Appendix — Bastone v. United States

APPENDIX A

In the

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 75-1417

Untrep States Or AMERICA,

Plaintiff-A ppellee,

v.

Carmen Bastone and ArtHUR VEAL,

Defendants-A ppellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 74 CR 383

Tuomas R. McMitten, Judge.

ARGUED NoveMBER 3, 1975—Dercipep DecemBer 8, 1975

Before Hastines, Senior Circuit Judge, Petu and Bauer,

Circuit Judges.

Baver, Circuit Judge. Defendants-appellants Carmen

Bastone and Arthur Veal were charged under 18 U.S.C.

S571, along with eighteen other defendants’, with con-

1 Prior to trial one defendant, Daniel Lonero, was severed due to

itiness. Eleven defendants, John Falcione, Patrick Boenzi, William

Paradise, Constantine Athas, Raymond Murray, Charles P. Garner,

Robert Walley, Ronald) Schoenneman, Eugene Marino, Robert

Quagliato and Frank DeRosa, pled guilty. One defendant, Salvatore

Bastone, was found not guilty. Five other individuals were named

as co-conspirators but were not indicted: Harry Mizok, John Cre-

diedo, Daniel O'Neill, Clarence White and Donald Svehla.

App. 2

spiracy to transport and cause to be transported in inter-

state commerce stolen semi-trailers of a total value in

excess of $5,000, in violation of 18 U.S.C. §2314.? Verdicts

of guilty were returned as to Bastone, Veal and four

others. Bastone was sentenced to five years imprisonment

and Veal received two years imprisonment.

Evidence of the defendants’ conduct and the conspiracy

was presented primarily through Ronald Schoenneman, an

accomplice witness who received certain benefits from the

government in exchange for his testimony. The evidence

presented showed that Schoenneman met with Carmen

Bastone at a coffee shop in a Chicago suburb during the

summer of 1970 to discuss the business of stealing trailers.

A scheme?’ was outlined to Bastone by Schoenneman where-

by forty-foot semi-trailer vans would be stolen from rail-

road yards and truck docks and then taken to so-called

‘‘cleaners’’, who would remove from the trailers all iden-

tifying items such as signs, lettering and public identifica-

tion, in addition to obliterating serial numbers variously

hidden about the trailer. In some cases, the trailers would

218 U.S.C. §2314 states, inter alia:

“Whoever transports in interstate or foreign commerce any

goods, wares, merchandise, securities cr money, of the value of

$5,000 or more, knowing the same to have been stolen, convert-

ed or taken by fraud... [s]hall be fined not more than $10,000

or imprisoned not more than ten years, or both.”

_ 3 The indictment alleged an ongoing conspiracy to steal and re-sell

semi-trailers for a period of three and one-half years. Our own

reading of the record indicates an elaborate scheme involving many

parties. However, since this appeal involves only two of the defen-

dants we have recounted only those facts in this opinion which we

believe are applicable to the appeal of Bastone and Veal. Neither

appellant presents a serious challenge to the sufficiency of the evi-

dence presented at trial.

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App. 3

then be further cleaned by an acid wash and, if need be,

repainted. Titles would be obtained and, by fraudulent

applications for new titles, bogus serial numbers would be

imposed on the faces of previously legitimate titles. Those

numbers, in turn, would be applied to the trailers to con-

form with the altered titles. Customers would be obtained,

both in Illinois and in other states, the trailers sold, and

the profits split among the various participants. Initially

Schoenneman agreed to pay $900 for each stolen trailer

Bastone provided. Eventually Bastone and Schoenneman

became partners and agreed to divide their expenses

equally.

Schoenneman also met with co-defendant and appellant

Arthur Veal at his Chicago irailer repair shop—Artco—

and obtained Veal’s services as a ‘‘cleaner’’ of the stolen

trailers supplied by Bastone. Veal agreed to perform his

services and then drop the trailers, which were to be

marked with a painted ‘‘x’’, in a vacant lot.

Schoenneman next contacted Raymond Murray whose

task it was to find customers for the disguised trailers.

When Murray placed his first order with Schoenneman

both of the defendants were notified that the ‘‘business’’

was underway. Deliveries from Veal’s shop began in

November of 1970. Several of the trailers were sold to

customers in Indiana and Kentucky. Veal received two

as compensation for his services and those remaining were

sold to Mary Ann Bakeries. Sales of trailers to Mary Ann

Bakeries continued through 1971 and early 1972. Veal

painted the trailers to match other Mary Ann equipment

and Schoenneman provided bogus serial numbers. In 1971

Veal also stole trailers from General Transport Equip-

ment Co. and cleaned them for resale. He further ar-

ranged to purchase junk trailers from United Parcel Ser-

App. 4

vice in order to obtain title certificates to be used on the

stolen trailers. Old trailers and junk titles were also pur-

chased by Schoenneman and Bastone from Fruehauf

Trailer. The titles were altered and used in the sale of

the stolen and cleaned trailers.

In May, 1972 Schoenneman began cooperating with the

Federal Bureau of Investigation. From May 19 through

June 20 he made a series of telephone calls to Bastone

and other conspirators during which he discussed the

stolen trailer business. Many of those conversations were

recorded.

I, EVIDENCE OF TAPE RECORDED TELEPHONE

CONVERSATIONS BETWEEN CHIEF PROSE-

CUTION WITNESS SCHOENNEMAN AND DE-

FENDANT BASTONE WERE PROPERLY AD-

MITTED.

Defendant Bastone moved to suppress the use of five

telephone conversations he had with Schoenneman which

were tape recorded. Bastone argued that the recordings

were improper and inadmissible because Sehoenneman did

not give his voluntary consent; and, further, that he was

the suspect of an investigation in which Schoenneman was

acting as a government agent. Thus it is his contention

he was entitled to be given the Miranda warnings before

partaking in the telephone conversations. After hearing

the evidenee, including testimony of Schoenneman, the

trial court denied the motion to suppress. We believe the

trial court was correct in denying the motion.

It is well established that a party to a telephone con-

versation risks a third party hearing the content of the

conversation with the consent of the second party. In

the federal system if one party consents to the electronic

recording of a conversation it is generally admissible de-

«nr

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App.5

spite the other party's objection. See Rathburn v. United

States, 355 U.S. 107, 111 (1957); Carnes v. United States,

295 F.2d 598, 602 (Sth Cir. 1961); United States v. Martin,

372 F.2d 63, 65 (7th Cir.), cert. denied, 387 U.S. 919 (1967).

The essential question here is whether or not Schoen-

neman gave his consent to recording the conversations.

The appellant argues that the trial court ignored the reali-

ties of the situation which indicated that Schoenneman

only purported to consent to the interception and record-

ing. He cites the decisions of Weiss v. United States, 308

U.S. 321, 330 (1989); United States v. Laughlin, 233 F.

