United States v. Joseph Gironda, John Heckens, John Speiss, and John Balzano

erty, punishment (1978), to make the effect is 483-84 compose cases do not token, more But pattern. severe. harmonious It is hard to reconcile §§ Act, Speedy seq., Carolina, Trial 18 U.S.C. 3161 et Mallett v. North supra, with a prohibition against post ex fac- years violated the case decided a few earlier which held punishments by accelerating substituting the date at an 8-man for a 12-man begins which a convicted defendant post violated ex facto clause: (it Utah, Thompson 352-55, serve his sentence accelerates the 170 U.S. date 620, 623-24, acquit- at which the innocent defendant is S.Ct. L.Ed. 1061 ted, too, Still, majority the vast presumption against but federal construing conviction, procedural change criminal trials end as shown a post as an ex facto law, reports Table D4 in the annual carry day and must in the absence Director of stronger the Administrative Office of the of a showing than made Courts) proposition change no case that the works an increase in —a asserts, very punishment. one or believes. It is though doubt- For we have been ful that speaking criminal defendants have settled of the Bail Reform Act as if it expectations regarding precise time had right abolished the pending bail begin when will to serve a sentence if appeal, thing; it did no such merely it made though convicted for of course the it get pending harder to bail appeal crime— —and thing regard same could be said with maybe harder, Third, much if the many changes Ninth, that have been held to and Eleventh Circuits are correct. impermissible applied post be when ex fac- change The in the advantages balance of to. against slight the defendant is too bring change within the scope post of the ex right, any If Molt is law that decreased facto clause. life, prison by reducing the amenities of as appropriations petition for the Bureau of Pris- for reconsideration of our ons, would, by making punishment more denial of the motion to admit the defendant onerous, prohibition against violate ex pending appeal to bail is therefore laws; post facto and that is not the law Denied. right, either. If wrong. Molt is Elrod is A

law that extends the statute of limitations expected punishment increases the cost of criminal, by making likely it more America, UNITED STATES of caught he charged will be before Plaintiff-Appellee, run, the statute of just limitations has bringing punishment closer increases

that cost. Joseph GIRONDA, Heckens, John John Speiss, Balzano, and John Although prohibitions against Defendants-Appellants. post ex facto just by laws cannot be evaded 83-2796, 83-2827, Nos. 83-2828 calling change procedural, only law and 84-1389.* right” “alteration of a substantial is forbid den, Graham, Weaver v. 450 U.S. n.29 Appeals, Court of 101 964 n. 67 L.Ed.2d 17 Seventh Circuit. (1981); merely accelerating the effec Argued tive Jan. date of a convicted defendant’s sen 1985. right.

tence does not alter a substantial It April 1, Decided 1985. course, degree, is all a matter may why, be as Professor has ar Tribe

gued, see American Constitutional Law

* argument. together. dated for oral appellants Each filed All were tried appeal, appeals separate were consoli-

Ted Helwig, S. Atty., Asst. U.S. Chicago, 111.,for plaintiff-appellee. CUMMINGS,

Before Chief Judge, CU- DAHY, Judge, PELL, Circuit Senior Judge. Circuit PELL, Senior Judge. Circuit trial, jury After a defendants John Balza- no, Joseph Gironda, Heckens, John Speiss John were convicted of conspiring steal money from the Continental Bank (Continental) and the First National Bank (First Chicago National) in violation of § 18 U.S.C. 371. Because defendants con- spired to money steal and property having exceeding $100, a value the district court imposed felony and not misdemeanor sen- tences. also convicted defendants Balzano, Gironda, violating and Heckens of § 924(c)(2), prohibits U.S.C. which unlawful carrying of a firearm commission felony. of a The jury acquitted defendants, the same however, three on the charge they violated 18 U.S.C. § 924(c)(1)by using a firearm to commit a felony. appeal Defendants their convic- tions.

I. The Facts

Defendants’ to wire funds from and First National Continental into accounts owned or controlled them be- gan February in meeting with a be- tween defendant Heckens and two unindict- coconspirators. ed The two unindicted co- conspirators, Felipe Ruiz Joseph and Nich- ols, painting maintained a part- contractor nership, and John employed Heckens had perform them to certain renovation work for him. In February late Heckens met with Ruiz and Nichols to discuss the work, and, meeting, at this Heckens men- tioned unlawfully that he had transferred $65,000 by wire from a north suburban bank with the assistance of a woman whom he in computer knew the room. Ruiz then informed people Heckens that he knew two Mikva, Mary Tuite, Ltd., L. Patrick A. computer who worked in rooms at different Flaxman, Morano, Kenneth N. Donald speak Y. banks and said that he would Chicago, 111., defendants-appellants. engaging them about in wire transfer. March, They agreed that Ruiz should again met with transfer. Heckens early meeting, in com- At this Ruiz meet with his other contact a bank Nichols.

