U.S. v. Giovannetti

• Citation: 919 F.2d 1223
• Decision Date: 05 December 1990
• Docket Number: Nos. 89-3651,89-3678,s. 89-3651
• Parties: 31 Fed. R. Evid. Serv. 1043 UNITED STATES of America, Plaintiff-Appellee, v. Guy GIOVANNETTI and Nicholas Janis, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1223

919 F.2d 1223

31 Fed. R. Evid. Serv. 1043

UNITED STATES of America, Plaintiff-Appellee, v. Guy GIOVANNETTI and Nicholas Janis, Defendants-Appellants.

Nos. 89-3651, 89-3678.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 18, 1990.

Decided Dec. 5, 1990.

David E. Bindi, James O'Connell, and Barry R. Elden, Asst. U.S. Attys., Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Edward M. Genson, Marc W. Martin, Genson, Steinback & Gillespie, Chicago, Ill., for defendant-appellant Nicholas Janis.

Marc W. Martin, Genson, Steinback & Gillespie, James A. Graham, Chicago, Ill., for defendant-appellant Guy Giovannetti.

Before POSNER, RIPPLE and MANION, Circuit Judges.

POSNER, Circuit Judge.

The government indicted fifteen men for offenses arising from their participation in an illegal gambling enterprise. Twelve of the defendants pleaded guilty, another absconded, and the remaining two, who are the appellants before us, went to trial and were convicted. Guy Giovannetti was convicted of racketeering (18 U.S.C. Secs. 1962(c), (d)), conducting an illegal gambling business (18 U.S.C. Sec. 1955) or aiding and abetting the conducting of such a business (18 U.S.C. Sec. 2), and making false statements to federal agents (18 U.S.C. Sec. 1001). He was sentenced to a total of 45 months in prison. Nicholas Janis was convicted of conducting an illegal gambling business or aiding and abetting its conducting, and was sentenced to 60 days.

The head of the gambling enterprise was Thomas Orlando, one of the defendants who pleaded guilty. Active primarily in Bridgeview and other southwestern suburbs of Chicago between 1978 and 1987, the enterprise operated a succession of "wirerooms," where bets on various sporting events were accepted over the telephone, and it also sponsored "smokers," or casino gambling nights, held at restaurants and bars, where guests played blackjack, craps, and poker. Giovannetti, and particularly Janis, had minor roles in the enterprise. Giovannetti was a bouncer, enforcer, and strong-arm collector of gambling debts owed the enterprise. Janis owned a house that the enterprise for a time used as its wireroom.

The evidence against Giovannetti was strong and the trial rulings of which he complains plainly correct, so we shall move directly to Janis's appeal, which raises some difficult questions. Janis was a gambler and knew members of the Orlando organization, including Orlando himself and Richard Merino, a bookmaker for the organization. Together with a real estate agent who has not been charged with any wrongdoing, Janis owned, as an investment, a lot in Bridgeview with two houses on it, one behind the other. In the fall of 1982, Merino, who unbeknownst to Janis was a government informant, went to Janis and said he wanted to rent the smaller of the houses, the one in the rear, for his friend Pluta, who was recently divorced. This was done. Pluta did not move in until the spring of the next year (1983), but from November 1982 until July 1983 the house was in continuous use as a wireroom, operated first (it appears) by Merino and then, after Pluta moved in, by Pluta. The house was not used in the gambling enterprise after that, but early the following year the government tape-recorded a telephone conversation between Janis and Orlando in which Janis offered Orlando a key to the house and asked him whether everything was all right. Orlando responded: "Yeah, yeah, they just wanted to get out of there. They spotted some guys out there I guess." Janis replied: "I know." Although Merino and then Pluta were the nominal tenants, often the rent was paid not by either of them but instead by Michael Gioringo, whom Janis knew to be an aide to Thomas Orlando.

The only other evidence of Janis's participation in the gambling enterprise was the testimony of a former friend and fellow gambler, Edward Arnold. Arnold testified that Janis had told him late in 1982 or early in 1983 that he had rented a house in Bridgeview to an acquaintance of Tommy Orlando or Richard Merino. Arnold further testified that shortly after this conversation the phone number that the Orlando enterprise had given him to use in calling in bets was changed to a number that he recognized as a "southwest side" number, an area that, as he knew, included Bridgeview. On the basis of the conversation and the phone number Arnold testified that "in my opinion it was possible that bets were being taken out of that house ... that Nick was renting."

