United States v. DiDomenico

POSNER, Chief Judge.

The Chicago Outfit (the "Outfit," the "Mob," the "Mafia")--the criminal enterprise whose most notorious boss was Al Capone-- operates through "street crews." The twenty defendants in this mainly RICO case that charges predicate acts of extortion, bribery, murder, and other offenses were members of the Ferriola Street Crew, named after its boss from 1979 to his death in 1989, Joseph Ferriola. Ferriola was succeeded by defendant Infelise. The Ferriola Street Crew engaged in the usual "Mob" activities, in particular the protection racket (the collection of "street tax" from brothels, gambling enterprises, and other illegal businesses), loan sharking, and bookmaking, with bribery of police, judges, prosecutors, and other public officials, subornation of jurors, and the occasional murder thrown in to protect and enforce its reign of terror. The focus of the prosecution was on the street crew's efforts to collect street tax from "independent" bookmakers, which is to say bookmakers not affiliated with the "Mob," in the suburbs north of Chicago, primarily during the 1980s. These efforts included the murder of a bookmaker named Hal Smith. The evidence of the defendants' participation in these activities was overwhelming, except that the evidence of their participation in the murder depended critically on the testimony of a turncoat member of the street crew, William Jahoda. Smith had angrily refused a demand relayed to him from defendant DeLaurentis to pay street tax, saying "fuck the little guinea." Infelise directed Jahoda to lure Smith to Jahoda's home, which he did, arriving in Smith's car. Jahoda told Smith to enter the house through the garage, while Jahoda pretended to pick up his mail. Shortly afterward, through the open door to the kitchen, Jahoda saw Smith lying dazed but conscious on the kitchen floor. Infelise drove Jahoda back to the tavern where he had met Smith and told him to burn his clothes. When Jahoda returned home later that night, he found that the kitchen floor had recently been mopped up. Infelise called and told him to look for Smith's cigar and glasses, which the murderers thought they might have left there. Jahoda did not find the items. Smith's body was found a few days later in the trunk of his car. He had been tortured and then strangled.

The defendants were tried together and found guilty of most of the counts of the indictment and received long prison sentences which in the case of some of the defendants, given their age, are the equivalent of life in prison. . . .

[The defendant appeals]

The most dramatic issue and the one pressed hardest by the defendants arises from the bugging of a room in the Metropolitan Correctional Center, the federal jail in Chicago. The room had been set aside for the use of the defendants, who were being detained in the jail awaiting trial, in meeting with their lawyers. Someone made a tape recording of a conversation between one of the defendants and his lawyer and sent the tape to the lawyer. The defendants argue that the district judge should have conducted an evidentiary hearing to determine the extent of the bugging and whether it had given the prosecution information about defense strategy that the prosecution had used to undermine the defense at trial. . . .

The government argues that the defendants did not lay a foundation for an evidentiary hearing on the matter because they presented no evidence that the bugging altered the result at trial--no evidence that the prosecution was privy to the bugging or, if it was, used the information gleaned from it to undermine the defense or if it did caused innocent people to be convicted of heinous crimes. We do not consider this a sound argument. It pushes the notion of harmless or nonprejudicial error too far. The principle that an acquittal or a new trial is not a proper remedy for governmental misconduct, that the defendant must show that the misconduct may have caused the jury to convict him, is sound but like most legal principles cannot be maintained without qualification. Otherwise the prosecution could send a defendant to prison without any judicial process whatsoever and if he complained defend by showing that had the defendant been tried with assistance of counsel and all the other trimmings of modern criminal procedure he would surely have been convicted and sentenced to a term of years at least as long as the prosecution proposes to hold him. The counter principle that defeats this result is that denial of the right to counsel (not the right to competent counsel, but the more basic right to some counsel) or of any other fundamental rights of criminal defendants (such as the right to an impartial judge or to trial by jury) is reversible error even if not shown to be prejudicial--even if shown to be completely harmless. . . .

