Petition — Capitano v. United States

4 © SEP 18 1979

NO. @ 9 “i + oD ar rosak, JR., CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979.

SAM B. CAPITANO, PETITIONER.

vs.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES SEVENTH CIRCUIT

COURT OF APPEALS

GLENN SEIDEN,

COUNSEL FOR PETITIONER

180 N. LaSalle St.

Suite 1430

GLENN SEIDEN Chicago, IL.

DEL PRETO & SEIDEN 312 - 236 - 3060

COUNSEL OF RECORD

180 N. LA SALLE ST.

SUITE 1430

CHICAGO, IL.

312 - 236 -3960

' September 10, 1979

INDEX

Page IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

OPINIONS BELOW . 6. kk ek z. NO.

ee ks KS SSS 2.

SAM B. CAPITANO, PETITIONER

QUESTIONS PRESENTED ...... es

vs

STATUTES INVOLVED ....... 4.

THE UNITED STATES OF AMERICA,

STATEMENT Bg eee oie te ig 6. RESPONDENT

REASONS FOR GRANTING THIS WRIT . ii.

CONCLUSION OAD ei ae ae rae iag 19.

PETITION FOR A WRIT OF CERTIORARI

APPENDIX A hi POR ee TO THE UNITED STATES SEVENTH CIRCUIT

COURT OF APPEALS

OPINION OF THE UNITED STATES

SEVENTH CIRCUIT COURT OF

APPEALS Cee Se eee S| TO The Honorable, The Chief Justice

and Associate Justices of the

JUDGMENT OF THE UNITED STATES Supreme Court of the United States.

SEVENTH CIRCUIT COURT OF

APPEAL pa ea ie ag era A-26.

. CAPITANO, the petitioner herein

JOURNAL ENTRY OF JUDGMENT OF SAM B. CAPI ' P '

THE UNITED STATES DISTRICT , . —

a writ of certiorari issue

COURT NORTHERN DISTRICT OF prays that

inne Sone USVIetGe . . A-27 : to review the judgment of the United

ORDER FOR REHEARING - THE ee

UNITED STATES SEVENTH CIRCUIT States Seventh Circuit Court of Ap-

COURT OF APPEAL * - os . e ~ + A-2 8 e se +

peals entered in the above entitled

case on May 31, 1979.

OPINIONS BELOW

The opinion of the United

States Seventh Circuit Court of Ap-

peals is unreported and is printed

in Appendix A hereto, infra, page aA-] .

The judgment of the United States

Seventh Circuit Court of Appeals is

printed in Appendix A hereto, infra,

page A-26.

The Journal Entry of Judgment of The

United States District Court Northern

District of Illinois, Eastern Division,

is printed in Appendix A hereto, infra,

page A-27.

JURISDICTION

The judgment of the United

States Seventh Circuit Court of Appeals

was entered on May 31, 1979. (Appendix

A, infra, page A-26) A timely petition

for rehearing was denied on August 13,

o2e

Sp MMe EE Aa Rik a Beare! 0 Tair acento dR

~~

1979. (Appendix A, infra, page A-28)..

The jurisdiction of the Court is invoked,

under 28 U.S.A. §1254 granting petitioner

jurisdiction to petition this Court

for a Writ of Certiorari.

QUESTIONS PRESENTED

Whether denial of effective

cross examination of an important wit-

ness to establish her bias, is a denial

of the right of confrontation and is a

violation of the sixth amendment.

Whether a judge's refusal

to sequester the jury to guard against

evidence presented and inadmissable at

trial, violates the sixth amendment's

guarantee of a fair trial.

Whether computer printouts

are admissible under the Business Re-

cords exception to hearsay when the

prosecutor fails to lay a proper founda-

=3~

of the nature and cause of the accu-

tion and the witnesses called to do so

eee Leer

are in fact incompetent to lay that sation; to be confronted with the Wit-

; nesses against him; to have compulsory

foundation.

. process for obtaining witnesses in his

Whether the prosecutor's mis-

favor, and to have the Assistance of

statements, leading questions, and

Counsel for his defence.

prejudicial statements about the peti-

tioner colored the overall atmosphere Federal Rules of Evidence, Rule 611 (b),

of the trial and placed unfair impres- (c)

Sions upon the jury, thereby deny the (b) Scope of cross-examination.

pets 2 ee by an impartial Be Cross examination should be limited

“7 to the subject matter of the direct

examination and matters affecting

STATUTES INVOLVED credibility of the witness. The

i court may, in the exercise of dis-

United States Constitution, Amendment Six

oad . cretion, permit inquiry into

In all criminal prosecutions,

: additional matters as if on

the accused shall enjoy the right to a

direct examination.

speedy and public trial, by an impartial

| (c) Leading questions. Leading

jury of the State and district wherein

questions should not be used on the

the crime shall have been committed,

i i direct examination of a witness

which district shall have been previously

t as may be necessary to

ascertained by law, and to be informed verted Y

-5-

_

develop his testimony. Or-

dinarily leading questions should

be permitted on ckbne-ekkeiination.