Supp. 623 (D.C. Cir. 1963); and United States v. Napier,

451 F.2d 552 (Sth Cir. 1971); however, those cases involve

situations where the party’s consent could be seriously

questioned either because of incapacity or government

pressure. On the other hand, the facts in this case belie

the contention that Schoenneman’s consent was involun-

tary.

Schoenneman had not received ‘‘promises’’ of leniency

or of a change in location and new identity prior to his

making the telephone calls. After several weeks of con-

versations elapsed, Schoenneman suggested the taping of

telephone conversations. While there was discussion about

the United States Marshal’s protective custody program

at various meetings, the actual decision to move Schoenne-

man and his family out of town came about one week prior

to his June 22nd departure, well beyond the first telephone

recording of May 19.

During this cooperation with the government, Schoen-

neman was receiving no compensation, lived at his home, ,

was never arrested, restricted, nor was he under surveil-

lance. Schoenneman was aware that he would not receive

immunity but that his cooperation would be made known

at trial. Finally, the trial court also was made aware of

spin libcingts bait adaeee

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App. 6

executed advice of rights and consent to monitor forms,

personally executed by Schoenneman before each conver-

sation.

We fully realize that Schoenneman’s cooperation

stemmed from the fact that he believed he would receive

a better deal from the government. Yet that fact alone

does not vitiate his consent or indicate that his actions

were the product of government control. A finding of

involuntariness or coercion should not result simply be-

cause a person has been indicted or is the subject of a

government investigation. United States v. Silva, 449 F.2d

145, 146 (1st Cir. 1971); United States v. Jones, 443 F.2d

1176, 1180 (D.C. Cir. 1970), cert. denied 402 U.S. 950

(1971); also see United States v. Bonanno, 487 F.2d 654

(2d Cir. 1973).

That Bastone was not given Miranda warnings is quite

frankly a weak argument. A person is not entitled to

warnings simply because an investigation has focused

upon him. The test is not focus alone, but rather, focus

plus custodial interrogation. Escobedo v. Illinots, 378 U.S.

478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Miranda v. Ari-

zona, 384 U.S. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The cases cited by Bastone in support of his focus con-

tention are different in that they deal with tax cases in

which a taxpayer is interviewed after his case has been

presented to the Intelligence Division of the Internal

Revenue Service. In those cases, the putative defendant

clearly faces government compulsion. See United States

v. Lockyer, 448 F.2d 417 (10th Cir. 1971); United States

v. Turzynski, 268 F.Supp. 847 (N.D. Ill. 1967); United

States v. Wainwright, 284 F.Supp. 129 (D.Col. 1968).

Custodial interrogation means ‘‘questioning initiated by

law enforcement officers after a person has been taken into

NA

App.7

custody or otherwise deprived of his freedom of action in

a significant way’’ (Miranda, 384 U.S. at 444). When

Bastone made the admissions during the telephone con-

versation he was neither in custody nor deprived of his

freedom, nor was he being interrogated by law enforce-

ment officers.

Simply because Schoenneman was operating as a gov-

ernment informant does not make the content of the tele-

phone conversations inadmissible. The Fourth Amend-

ment has never been construed to protect a person who

voluntarily confides in another person who is acting as a

government informant or undercover agent. United States

v. White, 401 U.S. 745, 749 (1970); Hoffa v. United States,

3885 U.S. 293 (1966). In United States v. Gardner, 516 F.2d

334 (7th Cir. 1975), a ‘‘cooperating individual’’ apprised

the FBI of Gardner’s attempt to dispose of certain stolen

securities. There, a plan was developed by the FBI by

which agents assumed undercover roles as a bank execu-

tive and an attorney willing to prepare a fraudulent cer-

tificate of ownership. When the latter agent met with

Gardner, he responded to a question about the origin of

the theft and committed incriminating actions. Citing

Miranda and Hoffa, the court held that Gardner’s admis-

sion and actions were not the consequence of inherent com-

pulsion because the agents had assumed undercover iden-

tities. Therefore, Gardner was ‘‘not confronted with gov-

ernmental authority of which he was aware. . .,’? and was

not entitled to receive Miranda warnings. (516 F.2d at

339).

Similarly, in the case at bar, the activities of the FBI

agents when Bastone made these recorded admissions

were a part of the undisclosed investigative process in

which Schoenneman was a voluntary participant, and,

consequently, Bastone was not confronted with govern-

App. 8

mental authority. Therefore Bastone had no right to re-

ceive Miranda warnings at the times in question.*

Bastone next asserts that even if the telephone conver-

sations were admissible they operated to deny him a fair

trial because the court refused to excise certain prejudi-

cial portions and because Schoenneman was allowed to

testify as to what he himself meant by certain slang words

which he had used in the taped conversations. We think

that the decision not to edit the tapes and to allow expla-

nation of the slang terms was clearly within the purview

of the trial court’s discretion. In such an instance we be-

lieve that a reversal should not occur unless there is mani-

fest error or an abuse of this discretion. In this case the

trial judge was best able to assess the impact that the

tapes and testimony would have upon the jurors. Thus,

now on appeal, we rely heavily upon his judgment and

find no error or abuse of his discretion.

Il. THERE WAS NO PREJUDICIAL VARIANCE

IN THE INDICTMENT CHARGING A SINGLE

CONSPIRACY AND THE PROOF PRESENTED

AT TRIAL.

The crucial question here is: did the government’s case

show one common scheme, plan or purpose indicating a

conspiracy among the defendants? Or did the evidence

show a number of separate unrelated conspiracies? Both

defendants contend that multiple conspiracies were shown

* Bastone points out that the government cannot always absolve

itself of official responsibility for the acts of private citizens, citing

United States v. Stein, 322 F.Supp. 346 (N.D. Ill. 1971). In Stein

the government encouraged a private individual’s “irregular acquisi-

tion” of certain evidence rendering the exclusionary rule applicable.

However in this case there is no evidence of government encourage-

ment that is not in accordance with the law.

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App. 9

and the jury may have considered against the defendants

evidence periuining to separate conspiracies to which each

of them was clearly not a party, including evidence of acts

and declarations of alleged co-conspirators with whom

they were not in any way connected, Further, that their

individual cases were substantially prejudiced because the

trial judge failed to give an instruction telling the jurors

that a finding of one single conspiracy was a prerequisite

to convicting the defendants. Veal also claims that it was

error for the court not to give a limiting instruction re-

garding certain evidence.

The benchmark and controlling decision on the question

of a single conspiracy being charged and multiple con-

spiracies being proven is Kotteakos v. United States, 328

U.S. 750, 66 S.Ct. 1239 (1946).

