U.S. v. Ras
| Decision Date | 25 July 1983 |
| Docket Number | Nos. 82-2021,82-2073,82-2085 and 82-2087,s. 82-2021 |
| Citation | 713 F.2d 311 |
| Parties | 13 Fed. R. Evid. Serv. 811 UNITED STATES of America, Plaintiff-Appellee, v. Florian B. RAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Thomas THERMOS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joseph C. MICALETTI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert MULLEN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Patrick A. Tuite, Robert A. Fisher, Frazin & Fisher, Chicago, Ill., for defendants-appellants.
Alan N. Grossman, Chicago, Ill., for plaintiff-appellee.
Before PELL and BAUER, Circuit Judges, and GRAY, Senior District Judge. *
Defendants-appellants Florian Ras, Joseph Micaletti, Robert Mullen, and Thomas Thermos bring this direct appeal from their criminal convictions in the United States District Court for the Northern District of Illinois. Our jurisdiction is based on 28 U.S.C. § 1291. The defendants allege numerous grounds for reversal; none of their arguments has merit. Therefore, we affirm the judgments of conviction.
Defendant Ras was employed as an inheritance tax examiner by the Illinois State Treasurer. In this capacity, Ras was responsible for conducting inventories of decedents' safe deposit boxes to ascertain assets subject to the state inheritance tax. Under the procedures of the Treasurer's office, each inventory was conducted on the premises where the safe deposit box was maintained. At least one witness was present at each inventory. Upon completion of each inventory, Ras prepared a list of all items found in the box. The inventory list was then signed by Ras and the witness(es); the signatories to each such list attested that all items not otherwise noted had been returned to the safe deposit box.
From April 1979 to September 1980, Ras inventoried hundreds of decedents' safe deposit boxes. Following Ras' inventories of six such boxes, stocks and bonds belonging to the decedents were negotiated. The negotiated securities had not been listed on Ras' inventories, although Ras' fingerprints appeared on three such stock certificates. All decedents' signatures on the negotiated securities, which had a total value of approximately $277,000.00, were forgeries.
Defendant Mullen, a close personal friend of Ras', received most, if not all, of the stolen stocks and bonds. Mullen, in turn, gave the securities to others for negotiation. The first set of stolen securities was negotiated by Defendant Micaletti and Charles McGowan; both were employees at Mullen's business, Kelly's Club. The remaining securities passed from Mullen to his friend Louis Thermos (Louis) for negotiation. Louis enlisted the aid of Joseph Marren, Michael Small, and Louis' cousin, Defendant Thomas Thermos, to negotiate these stocks and bonds.
On March 16, 1982, a grand jury returned an eighteen count superseding indictment charging Ras, Mullen, Marren, Small, Micaletti, McGowan, Louis Thermos, and Thomas Thermos with conspiracy and various substantive offenses. 1 Ras, Mullen, Micaletti, and Thomas Thermos pled not guilty. 2 The case against these four was tried to a jury, which found each defendant guilty of all counts with which he was charged. 3
Ras was sentenced to incarceration for a period of seven years and to five years probation, these sentences to be served consecutively. He was also ordered to make restitution in the amount of $250,000. Mullen was sentenced to incarceration for thirty months and to five years probation; he also was ordered to make restitution in the amount of $250,000. Micaletti received a sentence of incarceration for one year and a probation period of five years; he was ordered to make restitution in the amount of $40,000. Thermos was sentenced to a two-year period of probation.
All post-trial motions were denied and defendants brought this appeal. The defendants allege several errors by the district court. Each allegation of error is discussed and rejected below.
Defendant Thermos asserts that the evidence revealed multiple conspiracies, rather than the single conspiracy charged by the indictment. He urges that this constitutes a fatal variance between indictment and proof which requires reversal of his conviction under Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Related to this issue is the contention of both Thermos and Micaletti that the district court erred by its refusal to give Thermos' proposed instructions regarding multiple conspiracies to the jury.
The district court properly found that the evidence in this case established a single, ongoing conspiracy. Various defendants joined the conspiracy at different times and performed different functions. Some played a greater role in the overall scheme than others. But these considerations are not the benchmarks against which we judge a conspiratorial enterprise. Our concern is whether these defendants knowingly embraced a common criminal objective: the negotiation of stolen securities.
