U.S. v. Mazzanti
| Decision Date | 01 November 1989 |
| Docket Number | Nos. 88-2287,88-2361,s. 88-2287 |
| Citation | 888 F.2d 1165 |
| Parties | 29 Fed. R. Evid. Serv. 131 UNITED STATES of America, Plaintiff-Appellee, v. Donald MAZZANTI and Paul Born III, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Kristina M.L. Anderson, Steven A. Miller, Asst. U.S. Attys., Anton R. Valukas, U.S. Atty., Office of the U.S. Atty., and David J. Stetler, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for the U.S.
Marc R. Kadish, Chicago, Ill. and Catherine Massarell, Law Student, for Donald Mazzanti.
Before WOOD, Jr., COFFEY and KANNE, Circuit Judges.
Donald Mazzanti and Paul Born III appeal their convictions on charges of conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. Sec. 846, and of possession of cocaine with intent to distribute and distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). We affirm.
On February 24, 1987, Robert Blessing, while the subject of an arrest warrant issued in DuPage County, Illinois, on state charges for distribution of cocaine and other charges, turned himself in to the United States Drug Enforcement Administration ("DEA") authorities in Chicago, Illinois. 1 Blessing informed the DEA agents that he had purchased cocaine from Dan Taglia, Oscar DeLisle, and another person in the DuPage County area and agreed to cooperate and assist the DEA agents in investigating these persons. 2
In compliance with the agreement to cooperate, Blessing contacted DeLisle in March 1987, and arranged for a cocaine buy on April 2, 1987, at the ABC Lounge in Streamwood, Illinois. On the given date, Blessing and undercover DEA Agent John Riley met DeLisle, Mazzanti and Born in the lounge. Mazzanti, DeLisle and Born conversed, and then DeLisle directed Blessing and Agent Riley to a storeroom in the lounge and handed Riley a plastic bag containing approximately two ounces of cocaine. Agent Riley gave DeLisle $3,200.
Blessing and DeLisle scheduled another cocaine deal eleven days thereafter. On April 13, DEA Agent Riley and Blessing met Mazzanti, Born and DeLisle in the parking lot of the ABC Lounge, and DeLisle informed Blessing and Agent Riley that the cocaine had to be picked up in Elgin, Illinois, and instructed them to wait in the parking lot. Later that same day, DeLisle and Born returned, and DeLisle gave Agent Riley a clear plastic bag containing approximately two ounces of cocaine in exchange for $3,200.
Blessing arranged for a third cocaine buy the following month. On May 13, Agent Riley and Blessing met DeLisle and Mazzanti at DeLisle's home, and shortly thereafter, DeLisle left to get the cocaine. Meanwhile DEA surveillance Agent Christopher Hacias observed DeLisle enter the ABC Lounge while Paul Born was observed arriving in his maroon van. Born entered the bar, and DeLisle departed, walking to Born's van where he removed a dark colored package. DeLisle next returned to his home and sold Agent Riley approximately two ounces of cocaine.
On July 13, 1987, Blessing and Taglia consummated another drug transaction. Blessing, undercover Agent Riley, and a second undercover agent, Bill Maloney, met Taglia at his residence. Taglia agreed to supply $175,000 worth of cocaine for the price of $32,000 per kilogram.
Later that day, Taglia, Agent Maloney, Agent Riley and Blessing drove to Nancy's Pizzeria in Streamwood, Illinois, where they met with Mazzanti and Oscar DeLisle. During the conversation, DeLisle commented that if there was any trouble there would be a lot of "dead cops," while Taglia stated that the "DEA" agents would meet the same fate. Mazzanti and Agent Riley discussed the quality of the cocaine to be exchanged. At one point, Mazzanti left the table to make a phone call and later explained that he was trying to reach "my guy Paul."
A short time later, Paul Born arrived in the parking lot in his maroon van. At that time, Mazzanti asked Blessing for the keys to his car in order that Mazzanti might move the car and put the cocaine into the trunk. Surveillance Agent Hacias observed Born remove a large white plastic pail from the van and next observed Mazzanti transfer the pail into the trunk of Blessing's car. Mazzanti returned to the restaurant and returned the keys to Blessing. Thereafter, Blessing went outside, tasted the cocaine, and informed Riley and Maloney that the cocaine was suitable. Agent Riley and Taglia went to the parking lot to exchange the money, and DEA agents arrested all of the defendants. The DEA agents, in searching Blessing's car after the arrests, came upon the white pail containing approximately twelve pounds of cocaine. DEA agents also searched Born's van and found a telephone paging device, a .357 magnum pistol, and three bags containing cocaine.
