United States v. Mussare

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

4-28-2005

USA v. Mussare

Precedential or Non-Precedential: Precedential

Docket No. 02-3301

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PRECEDENTIAL

UNITED STATES COURT OF APPEAL

FOR THE THIRD CIRCUIT

No. 02-3301

UNITED STATES OF AMERICA,

v.

JOHN CIOFFI MUSSARE, III,

a/k/a J.J.

John Cioffi Mussare, III,

Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 00-cr-00281-2)

District Judge: Hon. Malcolm Muir

Argued May 27, 2004

BEFORE: RENDELL and COWEN, Circuit Judges and

SCHWARZER*, District Judge

(Filed April 28, 2005)

*Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by

designation.

Peter Goldberger, Esq. (Argued)

Law Office of Peter Goldberger

50 Rittenhouse Place

Ardmore, PA 19003-2276

Counsel for Appellant

Theodore B. Smith, III (Argued)

Office of the United States Attorney

Federal Building

228 Walnut Street

P.O. Box 11754

Harrisburg, PA 17108

John J. McCann, Esq.

Office of the United States Attorney

240 West Third Street, Suite 316

Williamsport, PA 17701

Counsel for Appellee

OPINION

COWEN, Circuit Judge

John Cioffi Mussare, and a co-defendant, William R.

Bruce, III, were charged in an indictment with various drug and

extortion crimes. They were convicted of one count of

conspiring to distribute marijuana, as well as two counts of using

extortionate means to collect an extension of credit in violation

of 18 U.S.C. § 894. Mussare appeals, raising various

constitutional and evidentiary challenges to the extortion

convictions.1 He also appeals his sentence. We will affirm.

1

This appeal arose out of the same incident underlying

United States v. Bruce, 02-3316. The cases were consolidated for

2

I.

On January 21, 2000, Clinton James Taylor, Bruce, and

Mussare met at an all-night party in Williamsport, Pennsylvania.

At some point during the evening, Bruce and Mussare expressed

an interest in obtaining marijuana, and Taylor indicated that his

roommate, Jim Kane, might have some. On Saturday, January

22, Bruce and Mussare accompanied Taylor to his apartment.

Kane did not have any marijuana, but either Taylor or Kane

suggested that they could get some if Bruce and Mussare

provided the money. Bruce then gave Kane $115 for the

purpose of buying drugs.

Kane gave the money to Taylor, who used it to buy seven

bags of heroin. Kane and Taylor intended to resell the heroin,

make a profit, and use the proceeds to buy marijuana for Bruce

and Mussare. It is unclear whether Mussare and Bruce knew of

the heroin buying scheme, but they were present at the apartment

when Taylor left with the money and when he returned with the

heroin. Kane and Taylor then consumed some of the heroin

themselves, after which Kane left to sell the remaining bags.

Mussare and Bruce remained at the apartment, waiting for Kane

to return. Kane was unable to sell the remaining bags of heroin,

and did not return that night. Mussare and Bruce left Sunday

morning.

On Sunday evening, Mussare and Bruce returned to the

apartment for the marijuana. Kane explained that he had been

the purposes of argument only. In his briefs, Bruce raised several

additional constitutional challenges to the conviction. Mussare has

indicated that he wishes to adopt Bruce’s arguments for the

purposes of his own appeal, as permitted by Rule 28(i) of the

Federal Rules of Appellate Procedure. Because these cases were

not consolidated for the purposes of decision, we will not discuss

the substance of those arguments here. Those arguments are

unpersuasive, however, and for the reasons stated in United States

v. Bruce, 02-3316, we will affirm Mussare’s conviction even in the

face of the additional challenges.

3

unable to sell the heroin, and informed Mussare and Bruce that

he did not have the marijuana he owed them or the money they

had given him.

On Monday, January 24, 2000, Mussare, Bruce, and

Taylor were together at Jason Tortelli’s apartment. Several other

people were also there, including David Shay. The group was

drinking and smoking marijuana. At some point during the

evening, Shay and Taylor were talking on the phone to Shay’s

girlfriend, Stacy Bardo. During that conversation, Shay punched

Taylor and told Bardo that he, Bruce, and Mussare had Taylor

and were looking for Kane, because he owed them money. Later

in the evening, Taylor was assaulted again, this time by Bruce,

who punched him in the face and kicked him repeatedly.

Around 11:00 p.m. on January 24, Tortelli told his guests

to leave. Taylor, Mussare, Bruce, Shay, and Robert Confer then

went to Taylor’s apartment to find Kane. Kane was not there.

