U.S. v. Serola, 84-2511
| Decision Date | 19 July 1985 |
| Docket Number | No. 84-2511,84-2511 |
| Citation | 767 F.2d 364 |
| Parties | 18 Fed. R. Evid. Serv. 896 UNITED STATES of America, Plaintiff-Appellant, v. Rick SEROLA, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William M. Coffey, Coffey Coffey & Geraghty, Milwaukee, Wis., for plaintiff-appellant.
Mel S. Johnson, Milwaukee, Wis., for defendant-appellee.
Before CUDAHY and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
The appellant Rick Serola appeals his convictions for two counts of giving false testimony before a Grand Jury in violation of 18 U.S.C. Sec. 1623. 1 We affirm.
On July 20 and October 4, 1983, Serola was subpoenaed to testify under a grant of immunity before a grand jury investigating a marijuana distribution ring in Milwaukee, Wisconsin operating from 1977 through 1979. On July 20, during the course of his testimony, the government prosecutor asked Serola whether he was familiar with an individual named Douglas Lane and whether he knew of or participated in a marijuana distribution ring involving Lane. Serola admitted that he knew Lane; but, he claimed that he could not recall whether Lane was involved in any marijuana transactions. During Serola's grand jury testimony on October 4, 1983, he was asked about his relationship with a John Tamarri and his familiarity with Tamarri's marijuana distribution activities; Serola denied any knowledge of Tamarri's involvement in any marijuana distribution ring. On January 3, 1984, Serola was indicted on two counts of perjury on the basis of the answers given to the grand jury on July 20 and October 4, 1983 regarding his claimed lack of knowledge of Lane's and Tamarri's marijuana sales activities. The indictment charged:
while under oath as a witness in proceedings before a grand jury of the United States of America did knowingly make false material declaration in that he did falsely answer questions as follows:
Q "Now, did Tamarri have any other involvement in your marijuana business?
A "Well, he was just kind of like--not really, no. He was just kind of there to--you know, I may have led them to believe that he did because I wanted to be, you know,--when you don't know a person very well and you don't know much about them, you don't know how to get ahold (sic) of them and all that stuff, you want to kind of--and you're trying to get them to front you a lot of weed, you want to be on some kind of social level with them so that's what I tried to do and that's how John fit into it.
Q "Other than helping introduce you to Kirk, did Tamarri have anything else to do with your marijuana business?
A "No.
* * *
* * *
Q "So Tamarri never delivered any marijuana to Lane for you?
A. "I guess that's right.
Q. "Were you and Tamarri ever together at Lane's farm when large bales of marijuana which were delivered were there waiting to be distributed?
A. "I can't recall anything like that, no.
while under oath as a witness in proceedings before a grand jury of the United States of America did knowingly make false material declarations in that he did falsely answer questions as follows:
Q. "Did you ever front marijuana to Douglas Lane?
A. "No, not that I can recall.
Q. "Did you ever sell marijuana to Douglas Lane?
A. "Not that I can recall.
Q. "Did you ever transfer marijuana to Douglas Lane?
A. "You mean quantities?
Q. "I mean marijuana, any quantity.
A. "I can't recall.
Q. "By that you mean as you sit here this afternoon, you can recall no occasion when you caused marijuana to be transported, given, transferred in any way to Douglas Lane, is that right?
A. "Right.
* * *
* * *
Q. "Now, during the time when you lived at the Pompano Beach address, you caused cars and a truck and a motor home to transport marijuana from your Pompano Beach address to Mr. Lane's farmhouse outside of Milwaukee, Wisconsin, isn't that right.
A. "I know that I had some cars leave the house. Where they went, I don't know, you know. I do--my job is to get it out and when they come down, they come back to me with the money, usually, you know, the people who I give the vehicle to.
* * *
* * *
Q. "Do you know whether Doug Lane has ever trafficked in marijuana?
A. "No.
Q. "Do you know whether he has ever bought or sold marijuana?
A. "No.
Q. "Have you ever seen Doug Lane with large quantities of marijuana?
A. "No, not that I can recall.
"All of which the said Richard Serola did then and there know to be false, in violation of 18 U.S.C. Sec. 1623."