When a party calls a hostile wit-

ness, an adverse party, or a wit-

ness identified with an adverse

party, interrogation may be by

leading questions.

Federal Business Records Act, 28 U.S.C.

§1732 (a).

(a) Business records are ad-

missible in federal courts as

evidence of a transaction or

occurrence if made in the regular

course of business and if it was

the regular course of business

to make such records within a

reasonable time of the trans-

action or occurrence. .

STATEMENT

In February of 1977 the

Federal Grand Jury handed down an indict-

ment charging seven defendants, Sam B.

-6-

ke) CL Mah OO Mai nm OL

Capitano, James V. Inendino, Thomas B.

McKillip, Michael R. Moyer, Charles R.

Phebus, Eugene E. Phebus and John D.

Phebus with transporting forged securi-

ties in interstate commerce, and with

conspiracy to commit the same under

title 18 United States Code §37,2314, 1343

and 2. The defendants Thomas B. McKillip,

Charles R. Phebus, Eugene E. Phebus, and

John D. Phebus pled guilty to the above

charges. On February 22, 1978, in U.S.

District Court Northern District of

Illinois, Eastern Division, Sam B.

Capitano, James V. Inendino, and Michael

R. Moyer were tried on these above

charges and a verdict of guilty entered

against them.

The charges here involved a

check passing scheme whereby checks were

stolen from the John Hancock Mutual Life

Insurance Company, forged and deposited

in bank accounts in Chicago and nearby

-J=

suburbs and in Florida. The monies were

to be withdrawn but this phase of the

scheme was never completed. The pro-

secutions' case against M. Capitano

revolved around testimony by the de-

fendants who had already pled guilty to

this scheme.

The testimony established

that the Phebus brothers, and Tom

McKillip did perpetrate this scheme.

The Phebus brothers and Tom McKillip

did, however, contradict one another's

testimony regarding the alleged role of

the defendant Capitano in this scheme.

Charles Phebus taneeeii ie to his per-

sonal friendship with Mr. Capitano and

to Mr. Capitano's offer to him of a role

in the scheme. Eugene Phebus could only

assert that his brother spoke of

Capitano. He had no personal dealings

with him. In direct conflict with this

testimony is that of Tom McKillip who

-8-

could in no way implicate Sam Capitano

in this scheme but would testify as to

the Phebus brothers' role as well as

his own.

Further evidence was provided

by Norman Bilodeau who himself was

under suspicion for the same charges.

Again Mr. Bilodeau could provide no

link between Sam Capitano and the

scheme except that Mr. Capitano was an

employee of John Hancock as were

several thousand other persons as well

as himself. The prosecution attempted

to show Mr. Capitano's involvement,

through a weekend trip with the

Bilodeaus in Atlanta, Georgia at a

mutual friend's home. The only evi-

dence this trip produced was that Sam

Capitano and Jan Bilodeau were involved

in an extramarital affair. That error

occurred when Judge Grady refused to

allow cross-examination of Jan Bilodeau

-9-

to establish her bias against Mr.

Capitano.

The. next evidence produced to

link Capitano to the scheme was that of

inadmissible computer printouts of the

records of Florida Telephone and Eastern

Airlines. The only proof these records

provided was that the calls made to

Chicago, where the Phebus brothers were

depositing checks, were made from John

Hancock offices. Another defendant

Michael Moyer had access to those

phones as well as a number of other

office employees and agents.

At the close of all this tenu-

ous evidence the Judge was apprised

that the local papers intended to

print articles about the defendant

Capitano maligning him as having asso-

ciations with the crime syndic: .e and

as having threatened one of the Phebus

brothers. The Judge refused to sequester

-10-

the jury even though they were to begin

deliberations the following morning.

It is from the facts and

errors outlined above that the defendant

Sam B. Capitano takes this appeal.

Jurisdiction was had in the

United States Court of Appeals pur-

suant to 28 U.S.C. §1291.