Ruiz and room, Velazquez, Geiger at First Nation- accompanied by puter Ishmael Charles brother-in-law, Nevertheless, Velazquez worked in the com- met with vari- who al. meeting After puter conspirators room at Continental. two more times ous that, with Ve- Velazquez, meeting, Heckens stated not attended April. At the first or help, Gironda, he wanted to transfer five lazquez’ Heckens told Ruiz by Balzano or accounts. Ve- million dollars to various going six trouble if Ve- that there was be and, among agreed help, other lazquez perform the transfer. At lazquez did not diagram for Heckens things, he drew again meeting, Velazquez the second to execute a wire transfer. explaining how agreed perform a test run and to inform Also, meeting, four discussed at this before, Velazquez As Ruiz of the results. proceeds the manner Nonetheless, perform did not the transfer. agreed divided and wire transfer would be he told Ruiz that the run had been unsuc- Ruiz, Nichols, Velazquez would and that, problems cessful and because of the group Heckens and his would take half and runs, the test he wanted to withdraw with take the other half. relayed in- from the Ruiz Heckens, Velazquez had formation to met two more times The same individuals any no further contact with defendants. the details of their March to discuss present plan. Although Nichols was not During April May, the months of meetings, these he did attend the first of spoke frequently Ruiz with Heckens about During meeting, the second. the second Geiger possibility using at First Na- gave Velazquez certain informa- Heckens to wire funds out of the bank. tional pertaining tion to the accounts into which phone May, late Nichols received a call the funds were to be transferred. With Ruiz, According to from Gironda. Gironda accounts, respect to one of these Heckens Velazquez if did told Nichols Ruiz gave Velazquez bearing the a check name scheme, through not follow and account number. going up were to end dead the trunk of a threat, Heckens, Ruiz car. As a result of this moved early April, In late March or residence, Ruiz, Nichols, out of his which he shared with Velazquez and met with de- Nichols, had no further contact with and fendants Balzano and Gironda. At this Balzano, began cooperating Heckens, defendants until he with meeting, and Gironda the Government. Velazquez aside and told him that he took quickly with the needed to move more became aware of the Government in- Specifically, transfer scheme. Balzano through unrelated conspiracy a somewhat Velazquez putting people formed were previously, stated course of events. As pressure him him if he and told renovation work performed Ruiz certain Velazquez. Velazquez in trouble so was throughout stages the initial for Heckens $10,000 agreed then conduct a test run to Ruiz, According conspiracy. to he telephone At and Ruiz with the results. many attempted unsuccessfully, on occa- time, however, Velazquez this decided that sions, payment secure for his work from to he did not want to continue with the con- that, testified after Heckens. He further spiracy and lied to Ruiz about the test run. discussed, meetings previously one of the performed Despite the fact that he never accompanied Heckens to his car where he transfer, he told Ruiz that the transfer envelope containing gave him an Heckens attempt problems, prompting had created Peat, checks. Marwick and Mitchell certain security guards bank to interview him. him that the checks were Heckens told room, that Ruiz had by from a mail but meeting, At the next attended Heck- stolen Balzano, Gironda, cash them ens, Ruiz, Nichols, least a week within which to and Ruiz theft would be discovered. thought he before the Gironda told Ruiz that and, as one of the checks perform attempted to cash Velazquez going was not to result, 30, 1982, on June was interviewed surveillance at Shortly thereafter, the zoo. Inspector a United States Postal about defendants Balzano and Gironda arrived at interview, zoo, During Inspectors the check. Ruiz con- and the arrested them. arrested, When fessed his involvement defendant Balzano was carrying pistol hidden in agreed cooperate and to with the Govern- the waistband of pants. time, his At the Inspec- ment. same briefcase, tors also seized a located in the Government, cooperation In with the car that Balzano and Gironda had driven to telephoned agreed Ruiz Heckens and zoo, which contained numerous docu- Geiger. introduce him to Charles Heckens connecting ments the other defendants to told Ruiz that a friend who five had differ- conspiracy. ent bank accounts that could be used to August On Inspector Postal money float accompa- back and forth would Michael Aiesi arrested Speiss. defendant ny meeting Geiger him to the with According Inspector Aiesi, he 5, 1982, advised August Ruiz. On Heckens and Speiss of.his rights Miranda at the time of Speiss met with Ruiz and two Speiss’ the arrest at again home and at the Inspectors posing Geiger Postal post main office Speiss where he took im- Geiger’s girlfriend. meeting, At this Heck- mediately following Inspector his arrest. $2,000 agreed pay “Geiger” ens as ear- Aiesi Speiss signed testified that a form money nest Geiger’s agree- return for waiving rights Inspector his and told Aiesi $400,000. ment to transfer Heckens told that he wanted to talk. During this con- Inspector the Postal impersonating Geiger versation, Speiss confessed his involvement transfer, to facilitate the he should in the conspiracy. Speiss’ use one of bank accounts to receive funds. accordance with in- these Inspector Aiesi further testified that structions, defendant Speiss turned over a Speiss him in called arrange mid-October to Inspectors, check to the which bore the meeting. meeting, according At this account number of designated the account Aiesi, Inspector again Speiss he informed to receive the funds. rights. of his response, Speiss Miranda executed a handwritten statement which postponed meetings Ruiz further he stated that attorney his did not know 16, 1982, August defendants until when he meeting about the and that he did not want agreed Speiss building to meet with at a attorney During know about it. site to discuss renovation work. Ruiz testi- meeting, Speiss again confessed his in- fied that when he building, arrived at the volvement Speiss Heckens and him took inside. Ac- Proceedings II. The Below Ruiz, cording to defendants Balzano and shortly Gironda arrived thereafter 17, 1982, September grand On a federal kill failing threatened to Ruiz for to follow jury returned a three-count indictment through Although with the wire scheme. against the charged defendants. Count I jury acquitted defendants on the all four defendants with to steal charge using gun of a in connection with $400,000 from the First National Bank of incident, Ruiz testified that defendants § Chicago in violation of 18 U.S.C. 371. Balzano and Gironda committed various charged Count II defendant Gironda with physical against acts of violence him. § As a 924(c)(1) violating by using 18 U.S.C. a tactics, result of defendants’ intimidation gun August in connection with the agreed arrange meeting Ruiz a with charged incident. Count III defend- Geiger. violating ant Balzano with 18 U.S.C. § 924(c)(2)by unlawfully carrying gun 18, 1982, day, August The next Ruiz in- felony. of a commission Speiss Geiger formed Heckens and agreed had following to meet them the grand jury superseding returned a morning at the Lincoln Park Au- February Zoo. On indictment 1983. I on Count gust Inspectors up charged superseding Postal set indictment any felony.” of “during the commission conspiracy to steal defendants with

