U.S. v. Cusimano

Decision Date13 October 1998
Docket NumberNos. 97-1186,97-1187 and 97-2786,s. 97-1186
Citation148 F.3d 824
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Antonino CUSIMANO and Philip Ducato, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Duane J. Deskins (argued), Office of the United States Attorney, Criminal Division, Chicago, IL, for Plaintiff-Appellee.

Thomas J. Royce (argued), Chicago, IL, George Pappas, Neville, Pappas & Mahoney, Chicago, IL, for Defendant-Appellant Cusimano.

Carl P. Clavelli (argued), Chicago, IL, for Defendant-Appellant Ducato.

Before POSNER, Chief Judge, and CUMMINGS and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Antonino Cusimano and Philip Ducato challenge their convictions for conspiracy to possess with intent to distribute cocaine. Cusimano also challenges his conviction for possession with intent to distribute cocaine. Specifically, both Cusimano and Ducato argue that the district court constructively amended the indictment through its jury instructions. Ducato also argues that the prosecution denied him a fair trial by impermissibly vouching for the credibility of cooperating witnesses in its closing argument and that the district court erred in denying his motion for a new trial based on newly-discovered evidence. Cusimano alleges that the district court erred in denying his motion to bar the testimony of Victor Bustami, or in the alternative for a new trial. Because we find the defendants' arguments unpersuasive, we affirm their convictions.


The details of Ducato's and Cusimano's activities that led to their arrest and conviction are not of import to this appeal. We will therefore recite only those facts relevant to their claims on appeal. On January 27, 1995, Cusimano and Ducato were arrested for conspiracy to distribute cocaine and possession with intent to deliver cocaine. The arrest was a result of a Drug Enforcement Agency surveillance operation. At trial, the government's key witness was Victor Bustami. Bustami had been involved with Ducato and Cusimano as a confidential informant. Bustami agreed to work with the DEA and testify against Cusimano and Ducato in exchange for a downward departure in his sentencing for an unrelated drug transaction. In addition to Bustami's trial testimony, the government also presented tapes of several conversations between Bustami and the defendants. These tapes were played for the jury.

The indictment alleged a conspiracy existing from "on or about January 19, 1995, and continuing until on or about January 27, 1995." At trial, the district court admitted evidence from outside the indictment period, some of which extended back several years. The government submitted a proffer that explained that the evidence provided necessary background to help the jurors understand the charged conspiracy. The evidence related to the defendants' relationship, their relationship with Bustami, and their connections to the drug trade.

On the first day of the trial, the defendants learned of evidence that could be used to impeach Bustami's credibility. Bustami was arrested bringing a car to auction; the owner of the car had reported it stolen. Bustami claimed that he had a lien on the car, that the owner had not made his payments, and that he lawfully possessed the car. In fact Bustami did not lawfully possess the car. The DEA agents with whom Bustami was working knew about the arrest and Bustami's statements but did not disclose this information to the prosecutor until the day of the trial. The prosecutor alerted defense counsel. In light of this evidence and after a preliminary investigation, Cusimano moved the district court to bar Bustami's testimony because the DEA agents had violated Cusimano's due process rights by failing to turn over the information to the prosecution. This motion was denied by the district court. Post-trial Cusimano renewed his motion to strike or bar Bustami's testimony and moved in the alternative for a new trial. The district court also denied this motion.

After a ten-day trial, the jury found Cusimano guilty of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). The jury found Ducato guilty only of conspiracy.

After the trial, new evidence regarding the extent of Bustami's criminal activities came to the attention of the defendants. While Bustami had testified to being involved with cocaine only, this evidence suggested that on at least one occasion Bustami had delivered heroin for his uncle. Given this new evidence, Ducato moved for a new trial. The district court denied this motion.

This appeal followed.

