U.S. v. Cirrincione

• Decision Date: 17 January 1986
• Docket Number: Nos. 84-2812,84-2813,s. 84-2812
• Citation: 780 F.2d 620
• Parties: UNITED STATES of America, Plaintif-Appellee, v. Biagio CIRRINCIONE and Tom Cirrincione, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 620

780 F.2d 620

UNITED STATES of America, Plaintif-Appellee, v. Biagio CIRRINCIONE and Tom Cirrincione, Defendants-Appellants.

Nos. 84-2812, 84-2813.

United States Court of Appeals Seventh Circuit.

Argued May 28, 1985.

Decided Dec. 11, 1985.

As Amended Dec. 12, 1985.

Rehearing Denied Jan. 17, 1986.

David S. Mejia, Office of Patrick A. Tuite, Ltd., Maren Dougherty, Genson & Steinbeck, Chicago, Ill., for defendants-appellants.

James D. O'Connell, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, FLAUM, Circuit Judge, and CAMPBELL, Senior District Judge. ^*

FLAUM, Circuit Judge.

Appellants Biagio and Tom Cirrincione appeal their convictions for conspiring to bomb several of a competitor's restaurants. The Cirrinciones raise five issues on appeal: (1) whether the two defendants knowingly and voluntarily waived their right to separate counsel; (2) whether an actual conflict of interest existed that deprived the two co-defendants of their sixth amendment right to effective assistance of counsel; (3) whether the trial court erred in denying the defendants' motion for severance; (4) whether Biagio was denied his procedural due process rights by the absence of an interpreter at all pre-trial proceedings and at trial; and (5) whether the defendants should receive a new trial because of the prejudice from alleged hearsay that was admitted into their trial.

We affirm the district court on all five issues and hold all errors harmless.

I. Facts

In 1969, Rocco Palese came to the United States from Italy with his family. The Palese family owned and operated a series of Italian restaurants, including a string of pizza parlors named "Nancy's Restaurant" in honor of Rocco Palese's wife. The Nancy's Restaurants specialized in stuffed pizza that was made from a "secret recipe" developed by Rocco Palese. The first Nancy's opened in 1974 on Lawrence Avenue in the Harwood Heights neighborhood of Chicago. The Palese family intended to franchise a chain of Nancy's pizza parlors and in 1977 began plans to open a second Nancy's on Central Avenue.

Defendant Biagio Cirrincione came to the United States from Italy in 1966, bringing with him his wife Josephine and several children, including his son, defendant Tom Cirrincione, who was born in Italy in 1959. The Cirrinciones also owned and operated a series of Italian restaurants in Chicago and in November 1977 agreed to purchase the Lawrence Avenue Nancy's pizza parlor from the Paleses. The agreement of sale provided that the Paleses would give the Cirrinciones the secret recipe for Rocco's stuffed pizza. Before the Cirrinciones were given the recipe, Biagio Cirrincione allegedly warned Rocco Palese, "If you do not give me the right recipe, gasoline is cheap. Only costs a dollar."

Two years later the Cirrinciones bought another Nancy's pizza parlor from the Paleses, this one on Central Avenue. The contract of sale included a covenant by the Palese family not to compete within a ten-mile radius, with the exception of the third Nancy's recently opened by the Paleses on Golf Road, and the area east of Clark Street. Within the year Biagio Cirrincione complained to Rocco Palese's daughter, Marisa, that the Golf Road Nancy's was too close to the two Nancy's that Cirrincione owned. On Halloween night, 1980, the Golf Road Nancy's exploded into flames. The restaurant's back window had been broken and two gallons of gas had been thrown into the kitchen. The Golf Road Nancy's was severely damaged and did not reopen until 1982.

The Paleses opened a Nancy's on Broadway in June of 1981 and several months later the Cirrinciones and the Paleses entered into negotiations for the sale of the "Nancy's" name. Biagio Cirrincione allegedly agreed orally to pay Rocco Palese a total of $50,000 for the use of the name. However, it was agreed that Biagio would pay $25,000 openly and the other $25,000 "under the table." The two families met at the Lawrence Avenue Nancy's to sign the contract, but when Biagio refused to pay the second under-the-table payment, Rocco tore up the contract. Immediately after this meeting Biagio's wife Josephine allegedly offered $2,500 to an employee named Steven Pace to shoot Rocco's son Ted. Biagio calmed his wife down but then allegedly suggested framing Ted by planting drugs on him, a plan that was also later dropped.

