U.S. v. Zarattini

• Decision Date: 31 May 1977
• Docket Number: Nos. 76-1416 and 76-1431,s. 76-1416 and 76-1431
• Citation: 552 F.2d 753
• Parties: 1 Fed. R. Evid. Serv. 1346 UNITED STATES of America, Plaintiff-Appellee, v. Leo ZARATTINI and Anthony Zielinski, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 753

552 F.2d 753

1 Fed. R. Evid. Serv. 1346

UNITED STATES of America, Plaintiff-Appellee, v. Leo ZARATTINI and Anthony Zielinski, Defendants-Appellants.

Nos. 76-1416 and 76-1431.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 10, 1977.

Decided March 30, 1977.

Certiorari Denied May 31, 1977. See 97 S.Ct. 2661.

Edward Genson, Michael P. Toomin, Chicago, Ill., for defendants-appellants.

Samuel K. Skinner, U. S. Atty., Jeffrey J. Kent and Joseph N. Hosteny, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before PELL and WOOD, Circuit Judges, and SHARP ^*, District Judge.

ALLEN SHARP, District Judge.

Leo Zarattini and Anthony Zielinski were charged in a six count indictment alleging violations of Title 18, United States Code, Sections 371 and 659. After a jury trial, Zarattini and Zielinski were found guilty of having in their possession goods stolen from interstate shipment, (approximately 740 cartons of turkey and chicken) knowing the goods to be stolen and conspiracy to violate § 659.

Both defendants raise numerous issues for review.

I. Edward Zielinski's Grand Jury Testimony

The defendant, Anthony Zielinski raises two issues concerning the appearance of his brother, Edward Zielinski, before the grand jury. In the first issue Zielinski argues that the government prosecutors abused the process of the grand jury by compelling his brother, an unindicted co-conspirator, to appear before the grand jury after it had returned the indictment. The thrust of Zielinski's argument is his contention that the prosecutors improperly utilized the grand jury for the sole or dominating purpose of gathering evidence for use in the pending trial. This practice has been condemned by several courts. United States v. Sellaro, 514 F.2d 114 (8th Cir.1973); United States v. George, 444 F.2d 310 (6th Cir.1971); United States v. Dardi, 330 F.2d 316 (2d Cir.1964). Indeed the government in its brief concedes that if Edward Zielinski had been brought before the grand jury solely for pretrial discovery in an already indicted case that this would, in fact, constitute an abuse of process.

It is the government's position that the grand jury was involved in a continuing investigation regarding Edward Zielinski's possible involvement in the disposition of meat stolen from interstate shipment. Therefore, the calling of Edward Zielinski after the indictments were returned, was not an abuse of process they contend but, rather in light of the continuing investigation, was entirely consistent with the traditional purposes and functions of the grand jury.

Historically, the grand jury has been used as a device to investigate offenses and determine whether sufficient cause exists to formally file criminal charges against an accused. As this court has said in In re April 1956 Term Grand Jury, 239 F.2d 263 (7th Cir.1956):

"The power of the grand jury is not dependent upon the court but is original and complete, and its duty is to diligently inquire into all offenses which shall come to its knowledge, whether from the court, the prosecutor, its own members or from any source, and it may make presentments of its own knowledge without any instruction or authority from the court. Cawley v. Warren, 7th Cir., 216 F.2d 74, 76."

See also, Costello v. United States, 350 U.S. 359, 361, 76 S.Ct. 406, 100 L.Ed. 397 (1956); Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1886).

This court would unduly restrict the investigatory power of the grand jury were it to hold that the return of an indictment precludes the grand jury from calling potential trial witnesses when those witnesses themselves may be the subject of a continuing grand jury investigation. As this court declared in United States v. Braasch, 505 F.2d 139 (7th Cir.1974):

"The government has every right to interrogate witnesses on subjects relevant to a continuing investigation even when the evidence received may also relate to a pending indictment." Id. at 147.

Furthermore, after an examination of the grand jury transcript, we are convinced that the grand jury called Edward Zielinski as a result of the continuing investigation and not for the sole or dominating purpose of gathering evidence for the pending trial against his brother.

Therefore, in light of the foregoing, we conclude that it was not an abuse of the grand jury process to call Edward Zielinski before the grand jury after it had returned the indictment against his brother, Anthony Zielinski.

