U.S. v. McGuire, s. 94-1150

• Decision Date: 10 February 1995
• Docket Number: Nos. 94-1150,94-1151,s. 94-1150
• Citation: 45 F.3d 1177
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick H. McGUIRE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John A. MANDACINA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1177

45 F.3d 1177

UNITED STATES of America, Plaintiff-Appellee, v. Patrick H. McGUIRE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. John A. MANDACINA, Defendant-Appellant.

Nos. 94-1150, 94-1151.

United States Court of Appeals,

Eighth Circuit.

Submitted June 13, 1994.

Decided Jan. 13, 1995.

Rehearing Denied Feb. 10, 1995.

Christopher Harlan, Kansas City, MO, argued (Raymond C. Conrad and Christopher C. Harlan, on the brief), for Patrick H. McGuire.

Jonathan Laurans, Kansas City, MO, argued (John P. O'Connor and Jonathan L. Laurans, on the brief), for John A. Mandacina.

Paul S. Becker, Kansas City, MO, argued (Stephen L. Hill, Jr. and Paul S. Becker, on the brief), for appellee.

Before MORRIS SHEPPARD ARNOLD, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and MELLOY ^*, Chief District Judge.

JOHN R. GIBSON, Senior Circuit Judge.

Patrick H. McGuire and John A. Mandacina appeal their convictions of conspiring to retaliate against an informant, 18 U.S.C. Sec. 371 (1988), retaliating against an informant, 18 U.S.C. Sec. 1513(a) (1988), using interstate commerce in the commission of the retaliation, 18 U.S.C. Sec. 1958 (1988 & Supp. V 1993), and using a firearm in the commission of the two substantive offenses, 18 U.S.C. Sec. 924(c) (1988 & Supp. V 1993). The charges arise from the murder of Larry Strada, a witness before the grand jury which indicted Mandacina for illegal gambling. The jury found that Mandacina agreed to pay McGuire $25,000 to murder Strada and that McGuire did so. Mandacina and McGuire both argue that the district court ¹ erred in: (1) denying a motion for new trial due to Brady violations; and (2) denying acquittal based on insufficient evidence. Additionally, Mandacina argues that the district court erred in refusing to dismiss the indictment because the same grand jury that heard Mandacina's immunized testimony regarding gambling operations returned the indictment for the charges we now review and because the same prosecutor participated in both the gambling grand jury and in this prosecution. Mandacina also urges error in the district court's denial of his motion for severance and abuse of discretion in the denial of his motion for judgment of acquittal or new trial because the government's closing argument referred to the mafia, the mob, and organized crime. McGuire argues that the district court erred in admitting evidence of other grocery store and bank robberies and unrelated firearms transactions in which he had participated. We affirm the convictions.

As both McGuire and Mandacina appeal the sufficiency of the evidence, we view the evidence in the light most favorable to the government. United States v. Long, 952 F.2d 1520, 1524-25 (8th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 298, 121 L.Ed.2d 222 (1992). See also Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469-70, 86 L.Ed. 680 (1942). We will discuss only the facts necessary to decide the narrow issues before us.

Larry Strada provided information to the FBI implicating Mandacina in bookmaking and other criminal activity in the Kansas City area. Mandacina later pled guilty to charges of conspiracy to conduct an illegal gambling business. On May 3, 1990, Mandacina was sentenced to twelve months imprisonment.

At approximately 2:00 a.m. on May 16, 1990, Larry Strada returned home from a bar he operated and was killed in front of his home while taking out the trash. He was shot six times in the head and twice in the chest. The gunman did not take Strada's jewelry, his wallet with approximately $200 in cash, or a bank bag with the bar's nightly receipts.

The Kansas City Area Metro Squad investigated Strada's murder for approximately one week before turning it over to the FBI and law enforcement authorities in Gladstone, Missouri. No one found a weapon, a witness, or a lead.

In mid-December 1990, McGuire and his brother-in-law Terry Dodds were arrested while committing a bank robbery in Milwaukee, Wisconsin. Dodds pled guilty to bank robbery and firearm charges, and received a sentence of seven years, nine months. In early 1992, Dodds decided to cooperate with the federal authorities. FBI Agent Daniel Craft interviewed Dodds regarding a number of bank robberies. During this interview, Dodds implicated Thomas Earlywine as a participant in the robberies. Dodds also stated that he had overheard a conversation in which Mandacina said that he wanted somebody killed who had fingered him for a crime.

The FBI arrested and interviewed Earlywine about the robberies and the contract killing in Kansas City. Earlywine identified the victim of the contract killing as Lonnie or Larry Strada or Strocka. Earlywine told Agent Craft that, in May of 1990, a hitman murdered Strada while Strada was taking out his trash, and that Mandacina ordered the hit for $25,000.