four § 924(c)(2). Alternatively, banks. defend- from different money property U.S.C. and allege that, paragraph one did Although allege even ants Gironda and Heckens con- that defendants property value of unlawfully carry a firearm if Balzano did steal, alleged that two spired paragraph 19, 1982, August the Pinkerton doc- on conspiracy” to transfer part of the “it was trine, permits conspirators to be held funds at the Conti- five million dollars by con- offenses committed other liable for at other banks. Bank into accounts nental conspiracy, in furtherance of the spirators that, alleged “part Paragraph three to them. Pinker- applied should not be See pay offered conspiracy,” defendants States, 328 U.S. v. United ton National $2,000 employee of the First to an (1946). Finally, 90 L.Ed. 1489 Chicago the transfer of funds Bank of for III, defendant Balzano respect to Count into accounts National from the First supported evidence claims that insufficient Un- by defendants. owned and controlled gun jury’s finding that he carried the ACTS,” I caption Count der the “OVERT required under the statute. unlawfully, as meetings and conversa- detailed several Heckens, Gironda, and Defendants unin- and other tions between defendants Speiss challenge a number of the dis- also coconspirators in furtherance of the dicted addition, superseding evidentiary rulings. Defend- court’s conspiracy. trict and Heckens as indictment added Balzano ant contends that the district Gironda II and added Gironda defendants on Count admitting testimony that erred Ruiz’ on III. Heckens as defendants Count and him that called and Nichols told Gironda Velazquez. and Defend- threatened Ruiz trial, jury seven-day jury After a the trial court argues ant Heckens Balzano, Gironda, and convicted defendants Peat, not have admitted stolen should III I and and Heckens on both Counts that Heckens Marwick and Mitchell check I. Speiss on Count convicted II, acquitted led to the demise of the respect gave and that With to Count Ruiz Gironda, Balzano, and Heckens. also contends that defendants Heckens forty- sentence of granted Balzano received a his motion the court should have I on Count and a when, months’ incarceration a mistrial or a severance five-year probation period on consecutive statement, opening ad- Gironda Gironda’s a sentence of III. Gironda received Count antagonistic to a defense vanced Heckens’ on I three-years’ incarceration Count and Speiss argues Finally, defendant defense. period probation on five-year consecutive appeal admission of his second that the Heckens received a Count III. Defendant his Amendment confession violated Sixth incarceration on Count I four-year term of right to the effective assistance of counsel. five-year period proba- and a consecutive Sufficiency III. of the Indictment Speiss re- tion on Count III. Defendant Heckens, Balzano, Gironda, Defendants fifteen-months’ incar- ceived a sentence of felony convictions Speiss appeal their I. ceration on Count I, arguing the indictment on Count appeals felony con- Each defendant charge felony it did not failed to because ground I on the viction on Count conspired to steal allege that defendants allege that defendants Count I failed to money having a value exceed- property and money property hav- conspired to steal contend, Therefore, ing defendants $100. ing greater a value than $100 only a misdemeanor. If I states Count therefore, only have con- the court should only should have been convicted defendants him a misdemean- and sentenced for victed I, they contin- on Count of a misdemeanor § Under this rea- or under 18 U.S.C. 371. ue, III on Count then their convictions Balzano, Gironda, and Heckens con- soning, empha- reversed. As defendants must be tend that should not have been con- size, charged § guilty of the offenses 924(c)(2) to be violating victed for 18 U.S.C. III, have unlawful- defendants must Count the firearms offense did not occur because firearms the commission ly objected carried Defendants never to the suffi- § 924(c)(2). felony. ciency of a U.S.C. of the prior indictment to trial. In- stead, defendants waited until the first wit- charged I of the indictment each Count began testifying ness objecting before conspiracy defendant with to commit an the indictment. judge The trial overruled against offense the United States in viola- objections, their finding that Count I suffi- § tion of 18 U.S.C. 371. Section 371 makes ciently felony charge. stated a Additional- persons it for or more unlawful “two ly, judge noted that objec- defendants’ conspire any against ... to commit offense tions prior should have been made to trial. the United if “one or more of States” such persons any object do act to effect the In reviewing the sufficiency of an § conspiracy.” 18 U.S.C. 371. With indictment, a court should consider the respect penalty violating challenged count as a whole and should statute, paragraph the second of section refrain reading from in hypertechnical it 371 states: manner. Brack, United States v. 747 F.2d If, however, offense, the commission — 1142, (7th Cir.1984), object conspiracy, of which is the of the -, 1193, 105 S.Ct. 84 L.Ed.2d 339 only, punishment is a misdemeanor (1985); Watkins, United States v. 709 F.2d conspiracy for such shall not exceed the (7th Cir.1983). As the Ninth Cir punishment provided maximum for such cuit stated Anderson, United States v. misdemeanor. 532 F.2d cert. de § I, alleged 18 U.S.C. 371. As in Count nied, 429 U.S. 97 S.Ct. 50 L.Ed.2d object conspiracy of the was the offense 107, an indictment “must be read to include § 2113(b). codified in 18 According U.S.C. facts which necessarily implied are by the 2113(b), to section it is unlawful to “tak[e] therein____ allegations made Even if an earr[y] away, with intent to steal or essential averment in an indictment purloin, any property money any or or oth- faulty form, if may by it fair construction to, thing belonging er of value ... or text, be found within the it is sufficient.” care, control, custody, management, pos- or § 2113(b). any session of bank.” 18 U.S.C. mind, With this construction in severity imposed of the sentence under interpret must an indictment to deter 2113(b) depends upon section whether the if First, mine it fulfills three functions. it stolen property greater has a value or less should state all of the elements of the than $100. charged; second, offense it should inform

Paragraph one of Count I states that the defendant of the charge nature of the conspired defendants carry defense; “to take and may prepare so that he away, third, purloin, with intent to steal and it must plead enable the defendant to property money belonging judgment any ... as a bar prosecu later 2113(b). banks” in of section Al- tion for violation the same offense. United States though paragraph assigns McComb, one no value to v. Cir. property, paragraph 1984); two Watkins, states United States v. “[i]t part of the conspiracy ... to cause a Debrow, at 478. also See United States v. transfer 378-79, of million of the bank’s 115-16, $5 funds 346 U.S. 74 S.Ct. by wire (1953); to accounts at other banks.” Para- 98 L.Ed. 92 Hagner v. United graph States, 427, 431, three states that 417, 419, was further a 285 U.S. “[i]t part that defendants 76 L.Ed. 861 In this defend $2,000 pay would and did offer to ground ants attack the indictment on the employee bank of First National Bank of that it fails to state an essential element of Chicago to transfer a charged. substantial amount the offense As this court has by recognized, bank’s funds wire to accounts at property the value of the other banks owned and controlled de- conspired defendants to steal constitutes offense, fendants.” an essential element of the allege paragraph cause the does not that alleged. States must be See United Cir.1960). (7th Pearce, F.2d 324-25 intended to transfer the funds defendants by them. into accounts owned or controlled passing on the Finally, before construction, rejects defendants’ This case, in this this specifies of the indictment noting paragraph two states that the of re that a stricter standard court notes attempted “part transfer was of the con- evaluating objec in an should be used view conspir- spiracy.” unlawfulness sufficiency of an indictment tion to the Also, paragraph in acy alleged was one. trial. during trial rather than before made paragraph three does state that the con- Watkins, this court States v. United attempted spiracy encompassed another “an indictment not recently stated that “to upheld ‘un transfer which defendants tried challenged before trial will be not, by it does less it is so defective that Na- transfer a substantial amount of [First construction, charge any an of reasonable by at other funds wire to accounts tional’s] is convict fense for which the defendant banks owned and controlled defend- ” ” (quoting ed.’ 709 F.2d at 478 United added). (emphasis ants 1056,1061 Knippenberg, support argument of their Cir.1974)). (7th also United States See charge felony, indictment fails to defend (7th Richardson, 952, 962 687 F.2d Cir. inappo ants cite numerous cases that are 1982); Willis, 515 F.2d United States v. upon to this case. The cases site Cir.1975). argue Defendants rely proposition stand for the defendants rule, requiring that this liberal construction that a court must read each count of an challenged tri- of an indictment not before independently indictment of all other al, They applied should not be to this case. See, e.g., counts. United States v. Gor challenges applies that the rule contend don, 177,180 (7th Cir.1958); 253 F.2d Unit validity of an indictment and not to Roberts, 1375- ed States v. an indictment. Even if the construction of case, (6th Cir.1972). In this the Govern distinction, accept this court were to argue ment does not that the court should however, challenge defendants do the valid- look to either Count II or Count III to cure all, ity of the indictment in this case. After Rather, alleged defect in Count I. accepts if this court defendants’ construc- that, argues correctly inter Government I, tion of Count then Counts II and III preted, alleges I in and of itself Count they on the must be dismissed because turn Kahn, value. In States v. carrying use and unlawful of a firearm 829-30 during the Be- felony. commission of 591,19 validity II and III U.S. L.Ed.2d cause Counts according or fall to the construction stand court resorted to statements contained I, this court of Count review validi- clarify will Acts” to the enumerated “Overt ty indictment a liberal manner. case, indictment. In this the district court Rather, go did not even that far. the dis Turning to the indictment in this simply paragraphs trict court found that agrees judge this court with the trial three, para in conjunction two or read whole, I read as a Count of the indict one, necessary allega graph contained the supports felony ment defendants’ convic This court holds that the tion of value. Although paragraph tions. one does not deciding district court did not err value, allegation paragraph an include alleges felony Count I offense. Of part conspir states that it two course, holding that I of this court’s Count acy attempt million from to transfer $5 sufficiently supports defend the indictment Continental. Defendants would have this felony disposes of their ants’ convictions paragraph hypertechni court read two in a arguments related their convictions way. According cal to defendants’ inter under III must be reversed because pretation, allege Count paragraph two fails to felony. commit a attempted illegal that the be- did not transfer was