REASONS FOR GRANTING THIS WRIT

The United States Court of

Appeals for the Seventh Circuit in-

dicated with regard to cross-examination

of Mrs. Bilodeau that:

"...Capitano said he also had

wanted to show that the witness,

who testified that Capitano

telephoned her repeatedly, had

herself telephoned Capitano re-

peatedly. ..."

Said statement is certainly accurate,

however, it fails to fully incorporate

the effect at trial of the testimony

that it was Capitano who, in seeking an

-ll-

illegal purpose, commenced friendly

overtures to the Bilodeaus. Without the

use of the letters, that was the only

impression that the jury could have.

Judge Grady did not allow

effective cross-examination on this

point because the Judge advised counsel

not to mention, refer to or bring up

the letters. Without at least referring

to the letters, counsel would be hard

pressed to place the witness in a

position so as to have her faced with

her own prejudice against the Defendant.

Indeed, it was she that encouraged the

relationship between the Defendant and

herself and without the letters, her

testimony went unchallenged. The

jury, too, would not have the opportunity

to have important information that

would certainly bear heavily on the

weight they placed upon her testimony

and upon her husband's.

~12=

And why would those letters

bear upon Mr. Bilodeau's testimony? Be~

cause Mr. Bilodeau was supposed to be a

respected member of the "John Hancock

Community of District Managers".

Such scandalous behavior on behalf of his

wife or himself would certainly disgrace

that position of respect and destroy

his career. The only way to protect

himself from that potentiality was to

testify, as did his wife, in such a way

so as to create implications of impro-

priety against SAM B. CAPITANO, and

away from himself.

Another important point was

that some of these letters were written

before the Atlanta meeting in 1974, which

tends to disprove Mrs. Bilodeau's conten

tion that SAM B. CAPITANO encouraged Mr.

Bilodeau to come to Atlanta. It is very

important, at this juncture, to note

that Mr. Bilodeau did not take his keys

-13-

to Atlanta and that Mrs. Bilodeau

did not take any keys either. The

fact was, that Mrs. Bilodeau, as shown

by her conduct, and as supported by

the letters, had no intention of

traveling to Atlanta with her husband,

as she testified, but only had wished

to travel to see Mr. Capitano. This

one single point seriously affects the

Government's theory that Mr. Capitano

planned to obtain keys from Mr. Bilodeau

while he was on vacation with his wife

in Atlanta. Even this Honorable Court

wrote on Page 7 of its Opinion:

".,.. letters ... which were allegedly

written after (emphasis added)

she (Mrs. Bilodeau) first met him

(Sam B. Capitano) in Atlanta in

1974. wee”

We are concerned that the jury came

away with a similar impression, that being

that a relationship between Mr. Capitano

and Mrs. Bilodeau grew as a result of Mr.

Capitano's pursuance of an illegal scheme

-14-

|

Pee te he Dt Eat halite Talc

rather than a relationship that was

fully developed prior to the 1974 meet-

ing. For if the proper impression was

received by the jury, the testimony of

at least three witnesses would have been

seriously effected, Mr. Bilodeau, Mrs.

Bilodeau, and Chuck Phebus.

Chuck Phebus' testimony would

have been effected since Chuck possessed

certain information as to Mr. and Mrs.

Bilodeau's conduct that was second hand.

Defendant Indendino wished to explore

those avenues and was foreclosed even

before counsel for Mr. Capitano.

Finally, counsel abided by

the order of Court, and the letters

were not thereafter returned to counsel.

No copies were made, only the letters

themselves were to be used and such of

the contents as were relevant to put

forth the aforementioned facts. The

fact that counsel does not now possess

=15-

the letters and has not possessed

them since Mrs. Bilodeau testified;

and that counsel was foreclosed from

reviewing them or using them to prepare

for Defendant's appeal. This fact

alone, became a severe handicap in

being responsive during oral argument;

and, from ever knowing what word,

sentence, paragraph, page or letter

would have been the one that would have

led to Mrs. Bilodeau's recanting of her

testimony and changing the import of

the testimony of others who testified.

Indeed, had the letters not contained

references to sexual engagements, we are

certain that they would have been ad-

missible at trial and therefore, effective

in their purpose, probative in their

information, and important towards a

fair and impartial trial thereby pos-

sibly affecting the outcome of that

trial.

