United States v. Amiel CuetoUnited States v. Amiel Cueto
After a jury trial, Amiel Cueto was convicted of one count of conspiracy to defraud the United States, in violation of
Background
Thomas Venezia owned B & H Vending/Ace Music Corporation (“B & H”), a vending and amusement business, and operated an illegal video gambling business through a pattern of racketeering activities and illegal gambling payouts, in violation of state and federal anti-gambling and racketeering laws. Venezia hired Amiel Cueto, an attorney, to represent him as well as to defend the tavern owners associated with B & H in the event of any arrеsts and/or criminal charges for their participation in the illegal gambling operation. In March of 1995, Venezia and B & H were indicted on federal racketeering charges, in addition to other related charges including illegal gambling. 1 Throughout the investigation and prior to Venezia’s indictment, Cueto served as Venezia’s lawyer and advisor. Cueto was not Venezia’s attorney of record during the trial; nonetheless, the record indicates that Venezia continued to rely on Cueto’s advice throughout the prosecution of the racketeering case.
On December 2, 1995, Venezia and B & H were convicted of racketeering, illegal gambling, and conspiracy arising out of the oper
To understand the context of the instant indictment, convictiоns, and appeal, we examine the nature and scope of Cueto’s relationship with Venezia, his association with the illegal gambling operation, and his involvement in the investigation, indictment, and prosecution of Venezia, the illegal gambling operation, and the racketeering enterprise. In 1987, Venezia purchased a vending and amusement business, later known as B & H, which operated an illegal video gambling business for about eight years. B & H supplied video poker games to local bars in the metropolitan area of East St. Louis, Illinois, including a Veterans of Foreign Wars Post (‘VFW”) on Scott Air Force Base, and the tavern owners agreed to make illegal gambling payouts to its customers. 2 State agents believed the video games were being used for illegal gambling purposes, and beginning in 1992, the Illinois Liquor Control Commission (“ILCC”) and the State Police initiated a joint investigation in St. Clair County, which targeted illegal gambling operations in Southern Illinois.
The ILCC has broad investigatory powers to supervise liquor licensees, and ILCC Agent Bonds Robinson worked on the task force and investigated the gambling operations in cooperation with the state police. Initially, Robinson worked in a non-undercover capacity as part of the state investigation to determine, in the course of routine liquor inspections, whether any establishment was making illegal gambling payouts. Agents of the ILCC began to strictly enforce the gambling regulations and frequently visited the taverns to ensure compliance. Eventually, the FBI became interested in the state’s investigation, and ultimately decided to use Robinson in a federal investigation of illegal gambling operations in St. Clan* County, particularly Venezia’s gambling operation. 3 At some later point, Robinson assumed an undercover role for the FBI as a corrupt liquor agent in an attempt to gather evidence against Venezia and B & H. Soon thereafter, the state police raided the VFW Post, seized B & H’s video poker games, and arrested two VFW employees for maintaining an illegal gambling establishment. After the raid, Venezia and B & H supplied additional video games to the VFW, which continued to provide its customers with illegal gambling payouts.
In an attempt to gather evidence, Robinson, who was present at the VFW raid, indicated that Venezia could avoid further interruptions of his illegal gambling operation if he were to offer a bribe to discourage the investigation and the interference, and he suggested to Venezia that they meet. Vene-zia consulted with Cueto, who instructed Venezia to meet with Tom Daley, one of his law partners at the time. In an attempt to portrаy Robinson as a dishonest agent, Daley reported to the ILCC that Robinson had solicited a bribe at the VFW. A meeting was then scheduled between Venezia and Robinson, who met at B & H corporate headquarters. Robinson taped the conversation at the FBI’s request, and the tape was introduced into evidence in the racketeering case and at Cueto’s trial.'
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Soon after the meeting, the
First, Cueto and Venezia drafted a letter, detailing Robinson’s alleged “corrupt” conduct and accusing him of soliciting bribes, and delivered it to St. Clair County State’s Attorney Robert Haida. Cueto also filed a complaint in state court against Robinson, in which Cueto alleged that Robinson was a corrupt agent. See Venezia v. Robinson, No. 92-CH 299. Cueto obtained a court order that required Robinson to appear for a hearing in People v. Moore, one of the gambling prosecutions arising from the VFW raid. 5 Pursuant to the order, Robinson appeared in state court, and Cueto immediately served him with a subpoena, which required him to aрpear in court within fifteen minutes for an injunction hearing in Venezia v. Robinson. Cueto had prepared a petition, requesting either a temporary restraining order or a preliminary and permanent injunction against alleged extortion and other vexation to prevent Robinson from interfering with the operation of Venezia’s business. Robinson had not seen a copy of the complaint, had not been served with process, and was not represented by counsel.