1211 924(c)(2) Liability arguments. essentially IY. under’ Section related Basically, argument first defendants’ is that Pinker- A. The Pinkerton Doctrine ton apply should not of facts this argue and Heckens Defendants Gironda case because the offense to which Pinker- that their on Count III for vio- convictions liability ton would attach is the objec- § 924(c)(2) lating 18 should be re- U.S.C. conspiracy. tive of words, the In other represent versed because the convictions defendants, according to “Pinkerton con- an extension of unwarranted the Pinker- templates that one conspirator where ac- in ton doctrine enunciated Pinkerton v. complishes objective the illegal of the con- States, 640, 1180, 328 United U.S. spiracy, coconspirators, although they 924(c)(2) 90 pro- L.Ed. 1489 Section personally did not commit the substantive vides that whoever: crime, also may be liable for that crime:” unlawfully during firearm carries a the Pinkerton, conspired two brothers any felony of commission for which he provisions violate various of may prosecuted in the Internal be a court of the Revenue shall, Code. Daniel in Pinkerton was con- States addition to the victed punishment provided committing for of the commission various substantive felony, offenses, of such be term the objects sentenced to a of were of the imprisonment less year conspiracy, although for not than one the evidence demon- years. brother, nor more than ten he, strated that his and not actual- ly had committed these § offenses. Id. at 924(c)(2). 18 U.S.C. at evidence trial 645, 66 In affirming S.Ct. at 1183. Daniel 19, August 1982, demonstrated on conviction, Supreme Pinkerton’s Court when Postal Inspectors de- arrested noted that act done was in zoo, execution “[t]he fendants Balzano and Gironda at enterprise ... we pistol defendant Balzano fail see carrying was [and] why the or same other acts in pants. concealed in the waistband of his furtherance evidence, of the conspiracy On the of are likewise judge basis not attributa- ble purpose instructed it could to the others for the holding convict of defendants Gironda of them responsible and Heckens violat- substantive of- 924(c)(2) ing guilty 647, section if it found them fense.” at Id. 66 S.Ct. at 1184. conspiracy I govern- of and if Count interpreted This court has Pinker proved beyond

ment a reasonable doubt ton conspirator may to mean that each “[fjirst, charged in be offense ... committed; every “liable for overt acts of other second, Count III con was that the spirator in pursuant conspir done of offense was committed furtherance to and third, acy.” Read, of conspiracy; furtherance 658 United States F.2d 1225, (7th Cir.1981). that the defendant was member of the 1230 See United conspiracy Covelli, the time the offense was F.2d 858 738 — judge explained committed.” The trial Cir.1984), denied, -, cert. U.S. 105 Pinkerton doctrine the basis of his 141; S.Ct. 83 L.Ed.2d United States v. instruction and that the Pinkerton doctrine Shelton, F.2d 454 669 coconspirator holds “a who commits an of- cert. 102 U.S. S.Ct. fense furtherance of a ... 454; 72 L.Ed.2d United States v. Garza agent of coconspirators.” be the other Hernandez, (7th Cir.1980). instructions, After the jury these convicted Redwine, also See Heckens, defendants Gironda and addi- (7th Cir.1983)(“a proven con Balzano, violating tion to defendant sec- spirator responsible for the substantive 924(c)(2). tion offenses based on the overt of his acts conspirators long

Defendants contend that the fellow as those acts Pinkerton applied were doctrine should not be to section done furtherance or as a natural 924(c)(2) support consequence conspiracy”), in this case. their de —nied, position, -, defendants advance a number of Shelton, See therance (1984).1 In accordance L.Ed.2d (“each defendant is vicari- F.2d at 454 construction established court’s the overt acts committed ously liable for in doctrine, held United we

Pinkerton to further the over- conspirators the other Cir. 734 F.2d Galiffa, States Thus, added). ”) (emphasis that in scheme not err all 1984), court did the district that 924(c)(2) the was not violation liability the section on Pinkerton instruction giving an ' irrelevant conspiracy the is object of in case. Id. at issue the one similar to coconspirators. liability as charged I defendants’ Galiffa,' Count 314. Rather, that defendants’ this court holds conspiracy to distribute with defendant long as upheld so should be marijua convictions intent to distribute possess with and Heckens were defendants Gironda posses both charged him with IV na and Count Bal- long as defendant conspirators and so intent to distribute. marijuana with sion of gun in further- unlawfully carried the the zano judge instructed at 307-08. Id. conspiracy. ance of the jury that: Galiffa you find that the defendant [I]f offered at of the evidence On the basis I, you may charged in guilty as Count found, in trial, have jury properly could the the of- guilty of find the defendant also instructions, with the court’s accordance IV, provided charged Count fense unlawfully Balzano’s act that defendant elements of the essential you find that done to further the carrying gun the was instructions defined these Count IV as Only other court to our conspiracy. one reason- beyond a established have been relationship knowledge has addressed you also doubt, provided that able to section doctrine the Pinkerton doubt that beyond a reasonable find Brant, 448 924(c)(2). In intent marijuana with possession of ... (W.D.Pa.1978), held a the court F.Supp. 781 pursuant to was committed to distribute coconspirator’s for his conspirator liable the defendant conspiracy and that during a narcotics carrying a firearm act at the conspiracy a member of was that, “It The court reasoned transaction. offense was commit- time the substantive possession of denied that cannot be ted. transaction increas- at a narcotics firearms transaction’s suc- probability of the challenge es the defendant’s Rejecting at 313. Id. and, thus, in furtherance of is an act instruction, cess court held that at 782. conspiracy.” Id. “comports with the foregoing instruction doctrine.” Id. at 314. Pinkerton that, as the wire testified at trial Ruiz stall, defendants began to fraud scheme challenge their Defendants do not made certain verbal frustrated and ground that became III on the convictions on Count Ruiz and Ve- threats toward physical in and 924(c)(2) not violation was the section Velazquez example, as testi- Rather, lazquez. For de furtherance of meeting defend- fied, during his first with Pinkerton maintain that fendants “[t]he Gironda, Bal- Balzano and ants force when the act with rationale loses all breathing people were him that zano told charged is not the defendant is trouble, so if he was his back and down conspiracy.” Defendants’ objective of the Furthermore, Ruiz testi- however, Velazquez. Pinkerton, ig was interpretation falter, that, Velazquez began to court, cit fied when of this decisions nores numerous Velazquez not if did told Ruiz that im Heckens above, interpret Pinkerton ed plans, “there through object of follow just for the posing liability, not all of trouble for a lot of fense, [them].” in fur- would be acts committed but also for hand, held, agreement." States v. Sam United unlawful on the other 1. Some courts have (D.C.Cir.1980). Accord liability only pol, cocon- extends to 636 F.2d that Pinkerton Gleason, (2d spirators in furtherance of "the act was done if scope conspiracy, Cir.1979), within the reasonably fore- project, could be unlawful L.Ed.2d 767 consequence of necessary seen as a or natural addition, appeal Ruiz testified that Nichols told disturb on defendants Gironda’s and phone him that he had received a call from Heckens’ convictions on Count III. threatening the defendant Gironda lives of Velazquez if the did

