Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 CR 465 -- John A. Nordberg, Judge.
Cummings, Chief Judge, Coffey, Circuit Judge, and Henley, Senior Circuit Judge.*fn*
HENLEY, Senior Circuit Judge.
Robert Covelli, David Frederick and Darwin Murray were convicted of various violations of federal law arising out of the robbery of a Chicago coin and jewelry shop and the subsequent disposition of the stolen goods in several different states. Specifically, under the Hobbs Act, 18 U.S.C. § 1951, Covelli was found guilty of committing robbery by means of force and violence. Along with codefendants Frederick and Murray, Covelli was also found guilty of transporting stolen goods in interstate commerce and with conspiracy to transport the stolen merchandise. See 18 U.S.C. §§ 2314, 371. In addition, Murray was convicted of making false and material declarations before a federal grand jury under 18 U.S.C. § 1623.
All three defendants appeal their convictions raising a variety of issues. Covelli contends that certain evidence should have been suppressed by virtue of his alleged unlawful arrest and detention by Seattle, Washington police. He also attacks certain evidentiary rulings made by the district court, contends that the government used impermissible closing argument, and challenges the sufficiency of the evidence in relation to his Hobbs Act conviction. Frederick and Murray make similar sufficiency of the evidence contentions with regard to their convictions. They assert that there is no theory of accomplice liability which can be used to properly convict them of the crime of transporting stolen goods from Illinois. Murray also contends that the count which charges false declarations before a grand jury is not specific enough and that the district court should have granted a mistrial when the government violated a court order. We affirm in part and reverse in part.
On January 2, 1982 Princeton Auction Galleries, Ltd. (PAG), a jewelry store and coin shop located in Elmhurst, Illinois, was robbed of approximately $380,000.00 worth of jewelry, coins, and cash.*fn1 PAG's co-owner, Cynthia Princeton, was killed during the robbery. She was shot four times in the head, three times with a .25 caliber weapon and once with a .38 caliber weapon. The murder weapons were never found.
Robert Covelli, a "frequent" customer of PAG, came into the store near closing time three times during the week before the robbery. On each occasion he stayed only a short while and made no purchases. There was testimony that Princeton suspected Covelli of stealing jewelry from PAG. During the week before the robbery Princeton told several of her friends about her suspicions, and in the early afternoon of January 2, 1982 Princeton told Michele Gianola and Diana Louik that she was to meet with Covelli later in the afternoon to discuss the purchase of a diamond.*fn2
The last known live contact with Princeton before the killing was a telephone call at approximately 4:30-4:45 p.m. on January 2. At approximately 5:20 p.m. a customer of the shopping center across the street from PAG noticed some coins behind her car and called the police. The police followed a trail of coins from the shopping center parking lot to PAG where they found Princeton's body lying behind a display counter. PAG's guard dog was found unharmed and cowering in a back office. From the location of the empty cartridges and the blood pattern, a "blood splatter" expert testified that the gunman shot Princeton while standing in a hallway behind the display cases. There was testimony that Robert Covelli was one of only a few persons who could go behind the display counters without being attacked by the dog.
At approximately 6:15-6:30 p.m. on the day of the robbery/murder, Robert Covelli entered Uncle Don's Saloon in Chicago and was subsequently joined by his brothers, Scott and Michael. Covelli purchased some cassette tapes from the bartender and paid for them in cash. The bartender testified that Covelli pulled out a large roll of $100 bills and that Covelli stated that he had about $4,000.00 to spend and that he was going to Las Vegas. At approximately 8:30 p.m. Robert and Scott Covelli went to their parent's home and told their mother that they were going out of town. Neither of the men took any clothing or luggage with him and neither told the family where he was going. At about 11:00 p.m. that night, using reservations made in the names of R. Frederick and S. Frederick, the two brothers took a United Airlines flight from O'Hare Airport to Seattle, Washington. Before leaving, however, Robert Covelli called Detective Schak of the Chicago Police Department. Covelli had previously testified for the state in a homicide trial. Schak testified that Covelli asked him what the defendant in that case had received as a sentence.
Digressing for a moment, David Frederick's contact with Robert Covelli will be mentioned. Frederick was a friend of Covelli's who lived in Pasco, Washington. Telephone records established that, during the week before the robbery, collect calls were placed from bars frequented by Covelli to Frederick's home in Pasco. Similar calls were also made at about noon and 10:05 p.m. on the day of the robbery. There was no evidence as to the contents of any of these conversations.
