U.S. v. Pacione, 90-2825

• Decision Date: 28 February 1992
• Docket Number: No. 90-2825,90-2825
• Citation: 950 F.2d 1348
• Parties: 34 Fed. R. Evid. Serv. 1286 UNITED STATES of America, Plaintiff-Appellee, v. Ronald J. PACIONE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1348

950 F.2d 1348

34 Fed. R. Evid. Serv. 1286

UNITED STATES of America, Plaintiff-Appellee, v. Ronald J. PACIONE, Defendant-Appellant.

No. 90-2825.

United States Court of Appeals Seventh Circuit.

Argued June 13, 1991.

Decided Dec. 26, 1991.

Rehearing Denied Feb. 28, 1992.

James M. Kuhn, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Peoria, Ill., for plaintiff-appellee.

Ruth Snyder (argued), Kavanagh, Scully, Sudow, White & Frederick, Peoria, Ill., for defendant-appellant.

Before CUMMINGS and RIPPLE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FAIRCHILD, Senior Circuit Judge.

Ronald Pacione was convicted of violating 18 U.S.C. § 115(a)(1)(B) by threatening to assault a federal revenue officer with the intent to impede, intimidate, or interfere with her performance of official duties. Pacione was sentenced to 18 months imprisonment, with one year of supervised release. Pacione appealed his conviction and his sentence.

BACKGROUND

Pacione managed a pizza business owned by his wife. In 1987, Mrs. Pacione fell behind on her quarterly payments for employee withholding taxes. In April, 1988, the Internal Revenue Service (IRS) assigned Revenue Officer Karla Bartels to collect the taxes. She dealt principally with Mr. Pacione. In July, 1989, Bartels arranged for a levy on Mrs. Pacione's wages, earned in other employment, and the levy took effect near the end of August. In the summer of 1989, Mrs. Pacione had surgery for lung cancer, and at the end of August was in the hospital for the second time.

On August 28, 1989, Pacione received his wife's paycheck and discovered that the amount had been greatly reduced by the levy.

Bartels testified that Mr. Pacione telephoned her and asked why the hell she had levied on his wife's wages. He said they need the money. "He then said that his wife was going to be undergoing surgery in the next couple hours, or in approximately two hours, and that if anything happened to her, I would not see the sun set. He said, 'I swear on my mother's grave you will not see the sun set.' " After asking for her boss' home address and phone number, he told her he knew where she lived and her home phone number. "He said that he would carry through on this threat and then he just kind of chuckled before he hung up and said it was a private verbal conversation between just the two of us and that nobody else would know." Bartels "immediately went to my boss, Martin James, and told him that I had been threatened."

An hour or so later, Mr. Pacione and a friend came to the IRS local office. A taxpayer who was waiting there testified that Mr. Pacione said to his friend "that he wasn't going to go to jail ... that he was going to blow the ... place up."

Mr. Pacione testified that he made the call to Bartels, asked "why in the hell did you put a levy on my wife's paycheck," and said that the news of the levy "could kill Pacione was first charged by information with endeavoring, by threat of force, to intimidate or impede an employee of the United States acting in her official capacity, in violation of 26 U.S.C. § 7212(a). A jury trial ended in a mistrial because the jury could not reach a unanimous verdict.

                her."   He denied the statements about not seeing the sun set, and about blowing the place up
                

The government then obtained a two-count indictment against Pacione. Both counts alleged violations of 18 U.S.C. § 115(a)(1)(B). The first count charged that Pacione "threatened to assault Karla Bartels ... with the intent to impede, intimidate, or interfere with Karla Bartels while she was engaged in the performance of official duties." The second count charged that Pacione "threatened to assault Karla Bartels ... with the intent to retaliate against Karla Bartels on account of her performance of official duties." A jury convicted Pacione on the first count and acquitted on the second count.

Pacione raises five issues on appeal: (1) the case should have been dismissed because of prosecutorial vindictiveness; (2) the government's rebuttal witnesses should not have been allowed to testify; (3) the government engaged in prosecutorial misconduct; (4) the jury instructions should have defined a threat; and (5) the court did not apply the sentencing guidelines properly.

