U.S. v. Rainone

• Decision Date: 07 November 1994
• Docket Number: 93-1585 and 93-1586,Nos. 92-3154,s. 92-3154
• Citation: 32 F.3d 1203
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mario J. RAINONE, Gus ALEX, and Nicholas GIO, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1203

32 F.3d 1203

UNITED STATES of America, Plaintiff-Appellee, v. Mario J. RAINONE, Gus ALEX, and Nicholas GIO, Defendants-Appellants.

Nos. 92-3154, 93-1585 and 93-1586.

United States Court of Appeals, Seventh Circuit.

Argued March 30, 1994.

Decided Aug. 23, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied Nov. 7, 1994 in No. 93-1585. ^*

Chris C. Gair, Asst. U.S. Atty., Debra Riggs Bonamici (argued), Office of U.S. Atty., Crim. Div., Barry R. Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for U.S.

JoAnne F. Wolfson, Chicago, IL, for Mario J. Rainone.

Thomas P. Sullivan, Jenner & Block (argued), Carl M. Walsh, Chicago, IL, for Gus Alex.

Marvin Bloom, Chicago, IL (argued), for Nicholas Gio.

Before POSNER, Chief Judge, MANION, Circuit Judge, and REYNOLDS, District Judge. ^**

POSNER, Chief Judge.

Those who in these whirling times still genuflect to tradition will be gratified to learn that the "Chicago Outfit," once led by Al Capone himself (see ITT Research Institute & Chicago Crime Commission, A Study of Organized Crime in Illinois 36-43 (1971)), was still alive and kicking in the otherwise much changed Chicago of the 1980s. Organized Crime in Chicago: Hearing before the Permanent Subcomm. on Investigations of the S. Comm. on Governmental Affairs, 98th Cong., 1st Sess. 157-96 (1983) (statement of William F. Roemer, Jr., of the Chicago Crime Commission, linking the defendants in this case to Capone, Nitti, Accardo, and other Outfit bosses in an unbroken line of descent). One of its rackets was the protection racket, in which owners of restaurants, automobile dealerships, and other small firms were commanded to make substantial cash payments under threat, if they refused, of the destruction of their property and death and injury to themselves and their families. The racket was conducted at the operating level by the Outfit's "street crews," such as the "Patrick Street Crew," headed by the well-known Outfit member Leonard Patrick. Organized Crime in Chicago, supra, at 177. The indictment in this case, handed down in 1991, charged Patrick and two members of his crew, Nicholas Gio and Mario Rainone (the latter being Patrick's second in command), along with Gus Alex, the higher-up in the Outfit (id. at 170-71) to whom Patrick reported, with various offenses. The principal one was conspiring to conduct the business of the Patrick Street Crew between 1983 and 1989 through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(d), a provision of the RICO (Racketeer Influenced and Corrupt Organizations) statute. The indictment listed as predicate offenses of RICO numerous acts of arson, intimidation, and extortion. Patrick turned state's evidence and testified against the other defendants. In return he was permitted to plead guilty to offenses predating the federal sentencing guidelines and was sentenced to only six years in prison, later increased to seven when he violated the plea agreement by perjuring himself in another case (more on this later). Rainone pleaded guilty without engaging in plea bargaining, while Alex and Gio were convicted by a jury after a trial in 1992. Alex, Gio, and Rainone received prison sentences of 188, 137, and 210 months, respectively. Alex was also fined $250,000, and both he and Rainone were subjected to heavy forfeitures. Each of these three defendants has appealed, though Rainone's appeal is limited to the sentence.

The details of the crimes are not important. Typical is an incident in which Rainone, on the orders of Patrick and with the approval of Alex, went to a restaurant owned by a man named Moss and demanded $2,000 a month. He told Moss that if he didn't pay "they would find [Moss] in his walk-in freezer." To underscore the threat Rainone punched Moss in the jaw and said, "I know where your family lives. I know how to get your kids." So Moss paid.

