U.S. v. Cammisano, 89-3041

• Decision Date: 13 December 1990
• Docket Number: No. 89-3041,89-3041
• Citation: 917 F.2d 1057
• Parties: UNITED STATES of America, Appellee, v. William D. CAMMISANO, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1057

917 F.2d 1057

UNITED STATES of America, Appellee, v. William D. CAMMISANO, Jr., Appellant.

No. 89-3041.

United States Court of Appeals,

Eighth Circuit.

Submitted June 11, 1990.

Decided Oct. 24, 1990.

Rehearing Denied Dec. 13, 1990.

Lawrence H. Pelofsky, Overland Park, Kan., for appellant.

Michael J. Dittoe, Kansas City, Mo., for appellee.

Before McMILLIAN and BOWMAN, Circuit Judges, and HENLEY, Senior Circuit Judge.

HENLEY, Senior Circuit Judge.

William D. Cammisano, Jr. was indicted on two counts of witness tampering, one count of obstruction of justice, and one count of subornation of perjury, in violation of 18 U.S.C. Secs. 1503, 1512 and 1622. The jury found him guilty of obstruction of justice, not guilty of one count of witness tampering, and was unable to reach a verdict on the other count of witness tampering and the count of subornation of perjury. On the obstruction of justice conviction, the district court departed upward from the Sentencing Guidelines and sentenced Cammisano to five years imprisonment and also imposed a $25,000.00 fine and a $50.00 special assessment fee. We affirm the conviction, but remand for resentencing.

In 1988 the Federal Bureau of Investigation (FBI) in Kansas City, Missouri was conducting an investigation into the murder of Roger Reid. The FBI was also investigating C & C Associates, an alleged money-laundering operation. Cammisano was vice president of C & C Associates and Marvin Carnesecca was president. In January, 1987 Cammisano, who was in his thirties and married, began dating Carnesecca's seventeen-year-old daughter, Carey. In June, 1987 Carey accompanied Cammisano on a trip to Las Vegas where he played in a golf tournament with William Walters. Walters and Cammisano bet money on the tournament. At the end of the first round Cammisano owed Walters $50,000.00. While in Las Vegas Cammisano was able to collect the money from various people, including Reid. Carey and Reid were present when the money was counted out in a hotel room and Carey was present in a restaurant when Cammisano gave Walters a paper bag containing the money which was passed under a table. By the end of the tournament Cammisano owed Walters approximately $119,000.00. After Cammisano returned to Kansas City, Walters telephoned him about ten times to inquire when he would pay the debt. Cammisano did not pay the debt. In August, 1988 Reid was murdered. At trial Carey testified that Reid was a "financial backer" of Cammisano's gambling debt to Walters.

On October 30, 1988 the FBI interviewed Carey concerning any information that she might have regarding Reid's murder. Following the interview, pursuant to court authorized electronic surveillance, the FBI intercepted a telephone call in which Carey told her mother about the interview. Her mother told Carey to tell the agents that she did not know anything. Carey assured her mother that she would because she "did not want [her] ass blown away."

On November 8, 1988 the FBI again interviewed Carey and informed her that she would likely be called to appear before the grand jury investigating the Reid murder. Following the interview, the FBI agents intercepted a telephone call between Carey and Cammisano. Carey told him that the FBI had been questioning her concerning the Las Vegas trip and Reid's connection to it. Cammisano told her that she did not have to talk to the FBI agents and that if she was subpoenaed to appear as a witness before the grand jury she could claim her fifth amendment right not to incriminate herself. He further explained that if the FBI thought that she had valuable information they would offer her immunity. Carey then asked Cammisano what she should do in that event. The following interchange occurred:

Cammisano: When the time comes ... then you can always tell the truth.

Carey: The real truth.

Cammisano: There's no law, who broke any law?

Carey: Nobody did. Well, like you said.

Cammisano: I wasn't out there with Roger.

Carey: Right.

Cammisano: We don't know what Roger did or what he's into. I went out there and played golf. I gambled, so does everybody else. Maybe I gamble for a living....

Carey: Okay.

* * * * * *

Cammisano: There ain't no money ever exchanged hands. And Roger didn't have anything to do with that.

Carey: Right.

On February 8, 1989 Carey appeared before the grand jury. She testified under a grant of immunity and stated that she did not know of the contents of the bag passed between Cammisano and Walters at the Las Vegas restaurant. However, she later recanted her testimony and testified that the bag contained money.