-16=-

The Petitioner also contends

that the ruling regarding the Prosecutor's

closing remarks is in error and in

direct conflict with the Seventh Cir-

cuit's previous opinions. The United

States Court of Appeals in its opinion

stated that the statement made by the

Prosecutor was cause for serious con-

cern by the court yet they upheld the

introduction of that statement. The

Prosecutor informed the jury during his

closing arguments that it was comforting

to note that the government does not

bring charges unless they are sure they

can convict the Defendant. In, United

States v. Spain, 536, F.2d. 170 (7th Cir.,

1976), Similar prejudicial remarks

were made and the Court of Appeals held,

This Court may find it

necessary in appropriate cases to

exercise its supervisory authority,

even in the absence of plain error.

In the future, all Federal pro-

secutors in this circuit will conform

=o

their arguments to the standard

set by the Supreme Court in the

Berger case.

This ruling by the Court of

Appeals affected the Petitioner's right

to a fair trial by an impartial jury as

well as his basic right to be innocent

until proven guilty.

The issue of what constitutes a

proper foundation for introducing computer

printouts as Business Records has never

been ruled on by this Court. Due to the

nature of this type of evidence and its

impact on the jury and the lack of firm

rules by lower courts in this area the Pe-

titioner appeals to this Court to settle

this important evidentiary question.

“inally the Appellate Court's

ruling on the issue of sequestration of

the jury and prejudicial news articles was

a denial of the Petitioner's Sixth Amend-

ment right to a fair trial by an impartial

jury. This Court in Sheppard v. Maxwell,

-18-

>

384 U.S. 333 (1966), specifically held

that refusal to sequester a jury when pre-

judicial publicity is published violates

a Defendant's right to a fair trial. In

ignoring this holding the Court of Ap-

peals denied the Petitioner his constitu-

tional rights and failed to take note of

this Court's ruling precedent.

CONCLUSION

For the foregoing reasons this Peti-

tion for a Writ of Certiorari should be

granted.

Respectfully submitted,

GLENN SEIDEN

Counsel for Petitioner

180 N. LaSalle Street

Suite 2414

GLENN SEIDEN Chicago, Illinois

DEL PRETO & SEIDEN

180 N. LA SALLE ST.

SUITE 1430

CHICAGO, IL.

312 =- 236-3060

COUNSEL OF RECORD

September 10, 1979

-19@

~ Se io: a

APPENDIX

IN THE

UNITED STATES

COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

NO. 1529

UNITED STATES OF ) Appeal from the

AMERICA, ) United States

Plaintiff-Appellee) District Court

) for the Northern

vs. ) District of Illi-

) nois, Eastern

SAM B. CAPITANO, ) Division.

et al., )

Defendant-Appellant) The Honorable John

F. Grady,Trial Judge

OPINION

1. Closing Argument

Inendino argues that in closing argu-

ment the prosecutor stated his personal

belief that the government witnesses were

telling the truth. The statement com-

plained of was as follows:

A-1

--- aS surely as there is a

pile of exhibits, of evidence

sitting before you and as surely

as you heard testimony from the

witness stand, I tell you there was

a conspiracy in this case and that

when Hull and Schremser, Chuck,

Gene, John and Tim Phebus and

Harold Scully testified, they told

you the truth.

As in United States v. Kuta,

518 F.2d 947, 954-955 (7th Cir.), cert.

denied, 423 U.S. 1014 (1975), the quoted

passage follows a summary of the evidence.

It is apparent from the context here,

as it was in that case, that the challenged

statement was intended to be an argument

based on the evidence the prosecutor had

just summarized and not a representation

that he personally believed the testimony

of the witnesses. We believe any listener

would so understand it.

Inendino complains that the

prosecutor improperly argued that Inendino

had threatened government witness Hull

and in so arguing misstated the record.

A-2

hirer

ESSE Fake

eto ee BaP ak

The prosecutor's statement is as

follows:

Now I suggest to you that the

threat was very real, that Mr. Hull

knew about. I+ was through Mr.

McKillip concerning Mr. Inendino's

involvement in the case.

The prosecutor went on to remind the jury

that Hull was told by another conspirator,

McKillip, that Inendino would provide

"protection," and what that meant to Hull.

There was evidence that Inendino

had told the Phebus brothers, who were

other conspirators, that he would kill

his men if necessary, that McKillip had

told Hull that Inendino would provide

"protection," and that to Hull this

meant that any verson who fell out of line

would be dealt in "a final manner." The

argument concerning threats to Hull was

a reasonable inference from the evidence.

The prosecutor is not limited to a mere

recital of the facts but could properly

draw inferences concerning Inendino's role

A-3

in the scheme and argue those inferences

to the jury.

Both defendants complain of the

prosecutor's statement during closing

argument, "... isn't it reassuring to

know the government does not bring

criminal charges against someone

until they are sure they have the evidene

to convict them."