During the course of the night, Taylor was tied up, kicked,

burned with cigarettes, pistol-whipped with a paintball gun, and

beaten with various objects. The letters “I M Thief” were

burned onto his torso with a heated coat hanger. Shay, Mussare,

and Bruce all took part in the assault. Taylor eventually offered

to call his mother to obtain the money.

The next morning, Mussare and Bruce took Taylor back

to Tortelli’s apartment2 , where Taylor called his mother, told her

that he had been beaten, and asked her for $500 so that he could

pay the people who had beaten him.3 Mussare accompanied

Taylor to his mother’s house, where Taylor told his mother that

Mussare had nothing to do with what happened and obtained the

money from her. Taylor’s mother also gave Mussare five dollars

in gas money for helping her son. Taylor gave Mussare the rest

of the money after they returned to the car, and Mussare dropped

2

There was no phone at Taylor’s apartment.

3

Taylor initially asked his mother for $100 or $200, but

Mussare was standing next to him during the call and told him to

get $500.

4

Taylor off at home.

Taylor eventually told his parents what had really

happened. They took him to the emergency room for treatment

and called the police. The police searched Taylor’s apartment

and found evidence of the assault.

A grand jury sitting in the Middle District of

Pennsylvania returned a four-count indictment against Bruce,

Mussare, and Shay, charging them with controlled substance

offenses and extortion offenses. Shay began to cooperate with

the government, and on April 25, 2001, the grand jury returned a

superseding indictment against Mussare and Bruce only. The

five count superseding indictment charged Mussare and Bruce

with (1) conspiracy to possess and distribute heroin and

marijuana to persons under 21 years of age; (2) aiding, abetting,

and attempting to possess marijuana with the intent to distribute

it to persons under 21 years of age; (3) aiding, abetting, and

attempting to possess heroin with the intent to distribute it to

persons under 21 years of age; (4) conspiracy to collect a debt

through extortionate means; and (5) using extortionate means to

collect a debt.

A jury returned a verdict acquitting Bruce and Mussare of

the heroin charges, but convicting them of the extortion-related

charges and conspiracy to possess marijuana. At the sentencing

hearing, Mussare objected to the government’s request for an

upward departure based on permanent bodily injury, arguing that

the departure should only be for serious bodily injury. The

District Court rejected this argument and found that Bruce and

Mussare had inflicted permanent bodily injury on Taylor.

Mussare was sentenced to 210 months in prison and three years

of supervised release. This appeal followed.

II.

A.

Mussare first argues that there was insufficient evidence

to support the conviction under Section 894. Review of a

5

verdict for sufficiency of the evidence is plenary. United States

v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997). We will reverse a

jury verdict for insufficiency of the evidence “only when the

record contains no evidence, regardless of how it is weighted,

from which the jury could find guilt beyond a reasonable doubt.”

United States v. Anderson, 108 F.3d 478, 481 (3d Cir. 1997)

(citation omitted).

Section 894 provides:

(a) Whoever knowingly participates in any way, or

conspires to do so, in the use of extortionate means

(1) to collect or attempt to collect any

extension of credit, or

(2) to punish any person for the

nonrepayment thereof, shall be fined under this

title or imprisoned not more than 20 years, or both.

18 U.S.C. § 894. An extension of credit is defined to mean “to

make or renew any loan, or enter into any agreement, tacit or

express, whereby the repayment or satisfaction of any debt or

claim, whether acknowledged or disputed, valid or invalid, and

however arising, may or will be deferred.” 18 U.S.C. § 891(1).

Because of the disjunctive “or,” if the extortionate collection of a

debt involves a loan, there is no additional requirement that the

parties agree to defer repayment of the loan.

The statute does not define the term “loan.” The term is

generally defined as “[d]elivery by one party to and receipt by

another party of a sum of money upon agreement, express or

implied, to repay it with or without interest.” Black’s Law

Dictionary 936 (6th ed. 1990).

Mussare argues that the evidence is not sufficient to show

that he and Bruce loaned any money or in any other way

extended any credit to Taylor and Kane. But Taylor testified “I

borrowed–asked to borrow $115 from J. J. Mussare, and it was

given to Jim Kane, and then given to me to buy heroin with.”

(App. at 299.) He also testified that he understood that the

money was to be repaid, either in cash or marijuana. (Id. at 300.)

6

Mussare argues that the jury’s acquittal on the charges of

conspiracy to possess heroin establishes that the jury rejected

Taylor’s testimony characterizing the transaction as a loan.

However, it would not be inconsistent for the jury to acquit

Mussare on the possession of heroin charge, but still believe that

the transaction was a loan. It does not appear that there was any

evidence that Mussare and Bruce sought the heroin for

themselves or even agreed to the heroin buying scheme; they

simply wanted marijuana. Alternatively, even if inconsistent,

there is no requirement that a jury’s verdict be consistent.

