U.S. v. D'Antonio, 85-2219

• Decision Date: 22 September 1986
• Docket Number: No. 85-2219,85-2219
• Citation: 801 F.2d 979
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. James D'ANTONIO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 979

801 F.2d 979

UNITED STATES of America, Plaintiff-Appellant, v. James D'ANTONIO, Defendant-Appellee.

No. 85-2219.

United States Court of Appeals Seventh Circuit.

Argued June 13, 1986.

Decided Sept. 22, 1986.

James A. Graham, Glen Seiden & Associates, Chicago, Ill., for plaintiff-appellant.

Vilija Bilaisis, Asst. U.S. Atty., Chicago, Ill., for defendant-appellee.

Before CUMMINGS, Chief Judge, POSNER, Circuit Judge, and GORDON, Senior District Judge. ^*

MYRON L. GORDON, Senior District Judge.

James D'Antonio appeals from his conviction on one count of knowingly possessing stolen goods moving in interstate commerce, in violation of 18 U.S.C. Sec. 659, and one count of conspiring to violate 18 U.S.C. Sec. 659, in violation of 18 U.S.C. Sec. 371. He raises four claims on appeal: 1) insufficiency of the evidence, 2) prejudicial remarks by the prosecutor during closing argument, 3) prosecutorial abuse of discretion for failure to immunize a witness, and 4) coercion of the verdict by the trial judge. We affirm.

On the evening of January 18, 1985, several men gathered behind J & T Towing, a garage and tow yard at south 105th Street and Michigan Avenue in the City of Chicago. Their purpose was to transfer 2,160 stolen television sets from one semi-trailer to another. At the time they were stolen, the television sets were en route from California to Bensenville, Illinois. Law officers interrupted the act of transfering, and the appellant was among the seven men arrested and charged.

Of the seven men indicted, six pleaded guilty; the appellant did not. At his trial, two of those who had pleaded guilty, but had not as yet been sentenced, testified for the prosecution: Joseph Lawler and Fred Johanes. Mr. Lawler testified pursuant to a plea agreement with the government; Mr. Johanes had no such agreement. See June 6, 1985, Transcript, at pp. 25 and 119.

Mr. Lawler testified that about a week before January 18, 1985, the appellant and Tim Ferek, who was also indicted, picked him up in a car, and the three drove to J & T Towing. Mr. Ferek told Mr. Lawler in the car that appellant had initiated the plan to obtain the stolen television sets and that Mr. Ferek, in turn, had contacted Joseph Lawler. The latter also testified that on the way to J & T Towing, the appellant asked him whether James Townes could be trusted. Mr. Townes owned J & T Towing and Joseph Lawler had visited him a week earlier regarding the use of his property for the transfer.

Mr. Lawler further testified that the appellant asked him whether there were any viaducts which might interfere with the progress of a large semi-trailer truck between the expressway and J & T Towing. Mr. Lawler also testified that after the three arrived at J & T Towing and inspected the area, the appellant approved of the location for the transfer.

Fred Johanes testified that on the evening of January 18, 1985, he saw the appellant for the first time as he, the appellant and the others met at a restaurant before setting out for J & T Towing. He also testified that Mike Nardo and the appellant led a group of three vehicles to that destination. When they arrived, Mr. Johanes accompanied Marty Magers to the back of two semi-trailer trucks standing side by side in the J & T Towing tow yard. One of the trailers contained 2,160 stolen television sets, and the other was empty.

When Mr. Johanes arrived at the back of the trailers, he saw the appellant, along with Messrs. Nardo, Lawler, Ferek and Marzano standing at the back of the trailer which contained the stolen merchandise. At that point, Mr. Lawler went inside J & T Towing and returned with seven or eight J & T employees who knew nothing about the fact that the transfer involved stolen merchandise. Mr. Johanes testified that these new men along with the appellant and the others formed a line from the inside of the full trailer to the inside of the empty trailer and began transferring the stolen television sets. Mr. Johanes further testified that after lifting and passing twenty-five to fifty cartons full of television sets, the appellant pulled out of line claiming that his bad heart prevented him from continuing. Appellant's wife later testified that appellant had heart trouble. See June 10, 1985, Transcript, at p. 9.