Following an objection by defense

counsel, the trial judge ruled that the

comment was improper and instructed the

jury that the matter of what the evidence

proves was for them to determine from

the facts and not from opinion and that

closing arguments were not facts and it

was for the jury to determine what the

evidence showed. Under all the cir-

cumstances, we believe that this incident

consistuted harmless error.

Standing alone, the prosecutor's

statement would be cause for serious concern,

A-4

—

iu nee

Se WCE nie Sal hans Rasta ta Mae Nts Rts 3 Seete w ro- FP

but considered in context it was not

prejudicial, even though unfortunately

phrased. It was made in response to an

argument Inendino's counsel had ad-

vanced in his opening statement and

implied in cross-examination of witnesses

that the case against Inendino was a

frame-up. An ingredient of this

argument was an inference Inendino's

counsel sought to have drawn from the

fact that Inendino was not named in the

superseded first indictment, viz., that

the evidence against Inendino was a be-

lated invention. At the time the pro-

secutor made the statement complained of,

counsel for Inendino had not disclaimed

an intention to charge the prosecuting

attorneys with complicity in the frame-up,

although he did exclude them from that

charge in his subsequent closing argument

for Inendino. The prosecutor's statement

was made in response to the frame-up

A-5

charge and in particular in an effort

to refute the suggestion that the failure

to include Inendino in the first and

later superseded indictment was an in-

dication that the evidence against him

was a relatively late concoction.

Although we do not condone the expression

chosen by the prosecutor, we think the

statement, in the context in which it

appeared, was understood by the jury

for what it was, viz., a part of an

effort to rebut the frame-up charge and

not an attempt to buttress the prosecu-

tion's case by relying on the pre-indict-

ment opinions of the prosecution.

Capitano argues that the

prosecutor misstated evidence to the

jury in his rebuttal argument by referring

to "Mr. Capitano's home phone number"

instead of that defendant's "office" phone

number. This reference was immediately

objected to, and the prosecutor thereupon

A-6

;

}

;

|

|

{

Feb padirae tee ee AT

Pile tis ses mers Peeketdaes

apologized, admitted the mistake, and

stated that he should have said "John

Hancock office." In addition, at the

beginning of the judge's instructions to

the jury, the error was noted and cor-

rected. This inadvertent mistake by the

prosecutor resulted in no prejudice to

Capitano. An unintentional misstatement

by the prosecutor which is quickly cor-

rected is not a ground for reversal.

United States v. Grooms, 454 F.2d 1308,

1311-1312 (7th Cir.), cert. denied, 409

U.S. 858 (1972).

In summary, a reading of the

closing arguments in their entirety con-

vinces us that the statements complained

of do not constitute prejudicial error.

2. Limitations on Cross-Examination

Inendino complains that his counsel

was precluded from asking the witness Hull

A-7

7

whether Hull had signed an affidavit in

March 1976 stating that he last worked

in March 1975. The purpose of the in-

quiry was to impeach Hull's testimony that

"he imagined" that he had worked after

March 1975. Although we would have allowed

the question if we had been in the trial

judge's place, the exclusion of this

peripheral evidence did not amount to

prejudicial error.

Inendino also complains that

the trial judge sustained objection to

cross-examination of — Charles

Phebus concerning whether he knew that

the government's recommendation of dis-

missal of some of the criminal charges

pending against him would have the ultimate

effect of significantly reducing any

potential sentence he might receive. The

defendant was permitted to elicit from

Phebus that eleven charges had been

dropped and that each of those charges

A-8

TOR F

CO reece

——

carried a prison sentence. The benefit the

witness perceived from the dismissal of

the charges was apparent from the evi-

dence the jury heard, and no prejudice

resulted to Inendino from the judge's

refusal to allow embellishment.

Inendino also argues that his

counsel was improperly precluded from

inquiring into the current employment of

witnesses Chuck Phebus and Schremser.

The judge foreclosed examination on this

subject because of a reasonable basis for

fear expressed by the witnesses. We

find no error and no prejudice in this

ruling.

Inendino also argues that the

court improperly sustained objection to

cross-examination of Chuck Phebus with

respect to whether Gene Phebus had told

Schremser in Chuck's presence that Gene

had been involved in a truck hijacking and

that the scheme which was the subject

A-9

matter of the instant indictment was

bigger and better than the hijackino.

