U.S. v. D'Antoni, s. 88-1237

• Decision Date: 17 May 1989
• Docket Number: 88-1364,Nos. 88-1237,s. 88-1237
• Citation: 874 F.2d 1214
• Parties: 28 Fed. R. Evid. Serv. 218 UNITED STATES of America, Plaintiff-Appellee, v. Daniel J. D'ANTONI and Richard Ales, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1214

874 F.2d 1214

28 Fed. R. Evid. Serv. 218

UNITED STATES of America, Plaintiff-Appellee, v. Daniel J. D'ANTONI and Richard Ales, Defendants-Appellants.

Nos. 88-1237, 88-1364.

United States Court of Appeals Seventh Circuit.

Argued Sept. 19, 1988.

Decided May 17, 1989.

Mark A. Eisenberg, Eisenberg Law Offices, S.C., Ralph A. Kalal, Kalal & Habermehl Madison, Wis., for defendants-appellants.

John W. Vaudreuil, Asst. U.S. Atty., Madison, Wis., for plaintiff-appellee.

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Defendants-appellants Daniel D'Antoni and Richard Ales challenge their convictions for conspiracy to kill a government witness on several grounds. First, they challenge the district court's admission into evidence of testimony about statements made by D'Antoni's brother to a government informant under the co-conspirator exception to the hearsay rule. Second, they argue that admission of these statements was impermissible under Rules 404(b) and 403 of the Federal Rules of Evidence. Third, they charge that the district court erred in admitting several tape-recorded telephone conversations obtained in violation of Wisconsin law. Fourth, D'Antoni charges that his conviction should be reversed because the government's methods of investigating this case constituted outrageous governmental conduct, violating his due process rights. Finally, D'Antoni argues that the evidence was insufficient to convict him. For the reasons discussed below, we affirm the two convictions on all counts.

I. Facts

Todd D'Antoni ("Todd"), the brother of one of the appellants, gave cocaine to fifteen-year-old Tricia Schuh and fourteen-year-old Rebecca Reynolds in June, 1987. Tricia Schuh ingested the cocaine and died. Todd was charged with distribution of a controlled substance to a person under eighteen years of age. Rebecca Reynolds, who had testified before the grand jury, was to be the prosecution's key witness.

While Todd was incarcerated in the Dane County (Wisconsin) Jail for violating the conditions of his release, he met Ricco Ferguson. Ferguson had been arrested on charges of theft, obstructing justice and driving without a valid license. He was hoping to "cut a deal" with the government. Between September 14 and September 16, 1987, Todd told Ferguson that he (Todd) and his brother, appellant Daniel D'Antoni ("Dan"), had arranged for someone to be paid $10,000.00 to murder Rebecca Reynolds. Ferguson offered to commit the murder himself for less money, although he never in fact intended to do so. Todd agreed, saying he wanted it done by September 20th. Ferguson spoke with Dan on September 17th. Dan told Ferguson that he had spoken with Todd and that he was working on getting a picture of Rebecca Reynolds but didn't have one yet. Ferguson met with law enforcement officers that same day and agreed to cooperate in an investigation of the plan to murder Rebecca Reynolds.

Over the ensuing few days, Ferguson had several telephone conversations with Todd, Dan and defendant Richard Ales. All of these conversations were recorded on tape. Only Ferguson had consented to this. Ales met twice with Ferguson, once on September 18, 1987 to give him some money, and once on September 19, 1987 to show him where Rebecca Reynolds lived and to give him a description of her. Dan's supposed role in this scheme was to supply the pistol. He claimed at trial, however, that he in fact had no intention of doing so, and merely was pretending to go along with Ferguson to protect his brother. Dan was arrested during a September 20 meeting with Ferguson after he told Ferguson and the undercover policeman accompanying them that he was working on getting the gun and the money but did not have the gun yet. Both Ales and Daniel D'Antoni were convicted of conspiracy to kill a government witness. They appeal their convictions on numerous grounds.

II. Discussion

A. Admissibility of Todd D'Antoni's Jailhouse Statements

1. Rule 404(b)

As a preliminary matter, Daniel D'Antoni argues that his brother Todd's statements to Ferguson between September 14 and September 16, 1987 that the two of them (Todd and Dan) already had hired someone to kill Rebecca Reynolds were inadmissible as evidence of prior bad acts (or crimes) under Fed.R.Evid. 404(b). We agree with the government, however, that this was not a "prior act" at all, but evidence of the crime itself. This is because these statements are "intricately related to the facts of the case," United States v. Hawkins, 823 F.2d 1020, 1023 (7th Cir.1987) (quoting United States v. Hattaway, 740 F.2d 1419, 1425 (7th Cir.), cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984)). Admissibility of this evidence is governed instead by Fed.R.Evid. 403. Hawkins, 823 F.2d at 1023. In that event, the evidence only is admissible if the probative value of statements is not outweighed by their prejudicial effect. As we discuss below, however, we do not think that this evidence was unduly prejudicial.