PROSECUTORIAL VINDICTIVENESS

Pacione argues that the district court erred in denying his motion to dismiss for prosecutorial vindictiveness without conducting an evidentiary hearing. Pacione's only claim of vindictiveness was that he was first charged with violating 26 U.S.C. § 7212(a), punishable by a fine of up to $3,000 and/or imprisonment not to exceed one year, but after mistrial, he was charged with violating 18 U.S.C. § 115(a)(1)(B), which is punishable by a fine up to $5,000 and/or imprisonment not to exceed three years. This Circuit has held, as Pacione concedes, that when a superseding indictment is obtained after a mistrial, there is no presumption of vindictiveness, and one seeking dismissal must establish actual vindictiveness by objective evidence. United States v. Nichols, 937 F.2d 1257, 1261 (7th Cir.1991); United States v. Whaley, 830 F.2d 1469, 1479 (7th Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988). Pacione argues that in this case, the only possible explanation for the enhanced charge is vindictiveness.

In United States v. Napue, 834 F.2d 1311, 1329 (7th Cir.1987), this court held that in order to obtain an evidentiary hearing on a claim of vindictive prosecution, a defendant must present sufficient evidence to raise a reasonable doubt as to the propriety of the prosecutor's actions. Pacione did not make this showing because, contrary to Pacione's claims, there are explanations other than vindictiveness for the enhanced charge. The government offered two explanations to the trial court, both of which are "normal factors ordinarily considered in determining what course to pursue." United States v. DeMichael, 692 F.2d 1059, 1062 (7th Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1878, 76 L.Ed.2d 809 (1983).

First, the government was not able to introduce evidence of Bartel's reaction to Pacione's threat in the first trial because the district court relied on a case concerning a similar charge under 26 U.S.C. § 7212(a), United States v. Sciolino, 505 F.2d 586, 589 (2d Cir.1974), to find the evidence inadmissible. The government believed that this testimony could be helpful, and that Sciolino might not apply to 18 U.S.C. § 115(a)(1)(B). The offenses described by the two statutes differ slightly. The offense charged originally was to endeavor to intimidate the revenue officer by threat of force. Those charged by indictment were to threaten to assault with the intent to intimidate or interfere with the revenue officer, and secondly, to threaten to assault with the intent to retaliate against the revenue officer. There was at least a hope, though it did not materialize, that the judge would permit evidence of the victim's state of mind in proving the new charges. See, United States v. Schneider The government also believed that reliance on 18 U.S.C. § 115(a)(1)(B) was preferable because it allowed the government to include two different charges in the indictment. The information alleged only that Pacione endeavored to "intimidate or impede" Bartels. The first count of the indictment similarly alleged an intent to "impede, intimidate, or interfere," and the second count alleged an intent to "retaliate against" Bartels. It was reasonable to believe that a jury might more readily find an intent to retaliate for the levy on the paycheck, although that was not the choice the jury ultimately made.

910 F.2d 1569, 1571 (7th Cir.1990), holding admissible evidence of the recipient's reaction where mailing a threat was charged.

Pacione did not raise a reasonable doubt about the propriety of the prosecutor's purpose, and he was not entitled to a hearing on his claim.

REBUTTAL WITNESSES

Pacione makes three arguments concerning the government's rebuttal witnesses. The government presented evidence from three witnesses whose opinions of Pacione's veracity stemmed from their dealings with him in the insurance business in the 1970s. In 1979, Pacione was convicted of violating state law because of his insurance dealings.

Christopher Klockau testified that he was a lawyer and a vice-president of the insurance company for which Pacione had worked. He knew Pacione as an agent and because of some legal action involving Pacione and the insurance company. When asked his opinion of Pacione's truthfulness, Mr. Klockau said, "My opinion is that his reputation is that he is untruthful." Mr. Klockau did not allude to Pacione's illegal insurance dealings until Pacione's counsel asked, "[Y]our company lost thousands of dollars because of Ron Pacione going out of business; is that correct?"

Ronald Schroeder testified that he knew Pacione because he took over Pacione's insurance agency in 1977, and he said he talked to approximately four hundred of Pacione's former customers. Mr. Schroeder said that Mr. Pacione had a reputation for being untruthful, "especially in reference [to] the insurance business." Like Mr. Klockau, Mr. Schroeder did not allude to Pacione's illegal conduct until Pacione's counsel asked, "[W]as there a problem with the way that the trust fund account was set up with Mr. Pacione?"

David Behm testified that he knew Pacione because he had bought insurance from him in the 1970s. He said his opinion was that Pacione was untruthful.

First, Pacione argues that although the government purported to be offering the evidence to establish Pacione's character for untruthfulness under Rule 608(a), the government's actual purpose was to admit the evidence of prior bad acts in violation of Rule 404(b). We will review the district court's decision to admit the testimony under the abuse of discretion standard. United States v. Briscoe, 896 F.2d 1476, 1490 (7th Cir.), cert....