Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 82 CR 227-1 and 82 CR 227-2 -- James B. Moran, Judge.
Pell and Coffey, Circuit Judges, and Neaher, Senior District Judge.*fn*
The defendants, Burton and Ryder, appeal their convictions by jury trial of conspiracy to commit mail and wire fraud and to travel interstate to commit arson, 18 U.S.C. §§ 371 and 1952(a)(3), and of mail fraud and wire fraud. 18 U.S.C. §§ 1341 and 1343. The defendants appeal the denial of a number of motions made before and during the joint trial.
First, Burton moved to sever his case from that of Ryder, his co-defendant. Second, Ryder moved to suppress taped conversations on the ground that the taping violated his Fifth Amendment right against compelled self-incrimination. Finally, both defendants objected unsuccessfully to the modified missing witness instruction given by the court below and to the related rebuttal argument of the prosecutor. The defendants reassert the same claims on appeal. The essential facts are not in controversy. To the extent that there is disagreement as to the subsidiary facts, we must view the evidence in the light most favorable to the Government, the prevailing party below. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942).
Burton owned a large power boat. He stored the boat in a Racine, Wisconsin marina every winter. By the spring of 1980, he owed the marina $4,000 for storage fees and related services. Faced with growing financial difficulties, Burton decided to sell the boat. The escalation in fuel costs, however, had severely depressed the market for large power boats. Despite the fact that he had invested nearly $50,000 in the boat, which was also the amount of insurance coverage he had, the only offer he secured was for $22,500.
Burton made contact with Kinnie, who was then a paramedic in Chicago. Kinnie, in turn, got in touch with Ryder, a captain in the Chicago Fire Department. The three men met. Burton told them that, because he needed money, he wanted them to burn his boat, for which they would receive $2,500. The three men developed, and subsequently executed, a detailed plan to assure rapid processing of the insurance claim. A few days later, Burton and Kinnie went to the marina in Racine. Burton told the owner of the marina that there was a potential buyer for the boat and asked the owner to allow Kinnie access to the boat to prepare it for sale.
The fire occurred during the evening of May 29, 1980. That morning, Kinnie and Burton had met and discussed the details with a mutual acquaintance, Reginal Williams. Kinnie then drove Williams' car to Racine, where he worked on the boat until approximately 4:45 p.m. That evening, a time-delayed fire was started. The fire was to begin late that night, but due to a malfunction in the device, it began around 9:00 p.m. when there were still bystanders near the marina. The bystanders summoned firefighters. Consequently, the fire failed to destroy the boat completely. The next day Burton submitted an insurance claim.
Suspicion soon centered around the man whom witnesses had seen working on the boat that afternoon. Nobody except Kinnie had seen Ryder there. An investigator for the Racine Fire Department phoned Burton at about 1:00 a.m. on May 30, 1980, to inform him of the fire. Burton told the investigator that Kinnie had worked on the boat. Burton and Williams then drove to inspect the damage. Several days later, Burton, Ryder, and Kinnie met to discuss the consequences of the fire. Throughout the 1980 summer, Burton continued to press the insurance company for the settlement of his claim.
The Racine investigator called the Chicago Fire Department for information about Kinnie and Burton. Ryder, then in the Internal Affairs Division, managed to get himself assigned to the investigation. It is a reasonable inference from the evidence that he thereafter attempted to impede the Racine authorities' investigation by not responding to inquiries.
In February, 1981, Chicago police arrested Kinnie on unrelated charges. Kinnie then gave a statement to the FBI in which he admitted his own involvement in the arson and implicated Ryder and Burton. In response to a grand jury subpoena, Ryder appeared on June 4, 1981, at the FBI office in Chicago, where the Government took fingerprints, handwriting exemplars, and photographs. At that time, the FBI asked Ryder if he wished to make a statement. Ryder, whose counsel appeared with him, declined and invoked his Fifth Amendment right to remain silent.
By July of 1981, Kinnie had agreed to cooperate with the Government. On three occasions between July and September, 1981, Kinnie wore a concealed recording device supplied by the FBI with the prosecutor's approval. The purpose of the surveillance was to record statements Ryder might make about the arson. Ryder made no mention of the Racine incident during the first two meetings. At the third meeting between Ryder and Kinnie, however, Ryder made a number of incriminating references to the boat-burning. In March, 1982, the federal grand jury returned a six-count indictment against Burton, Ryder, and Kinnie.