The defendants were each charged with one count of conspiracy to possess with intent to distribute and to distribute cocaine, in violation of 21 U.S.C. Sec. 846; and four counts of possession of cocaine with intent to distribute and distribution of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1).
When the jury trial commenced, Born's counsel, in his opening statement, argued that Born was not involved in any of the drug deals but was mistaken for one of two other men who resembled him and frequented the ABC Lounge. Born's counsel also argued that the cocaine deals were the product of a motorcycle gang called the Brothers and that Mazzanti was a member of the gang, but Born was not. At trial, Born attempted to place the responsibility for the cocaine transactions on the motorcycle gang. The trial court ruled that the testimony was irrelevant and inadmissible. After Born's counsel had made reference to a motorcycle gang, Mazzanti moved for a severance, arguing that the comments of Born's counsel were evidence of the defendants' mutually antagonistic defenses. The district court, upon consideration of the motion, denied the same.
Born in his testimony explained that he owned a maroon van and that DeLisle and Mazzanti kept their work tools in his van. Born further stated that he was at or near the locations of the cocaine sales on at least two of the dates charged but denied involvement in the cocaine transactions or the drug conspiracy. The government cross-examined Born as to whether he discussed the cocaine purchases with DeLisle and also inquired whether he used the term "two Z's" of cocaine in a discussion with DeLisle. Born denied making any statement or having had any discussion regarding "two Z's." The government then inquired whether Born knew the meaning of the term "two Z's" of cocaine--he denied any knowledge of the term. In rebuttal, the government, over Born's objection, introduced the testimony of Detective John Mueller, an Illinois police officer, who testified that he had a conversation with Born in which they discussed the purchase of cocaine and that when the detective used the term "Z's" of cocaine in reference to ounces of cocaine, Born appeared to understand the meaning of the term.
At the close of the evidence, Mazzanti proferred a multiple conspiracy instruction, but the district court rejected the instruction finding that there was no evidence of a multiple conspiracy.
On April 29, 1987, the jury found Mazzanti and Born guilty of the cocaine-related charges. 3 Mazzanti was sentenced to a twelve-year prison term and five years of supervised release. Born was sentenced to a twenty-three year prison term and ten years of supervised release.
Born on appeal alleges that: (1) the district court erred in excluding evidence regarding the alleged motorcycle gang and Born's denial of his membership in it; (2) the district court committed reversible error in admitting Detective Mueller's testimony regarding Born's knowledge of drug transactions. Mazzanti alleges on appeal that the district court erred in denying Mazzanti's motion for severance. Also, both Mazzanti and Born allege that the trial court erred in failing to give the jury a multiple conspiracy instruction.
Born contends that the district court erred in refusing to allow him to testify that a motorcycle gang was involved in the drug conspiracy. Born, even though never a member of the motorcycle gang and thus without any personal knowledge of the gang's self-enforced rules, argues that evidence concerning the other defendants' motorcycle gang membership was relevant to his defense since motorcycle gang members do not include non-members in their drug transactions. Born further contends that the evidence would have assisted him in his mistaken identity defense as he alleged that two motorcycle gang members resembled him. Because Born contends that this evidence was relevant for these two separate reasons, we shall discuss each relevancy contention individually.
Born "carries a heavy burden on appeal because an evidentiary ruling will be reversed only if a trial court committed 'a clear abuse of discretion.' " Jones v. Hamelman, 869 F.2d 1023, 1027 (7th Cir.1989) (quoting Bohannon v. Pegelow, 652 F.2d 729, 732 (7th Cir.1981)) (emphasis added in Jones ). As we stated in United States v. Kaden, 819 F.2d 813, 818 (7th Cir.1987), "a ... reviewing court gives special deference to the evidentiary rulings of the trial court."
"Evidence which is not relevant is not admissible." Fed.R.Evid. 402. United States v. Amaro, 816 F.2d 284, 286 (7th Cir.), cert. denied, 481 U.S. 1031, 107 S.Ct. 1961, 95 L.Ed.2d 532 (1987).
Born's initial contention is that the evidence concerning motorcycle gang membership was relevant to his defense because...
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