U.S. v. DeLuna
| Decision Date | 09 July 1985 |
| Docket Number | Nos. 83-2408,s. 83-2408 |
| Parties | 18 Fed. R. Evid. Serv. 465 UNITED STATES of America, Appellee, v. Carl Angelo DeLUNA, Appellant. UNITED STATES of America, Appellee, v. Carl James CIVELLA, Appellant. UNITED STATES of America, Appellee, v. Charles David MORETINA, Appellant. UNITED STATES of America, Appellee, v. Carl Wesley THOMAS, Appellant. UNITED STATES of America, Appellee, v. Anthony CHIAVOLA, Sr., Appellant. UNITED STATES of America, Appellee, v. Carl James CIVELLA, Appellant. to 83-2411, 83-2462 and 84-1047. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ephraim Margolin, San Francisco, Cal., Melvyn L. Segal, Chicago, Ill., and Oscar B. Goodman, Las Vegas, Nev., for appellant.
Edward D. Holmes, Justice Dept., Kansas City, Mo., for appellee.
Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and ARNOLD, Circuit Judge.
Carl Wesley Thomas, Carl Angelo DeLuna, Carl James Civella, Charles David Moretina, and Anthony Chiavola, Sr., appeal from a final judgment entered in the District Court 1 for the Western District of Missouri upon a jury verdict finding them guilty of knowingly transporting stolen money in interstate commerce, travelling in and utilizing the facilities of interstate commerce with the intention of establishing and managing an unlawful interest in a Nevada gaming establishment, and conspiring with others to accomplish these ends in violation of 18 U.S.C. Secs. 2, 371, 1952, 2314 (1982). For reversal appellants argue that the district court erred in (1) refusing to grant their motions for judgment of acquittal (Travel Act violations), (2) upholding the validity of a search warrant issued by an allegedly partial magistrate, (3) admitting co-conspirators' written statements, (4) admitting evidence in violation of appellants' confrontation rights, (5) permitting government witness Agosto to testify in separate installments, (6) excluding expert testimony, (7) admitting evidence of other crimes and bad acts, (8) giving a Pinkerton instruction to the jury, (9) refusing to grant their motions for dismissal of the conspiracy count on the grounds of prejudicial variance between the indictment and the government's proof, (10) denying their motions for severance, (11) refusing to dismiss on the grounds of statutory and constitutional speedy trial violations, and (12) refusing to grant their motions for acquittal because of insufficient evidence. Not all appellants join in each allegation of error. For the reasons discussed below, we affirm the judgments of the district court.
On November 5, 1981, eleven defendants were charged in a seventeen-count indictment with conspiracy and substantive offenses in violation of 18 U.S.C. Secs. 2, 371, 1952, 2314. Charges against six of the eleven defendants were dismissed or disposed of in proceedings separate from the trial where the five appellants in this case were convicted. Defendant Nick Civella died before trial. Defendants Donald Joe Shepard, Billy Clinton Caldwell and Joseph Vincent Agosto entered guilty pleas before trial. (Agosto, now deceased, was the government's principal witness against the other defendants.) Defendant Carl Caruso participated in the trial for a short time and then entered a guilty plea. Defendant Peter Joseph Tamburello was acquitted.
Appellant Thomas was convicted on one count of conspiracy, six counts of interstate transportation of stolen property, and three counts of violation of the Travel Act. He was sentenced to a total of fifteen years in prison.
Appellant DeLuna was convicted of one count of conspiracy, seven counts of interstate transportation of stolen property, and five counts of violation of the Travel Act. He was sentenced to a total of thirty years in prison and probation for five years following the imprisonment.
Appellant Civella was convicted of one count of conspiracy, six counts of transportation of stolen property, and two counts of violation of the Travel Act. He was sentenced to a total of thirty years in prison.
Appellant Moretina was convicted of one count of conspiracy and three counts of interstate transportation of stolen property. He was sentenced to a total of twenty years in prison and five years probation following the imprisonment.
Appellant Chiavola was convicted of one count of conspiracy and one count of interstate transportation of stolen money. He was sentenced to a total of fifteen years in prison.
All appellants were assessed heavy fines and ordered to pay the costs of the prosecution and to make restitution to the Tropicana Hotel and Country Club.