Ruiz and Defendants raise a poli number of progress. cy arguments support their contention applied Pinkerton should not be violence, respect physical With 924(c)(2) section First, convictions.2 de days Ruiz testified two before defend- zoo, argue ants’ arrests at the defendants Balza- fendants only by “bootstrap no and physically Gironda assaulted him ping” can the Government convict defend presence Speiss of defendants and ants Gironda and Heckens both of conspir particular, Heckens. he testified that ing money to steal violating and of section him Gironda beat with a rubber hose and 924(c)(2). They contend that conspir “[t]he put gun a in his mouth and that Balzano acy 924(c) is an essential element of the put gun a to his ribs and threatened him charge and after the conspiracy was used straight edge According with a razor. to 924(c), to satisfy the elements of that same Ruiz, defendants Balzano and Gironda conspiracy upon was relied charge to other failing threatened his life for to follow conspirators with a second crime.” To con through conspiracy. During with the 924(c)(2); vict under section however, the encounter, promised arrange Ruiz to a prove Government needs to more than the meeting Geiger, with Charles his contact at elements of the crime of conspiracy. earlier, First National. As set forth de- proving addition to the violation oc fendants Balzano apparently and Gironda during curred conspir commission of a believed, they when arrived at the zoo two acy, the later, prove Government days must going were to meet de Geiger gun to discuss the fendant carried the unlawfully. To establish the unlawfulness of defendant’s Although jury acquitted defendants possession, the may Government resort to Balzano, Gironda, violating and Heckens of state or local law. United 924(c)(1), States v. Elor prohibiting section the use of a during duy, firearm 612 felony, commission of a F.2d in connection with preceding the incident 447 U.S. meeting zoo, jury at the was enti- 861; L.Ed.2d Garcia, United States v. tled to find that Balzano intended to fur- (9th Cir.1977). F.2d In this conspiracy by unlawfully ther the carrying the Government demonstrated that defend gun discounting to the zoo. Even Ruiz’ gun ant Balzano carried the concealed in testimony that defendants Blazano and Gir- pants. judge waistband of his As the gun, onda threatened him with a there was law, jury, instructed the under Illinois it is abundant evidence to demonstrate that de- to carry unlawful a weapon. concealed by fendants were frustrated the failure of court, therefore, rejects This defendants’ conspiracy progress planned. as Ac- argument that “there was no substantive cordingly, it was not unreasonable for the separate apart conspir crime from the jury to find that defendant Balzano carried acy.” Johnson, See United States v. gun put pressure to the zoo to (7th Cir.1981) (“Section Geiger through to follow conspir- with the 924(c)(2) carrying ... ... of a mak[es] Thus, acy. because the had sufficient firearm felony the commission of a prove 924(c)(2) evidence to that the section punishable separate offense”); as a conspir- violation was in furtherance of the Nigro, acy judge in- States properly because the issue, Cir.1984) (en banc). structed it on that this court will not cism, 2. This court realizes that the Pinkerton doctrine the Pinkerton doctrine has been reaf- engendered repeatedly has criticism from various com- firmed in this circuit. We are not See, Scott, e.g., persuaded overruling mentators. W. LaFave & A. that reasons exist for our (1972). Despite prior precedents. Criminal Law 514 this criti- Poff, representative pro- gressman even if who maintain Defendants crime 924(c)(2) posed creates substantive as an amendment to the section statute conspiracy, section distinct from stat- Gun Control Act of intended the 924(c)(2) create federal offense does persuade tempted “to the man is ute who element is estab the unlawfulness because felony gun to commit a federal to leave his reason, law. For this Illinois lished under Cong.Rec. (1968). By at home.” 114 continue, violation fed defendants “[n]o 924(c)(2), applying Pinkerton section and, alleged unless the eral law was may encourage conspirators some courts suggesting that Pinkerton Government conspirators their pressure other to leave pendent jurisdiction, criminal creates argues guns at As the Government home. illegality state is irrelevant.” under law brief, posses- or in its “If the use unlawful support no cases to their Defendants cite sion of a firearm is an overt act done applied may not be position Pinkerton furtherance of the or is a natu- may to an element of which be offense one it, consequence coconspira- then ral all law. Con established resort state tors, agents other, of each should be arguments, trary to this court defendants’ responsible position are for it and in a 924(c)(2) create finds does that section preclude that act.” federal The federal offense under offense. 924(c)(2) unlawfully is the section act of Second, argue that defendants carrying the “during a firearm commis apply the doctrine to section Pinkerton any felony sion which [a of for defend 924(c)(2) in legislative would contravene may court prosecuted be in a the ant] multiple by subjecting tent defendants to § (em 924(c)(2) States.” U.S.C. United penalties support act. In the same added). phasis In How argument, rely this defendants on the Su ard, 504 Simpson preme Court’s decisions Eighth held that a conviction under Circuit 6, 909, States, 435 U.S. United 98 S.Ct. 924(c)(2)by section resort to state law is (1978), L.Ed.2d v. United Busic not unconstitutional. at 1287. The Id. 1747, States, 446 U.S. court reasoned that: however, (1980). cases, Those L.Ed.2d a state law ... a violation of firearms is cases, inapposite. In are those the Court only one element of the offense defined negative examined and answered § 924(c)(2). by 18 The other U.S.C. ele- Congress question whether intended sec ment the concurrent commission of a is 924(c)(2) if the felo apply predicate tion Congress felony, federal which—as in- charged ny provided its own enhancement brings the offense within the tended — weap of a provision dangerous for the use jurisdiction of the federal courts.' Simpson, on. 435 U.S. at 98 S.Ct. at agrees Id. this court with the Because 913; Busic, U.S. at 100 S.Ct. at 924(c)(2) Eighth Circuit that section estab- attempt 1751. Defendants to liken this offense, reject lishes a federal we defend- on Simpson by relying case to and Busic apply ants’ that to Pinkerton to contention 924(c)(2) liability the fact under section 924(c)(2) pendent section would fed- create proof on of all of the elements of the rests jurisdiction. eral criminal separate conspiracy. As dis offense of argue also Defendants district above, rejects cussed court defendants’ this application court’s the Pinkerton doc- position that to convict defendants Gironda 924(c)(2) trine section contravenes the 924(c)(2) causes and Heckens under section legislative underlying intent the statute. punished to be twice for the same them noted, legis- Supreme As the Court has 924(c)(2)requires offense. Because section 924(c)(2) history lative behind section an distinct from the crime proof of element States, “sparse.” Simpson v. that defend 909, 914, conspiracy, holds 55 L.Ed.2d 70 924(c)(2)cre section ants’ convictions under The record of the floor debates problems and are punishment no concerning this section indicates that Con- ate double legislative intent under- lated contrary right to the his Sixth Amendment to the lying the statute. effective assistance of During counsel. trial, the district court hearing conducted a B. Defendant Balzano’s Conviction Speiss’ on supress motion to inculpatory statements that he made to contends that Defendant Balzano Inspector Postal Aiesi in August 1982 and court must reverse his conviction for violat- November 1982. theOn basis of the 924(c)(2) testi- ing the evidence section because mony given hearing, the district prove that he was insufficient to carried court concluded that defendant was not a gun unlawfully. On the issue of de- Inspector credible witness and credited liability fendant Balzano’s under section Aiesi’s 924(c)(2), version of the events that judge jury the trial instructed the tran- spired August 19th and November 24th. that: sum, Inspector Aiesi testified that on prove the Government must the follow- August day Speiss was arrest- first, ing propositions: that the defend- ed, Speiss only confessed to him after In- conspiracy charged ant committed the spector apprised Aiesi had twice him of his I; and, second, Count rights Speiss Miranda and after had conspiracy, of that the de- commission signed rights. a written waiver of his firearm; With knowingly carried a fendant respect confession, and, third, November 24th carrying that the of the fire- Inspector Aiesi testified that defendant arm was unlawful. Speiss arranged called him and the meet- Concerning question whether defend- ing. Inspector Speiss Aiesi informed of his gun unlawfully, carried ant Balzano rights, Speiss signed Miranda a writ- judge instructed the is un- “[i]t addition, ten waiver. Speiss made a carry pistol, lawful to revolver or other handwritten statement in he stated person.” firearm concealed on one’s attorney that his did not know about the Defendant Balzano attacks the dis meeting and that he did not want his attor- ground trict court’s instructions on the ney to know it. about judge jury did not instruct the to deter trial, Speiss At sup- defendant moved to gun mine whether he carried the without press ground both statements on the authorization or a license. Under Illinois they were inadmissible under Fed.R. law, anyone, it is unlawful for with certain 11(e)(6)(D) Crim.P. because were made exceptions inapplicable to this to con plea negotiations. the course of person, ceal a firearm on his or her Ill.Rev. The district court denied defendant’s mo- § 38, 24-l(a)(4) (10), Stat. ch. without tion and admitted the statements redact- regard person to whether such has a li prejudice ed form so as to avoid Contrary position, cense. to defendant’s Speiss other defendants. Defendant does therefore, properly court in district challenge ruling appeal. not this on structed the on Illinois law. Because jury may rely on state law to determine suppression hearing, Speiss’ At the coun- unlawfulness, see, e.g., the element of sel mentioned that the admission of the Bernal, 1475, F.2d United States v. 719 might present November confession Sixth (9th Cir.1983); United States v. Elor objection, problems. Amendment To this 990, duy, rejects 612 F.2d at this court responded judge that he would not rule defendant Balzano’s contention that there challenge on the Sixth Amendment be- support was insufficient evidence to cause, might although Speiss’ contention 924(c)(2). violating conviction for section form the basis of an additional motion to suppress, the motion before him failed to Speiss’