I. SUFFICIENCY OF THE EVIDENCE

"In reviewing a claim of insufficiency of evidence in a criminal case, we determine only whether, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt." United States v. Allen, 797 F.2d 1395, 1398 (7th Cir.1986). In the case at bar, the evidence showed that prior to the evening of January 18, 1985, the appellant helped to plot and prepare for the transfer of stolen goods by accompanying Mr. Lawler and Mr. Ferek to the J & T Towing. Though only one witness, Joseph Lawler, gave testimony implicating the appellant in the conspiracy, the evidence he provided cogently demonstrated the appellant's knowing participation and heavy involvement in the conspiracy to receive and possess stolen goods behind J & T Towing on the evening of January 18, 1985.

As to the commission of the crime itself, the evidence presented to the jury was also sufficient to convict the appellant. Fred Johanes testified that the appellant physically assisted in the transfer of the stolen television sets from one semi-trailer to another. Even if we were to disregard this testimony, however, one "is liable for the acts of his coconspirators as long as he is a member of the conspiracy." United States v. Andrus, 775 F.2d 825, 850 (7th Cir.1985). The appellant does not contend that the crime for which he was tried did not occur. Nor does he contend that he was absent from J & T Towing on the evening of January 18, 1985, or that he otherwise withdrew from the conspiracy to receive and possess stolen television sets by taking some "affirmative action" to disavow or defeat its purpose. Id. Thus, even if the appellant did not physically assist in the transfer of the stolen television sets, the jury was entitled to find him guilty of violating 18 U.S.C. Sec. 659 based on Mr. Lawler's testimony implicating him in the larger conspiracy.

The appellant's challenge to the sufficiency of the evidence is an attack on the credibility of the government's two main witnesses, Messrs. Lawler and Johanes. The appellant points to their interest in currying favor with the government before sentencing, to Mr. Lawler's prior inconsistent statements to investigators, and to conflicting testimony given by other witnesses. However, in the absence of "extraordinary circumstances," these matters affect only the witnesses' credibility and, as such, are "solely for the jury to evaluate." See Allen, supra, 797 F.2d 1395, 1399, citing United States v. Noble, 754 F.2d 1324, 1332 (7th Cir.1985). The appellant has shown us nothing extraordinary about the testimony of Messrs. Lawler and Johanes that would justify our disturbing the jury's evaluation of their credibility.

II. THE PROSECUTOR'S REMARKS DURING CLOSING ARGUMENT

The appellant contends that in the rebuttal portion of his closing argument the prosecutor impermissibly referred to Mr. D'Antonio's failure to testify on his own behalf. The prosecutor's challenged remarks were as follows:

Mr. Genson [defense counsel] during his closing and certainly during cross-examination, criticized the Government's witnesses because they don't remember perfectly consistently what happened, whether Mr. Lawler said something in his first interview when he talked to the agents at 2:30 in the morning, or he said it in a second interview.

But, then, who does he present to you in the way of witnesses, and what does he ask you in his closing to believe?

He asks you to believe a witness who can't even remember the fact that he was interviewed....

....

Who else did the defendant present to you?

Well, Ms. Barclay. Ms. Barclay said that she had seen Mr. Lawler out there several times, and that she never saw the defendant there with him....

....

Then you have Mr. Greer who came in and says, "Hey, I didn't see the defendant out there...."

....

Mr. Genson [also] relies heavily on the testimony of the police officer, Officer Louis....

June 10, 1985, Transcript, at pp. 86-88 (emphasis supplied).

The appellant's contention that the highlighted portion of the prosecutor's remarks violated his fifth amendment right against self-incrimination cannot be sustained. "The prosecutor['s] comments must be evaluated in light of the defense argument that preceded it." Darden v. Wainwright, --- U.S. ----, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986). In this case, the record shows that the prosecutor was rebutting defense counsel's spirited attack on the credibility of the government's witnesses. As such, the comments were "invited by" and "responsive to" the closing argument of the defense. See id. at 2472. They "did not manipulate or misstate the evidence, nor did [they] implicate other specific rights of the accused such as the right to counsel or the right to remain silent." Id.; compare United States ex rel. Burke v. Greer, 756 F.2d 1295,...