See United States v. Powell, 469 U.S. 57, 62-63 (1984). We will

not interpret the jury’s acquittal on the heroin charge as a

rejection of Taylor’s testimony, and that testimony clearly

provides evidence that the transaction was a loan.

We also observe that, even if a reasonable jury could not

find that a loan existed, it nevertheless could reasonably

conclude that there was an agreement to defer repayment of the

debt Kane and Taylor owed to Bruce and Mussare. Taylor

received the money on Saturday, January 22. Bruce and

Mussare remained at Kane’s apartment until Sunday morning,

while Kane and Taylor each left the apartment, first to purchase

heroin and then to try to sell it for profit. Bruce and Mussare left

the apartment Sunday morning, but returned that evening for

their marijuana. At that point, Kane told them that he had been

unable to resell the heroin, and that he had neither the marijuana

he had promised them or the money to repay them. Bruce and

Mussare again left without incident. It was not until Monday

evening that Bruce and Mussare assaulted Taylor. From this

sequence of events, a reasonable jury could find an agreement to

defer repayment of the debt. See United States v. DiPasquale,

740 F.2d 1282 , 1287 (3d Cir. 1984) (“A tacit agreement may be

implied from the circumstances surrounding the creation of the

debt.”). As such, there was sufficient evidence to support the

jury’s finding that an extension of credit had been made, either

because the initial payment was a loan or because an agreement

to postpone the payment of a claimed debt could be inferred.

B.

7

Mussare next argues that the District Court erred in

admitting certain statements made by Bruce during a gathering

after the beating took place. The District Court admitted these

statements under the hearsay exception for statements of a co-

conspirator. Mussare argues that these statements did not

qualify under that exception and that the admission of those

statements violated his rights under the Confrontation Clause.

The government asserts that Mussare failed to preserve

this issue through a motion in limine or objection, and that the

issue is therefore waived. Mussare did refer to concerns about

hearsay testimony in his motion for severance. Although we

have held that a pre-trial motion in limine relieves a defendant of

his need to make contemporaneous objections in order to

preserve an issue on appeal, we have not held that a pre-trial

motion for severance is similarly sufficient. Gov’t of the Virgin

Islands v. Joseph, 964 F. 2d 1380, 1384-85 (3d Cir. 1992). We

need not decide that issue here. Several witnesses testified to

hearing Mussare and Bruce make statements about the incident

at a party the following night. Mussare objected on hearsay

grounds to the testimony of two of the witnesses regarding these

statements, and the District Court allowed the testimony under

the co-conspirator exception. Mussare did not object to other

instances of testimony about the statements, but if the previous

objections did not preserve the issue as to the later testimony, we

may still review the admission of the testimony for “plain errors

affecting substantial rights.” Fed. R. Evid. 103(d).

To establish plain error, Mussare must prove that there is

‘(1) error, (2) that is ‘plain,’ and (3) that ‘affects substantial

rights.’” United States v. Mitchell, 365 F.3d 215, 257-58 (3d Cir.

2004) (quoting Johnson v. United States, 520 U.S. 461, 467

(1997)). If Mussare establishes these elements, we may exercise

our discretion and review the forfeited error if “(4) the error

‘seriously affects the fairness, integrity, or public reputation of

judicial proceedings.’” Id. at 258 (quoting Johnson, 520 U.S. at

467)). Mussare alleges that the admission of the statements

constituted a violation of his rights under the Confrontation

Clause, and such a violation would constitute plain error. In

addition, a Bruton violation is sufficiently severe that it would

8

seriously affect the fairness of judicial proceedings. For these

reasons, we deem the issue to be properly before us.

The Confrontation Clause guarantees that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const. amend

VI. The Supreme Court has interpreted this to mean that, in a

joint trial, the confession of one non-testifying criminal

defendant may not be used as evidence against a co-defendant.

Bruton v. United States, 391 U.S. 123 (1968). We have

interpreted Bruton expansively, holding that it applies not only to

custodial confessions, but also when the statements of the

non-testifying co-defendant were made to family or friends, and

are otherwise inadmissible hearsay. Monachelli v. Graterford,

884 F.2d 749, 753 (3d Cir. 1989); United States v. Ruff, 717

F.2d 855, 857-58 (3d Cir. 1983). A hearsay statement is

admissible under Bruton and its progeny, however, if it falls

within a “firmly rooted” hearsay exception or is “supported by a

showing of particularized guarantees of trustworthiness.”