In Kotteakos, thirty-two persons were indicted for a

single conspiracy to induce various financial institutions

to make loans which would then be insured by the Federal

Housing Administration on the basis of fraudulent infor-

mation. Nineteen of these persons were brought to trial

and seven were eventually convicted. The government

admitted that the evidence proved eight or more separate

conspiracies by separate groups of conspirators which had

little or no connection with each other.

However, by simply charging one conspiracy the gov-

ernment was able to present a mass of evidence which re-

flected equally on the most culpable to the most innocent

of the defendants. Consequently, the Supreme Court re-

versed stating:

‘*... if the practice here followed were to stand, we

see nothing to prevent its extension to a dozen. a

score, or more conspiracies and at the same time to

scores of men involved, if at all, only separately in

them. The dangers of transference of guilt from one

“gr” er

App. 10

to another across the line separating conspiracies,

subconsciously or otherwise, are so great that no one

ean really say prejudice to substantial right has not

taken place ... as it [the offense] is broadened to

include more and more, in varying degrees of attach-

ment to the confederation, the possibilities for mis-

carriage of justice to particular individuals becomes

greater and greater.’’

Of course, the Court has also held that not every vari-

ance is fatal. Berger v. United States, 295 U.S. 78, 55 S.Ct.

629, 79 L.Ed. 1314 (1935); Blumenthal v. United Staates,

332 U.S. 539, 68 S.Ct. 248 (1947). Also see United States

v. Kenny, 462 F.2d 1205 (3d Cir. 1972). Recently this

Court set forth the test to distinguish between a single

conspiracy and multiple conspiracies in United States v.

Varelli, 407 F.2d 735 (7th Cir. 1969), as follows:

‘While the parties to the agreement must know of

each other’s existence, they need not know each oth-

er’s identity nor need there be direct contact. The

agreement may continue for a long period of time and

include the performance of many transactions. New

parties may join the agreement at any time while

others may terminate their relationship. The parties

are not always identical, but this does not mean that

there are separate conspiracies.

The distinction must be made between separate con-

spiracies, where certain parties are common to all

and one overall continuing conspiracy with various

parties joining and terminating their relationship at

different times. Various people knowingly joining

together in furtherance of a common design or pur-

pose constitute a single conspiracy. While the con-

spiracy may have a small group of core conspirators,

other parties who knowingly participate with these

core conspirators and others to achieve a common goal

may be members of an overall conspiracy.

In essence, the question is what is the nature of the

agreement. If there is one overall agreement among

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App. 11

the various parties to perform different functions in

order to carry out the objectives of the conspiracy,

the agreement among all the parties constitutes a

single conspiracy’ (407 F.2d at 742) (citations

omitted).

The Varelli test is applicable to the case at bar for the

proof here plainly demonstrated one overall agreement

among the various parties to perform different functions

in order to carry out the single objective of the conspiracy

—the sale of stolen trailers.*

The evidence also showed a few collateral transactions

that were not totally directed toward the main scheme or

conspiracy. However, since the trial judge adequately in-

structed the jury,® the admission of such testimony that

*In order to meet a common objective, indispensable functions

were performed by one or more conspirator. Initially, the trailers

were stolen. Bastone clearly had a part in completing this function

by virtue of his obtaining thieves. Next, to avoid detection, the

stolen trailer was “cleaned”, any and all identifying objects removed.

This was the work of Art Veal and others. Next, there had to be

acquisition of titles which were forged to evidence a phony serial

number. Thereafter, the phony serial number was placed upon the

trailer by the “cleaners”. After the trailer was prepared, customers

were obtained. After the sale was consummated, the trailers were

delivered with titles and the payment therefor returned to the ad-

ministrator, Schoenneman, for distribution to each of the above-

name participants. Finally, when capital was low, loans were given

to keep the various participants content. This, too, was a major role

played by Bastone.

* The trial judge stated in part as follows:

“In determining whether a conspiracy existed, the jury should

consider the actions and declarations of all the alleged partici-

pants. However, in determining whether a particular defendant

was a member, of the conspiracy, if any, the jury should consid-

er only his acts and statements. He cannot be bound by the

acts and declarations of other participants until it is established

that a conspiracy existed and that he was one of the members.

onl

App. 12

did not support a continuous single conspiracy was harm-

less. In addition the collateral activities, denoted as sepa-

rate conspiracies by the appellants, did not really deal

with Veal or Bastone.’

We believe that under United States v. Johnson, 515

F.2d 730 (7th Cir. 1975) the trial court could have left

up to the jury the decision of whether the government

presented evidence of one conspiracy or multiple con-

spiracies. But, it is quite clear that the trial judge did

not have to give the instruction submitted by the defense

which stated ‘‘If you [jurors] find that there were a num-

ber of separate and distinct conspiracies or enterprises

in which some but not all of the defendants or others were

involved, you must find the defendants not guilty.’’ Clear-

ly this instruction could be proper in some conspiracy

cases. However, it is not appropriate where the defense

attempts to create a variance through cross-examination

by bringing in new conspiracies. Here the court’s own

instruction was more neutral and advised simply that the

jury must find that the defendants knowingly and willfully

participated in the single, particular conspiracy charged.

Finally on this point Bastone correctly cites the case of

Tinsley v. United States, 43 F.2d 890 (8th Cir. 1930) for

the proposition that a conspiracy cannot occur where the

defendants were not working together towards a common

7™The so-called additional conspiracies included the following:

Schoenneman’s hiatus and cessation of illegal activities; the stolen

trailer operation which involved only Svehla and Murray; the sep-

arate operation involving Schoenneman and Murray which used the

O’Rourke Cartage yard at Calumet Harbor. Also much of this evi-

dence was brought out on cross-examination of Schoenneman. We

do not believe it would be fair to allow the defense to manufacture

a variance through use of the cross-examination of the government’s

chief witness.

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App. 13

goal. Our reading of Tinsley discloses that factually the

decision represents ‘‘a horse of a different color’’, the

mutual understanding shown here was wholly lacking in

the facts presented there.

Bastone argues that a defendant should not stand con-

victed in a case where the evidence does not permit the

conclusion that he was aware of the scope of the overall

enterprise and knowingly participated therein, citing

United States v. Peoni, 100 F.2d 401 (2d Cir. 1938) ; United

States v. Falcone, 311 U.S. 205 (1940); Dennis v. United

States, 302 F.2d 5 (10th Cir. 1962). The fact that the de-

fendants may not have known all the particulars of the

total scope of a conspiracy does not bar a conviction.

Blumenthal v. United States, supra, at 557 (1947); United

States v. Crosby, 294 F.2d 928, 945 (2d Cir. 1961). As

Judge Learned Hand cogently stated in United States v.