The second issue Anthony Zielinski raises concerning his brother's grand jury appearance involves a discovery dispute over his brother's grand jury testimony.

Upon learning of Edward Zielinski's appearance before the grand jury the defendant's attorney requested a transcript of his testimony. The government in response disclosed those portions of the transcript which it felt tended to exculpate the defendant. The government submitted the remainder of the transcript to the district court for an in camera inspection. The district court concluded that the government had turned over all exculpatory information and refused to require further disclosure.

The defendant, Anthony Zielinski, asserts that the trial court abused its discretion by refusing to require complete disclosure of the grand jury testimony of his brother Edward. For support the defendant relies principally upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Rule 16(a)(1) of the Federal Rules of Criminal Procedure and the opinions of this court in United States v. Feinberg, 502 F.2d 1180 (7th Cir.1974), and United States v. McMillen, 489 F.2d 229 (7th Cir.1972).

The defendant's support is misplaced. The mandate of Brady requires the government to disclose any exculpatory evidence regarding the defendant. This mandate was met in the instant case. After turning over to the defendant testimony it believed to be exculpatory, the government submitted the remaining portion of the transcript to the district court for an in camera inspection. The district court concluded that the government had complied with the Brady mandate. The import of this finding is that the testimony which was not disclosed was not exculpatory. We have no cause to disturb the district court's finding. See U. S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), for the most recent authority here. Nothing in Agurs changes the result here.

Additionally, the defendant's reliance upon Rule 16 and Feinberg is also misplaced. Since Feinberg Rule 16 has been amended to read in part ". . . the substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent . . ." (emphasis added) Rule 16(a)(1)(A). Since Edward Zielinski was neither a government witness nor a government agent, Anthony Zielinski had no right under either Rule 16 or Section 3500 of Title 18, United States Code, to discover the substance of his statements to his brother as related to the grand jury by Edward Zielinski. See this court's decision in United States v. Callahan, 534 F.2d 763 (7th Cir.1976) and United States v. Walk, 533 F.2d 417 (9th Cir.1975).

And finally in this regard, the defendant looks to United States v. McMillen, 489 F.2d 299 (7th Cir.1972), cert. den. 410 U.S. 955, 93 S.Ct. 1420, 35 L.Ed.2d 687 (1973), for support. This court held in McMillen that the trial court may, in the exercise of its sound discretion, require the government to produce statements of co-defendants who will not be government witnesses at trial. This court does not now extend that holding to make what was discretionary now mandatory.

II. Testimony of Douglas Earl Briggs

Douglas Earl Briggs, as a co-conspirator with the defendants, Zielinski and Zarattini, pleaded guilty to the charges against him and was the government's principal witness. Both defendants raise several issues involving his testimony.

The first issue concerns Briggs' testimony where he relates several telephone conversations he had with Zielinski and Zarattini. The substance of the conversations disclose a dispute over the payment of the stolen goods. Briggs claims that both Zielinski and Zarattini owed him additional money for the sale of the turkey.

Both defendants argue that the district court erred in admitting the testimony. They contend that the conspiracy ended upon the initial sale and distribution of the goods and this conversation, occurring after the conspiracy had terminated, was therefore inadmissible as co-conspirator hearsay.

It is unnecessary to determine when the conspiracy ended in order to resolve this issue. Even assuming the conclusion most favorable to the defendants, that the conversations occurred after the conspiracy terminated and therefore were inadmissible, their admission would still only constitute harmless error in light of all the other evidence presented in this trial. (For a parallel discussion of post-indictment statements see U. S. v. Jeffers, 520 F.2d 1256, 1270 (7th Cir.1975) Stevens, J.)

Another issue raised concerning Briggs' testimony relates to a conversation he had with Zielinski. Briggs testified that he met with Zielinski on November 10, 1973 at Zielinski's restaurant in an effort to consummate the sale of the stolen goods. Regarding that conversation Briggs testified as follows:

"We was talking about the horse racing and how things were going, betting and things. We got to talking about trucks and he wanted to know what kind of engine I had in the truck. I told him it was a Detroit deisel (sic), and he said that he made thousands of dollars, in his earlier years in the service, stealing engines and generators and selling them."

Upon hearing this Zielinski's attorney promptly objected. The district court sustained the objection and instructed the jury to disregard the comment. Defense counsel then...