U.S. v. Mokol, 90-2681

• Decision Date: 13 May 1992
• Docket Number: No. 90-2681,90-2681
• Citation: U.S. v. Mokol, 957 F.2d 1410 (7th Cir. 1992)
• Parties: 34 Fed. R. Evid. Serv. 1438 UNITED STATES of America, Plaintiff-Appellee, v. Michael MOKOL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1410

957 F.2d 1410

34 Fed. R. Evid. Serv. 1438

UNITED STATES of America, Plaintiff-Appellee, v.Michael MOKOL, Defendant-Appellant.

No. 90-2681.

United States Court of Appeals Seventh Circuit.

Argued Jan. 6, 1992.

Decided March 18, 1992.

Rehearing Denied May 13, 1992.

Michael A. Thill(argued), Andrew B. Baker, Jr., Asst. U.S. Attys., Dyer, Ind., for plaintiff-appellee.

Martin H. Kinney, William L. Touchette(argued), Merrillville, Ind., for defendant-appellant.

Before BAUER, Chief Judge, CUDAHY and KANNE, Circuit Judges.

BAUER, Chief Judge.

In this appeal, we review the conviction of yet another participant in the web of corruption spun by former Lake County, Indiana Commissioner and Sheriff, Rudy Bartolomei.In a seventeen-day jury trial, Michael Mokol, Chief Deputy of the Lake County Sheriff's Department under Bartolomei, was convicted of racketeering and conspiracy to commit racketeering in violation of 18 U.S.C. §§ 1962(c),1962(d).He was also convicted of aiding and abetting the operation of an illegal gambling business in violation of 18 U.S.C. § 1955.

Mokol challenges the sufficiency of the evidence supporting the convictions, as well as one of the trial judge's evidentiary rulings.We affirm.

I.

The crimes charged in Mokol's indictment arise out of a gambling operation based upon video poker machines in Lake County, Indiana.Mokol and Bartolomei solicited bribes from poker machine vendors in exchange for police protection.Before he became Sheriff, Bartolomei served as a Lake County Commissioner.In United States v. Stodola, 953 F.2d 266(7th Cir.1992), we considered Bartolomei's participation in a public contract kickback scheme.Bartolomei and the other Commissioners extorted money from businesses that received government cleaning contracts.

Bartolomei was Sheriff from 1983 until 1985.On March 1, 1985, he was charged in a fifteen-count indictment with mail fraud, conspiracy, extortion, and racketeering.Pursuant to a plea agreement, he pleaded guilty and agreed to cooperate with the government's investigation of other Lake County officials.Bartolomei admitted that while he served as County Commissioner and as Sheriff, he received approximately $20,000 to $30,000 in bribes annually.

During his tenure as County Commissioner and then as Sheriff, Bartolomei maintained a bank account for the Committee to Re-Elect Rudy Bartolomei("Re-Elect Account").He was able to force most of his employees to kickback to him two percent of their annual salaries.These funds were deposited in the Re-Elect Account.In addition, Bartolomei received bribes from Lake County citizens in return for special favors.He also held two fund-raising dinners on Valentine's Day in 1983 and 1984.Employees--particularly deputy sheriffs--were expected to sell a certain number of the $100-per-plate tickets.Mokol, who Bartolomei appointed Chief Deputy of the Lake County Sheriff's Department in 1984, told Bartolomei that he could sell $60,000 in tickets for the 1985 fund raiser.Records indicate that Bartolomei received $73,635 from ticket sales in 1985.

Video poker machines became big business in Lake County in 1983.Vendors who provided video games, pinball and vending machines, to restaurants and taverns also provided the video poker machines.

The poker machines began appearing in taverns and restaurants in Lake County in 1983.The machines offered a five-card draw poker game that allowed players to bet "credits" against the machine's hand.For a quarter (which buys one "credit") a player is dealt a five-card hand.The player can discard from one to five cards, and the machine randomly replaces the discarded cards.If the player's hand is better than the machine's, the player wins.Almost all of the businesses with the video poker games "paid out" twenty-five cents per credit to players who beat the machine.The vendor and tavern-owner would split the profits on the machines.Several tavern owners testified that their share of the proceeds was approximately $300 per week, per machine.Mokol does not contest that paying out on the machines constituted illegal gambling.The Racketeering Influenced and Corrupt Organizations Act("RICO" or "the Act"), 18 U.S.C. § 1962(c), charges against Mokol and his co-defendantReginald Kinkade, derive from poker machines owned and rented by Kinkade's sole proprietorship, Variety Amusement Company("Variety").

