U.S. v. Arnold, s. 84-2139

• Decision Date: 18 September 1985
• Docket Number: Nos. 84-2139,84-2176,s. 84-2139
• Citation: 773 F.2d 823
• Parties: 18 Fed. R. Evid. Serv. 1000 UNITED STATES of America, Plaintiff-Appellee, v. Joseph ARNOLD and Joseph Grieco, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 823

773 F.2d 823

18 Fed. R. Evid. Serv. 1000

UNITED STATES of America, Plaintiff-Appellee, v. Joseph ARNOLD and Joseph Grieco, Defendants-Appellants.

Nos. 84-2139, 84-2176.

United States Court of Appeals Seventh Circuit.

Argued Feb. 19, 1985.

Decided Sept. 18, 1985.

Patrick A. Tuite, Donald R. Harris, Jenner & Block, Chicago, Ill., for defendants-appellants.

Paul Larkin, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before BAUER and COFFEY, Circuit Judges, and BROWN, Senior District Judge. ^*

COFFEY, Circuit Judge.

The defendants, Joseph Arnold and Joseph Grieco, appeal their convictions for conspiring to obstruct justice by corruptly influencing a witness to refuse to testify before a Federal grand jury and for obstruction of justice. We affirm.

I

The defendants' trial in the United States District Court for the Northern District of Illinois revealed that on June 5, 1978, a Federal grand jury investigating the loan sharking activities of Arnold and Grieco subpoenaed one Ralph Carazzo to testify about his debts with the defendants. Carazzo appeared before the grand jury but, rather than testify, he invoked his Fifth Amendment privilege against self-incrimination in response to the grand jury questions. On April 2, 1979, some ten months later, Chief Judge Parsons authorized the Government to install an eavesdropping device at Mr. Arnold's place of business, a small dry goods store known as "Odds & Ends," to intercept Arnold's conversations relating to unlawful interference with interstate commerce by means of threats of violence, in violation of the Hobbs Act, 18 U.S.C. Sec. 1951, and conspiracy, in violation of 18 U.S.C. Sec. 371. On May 31, 1979, the eavesdropping device recorded a conversation between Arnold and Grieco concerning the Federal grand jury's investigation of their loan sharking activities and the possibility that Carazzo might be recalled to testify. During the conversation the defendants, Arnold and Grieco, determined that Carazzo and, perhaps, one other debtor might possibly incriminate them. Arnold and Grieco concluded: "[w]e need to step on him a little, ya know, we can't just let him go ahead." The two men further agreed that they would "take care of the people that take care of you."

Shortly thereafter, the grand jury subpoenaed Carazzo to appear on June 13, 1979. Carazzo informed Arnold of the subpoena and Arnold met with Grieco on June 7, 1979, six days before Carazzo's scheduled grand jury appearance, to discuss the possibility of Carazzo testifying. The defendants agreed that "[Carazzo] gotta take the advice of the lawyer and do whatever the lawyer tells 'em." Arnold and Grieco further agreed to meet with Carazzo and his lawyer, and that they would "take care of" Carazzo if he were to be imprisoned for refusing to testify. Later that same day, Arnold and Grieco met with Carazzo to discuss his grand jury appearance. Grieco informed Carazzo that if he did not testify, Arnold and Grieco would take care of his expenses, provide an attorney, forgive his debt, visit him in jail if he were imprisoned for remaining silent, and provide him with spending money while he was incarcerated. Grieco, after reminding Carazzo of the financial assistance he had given him in the past, warned him, "by saying what they want ya to say, they're not gonna shadow you all their life." Grieco also suggested that Carazzo ask to consult with his attorney after each and every question to discourage the grand jury from pursuing its examination of him.

On June 9, 1979, Grieco advised his co-defendant Arnold of all the details of his meeting with Carazzo, and Carazzo's attorney. According to Grieco, he told Carazzo:

"Let's call a spade a spade, you hear, you're going our way, or you're going their ________ way. And I told 'em (inaudible) and they don't protect you when its all over with either. I says they throw you to the ________ street, they don't give a ________. They're only trying to use ya."

Grieco further related to Arnold that he had promised to pay the lawyer's fee of $500.00 and to provide Carazzo with money to spend at the prison commissary. Additionally, Grieco advised Arnold that he had cautioned Carazzo against discussing the arrangements with other inmates or on the prison phone because the phones were "tapped" and the inmates might very well be informers. Grieco and Arnold decided that Carazzo should pay his lawyer with a money order in order that their role might be obscured.