At the hearing, Robinson’s requests for an attorney were denied, and the state court judge permitted Cueto to question Robinson about the FBI’s investigation (which at that point was still a covert operation) and the evidence it had obtained in the course of the investigation. Without permitting Robinson to put on a defense and without articulating any findings of fact or conclusions of law, the state court entered a preliminary injunction against Robinson, which indefinitely enjoined him from interfering with Venezia’s business operations. Venezia then returned to the VFW, as well as other taverns affiliated with the gambling operation, to advise them that a state court judge had entered an injunction against Robinson and that he could no longer interfere with their establishments and the illegal gambling operation.
Notwithstanding the injunction and pursuant to instructions from the Director of ILCC tо continue his routine liquor inspections, Robinson visited another establishment associated with B & H’s gambling operation and discovered that the tavern owner was providing illegal gambling payouts on some of the video machines. Thereafter, Dorothy McCaw was arrested for operating and maintaining an illegal gambling establishment, and she signed a written confession for her participation in illegal gambling activities. Upon learning of the inspection and arrest, Venezia contacted Cueto, who arranged for Venezia and Romanik, the third individual charged in the instant indictment, to obtain another statement from McCaw. Cueto then drafted a letter to the ILCC, State’s Attorney Haida, the Office of the United States Attorney for the Southern District of Illinois, and the FBI, claiming that his client was suffering damage as a result of Robinson’s “unlawful” interference with the opération of Venezia’s business and threatened that if the conduct continued, he would file suit against the ILCC, in addition to Robinson, for damages incurred. Without McCaw’s knowledge, Cueto attached to that letter the statement she had given to Venezia and Romanik, which supported Cueto’s allegations of interference. Cueto also filed a rule to show cause in state court, which described Robinson’s violations of the injunction and requested the court to find him in contеmpt; McCaw’s statement also was attached to the rule to show cause, again without her knowledge.
Represented by the Office of the United States Attorney for the Southern District of Illinois, Robinson filed a motion to remove the rule to show cause in
Venezia
v.
Robinson
to federal district court pursuant to
During the investigation, the record indicates that Cueto and Venezia developed more than a professional attorney-client relationship, entering into various financial transactions and business deals, some of which involved secret partnerships. A few examples include: (1) they purchased unimproved real estate, developed the real estate, built and managed a topless nightclub (Club Exposed), which operated some of B & H’s illegal gambling machines; (2) Venezia and Cueto incorporated Millennium III, an asbestos removal company, and applied for and obtained a $600,000 line of credit to complete the purchase acquisition; and (3) Venezia purchased Cueto’s office building and moved B & H corporate headquarters into it. The record demonstrates that in order to obtain financing, Venezia reported B & H as a principal asset on his financial statements and loan applications to establish the necessary credit he and Cueto needed to become joint borrowers on various loans. Moreover, the record indicates that the lender in the Millennium purchase relied upon Venezia’s financial statement in its decision to loan the money for the acquisition. See Transcript, 19:112-113.
About the time the Millennium purchase was finalized, state police and Robinson arrested George Vogt, a B & H customer, for gambling. At a hearing in the state’s prosecution of Vogt, Robinson testified and Cueto cross-examined him. After the hearing, Cue-to again approached State’s Attorney Haida, provided him with the transcripts from the Vogt hearing, and urged Haida to indict Robinson for perjury. Thereafter, Haida commenced an investigation of Robinson’s activities. Nothing came of Cueto’s allegations of perjury, and the investigаtion ended without any charges being filed.
The investigation of Venezia and B & H began in early 1992, and the events discussed above occurred over a period of approximately three years. We briefly mentioned some of the initial business and financial dealings between Venezia and Cueto, but to avoid an even longer discussion of these background facts, we think it unnecessary to specifically discuss every financial transaction contained in the record except to point out that together Venezia and Cueto participated in various business transactions, in which millions of dollars exchanged hands to finance the purchases of various real- estate interests and construction costs relating to various development projects, including certain gambling operations. 6 ’ The indictment specifically charged that Club Exposed, the nightclub owned by Venezia and Cueto, Millennium III, as well as other business transactions in which they were involved, depended upon the continued operation of B & H and the illegal gambling business to secure and to cover the various loans and debts they incurred in their financial ventures.