A. Constructive Amendment of the Indictment

Cusimano and Ducato contend that the evidence introduced at trial and the district court's instructions to the jury amounted to a constructive amendment of the indictment. 1 While not directly challenging the district court's decision to admit evidence of the defendants' relationship prior to the time frame in the indictment, 2 Cusimano and Ducato claim that the admission of this evidence, coupled with the "other acts" instruction, the conspiracy instruction, and the lack of a limiting instruction, resulted in the possibility that they were convicted of a conspiracy other than the one that allegedly existed during the time frame stated in the indictment.

Because Cusimano and Ducato did not raise the constructive amendment issue or object to the jury instructions below, they have waived the objection on appeal. We therefore review for plain error. See United States v. Remsza, 77 F.3d 1039, 1043 (7th Cir.1996); United States v. Leichtnam, 948 F.2d 370, 375 (7th Cir.1991). Under the plain error standard, we will not reverse unless the defendants demonstrate (1) there was error; (2) the error was clear or obvious; and (3) the error affected the defendants' substantial rights. See United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Ross, 77 F.3d 1525, 1538 (7th Cir.1996). If the defendants are able to prove these elements, we have the power to correct the error but are not required to do so. Olano, 507 U.S. at 735, 113 S.Ct. 1770. We will not reverse unless we find the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id. at 736, 113 S.Ct. 1770; Ross, 77 F.3d at 1538. In the context of constructive amendment claims, we have previously held that "[i]n the context of plain error review, the amendment must constitute 'a mistake so serious that but for it the [defendant] probably would have been acquitted' in order for us to reverse." Remsza, 77 F.3d at 1044 (quoting United States v. Gunning, 984 F.2d 1476, 1482 (7th Cir.1993)). 3

"A constructive amendment to an indictment occurs when either the government (usually during its presentation of evidence and/or its argument), the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented by the grand jury." Floresca, 38 F.3d at 710. The introduction of evidence of pre-conspiratorial events does not by itself create a constructive amendment to the indictment. See United States v. Spaeni, 60 F.3d 313, 315 (7th Cir.1995). As we explained in Spaeni:

[T]his circuit has a well-established line of precedent which allows evidence of uncharged acts to be introduced if the evidence is "intricately related" to the acts charged in the indictment. See, e.g., United States v. Ramirez, 45 F.3d 1096, 1102 (7th Cir.1995). Under this doctrine, evidence of uncharged criminal activity is admissible to provide the jury with a complete story of the crime on trial, to complete what would otherwise be a chronological or conceptual void in the story of the crime, or to explain the circumstances surrounding the charged crime. See id. and cases cited therein.

60 F.3d at 316. Therefore, Cusimano and Ducato focus their challenge on the jury instructions. They assert that the instruction on "other acts evidence," the conspiracy instruction, and the lack of a limiting instruction effectuated the constructive amendment.

We first note that under the "intricately related" doctrine, the court is not required to give a limiting instruction at the time of the admission of evidence or as part of the charge to the jury. See United States v. Akinrinade, 61 F.3d 1279, 1286 (7th Cir.1995). Since the court has no duty to offer an instruction sua sponte, it cannot be faulted for not giving an instruction absent a request to do so. Here, appellants did not ask the court for a limiting instruction and therefore their argument for error on this point is unpersuasive.

We also find no plain error with regard to the jury instructions. Cusimano and Ducato challenge the "other acts" instruction because it contained no reference to the dates contained in the indictment. While they do not make this argument explicitly, when read in conjunction with their constructive amendment claim Cusimano and Ducato must argue that the instruction permitted the jury to convict them for their acts prior to the conspiracy alleged in the indictment. The instruction in question that was provided to the jury and orally given reads as follows:

You have heard evidence of acts of the defendants other than those charged in the indictment. You may consider this evidence only on the question of whether the conspiracy charged in the indictment existed and whether each defendant was a member of that conspiracy. This evidence is to be considered by you only for this limited purpose.

Tr. at 1498 (emphasis added). Given that the instruction states explicitly that the evidence is to be used in evaluating "the conspiracy charged in the indictment," we fail to see how it created the possibility that ...

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