U.S. v. Chiavola, 83-3005

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: BAUER
• Citation: 744 F.2d 1271
• Parties: 16 Fed. R. Evid. Serv. 685 UNITED STATES of America, Plaintiff-Appellee, v. Anthony CHIAVOLA, Jr., Defendant-Appellant.
• Docket Number: No. 83-3005,83-3005
• Decision Date: 21 September 1984

Page 1271

744 F.2d 1271 16 Fed. R. Evid. Serv. 685 UNITED STATES of America, Plaintiff-Appellee,
v.
Anthony CHIAVOLA, Jr., Defendant-Appellant. No. 83-3005. United States Court of Appeals,
Seventh Circuit. Argued June 4, 1984.
Decided Sept. 21, 1984.

Page 1272

James R. Ferguson, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

David S. Mejia, Law Offices of Patrick A. Tuite, Ltd., Chicago, Ill., for defendant-appellant.

Before BAUER, EDWARDS, ^* and ESCHBACH, Circuit Judges.

BAUER, Circuit Judge.

Defendant Anthony Chiavola appeals his conviction on two counts of conspiracy and extortion under 18 U.S.C. Sec. 1951 (1948). He contends that the government's use of evidence obtained from a telephone "overhear," use of co-conspirator testimony, and improper cross-examination each require reversal. We affirm.

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The defendant, a Chicago Police Department patrolman, was arrested along with three other men, Joseph Sleyano, Douglas Eckhardt, and Nick Addante, in connection with the theft of several gems from Mehul Shah. Sleyano and Eckhardt set Shah up for the theft by feigning interest in purchasing gems for a relative's jewelry store. Those two men lured Shah to a downtown Chicago restaurant on June 17, 1982, where Shah, while walking with a friend and Eckhardt toward Shah's car, was accosted by two different men posing as police officers. The men claimed that Shah's car was reported as a stolen vehicle. Shah produced his vehicle registration, but the men nevertheless ordered Shah to empty his pockets and fled with the contents, including the gems.

When the police arrived minutes later, they arrested Eckhardt, whose act as a crime victim apparently was not convincing. After his arrest, Eckhardt implicated Sleyano in the robbery. Eckhardt was indicted, but later pleaded guilty and agreed to testify against his co-conspirators. Sleyano was indicted, tried by a jury, and convicted. His appeal is pending before this court.

Shah implicated the defendant in the robbery as one of the men posing as a police officer on June 18 when he picked the defendant's picture out of a photograph album. In addition, the police linked the defendant to the crime when they discovered that Sleyano was carrying a business card with the name "Tony" hand-printed on it together with a telephone number later identified as the defendant's unpublished number. The police had Sleyano dial that telephone number, and Detective Paul Carroll listened to the conversation between Sleyano and the defendant through the same earpiece Sleyano was using. The defendant made incriminating remarks during the conversation and was arrested immediately thereafter. Shah later picked him out of a line-up at the station house.

The government's case at trial rested principally on testimony from victim Shah, co-conspirator Eckhardt, and Detective Carroll, including his testimony regarding the contents of the telephone conversation. The defendant asserted as an alibi defense that he was with family and friends the entire day of June 17. The jury convicted the defendant on both counts after a four-day trial and the court sentenced him to concurrent terms of three years imprisonment on each count.

The defendant argues that the evidence obtained from the telephone call between Sleyano and the defendant which Detective Carroll overheard should have been suppressed because it was obtained in violation of Sleyano's rights. Generally, individuals not personally the victims of illegal government activity cannot assert the constitutional rights of others. United States ex rel. Cunningham v. DeRobertis, 719 F.2d 892, 895-96 (7th Cir.1983). The defendant nonetheless argues that the violation of Sleyano's rights rose to the level of a violation of the defendant's fifth amendment rights. Alternatively, the defendant urges us to exercise our supervisory power to suppress the evidence, which the police allegedly obtained by beating Sleyano.

The defendant correctly states that a violation of another person's fifth amendment rights may rise to the level of a violation of his rights to a fair trial. See Cunningham, 719 F.2d at 896; Bradford v. Johnson, 354 F.Supp. 1331 (E.D.Mich.1972), aff'd, 476 F.2d 66 (6th Cir.1973). Due process is implicated when the government seeks a conviction through use of evidence obtained by extreme coercion or torture. The issue is whether the government's investigation methods resulted in a fundamentally unfair trial. We believe that the defendant here received a fair trial.

The defendant's claims that his trial was fundamentally unfair because alleged police misconduct forced Sleyano to participate in the telephone conversation fails under the circumstances in this case. Unlike the situations presented in Cunningham, LaFrance v. Bohlinger, 499 F.2d 29 (1st

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Cir.), cert. denied, 419 U.S. 1080, 95 S.Ct. 669, 42 L.Ed.2d 674 (1974), and Bradford, the alleged misconduct here did not directly produce the evidence to which the defendant objects. The defendant complains that introduction of the substance of his telephone conversation was unfair because police coerced Sleyano into placing the call. But the police discovered the business card with the name "Tony" and the defendant's telephone number hand-printed on it in the normal course of their investigation. That evidence was not the product of misconduct. The defendant cannot claim that police discovered him solely as a result of mistreatment of Sleyano. He also cannot claim that his incriminating statements were the direct fruit of coercion. All the defendant can argue is that Sleyano may have dialed the telephone and spoken into it against his will. This is fundamentally different from a claim that extreme...