Andolschek, 142 F.2d 503 (2d Cir. 1944) at p. 507:

“It is true that a party to a conspiracy need not

know the identity, or even the number, of his con-

federates; when he embarks upon a criminal venture

of indefinite outline, he takes his chances as to its con-

tent and membership, so be it if they fall within the

common purposes as he understands them.’’

III. THE TRIAL COURT DID NOT ERRONEOUS.

LY LIMIT THE DEFENDANT’S RIGHT OF

CROSS-EXAMINATION.

Under the Sixth Amendment every defendant is given

the right to confront those witnesses presented against

him. Bastone states that the trial court inhibited his con-

stitutional right by prohibiting proper defense attempts

to expose to the jury various facts concerning prosecution

witnesses Garner, Murray, Ponzevie, and especially,

Schoenneman. We think the key phrase in this argument

App. 14

is ‘‘proper attempts’’. A review of the record indicates

that the defense attorneys, in their zealous attempts to

bring out the nefarious activities of the government’s wit-

nesses, chose to ignore the rules of evidence. We will con-

sider the defense arguments on an individual witness

basis.

First, defendants claim that the trial court erred in

preventing questioning aimed at disclosing Schoenne-

man’s state of mind (i.e., did he believe the government

wanted some one higher up; did he think he would get a

better ‘‘deal’’ for himself if he implicated defendant; was

he not giving the government what he thought it wanted

for his own benefit; and the like). The government’s re-

sponse is simply that the defense failed to ask the right

questions. It is clearly within the trial court’s discretion

to permit testimony as to promises made by the govern-

ment in exchange for favorable testimony. DeMarcé v.

United States, 415 U.S. 449 (1974); United States v. Rod-

riguez, 439 F.2d 782, 783 (9th Cir. 1971); United States

v. Greenberg, 423 F.2d 1106, 1108 (Sth Cir. 1970); Grant

v. United States, 368 F.2d 658, 661 (5th Cir. 1966) ; United

States v. Masino, 275 F.2d 129, 131-132 (2d Cir. 1960).

Whether or not to permit further testimony as to the wit-

ness’ state of mind or motivation has been approved by

the Supreme Court in certain cases. Cf. Davis v. Alaska,

415 U.S. 308, 315-318 (1974). However, in this ease the

trial court, in its discretion, may have properly assumed

that further cross-examination into the witness’ subjective

thoughts would not be meaningful in light of the exami-

nation conducted previously which clearly showed that the

witness gained a great deal by becoming a witness for the

a re SECS A, OER RSID DIOR IY Be a ae ay

App. 15

government. The trial court has broad discretion in de-

termining probative value. United States v. Kissane, 478

F.2d 1098, 1101 (7th Cir. 1973) ; United States v. Braasch,

905 F.2d 139, 149 (7th Cir. 1974).

Second, defendants complain of the court’s limitation

of cross-examination of witness Ponzevic in that it pre-

vented the defense from demonstrating that this witness

had tailored his testimony to make it conform to an erro-

neous document. As a general rule a witness can be ques-

tioned about inconsistent testimony and the court may

allow the use of extrinsic evidence to impeach the witness.

United States v. Braasch, 365 F.2d 395, 401 (2d Cir. 1966) ;

United States v. Borelli, 336 F.2d 376 (2d Cir. 1964);

United States v. Partin, 493 F.2d 750 (6th Cir. 1974). In

addition a reviewing court will closely scrutinize contra-

dictory testimony by an accomplice witness who would

have reason to commit perjury. United States v. Persico,

305 F.2d 534, 537-540 (2d Cir. 1962) ; United States v. Har-

ris, 462 F.2d 1033, 1035 (10th Cir. 1972). At trial witness

Ponzevic was questioned as to whether he was trying to

*Schoenneman’s devastating cross-examination showed that he

had previously been investigated by the FBI regarding stolen trail-

ers; that he had been in the phony title and stolen trailer business

in the late 1960's; that he had debts of more than $300,000 ; that he

obtained a bank loan to pay off certain debts by using stolen, ficti-

tious titles to support his application; that the loans which he had

obtained were, in some cases, the subjects of civil suits, and, in any

event, were not paid since his cooperation with the government ; fur-

ther, that he was afraid he might get ten years incarceration for bank

fraud; that he had filed no tax returns and paid no income tax for

any fiscal year from 1968 to the present, despite making money in

the stolen trailer business; that he had received no tax bills from the

government and was never charged with failing to file, though an

IRS criminal investigation was pending ; that he was in the juice

loan business, engaged in a stolen stocks and securities deal and

fenced stolen merchandise.

App. 16

make his testimony conform to certain documents. The

witness responded ‘‘It could be.’’ Defense counsel pur-

sued the issue. An objection was eventually made and the

judge responded that an inquiry into the circumstances

was proper but the manner in which counsel was doing it

was objectionable. After some further questioning and

objections, counsel stated ‘‘I have no further questions,

Judge. I just cannot seem to get the right one out.’’ Thus

this reviewing court is presented with a situation where

the court stated it would allow impeachment of the witness

but trial counsel abandoned the issue. As a consequence

the argument that the court erroneously limited the cross-

examination and refused extrinsic evidence is meritless.

Third, the defendants contend that it was error for the

court to rule that it could bring out the fact of witness

Garner’s prior felony convictions but not the fact that

one of the convictions was for rape or to otherwise de-

scribe the nature of the prior conviction. The court did

allow use of a theft conviction to show the witness’ pro-

pensity to be dishonest. While not in effect, the new Fed-

eral Rules of Evidence would have barred the use of the

rape conviction because it occurred twenty-two years ago.®

® Rule 609(b) provides :

“(b) Time Limit. Evidence of a conviction under this rule

is not admissible if a period of more than ten years has elapsed

since the date of the conviction or of the release of the witness

from the confinement imposed for that conviction, whichever is

the later date, unless the court determines, in the interests of

justice, that the probative value of the conviction supported by

specific facts and circumstances substantially outweighs its

prejudicial effect. However, evidence of a conviction more than

10 years old as calculated herein, is not admissible unless the

proponent gives to the adverse party sufficient advance written

notice of intent to use such evidence to provide the adverse

party with a fair opportunity to contest the use of such evi-

dence.”

me us

we,

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App. 17

In the words of now Chief Justice Burger in his opinion

in Gordon v. United States, 383 F.2d 936 (D.C. Cir. 1967),

the issue for the trial judge was whether he ‘believes the

prejudicial effect of impeachment far outweighs the pro-

bative relevance of the prior conviction to the issue of

credibility’? (383 I'.2d at 939). That test was adopted by

this Court in United States v. DiVarco, 484 F.2d 670, 677

(7th Cir. 1973), and, when applied to this record shows

that the trial judge did not abuse his discretion in making

his ruling.”

