U.S. v. Tylkowski

• Decision Date: 18 November 1993
• Docket Number: Nos. 93-1423 and 93-1424,s. 93-1423 and 93-1424
• Citation: 9 F.3d 1255
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard F. TYLKOWSKI and Timothy P. Tylkowski, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1255

9 F.3d 1255

UNITED STATES of America, Plaintiff-Appellee, v. Richard F. TYLKOWSKI and Timothy P. Tylkowski, Defendants-Appellants.

Nos. 93-1423 and 93-1424.

United States Court of Appeals Seventh Circuit.

Argued Sept. 14, 1993.

Decided Nov. 18, 1993.

Brenda Atkinson (argued), Barry R. Elden, Asst. U.S. Attys., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

David P. Schippers, Schippers & Gilbert, Chicago, IL (argued), for Richard F. Tylkowski.

David P. Schippers (argued), Schippers & Gilbert, Chicago, IL, Neil L. Calance, Waukegan, IL, for Timothy P. Tylkowski.

Before BAUER, and KANNE, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

KANNE, Circuit Judge.

In this case a father (Richard Tylkowski) and his son (Timothy Tylkowski) were convicted of a variety of firearms violations arising out of the sale of five M-11 semi-automatic rifles which had been converted into fully automatic machine guns. Richard claims the evidence against him was primarily circumstantial and insufficient for a conviction. He also asserts evidentiary errors occurred regarding the admission of co-conspirator statements and prior "bad act" evidence. Timothy says that if there was insufficient evidence to convict his father, his own conspiracy conviction must fall as well.

I. Background

Because the case against Richard is based, in large part, on circumstantial evidence we will dwell at some length on the facts of the case.

During the first week of June 1992, Louis Andino, a member of the Maniac Latin Disciples street gang, met with an individual who offered to sell him firearms. Andino contacted the United States Secret Service and provided them with this information. Because the Secret Service does not investigate firearms violations, they referred Andino to Special Agent Joseph Ruzevich of the Bureau of Alcohol, Tobacco and firearms ("ATF"). Andino told Ruzevich that an individual named Dan Stanton told him that Stanton knew a third party who could sell Andino's gang armor-piercing bullets and automatic weapons. Andino agreed to be a confidential informant for the ATF and took Ruzevich to meet Stanton at a bar in Fox Lake, Illinois on or about June 9, 1992. Nothing came of this meeting. However, Andino agreed to continue providing Ruzevich with information concerning illegal weapons sales.

Subsequently, Andino's girlfriend, Becky Ramberg, introduced Andino to Timothy at Timothy's home in Spring Grove, Illinois. During that meeting, Timothy told Andino that he understood Andino was interested in purchasing automatic weapons for his gang. Timothy then showed Andino two weapons, including a M-11, and told him that he would have to check Andino out before he sold him any weapons. Accordingly, Timothy instructed Andino to fill out part of a gun license application with his name, address, and social security number. Timothy told Andino that he would check with "his people" to see if they could provide the guns and quoted a price of $900-$1,200 for each M-11. Andino asked Timothy whether the M-11s would be converted into machine guns and was told that "his people" could show Andino how to convert one weapon so that Andino could then convert the additional weapons himself. Andino responded that he did not want to pay the additional money necessary to convert the guns and did not want to take the risk that he might ruin them during the conversion process. No definite date for delivery was set because Timothy expressed a desire to get to know Andino better before completing the deal. Timothy also threatened that if anything went wrong, his people were very powerful and would take it out on Andino and Ramberg.

Timothy and Andino spoke to each other several times after their initial meeting, but Timothy would not discuss the pending illegal weapons sale over the phone. On August 3, 1992, Andino and Ramberg visited Timothy at his home for a second time. During that visit, Timothy informed Andino that his associates would convert the M-11s into machine guns and scratch out their manufacturer's serial numbers. However, the price of the guns would increase to $1,500 per weapon.

On September 13, Timothy called Andino and told him to come over to his house to pick up several dogs on the 14th and to bring only Ramberg with him. Andino informed Timothy that he did not have a car and would have to get someone to drive him to Timothy's house. Timothy told Andino to make sure that the person from whom he got the ride knew nothing about the illegal gun sale. Thinking that Timothy also planned to have the guns available, Andino informed Ruzevich, who agreed to accompany him to Timothy's house.

