U.S. v. DiCaro

• Decision Date: 19 August 1988
• Docket Number: No. 87-1891,87-1891
• Citation: 852 F.2d 259
• Parties: 26 Fed. R. Evid. Serv. 534 UNITED STATES of America, Plaintiff-Appellee, v. Paul DiCARO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 259

852 F.2d 259

26 Fed. R. Evid. Serv. 534

UNITED STATES of America, Plaintiff-Appellee, v. Paul DiCARO, Defendant-Appellant.

No. 87-1891.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 22, 1988.

Decided July 15, 1988.

Rehearing Denied Aug. 19, 1988.

Marvin Bloom, Chicago, Ill., for defendant-appellant.

Chris C. Gair, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before WOOD, Jr., FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

Defendant appeals from his conviction for involvement in a scheme to transport stolen barrels of electrocobalt, alleging trial error by the district court and prosecutor. He also appeals from an additional sentence he received under 18 U.S.C. Sec. 3147 for committing the offenses while released on bond. We find no trial error and affirm the underlying convictions, but vacate the additional two year sentence under Sec. 3147.

I.

In January of 1983, Paul DiCaro was released on bond pending trial for racketeering in violation of 18 U.S.C. Secs. 1951 and 1962(c). He was convicted on both counts on June 22, 1983 and sentenced to ten years in prison, but remained free on bond pending appeal. On April 26 and 27, 1985, before this court ruled on DiCaro's appeal from his racketeering convictions, ¹ 244 barrels of electrocobalt worth $1.5 million were stolen from United Warehouse in Chicago Heights. The government later charged DiCaro with planning and organizing this burglary. He was indicted on charges of conspiring to transport stolen goods in interstate commerce, 18 U.S.C. Sec. 371, transporting stolen goods in interstate commerce, 18 U.S.C. Sec. 2314, and for having committed these offenses while released on bond, 18 U.S.C. Sec. 3147.

Before trial DiCaro moved to dismiss the Sec. 3147 counts on the ground that he was released on bond on January 17, 1983, twenty-one months before the October 12, 1984 effective date of Sec. 3147. The district court denied the motion and the case proceeded to trial before a jury. DiCaro did not deny at trial that the burglary had occurred essentially in the manner alleged. Rather, his defense was that a man named Mickey Gurgone had actually played the role in the burglary scheme which the government and its witnesses attributed to DiCaro. This defense was unsuccessful; DiCaro was convicted on all counts. He was sentenced to concurrent prison terms of five years on the conspiracy count and eight years for each of the transportation counts. DiCaro received an additional sentence of two years under Sec. 3147 for each count, with these sentences also to run concurrently. The two year Sec. 3147 sentence was imposed consecutive to the underlying eight year sentence, for a total of ten years' imprisonment.

DiCaro presses three arguments on appeal. He first alleges that the district court erred in refusing to allow cross-examination of two government witnesses regarding a taped conversation they had on September 18, 1986. In that conversation, two members of the burglary crew mentioned that a bomb had exploded at DiCaro's mother's house and that as a result DiCaro would not be testifying at trial. Both conversants then laughed about the bombing. DiCaro contends on appeal that this conversation showed the bias of these witnesses and should therefore have been admitted.

DiCaro also alleges that the prosecutor made improper references in his closing argument to DiCaro's failure to present an alibi defense. During closing argument DiCaro's counsel attacked the credibility of the government witnesses. He stressed that witnesses Salvino and Kahmark, members of the burglary crew, were frightened of Gurgone, who was the real mastermind of the burglary, and were reluctant to testify against him. The defense alleged that these witnesses therefore substituted DiCaro's name for Gurgone when questioned by the FBI and prosecutors. In response to this argument, the prosecutor stated:

Why would they [Salvino and Kahmark] risk being found out as liars. Why would they risk perjury. Why would they risk an alibi.

DiCaro [supposedly] wasn't there. For all they knew he would be able to prove he was in Las Vegas that day.

The court sustained the defendant's objection to these remarks. The prosecutor went on to argue that witness Rodriguez, the foreman of Chicago Metal Works, had similarly told the truth about DiCaro's participation.

