on Van Waeyenberghe's life occurred on Sunday, September 21, 1986 at a phone booth in Wyatt, Indiana. Wrobel arrived at the location, armed with a rifle and a .357 magnum. Van Waeyenberghe arrived at the phone booth thereafter and received a call from defendant at about 10:00 p.m. The defendant said to Van Waeyenberghe, "I hear you've been talking to the feds." At that point, Wrobel shot at Van Waeyenberghe through the phone booth glass. The glass broke, but Wrobel missed hitting Van Waeyenberghe and Van Waeyenberghe emerged with only a small scrape on the back of his head. Twenty minutes later, Van Waeyenberghe called defendant at his home and accused him of being involved in the murder attempt.

    Wrobel made a final unsuccessful attempt on Van Waeyenberghe's life in December 1986. On December 13, 1986, defendant called Wrobel and told him to "get the job done" and that if anyone was with Van Waeyenberghe to "kill them both." The following Monday, December 16, defendant called Wrobel and Wrobel informed him that the job was still not done because there had been too many people around. Defendant again urged Wrobel to get the job done quickly.

    On December 17, 1986, Wrobel was arrested, based on information provided to the government by one of his employees, Harry Dieter. Dieter had worked with the government to obtain a tape recording of Wrobel confessing to having shot at a person at the Wyatt phone booth. After his arrest, Wrobel, along with Van Waeyenberghe (who was in protective custody at the time) cooperated with the government in securing the following tape-recorded evidence which resulted in defendant's arrest. On December 18, 1986, defendant spoke on the telephone to Wrobel, who asked him to find out where Van Waeyenberghe was. Defendant then called Van Waeyenberghe and was told by the victim's wife that he was out of town. Defendant immediately called Wrobel back. Wrobel asked defendant if there was "any way to get [Van Waeyenberghe] set-up like that Wyatt deal." Defendant said that he wouldn't know that until he found out where Van Waeyenberghe was going to be. That same night Van Waeyenberghe called defendant and told defendant that he would be home the following day, December 19, at about 1:00 p.m. Van Waeyenberghe called defendant the next day and left a message on his answering machine saying that he was back in town and would be at his parents' restaurant that night. Defendant later left a message on Wrobel's beeper informing him that Van Waeyenberghe would be at the restaurant all night. Wrobel and defendant had their final conversation in the evening of December 19. Wrobel told defendant that he was going to need more money and defendant agreed to get him $1,000 by Monday. Wrobel further told defendant that he had a ".303" that he had been practicing with and that he was thinking about using it on Van Waeyenberghe when he walked out of the restaurant. Defendant told Wrobel that he should walk away if there were anyone with Van Waeyenberghe. "Don't take no chances," defendant said. Wrobel then expressed to defendant his fear about carrying out the murder, but said "I need money now, and I think I'm gonna have the guts to do it." Defendant responded, "Okay, that sounds real good, good luck."

  2. The Indictment and Trial

    On February 5, 1987, defendant was charged, along with Wrobel and one Jimie Ray Estep, in a twenty-four count superseding indictment, with implementing two murder-for-hire schemes. The first six counts pertained to the attempted murder of Van Waeyenberghe described above. The remaining counts pertained to an alleged scheme by defendant and Estep to have one Paul Holland murdered by Wrobel. The trial of the indictment was bifurcated. Wrobel pled guilty to four counts and served as the government's chief witness in both trials. Van Waeyenberghe, who had been granted immunity from prosecution

    Page 377

    in connection with his tax schemes, also testified.

    The first six counts were tried to a jury in July 1987. Defendant maintained throughout the trial that he had hired Wrobel simply to tail Van Waeyenberghe because he was concerned that Van Waeyenberghe would leave the country before the OPEC investigation was concluded. He portrayed Wrobel as a man with severe emotional and psychological disorders who had either imagined or fabricated the existence of a murder contract.

    The defense engaged in a vigorous cross-examination of Wrobel to challenge his credibility. In doing so, it relied...

To continue reading