In so arguing, Inendino misstates the

record. His counsel asked Chuck Phebus

without objection whether, in conversation

with Tom Rich, Gene Phebus had said the

check deal was "even bigger and heenan*

than a hijacking and theft of trucks in

which Gene had engaged in January 1974;

and the witness answered no. The court

Sustained objection to the question whether

the previous questions were the first the

witness had heard of the hijacking mat-

ter, on the ground that the cross-

examiner was bound by the witness' pre-

vious answers on this collateral matter.

The judge could reasonably have viewed

the question to which he sustained objec-

tion as an argumentative quibble with a

previous answer on a collateral matter.

Inendino also asserts error in the judge's

refusal to allow an offer of proof on

A-10

Se NEI ER,

this matter, but the judge expressly

stated that an offer could be made later

during a recess, and apparently no offer

was ever tendered. We find no error in

this incident.

Inendino also argues that the

court improperly restricted an attempt

to impeach Chuck Phebus' credibility by

cross examining John Phebus about whether

Chuck had told John that Chuck was ac-

quainted with Norman Bilodeau. This

argument and a related one concerning the

judge's statement of his recollection of

the evidence and his disagreement with

the recollection of Inendino's counsel,

arise from an indefinite antecedent in an

answer the witness had given during the

following redirect examination:

BY MR. MARKLEY:

Q. Did Mr. Capitano ever tell you

while you were in Florida that

he knew Mr. Bilodeau?

A. I do not know that for sure.

A-1l

Q. Did Chuck ever tell you that he Bilod

(Mr. Capitano or Chuck?) knew odeau?

Mr. Bilodeau? ; A. No, I didn't

° ’ .

A. Yes, sir. ; Q. You didn't say that?

. >

Q. What did Chuck say? A. No, I said he was good friends

A. That he was good friends with Coe

Bilodeau. Q. Did you say that?

Q. Who did Chuck say that -- A. As far as I know, no

, .

A. Sam (Capitano) and Bilodeau THE COURT M Echel

: r. Echeles --

were friends.

Q. Did Chuck ever meet Bilodeau MR. ECHELES: Yes, your Honor?

that Chuck told you about?

. THE COURT: The Court will say

A. That I do not know. ne the witness did not say

We understand this testimony as the trial | Then followed a colloquy in which Inendino's

judge did, i.e., as meaning that Chuck said counsel and the court stated their dis-

: a i so

Sam and Bilodeau were friends. On recross greement over what the initial testi-

: m

by counsel for Inendino, however, the ony had been.

following occurred: Eventually, the judge had that

Q. When did your brother Chuck tell initial testimony read to the jury. Thus

you that he was good friends ;

with Mr. Bilodeau? the jury was allowed to make its own

determi i ‘

A. He never told me that. mination of which interpretation

| was

Q. Didn't you testify in answer to correct. If any embarrassment to

a question of Mr. Markley's just Cc

a little while ago when he was PF ounsel resulted, he brought it on him-

asking you questions, that Chuck self. We see no conceivable prejudice

said he was good friends with

A-12 | A-13

in this incident.

Capitano argues that the court

improperly precluded his counsel from

cross-examining Mrs. Bilodeau concerning

whether she had engaged in a sexual

relationship with Capitano. We are

unable to perceive the relevance of this

evidence. Capitano argued in his brief

before us that the evidence would show

she was biased against him. At oral argu-

ment, his counsel was unable to explain

why this would follow. As we said in

a eee

United States v. Harris, 542 F.2d 1283,

1302 (7th Cir.), cert. denied, 430 U.S.

934 (1976),

We do not find that a sexual relation-

ship will per se give rise to bias,

either favorable or unfavorable.

During his oral argument, counsel

for Capitano said he also had wanted to

show that the witness, who testified that

Capitano telephoned her repeatedly, had

herself telephoned Capitano repeatedly.

A-14 |

A reading of her testimony, however, shows

that she admitted that she and her

husband had called Capitano a number of

times. Counsel was not prevented from

developing this line of inquiry further

if he had chosen to do so. He was pro-

hibited from inquiring into the sexual

relationship, because he had not shown

the court what the relevance of that

relationship would be. We do not get

from the witness' testimony the impression

that contacts between Capitano and the

Bilodeaus were primarily initiated by

him rather than them. This afterthought

argument by counsel is without merit.

Counsel for Capitano also

stated on oral argument another conten-

tion not made in his brief, viz., that the

judge had erred in excluding certain

letters marked "Capitano Group Exhibit 5"

which were allegedly written by Mrs.

Bilodeau to Capitano after she first met

A-15

him in Atlanta in 1974. Counsel argued

that these letters might contradict

testimony Mrs. Bilodeau had given on the

stand. Counsel had seen the letters,

of course, since they were purportedly

written to and produced by his client.