Even after Cueto became a business partner of Venezia and invested in various real estate and development projects with him, he continued to give Venezia legal advice. Although Cueto was not an attorney of record, he participated in the preparation of Vene-zia’s defense in the racketeering prosecution. Cueto continued to urge State’s Attorney Haida to indict Robinson for perjury. He also contacted Congressman Jerry Costello, who owned an equal one-third partnership interest in a gambling development project with Cueto and Venezia, and asked the Congressman to contact Haida and to offer him a seat on the judiciary in exchange for Haida’s
In August of 1994, the government empaneled a grand jury to examine the evidence obtained in the FBI’s investigation of Vene-zia and B & H, and the grand jury also initiated its own investigation of these allegations. In response, Cueto prepared and filed various motions to hinder the investigation and to discharge the grand jury, all of which were denied. Notwithstanding the defense tactics and delays, the grand jury indicted Venezia, among others; he was prosecuted, аnd ultimately, convicted for operating an illegal gambling enterprise, in -addition to other related convictions.
Seven months after the racketeering convictions in July of 1996, another grand jury returned a separate nine count indictment against Cueto, Venezia, and Romanik. It is this indictment and the subsequent convictions on various counts of this indictment that are the subject of this appeal.
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Count 1 of the indictment charged Cueto in a three-part conspiracy to defraud the United States, in violation of
In the first part of the conspiracy, the government charged that Cueto conspired to impede and delay the FBI investigation primarily by attacking the reputation of ILCC Agent Bonds Robinson and by urging the St. Clair County State’s Attorney to investigate, indict, and prosecute Robinson for alleged extortion. Second, the indictment alleged that Cueto conspired to influence and hinder the function of the grand jury by filing false motions, which attacked the operations of the FBI and the Office of the United States Attorney, in an attempt to delay and disrupt the investigation and to discharge the grand jury. Finally, the third aspect of the conspiracy focused on Cueto’s attempts to obstruct the proceedings in federal district court by persuading Venezia’s (and his co-defendants’) defense counsel to file various motions, including a motion to disqualify the district court judge assigned to hear- the racketeering case.
Counts 2, 6, and 7 of the indictment charged obstruction of justice in violation of the omnibus clause of 18 U.S.C. §' 1503,
9
alleging that Cueto corruptly endeavored to use his office as an attorney to influence, obstruct, and impair the due administration of justice in various court proceedings in connection with the prosecution of Venezia, his illegal gambling- operation, and the racketeering enterprise in
United States v. B & H Vending/Ace Music Corp. & Thomas Venezia, et al.
Specifically, Count 2 of the indict
After a jury trial, Cueto was convicted of the charges in Counts 1, 2, 6, and 7 and the district court ordered him to serve a prison term of 87 months, to be followed by two years of supervised release, and imposed monetary penalties. Cueto filed a timely notice of appeal. He asserts several arguments on appeal, challenging his convictions and sentence. First, Cueto contends that the conviction for conspiracy to defrаud the government is invalid, arguing that: (1) the meaning of “conspiracy to defraud” in
Cueto also asserts that he is entitled to a new trial because the district court erred when it excluded certain defense evidence: (1) the transcript of the state injunction hearing'in Venezia v. Robinson; (2) Robinson’s testimony at a hearing in one of the state’s gambling prosecutions, People v. Vogt, arising from Venezia’s illegal gambling operation; and (3) Venezia’s grand jury testimony, which Cueto wanted to use for impeachment purposes. He also claims that the district court erred by redacting portions of certain documents and newspaper articles. Finally, Cueto argues that his sentence should be vacated and remanded because the district court judge erroneously calculated his sentence by not grouping the obstruction of justice convictions. With these'facts as background, we now consider the issues presented for review and examine each argument in turn.
Analysis
Before we begin our analysis, we discuss the appropriate standard of review, our particular role in this review, and the limited scope of this decision. Our ruling today does not interfere with legitimate avenues of advocacy of even the most zealous of attorneys; we do nothing more than consider the constitutionality of certain criminal statutes aimed at protecting the sanctity and integrity of our justice system from corrupt influences and apply them in a sober and impartial fashion. Ultimately, we consider the sufficiency of evidence presented by the prosecution in our revieiy of the jury’s guilty verdict. Appellate review' of a jury’s verdict is limited; if any rational trier of fact could have found the elements of the crime beyond a reasonable doubt, we are bound to affirm the verdict.