The evidence against Alex and Gio was overwhelming. The government's principal witness was Patrick himself, admittedly an unreliable person, as we shall see--but there was also a highly incriminating tape, testimony by another member of the street crew who had turned state's evidence named LaValley, and testimony by two friends of Patrick and Alex who had carried messages between them because the two mobsters were reluctant to use the phone. Alex and Gio complain that they were unduly limited in their ability to cross-examine Patrick because the district judge refused to allow their lawyers to use in that cross-examination certain documents that they had obtained by subpoena from Patrick's former lawyer, David Mejia. Mejia had represented Patrick up through his guilty plea but afterward they had had a falling out and Patrick had accused Mejia of relaying an offer from Alex to pay Patrick for silence. The subpoena, which Alex's lawyer served on Mejia shortly before the trial, demanded all documents in Mejia's possession relating to Patrick. Mejia turned over a number of documents, including notes that Patrick had written to Mejia while Mejia was representing him. When Alex's lawyer tried to use these notes to impeach Patrick's testimony at trial, the government objected that the notes were protected from disclosure by the attorney-client privilege. The judge conducted an evidentiary hearing, upheld the claim of privilege, and refused to permit the notes to be used in the cross-examination of Patrick. The government objected? But it was Patrick's attorney-client privilege, not the government's, and the privilege is of course waivable. The appellants make nothing of this point, however, perhaps because when Patrick testified at the evidentiary hearing and was asked whether he had authorized the turning over of his notes to Alex's counsel he said he had not, thus indicating that he had not waived the privilege.

The judge did not act unreasonably ("abuse his discretion," in the standard jargon) in determining that the notes were indeed protected by the privilege. (On the scope of the privilege, see generally Fisher v. United States, 425 U.S. 391, 403-05, 96 S.Ct. 1569, 1577-78, 48 L.Ed.2d 39 (1976), and United States v. White, 950 F.2d 426, 430 (7th Cir.1991).) Evidence that the district judge was entitled to credit and did credit established that the notes had been prepared by Patrick at the direction and for the use of his then lawyer, Mejia, that they were in Patrick's case file in Mejia's office when subpoenaed, and that they give Patrick's versions of the acts of which the indictment accused him.

Evidentiary privileges are not absolute, however. Even privileges recognized when the Constitution was written can be trumped by constitutional rights, such as the right of confrontation conferred by the Sixth Amendment and interpreted to include the right of cross-examination. Olden v. Kentucky, 488 U.S. 227, 231, 109 S.Ct. 480, 482, 102 L.Ed.2d 513 (1988) (per curiam); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); John W. Strong, McCormick on Evidence Sec. 74.2, at pp. 279-81 (4th ed. 1992). Even the attorney-client privilege, therefore, hallowed as it is, yet not found in the Constitution, might have to yield in a particular case if the right of confrontation, whether in its aspect as the right of cross-examination or in some other aspect, would be violated by enforcing the privilege. So at least dicta in two cases intimate. United States ex rel. Blackwell v. Franzen, 688 F.2d 496, 501 (7th Cir.1982); Jenkins v. Wainwright, 763 F.2d 1390, 1392-93 (11th Cir.1985). But we have difficulty imagining an actual case in which the right to counsel and the attorney-client privilege would clash; they are fundamentally complementary rather than antagonistic. If a defendant knows that his communications with his lawyers can be subpoenaed by his codefendants should he have a falling out with them, and then waved in front of a jury, and then used, having thus lost their privileged status, to convict him of additional crimes, he will be inhibited in communicating with his lawyer, and it will be more difficult for him to prepare an effective defense; the practical value of his Sixth Amendment right to the effective assistance of counsel will therefore be less. At the same time, the government's ability to pry one defendant loose from the others and induce him to turn state's evidence will be impaired as well, to the detriment of the successful prosecution of complex and sophisticated conspiracies, as in the present case.

As this case also illustrates, the incremental contribution of communications within the scope of the attorney-client privilege to effective cross-examination is likely to be small. The lawyers for Alex and Gio spent three days cross-examining Patrick and brought out among other things that he had committed perjury on a number of occasions, had bribed politicians and police officers, had engaged in extortion and loansharking, and had committed six murders. These things were easy to bring out because Patrick's direct testimony had recounted the activities of his street crew--activities he had directed. He admitted, what was of course obvious, that he had an enormous incentive to play ball with the government--that otherwise he would die in prison--and even admitted that he would lie on the stand in this very case in order to stay out of prison. The jury thus was made well aware that he was a thoroughly reprehensible and unreliable person. The notes he had written to Mejia would have added too little to the picture to warrant abrogating the attorney-client privilege; so at least the district judge was entitled to conclude. One of the notes, for example, states that an FBI agent told Patrick that if he didn't cooperate the government would imprison him with former accomplices who would kill him for having ratted on them. Alex argues that he could have used the note to show that Patrick was coerced into testifying. But since Alex was at such pains...