Several months later Steven Pace told Tom Cirrincione that Pace and Biagio Cirrincione's son-in-law, Ned Siegel, were the ones who had bombed the Golf Road Nancy's. In late fall, 1981, at Tom Cirrincione's request, Pace met with Tom and Biagio. Biagio allegedly offered Pace a total of $15,000 to bomb the rebuilt Golf Road Nancy's, the Broadway Nancy's, and the Paleses' home. Pace then obtained dynamite in Kentucky. Early New Year's day morning, Pace placed a time-bomb in the Golf Road Nancy's which went off that evening, destroying the entire rear wall of the restaurant. A week later a molotov cocktail was thrown into the Broadway Nancy's. The restaurant, and the adjoining businesses, were severely damaged. In May 1982 Pace was arrested for his participation in the bombings. Nearly two years later Pace agreed to testify against Biagio and Tom Cirrincione.

The facts underlying the conflict of interest claim arose when, before trial, Biagio Cirrincione was interviewed by an Assistant United States Attorney. In that interview he denied ever knowing or employing Steven Pace, and denied any involvement in the bombings. Tom Cirrincione was subpoenaed to appear before a grand jury investigating the bombings. Tom testified that every member of his family knew Pace, that he and his father employed Pace, and that Pace had visited Biagio Cirrincione's home on Christmas day 1981, the day Pace claimed to have shown Biagio and Tom the dynamite that he and a friend, Lester Lewis, were going to use to bomb the Golf Road Nancy's at Biagio's request. These contradictory statements were not revealed to the district court judge at the pretrial hearing held to determine whether Biagio and Tom could be represented by the same attorney.

At the hearing before the district court, Biagio and Tom stated that they wished to waive their right to separate counsel. The Cirrinciones' attorney stated, when asked whether he could ethically represent these two defendants, "In my opinion, your Honor, both are charged with the same offenses, they pled not guilty, they have a common defense, no antagonistic defenses, no possibility of conflict, no clear potential for conflict whatsoever." Conversely, the prosecutor stated: "Judge, I think there is enormous potential for conflict ... their culpability even as alleged is somewhat different ... you can view it as totem-pole crime, Mr. Biagio Cirrincione was really on the top, the second level being his son, our evidence will be disparate with respect to the two defendants also." Now, in a reversal of their trial position, Biagio and Tom Cirrincione claim that because of the nature of their familial relationship, their misconception of the government's interest in their having separate counsel, and Biagio's inability to fully understand English, they did not knowingly and voluntarily waive their right to separate counsel. The Cirrinciones argue alternatively that if they did waive their right to separate counsel, this court nevertheless should grant them new and separate trials because of the actual conflict their attorney faced at trial. The government now argues that the Cirrinciones did knowingly waive their right to separate counsel and that while the potential for conflict may have been great, there was no actual conflict of interest during the trial.

After the trial, Biagio was convicted of three counts and sentenced to six years, and Tom was convicted of one count and sentenced to two years, of "conspiring to damage property not belonging to defendant by means of an explosive device."

II. Multi-party Representation by a Single Attorney

After reviewing the record we conclude that the district court judge in this case made an adequate inquiry into the validity and voluntariness of the defendants' waiver of their right to separate counsel, and that in spite of the lack of complete disclosure by both sides, the inquiry was sufficient to assure an independent and knowing waiver. In addition, we find there was no actual conflict of interest at trial. While our analysis here closely tracks the district court's able treatment of the defendant's sixth amendment claims, we find it necessary to thoroughly discuss each issue.

A. Waiver

The sixth amendment right to effective assistance of counsel clearly includes a right to conflict-free representation. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. DeRobertis, 771 F.2d 1057 (7th Cir.1985); Wilson v. Morris, 724 F.2d 591, 593 (7th Cir.1984); United States v. Bradshaw, 719 F.2d 907 (7th Cir.1983); United States ex rel. Williams v. Franzen, 687 F.2d 944 (7th Cir.1982); United States v. Gaines, 529 F.2d 1038 (7th Cir.1976); United States ex rel. Robinson v. Housewright, 525 F.2d 988 (7th Cir.1975); United States v. Jeffers, 520 F.2d 1256 (7th Cir.1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976). However, like any constitutional right, it can be waived. As we noted recently in Bradshaw, 719 F.2d at 911, the standard for measuring an effective waiver of a constitutional right was set forth in the case of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938):

A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and...