U.S. v. Taglia

• Citation: 922 F.2d 413
• Decision Date: 11 January 1991
• Docket Number: Nos. 89-2188,89-2931 and 89-3638,s. 89-2188
• Parties: 136 L.R.R.M. (BNA) 2235, 118 Lab.Cas. P 10,558 UNITED STATES of America, Plaintiff-Appellee, v. Daniel P. TAGLIA and Robert J. McDonnell, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 413

922 F.2d 413

136 L.R.R.M. (BNA) 2235, 118 Lab.Cas. P 10,558

UNITED STATES of America, Plaintiff-Appellee, v. Daniel P. TAGLIA and Robert J. McDonnell, Defendants-Appellants.

Nos. 89-2188, 89-2931 and 89-3638.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 6, 1990.

Decided Jan. 11, 1991.

Thomas M. Durkin, Daniel W. Gillogly, Asst. U.S. Atty., Morris Pasqual, Bilaisis Vilija, Asst. U.S. Atty., Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Jerry B. Kurz, Hall & Kurz, Chicago, Ill., William Hedrick, Skokie, Ill., for defendants-appellants.

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

POSNER, Circuit Judge.

Daniel Taglia and Robert McDonnell were convicted by a jury of labor racketeering and sentenced to four and six years in prison, respectively.

Taglia was an acquaintance both of McDonnell, a lawyer, and of Robert Blessing, the nephew of an official of a local union. Taglia and McDonnell conspired--so the jury could, and did, find--to bribe officials of the union to award a contract to McDonnell to furnish the union's members with prepaid legal services financed by a deduction from wages. Blessing was to put Taglia and McDonnell into contact with his uncle. But Blessing was an FBI informant, whom the FBI instructed to play along with the scheme; and it also enlisted an honest union official to play the role, originally intended for the uncle, of corrupt union official. Taglia and McDonnell several times met or spoke by telephone with Blessing, with the official, or with both. A number of these conversations were tape recorded and played back to the jury. Conducted without code words or euphemisms, these conversations discussed the kickback scheme at length and in detail. It is impossible to place an innocent construction on them. Although Blessing testified at trial--was in fact the principal live witness for the prosecution--the evidence most damaging to the defendants was the tapes.

The appeals raise a large number of issues, only three of which require discussion; the others have no possible merit. First, both defendants complain about the district judge's refusal to grant their motion for a new trial (Fed.R.Crim.P. 33) on the ground of newly discovered evidence. Blessing had testified in an unrelated trial, held the year before the trial in this case, that he had seen Taglia deliver a package of cocaine. He had described the package in detail. The testimony was false. He had not seen Taglia engage in a drug transaction. The defendants argued in their motion for a new trial that they should be allowed to use the evidence of this lie to impeach Blessing's testimony against them. The district judge denied the motion on the ground that this impeachment would not have changed the outcome of the trial.

The government defends the judge's ruling on the ground that newly discovered evidence that is merely impeaching is not a permissible ground for a new trial. There is language to this effect in countless cases, illustrated by Mesarosh v. United States, 352 U.S. 1, 9, 77 S.Ct. 1, 5, 1 L.Ed.2d 1 (1956); United States v. Van Daal Wyk, 840 F.2d 494, 500 (7th Cir.1988); United States v. Jackson, 780 F.2d 1305, 1312-13 (7th Cir.1986), and United States v. Mackin, 561 F.2d 958, 963 (D.C.Cir.1977), but we do not think it can be taken at face value. Nothing in the text or history of Rule 33, or of the cognate civil rule (Rule 60(b)), supports a categorical distinction between types of evidence; and we cannot see the sense of such a distinction. If the government's case rested entirely on the uncorroborated testimony of a single witness who was discovered after trial to be utterly unworthy of being believed because he had lied consistently in a string of previous cases, the district judge would have the power to grant a new trial in order to prevent an innocent person from being convicted. The "interest in justice," the operative term in Rule 33, would require no less--as district judges have recognized in granting new trials in such cases. United States v. Atkinson, 429 F.Supp. 880, 885 (E.D.N.C.1977); United States v. Lipowski, 423 F.Supp. 864, 867 (D.N.J.1976).