7° The trial judge also cautioned the jurors about the credibility

of testimony of witnesses who had prior convictions or expectations

of favors from the government for giving testimony. The instruc-

tion stated:

“It is the province of the jury to determine the credibility, if

any, to be given the testimony of a witness who has been im-

peached.

The testimony of a witness may be discredited or impeached

by showing that the witness has been convicted of a felony, that

is, of a crime punishable by imprisonment for a term of years.

Prior conviction does not render a witness incompetent to tes-

tify, but is merely a circumstance which you may consider in

determining the credibility of the witness.

It is the province of the jury to determine the weight to be

given to any prior conviction as impeachment.

An accomplice is one who voluntarily participates in the com-

mission or the planning of a crime.

Certain witnesses called by the Government in this case have

testified that they did criminal acts. The testimony of those wit-

nesses must be considered with caution because those witnesses

are accomplices.

The testimony of a witness who provides evidence against a

defendant for a promise or favor from the Government, or for

other personal advantage or vindication, must be examined and

weighed by the jury with caution.

The jury must determine whether the witness’ testimony has

been affected by interest, or by prejudice against a defendant.”

App. 18

IV. THE COURT DID NOT ERR IN DENYING

THE MOTION FOR SEVERANCE.

In order to obtain a severance the moving party must

show prejudice, i.e., ‘‘that he will be unable to obtain a

fair trial without severance, not merely that a separate

trial will offer a better chance of acquittal.’’ United States

v. Blue, 440 F.2d 300 at 302 (7th Cir. 1971); Tillman v.

United States, 406 F.2d 930 (Sth Cir. 1969) ; United States

v. Kahn, 381 F.2d 824, 838 (7th Cir. 1967); Oden v. United

States, 410 F.2d 103 (Sth Cir. 1969).

On this point defendant Veal cites Bruton v. United

States, 391 U.S. 123, 88 S.Ct. 1620 (1968) contending he

was prejudiced when his codefendant McMahon took the

witness stand, testified that he had never seen Veal before

coming to court, and, then, was cross-examined by the

government. Included in the questions asked by the gov-

ernment was the query: ‘‘Did you [McMahon] tell the FBI

on January 12, 1973, that you picked up trailers from

Arteo, a trailer repair shop?’? McMahon answered in the

negative. Judge MeMillen ruled that the government

would not be allowed to call the FBI agent who inter-

viewed MeMahon to testify in rebuttal to the statment.

Bruton is inapplicable because no confession was admitted

in the government’s case in chief and no rebuttal evidence

was tendered on this point. MeMahon’s testimony was

actually favorable to Veal, and he was available for cross-

examination by Veal’s counsel. Nelson v. O’Neil, 402 U.S.

622, 629-30, 81 S.Ct. 1723, 29 L.Ed.2d 222 (1971); United

States v. Clark, 480 F.2d 1249, 1253 (Sth Cir.), cert. denied

414 U.S. 978 (1973); United States v. Marine, 413 F.2d

214, 217 (7th Cir. 1969), cert. denied, 396 U.S. 1001 (1970).

Government of Virgin Islands v. Rwiz, 495 F.2d 1175 (3d

Cir. 1974). As Professor Moore states:

App. 19

“*. . . when the witness repudiates his pretrial in-

culpatory statement, however, or denies making it,

there is no real opportunity for the defense to cross-

examine with respect to that statement, and Bruton

is arguably violated. Normally, the prosecution in

this situation will use the earlier statement for pur-

poses of impeachment, and the defense will be satis-

fied to rely on the witness’ trial testimony and forego

cross-examination. Nonetheless, there is no Bruton

violation where the codefendant takes the witness

stand and thereby makes himself accessible to cross-

examination.’’ Moores Federal Practice, Rules of Cri-

minal Procedure, Vol. 8, §14.04[2][e].

V. THE EVIDENCE SHOWED THAT THE VALUE

OF THE STOLEN GOODS EXCEEDED $5,000.

Defendants were indicted under 18 U.S.C. §2314. An

essential jurisdictional prerequisite under $2314 is that

the stolen goods that are being transported exceed $5,000

in value. United States v. Nall, 437 F.2d 1177, 1184 (5th

Cir. 1971); United States v. Barker, 313 F.Supp. 987 (D.

Del. 1970). Value as used in §2314 is defined in 18 U.S.C.

$2311 as the aggregate value of all goods referred to in a

single indictment. In this case the defendants point out

that no distinction was drawn between stolen trailers in

Illinois which never left the state, and stolen trailer deals

which involved the interstate transportation of trailers

stolen and cieaned in Illinois and sold out of state. Defen-

dants contend it was prejudicial error to permit a cumula-

tion of interstate and intrastate sales in order to meet the

jurisdictional prerequisite.

We must reject the defendant’s argument. The evi-

dence, independent of local sales, showed that proof of

value in excess of $5,000 was abundant. Twenty-three

trailers were sold to purchasers in New Jersey and thirty-

five trailers were sold to buyers in Indiana, Kentucky, and

St a eaten ee ote

App. 20

Georgia. Typical insurance claims paid on three stolen

trailers which were sold interstate amounted to $4,000,

$4,500, and $4,700.

Although certain stolen trailers were delivered locally

at O'Hare Airport to Schulman Air Freight, Inc.,"* the

real owner and purchaser of the trailers was Ardmore

Leasing Corp. of Cherry Hill, New Jersey. The titles to

the trailers were transferred to Ardmore and checks re-

ceived in payment for the trailers were drawn on the ac-

count of Ardmore at the Continental Bank in Norristown,

Pennsylvania. Finally, the jury was properly instructed

that in determining aggregate value consideration should

only be given to trailers sold across state lines. The court

instructed:

‘Tt is not necessary for the government to prove

that a specific defendant personally transported any

trailers or knew that any trailers would be trans-

ported in interstate commerce. It is sufficient if he

willfully and knowingly conspired with one or more

persons to cause or induce the transportation of

stolen trailers and that thereafter certain trailers of

a total value of more than $5,000 were transported

across state lines pursuant to the conspiracy.’’

VI. THE TRIAL COURT DID NOT ERR IN ITS

RULING ON THE TESTIMONY OF VARIOUS

WITNESSES.

Bastone and Veal both allege that they were denied a

fair trial because of various prejudicial statements made

i! Twenty-three of the twenty-four trailers sold to Shulman (Ard-

more) were shipped interstate to New Jersey. In addition to the

local sales involving Olympic Freight Ways (Mary Ann Bakeries),

Phillips. Svehla, Liberty and Totoni, and the interstate sales involv-

ing Sbuiman (Ardmore), there were additional interstate sales to

Cumberland Wooden Chairs Co., Somerset, Ky., and G.M. Leasing

Co., Tucker, Georgia.