Thermos contends that his knowledge was limited to those stock certificates which he helped to negotiate. He disavows any contemporaneous knowledge of his co-conspirators' involvement in the theft and negotiation of other securities. Thus, Thermos urges that his criminal liability must be limited to those acts which he personally committed, or of which he had actual knowledge. This argument is without merit.
The law is well-settled that one who joins an ongoing criminal enterprise and knowingly furthers its objective is a member of that conspiracy. "There is no requirement that every defendant must participate in every transaction in order to have a single conspiracy ...." United States v. Hutul, 416 F.2d 607, 619 (7th Cir.1969). Moreover, "[w]hile the parties to the agreement must know of each other's existence, they need not know each other's identity nor need there be direct contact." United States v. Varelli, 407 F.2d 735, 742 (7th Cir.1969); accord United States v. Abraham, 541 F.2d 1234, 1238 (7th Cir.1976).
In this case, the evidence showed a single dynamic conspiracy. Ras removed the securities from decedents' safe deposit boxes and gave them to Mullen for negotiation. Mullen, in turn, enlisted the aid of the other defendants, who negotiated the securities. The common objective was the conversion of stolen stocks and bonds into cash.
Thermos acted in aid of this common purpose. That he may have done so without actual knowledge of every other transaction involved in the conspiracy has no legal significance. Thermos knowingly joined in an ongoing conspiracy; and " 'when he embark[ed] upon a criminal venture of indefinite outline, he [took] his chances as to its content and membership.' " United States v. Bastone, 526 F.2d 971 (7th Cir.1975) (quoting United States v. Andolschek, 142 F.2d 503, 507 (2d Cir.1944)). Because the facts showed a single conspiracy, in which Thermos participated, we reject his argument that he is not properly subject to criminal liability for the acts of his co-conspirators.
This case, as noted above, involved a single, ongoing conspiracy. Thus, the district court acted properly in refusing to instruct the jury with regard to multiple conspiracies. See, e.g., United States v. Ashley, 555 F.2d 462, 467 (5th Cir.1977); United States v. Kirk, 534 F.2d 1262, 1269 (8th Cir.1976). Accordingly, we reject Defendants Thermos and Micaletti's allegation that the district court erred in this regard.
Defendants Ras, Micaletti, and Thermos claim that the district court abused its discretion when it denied their respective motions for severance. We disagree.
The joinder of these defendants in a single indictment was proper under Rule 8(b), Federal Rules of Criminal Procedure, because they were "alleged to have participated in the ... same series of acts or transactions constituting an offense or offenses." FED.R.CRIM.P. 8(b); see United States v. Garza, 664 F.2d 135, 142 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1620, 71 L.Ed.2d 854 (1982). All counts of the indictment dealt with acts committed by the defendants in furtherance of a single, ongoing conspiracy. The charge of conspiracy in Count 1 served to link the substantive counts against the various defendants; this satisfied the relatedness requirement of Rule 8(b) and justified joinder. Id.
Having been properly joined in a single indictment, each defendant was entitled to a separate trial only if he could demonstrate that the joinder was prejudicial to him. The burden to demonstrate prejudice is on the defendant, and that burden requires the defendant to show "more than the fact that 'a separate trial might offer him a better chance of acquittal.' " United States v. Tanner, 471 F.2d 128, 137 (7th Cir.1972); accord United States v. Robinson, 503 F.2d 208, 215 (7th Cir.1974), cert. denied, 420 U.S. 949, 95 S.Ct. 1333, 43 L.Ed.2d 427 (1975).
A motion for severance under Rule 14 is committed to the sound discretion of the trial court; thus, we will not overturn a denial of that motion absent a clear abuse of discretion. United States v. Hedman, 630 F.2d 1184, 1200 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981). Moreover, this circuit has expressed "a strong policy in favor of joint trials 'where the charge against all the defendants may be proved by the same evidence and results from the same series of acts.' " United States v. McPartlin, 595 F.2d 1321, 1333 (7th Cir.1979) (quoting United States v. Cohen, 124 F.2d 164, 165 (2d Cir.), cert. denied, 315 U.S. 811, 62 S.Ct. 796, 86 L.Ed. 1210 (1942)).
In this case the only prejudice asserted by ...
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