U.S. v. Boulahanis
| Decision Date | 06 May 1982 |
| Docket Number | No. 81-1405,81-1405 |
| Citation | 677 F.2d 586 |
| Parties | 10 Fed. R. Evid. Serv. 598 UNITED STATES of America, Plaintiff-Appellee, v. Nick BOULAHANIS and Donald Scalise, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Allan A. Ackerman, Ackerman & Egan, Ltd., Chicago, Ill., Robert S. Bailey, Chicago, Ill., for defendants-appellants.
Louis M. Fischer, Dept. of Justice, Washington, D. C., for plaintiff-appellee.
Before ESCHBACH, Circuit Judge, NICHOLS, Associate Judge, * and POSNER, Circuit Judge.
Nick Boulahanis and Donald Scalise appeal from their conviction on one count of violating the Hobbs Act, 18 U.S.C. § 1951, and one count of violating 18 U.S.C. § 894 ().
Nick Velentzas owned the Hellenic Social Club in Chicago. Men, mostly of Greek extraction, would come there to talk, drink coffee, play cards, and shoot dice-and gamble. One night the appellants showed up in the company of Frank Renella. They proceeded to beat up Velentzas, and one of the appellants also smashed a lot of furniture. Velentzas went the next day to the FBI, who equipped him with a recording device which he strapped to his ankle. That night the appellants and Renella reappeared and had a conversation with Velentzas (outside the club) that was taped by the recording device. In this conversation, which was played to the jury, the appellants and Renella told Velentzas in language free from any shade of ambiguity that if he did not pay them $300 for the past month and $500 per month thereafter for allowing gambling in the club they would shut it down, while if he did pay they would not only "terrorize nobody more in here" but would beat up anyone else who was trying to extort money from Velentzas.
Several days later, Renella turned himself in to the FBI and made statements incriminating himself and one of the appellants. He was indicted along with both appellants and all three were scheduled to be tried together. Prior to trial Renella moved to suppress his statements and at the suppression hearing it emerged that he was a former FBI informant. Shortly after this bombshell exploded, Renella disappeared. The appellants moved to sever his trial from theirs. The government opposed the motion; it wanted to try Renella in absentia along with the appellants. Before acting on the motion the court conducted a hearing into the circumstances of Renella's employment as a government informant. The hearing revealed that Renella had been dropped as an informant three years earlier (though without being told of the fact). Since then he had had intermittent contacts with the FBI, culminating in the meeting in which he turned himself in, but he had not returned to the government payroll or passed information to the government beyond what anyone who found himself in a criminal scrape might pass in an effort to get more lenient treatment for himself. He had not given the government any information about the appellants' defense tactics or planning.
The district court granted the motion to sever Renella's trial from the appellants' and also the motion to suppress Renella's statements. The appellants argue that this was not good enough; that the planting of a government informant in the defense camp was so reprehensible that nothing short of dismissal of the case with prejudice will remove this ugly stain from the Justice Department's escutcheon. We disagree with this characterization of the government's conduct. Hiring a criminal as an informant does not create an indissoluble lifetime bond between him and the government. When Renella ceased to be an informant the government could treat him like any other criminal, and indict and try him with his confederates if that was otherwise the proper procedure in the circumstances. Of course if while under indictment Renella had decided to try to revive his relationship with the FBI and had come to them with an offer to spy on his codefendants in exchange for money or leniency, the FBI would have been guilty of serious misconduct in accepting the offer. Since there is no evidence this happened, we need not speculate on what (if any) further sanction for such misconduct would be appropriate, beyond suppression of the fruits of the improper spying.
Another procedural issue has to do with the admission into evidence at the appellants' trial of the grand jury testimony of James Chiampas, who was present at the Hellenic Social Club on both of the crucial nights. He was scheduled to testify for the prosecution, but before the trial began he told the government that he would not testify because he was afraid of being killed. Velentzas had been murdered by persons unknown and Renella had fled, perhaps because of fear for his own life. Chiampas was nevertheless subpoenaed to appear at trial and he did appear, but he refused to answer any questions though ordered twice to do so by the judge; he explained that he was afraid for his life. He was then excused and the government offered in evidence his grand jury transcript. The court admitted it, and it was read to the jury. In it Chiampas described the fight and also stated that the appellants had returned the next night and gone outside with Velentzas.
The appellants contend that the admission of the grand jury transcript into evidence violated both the Federal Rules of Evidence and the Sixth Amendment, since a transcript cannot be cross-examined. Rule 804(a)(2) of the Federal Rules of Evidence allows a hearsay statement to be admitted only (so far as is relevant here) if the declarant "persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so ...." The appellants contend that Chiampas' persistence was not adequately tested because the district judge did not threaten him with contempt. But Chiampas was accompanied by counsel who must have explained to him the possible consequences of failing to testify. And since Chiampas' testimony, as we are about to see, was not vital to the government's case, it would have been needless cruelty for the court to have put Chiampas to a choice between going to jail and running the risk of meeting Velentzas' fate.
But persistence of a witness in failing to testify is only a necessary and not a sufficient condition for admitting a hearsay statement. Since grand jury transcripts do not come within one of the specific hearsay exceptions in Rule 804, they are admissible if at all only under the stringent criteria of 804(b) (5), the catch-all provision, which requires, so far as is relevant here, both "circumstantial guarantees of trustworthiness" equivalent to those of hearsay statements within the specified exceptions and that the statement be "more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts." We think these conditions were also satisfied, though the first more clearly than the second. Chiampas had testified before the grand jury under oath of course, and hence subject to being prosecuted if he perjured himself, but also, so far as appears, without having been pressured to testify. It is conceded that he was a disinterested witness-a mere bystander, with no axe to grind. And his testimony was corroborated at every point by the tape of the conversation, and on most points by testimony of eyewitnesses as well, including Scalise. The government stresses the corroboration but of course that undermines the second condition of admission, that the hearsay declaration be the most probative possible evidence. The government points out that at the time Chiampas' transcript was offered in evidence there was no other direct evidence that the appellants had been present at the fight, though it could be readily inferred from the tape, and says this was an essential part of its case. It was not. The tape provided all the evidence the government needed to show extortion by the appellants.
But Rule 804 does not require that hearsay evidence be essential in order that it be admissible. It is enough that it is the most probative evidence reasonably available on a material issue in the case. It was material though not essential for the government to show that the appellants had beaten up Velentzas the night before the taped conversation; it was further evidence that the transaction discussed in the taped conversation was extortionate and not, as the appellants tried to show at the trial, a normal business transaction. And at the time that Chiampas' grand jury testimony was read into evidence the government had no other direct evidence that it was the appellants who together with Renella beat up Velentzas. It is true that later in the trial Scalise admitted his...
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