POSURE era Fi tr sai eae TRAM IPRS IRI I Pn SO CORRE? ip tag hn

App. 21

by certain witnesses. Initially we note that a reviewing

court normally allows a certain amount of discretion to

the trial court. The trial judge is in the best possible po-

sition to observe the events of the ‘living courtroom’’,

the demeanor of witnesses, thie strategy of counsel, the

impact of certain testimony on the jury due to the sur-

rounding circumstances.

The defendants initially sought a mistrial because

Schoenneman testified that he was in the protective cus-

tody of the government. However, this fact was brought

out by the defense and was neither elicited nor suggested

by the government. There appeared no prosecutorial in-

tent to prejudice the case against the defendant.

Next, Dean Athas testified that Bastone threatened to

break his legs should he tell anyone else about his work-

‘ng arrangement. This statement was admitted as an ex-

ception to the hearsay rule beeause it was a statement by

a co-conspirator in furtherance of the conspiracy, i.e., to

keep the conspiracy concealed by avoiding conversations.

Co-conspirator statements made in furtherance of the

conspiracy are generally admissible as an exception to the

hearsay rule. Krulewitch v. United States, 236 U.S. 440, 69

S.Ct. 716 (1949); United States v. Lauler, 413 F.2d 622

(7th Cir. 1969), cert. denied, 396 U.S. 1046 (1970) ; United

States v. Kahn, supra. We are not convineed that this

statement was properly admitted under the co-conspirator

exception to the hearsay rule. But the government offers

alternative theories for admissibility, specifically that the

threat showed a criminal motive or evidenced a tendency

to commit similar acis or crimes, citing United States vy.

Hutul, 416 F.2d 607, 624 (7th Cir. 1969); United States v.

Marine, supra; United States v. Campagna, 146 F.2d 524,

530 (2d Cir. 1945). We believe that this statement was

App. 22

admissible. The question of admissibility is really aca-

demic beeause the defense did not make a timely objection

to the testimony and in fact used this subject matter as a

basis for a somewhat successful impeachment of the wit-

ness.”*

After the government presented its case, co-defendant

Jackson took the stand. On cross-examination by the gov-

ernment he denied that he carried a gun all his life. This

statement was in contradiction to a previous, tape re-

corded statement made by Jackson and presented by the

government earlier in the trial. Counsel for both defen-

dants objected to this testimony and made motions for

mistrial and severance on the basis that this testimony

about a co-defendant clearly showed the prejudicial effect

of the joinder of all defendants.

Recently the court faced the same problem in United

States v. Robinson, 503 F.2d 208 (7th Cir. 1974) wherein

the defendant alleged error in denial of his severance

motion and asserted prejudice from his co-defendant’s

impeaching testimony on cross-examination pertaining to

the witness’ prior felony convictions and narcotics ac-

tivity. Nevertheless, the court held no showing of preju-

dice was made to warrant severance. We stated:

‘*Robinson’s allegation that the testimony relating

to Taylor’s criminal record and narcotics activity

prejudiced him is not sufficient to make out a showing

of prejudice warranting severance. Indeed, Robin-

2Athas’ credibility as to this statement was substantially im-

peached when he admitted on cross-examination that, although he

had many previous and lengthy interviews and interrogations with

federal agents, he never mentioned defendant’s alleged tlireat to him

until several weeks before trial. Despite this effective impeachment

the defendants maintained that the jurors heard Athas’ testimony

and that they were prejudiced by it.

OEE TM a SETS SBT RE NOG LF AN a Nh AEE SN RELI ORE ROR IR POON ERR LE? = NIT ai

> BLEED THROUGH

App. 23

son’s allegation is no more than a claim that a sepa-

rate trial would have created a stronger probability

for his acquittal. The mere assertion that the impact

of impeachment evidence pertaining to Taylor may

carry over to Robinson thereby prejudicing him is

not enough io meet the difficult burden imposed on a

party seciing to establish prejudicial joinder’’ (503

F.2d at 215).

The trial court was cognizant of the potential problem

created by this testimony. The judge instructed the jury

that the conversation was to be considered only against

the speaker when it was first introduced and again during

the final instructions.

Probably the most significant issue raised on appeal

involving witness testimony arises out of two references

to Veal being in trouble with the authorities.“ Veal chal-

13 The court stated:

“I have instructed the jury not to consider it with respect to

any other defendant.

* * *

The jury will be instructed again, and they have been in-

structed that this particular evidence is only admissible against

the defendant who is on the stand. They will be instructed to

only admit conversations between a defendant and someone else

if they were in furtherance of an alleged conspiracy as far as any

other defendant is concerned.

The statements made by the witnesses are as follows:

“Q. Just prior to your meeting with Grey, Carmen and Sal-

vatore did you have a conversation with Art Veal?

[Answers by witness Schoenneman]

Yes, I did.

When, approximately, was that?

This was in the summer of 1971.

Where did that conversation take place ?

I called Grey at his place of business.

(Footnote continued)

POPO>

App. 24

lenges this testimony as being tantamount to remarks

concerning a prior criminal record which was not an issue

properly before the jury. Veal’s counsel did not object

to Schoenneman’s testimony but he did make a motion for

a mistrial. However, the court did instruct the jury to

disregard the testimony.

It is well established that a defendant in a criminal trial

is protected under the Fifth Amendment from the prose-

(Footnote continued)

Q. Are you talking about Grey or Veal at this point?

A. I mean Veal, I am sorry. I called Art Veal at his place

of business.

Q. Would you relate that telephone conversation.

A. Art Veal told me that he had some heat around his place.

I asked him if things were bad, if we would have to stop doing

business. He said, no, not at this time, the heat wasn’t too bad.”

The colloquy involving Murray occurred as follows:

“Q. What was said during this conversation?

[Answers by witness Murray]

A. I asked Mr. Schoenneman who I should see at the place,

this place called Artco, in regard to getting minor repairs done

on the trailers I was picking up. A tire would be flat, a lens

missing from a light or something. I wanted to know who to

see there to take care of these things so I could pull them on

the road. Mr. Schoenneman told me that the place was run by

a colored fellow who was getting into some trouble and I should

stay away from him. There was no one there to authorize to

perform any type of repairs.

MR. ROTENBERG: _I object to this conversation and

move for a mistrial.

THE COURT: I do not see how this could be in further-

ance of any conspiracy. I will strike the answer.

MR. ROTENBERG: And instruct the jury to disre-

gard it?

THE COURT: I will instruct the jury to disregard the

answer, the conversation with Mr. Schoenneman. It is not

proper testimony.”

See, Soe ais FR ES BE RIT EAI OIE A ER PE ye SEES ST:

: BLEED THROUGH

ls

App. 25

eution inquiries into his prior criminal record as long as

he does not testify on his own behalf or cause the jury to

discover his past convictions through his own actions at

trial. United States v. Herrington, 490 F.2d 490 (2d Cir.