At trial Carey testified that in the November 8 conversation she believed that Cammisano had told her to lie before the grand jury because she knew that money had exchanged hands. She stated that Cammisano had intimidated her because of the tone of his voice. She further stated that she feared Cammisano because he had physically abused her in the past and related incidents of abuse in the summer and fall of 1987. On cross-examination, Carey stated that she also feared Cammisano because he had a reputation for violence. She stated she had heard that Cammisano had murdered his brother and that his family was in the "Mafia."

Cammisano testified that he had never abused Carey, but was only concerned for her welfare. During cross-examination, the government asked whether he had a violent temper when it came to women. He responded that he did not think that he did. The government then asked, "Isn't it true that on or about October 25th, 1986, you beat your wife, you beat your children, your wife left you and your children left you and your father and [your brother] Vince Cammisano talked about that, isn't that correct, sir?" Cammisano responded, "I have no knowledge of that." The government then asked, "You specifically deny under oath that you beat your wife, you beat your children, and that your father and Vince Cammisano talked about it? I can refresh your memory should you wish." Cammisano responded, "I do not beat my wife. I have not beat my children any more than anybody else has reprimanded their children."

Over Cammisano's objection, the government introduced a tape recording of an October 25, 1986 telephone conversation between Cammisano's father, William Cammisano, Sr. (WCS) and his brother, Vince Cammisano (VC), in which the brother informed the father that Cammisano's daughter Antoinette had come to live with him. The relevant parts of the conversation follow.

VC: Oh, I don't know, it's been goin' on for about three days.

* * * * * *

VC: Well, they all left.

WCS: They left?

* * * * * *

VC: Well, he just, they just, uh, he just beat her [wife] up in front of the kids and gonna do that and beat the kids, gonna beat the kids up too, or whatever and, and, uh, they finally, they all, uh, they took off and, and, uh, left, Antoinette does not want to go back.

* * * * * * WCS: Did she, did Antoinette tell ya the reason for anything, why or anything like that? She tell you anything at all?

VC: She told Judy, I don't know what all the details were of what happened. Exactly.

WCS: That why he hit his wife on account of Antoinette or somethin'?

VC: Uh, well, I'd say, like I say, I don't know the, the, you know, the details about it, because Antoinette usually is, is goin' to work when I'm leavin' you know, and then she gets home and she's asleep when I'm home. So I really haven't sat down and talked to Antoinette at all about it.

In rebuttal Antoinette testified that although she left her father's home following an argument, he had not beaten her or her mother.

The district court allowed the tape into evidence as an exception to the hearsay rule either as a present sense impression under Fed.R.Evid. 803(1) or as an excited utterance under 803(2).

On appeal Cammisano first argues that the district court erred in admitting the taped conversation between his brother and his father into evidence under Rule 803(1) or (2). Cammisano asserts that either exception requires a showing that the statement was made contemporaneous with the event, and in this case the relevant event was the alleged beating which occurred three days prior to the conversation. He also emphasizes that the conversation was based on multiple hearsay because his brother had not discussed the event with Antoinette. We are inclined to agree that the tape was inadmissible under Rule 803(1) or (2). We, however, need not decide this issue, or address the government's contention that the tape was admissible under other hearsay exceptions. The government introduced the tape to demonstrate Cammisano's violent disposition. However, the jury acquitted him of witness tampering under 18 U.S.C. Sec. 1512, which requires the use of physical force, threats or intimidation. See United States v. Risken, 788 F.2d 1361, 1368 (8th Cir.), cert. denied, 479 U.S. 923, 107 S.Ct. 329, 93 L.Ed.2d 302 (1986). The jury only convicted Cammisano of obstruction of justice under 18 U.S.C. Sec. 1503, which does not require the use of force, threats or intimidation. See id. Thus, any error in the admission of the tape did not prejudice Cammisano and was harmless.

We further find that Cammisano's challenges to two pretrial rulings and his assertions that the district court erred in admitting certain evidence, excluding certain evidence, limiting his cross-examination of Carey, and refusing two proffered jury instruction's concerning Carey's credibility are without merit. In addition, our review of the record convinces us that the district court's conduct did not deprive Cammisano of a fair trial, as he asserts on appeal.

Cammisano also challenges his sentence imposed under the Sentencing Guidelines. Under the Guidelines Sec. 2J1.2, the base offense level for obstruction of justice was 12. Because Cammisano had no criminal history points, his criminal history category was I, resulting in a sentence range of between 10 and 16 months. The...