V. Defendant Confession arguments. any include Sixth Amendment or Speiss challenges Speiss Defendant his convic- never amended his first motion dealing ground tion on I a second motion with his Count on the submitted fact, admission of his November confession vio- Sixth Amendment contention. Speiss protect “to Heckens at all fendant passing reference from his counsel’s aside never costs.” hearing, Speiss defendant proceed- argument during the this raised persuaded are not We instead, and, it for the raises ings below contention, which re Amendment we Sixth appeal. first time on waived, gard having as been sets forth occasions, numerous On requiring reversal. plain of error case waives a held that a defendant court has First, Inspec questions whether Postal reversal if he argument particular apprised Speiss of his adequately tor Aiesi at trial. raise that contention See failed to assistance of counsel right to the effective 1197, Nero, v. United States purported Speiss’ waivers and whether Welsh, Cir.1984); (7th v. United States depend on factual deter were valid various Cir.1983). 1142, (7th See also court, of minations that 160, Rollins, 522 F.2d United States review, ill-equipped to make. See Estelle Cir.1975) (defendants (2nd must disclose 16, Smith, 471 n. 101 S.Ct. 451 U.S. upon particular ground which prior to trial (1981); n. 68 L.Ed.2d 359 evidence), suppress his motion to he bases (7th 214, 222 738 F.2d Percy, Robinson v. denied, 424 96 S.Ct. cert. Cir.1984). Second, even if the November (1976). Unless the district L.Ed.2d 324 suppressed, had been confession the November court’s decision to admit acquitted. necessarily have been would error, plain Fed. confession constituted see coconspirator testify Ruiz only Not did 52(b), uphold this court must R.Crim.P. Speiss’ involvement the wire fraud about According ruling. district court’s scheme, Speiss made but defendant himself court, plain an of this error is decisions confession, admissibility previous that resulted “an actual miscar error challenged appeal. is not on which See riage justice, implies the convic Robinson, (admissibility 738 F.2d at 220 error tion of one who but for the would first confession is harmless error because acquitted.” have been constitutionally val second confession was Silverstein, Cir. id). — U.S.-, 1984), addition, 83 L.Ed.2d 785 Admissibility VI. of the Phone Call error, plain a court to review for enable argument for reversal must be defendant’s argues that the dis- Defendant Gironda law, questions “newly-raised based permitting erred in Ruiz to testi- trict court ambiguity.” untainted factual United him had fy that Nichols told that Nichols 951, (7th McCabe, 720 F.2d 955 States threatening phone call from Gir- received Cir.1983). that Specifically, onda. Ruiz testified Gir- case, told Nichols that if Ruiz and Ve- Speiss argues defendant onda In this lazquez through did not follow with what that his November confession violated do, they going they to effective said were right Amendment Sixth up dead in the trunk of a car. and that his waivers would end assistance of counsel that, for three presented Defendant Gironda contends ineffective because he was were reasons, not have the district court should proceeding “a choice between with with phone testify Ruiz to about this incompetent or no counsel allowed counsel [which maintains, First, the call. defendant no choice at all.” essence Wilks is] proper 32, (7th Cir.1980), not Israel, Government did establish 627 F.2d 36 cert. 1086, 874, admissibility for the denied, 66 foundation 449 U.S. 101 S.Ct. Second, that defendant claims argues phone call. L.Ed.2d 811 Defendant testimony constituted inadmissible given of Ruiz’ he effective assistance was Third, argues hearsay. defendant because, as the was double counsel Government that, testify, the did not aware, representing because Nichols also his counsel was vio- admissibility phone conversation had advised de- defendant Heckens and 1217 right 689, Cir.1983); to his Sixth Amendment con- 714 F.2d lated 1128, Santiago, front witnesses. 582 F.2d (7th Cir.1978). In this the Govern- testimony Because Ruiz’ consisted of two ment filed a “Santiago memorandum” statements, separate this court must ana- seeking to demonstrate the satisfaction of to lyze each statement determine whether eléments, these and the district found adequate laid foundation the Government that the Government had met its burden of admissibility and for its whether state- proof respect with to prerequisites these presents hearsay problems. ment itself admissibility of a statement under rule essence, both testified to what Nichols Ruiz 801(d)(2)(E). him what told and to Gironda told Nichols. analyze This court each will statement appeal, On defendant challenges Gironda turn. only two elements of the district court’s First, Santiago ruling. argues defendant respect testimony With to Ruiz’ re prove Government failed to him, garding conversation Nichols’ with Nichols was a member of conspiracy. adequately Government laid the foundation Second, argues there admissibility. testifying for its Before to insufficient evidence to establish that Nich- him, Nichols’ the substance of statement ols made the statement to Ruiz further- Ruiz testified as where and when the conspiracy. ance conversation occurred as to who was present Although when it occurred. proves Once the Government dealing portion testimony of Ruiz’ a conspiracy, existence Govern presents Nichols’ statement no foundation ment need offer only “slight evidence” to problems, potential al it does create hear prove that an individual was a member of say problems. Undoubtedly, the Govern conspiracy. West, United States v. prove ment offered Nichols’ statement (7th Cir.1982), denied, cert. the truth of matter asserted therein. U.S. 73 L.Ed.2d particularly, More the Government offered 1340; Dalzotto, United States v. Nichols’ statement demonstrate that Gir (7th Cir.1979), denied, cert. threatening onda had made statements to U.S. 62 L.Ed.2d 425. admitting testimony, Nichols. This court finds on the basis of the district court reasoned that the statement trial, evidence offered at the district court 801(d)(2)(E) was admissible under rule determining did not err in that Nichols was the Federal Rules of as a Evidence cocon a member of the spirator’s statement made course of and in furtherance the conspir Similarly, this court finds that the acy. district court’s determination that Nichols relayed Gironda’s threat to Ruiz further admitting