1973); United States v. Pauczko, 429 F.2d 683, 686 (7th

Cir. 1970). In this case it was not proper for the govern-

ment to elicit this type of testimony because it tends to

reflect negatively upon the defendant’s character which is

not at issue. But, clearly, the testimony does not consti-

tute reversible error.

First of all, the statements do not refer to a past crimi-

nal conviction of the defendant. They merely indicate

surveillance by the authorities. Second, the testimony was

presented in a nebulous form and the individual jurors

may have drawn different interpretations. It is quite pos-

sible that the jury inferred that Veal’s troubles stemmed

from a government surveillance that led to his present

indictment rather than any past criminal conduct. In the

one instance where an objection was made, the court prop-

erly instructed the jury to disregard the statement. United

States v. F nseca, 490 F.2d 464, 469 (5th Cir.), cert. denied

419 U.S. 1072 (1974); United States v. Roland, 449 F.2d

1281, 1282 (Sth Cir. 1971); United States v. Panczko,

supra.

One final contention made by Veal and Bastone in re-

gards to witness testimony is that their constitutional

rights to confront witnesses presented against them and

a fair trial were violated by the admission of certain hear-

say evidence. It is questionable whether the testimony

cited amounts to hearsay, but assuming arguendo that it

is hearsay it falls under the exception to the rule as state-

ments of a co-conspirator in furtherance of the conspiracy.

Krulewitch v. United States, supra.

App. 26

VII. THE COURT’S INSTRUCTIONS TO THE

JURY WERE PROPER.

The question of whether to give the jury a cautionary

instruction addressed to the intrastate transactions de-

pends on one’s interpretation of the evidence. Defendant

Veal contends that the local transactions were relevant

only as prior, concurrent, or subsequent similar acts. On

the other hand the government argues that the local trans-

actions were overt acts in furtherance of the conspiracy.

A review of the evidence discloses that certain transac-

tions Veal disputes were in fact interstate. The testimony

dealing with the local sales was proper because it showed

the identity of the parties in the conspiracy, its funding,

and its operation by which the trailers were stolen,

cleaned, retitled, and sold. Thus it was admissible to dem-

onstrate the existence and operation of the conspiracy.

Contemporaneous overt acts not charged in the indict-

ment may be shown if they are performed in connection

with the named acts, and, are done to further the conspir-

acy. United States v. Clay, 495 F.2d 700, 705-07 (7th Cir.

1966); United States v. Ardmore, 363 F.2d 385, 400 (2d

Cir. 1966).

It is important to note that Veal failed to offer an in-

struction on the basis of a similar acts theory. Conse-

quently we will not reverse unless there is a showing of

plain error. Federal Rules of Criminal Procedure 30 and

52(b). See United States v. Gardner, 516 F.2d 334, 346

(7th Cir. 1975); United States v. Demopoulos, 506 F.2d

1171, 1180 (7th Cir. 1974); United States v. Lisowski, 504

F.2d 1268, 1272-74 (7th Cir. 1974); United States v. How-

ard, 433 F.2d 505, 508-12 (D.C. Cir. 1970).

App. 27

Next, Bastone states that the trial court committed

prejudicial error in failing to give a portion of an instruc-

tion which he offered. Bastone’s instruction No. 17 read:

‘*You are instructed that mere knowledge, approval

of or acquiescence in the object or purpose of a con-

spiracy, Without an intention and agreement to co-

operate in the crime is not sufficient to make one a

conspirator.’’

The trial court gave this instruction except for the

words ‘‘or acquiescence in’’ which it deleted, stating:

‘‘T think the word ‘acquiescence’ is maybe a little

bit ambiguous for the jury. Let’s say ‘the mere knowl-

edge or approval of the object or purpose’, and I

think that will cover the matter.’’

A defendant in a criminal trial is always entitled to

have the jury instructed on his theory of defense if it is

properly presented and has some basis in the evidence

presented. In this case the other instructions given to the

jurors adequately told them what type of involvement was

necessary to find the defendants guilty of conspiracy.

The trial judges’ editing of the instruction appears to

be an attempt to clarify and elucidate. It is the duty of

the trial judge to avoid instructions which are confusing

and would tend to direct the jury’s attention away from

the issues they are called upon to decide. United States v.

American Radiator ¢ Standard Sanitary Corp., 433 F.2d

174, 189 (3d Cir. 1970), cert. denied 401 U.S. 948 (1971).

The deletion was certainly within the court’s discretion

and, in light of the other instructions, does not constitute

error.

Turning to the other instructions Veal maintains that

the instructions on the issues of withdrawal and the ad-

missibility against him of post-withdrawal conversations

App. 28

of co-conspirators were insufficient. In order to withdraw

from a conspiracy one must take an affirmative step to

disavow or defeat the purpose of the conspiracy. United

States v. Crillo, 468 F.2d 1233, 1239 (2d Cir. 1972) ; United

States v. Chester, 407 F.2d 53, 55 (3d Cir. 1968); Hyde v.

United States, 225 U.S. 347, 369 (1911). In this case there

is no evidence that Veal took an affirmative step to with-

draw from the conspiracy. To the contrary, his cessation

of activity with the other indicted co-conspirators was due

to the fact that he was having ‘‘troubles’’ with law en-

forcement officials and thus was required to ‘‘lay low’’ for

awhile. The cases cited by Veal in support of his claim

that the jury should have been instructed to disregard

certain conversations are clearly inapplicable. They in-

volved situations wherein the conspiracy was already over

and thus the declarations made could not be in furtherance

of the scheme. Furthermore, the court instructed the jury

at the close of one witness’ testimony as follows:

‘<(/T]he jury is not to consider the evidence if they

find that the individual, any individual, including Mr.

Veal, had withdrawn from the conspiracy at the time

of the occurrences that were testified to.’’

. RLEED THROUGH

App. 29

VII. THE DEFENDANTS’ RIGHT TO A FAIR

TRIAL WAS NOT VIOLATED BY THE

PROSECUTION’S FINAL ARGUMENT.

In final argument counsel for the government com-

mented upon the failure of the defense to call certain wit-

nesses.” The prosecutor’s rebuttal argument was justi-

fied because counsel for Bastone continuously went out-

1 By Mr. Burns, the prosecutor:

“It was also stated that the Government failed to call certain

individuals. I guess they were inferring that had we called

them, those people would have testified differently and said this

simply didn’t happen. Well, I think they mentioned Vince

Auriemma. Well, Vince Auriemma is Carmen Bastone’s friend.

He could have called him just as easy as we could. Harry Mi-

zok, he is an unindicted co-conspirator—

MR. COLLINS [attorney for defendant C. Bastone]: Ob-

jection, your Honor. The defendants are not required by law

to call any witnesses.