Earlywine testified at trial that, in November 1989, Earlywine and Dodds went to the Red Front Restaurant and Lounge in the river market area of Kansas City. Both Earlywine and Dodds described a conversation in which Mandacina told McGuire that he had been indicted on federal gambling charges and that he thought that Strada had already fingered him or was preparing to do so. Mandacina then asked if McGuire would kill Strada.

Earlywine stated that McGuire bragged previously that he would do anything for Mandacina or members of Kansas City organized crime, including "heavy work," i.e. murder. McGuire told Earlywine that he wanted to ingratiate himself with the people he believed to be in "the outfit" or mafia in Kansas City.

Earlywine also testified that on another occasion, Mandacina mentioned the gambling indictment, but told McGuire and Earlywine that he did not want to talk further at the Red Front. He suggested that they go to his brother-in-law's restaurant, "Chubby's." Once there and while in Earlywine's presence, Mandacina said that he wanted Strada murdered and that he would pay McGuire $25,000 to do it. Mandacina also asked McGuire if he would murder Mandacina's son-in-law. McGuire said that he would and that it would be "gratis," or free.

In June 1990, McGuire met Earlywine at a bar in Rockford and told Earlywine that Strada had been murdered. McGuire said that Strada was murdered while taking out his trash and that he had deserved it. Earlywine did not ask McGuire if he killed Strada, because Earlywine believed that McGuire would have told him directly if McGuire wanted him to know.

In July 1990, Earlywine and McGuire came to Kansas City. McGuire called Frank Angotti and arranged to meet him for a drink at the Red Front. In an attempt to get Angotti to join their crime spree, McGuire told Angotti about the bank robberies in which Earlywine, Dodds and McGuire were involved and took him outside to show him a bag full of guns and a bag full of money. They then went back into the Red Front. Angotti testified to the following exchange, which occurred after Earlywine left the table:

I told Pat [McGuire], I said, "Pat, I have been hearing rumors about you." He said, "What kind of rumors?" I said, "Well, I hear that you did Larry. Did you do Larry?" He said yes.

At trial, Dodds and Earlywine testified regarding numerous robberies involving both of them and McGuire. They also testified regarding the necessity of obtaining weapons for this purpose. While drinking in Jennie's restaurant in downtown Kansas City, Earlywine and Dodds testified that McGuire asked the bartender where he could buy more guns. The bartender introduced McGuire to a woman at the bar, Brock Decastrogiovannimausolf, whose boyfriend owned a gun shop. The next day Brock introduced McGuire to the gun shop's owner, Dennis Crouch. At first Crouch refused to sell guns to McGuire, and McGuire enlisted John Mandacina to give assurances to Crouch for the sale, which was ultimately concluded. Brock's testimony is the subject of certain Brady claims, and the grocery store and bank robberies are the subject of Rule 404 evidence claims. Further details will be developed as we treat those specific issues.

I.

In November 1990, Mandacina testified under a grant of immunity before the special grand jury regarding gambling operations in Kansas City. He argues that the government used this immunized grand jury testimony to obtain the Strada indictment in 1992 and to name Peter Simone as an unindicted co-conspirator in the Strada murder.

Since Mandacina testified under a grant of immunity, 18 U.S.C. Sec. 6002 (1988), and was later prosecuted, the government must show that any evidence used or derived has a "legitimate source wholly independent of the compelled testimony." Kastigar v. United States, 406 U.S. 441, 460, 92 S.Ct. 1653, 1665, 32 L.Ed.2d 212 (1972). The crucial inquiry is whether the immunized testimony was in any way used, not whether it was related. United States v. McDaniel, 482 F.2d 305, 310 (8th Cir.1973).

The testimony Mandacina gave under use immunity is extremely limited and focuses solely on Kansas City gambling. Prior to his testimony, Mandacina and fourteen others had been convicted of bookmaking and other gambling-related crimes. Mandacina was not asked questions during the gambling investigation which related to Strada or Strada's murder nor did he provide any such information spontaneously.

The government did not use Mandacina's grand jury testimony in the Strada case. The government did not refer to the immunized testimony nor derive leads from it. Special Agent Eugene Thomeczek testified that the investigation into the Strada murder was "effectively discontinued" until March 16, 1992, when he received word from Agent Craft following Earlywine's interrogation.

Mandacina argues that the government used his immunized testimony concerning Simone to link Mandacina and Simone as co-conspirators in the Strada murder. However, Simone was named as a co-conspirator based upon the statements of Dodds, not the grand jury testimony of Mandacina....