U.S. v. DiDomenico
| Citation | 78 F.3d 294 |
| Decision Date | 23 May 1996 |
| Docket Number | 93-3514,93-2008,93-3435,93-3516,Nos. 93-1134,93-3515,93-1604,93-1136,93-3513,93-3434,93-1135,94-1831 and 94-3341,s. 93-1134 |
| Parties | 43 Fed. R. Evid. Serv. 832 UNITED STATES of America, Plaintiff-Appellee, v. William DiDOMENICO, et al., Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division, No. 90 CR 87;--Ann Claire Williams, Judge.
Barry Rand Elden, Chief of Appeals, Mitchell A. Mars (argued), Office of United States Attorney, Criminal Appellate Division, Chicago, IL, for United States.
Allan A. Ackerman (argued), Chicago, IL, for William DiDomenico in No. 93-1134.
Allan A. Ackerman (argued), Chicago, IL, for Harry Aleman in No. 93-1135.
Alexander M. Salerno (argued), Berwyn, IL, Jed Stone, Chicago, IL, for Paul Spano in No. 93-1136.
Dennis A. Berkson, Allan Ackerman (argued), Henry Samuels, Chicago, IL, Robert A. Stevenson, Palos Park, IL, for Robert Covone in No. 93-1604.
Thomas J. Royce, Allan Ackerman (argued), Chicago, IL, for James Nicholas in No. 93-2008.
Allan A. Ackerman, Chicago, IL, for Salvatore DeLaurentis in No. 93-3434.
Allan A. Ackerman (argued), Chicago, IL, for Salvatore DeLaurentis in No. 93-3435.
Allan A. Ackerman, Chicago, IL, Patrick A. Tuite (argued), Arnstein & Lehr, Chicago, IL, for Rocco E. Infelise in No. 93-3513.
Allan A. Ackerman, Chicago, IL, Patrick A. Tuite, Arnstein & Lehr, Chicago, IL, George N. Leighton (argued), Neal & Associates, Chicago, IL, for Louis Marino in No. 93-3514.
Robert A. Novelle, Serpico, Novelle & Navigato, Chicago, IL, Allan A. Ackerman, Chicago, IL, Patrick A. Tuite (argued), Arnstein & Lehr, Chicago, IL, for Robert Bellavia in No. 93-3515.
Robert A. Stevenson, Palos Park, IL, Allan Ackerman (argued), Chicago, IL, for Michael Sarno in No. 93-3516.
Allan A. Ackerman (argued), Chicago, IL, Patrick A. Tuite, Arnstein & Lehr, Chicago, IL, for Rocco E. Infelise, Salvatore DeLaurentis, Louis Marino, Robert Bellavia, Harry Aleman in No. 94-1831.
Patrick A. Tuite (argued), Arnstein & Lehr, Chicago, IL, for Rocco E. Infelise in No. 94-3341.
Sharon G. Kramer, Chicago, IL, for Salvatore DeLaurentis, Harry Aleman in No. 94-3341.
George N. Leighton, Neal & Associates, Chicago, IL, for Louis Marino in No. 94-3341.
Robert A. Novelle, Serpico, Novelle & Navigato, Chicago, IL, for Robert Bellavia in No. 94-3341.
James R. Meltreger, Onesto, Giglio, Meltreger & Associates, Chicago, IL, for Michael Sarno in No. 94-3341.
Alexander M. Salerno, Berwyn, IL, for Paul Spano in No. 94-3341.
Robert A. Stevenson, Palos Park, IL, for Robert Covone in No. 94-3341.
Thomas J. Royce, Chicago, IL, for James Nicholas in No. 94-3341.
Before POSNER, Chief Judge, and CUDAHY and COFFEY, Circuit Judges.