The day before the trial of the three defendants, Kinnie agreed to plead guilty to two counts of the indictment. In exchange for his testimony, the prosecution agreed to make no sentencing recommendation with respect to his conviction.
Counsel for Burton made a pretrial motion to sever his case from that of his co-defendants. Counsel did not allege that the cases were improperly joined. Rather, he asserted that admission of the tapes made from the conversations between Ryder and Kinnie would deprive Burton of a fair trial. The portion of the taped conversations admitted at trial included only one reference to Burton. Ryder stated: "I guess Archie didn't say anything. See Archie won't even admit that he, that he knows me." The court denied the motion at the end of the trial without stating its reasons.
Burton does not rely on Rule 8 of the Federal Rules of Criminal Procedure, that there was an improper joinder of the charges against him with the charges against Ryder. Indeed, while improper joinder requires mandatory severance, United States v. Spector, 326 F.2d 345 (7th Cir. 1963), if a defendant fails to present a motion to sever explicitly based on misjoinder, he cannot raise the misjoinder issue on appeal. United States v. Hedman, 630 F.2d 1184, 1200 (7th Cir. 1980), cert. denied, 450 U.S. 965, 67 L. Ed. 2d 614, 101 S. Ct. 1481 (1981). Nothing in the record suggests that the joinder here was improper. We will treat the motion as one coming under Rule 14 of the Federal Rules of Criminal Procedure, Burton's claim being that the use of the tape in a trial in which he was a party would be unduly prejudicial to him, the evidence assertedly being inadmissible as to him.
The decision whether to grant a defendant's motion for severance in a multiple-defendant trial rests in the discretion of the trial judge. A reviewing court will not set aside the trial judge's decision absent a showing of a clear abuse of discretion. Opper v. United States, 348 U.S. 84, 94-95, 99 L. Ed. 101, 75 S. Ct. 158 (1954); United States v. Papia, 560 F.2d 827, 840 (7th Cir. 1977). To determine whether a joint trial is consistent with a defendant's right to a fair trial, we must consider whether the jury would be able to keep separate any evidence relevant to less than all the defendants. United States v. Kahn, 381 F.2d 824, 839 (7th Cir. 1967), cert. denied, 389 U.S. 1015, 88 S. Ct. 591, 19 L. Ed. 2d 661. As we have noted previously: "There is, moreover, a strong policy in favor of joint trial 'where the charges against all the defendants may be proved by the same evidence and results from the same series of acts.'" United States v. McPartlin, 595 F.2d 1321, 1322 (7th Cir. 1979) (quoting United States v. Cohen, 124 F.2d 164, 165 (2d Cir. 1942), cert. denied, 315 U.S. 811, 62 S. Ct. 796, 86 L. Ed. 1210), cert. denied, 444 U.S. 833, 100 S. Ct. 65, 62 L. Ed. 2d 43.
Burton argues that there was no evidence that the conspiracy continued through the time of the recordings. If so, the conversation would not be admissible against Burton although admissible against Ryder. On the other hand, if the conspiracy was a continuing one, the conversation of Ryder, a co-conspirator, would be admissible against Burton. Here, the purpose of the conspiracy was to collect for Burton the proceeds of the insurance money. One aspect of the continuance arose from the fact that the money could not be collected if investigation demonstrated an arson attributable to Burton. Ryder's impeding that investigation served to hedge against that development. Primarily, of course, as long as Burton's claim continued, and it was never satisfied or withdrawn, the conspiracy continued, in law, to exist.
This court has recently addressed a similar issue in United States v. Xheka, 704 F.2d 974 (7th Cir. 1983), cert. denied, 464 U.S. 993, 104 S. Ct. 486, 78 L. Ed. 2d 682, 52 U.S.L.W. 3422 (U.S. 1983). The Xheka brothers arranged to have their restaurant destroyed by a man named Howard. Six months after the fire, the Xhekas sued their insurance company for $800,000, but had not collected before their criminal case went to trial. The Government introduced a tape of a conversation between Howard and a subsequently acquitted co-defendant of the Xhekas. The conversation occurred three years after the fire. In that conversation, Howard, who was cooperating with the Government, elicited information incriminating to the Xhekas. The brothers cited, as does Burton here, two cases in support of their argument that any conspiracy that they ...