Prior to a statement un clearly was not 801(d)(2)(E), erroneous. rule der court must deter Williams, United States v. mine that the Government has satisfied — requirements. three Government 1354, -, prove, 105 84 L.Ed.2d by independent must evidence S.Ct. 377 the statement, (1985). challenged argues Defendant in conspiracy that a ex that Nichols Also, prove formed Ruiz threatening isted. it must both the about Gironda’s hearsay phone call him declarant and the defendant to cause to move out of against Government, whom the statement is offered are Nichols’ residence. The on conspiracy. Finally, hand, argues members of the the the other that Nichols told Government must establish the state to Ruiz about the call inform Ruiz that the during conspiracy ment was made the of and in pressure course had stalled and to him the conspiracy. moving quickly furtherance of into the United more with scheme. (7th Coe, 830, light v. 718 F.2d of the facts States 835 Cir. that defendants were 1983). becoming Jefferson, by See also frustrated the United States v. failure the

1218 nized voice. the district Nichols a member Gironda’s Since conspiracy and that finding not find court’s that Nichols was familiar this court does conspiracy, clearly deter- was not erro clearly the district court's with Gironda’s voice erroneous neous, Robinson, to further 707 Nichols intended see States v. mination that United 811, Cir.1983); by conveying (4th Gironda’s conspiracy F.2d 814 States the United 123,133 Thomas, (9th Cir.1978), to Ruiz. F.2d threat v. 586 not the will disturb district testimony portion of Ruiz’ The second court’s laid conclusion Government threat Gironda’s concerned defendant proper state foundation Gironda's Velazquez did follow if Ruiz and Vitale, 549 ment. See States v. United they would through conspiracy, with the 71, Cir.1977) (rule 901(b)(5) (8th 73 F.2d trunk a car. Ruiz up end dead in the through proponent evidence that satisfied threaten- received the testified that Nichols spoken on three occa had with defendant testify ing phone Nichols did not at call. call); phone de subsequent sions to cert. trial, privi- Fifth Amendment asserting his 907, 1704, nied, 431 97 52 U.S. against Because lege self-incrimination. L.Ed.2d 393. testify, Nichols to defendant Giron- refused lay argues, failed to da the Government testimony concerning Ruiz’ admissibility for the proper foundation threats toward substance of Gironda’s threatening statements. Gironda’s presents hearsay problems. no Nichols Rules of 901 of the Rule Federal Clearly, the did not offer Gir Government Evidence, governs the authentication prove to that Ruiz and onda’s statement requirement, provides that voice identifica Velazquez up in fact dead if would end opinion upon may “by made based tion be Rather, cooperate. they did not hearing any at under circum voice time to Government intended show threats alleged connecting it stances part and that were 901(b)(5). To satis speaker.” Fed.R.Evid. involved Gironda was 901, requirements propo fy the of rule 378, F.2d Kostoff, United v. 585 See States may by nent establish identification (9th Cir.1978); Pate, 380 United v. or direct circumstantial evidence. See (5th Cir.1976). 1148, 543 F.2d 1149 1190, Sawyer, v. United States denied, 1192-93 cert. objec final Defendant Gironda’s 943, 1338, 63 L.Ed.2d U.S. 100 S.Ct. testimony admissibility of Ruiz’ tion (1980); Zweig, United States F.2d concerning phone call is that Cir.1972), denied, (7th cert. Government violated Sixth Amendment L.Ed.2d 692 93 S.Ct. failing right witnesses to confront Although stand. put Nichols on the evaluating a confrontation standards for au Government un challenge testimony admitted clause by offer thenticated Gironda’s statement 801(c)(2)(E)vary circuit der rule from ing direct evidence show that Nichols circuit, this court has stated numerous was familiar with Gironda’s voice and could admissibility that the of a statement cases recognized the phone. have it over Accord 801(d)(2)(E) rule not offend the under does ing testimony, had to the trial Nichols met clause. prior confrontation United States least three occasions Gironda (7th Chiavola, Cir. telephone Additionally, call. Ruiz testi Xheka, 1984); 704 fied that at least one of these meet — Cir.1983), ings engaged in Nichols extended conversa -, 682; testimony 78 L.Ed.2d tion with Ruiz’ that U.S. Gironda. Papia, 560 F.2d phone he had States v. Nichols stated that received (7th Cir.1977). Accordingly, hold that we “Chubby,” call from the nickname that deciding not in Gironda, district did err identify Ruiz and used to the court Nichols not bar recog clause did further that the confrontation demonstrated that Nichols 1219 Verkuilen, admissibility (7th of statements under rule 690 the v. F.2d Cir. 1982). 801(d)(2)(E). Even assuming that the district VII. Admission of the Check check, court should have excluded the its assigns Heckens Defendant error the admitting error in the evidence would not