Bartolomei's first contact with video poker machine vendors occurred shortly after he became Sheriff in 1983.Don Hackle, who was not charged in these proceedings, contacted Bartolomei through a friend to arrange for protection for his machines.In exchange for $12,000 in bribes, Bartolomei agreed to warn Hackle of any police raids so Hackle could avoid having his machines confiscated.Soon after he received the bribe from Hackle, two of Bartolomei's employees introduced him to another video-machine broker, Richie Garza.Garza told Bartolomei "that a war was going to break out" over video poker districts if "a certain head wasn't appointed."Trial Transcript ("Tr.")at 668.

Bartolomei promoted Mokol shortly after the meetings with Garza.Bartolomei instructed Mokol "to find out who all the vendors were, and then to tell them that if any kind of trouble started or any one was injured ... or war starts ... that we would pull them out and destroy them."Tr.at 670.Mokol identified five vendors with machines in Lake County.Mokol believed that two of the vendors (Garza and Novak) had "violent tendencies" or possible associations with organized crime.Appellant's Br.at 21-22.Mokol began cultivating a relationship with Kinkade, the largest poker-machine vendor.

Timothy Janowsky(a/k/a "Gino"), another vendor, unbeknownst to Mokol and Bartolomei, worked as a confidential informant for the Federal Bureau of Investigation (FBI) from October 1984 through March 1985.The FBI wanted Janowsky to obtain information about video poker machines in Lake County.Initially, the FBI investigation targeted Bartolomei, and two vendors, Kinkade, and Chuck Hescher.The focus of the investigation shifted, however, when Janowsky discovered the relationship between Kinkade, Mokol, and Bartolomei.Janowsky "wore a wire" and recorded many conversations involving Mokol, Kinkade, and Janowsky about the parties' bribes-for-protection arrangement.Unless otherwise indicated, Janowsky taped the conversations recounted below.

Kinkade had video poker machines in approximately seventy-five locations.Kinkade told Janowsky at their first meeting on October 11, 1984, that he had reached an understanding with Chief Deputy Mokol.Garza's and Novak's (the vendors perceived as troublemakers) machines would be raided; Kinkade's and his friends' machines would be moved into the locations opened up by the raids.Another Lake County Deputy, Paul Guernsey, served as a go-between for Mokol and the vendors.Guernsey met Mokol at a restaurant on October 17, 1984.Guernsey told Janowsky that the Lake County police would try to force Garza and Novak out of business.Guernsey arranged with Janowsky for another meeting between Mokol and Kinkade; he explained Mokol was negotiating with Bartolomei to convince him to protect Kinkade and Janowsky and drive out Garza and Novak.

As the negotiations proceeded, three "friendly" vendors, Kinkade, Janowsky, and Hescher, divided the locations that would be available once Garza and Novak were driven out.On November 16, 1984, Kinkade informed Janowsky that he had made a deal with Mokol and Bartolomei.Kinkade agreed that the friendly vendors would pay Mokol $1000 a week for the raids on Garza and Novak, and for protection of their own machines.On November 21, 1984, Mokol confirmed to Janowsky that the Lake County police would protect the friendly vendors in exchange for the money delivered to him for Bartolomei.Mokol also promised to help Janowsky and Kinkade get more locations for their machines.He said all the money would be delivered to Sheriff Bartolomei.Mokol said he needed the support of the vendors because he wanted to run for Sheriff someday.

On December 5, 1984, Kinkade told Janowsky that he had just paid Mokol the first $4,000.Mokol acknowledged receipt of this money in a meeting with Janowsky on December 6.This is the first bribe charged in the superseding indictment.Mokol reiterated that he wanted the vendors to make money, be happy, and help him become Sheriff one day.Mokol promised to get Janowsky some new poker-machine locations.

On January 4, 1985, Kinkade and Janowsky met again.Kinkade said he got another location from Mokol and that he would give him the January payment.Kinkade told Janowsky that if he did not get more help, he would cut down the February payment to $2,000.On February 5, 1985, Mokol came to Janowsky's home for another meeting.Mokol said he had delivered the two payments to Bartolomei, but had promised to sell at least 1,000 tickets for Bartolomei's fund raiser through his people.Mokol said he had not yet sold any tickets.

Mokol informed Janowsky that Bartolomei had turned the entire video poker operation over to Mokol, and that the group only needed to keep paying off the Sheriff.Mokol promised that if he became Sheriff, the vendors would "make a million bucks."Tr.at 2568-69.Mokol explained that each vendor's share of the $4,000 monthly payment was $1,250.He said he had only paid Bartolomei $2,000 of the second $4,000 payment.The indictment charges that Mokol received a second bribe of $4,000 on February 8, 1985.

Later that month, on February 21, 1985, Kinkade, Mokol, and Janowsky met again at Janowsky's home.Mokol promised Janowsky and Kinkade that he would make sure that they got anything they wanted.He also acknowledged that Kinkade purchased a large number of tickets from him for Bartolomei's fund raiser, in addition to the monthly bribe.Mokol promised to protect Janowsky from the Gary police if he purchased...