933 F.2d 1343 (7th Cir. 1991), 89-3013, United States v. York

Docket Nº:89-3013.
Citation:933 F.2d 1343
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas YORK, Defendant-Appellant.
Case Date:June 03, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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933 F.2d 1343 (7th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas YORK, Defendant-Appellant.

No. 89-3013.

United States Court of Appeals, Seventh Circuit

June 3, 1991

Argued Nov. 1, 1990.

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[Copyrighted Material Omitted]

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Ronald S. Safer, Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Terence P. Gillespie, Geena D. Cohen, Genson, Steinback & Gillespie, Chicago, Ill., for defendant-appellant.

Before CUMMINGS, FLAUM and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

Tom York never made a dime from his investment in the Just Friends Lounge. Not even when he tried to collect the insurance money. Two explosions rocked the bar during the night of April 18, 1981, ripping the building apart and burying York's partner, Gail Maher, who lived in an apartment above the bar, in the charred remains. There was a $60,000 insurance policy on the bar and a $50,000 policy on Maher's life; York was the beneficiary of both. Suspecting foul play, Maher's family contested York's claim to the insurance proceeds. The federal government shared the family's suspicions; it indicted York for attempting to defraud the insurance company by means of arson and murder. The jury convicted.

York bought the bar in June 1979, and leased it to Maher. She ran things, but not well. Just Friends was in the red from the day it opened, and Maher had to borrow over $30,000 from York to stay afloat. In addition, York, who was handy with tools, took care of the maintenance work himself. Still, Maher couldn't keep up with her bills. She never paid any money back to York, and by April 18, 1981, she was behind on every debt the bar had incurred. By August 1980, York was over $80,000 in debt and had had enough. He tried to list the business for sale, but the agency required Maher's signature on the listing agreement and she refused. York didn't know that back in June Maher had neglected to exercise a five-year option on the Lounge's real estate lease; without the long-term lease, the business had little resale value.

York contacted the Allstate Insurance Company to obtain life insurance policies for himself and Maher in October 1980. He told the insurance agent that he was calling on the advice of his lawyer and his accountant, but neither had ever advised York to obtain insurance on his own or Maher's life. York requested a double-indemnity provision in his own policy (doubling

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the payout in the event of death by nonnatural causes); the insurance agent assumed that York wanted Maher's policy to be identical and included the double-indemnity provision in her application as well. Maher was overweight, however, and Allstate declined to insure her until a minor medical condition had cleared up. When Allstate approved a second application in February 1981 it refused to issue a term policy with the double-indemnity provision. Allstate agreed only to issue a whole life policy that carried a significantly higher premium. York paid it anyway. At about the same time, York made himself the co-beneficiary, along with Maher, of an existing policy on the bar's assets.

By this time, York and Maher were plotting to torch the bar to collect the insurance proceeds. Maher told a friend, Carol Mroch, who worked as a waitress at the lounge, about the plan that would put Mroch out of a job. Not to worry, though, Maher reassured Mroch; she and York would give Mroch $1,000 severance pay if the plan came to fruition. Maher also confided in another friend, John Etscheid. She told him that she and York planned to blow up the lounge by means of a natural gas explosion. They were going to have a dry run of the plan, she said, in April.

Maher spent the day of April 18 cleaning the Lounge. Although the bar was normally open seven days a week, it was shuttered on that Saturday night. York was seen at the bar in the afternoon. He parked his station wagon in the lot and made several trips into the lounge, carrying boxes with him. At Maher's request, her daughter Tammy spent the night at the home of Kim Bunting, Maher's sister. Tammy took but one change of clothes with her and left a treasured pet bird at home. According to Bunting, Maher told her that she didn't want Tammy in the lounge Saturday at all.

The Just Friends Lounge blew up that night. There were two explosions, both caused by homemade devices. One was a pipe bomb made from a length of steel pipe about ten inches long, capped at both ends. The pipe was filled with explosives and an initiating mechanism, attached to a household timer, was inserted through a small hole drilled in the side. The second device caused a natural gas explosion. The plug on the gas line leading into the basement of the Lounge had been removed, allowing gas to fill the room. A Kentucky Fried Chicken container filled with a flammable liquid was placed on a table and was ignited by means of a household timer and an electrical transformer. When the liquid ignited, so did the gas.