district court’s decision to admit the stolen plain Upon amount to error. of review the Peat, and Marwick Mitchell check that Ruiz case, record that, in this this court finds gave payment claimed him as Heckens for considering all of the testimonial and docu some renovation work to led the mentary establishing evidence discovery When role, Heckens’ conspiracy, any preju began testimony to elicit Government con- dice that Heckens suffered due to the ad check, cerning this defendant Gironda’s mission of the check inconsequential. objected, judge counsel and the in- then Further, this court is reluctant to exercise only structed the should its to plain discretion find error when de testimony consider Ruiz’ as evidence fendant’s to object failure at trial constitut against defendant Heckens and as evi- aed tactical decision. In United v. States against any dence of the other defendants. Attain, (7th Cir.1982), 671 F.2d 248 When the offered check Government to apply plain refused error doc evidence, Balzano, Gironda, into defendants trine to the district per court’s to decision Speiss again objected. On the other testimony concerning mit other criminal hand, stated, defendant Heckens when case, acts. Id. at 252. In that this court court, by objection asked he had no noted object, that defendant decided not to to the admission of the check. The court court, when asked he because want only then admitted check into evidence impugn ed to use the evidence to the credi against though defendant Heckens. Even bility prosecution’s witnesses, who trial, objection he made no defendant were also involved in these crimes. Simi Heckens claims now court erred in larly, in pre defendant Heckens admitting the check because the admission sumably object decided not to to the admis 404(b) violated rule of the Federal Rules of sion the check he because wanted use Evidence, admissibility which limits the credibility. that evidence to attack Ruiz’ of other evidence crimes. essence, argued defendant Heckens charged because Government never trial Defendant’s failure at check, him connection with the stolen object oper the admission evidence Ruiz, Government must not have believed objection ates as a waiver of that unless and, therefore, the jury should not have plain the admission constituted error. him a considered credible witness. Under Hickerson, v. United States F.2d circumstances, assign — these we refuse to plain error to the district court’s decision. -, 95; L.Ed.2d Weed, (7th VIII. Defendant Heckens’ Motion Cir.1982). previously, As discussed for Severance prove plain standard to error is a difficult trial, At for defendant Heckens moved error, plain one meet. To find this court or, alternatively, mistrial a severance of must determine that court’s district his trial from the trial codefendants. error “serious was a and harmful error of Specifically, objected portion Heckens to a magnitude.” constitutional United States opening of defendant Gironda’s statement Jefferson, Cir. he stated: 1983). reviewing A court should exercise plain “cautiously its discretion find error Mr. is here he was in Gironda because time____ only exceptional wrong place wrong circumstances.” at the Jackson, nothing He had to do whatsoever (7th Cir.1976). why he is here. [conspiracy]. Accord United States That 1220 v. a the other defendant. United States you have problem when

There is the 1226, (7th Hendrix, 752 F.2d Cir. is called You have what association, 1985); Ziperstein, 601 that is not the States v. but United guilt by Cir.1979), denied, 281, (7th convict someone cert. you not to F.2d law. We ask 1031,100 He guilt by association. 62 L.Ed.2d 667 there is 444 U.S. S.Ct. where conspired. (1980). defendant Gironda guilty. He never In this is not he innocent argued in his defense that was following day, Heckens On the might any conspiracy that have oc a severance on for a mistrial or moved argued in his Defendant Heckens curred. statement, opening ground Gironda’s failed to the Government defense himself, that Heckens implied to exonerate him. against its case United prove judge rejected de- guilty. The district (7th Petullo, 709 F.2d 1178 Cir. v. States he and Heckens’ contention fendant 1983), contention rejected this court presenting incon- were defendant Gironda non-participation on is that a defense based Heckens’ mo- and denied sistent defenses antagonistic defense based mutually to a tion. prove its failure to on Government’s concedes that Defendant Heckens Similarly, at 1181-82. case. Id. reviewing rarely will reverse a low court a accepted have both Gironda’s here could of a motion for severance. er court’s denial participate in the defense that he did Moschiano, States v. United and Heckens’ defense scheme — Cir.1982), denied, (7th 245-46 prove failed to all of the ele Government (1983). -, 78 L.Ed.2d conspiracy. There ments of the crime of Echeles, v. 352 F.2d In United States fore, agree if this court were to even pref explained this court defendant Heckens that defendant Giron conspiracy cases: joint trials in erence for implied both the opening da’s statement per rule has evolved that general “[T]he in conspiracy a and Heckens’ existence of togeth tried jointly indicted should be sons it, this court still finds that volvement er, the indictment particularly ... so where discre court did not abuse its the district may a crime which charges a or for a sev denying tion Heckens’ motion against all the defendants proved be erance or mistrial. from the evidence and which results same series of acts.” Id. at 896. same or similar IX. Conclusion Papia, Accord United States Cir.1977). (7th The district court reasons, foregoing the convic- For the pref position Balzano, Gironda, to balance this the best of defendants tions against joint concern that a trial Heckens, erence I Speiss on Count jury and result in may confusing Balzano, be Giron- convictions of defendants to one or all of the defendants. prejudice da, III are AF- Heckens on Count Shively, FIRMED. — U.S.-, (7th Cir.1983), cert. For 79 L.Ed.2d 233 CUDAHY, concurring. Judge, Circuit reason, grant the decision whether argues per- majority I think that the committed to the motion for severance is for the suasively permit as circumstances and will discretion of the trial court sound rule here. application of the Pinkerton appeal unless the trial not be overturned conspirators have fore- Perhaps these could clearly its discretion. abused carrying gun number seen one of their Oxford, 735 F.2d potential for abuse his belt. But under Cir.1984). immense. application seems of this sort of limits, any, if example, are the granted For what should be

Severance con- liability for antitrust “mutually antago upon vicarious only if are so defenses acts ar- of secret spirators for all manner acceptance nistic” of one defend that the conspiracy? acquittal guably furtherance preclude defense will ant’s point appropriate it would At some seem

set limits. GROSSART,

Barbara A. Plaintiff-Appellant, DINASO, Harry Elzinga, A. Herbert F. Telander, Individually Robert H. and in capacity their as Trustees of the Town Worth, Worth, and the Town of De fendants-Appellees.

No. 84-1338. Appeals, Court Seventh Circuit. Argued Nov. 1984. April Decided 1985.

Case Details

Case Name: United States v. Joseph Gironda, John Heckens, John Speiss, and John Balzano

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 1, 1985

Citation: 758 F.2d 1201

Docket Number: 83-2796, 83-2827, 83-2828 and 84-1389

Court Abbreviation: 7th Cir.