Jackson v. Virginia,
In reviewing the sufficiency of the evidence in a criminal case, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution,
any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson,
I. OBSTRUCTION OF JUSTICE
Cueto asserts several arguments with respect to his convictions on Counts 2, 6, and 7 for obstruction of justice, contending that the omnibus clause of
“[I]n determining the scope of a statute, one is to look first at its language. If the language is unambiguous, ordinarily it is to be regarded as conclusive unless there is ‘a clearly expressed legislative intent to the contrary.’ ”
Dickerson v. New Banner Institute, Inc.,
Whoever ... corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes or endeavors to influence, obstruct or impede, the due administration of law, shall be imprisoned....
Cueto also contends that the vagueness problems are exacerbated by this court’s broad construction of the term “corruptly,” arguing that it fails to provide meaningful and adequate notice as to what conduct is proscribed by the statute. The Seventh Circuit has approved a jury instruction which articulates a definition for the term “corruptly,” and the district court judge included this definition in its instructions to the jury:
Corruptly means to act with the purpose of obstructing justice. The United States is not required to prove that the defendant’s only or even main purpose was to obstruct the due administration of justice. The government only has to establish that the defendant should have reasonably seen that the natural and probable consequences of his acts was the obstruction ofjustice. Intent may be inferred from all of the surrounding facts and circumstances. Any act, by any party, whether lawful or unlawful on its face, may violate Section 1503 , if performed with a corrupt motive.
See
Transcript, 32:68-69. The mere fact that a term “covers a broad spectrum of conduct” does not render it vague, and the requirement that a statute must give fair notice as to what conduct is proscribed “cannot be used as a shield by one who is already bent on serious wrоngdoing.”
Griffin,
There is little case authority directly on point to consider whether an attorney acting in his professional capacity could be criminally liable under the omnibus clause of
We are not persuaded by Cueto’s constitutional challenges, and his focus is misplaced. The government’s theory of prosecution is predicated on thе fact that Cueto held a personal financial interest in protecting the illegal gambling enterprise, which formed the requisite corrupt intent for his conduct to qualify as violations of the statute.
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Cueto focuses entirely on the legality of his conduct, and not the requisite criminal intent proscribed by
Even though courts may be hesitant, with good reason and caution, to include traditional litigation-related conduct within the scope of
An amicus brief submitted by the National Association of Criminal Defense Lawyers (“Association”) also questions the proper scope of the omnibus clause of
We have carefully examined the fears articulated by the National Association of Criminal Defense Lawyers, in addition to the arguments put forth by the defendant, that a decision upholding the application of the omnibus clause of
Nothing in the caselaw, fairly read, suggests that lawyers should be plucked gently from the maddening crowd and sheltered from the rigors of18 U.S.C. § 1503 in the manner urged by appellant and by the amici. Nor is there sufficient public policy justification favoring such a result. To the contrary, the overriding public policy interest is that “[t]he attorney-client relationship cannot ... be used to shield or promote illegitimate acts.... ” “[A]t-torneys, just like all other persons, ... are not above the law and are subject to its full application under appropriate circumstances.”
We now turn to Cueto’s argument that his convictions on the obstruction of justice counts were not supported by suffi
Again the focus of Cueto’s argument is misplaced; he argues that his conduct does not fall within the scope of the omnibus clause of
The charges in Count 2 of the indictment included allegations of a corrupt endeavor to obstruct the due administration of justice in Venezia v. Robinson by filing pleadings in federal district court and a continued attempt to hinder the proceedings by filing an appeal in this court and a petition for certiorari in the United States Supreme Court. The evidence demonstrates that Cue-to successfully exposed the FBI's investigation, uncovered the evidence it had gathered, obtained the injunction against Robinson, and continued to file frivolous appeals after the district court dismissed the injunction and the complaint. See Transcript, 15:62-63; 16:71-72. Govеrnment agents, in fact, testified that the investigation was disrupted and that Cueto “blew the lid off the ongoing investigation.” See Transcript, 3:44; 16:55-59. The jury was amply justified in concluding that Cueto’s repeated filings were motivated by his attempt to protect his client from prosecution and to safeguard his financial interest. Cueto’s actions may qualify as traditional litigation-related conduct in form, but not in substance, and the evidence presented at trial demonstrates that Cueto clearly intended and corruptly endeavored to obstruct the due administration of justice in Venezia v. Robinson.