The explosions and fire made it difficult to determine whether Maher had been killed by the blast; the experts disagreed about whether she had been beaten to death first. York was at home later that night when Maher's father, Richard Schottenloher, called him with the news of the explosion. When York arrived at the Lounge, Schottenloher saw that he was wearing an elastic bandage around one hand. York said nothing, other than to complain of a headache. He did not inquire about Gail Maher's whereabouts or condition.

York did not attend the funeral. When Kim Bunting called York to ask why the family had not received any word or gesture of condolence from him, York offered an excuse--a family trip to Mexico that had been arranged several months before, he said, prevented him from attending the funeral--and then began to quiz Bunting about the police investigation and the condition of Maher's body when it was found. How badly was her face burned? Had her right arm disintegrated as he had heard? Had she been very close to the explosion? Who had identified the body? Did Bunting know about Maher's debts to people associated with the Mafia? Nonplussed, Bunting told York that all she cared about was finding Gail's killer; there was an icy silence on the line when she asked York if he shared her concern. This conversation fueled Bunting's suspicions of York; shortly afterward, she wrote to Allstate on behalf of her niece Tammy, contesting York's claim to Maher's insurance proceeds.

No one had contested York's claim to the insurance proceeds York collected three

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years before, after his first wife, Maureen Jurkiewicz, was murdered. York was the beneficiary of Jurkiewicz's life insurance policy when she was killed. That policy was with the Allstate Insurance Company, for $50,000, and included a double-indemnity clause. Police found the body of York's wife decomposing in a small creek some two weeks after she disappeared in May 1978. Jurkiewicz had disappeared one day after she wrote the following note to York:

Tom, I'm past talking. Couldn't get in touch with the lawyer today, but will Monday if I have to sit on the phone one hour on hold. I don't care if the phones at work are ringing off the hook. I asked Laurie Gentile to drive Ann to the tutor Saturday after I was accused of trying to bribe you to take you own daughter to a tutor so she'll pass. Laurie will drive her. It's taken care. It's not your concern anymore. You have endured great injustices all these years. Now it's over. Don't wash any clothes. Don't cook any food. Don't go for groceries. Don't do anything. Just get out of my life completely.

She had been shot once through the left temple. York owned a gun, but the bullet that killed his wife had fragmented and could not be traced to a particular weapon. No other evidence was found when the body was recovered.

York was apparently the last person to see his wife alive. Deanne Gentile, Jurkiewicz's cousin, spoke with her by phone for about twenty minutes just before midnight on the night of May 6, 1978. According to Gentile, Jurkiewicz's tone changed abruptly near the end of their conversation. When she called Jurkiewicz back twenty minutes later, York answered. Gentile asked for Jurkiewicz; York told her that her "goddamn cousin" had probably gone out to get a newspaper. Gentile knew from the earlier conversation, however, that Jurkiewicz had purchased a paper earlier in the evening.

York told the same story to the police the next day when he reported his wife missing. His wife, he told police, must have left the house before 11:00 p.m. because that was when the store closed. York told a different story to his wife's employer, however. His wife was late to work, he said, because she had taken their children to church. He told yet another story to his daughter. Her mother, he said, had been taken hostage at work by robbers who had taken her money and jewelry and then shot her.

York told the police nothing else, and instructed his children not to talk to the police or family members about their mother's disappearance. Shortly after his wife's body was found, York took his children to Disney World.

York was never charged with killing his wife. In May 1986, however, a federal grand jury indicted York, charging that he had used the mails in an attempt to defraud the insurance company by blowing up the Just Friends Lounge and killing Maher, and that he had committed arson. At a hearing before the trial, York's son Tommie invoked his fifth amendment privilege against self-incrimination and refused to answer substantive questions about the events surrounding Maher's death. After the hearing, while the parties were still in the courtroom...

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