2. Rule 801(d)(2)(E)

Defendants also argue that Todd D'Antoni's statements were inadmissible under the co-conspirator exception to the hearsay rule, Federal Rule of Evidence 801(d)(2)(E). This rule provides:

(d) Statements which are not hearsay. A statement is not hearsay if--...

* * *

(2) Admission by party-opponent. The statement is offered against a party and is ... (E) a statement by a co-conspirator of a party during the course and in furtherance of a conspiracy.

In order to admit evidence under this rule, the district court must find, by a preponderance of the evidence, that: (1) the declarant and the defendant were members of a conspiracy; (2) when the hearsay statement was made; and (3) that the statement was in furtherance of the conspiracy. United States v. Santiago, 582 F.2d 1128, 1134 (7th Cir.1978). See also, e.g., United States v. Kelley, 864 F.2d 569, 573 (7th Cir.1989); United States v. Hooks, 848 F.2d 785, 794 (7th Cir.1988) and cases cited therein. Although it used to be the rule in this circuit that the existence of the conspiracy had to be proved by independent evidence (that is, by evidence other than the proffered hearsay evidence itself), the Supreme Court held in Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), that the co-conspirator statements themselves can be used to prove the existence of the conspiracy. Id., 107 S.Ct. at 2781-82. We think that in this case all of these requirements were satisfied. Moreover, we think that the existence of a conspiracy on or before September 14, 1987, is corroborated by other evidence.

The defendants' argument that Todd's statements to Ferguson between September 14 and September 16, 1987, are inadmissible goes something like this: because Ferguson never intended to help Todd, and became a government informant after this conversation, he never agreed to conspire with Todd as a matter of law. United States v. Escobar de Bright, 742 F.2d 1196, 1199-1200 (9th Cir.1984). Thus, defendants maintain, Todd's statements only can come in as evidence if a conspiracy can be proved to have existed between him and Dan before these statements were made. We think that a conspiracy existed between the brothers D'Antoni on or before September 14, 1987.

Todd D'Antoni's statements to Ricco Ferguson at the Dane County Jail from September 14 to September 16 themselves show that a conspiracy to kill Rebecca Reynolds existed between Todd and Dan at or prior to that time. Todd's statements to Ferguson, moreover, are corroborated by the later phone conversation of September 17 between Ferguson and Dan, and by the September 18 phone conversation of Todd and Ferguson. Bourjaily, 107 S.Ct. at 2781-82. In the September 17 conversation, Dan told Ferguson that he had talked with Todd and was working on getting a picture of Rebecca Reynolds. In the September 18 conversation, Todd told Ferguson that he (Todd) had told Dan to "cancel the other guy and he said no problem." (Gov't Ex. 1-A, at 7). Thus, Todd's statements to Ferguson were admissible under Rule 801(d)(2)(E).

3. Rule 403

Finally, neither defendant was prejudiced under Rule 403 by admission of this evidence. Because of Dan's telephone conversations with Ferguson, and because of his September 20 meeting with Ferguson at which he said he was working on getting the gun and the money, we think that sufficient independent evidence of Dan's participation in the conspiracy exists. Hence, there was no prejudice to Dan D'Antoni by admission of this evidence. United States v. Mealy, 851 F.2d 890, 901 (7th Cir.1988).

Defendant Richard Ales also was not prejudiced by the admission of this evidence. He argues that admission of Todd's jailhouse statements to Ferguson imply that he (Ales) knew of the conspiracy to kill Rebecca Reynolds before his conversations with Todd and Ferguson on September 18. In fact, Todd's statements between September 14 and September 16 only relate to Dan's involvement. It was not until Ferguson met with Todd at the Dane County Jail on September 18, that Todd mentioned to Ferguson that he "had a friend that might get the picture [of Rebecca Reynolds]" other than Dan. Later on September 18, Ales participated in a tape-recorded telephone conversation with Ferguson and Todd, in which he first was introduced to Ferguson. Thus, we do not think that defendant Ales was prejudiced by admission of Todd's statements to Ferguson against him. Statements made by a co-conspirator during and in furtherance of a conspiracy are admissible against another co-conspirator, even though the statements were made prior to that co-conspirator's joining of the conspiracy, in order to demonstrate the nature and objectives of the conspiracy. United States v. Tuchow, 768 F.2d 855, 868 (7th Cir.1985).

B. Admissibility of the Tape-Recorded Conversations

Only Ricco Ferguson consented to the tape-recording of the conversations between him, Todd and Dan D'Antoni, and Richard...