THE COURT: Sustained.

MR. BURNS: Your Honor, I submit that the defendants

have the same subpoena power and I am allowed to argue that.

MR. COLLINS: I object.

MR. BURNS: That is an invited response.

MR. COLLINS: Motion for mistrial.

THE COURT: Well, there has been no evidence as to

whether this man is even alive. I will sustain the objection.

MR. BURNS: I believe there was also mention of a man

named Joe DeVita. Well, I would state on that they could have

subpoenaed Joe DeVita just as easy as we could.

MR. COLLINS: Objection, your Honor. We are not re-

quired to subpoena anybody.

THE COURT: Sustained. There has been no evidence of

where these people are.

MR. BURNS: Well, your Honor, you let him argue and

this is simply invited response.

THE COURT: I am sustaining his objection.

MR. BURNS: All right, I am sorry.”

App. 30

side the record in his closing argument referring to wit-

nesses the government failed to call..° He persisted in

16 Counsel for Bastone made the following arguments :

“What independent evidence is there? Well, they started

talking about the meeting that is supposed to have happened

where Carmen Bastone and a man named Auriemma were sit-

ting around and talking and Ron Schoenneman was there and

there was some evidence, although it wasn’t mentioned in argu-

ment, about some other fellow named Lew. Well, they didn’t

call those people to testify. They could have been, the Govern-

ment has the right to call anybody they want to and it is their

burden of proof.

* * *

Who were the thieves? Quagliato and Marino? Did Marino

testify? Do you remember secing him? He wasn’t here. He is

under indictment in this very case, but was he here? No.

* * *

The Government can call anybody they want to this stand.

Nobody told the Government that they cannot do anything.

They can listen to your phone calls, they can serve subpoenas,

they can do anything they want to do. They never called John

Falcione to the stand to say ‘Yes, Carmen and me, we went to

do the Shulman deal.’ They never called him.

MR. BURNS: Your Honor, I will object to this line of ar-

gument of Mr. Collins.

THE COURT: Sustained.

MR. COLLINS: If the Court please—well—

The prosecutor had this Mr. T. G. Grey and they claim Car-

men went out there once. Mr. Grey didn’t come in and say that.

The only person who said that was Ron Schoenneman, that is

the only one who said it. They had all of these different points

where there were people who could testify to it if it were true,

other people, third party people, people like Mr. Loman, people

like Bobby Quagliato, people who could say, ‘Yeah, I saw Car-

men there, he did it.’

* * *

The Government mentioned in this case a Harry Mizok who

was charging three percent for cashing big checks. That would

be $90 for a $3,000 check. They didn’t call him to the stand,

but Schoenneman said that this is what he did and he is a de-

fendant.

SR ists tea a ONO Smet ”

ROE OOM EI a: cn A i

BLEED THROUGH

avr

a

App. 31

this trial tactic despite government objection. Bastone’s

counsel necessitated a response by government counsel

seeking to fairly explain the alleged weaknesses in the

government’s case. Under this circumstance, where there

is an invited response, such comments have been previous-

ly approved by this court. United States v. Nowak, 448

F.2d 134, 140-141 (7th Cir. 1971) ; United States v. Lawlor,

413 F.2d 622 (7th Cir. 1969) ; United States v. Wright, 309

F.2d 735, 736-9 (7th Cir. 1962).

Accordingly the defendants’ convictions are affirmed.

AFFIRMED.

A true Copy:

Teste:

ewe e eee w ween eneeeecoses

Appeals for the Seventh Circuit

App. 32

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

February 12, 1976.

Before

Hon. JOHN S. HASTINGS, Sr. Cireuit Judge

Hon. WILBUR F. PELL, JR., Circuit Judge

Hon. WILLIAM J. BAUER, Circuit Judge

Nos. 75-1417, 75-1429

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vs.

CARMEN BASTONE and ARTHUR VEAL,

Defendants-Appellants.

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

(74 CR 383)

On consideration of the petition for rehearing and

suggestion that it be reheard en banc filed in the above-

entitled cause, no judge in active service having requested

a vote thereon, nor any judge having voted to grant the

suggestion, and all of the members of the panel having

voted to deny a rehearing,

IT IS ORDERED that the petition for rehearing in the

above-entitled cause be, and the same is hereby, DENIED.

’ BLEED THROUGH

PROFS RTI SWE IN PSG EU Seo! Gu Ro UZ el I Bay AIRE MR MELT SES NLS BS RGR TRS FURR IRE

App. 33

APPENDIX C

Requested Defense Instructions Pertaining to

Multiple Conspiracies Issue

‘The Defendants are accused of conspiracy to trans-

port in interstate commerce stolen trailers of a value

of $5,000 or more. That conspiracy is charged by the

indictment to have started in 1968 and to have con-

tinued to December, 1972. That is the only charge

for which the Defendants are on trial. You should

not convict these Defendants, or any of them, if such

a conspiracy is not proven beyond a reasonable doubt.’’

(Def. C. Bastone’s Inst. 18)

‘‘By the Indictment and Bills of Particulars filed by

the Government in this case, the Government charges

that a single criminal conspiracy existed among all de-

fendants and alleged unindicted co-conspirators.

The Court instructs the Jury that if the Govern-

ment fails to prove beyond a reasonable doubt by

credible evidence the existence of the single criminal

conspiracy charged, or if you find that there were a

number of separate and distinct conspiracies or enter-

prises in which some but not all of the defendants or

others were involved, you must find the defendants not

guilty.

Proof of separate, distinct and independent con-

spiracies involving various of the defendants or proof

of separate, distinct and independent conspiracies in-

volving various of the alleged objects of the specific

conspiracy charged is not proof of the single criminal

conspiracy charged. The period of the existence of

the single criminal conspiracy charged, if you find that

it existed is to be determined from the evidence.”’

(Def. S. Bastone’s Inst. Q)

‘‘This indictment charges one single conspiracy.

If you find on all of the evidence that one single con-

spiracy has not been proved, but instead the evidence

App. 34

shows two or more separate, distinct and independent

conspiracies, or separate independent crimes without

mutual agreement of the charged defendants and named

co-conspirators, then in that event you must find that

the indictment has not been proved and that all of the

defendants are not guilty.’’ (Def. McMahon’s Inst. 42)

‘‘Tf the evidence shows that some of the defendants

were engaged only in one conspiracy while other defen-

dants were engaged only in another conspiracy, then

you must acquit all deefndants.’’ (Def. McMahon’s

Inst. 43)

‘*All of the defendants must be acquitted if more

than one conspiracy has been proven.’’ (Def. Mc-

Mahon’s Inst. 44)

It should be noted that requested defense instructions

were mutually cross-adopted. (Tr. 2228)