Janis argues that Arnold's testimony was impermissible opinion evidence, and irrelevant to boot. It was neither impermissible nor even opinion evidence. Rule 701 of the Federal Rules of Evidence permits a lay witness to offer an opinion or inference that is rationally based on the witness's perceptions and that is helpful to the development of the evidence at trial. The rule is a sensible elaboration of Rule 602, which requires that a lay witness's testimony be based on personal knowledge. All knowledge is inferential, and the combined effect of Rules 602 and 701 is to recognize this epistemological verity but at the same time to prevent the piling of inference upon inference to the point where testimony ceases to be reliable. Western Industries, Inc. v. Newcor Canada Ltd., 739 F.2d 1198, 1202-03 (7th Cir.1984); see also Kaczmarek v. Allied Chemical Corp., 836 F.2d 1055, 1060 (7th Cir.1987); 3 Weinstein & Berger, Weinstein's Evidence p 701 (1987). That point was not even approached here. Arnold was being asked whether the facts that he knew, which were facts equally known to Janis, who was also a customer of the Orlando enterprise (in fact Janis had introduced Arnold to it)--or rather were facts better known to Janis than to Arnold because Janis owned the house--had tipped off Arnold to the fact that the house was being used as a wireroom. What Arnold called his "opinion" was actually a report of the contents of his mind, of which people are normally assumed--whether correctly or not, it does not matter--to have direct rather than inferential knowledge. The admission of such testimony is not problematic.

The character of Arnold's testimony as personal knowledge, not opinion, would have been transparent if the prosecutor had first asked him whether he had suspected that the house in Bridgeview was being used for a wireroom, and after he said yes had followed up with questions about the basis of that suspicion. That sequence would have made clear that Arnold was not being asked to draw an inference for the jury's benefit--to formulate an opinion in litigation--but rather to explain the basis on which he had drawn an inference in the past. That basis lay in facts known equally or better to Janis, and it could be assumed therefore that Janis probably had drawn the same inference. The jury could not peer into Janis's mind. It had to infer his knowledge from circumstances, one of which was that Arnold had concluded from facts known to Janis that Janis's house was being used as a wireroom. Of course Arnold may have been sharper or more alert or more savvy than Janis, but this is just to say that the evidence was not conclusive with regard to Janis's knowledge; it was relevant, however, and therefore admissible. United States v. Guzzino, 810 F.2d 687, 699 (7th Cir.1987).

Another way to grasp the true character of Arnold's so-called "opinion" evidence is to note that the question on which he might have been said to offer an opinion was not in dispute: namely whether Janis's house had been used as a wireroom. The purpose of calling Arnold was not to elicit testimony on a matter not in dispute but to explore the process by which he had reasoned to this conclusion and to ask the jury to infer that Janis had reasoned similarly to the same conclusion and therefore knew that his house was being used in the gambling enterprise.

Reference to Janis's knowledge brings us to the central issue in the case, the propriety of the judge's having given the "ostrich" instruction, on which see the thorough discussion in United States v. Jewell, 532 F.2d 697 (9th Cir.1976) (en banc). The instruction told the jury, "You may infer knowledge from a combination of suspicion and indifference to the truth. If you find that a person had a strong suspicion that things were not what they seemed or that someone had withheld some important facts, yet shut his eyes for fear that he would learn, you may conclude that he acted knowingly." There is no quarrel with the wording of the instruction, which is verbatim the instruction that we recommended to the district judges of this circuit in United States v. Ramsey, 785 F.2d 184, 190 (7th Cir.1986); the question is whether it should have been given.

The ultimate question that the jury had to decide was whether Janis either had participated in conducting the Orlando gambling enterprise or, more plausibly, had aided and abetted the enterprise, by renting the house to Merino knowing it would be used as a wireroom. Now it is not the law that every time a seller sells something that he knows will be used for an illegal purpose he is guilty of aiding and abetting, let alone of actual participation in the illegal conduct. Aiding and abetting requires more, United States v. Pino-Perez, 870 F.2d 1230, 1235 (7th Cir.1989) (en banc); in Learned Hand's words, requires that the alleged aider and abettor "in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed." United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938). A stationer who sells an address book to a woman whom he knows to be a prostitute is not an aider and abettor. Perkins & Boyce, Criminal Law 747 (3d ed. 1982). He can hardly be said to be seeking by his action to make her venture succeed, since the transaction has very little to do with that success and his livelihood will...