The Chicago Outfit (the "Outfit," the "Mob," the "Mafia")--the criminal enterprise whose most notorious boss was Al Capone-- operates through "street crews." The twenty defendants in this mainly RICO case that charges predicate acts of extortion, bribery, murder, and other offenses were members of the Ferriola Street Crew, named after its boss from 1979 to his death in 1989, Joseph Ferriola. Ferriola was succeeded by defendant Infelise. The Ferriola Street Crew engaged in the usual "Mob" activities, in particular the protection racket (the collection of "street tax" from brothels, gambling enterprises, and other illegal businesses), loan sharking, and bookmaking, with bribery of police, judges, prosecutors, and other public officials, subornation of jurors, and the occasional murder thrown in to protect and enforce its reign of terror. The focus of the prosecution was on the street crew's efforts to collect street tax from "independent" bookmakers, which is to say bookmakers not affiliated with the "Mob," in the suburbs north of Chicago, primarily during the 1980s. These efforts included the murder of a bookmaker named Hal Smith. The evidence of the defendants' participation in these activities was overwhelming, except that the evidence of their participation in the murder depended critically on the testimony of a turncoat member of the street crew, William Jahoda. Smith had angrily refused a demand relayed to him from defendant DeLaurentis to pay street tax, saying "fuck the little guinea." Infelise directed Jahoda to lure Smith to Jahoda's home, which he did, arriving in Smith's car. Jahoda told Smith to enter the house through the garage, while Jahoda pretended to pick up his mail. Shortly afterward, through the open door to the kitchen, Jahoda saw Smith lying dazed but conscious on the kitchen floor. Infelise drove Jahoda back to the tavern where he had met Smith and told him to burn his clothes. When Jahoda returned home later that night, he found that the kitchen floor had recently been mopped up. Infelise called and told him to look for Smith's cigar and glasses, which the murderers thought they might have left there. Jahoda did not find the items. Smith's body was found a few days later in the trunk of his car. He had been tortured and then strangled.
The defendants were tried together and found guilty of most of the counts of the indictment and received long prison sentences which in the case of some of the defendants, given their age, are the equivalent of life in prison. Their appeals, which we have consolidated, present sixteen separate grounds. We shall confine our discussion to those that have arguable merit, disregarding such frivolous ones as that the judge could not sentence the defendants to terms of years that were (because of the defendants' age) the practical equivalent of life in prison without a jury recommendation, as required by 18 U.S.C. § 34 as it read when they were sentenced. Section 34 applies only to convictions for crimes punished by the chapter of the federal criminal code in which the section appears (mainly arson resulting in the destruction of aircraft or motor vehicles), and none of the defendants was convicted of any such crimes. It didn't help, though, that in response the government, overlooking United States v. Prevatte, 66 F.3d 840, 843-44 (7th Cir.1995), argued that a term of years, however long, and however old the defendants are, is not within the scope of section 34. We held the contrary in Prevatte and in United States v. Martin, 63 F.3d 1422, 1432-34 (7th Cir.1995).
The most dramatic issue and the one pressed hardest by the defendants arises from the bugging of a room in the Metropolitan Correctional Center, the federal jail in Chicago. The room had been set aside for the use of the defendants, who were being detained in the jail awaiting trial, in meeting with their lawyers. Someone made a tape recording of a conversation between one of the defendants and his lawyer and sent the tape to the lawyer. The defendants argue that the district judge should have conducted an evidentiary hearing to determine the extent of the bugging and whether it had given the prosecution information about defense strategy that the prosecution had used to undermine the defense at trial.
The lawyer gave the tape to the government, which began an investigation to determine who had bugged the room. The FBI interviewed almost 150 people, including the defendants, their lawyers, the prosecutors, and employees of the jail. The report of the investigation, which was submitted in camera to the district judge (and which we have read as well), indicated that the investigation had been totally inconclusive. Although visitors to the MCC are supposed to be screened for tape recorders, security was lax during 1991, when the bugging incident occurred, as we know from the El Rukns cases. See, e.g., United States v. Boyd, 55 F.3d 239 (7th Cir.1995). A tape recorder may have been smuggled in to one of the defendants by a visitor, or even carried in by one of the defendants' lawyers. A guard at the MCC might have been in the pay of the defendants (there was evidence at trial that at least one federal officer was in the pay of the Ferriola Street Crew) and made the tape in an effort to embarrass the prosecution. Or, as the defendants conjecture, the prosecution itself may have bugged the meeting room to find out what discreditable information the defendants knew about Jahoda, a key prosecution witness. Of course the prosecution would not have sent the tape of its illegal bugging to the lawyer for one of the defendants, but maybe an MCC guard sympathetic to the "Mob" found the tape and mailed it to the lawyer.
