U.S. v. Plescia

• Decision Date: 19 April 1995
• Docket Number: 92-1224,Nos. 92-1222,92-1226 and 93-3405,92-1225,92-1223,s. 92-1222
• Citation: 48 F.3d 1452
• Parties: 41 Fed. R. Evid. Serv. 892 UNITED STATES of America, Plaintiff-Appellee, v. Victor PLESCIA, Frank Bonavolante, Camillio Grossi a/k/a Canillo Grossi a/k/a Camillo Grossi a/k/a Gam, Anthony Grossi, and Norman Demma, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1452

48 F.3d 1452

41 Fed. R. Evid. Serv. 892

UNITED STATES of America, Plaintiff-Appellee, v. Victor PLESCIA, Frank Bonavolante, Camillio Grossi a/k/a Canillo Grossi a/k/a Camillo Grossi a/k/a Gam Anthony Grossi, and Norman Demma Defendants-Appellants.

Nos. 92-1222, 92-1223, 92-1224, 92-1225, 92-1226 and 93-3405.

United States Court of Appeals Seventh Circuit.

Argued Oct. 3, 1994.

Decided March 8, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied April

19, 1995.

Barry Rand Elden, Asst. U.S. Atty., Bennett E. Kaplan (argued), Office of U.S. Atty., Criminal Receiving, Appellate Div., Helen B. Greenwald, Asst. U.S. Atty., Criminal Div., Jack O'Malley, Office of State's Atty. of Cook County, Chicago, IL, for U.S.

Michael B. Mann (argued), Zavislak & Mann, Oakbrook, IL, for defendant-appellant Victor Plescia.

James R. Meltreger, Peter A. Regulski (argued), Anthony J. Onesto, Onesto, Giglio, Meltreger & Associates, Chicago, IL, for defendant-appellant Frank Bonavolante.

Alexander M. Salerno, Berwyn, IL, argued, for defendant-appellant Camillio Grossi.

Cheryl I. Niro, Oak Park, IL, argued, for defendant-appellant Anthony Grossi.

Robert A. Korenkiewicz, Chicago, IL, argued, for defendant-appellant Norman Demma.

Before POSNER, Chief Judge, CUMMINGS and ENGEL, ^* Circuit Judges.

ENGEL, Circuit Judge.

The five defendants in this case appeal the convictions and sentences arising out of a sizeable Chicago-based cocaine conspiracy spanning several years. Because we feel that the vast weight of the evidence supports the convictions and the sentences and that any possible error was harmless, we affirm.

Victor Plescia headed the conspiracy, which began during or before 1986. He sent couriers, including chief prosecution witness Nickalos Rizzato and defendant Anthony Grossi, and he went himself many times to Miami, where he had a cocaine supplier. Rizzato made at least ten trips over several years to pick up over 50 kilograms of cocaine, and as many trips carrying cash to pay the Miami supplier. In 1988, with an initial investment of $40,000, Frank Bonavolante began to finance cocaine purchases in return for a share of the resale profits. After Plescia or a courier brought the cocaine to Chicago, Camillio Grossi and his son, Anthony Grossi, or others distributed it in street-use quantities. When Bonavolante or Plescia wanted cocaine for their own use, Plescia got it from one of the Grossis. Plescia also set up deals between the Grossis and others, including Norman Demma, who regularly bought quantities of cocaine for redistribution, sometimes on credit.

Federal officials began to investigate the drug ring in 1989. With the aid of a confidential informant, the officers identified Plescia as the leader of the conspiracy. An undercover agent met with Plescia to arrange a drug purchase, and Plescia told the agent a considerable amount of detail about the operation. With the accumulating evidence against Plescia, federal agents applied for and received permission for Title III electronic surveillance of Plescia's mobile phone and pager. Surveillance agents recorded many conversations between the defendants in which Plescia coordinated the activity of the conspiracy. The wiretap in place, officers stopped a coconspirator named Kevin Geiger after he met with Plescia. The police then recorded the activity as Plescia called and paged the other four defendants, warning them that Geiger had been stopped with narcotics and telling them to lay low for a while. Plescia did not then reach Demma, despite calling his residence numerous times. In paging Bonavolante, Plescia used the code number 8, which Rizzato testified indicated drug-related activity.