Similar to Count 2, Count 7 includes allegations of preparing and filing and causing defense counsel to prepare and file false pleadings and other court papers; the indictment specifically charged Cueto with encouraging defense counsel in the racketeering case to file false motions and pleadings for the purpose of impeding and obstructing the administration of justice in that case. We have no doubt that Cueto in fact intended to interfere with the investigation, attempted to delay the indictment, and endeavored to obstruct the proceedings in federal district court in connection with the prosecution of Venezia.
See
Transcript, 23:74; 25:17. We simply are not dealing with non-corrupt, le
In response to his conviction on Count 6, Cueto argues that his conviction should be reversed because the
Aguilar
nexus is absent; he contends that the government presented insufficient evidence to establish the relationship between his attempts to persuade State’s Attorney Haida to investigate and indict Robinson and a pending-judicial proceeding.
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Cueto contends that at the time the conduct charged in the indictment occurred, the grand jury had not yet been empaneled and that Venezia had not been indicted in the racketeering case, and therefore the nexus is lacking. His argument, however, mischaracterizes the frame of time at issue in addition to the indictment and the charges therein. “It is well established that investigations undertaken with the intention of presenting evidence before a grand jury are sufficient to constitute ‘the due administration of justice’ under
Though Cueto’s initial calls and letters to State’s Attorney Haida may pre-date the empanеling of the grand jury, the phone call to Congressman Costello occurred after the indictment was unsealed. In addition, his letters to the State’s Attorney occurred throughout the investigation, and the evidence indicates that Cueto knew of the investigation. Accordingly, Cueto’s conduct prior to the empaneling of the grand jury as well as his subsequent acts to encourage State’s Attorney Haida to investigate and prosecute Agent Robinson have the requisite nexus to the judicial proceedings; there was sufficient evidence presented at trial for a rational trier of fact to conclude beyond doubt that Cueto repeatedly attempted to urge Haida to prosecute Robinson knowing that an investigation into Robinson’s conduct would hinder the government’s ability to continue to investigate Venezia ánd the gambling operation.
Whatever the contours of the line between traditional lawyering and criminal conduct, they must inevitably be drawn case-by-case. We refuse to accept the notion that lawyers may do anything, including violating the law, to zealously advocate their clients’ interests and then avoid criminal prosecution by claiming that they were “just doing their job.” As the First Circuit stated in
Cintolo,
“[w]e refuse to chip some sort of special exception for lawyers into the brickwork оf
II. Conspiracy To Defraud The United States
Cueto next challenges his conviction on Count 1 for conspiring to defraud the United States in violation of
Count 1 of the indictment charged Cueto with conspiracy to defraud the United States, in violation of
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years or both.
-The meaning of “conspiracy to defraud” is framed in general terms; it is impossible for Congress to anticipate, identify, and define each and every context in which an agreement to act would qualify as a conspiracy to defraud. As the Supreme Court recognized in
United States v. Lanier,
To conspire to defraud the United States means ... to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane, or the overreaching of those charged with carrying-out the governmental intention.