Of course it will be the rare case in which impeaching evidence warrants a new trial, because ordinarily such evidence will cast doubt at most on the testimony of only one of the witnesses. The judicial language that seems to exclude impeaching testimony from the scope of Rule 33 thus illustrates the tendency to overgeneralize. It is easy to confuse a practice with a rule. The practice has been to deny new trials where the only newly discovered evidence was impeaching. But the practice should not be taken to imply a rule that even if the defendant proves that his conviction almost certainly rests on a lie, the district judge is helpless to grant a new trial. District judges do not in fact consider themselves helpless in such circumstances, and they are right not to.

This, however, is not that rare case. Giving due regard to the limitations on our power to second guess a district judge's decision not to grant a new trial, United States v. Morales, 902 F.2d 604, 605, amended, 910 F.2d 467 (7th Cir.1990); United States v. Reed, 875 F.2d 107, 113 (7th Cir.1989), we are compelled to agree with Judge Plunkett that even if the jury had given no weight whatever to Blessing's testimony it would have convicted the defendants. The crucial evidence against them was not Blessing's testimony, but the tapes. The defendants argue that Blessing may have selected the tapes to cast the defendants in a bad light. It is true that not all the conversations were recorded. But those that were contain very full discussions among the principals, demonstrating beyond serious doubt that the defendants committed the crimes of which they were convicted. Neither defendant proposes an interpretation of the conversations that would make them innocent.

The second issue that merits discussion is whether Taglia's motion for a severance should have been granted. McDonnell, his codefendant, was his former lawyer. So was Alan Ackerman, McDonnell's counsel. Taglia feared that Ackerman and McDonnell, who with the court's permission was acting as his own co-counsel--a procedure we have called impermissible, United States v. Oakey, 853 F.2d 551, 553 (7th Cir.1988)--would use knowledge about Taglia that they had acquired in representing him to devastating effect in cross-examining him, so that unless he was tried separately he would be afraid to take the stand and testify in his own defense. The motion for severance was made before trial and there is no record of whether it was acted on. The motion was not renewed. When in response to an inquiry from the bench Taglia told the judge that he was waiving his right to testify in his own defense, he did not add, either in person or through counsel, that he had been influenced in this decision by concern about being cross-examined by Ackerman or McDonnell.

The government argues that Taglia waived the issue whether his trial should have been severed from McDonnell's by failing to renew the motion for severance. Had he renewed it, the government suggests, the judge might have placed limitations on any cross-examination of Taglia that McDonnell or Ackerman might want to conduct. The government adds that since Taglia would have denied any criminal conduct, it would hardly have been in his codefendant's interest to try to shake his credibility by cross-examination.

We agree that there was waiver. Apparently the motion to sever was lost in the shuffle before trial. Those things happen. If a motion is not acted upon, a litigant had better renew it. He may not lull the judge into thinking that it has been abandoned and then, after he has lost, pull a rabbit out of his pocket in the form of the forgotten motion. United States v. Brown, 870 F.2d 1354, 1360 (7th Cir.1989); United States v. Smith, 893 F.2d 1573, 1581 (9th Cir.1990); United States v. Martin, 751 F.2d 258, 261 (8th Cir.1984). This is not to suggest that we are comfortable with the alternative to granting the motion to sever that the government suggests. The right of cross-examination is a precious thing and it would be exceedingly difficult--and productive of distracting sidebars--for the judge to have to decide when the cross-examiner was using as it were inside information, as distinct from intuition or inspired guess. Nor can it be assumed that Ackerman and McDonnell would have had no incentive to cross-examine Taglia. McDonnell's defense, weak though it was, was that he had been entrapped. Having thereby admitted participation in the illegal scheme, he may well have thought it in his interest to portray Taglia as the mastermind, through cross-examination designed to break down Taglia's claim of innocence.

The denial of motions to sever has become almost a reflex. This is not a surprise, for there is a presumption that participants in a conspiracy or other criminal scheme should be tried together, not only to economize on judicial and prosecutorial resources but also to give the jury a fuller picture of the scheme. United States v. Velasquez, 772 F.2d 1348, 1352 (7th Cir.1985). But it is a rebuttable presumption, and Taglia in his original motion went a considerable distance to rebut it.

If the judge would have had to grant Taglia's motion to sever had he renewed it during the trial, then it might seem that the failure to renew the motion must have been harmless. Not so. Taglia may not have renewed the motion because as the trial developed he became content with or even came to prefer a joint trial. We cannot countenance a system in which a defendant first tries to see whether he can get an acquittal in a joint trial, and then when he is convicted renews his motion to sever so that he can have another crack at a jury. This is not a case like United States v. Brown...