Michael Colella, the first witness called by the government at Serola's perjury trial, testified that Lane, Tamarri and Serola, former college friends, convinced him in early 1977 to act as a courier for a shipment of marijuana from Florida to Wisconsin. Colella testified that his first trip as a courier occurred in May of 1977 after Tamarri directed Colella to meet Serola in Florida; Serola in turn provided him with an automobile to transport the marijuana to Wisconsin. Subsequently, in July, 1977, Lane again called Colella, directed him to fly to Florida to pick up a shipment of marijuana from Serola and transport the load to Wisconsin. Colella stated that although he could not be sure of the particular location where he transported each of these loads, he was sure he delivered one of the loads of marijuana at Lane's farm in Wisconsin. Colella further testified that in the fall of 1977 he traveled with Tamarri by automobile to Boston, Massachusetts in order to retrieve a truck containing marijuana. Colella testified that while in Massachusetts, Tamarri made several telephone calls and during one of the conversations he overheard Tamarri call a person named "Rick" to discuss their progress in transporting the marijuana. Before leaving Boston, Tamarri told Colella to deliver the marijuana to a Tom Monahan who lived in Milwaukee. When Colella arrived at Monahan's address, both Monahan and Serola were waiting for him. Monahan testified that before Colella arrived at his house Lane called and told him that the load would be arriving shortly. After Colella arrived at Monahan's house, Lane and Tamarri appeared and joined Serola and Monahan in inventorying the marijuana. In March of 1978, Colella under Lane's direction once more made a trip to Florida and this time Lane supplied him with cash and a camper, which he drove to Serola's residence in Florida. On his return trip, Serola instructed Colella to deliver a load of marijuana to Tamarri's cousin in Chicago. In April of 1978, Colella also accompanied Tamarri as they transported a load of marijuana from Florida to Lane's farm in Wisconsin. Colella testified that his expenses for all of these trips were covered by either Tamarri or Lane.
In June, 1978, during another courier trip between Florida and Wisconsin, Colella was arrested by Florida authorities for possession of marijuana after they discovered his illegal cache when Colella was forced to stop at an agricultural inspection station. Colella testified that Lane, Tamarri and Serola agreed to pay Colella $15,000 in exchange for Colella's promise not to disclose their involvement with the marijuana. Subsequently, Colella was called before a grand jury in August of 1982. Prior to his testimony, he met with Lane to discuss how he should couch his testimony so as not to incriminate Lane, Tamarri, or Serola. 2 Since Serola was also scheduled to testify before the grand jury, Colella met with Serola and Lane at Lane's farm subsequent to Colella's grand jury testimony in order that they might coordinate their stories. Lloyd Kissick, Serola's former business partner, 3 also testified that Serola had told him that when he (Serola) left to testify before the grand jury, Serola stated that he would be staying at Lane's farm to "go over his testimony." (Tr. 31). Kissick also recounted a conversation between himself and Serola wherein Serola told him that he (Serola) answered most of the grand jury questions by stating that he did not recall the events and that the reason he did so was to avoid answering questions he did not wish to answer or was in doubt about the answer.
Finally, Joseph Kirk and Martin Plambeck, both of whom admitted they were marijuana traffickers in the late 1970's, also testified on behalf of the government. Kirk testified that both Tamarri and Serola had told him of a man named Doug Lane who could financially back Tamarri and Serola in larger drug transactions, while Plambeck stated that he had extensive marijuana dealings during the late 1970's with Tamarri and a man named "Rick."
In his defense, Serola presented four witnesses before offering the testimony of Al Hoover, who was called to impeach portions of Kissick's testimony regarding Kissick's claimed business dealings with Hoover. The district court, however, excluded Hoover's testimony on the grounds that it constituted collateral impeachment. After the defense rested its case, the jury returned a verdict finding Serola guilty on both perjury counts.
On appeal, Serola claims that the district court committed reversible error when it (1) failed to dismiss the indictment; (2) failed to make an explicit ruling on the record regarding the admissibility of co-conspirator hearsay statements; (3) asked Joseph Kirk a series of improper questions thus prejudicing his case; and (4) excluded the testimony of Al Hoover. He further claims that the evidence presented is insufficient to support the verdict.
Initially, Serola complains that because of the number of questions...
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