In short, the defense could have (1) argued that no showing of prejudice was required or (2) presented some evidence of prejudice. By doing neither, the defense forfeited their claim to an evidentiary hearing. We do not think that we are being overtechnical in so concluding, especially since, given the inconclusiveness of the FBI's investigation, the likelihood that an evidentiary hearing would get to the bottom of the bugging incident is remote. . . .

Jahoda testified to a number of conversations that he had had with defendant Bellavia in 1989, concerning the murder of Smith five years earlier. For example, in a plain allusion to the murder, Bellavia told Jahoda, "You know, when them things happen, I just, when they're done, they're done. . . . I blank 'em out. . . . Sometimes you got to get it out in the open and you feel better, and you can put it to bed once and for all. You know, it's done and gone, forget about it." In the same vein he told Jahoda, "Forget about it. You know, it's gone. . . . You never do something with . . . anybody you're going to worry about in the future. Forget about it. You know, it's gone. The day it was over, it was over. It's forgotten. That was the end of it." These statements, though hearsay, were admitted into evidence against the other defendants as having been made in furtherance of the conspiracy. Fed. R. Evid. 801(d)(2)(E). Against Bellavia himself, they were uncontroversially admissible as the admissions of a party. Fed. R. Evid. 801(d)(2)(A). But the principle that allows the admission of conspirator X to be treated as the admission of defendant conspirator Y, usable against Y as the admission of a party provided that the statement is made in furtherance of the conspiracy, disquiets those who believe that the concept of conspiracy gives prosecutors too much power. The rationalization for the principle is that conspirators are each others' agents (and therefore principals), and the principal is bound by the agent's words and deeds, provided they are within the scope of the agency, so that an admission by one is an admission by all and can be used against all as "their" admission.

This translation of commercial principles of agency into the law of evidence is one of the less impressive examples of what Coke called the "artificial reason" of the law. The concern behind the hearsay principle is with the reliability of evidence rather than with the facilitation of enterprise--and anyway the law of conspiracy is designed to discourage rather than to facilitate enterprise. Because a statement to be admissible as the statement of a party need not have been against interest when made (or at any time for that matter), Huff v. White Motor Corp., . . . the admissibility of such a statement cannot convincingly be grounded in the presumed trustworthiness of a statement that is against the utterer's self interest to give. . . . The standard justification of its admissibility is a kind of estoppel or waiver theory, that a party should be entitled to rely on his opponent's statements. . . . It has, it seems to us, rather little force as applied to the admissibility of coconspirator's statement. United States v. Gil,. . .; Comment, "Reason and the Rules: Personal Knowledge and Coconspirator Hearsay,". . . About all that can be said in favor of the rule is that since the statements of agents of legitimate enterprises are imputed to the enterprise through the operation of the law of agency on the party admission rule, illegitimate enterprises, such as criminal conspiracies, should not receive more favorable treatment.

Whatever the justification for the rule--and there may be none--its dependence on agency principles makes the scope of the conspiracy critical. And a conspiracy, and a conspiracy to conceal an earlier, completed conspiracy, are two different conspiracies, like two different firms, and statements made in furtherance of the second, the cover-up conspiracy, are therefore not admissible in evidence to demonstrate participation in or the acts of the first conspiracy. . . . But this is not such a case. Hal Smith was killed as part of the overall conspiracy to extract street tax from the independent bookmakers in the area worked by the street crew. The conspiracy was still going on when Bellavia, in an effort to prevent its unraveling, made his reassuring statements to Jahoda. Statements designed to prevent a conspiracy from collapsing are not to be equated to statements designed to cover up a finished conspiracy. In the first case unlike the second there is only one conspiracy; the statements are made in an effort to shore it up and keep it going; they are therefore admissible against the conspirators. . . .

DeLaurentis is entitled to be resentenced. With this exception, the judgments are affirmed.