On September 14, Andino, Ramberg, and Agent Ruzevich went to Timothy's house. Andino was wearing an electronic transmitting device, which allowed several nearby ATF agents to overhear a private conversation between Timothy and Andino. During that conversation, Timothy informed Andino that the serial numbers on the M-11s had been obliterated, but they would not be converted into machine guns until the day before delivery. Andino asked Timothy if he could lower the price several hundred dollars. Timothy responded that he would have to check with his associates. Timothy also informed Andino that the money and the guns would never be at the same place at the same time.

The next day, Timothy called Andino and informed him that the deal would take place in several days and confirmed that the price would remain at $1,500 for each M-11. Timothy called again on September 16 to tell Andino that the sale would occur on the 17th and that he would call him then with final details.

On September 17, Timothy called Andino and told him to bring $7,500 for the five converted machine guns to the Burger King restaurant on Route 12 in Fox Lake, Illinois at 7:00 p.m. that evening. Timothy reiterated that the money and the guns would never be at the same place at the same time and that he would have people watching the deal. At approximately 6:00 p.m., Timothy called his father, Richard.

Around 7:00 p.m. that evening, Ruzevich and Andino met Timothy in the Burger King parking lot. Timothy instructed Ruzevich to park his car in the back of the parking lot and to unlock the rear passenger side door. Timothy informed Andino that they would have to leave the parking lot so that Timothy could count the money. Ruzevich objected to this plan and told Timothy that he wanted to complete the deal right there. Timothy responded by repeatedly demanding that Ruzevich get into car, telling him that "I've been told what to do, you're going to fuck it up" and that "I can't tell this guy what to do. He's telling me what to do." Timothy threatened Ruzevich that if he would not get into the car and consummate the deal as he had planned, the deal would be off.

During the discussion between Timothy and Ruzevich, ATF surveillance agents observed Richard drive slowly by the Burger King restaurant apparently performing counter-surveillance. Richard then parked his car nearby. After much discussion, Timothy finally informed Ruzevich that his orders were to take Ruzevich and Andino back to his house, so that he could count the money and telephone his associate to deliver the guns to Ruzevich's car. Ruzevich finally consented to Timothy's demand and all three of them got into Timothy's car.

While in the car, Timothy repeatedly told Ruzevich that he would be very pleased with the guns and that Timothy had personally fired them on the 16th and that they were indeed fully-automatic weapons. Timothy also told Ruzevich that his associate wanted to make sure that Ruzevich and Andino were who they claimed to be, because the first time he saw Ruzevich, he thought he looked like an undercover police officer. When Ruzevich stated that he understood the need to be cautious, Timothy said "I keep it in the family too," and "[i]f you can't keep it in the family, who can you trust?" Timothy also informed Ruzevich that the guns were "clean" and were contained in sealed boxes. Timothy told Ruzevich not to open the boxes because if he were stopped by the police, they could not legally open the sealed boxes and if they did, it would be an illegal search.

Once inside Timothy's house, Ruzevich handed Timothy $7,500, which Timothy counted and placed in a back room. At 7:25 p.m., Timothy called a public phone located outside the Kwik Pantry approximately one-half mile from the Burger King restaurant and stated: "I received the 75. Mr. R? 5 is a go, go ahead and deliver the 5." Five minutes later, at approximately 7:30 p.m., Richard drove into the Burger King parking lot and pulled into the parking space next to the driver's side of Ruzevich's car. Richard subsequently backed out of that spot and backed into another parking spot on the passenger side of Ruzevich's car. Wearing white gardening gloves, Richard then opened the rear passenger door of the car, walked back to his car, opened the trunk and removed two brown cardboard boxes which he placed into the back seat of Ruzevich's car. Richard was arrested as he walked back to the trunk of his car.

ATF agents found three more brown cardboard boxes in the truck of Richard's car, which were lying near a loaded .44 magnum revolver. Each box contained a M-11 semi-automatic weapon which had been illegally converted to fire fully automatic. The M-11s were now capable of firing 900 rounds per minute. Each individual number within the manufacturer's serial number on the guns had been bored out with a drill. ATF agents also removed a drill and a case of drill bits from the back seat of Richard's car. Timothy was arrested as he drove Andino and Ruzevich back to the Burger King parking lot.

The next day, ATF agents searched Richard's home, which was also the location of his firearms distribution business, and found a .22 caliber weapon which had been modified in a way consistent with an attempt to convert the...