Although
Cueto, however, argues that the specificity of the indictment is problematic and far-reaching because it includes noncriminal conduct, which may not properly be a valid básis for the criminal charges and, ultimately, his conviction on Count 1. Cueto contends that his conduct is lawful “lawyering conduct” and that he cannot be guilty of a conspiracy to commit acts which are not criminal. To the contrary, the record clearly demonstrates that his conduct, which necessarily includes his corrupt endeavors, was not typical conduct of a lawyer and that it certainly was not lawful lawyering conduct. Based on our earlier determinations that there was sufficient evidence at trial to convict Cueto on the obstruction of justice charges for his litigation-related conduct, we can similarly dispose of the present argument. Although his actions initially may have stemmed frоm routine, even vigorous, advocacy, at some point his conduct exceeded the scope of lawful lawyering conduct. “ ‘[A]cts which are themselves legal lose their legal character when they become constituent elements of an unlawful scheme.’ ”
United States v. Bucey,
We recognize that Cueto may initially have been hired in his professional capacity to provide legal advice and representation, but it was equally reasonable for the jury to conclude from the evidence presented at trial that his representation also was undertaken for a criminal purpose in an attempt to protect the illegal gambling operation and to prevent government interference and that Cueto’s role in the conspiracy was to use the power of his office as an attorney for the corrupt purpose of impairing, impeding, and obstructing the investigation, indictment, and prosecution of the illegal gambling and racketeering entеrprise. Similarly, it was reasonable for the jury to conclude that Cueto agreed to participate in this scheme for his personal financial gain; the income generated by Venezia’s illegal gambling operation was used to fund additional business ventures pursued in partnership with Cueto. Examining the evidence in the light most favorable to the government, we conclude that a rational jury could have found that the government proved the elements of
III. EVIDENTIARY RULINGS ÜF THE DISTRICT Court
Cueto also claims that he is entitled to a new trial based on the district court’s incorrect evidentiary rulings. He challenges three specific evidentiary rulings, in which the district court excluded the tran
Cueto first complains that the district court’s decision to exclude the transcript of the injunction hearing prevented him from showing that he had a reasonable belief that Robinson was in fact a corrupt agent. The district court refused to admit the transcript of the hearing into evidence because, among other reasons, the hearing was conducted in violation of Robinson’s rights as determined by this court in
Venezia v. Robinson,
Next, Cueto contends that the court erred by denying him the ability to present testimony to demonstrate his reasonable belief that Robinson perjured himself at the
Vogt
hearing. The record shows that the district court limited Cueto’s testimony because he intended to attack Robinson’s credibility and to discuss testimony Robinson had given in other court proceedings. The district court ruled that the proposed evidence was hearsay and excluded it. We agree with the district court’s ruling that Cueto should not be permitted to discuss on the witness stand testimony Robinson had given in other court proceedings.
Finally, Cueto argues that the redacted documents, admitted by the district court, provided an incomplete and inaccurate description of his purpose for publishing the
East Side Revieio
articles and his reasons for submitting various filings to the court. However, the record demonstrates that the district court redacted the various documents because in a pre-trial motion, the judge had determined that prosecutorial misconduct was not a viable defense and the documents in question included various allegations of prosecutorial misconduct and attacked the integrity of the prosecutors. The court refused to allоw any discussion of or reference to allegations of governmental misconduct to be presented to the jury. Cueto disregards the record and does not address- the specific grounds for the trial court’s rulings on the exclusion of this evidence. We conclude that the court’s decision to redact the documents was proper; admission of the documents in their entirety would have impermissibly placed allegations of prosecutorial conduct before the jury.
See United States v. Glover,
For the sake of argument, even if the district court’s rulings were erroneous, reversal is not required so long as the errors were harmless, and “harmful error results only if the error has a substantial and injurious effect or influence on the jury’s verdict.”
United States v. Schoenborn,
Cueto also argues that he is entitled to a new trial because the district court violated his Sixth Amendment right to confront witnesses by refusing to allow defense counsel to impeach Venezia with his grand jury testimony during cross-examination. Normally, we review a trial court’s restriction on or limitation of cross-examination for an abuse of discretion.
United States v. Sasson,
On direct examination, Venezia admitted that he had perjured himself in his grand jury testimony to protect Cueto.
See
Transcript, 5:223-229. As such, the value of his grand jury testimony was limited. Nonetheless, Cueto contends that Venezia’s grand jury testimony was crucial to impeach other aspects of his testimony at trial. Mere restrictions on the scope of cross-еxamination do not necessarily constitute a constitutional error in violation of the Confrontation Clause.
Delaware v. Van Arsdall,
IV. SENTENCING ISSUES
Finally, Cueto contends that the district court erroneously calculated his sentence, arguing that the three counts of obstruction of justice should have been grouped pursuant to United States Sentencing Guideline § 3D1.2. We review the district court’s factual determinations underlying the application of the Sentencing Guidelines for clear error.
United States v. Owolabi,
Section 3D1.2 requires that thе sentencing judge group any count “involving the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.” U.S.S.G. § 3D1.2. This section contemplates a grouping decision based on a “single course of conduct with a single criminal objective” and does not authorize the grouping of offenses that do not represent essentially one composite harm.
Id.
at Ap
This case is a “victimless” crime, so the harm to societal interests must be considered. Cueto argues that his. crimes harmed the same societal interests and fall within the scope of Sentencing Guideline § 3D1.2. Instead, the district court accepted the government’s argument that different societal interests were harmed in each offense of conviction and consequently the judge considered each cоunt separately for purposes of calculating of Cueto’s sentence. 13
The district court relied primarily on this court’s decision in
United States
v.