The government argues that the defendants did not lay a foundation for an evidentiary hearing on the matter because they presented no evidence that the bugging altered the result at trial--no evidence that the prosecution was privy to the bugging or, if it was, used the information gleaned from it to undermine the defense or if it did caused innocent people to be convicted of heinous crimes. We do not consider this a sound argument. It pushes the notion of harmless or nonprejudicial error too far. The principle that an acquittal or a new trial is not a proper remedy for governmental misconduct, that the defendant must show that the misconduct may have caused the jury to convict him, is sound but like most legal principles cannot be maintained without qualification. Otherwise the prosecution could send a defendant to prison without any judicial process whatsoever and if he complained defend by showing that had the defendant been tried with assistance of counsel and all the other trimmings of modern criminal procedure he would surely have been convicted and sentenced to a term of years at least as long as the prosecution proposes to hold him. The counterprinciple that defeats this result is that denial of the right to counsel (not the right to competent counsel, but the more basic right...
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U.S.A. v. Smith et al
...their Batson argument. In any event, this is a decision that lies within the district court's discretion, United States v. DiDomenico, 78 F.3d 294, 301-02 (7th Cir. 1996), and there is nothing here that persuades us the district court abused its discretion or impermissibly communicated to t......
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U.S. v. Uchimura
...(materiality should have been submitted to the jury, but no harm since defendant acquitted of Section 7206 charge); U.S. v. DiDomenico, 78 F.3d 294, 303 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996) (materiality should have been submitted to the jury, but co......
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Grace United Methodist v. City of Cheyenne
...of estoppel or waiver theory, that a party should be entitled to rely on his opponent's statements.'" (quoting United States v. DiDomenico, 78 F.3d 294, 303 (7th Cir.1996)). We have expressly held that an admission of a party opponent may be introduced in evidence even though the declarant ......
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Grace United Methodist Church v. Cheyenne
...of estoppel or waiver theory, that a party should be entitled to rely on his opponent's statements.'" (quoting United States v. DiDomenico, 78 F.3d 294, 303 (7th Cir.1996)). We have expressly held that an admission of a party opponent may be introduced in evidence even though the declarant ......
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Tax violations.
...630-32 (1st Cir. 1996) (same), and United States v. McGuire, 99 F.3d 671, 672 (5th Cir. 1996) (same), and United States v. DiDomenico, 78 F.3d 294, 302-03 (7th Cir. 1996) (same), with United States v. Zvi, 168 F.3d 49, 59 (2d. Cir. 1999) (holding that materiality is for the court to decide ......
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Tax violations.
...623,630-32 (1st Cir. 1996) (same), and United States v. McGuire, 99 F.3d 671, 672 (5th Cir. 1996) (same), and United States v. DiDomenico, 78 F.3d 294, 302-03 (7th Cir. 1996) (same), with United States v. Klausner, 80 F.3d 55, 59-61 (2d Civ. 1996) (deciding materiality as matter of law, dis......
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Tax violations.
...623, 630-32 (1st Cir. 1996) (same), and United States v. McGuire, 99 F.3d 671,672 (5th Cir. 1996) (same), and United States v. DiDomenico, 78 F.3d 294, 302-03 (7th Cir. 1996) (same), with United States v. Klausner, 80 F.3d 55, 59-61 (2d Cir. 1996) (distinguishing Gaudin by reasoning that ma......
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Tax violations.
...623, 630-32 (1st Cir. 1996) (same), and United States v. McGuire, 99 F.3d 671,672 (5th Cir. 1996) (same), and United States v. DiDomenico, 78 F.3d 294, 302-03 (7th Cir. 1996) (same), with United States v. Klausner, 80 F.3d 55, 59-61 (2d Cir. 1996) (distinguishing Gaudin by reasoning that ma......