On June 12, Carazzo met with Arnold and Grieco to discuss his grand jury appearance the following day. Grieco told Carazzo that if he were to dress slovenly and pretend to be ill, the grand jury might think that he was unimportant and uninteresting. Grieco and Arnold also told Carazzo to put his name, not theirs, on the money order for the lawyer's fee.

On June 13, Carazzo appeared before the grand jury and, after answering the first question asking for his name, invoked his Fifth Amendment privilege against self-incrimination in response to each and every question thereafter. The prosecutor informed Carazzo that he could receive immunity and be forced to testify or imprisoned for contempt for failure to testify under court order, and that the Government could, and would, protect him if he were in danger. Carazzo continued to invoke his privilege against self-incrimination and was excused. Later that day, Carazzo met with Arnold and informed him that the Government played a tape in which Grieco and one James Inendino discussed the sale of Carazzo's debt to Grieco. Carazzo also told Arnold that he had been asked to identify several photographs, including one of Arnold and Grieco. Carazzo reassured Arnold several times during the conversation that he had invoked his privilege against self-incrimination in response to all questions except the first, asking for his name.

On November 28, 1979, some five months later, the Government obtained an immunity order compelling Carazzo to testify before the grand jury. Carazzo appeared before the grand jury on November 29 and again refused to answer any questions. Carazzo then moved to suppress the grand jury's questions on the ground that they were the product of illegal surveillance, but the motion was denied. Carazzo continued in his refusal to answer grand jury questions and was subsequently confined for eighteen months for contempt of court. Carazzo never testified before the grand jury.

At trial, Arnold and Grieco, who neither testified nor called witnesses, argued to the jury that Carazzo had independently decided to invoke his Fifth Amendment privilege against self-incrimination. Thus, under their view, the Government had failed to prove that they corruptly influenced Carazzo to invoke his self-incrimination privilege before the grand jury. The jury convicted each defendant on both the conspiracy to obstruct justice and the obstruction of justice counts. The defendants were sentenced to five years imprisonment and fined $10,000 for the obstruction of justice convictions and were placed on probation for five years, beginning upon their release from confinement, for the conspiracy convictions. On appeal they argue (1) the trial court erred in denying their pretrial motion to suppress the conversation taped by the eavesdropping device; (2) the Omnibus Clause of the pre-1982 version of the Federal Obstruction of Justice statute, 18 U.S.C. Sec. 1503, does not apply to witnesses; (3) the district court erred in admitting "other acts" evidence; and (4) the evidence failed to show that they endeavored to influence Carazzo's testimony before the grand jury.

II

A. The Motion to Suppress the Taped Conversations

In their pretrial motion to suppress the taped conversations, the defendants argued that the Government violated 18 U.S.C. Sec. 2517(5) requiring the Government to make application to the court "as soon as practicable" when it intends to testify before a grand jury or in any criminal proceeding about intercepted communications involving offenses other than those for which the court originally authorized interception. As the defendants noted in their motion to suppress, the Government alleged in their original application for a wire intercept that it had probable cause to believe that it would intercept communications relating to two crimes: the unlawful interference with interstate commerce by means of threats or violence, in violation of the Hobbs Act, 18 U.S.C. Sec. 1951 (the making of "protection" payments by the operators of certain businesses in the Rush Street area of Chicago, Illinois); and conspiracy to commit the Hobbs Act offense, in violation of 18 U.S.C. Sec. 371. The court authorized the Government to intercept communications relating to the Hobbs Act and conspiracy offenses at "Odds & Ends," Arnold's dry goods store, for thirty days. On May 25, 1979, Judge Parsons authorized a second wiretap at "Odds & Ends" to obtain evidence of the Hobbs Act and the conspiracy offenses as well as the "loan sharking" offenses--making extortionate extensions of credit, in violation of 18 U.S.C. Sec. 892, and using extortionate means to collect extensions of credit, in violation of 18 U.S.C. Sec. 894. The nine communications involved in the present prosecution for obstruction of justice were all intercepted during this second period of surveillance; the first conversation concerning Carazzo's testimony before the grand jury was intercepted on May 31, 1979; the last conversation involving his testimony was intercepted on June 13, 1979.

On January 17, 1983, some thirty-one months later, the Government submitted an application to and received authorization from Judge McGarr, who replaced Judge Parsons as chief judge, to present the conversations concerning obstruction of justice to a grand jury, pursuant to 18 U.S.C. Sec. 2517(5). In their motion to suppress, the defendants argued that the thirty-one month delay between the interception of the...