Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 74 CR 383 THOMAS R. McMILLEN, Judge.
Hastings, Senior Circuit Judge, Pell and Bauer, Circuit Judges.
Defendants-appellants Carmen Bastone and Arthur Veal were charged under 18 U.S.C. § 371, along with eighteen other defendants,*fn1 with conspiracy to transport and cause to be transported in interstate commerce stolen semi-trailers of a total value in excess of $5,000, in violation of 18 U.S.C. § 2314.*fn2 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*fn3 was outlined to Bastone by Schoenneman whereby forty-foot semi-trailer vans would be stolen from railroad yards and truck docks and then taken to so-called "cleaners", who would remove from the trailers all identifying items such as signs, lettering and public identification, in addition to obliterating serial numbers variously hidden about the trailer. In some cases, the trailers would 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 conform 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 trailer 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 Equipment Co. and cleaned them for resale. He further arranged to purchase junk trailers from United Parcel Service in order to obtain title certificates to be used on the stolen trailers. Old trailers and junk titles were also purchased 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 PROSECUTION WITNESS SCHOENNEMAN AND DEFENDANT BASTONE WERE PROPERLY ADMITTED.
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 Schoenneman 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 evidence, 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 conversation 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 despite the other party's objection. See Rathbun v. United States, 355 U.S. 107, 111, 2 L. Ed. 2d 134, 78 S. Ct. 161 (1957); Carnes v. United States, 295 F.2d 598, 602 (5th Cir. 1961); United States v. Martin, 372 F.2d 63, 65 (7th Cir.), cert. denied, 387 U.S. 919, 18 L. Ed. 2d 972, 87 S. Ct. 2033 (1967).
The essential question here is whether or not Schoenneman gave his consent to recording the conversations. The appellant argues that the trial court ignored the realities of the situation which indicated that Schoenneman only purported to consent to the interception and recording. He cites the decisions of Weiss v. United States, 308 U.S. 321, 330, 84 L. Ed. 298, 60 S. Ct. 269 (1939); United States v. Laughlin, 223 F. Supp. 623 (D.D.C. 1963); and United States v. Napier, 451 F.2d 552 (5th 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 involuntary.
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 conversations 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 Schoenneman 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, Schoenneman was receiving no compensation, lived at his home, was never arrested, restricted, nor was he under surveillance. 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 executed advice of rights and consent to monitor forms, personally executed by Schoenneman before each conversation.
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 because 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, 140 U.S.App.D.C. 70, 433 F.2d 1176, 1180 (1970), cert. denied, 402 U.S. 950, 29 L. Ed. 2d 120, 91 S. Ct. 1613 (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. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964); Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The cases cited by Bastone in support of his focus contention 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 custody or otherwise deprived of his freedom of action in any significant way" (Miranda, 384 U.S. at 444). When Bastone made the admissions during the telephone conversation he was neither in custody nor deprived of his freedom, nor was he being interrogated by law enforcement officers.
Simply because Schoenneman was operating as a government informant does not make the content of the telephone conversations inadmissible. The Fourth Amendment 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, 28 L. Ed. 2d 453, 91 S. Ct. 1122 (1970); Hoffa v. United States, 385 U.S. 293, 17 L. Ed. 2d 374, 87 S. Ct. 408 (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 executive and an attorney willing to prepare a fraudulent certificate 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 admission and actions were not the consequence of inherent compulsion because the agents had assumed undercover identities. Therefore, Gardner was "not confronted with governmental 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 governmental authority. Therefore Bastone had no right to receive Miranda warnings at the times in question.*fn4
Bastone next asserts that even if the telephone conversations were admissible they operated to deny him a fair trial because the court refused to excise certain prejudicial 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 explanation of the slang terms was clearly within the purview of the trial court's discretion. In such an instance we believe that a reversal should not occur unless there is manifest 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.
II. 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 and the jury may have considered against the defendants evidence pertaining 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 regarding certain evidence.
The benchmark and controlling decision on the question of a single conspiracy being charged and multiple conspiracies being proven is Kotteakos v. United States, 328 U.S. ...