Nevertheless, when interrogated by us,

he was unable to state how these letters

tended to impeach Mrs. Bilodeau on any

material matter. Nor did he state how

they might otherwise bear on any relevant

issue. We have read Mrs. Bilodeau's

testimony, Capitano's offer of proof pre-

sented by cross-examining Mrs. Bilodeau

outside the presence of the jury, and

the letters themselves. After doing so,

we are still unable to perceive any rele-

vance in the letters or in the fact of

the witness’ sexual relationship with

Capitano.

A-16

3. Refusal to Sequester Jury and

Interrogation of Jurors About Newspaper

Stories

The afternoon before the sub-

mission of the case to the jury, defense

counsel advised the court of the possi-

bility that newspaper stories pertaining

to the trial and the defendants were

likely to appear and moved that the jury

be sequestered. The court denied the

motion but advised the jury that there

might be newspaper stories and admonished

them not to read the newspapers at all.

No objections were made to the court's

statement.

The following morning, after

the appearance of stories in the Chicago

Sun Times and the Chicago Tribune which

would have been prejudicial if read by

the jurors, counsel for the defendants

brought the stories to the judge's atten-

tion and moved for a mistrial. The judge

stated that he would conduct a collective

A-17

voir dire of all the jurors to determine

whether any of them had read the article

and that if any had done so he would

examine the jurors individually in

camera. Defendants did not object but

made suggestions relating to the scope

of the inquiry. The judge then in-

terrogated the jurors collectively and

determined that no juror had read the

newspaper stories.

On at least six prior occasions

during the trial the judge had instructed

the jury at the end of the day that,

inter alia, they should not read any

accounts of the case in the newspapers

or listen to any comments about it on

radio or television, if any such appeared.

The defendants argue that the

court erred in refusing to sequester the

jury and, further, that he failed to pro-

perly examine the jurors concerning their

A-18

EAGER POET IRL 8 Fe ESE OG NINDS Sel YAS COD

reading of the newspaver articles.

Sequestration of the jury is

a matter for the Giabreticn of the trial

judge. If adequate steps are taken to

insure that jurors are not exposed to pre-

judicial publicity, it is not error

to refuse sequestration. Margolis v.

United States, 407 F.2d 727, 732-733

(7th Cir.), cert. denied, 396 U.S. 833

(1969). Here the court repeatedly

admonished the jury not to read news-

paper stories concerning the case and

interrogated them to determine whether

they had obeyed these invkeeneione. We

cannot say that the collective examination

of the jurors concerning their compliance,

rather than individual examination, was

an inadequate means of determining that

no juror had read the stories. United

States v. Margolis, supra, 407 F2d at

734-735; United States v. Barrett,

A-19

905 F.2d 1091, 1100 (7th Cir.), cert.

denied, 421 U.S. 964 (1975). It is

noteworthy that no objections were made

at the time to the procedure the judge

followed, except those concerning the

failure to sequester the jury.

Defendants now argue that the

court handled the matter in such a way

as to call the articles to the jurors'

attention and then discourage them from

giving truthful answers to the questions

concerning whether they had read the

newspaper stories. Again, in the

absence of objections made at the time of

the procedures now challenged, and after

a review of the transcript, we believe

that there was neither error nor an

abuse of discretion.

4. Sufficiency of Evidence on

Substantive Counts Against Inendino

Inendino argues that there was

A-20

0 aioe iin icll aI

a ee ie a

insufficient evidence to support con-

viction of the substantive offenses of

causing transportation of checks from

Chicago to Boston, Massachusetts. He

was acquitted of the count dealing with

the transportation of forged checks

from Chicago to Florida after a determina-

tion had been made to move the operation

to Florida.

The government relies on the

doctrine that when there is a con-

spiracy (and Inendino does not challenge

the sufficiency of the evidence to estab-

lish conspiracy), and an act in further-

ance of the conspiracy is committed,

all of the conspirators are guilty of

the substantive act by reason of their

participation in the conspiracy. United

States v. Peskin, 527 F2d 71, 75-76 (7th

Cir. 1975), cert. denied, 429 U.S. 818

(1976); United States v. Joyce, 499

F2d 9, 16 (7th Cir.), cert. denied,

A-21

be transported interstate between

419 U.S. 1031 (1974).

Illinois and Massachusetts. Certain

Although use of interstate .