United States v. Moses, 148 F.3d 277, 281 93d Cir. 1998)

(quoting Idano v. Wright, 497 U.S. 805, 816-17 (1990)).

Mussare argues that Bruce’s inculpatory statements do

not fit under the hearsay exemption for a co-conspirator’s

statements because they were not made in furtherance of the

conspiracy. But we may affirm on any ground supported by the

record. See United States v. Jasin, 280 F.3d 355, 362 (3d Cir.),

cert. denied 537 U.S. 947 (2002); United States v. Paumbo, 639

F.2d 123, 128 (3d Cir. 1981) (reversing for improper admission

of evidence only after searching for other rules of evidence that

would have justified the district court’s decision). Here, Bruce’s

statements were admissible under Federal Rules of Evidence

804(b)(3), which allows the admission of any “statement which .

. . at the time of its making . . . so far tended to subject the

declarant to . . . criminal liability . . . that a reasonable person in

the declarant’s position would not have made the statement

unless believing it to be true.”

The witnesses testified that Bruce bragged that he and

Mussare had beaten and branded Taylor the evening before.

9

Where statements inculpate both the speaker and the defendant

challenging their admission, the statements are admissible so

long as they were “self-inculpatory” and not simply self-serving

attempts to deflect criminal liability. Moses, 148 F.3d at 280.

Nothing here suggests that Bruce was attempting to deflect

liability; rather, he took credit for criminal activity. Bruce’s

statements unquestionably tended to subject him to criminal

liability – indeed, one witness recalled that his bragging

prompted an acquaintance to threaten to call the police – and

were thus admissible under Rule 804(b)(3).

“[A] statement that meets the requirements of Rule

804(b)(3)” is admissible under Bruton because it “by definition

possesses ‘particularized guarantees of trustworthiness.’”

Moses, 148 F.3d at 281. Thus, the District Court did not err in

admitting the witnesses’ testimony about Bruce’s inculpatory

statements.

C.

Mussare also objects to certain limitations the District

Court placed on his cross-examination of two witnesses. He

argues that the District Court unduly limited his

cross-examination of cooperating co-defendant Shay regarding

the deal he had made with the government. In addition, he

argues that the District Court erred in restricting his

cross-examination of Taylor, the victim, regarding outstanding

state criminal charges.

Limitations that a district court places on

cross-examination are reviewed for abuse of discretion. United

States v. Chandler, 326 F.3d 210, 213 (3d Cir. 2003). The

Confrontation Clause guarantees the right of a criminal

defendant to confront witnesses for the purpose of

cross-examination, and an important part of the

cross-examination is a the exposure of the witness’s biases or

motivation for testifying. Delaware v. Van Ardsall, 475 U.S.

673, 678-79 (1986). Nevertheless, a district court retains “wide

latitude insofar as the Confrontation Clause is concerned to

impose reasonable limits on such cross-examination based on

10

concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or interrogation that

is repetitive or only marginally relevant.” Id.

In Chandler, we found an abuse of discretion when the

district court substantially limited the defendant’s attempts to

cross-examine government witnesses regarding the sentence

reductions they had received and hoped to receive in exchange

for their cooperation and testimony. Id. at 216. The district

court had prohibited any discussion of the penalties the

witnesses would have faced if they did not cooperate. We

recognized a two-part inquiry in determining whether a specific

limitation violates a defendant’s rights under the Confrontation

Clause: (1) whether the limitation significantly limited the

defendant’s right to inquire into a witness’s motivation for

testifying; and (2) whether the constraints imposed fell within

the reasonable limits that a district court has the authority to

impose. Id. We held that the proper inquiry under the first

prong was “whether, if the trial court had not prohibited [the

defendant] from cross-examining [the witnesses] with respect to

the magnitude of the sentence reduction they believed they had

earned or would earn, through their testimony, the jury ‘might

have received a significantly different impression of their

credibility.’” Id.

In this case the District Court allowed testimony

regarding the fact that Shay was initially charged in an

indictment with the exact same crimes as Mussare and Bruce,

and that a superseding indictment naming only Bruce and

Mussare was handed down only after Shay agreed to cooperate.

The District Court also allowed testimony regarding the plea

deal that the government had discussed with Shay, and why he

had agreed to testify for the government. Shay denied having

any set deal with the government, but did say that the

government would be lenient with him if he testified. Defense

counsel was permitted to introduce a copy of the letter to Shay

confirming the existence of an agreement to cooperate, and

promising an “extremely favorable plea proposal” in exchange

for his cooperation. Shay also testified that bail was initially

denied in his case, but that he was released on conditions after he

11

agreed to cooperate, while Mussare and Bruce remained in jail.