During the period covered by the indictment (January 1, 1975, to April 1, 1979), the state of Nevada required that persons conducting gaming operations be licensed in accordance with state law and regulations. See Appendix. Any person who owned, managed, or operated a gambling casino, or received directly or indirectly a share of the moneys played therein, had to make his identity known to Nevada gaming authorities and had to be licensed. Key employees, that is, persons who had significant influence over casino management, were required to be licensed. Certain employees, including managers, were required to obtain work permits. Persons who had been convicted of felonies, had poor reputations, or were excluded by law from casinos, and others known to associate with such persons were not likely to be licensed. Donald Shepard and Billy Caldwell were licensed with respect to the Tropicana casino in Las Vegas. Carl Thomas was licensed with respect to his own casinos, Bingo Palace and Slots-of-Fun. None of the other defendants charged in the indictment was licensed or had been issued a work permit.
The government charged and sought to prove that the defendants conspired to gain control over the casino operations at the Tropicana Hotel and Country Club in Las Vegas, Nevada, in order to "skim" money from the casino by removing cash before it was counted or reported and to transport this skimmed money in interstate commerce. The evidence consisted primarily of the testimony of co-conspirator Joseph Agosto, tape recordings, notes made by DeLuna and other defendants, surveillance testimony by FBI agents, testimony of Tropicana officials, and stipulations. The events described below are based primarily on Agosto's testimony.
Agosto met with Carl DeLuna and Nick and Carl Civella in January 1975 to discuss means by which Agosto could infiltrate and obtain control of the Tropicana so that Agosto could eventually skim money from the casino. DeLuna and the Civellas told Agosto that they would see to it that a Teamsters loan to Tropicana's part-owner Deil Gustafson would be disapproved in order to facilitate Agosto's takeover. The Tropicana at the time was in serious financial trouble. Agosto purchased the Folies Bergere, the successful floor show at the Tropicana, and used this as a base to acquire influence over casino operations.
Agosto, a convicted felon, knew he could never be licensed by the Nevada gaming authorities. The Civellas were in the "Black Book" of persons excluded from Nevada casinos and therefore knew that they could not be licensed. Because Agosto and the Civellas could not be licensed, they agreed to use code names to "camouflage" Nick Civella instructed Agosto to keep DeLuna informed of his progress in infiltrating the casino. Agosto began to acquire great influence over the daily operations of the hotel and casino. Agosto reported this to DeLuna, who in turn informed the Civellas. Agosto frequently travelled from Las Vegas to Kansas City to meet with DeLuna, Moretina and the Civellas, who occasionally travelled to Las Vegas to discuss Agosto's progress.
their true identities and connections with the Tropicana.
At Agosto's request in 1975, Nick Civella was able to rid the Tropicana of competing "hidden" interests. Agosto, DeLuna, and the Civellas then decided to use Carl Thomas to take charge of the skimming at the Tropicana.
Later in 1975, Mitzi Briggs became part-owner of the Tropicana and Agosto's infiltration and exercise of authority ceased temporarily because of Briggs' distrust of Agosto. By 1977, however, Agosto was able to gain Briggs' confidence and by 1978, Agosto was effectively running the hotel and casino. Briggs never knew that any skimming was taking place.
Upon Carl Thomas' recommendation, Agosto hired Shepard as casino manager. Later Agosto hired Caldwell as assistant casino manager. Shepard and Caldwell were to do the actual skimming under Thomas' supervision.
In March 1978, Agosto and Thomas met or spoke with Nick Civella in Los Angeles and Civella ordered them to start skimming. In April 1978, $11,500 was skimmed by Shepard and transported to Kansas City by DeLuna.
In May 1978, Shepard hired Jay Gould as cashier to skim cash from the cashier's cage of the casino and to falsify fill slips to document the "loss" of cash. Signatures and initials of other casino employees were forged by Caldwell. Caldwell supervised Gould, who passed the skimmed money to Shepard. This money was skimmed before the casino owner or the Nevada gaming authorities knew of its existence.
From June through October 1978, Shepard, Caldwell and Gould skimmed over $40,000 a month and gave it to Agosto. Agosto then gave it to Carl Caruso, who transported the money to Kansas City and delivered it to Moretina. Caruso made at least eighteen trips between Las Vegas and Kansas City. Moretina gave Caruso $1,000 after each delivery. The remaining money was distributed to Joseph Aiuppa and Jack Cerone in Chicago. Anthony Chiavola, Sr., the nephew of the Civellas and a Chicago police officer, aided DeLuna and Nick Civella in the distribution of Aiuppa's and Cerone's shares. Moretina acted as...
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