Once the conspiracy resumed normal operations, the federal agents recorded a series of phone conversations in which Demma told Plescia he wanted to purchase more cocaine, Plescia called Anthony Grossi to check availability, then Plescia called back Demma at his residence and set up the drug transaction. The transaction, observed by federal agents, occurred in a parking lot where Plescia and Demma parked before entering a cafe. Afterward, federal agents pursued and caught Demma, who had thrown the cocaine out of his car during the chase. Then they let him go and monitored the burst of communications among the defendants. Demma immediately called Plescia to warn him that the agents followed them and may have bugged Plescia's phone or pager. Plescia again called Bonavolante and the Grossis to warn them of the attention from drug enforcement officers, and Plescia agreed to replace Demma's lost cocaine. When the U.S. had established the roles and identities of the people involved in the conspiracy and had sufficient evidence against them, all five were arrested, indicted, and tried.

The five defendants were tried in one proceeding with two juries, one for Plescia, Anthony Grossi, and Demma and one for Bonavolante and Camillio Grossi. Each defendant had separate counsel. The juries returned verdicts of guilty against all defendants, on most counts. All five were convicted of conspiring to traffic in narcotics and of various counts of using a telephone or pager to facilitate their drug business. All of the defendants now appeal, claiming that numerous reversible errors occurred.

We have considered all the arguments offered by the defendants, and we find sufficient merit for discussion in only a few. We will briefly mention and dismiss some other claims in Section IV of this opinion.

I. The Gambling Tapes

Bonavolante and Camillio Grossi argue that the trial judge committed reversible error in denying them access to and use of certain evidence which they believe to be exculpatory. During and preceding the drug conspiracy, Bonavolante directed an illegal gambling conspiracy in which Camillio Grossi and Plescia were involved. Federal agents separately investigated the gambling conspiracy, again using Title III electronic surveillance, and recorded twelve conversations between Bonavolante and others not involved in the drug ring. One of the tapes mentioned Camillio Grossi's role in the gambling operation. Bonavolante and Grossi defended in the drug prosecution by claiming that their activities, while illegal and conspiratorial, were limited to gambling, not drugs. They wished to offer the twelve tapes of gambling conversations as evidence to counter the government's tapes in which the defendants allegedly held drug-related conversations; in both sets of conversations, the speakers primarily used general language such as "thing," "the stuff," "that guy," and "anything" as well as a euphemism about "groceries" and "a quarter of salami." However, the gambling investigation had not been completed at the time of this trial, and disclosure of the tapes would have jeopardized the separate investigation and prosecution. The trial judge ruled that the U.S. need not disclose the tapes to the defendants. The U.S. disclosed the tapes to the defendants on appeal, after disclosure posed no danger to the other investigation.

Bonavolante and Camillio Grossi claim that the tapes tended to exculpate them, and that therefore they had a right to them under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). They cite as support for their claim a Ninth Circuit case, United States v. Abascal, 564 F.2d 821 (9th Cir.1977). The government in that case argued that real estate language used in a taped conversation referred to LSD, and the defendant wanted to present other taped conversations using similar language which actually concerned real estate deals. The Abascal court held that suppression of the defense's tapes represented prejudicial error as to the charges of use of a telephone to further illegal activity. 564 F.2d at 830. That case is easily distinguishable, however, because the district court in Abascal had improperly suppressed the evidence as hearsay (564 F.2d at 830), whereas here, the court balanced the defendants' interests against the government's very real interest in keeping the tapes confidential. Thus, Bonavolante and Grossi must make a stronger case than did the defendant in Abascal to justify reversal of the ruling.

We review the district court's ruling, made after an in camera review of the material, for an abuse of discretion. "When a criminal defendant seeks access to confidential informant files, we rely particularly heavily on the sound discretion of the trial judge to protect the rights of the accused as well as the government." United States v. Phillips, 854 F.2d 273, 277 (7th Cir.1988). To win a new trial, defendants must prove that there is a reasonable probability that disclosure of the evidence would have changed the outcome of the trial. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). Such a reasonable probability exists if the evidence undermines confidence in the outcome. Phillips, 854 F.2d at 277.

The defendants characterize the suppressed tapes as groundbreaking, likely to have convinced the jury that Grossi and Bonavolante limited their criminal activity to gambling and that they were simply swept up with the others, admittedly their friends and associates, who were the real cocaine conspirators. Yet the defendants did receive, and did admit into evidence several tapes made during the drug investigation of conversations limited to gambling. Bonavolante and Grossi fail to explain how the suppressed tapes differed significantly from these, or how the suppressed tapes could have augmented the admitted tapes except by volume. Thus the defendants were able to present their gambling defense without the suppressed tapes. The government admitted that both had been involved in a gambling conspiracy, and it admitted freely that several of the tapes from the drug investigation exclusively concerned gambling. The defendants presented their gambling defense using these and the "substitution theory"...