The Covellis arrived in Seattle, Washington at approximately 1:00 a.m. on January 3. A telephone call to Frederick's residence was made at about 1:30 a.m. from a coin phone at the motel where the Covellis spent the night. Another call was made to Frederick's home the next morning from the airport in Seattle.
While at the Seattle Airport Robert Covelli went into a store and purchased some clothing with three $100 bills. The store clerk suspected that one of the bills was counterfeit and called the police.*fn3 Covelli approached one of the officers investigating the alleged counterfeit currency and asked the officer for directions. Since Covelli matched the description given by the store clerk, the officer asked Covelli about an event that occurred in the clothing store. Covelli responded "What's wrong? Was the money bad?" even though the officer had not mentioned money. At that point Covelli was taken into custody, strip-searched, and placed in a cell. Covelli consented to a search of his luggage and, in the course of the search, the officers observed coins, rolls of coins, and a large amount of jewelry. In addition, $4200.00 in $100 bills and other jewelry matching items stolen from PAG were found on his person. Before the search of the luggage was completed, however, the officers were notified by the Secret Service that the bill in question was not counterfeit. The officers then returned Covelli's possessions and released him. Thereafter, the Covellis flew to Pasco, Washington and went to David Frederick's residence.*fn4
The defendant Darwin Murray is a friend of Frederick's who lives in a town near Pasco. Murray's first contact with Robert Covelli was in October of 1981 when Frederick introduced him to Covelli in Pasco. Covelli offered to pay all expenses if Murray would fly the group to Reno, Nevada to do some gambling. Subsequently, Frederick, Covelli, Murray and his wife flew to Reno in Murray's airplane and spent a few days gambling. Murray testified that thereafter he did not see Covelli until the first week in January, 1982.
Murray testified before the grand jury that Frederick contacted him in early January, 1982 regarding flying to a football game in San Francisco, California. He stated that he was asked by Covelli and Frederick if he knew anyone who would buy gold. Murray mentioned James David Poole. Poole is one of Murray's relatives who runs a jewelry business in Oakland, California. Poole testified at trial that Murray called him in the first week in January, 1982 and asked him if he knew anyone who would be interested in buying a large amount of jewelry. Murray told Poole that the jewelry came from a distress sale back East and was worth approximately $300,000.00 wholesale, but that they would be willing to take much less. Subsequent telephone calls to Poole regarding the sale of jewelry were made from Frederick's residence.*fn5
On January 8, 1982 Murray chartered an airplane and flew to Sacramento, California with Robert Covelli, Scott Covelli and David Frederick. Poole testified that Murray and Frederick called him several times asking him to get in touch with his buyer. Poole told them that the buyer was out of town and further efforts to sell the jewelry in Sacramento were unsuccessful. The next morning the group flew to Reno, Nevada where Murray's friend, Mead Walker, picked them up at the airport and drove them to a motel.
Walker testified that, while having a drink in the motel lounge, Frederick told him that Robert Covelli had some jewelry for sale that Covelli had acquired over a period of time as payment for brokerage fees. There is some dispute about whether Murray was a party to this conversation since, although all three were seated together, Murray was apparently watching a football game on the lounge television. The next morning Walker arranged a meeting between Robert Covelli, Frederick and Jay Ferguson, the owner of Jay's Jewelry. However, after seeing the jewelry and the way it was carried, Ferguson refused to go through with the purchase. Frederick allegedly told Ferguson, "It's hot, but it's not hot here." It appears that at least some of the jewelry was subsequently sold at a pawn shop in Reno.
The group then left Reno and flew back to Pasco, Washington that evening. Although Robert Covelli returned to Chicago, Scott Covelli remained in Pasco and sold four pieces of jewelry to a coin shop in Kennewick, Washington. Two of these pieces were identified as having come from PAG.
Murray was subpoenaed before a federal grand jury in February, 1982. Murray testified that the purpose of the flight to Sacramento was to go to a football game but that, when they were unable to get tickets, they decided to go to Reno to gamble. Murray testified that Robert Covelli carried a briefcase during the trip but that he was told it contained an antique. Murray stated he did not know what it contained since he never saw the inside of the briefcase. He further testified that there were no discussions regarding selling any jewelry on the trip.
On July 7, 1983 FBI Agent Shelton arrested Murray in Washington. Agent Shelton testified that after the arrest Murray stated that he had told the truth in his testimony before the grand jury. However, Murray admitted that he had initially contacted Poole in order to sell the jewelry, that he had opened Covelli's briefcase at one point during the trip and observed a sock loaded with ...