Owolabi,
in which we affirmed a judge’s decision not to group an immigration offense and a counterfeit securities offense.
We do not dispute Cueto’s argument that the government characterized Cueto’s actions as a unitary effort with a common goal, and we certainly recognize that the instant case is distinguishable from Owolabi because Cue-to’s оffenses of conviction involve violations of the same statute. Notwithstanding these arguments, Cueto’s conduct invaded three distinct societal interests — the proper functioning of the FBI, the grand jury, and the district court — and each entity has a fundamentally separate and unique governmental function. Cueto’s conduct disrupted and interfered with the lawful function of various governmental entities at different times throughout a period of approximately two or three years. His purpose may have involved only one criminal objective, but it certainly did not involve a single course of action. The district court’s determination that the societal interests harmed were sufficiently distinct to preclude grouping was not clearly erroneous. Therefore, we conclude that district court judge properly applied Sentencing Guideline § 3D 1.2 when he calculated Cue-to’s sentence.
Conclusion
For the reasons discussed above, keeping in mind the limited scope of our holding, we Affirm the defendant’s convictions and the sentence imposed by the district court.
Notes
. The charges alleged that B & H supplied video poker games to various liquor-selling establishments on which the tavern owners provided illegal gambling payouts to its customers. B & H then reimbursed the tavern owners for the money they paid out on the video games and shared with the owners any profits the games earned.
. Video games that swallow pocket change and "pay off” in game replays are unobjectionable; but if the owner of an establishment pays winners in cash or liquor, then it is a violation of Illinois anti-gambling laws.
. When the FBI decided to use Robinson in its investigation of the illegal gambling operations. he was already working for the FBI in an undercover capacity in an unrelated investigation involving illegal prostitution and racketeering.
.Of course, the defendant and the government have conflicting opinions about the substance of the conversation and whether a bribe was solicited for investigatory or criminal purposes.
. At trial, Cueto admitted that he obtained the court order for unlawful purposes and that he fraudulently used the court order to lure Robinson to court for the injunction proceedings. See Trial Transcript, Volume 27 at 72-73, 95 (hereinafter all references to the transcript of the trial are cited as “Transcript, Volume: Page").
. The government submitted a summary exhibit of the joint business transactions engaged in by Venezia and Cueto from 1991 until 1995. See Trial Exhibit # 276.
. In the East Side Review, Cueto also authored and published various articles in'which he complained of prosecutorial misconduct in association with the racketeering case and attacked the integrity and reputations of various Assistаnt United States Attorneys involved in the indictment and prosecution of the racketeering case.
. For purposes of this opinion, we only discuss the counts for which Cueto was convicted: Counts 1, 2, 6, and 7. Cueto was acquitted of the charges in Counts 3, 4, and 8. Romanik pleaded guilty to Count 5 of the instant indictment for lying to the grand jury. Pursuant to a deal made with the government, Venezia pleaded guilty to the crimes charged in the indictment and testified at Cueto's trial in exchange for the government's recommendation that his 15 year sentence in the illegal gambling and racketeering case be reduced to the lower end of the Sentencing Guidelines, which would result in a reduction from 15 years to 10 years. _
.. Hereinafter, all statutory references are to Title 18 of the United States Code unless otherwise indicated.
. This theory of prosecution brings us some pause. With the government's emphasis on Cue-to’s involvement in Venezia’s illegal gambling operation and the racketeering enterprise, we are puzzled why the government did not indict and prosecute Cueto in the underlying racketeering case for his participation in the illegal gambling operation. Although the government's decision not to prosecute Cueto in the previous case is fundamentally inconsequential to the instant appeal, we are concerned about the relationship between the instant appeal and the underlying prosecution of the gambling operation and the racketeering enterprise.
. Cueto also asserts an alternative argument that his attempts to persuade the local prosecutor to indict a state official for misconduct are protected by the First Amendment. Speech which is false and misleading is not protected by the First Amendment’s right to freedom of speech.
Herbert v. Lando,
. For example, the same crime against the same victim on separate occasions would not be grouped because each separate crime, even though they may be identical, involves separate instances of risk of harm.
. By not grouping the offenses of conviction together when calculating his sentence, the district court effectively increased Cueto's sentence.