[W]ould he lie and falsely accuse Paul DiCaro. No. Because that would keep him in it. He would have to testify, he would risk being found out a liar, he would risk that somebody could prove DiCaro was in San Francisco that day.

The defendant did not object to this portion of the argument.

Finally, DiCaro reasserts his claim that Sec. 3147 should not have been applied to him, because he was released on bond before the statute's effective date. We find that the district court did not err in refusing to allow cross-examination regarding the bombing, and that the prosecutor's remarks, while ill-chosen, do not constitute error when considered in context. However, we reverse the district court's holding that Sec. 3147 was properly applied to DiCaro, and therefore vacate his concurrent two-year sentences under that statute.

II.

DiCaro argues that by limiting his cross-examination of Salvino and Jurek, two members of the burglary crew, the district judge violated his sixth amendment right to confront the witnesses against him. The confrontation clause protects not only the defendant's right to physically confront a declarant, but the right to "expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." Delaware v. Fensterer, 474 U.S. 15, 19, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985) (quoting Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974)). The right to an opportunity for effective cross-examination, however, does not give defense counsel license to conduct the cross-examination as she chooses. A trial judge has broad discretion, United States v. Wellman, 830 F.2d 1453, 1465 (7th Cir.1987), to impose reasonable "limits on defense counsel's inquiry into the potential bias of a prosecution witness ... based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). To demonstrate error, a defendant must show that, as to a particular witness, "he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias...." Id. at 680, 106 S.Ct. at 1436.

During cross-examination of Salvino and Jurek, DiCaro was allowed to expose sufficient information to enable the jury to evaluate his theory of defense and to make "a discriminating appraisal of the witness's motives and bias." United States v. De Gudino, 722 F.2d 1351, 1354 (7th Cir.1983). See Wellman, 830 F.2d at 1465-66; United States v. Muelbl, 739 F.2d 1175, 1185 (7th Cir.), cert. denied, 469 U.S. 982, 105 S.Ct. 388, 83 L.Ed.2d 322 (1984). Salvino admitted during cross-examination that he was angry with DiCaro for accusing him of involvement in two crimes he did not commit. Salvino also admitted trying to discredit DiCaro and telling Jurek that he "would give up five years of [his] life if [he] could put [his] hands around Paul DiCaro's neck." The defendant also exposed the fact that DiCaro cheated Salvino out of burglary proceeds, creating a strong likelihood of bias.

Jurek was also cross-examined on his bias against DiCaro. He admitted to feeling cheated by DiCaro on money and "other matters." The defendant, however, chose not to pursue what these other matters might be. Defense counsel also impeached Jurek on his plea agreement and on previous lies.

After establishing Salvino's desire to discredit DiCaro, defense counsel sought to play the tape of a conversation between Salvino and Jurek ² which occurred on September 18, 1986, some time after Jurek began cooperating with the government's investigation into the burglary. In the tape, Salvino mentioned that someone had bombed DiCaro's mother's house and as a result DiCaro would not take the stand. Both participants then laughed. Out of the presence of the jury, the government argued that the tape was ambiguous as to whether Salvino thought DiCaro would be "taking the stand" at his own or another's trial. The conversation indicated only that Salvino and Jurek now realized, contrary to their previous uncertainty, that DiCaro would not testify at trial as a government witness because someone had sent him a message not to testify. Even if the conversation were understood to be a reference to the likelihood of DiCaro taking the stand at his own trial, the government further asserted, its admission into evidence would lead to an examination of the many possibilities why DiCaro might choose not to testify. After recessing over the lunch hour to consider the propriety of playing this segment of the tape for the jury, the judge decided to exclude it. Agreeing with the government's view, the court told defense counsel:

[I]f I permit you to conduct the cross-examination that you contemplate, I am certainly going to permit the Government to seek to rehabilitate Mr. Salvino here by those other suggestions.

Now, what we are then getting into is the whole subject of the bombing, who did the bombing, what kind of people are involved, all of which we have avoided.

We then get into the--if Mr. DiCaro does not testify in his own behalf in this case, we then get into the implications of this conversation on that fact, and whether the Government is entitled to tell the jury of other explanations.

And, you know, there are several other explanations for not testifying in the case. One, of course, is the prior...