He testified that he hoped that, by cooperating, the government

would “let the charges go back to the state, plead guilty to a

simple assault for what I did, and then forward my future to the

United States Marines” without serving any more jail time.

(App. at 164-65.) The District Court also permitted Mussare’s

attorney to read the original indictment into the record as part of

Shay’s testimony.

The District Court sustained objections to only a few

questions; two dealt with the maximum penalties Shay would

face if convicted under the initial indictment, and a third dealt

with what his lawyer told him regarding his plea bargain. Shay

was permitted to testify that he knew the government would not

dismiss the federal charges against him if he did not testify

against Bruce and Mussare, and that, in that case, he would be

going to trial on the same charges Bruce and Mussare were

facing. Although the District Court did not permit testimony

regarding the maximum penalty under the guidelines, it indicated

that there may be alternative ways of seeking the same

information.

Chandler does not require that Shay have been permitted

to testify regarding the magnitude of the sentence reduction he

hoped to receive. Instead, it requires an examination of whether

the magnitude of reduction would likely have changed the jury’s

mind regarding Shay’s motive for testifying. The evidence

showed that Shay expected to have all federal charges against

him dismissed, face only state charges, and receive no jail time.

The evidence also showed that, absent his cooperation, Shay

would be facing the exact same charges as Mussare and Bruce.

Because of the extensive testimony permitted regarding the plea

bargain, the actual number of years in jail that Shay would

otherwise have faced was not likely to have altered the jury’s

impression of his motive for testifying.

In Chandler, we left unresolved the question of “whether

the Confrontation Clause entitles a defendant categorically to

inquire into the ‘concrete terms of a cooperating witness’s

agreement with the government, including the sentence that

12

witness may have avoided through his cooperation.’” Id. at 221.

In order to find a violation in this case, we would have to go

beyond even that question and hold that, even after all of the

details of the plea bargain, as the witness understands them, have

been disclosed, the defendant would still have a categorical right

to inquire into the penalty a cooperating witness would otherwise

have received. We have found no cases holding that such a

categorical right exists, and we decline to so hold. We find that

the District Court did not abuse its discretion with regard to the

limitations placed on the cross-examination of Shay.

Mussare next argues that the District Court erred in

excluding two documents relating to the outstanding state

criminal charges of the victim, Taylor. He argues that these

documents should have been admitted by the District Court,

because they tend to show Taylor’s bias toward the government

in testifying. In making this argument, Mussare relies heavily on

Davis v. Alaska, 415 U.S. 308 (1974). Mussare’s reliance on

Davis is misplaced.

In Davis, the trial court prevented any mention of a

government witness’s juvenile record, which indicated that the

witness was serving probation. Id. The defendant offered this

evidence in an attempt to impeach the witness’s credibility, by

showing that the witness had a motive to lie for the prosecution.

Id. at 309. The Supreme Court held that it was an error for the

trial court to prevent any reference to the witness’s record,

because the defendant had a right to show a potential bias,

including any pressure the government might be able to exert

based on the witness’s status as a probationer, as well as the

witness’s fear that he would become a suspect in the matter. Id.

at 316-17.

Davis is inapplicable here. Taylor was not simply a

government witness, he was the victim in this case, so there was

little danger that he would fear becoming a suspect, and thus

alter his testimony. In addition, the District Court did not

exclude all testimony regarding Taylor’s past. Taylor was

permitted to testify about his drug abuse and his past convictions

for shoplifting. He was also permitted to testify about certain

13

crimes for which he had not been convicted, such as car theft.

Mussare was not permitted to question Taylor about certain

charging documents, but those documents were extrinsic

evidence, and not admissible under the Federal Rules of

Evidence. See Fed. R. Evid. 608(b). Although the District

Court did not permit extensive questioning regarding the

pending state charges against Taylor, any effect additional

testimony would have had on his perceived honesty would have

been minimal. In addition, there was no evidence of a plea

bargain in the pending case that was contingent upon Taylor’s

testifying in this case; Mussare’s counsel merely speculated that

might be the case. The District Court did not abuse its discretion

in excluding the evidence.

D.

Appellant challenges his sentence under United States v.

Booker, 543 U.S. , 125 S. Ct. 738 (2005). In light of the

determination of the judges of this court that the sentencing

issues appellant raises are best determined by the District Court

in the first instance, we will vacate the sentence and remand for

resentencing in accordance with Booker.

E.

For the foregoing reasons, the judgment of the District

Court entered on August 16, 2002 will be AFFIRMED as to the

conviction. The sentence will be vacated and the matter will be

remanded to the district court for resentencing in accordance

with Booker.

14