5 ee ~ Hancock checks were deposited in the

facilities is a basis for jurisdiction

Chicago area banks and sent by them to

only, and knowledge of such use is

ee : the Boston bank through normal banking

unnecessary for conviction, United

channels for payment, and the checks

States v. Peskin, supra, 527 F2d at 78,

were returned to the Chicago area banks

there was ample evidence here that

; unpaid.

Inendino knew interstate transportation

Withdrawals of the proceeds of

would be a necessary part of carrying

. the deposits of the Hancock checks could

out the conspiracy. That evidence

not be made from the Chicago area banks

showed the following: The Phebus bro-

until the checks had been sent from

thers informed Inendino of the scheme

Illinois to the Boston bank. Thus,

prior to Labor Day 1974. He was shown

in order for Inendino to receive any part

a sample Hancock check. Through the

of his compensation for participating in

Phebuses and McKillip, he learned that

; : . the scheme, the forged checks were re-

the checks had to be deposited in Chicago

bank and that before money could quired to be transported in interstate

area banks, an

commerce, and Inendino must have known

be drawn from the accounts, the checks

° this. Therefore, interstate transportation

had to clear the banks on which they

were drawn. Knowing that all the Hancock of the checks was not only foreseeable

by Inendino but essential to the scheme.

checks were drawn on a bank in Boston,

The transportation of the forged checks

Inendino could foresee that they would

A-23

A-22 :

was in furtherance of the conspiracy

and Inendino was chargeable with that

transportation.

The government also points out

that Inendino aided and abetted the sub-

stantive offenses by sharing in the crimi-

nal purpose and assisting in the accomplish-

ment of that purpose. United States v.

Martinez, 555 F2d 1269. 1271-1272 (5th

Cir. 1977). His conviction can also be

supported on that theory.

5. Foundation for Computer Printouts

The government introduced

documentary evidence of telephone calls

and airline reservations. Records of tele-

phone calls for the months of September

and October 1974 were introduced through

the testimony of a records custodian from

the General Telephone Company of Florida.

Airline reservation records for flights

A-24

during August and September 1974 were

introduced through the testimony of a

records custodian from Eastern Airlines'

Miami Florida office.

Capitano argues that there was

an inadequate foundation for the admission

of this evidence, because no computer

expert testified that the computers that

produced the records were programmed

accurately to insure their reliability.

He does not question the authenticity of

the records or the recordkeeping pro-

cedures. While the foundation for this

evidence might have been more extensive,

see United States v. Scholle, 553 F.2d

1109, 1125 (8th Cir.), cert. denied, 434

U.S. 940 (1977), we believe that the

requirements of Rule 803(6) of the Federal

Rules of Evidence were satisfied.

The judgments of conviction are

affirmed.

AFFIRMED.

A-25

JUDGMENT

Defendants were convicted before

a jury of transporting forged checks in

interstate commerce and conspiracy to

do the same. Inendino was found guilty

under the conspiracy count of the indict-

ment and eleven substantive counts, and

Capitano under those same counts and one

additional substantive count. Each de-

fendant was sentenced to five years on

each count, the sentences to run concur

rently. We find their various claims of

trial error to be without merit and

affirm the convictions.

A-26

IN THE UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

NO. 76 CR 876

Judge John F.

SAM B. CAPITANO, Grady

ee eee ee eee ee ee

Defendant.

7

JOURNAL ENTRY OF JUDGMENT OF THE

UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

It Is Adjudged that on Counts 1

through 13 that defendant is hereby com-

mitted to the custody of the Attorney

General for imprisonment for a term of

five (5) years. Said sentences on Counts

1 through 13 to run concurrently with

each other.

(SGD) JOHN F. GRADY

JUDGE

A-27

IN THE

UNITED STATES

COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

NO. 1529

UNITED STATES OF ) Appeal from the

AMERICA, ) United States

Plaintiff-Appellee)

vs.

) for

District Court

the Northern

District of Illi-

nois, Eastern

et al.,

Defendant-Appellant

)

)

SAM B. CAPITANO, ) Division.

)

)

The

Honorable John

F. Grady,Trial Judge

ORDER FOR REHEARING

This matter comes before the court

on the "MOTION TO EXTEND TIME FOR FILING,

RE-HEARING AND PETITION FOR CERTIORARI"

and affidavit in support thereof, filed

herein on August 9, 1979, by counsel for

the defendant-appellant.

thereof,

A-28

On consideration

IT IS ORDERED that said motion

. be, and the same is hereby DENIED.

(SGD) PHILIP W. TONE

CIRCUIT JUDGE

A-29 :