Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 CR 15 - James B. Moran, Judge.
BEFORE: WOOD and FLAUM, Circuit Judges, and GRANT, Senior District Judge.*fn*
Defendant Paul DiCaro appeals his conviction following a jury trial on one count of engaging in racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) (1982),*fn1 and one count of interfering with interstate commerce by committing an armed robbery in violation of the Hobbs Act, 18 U.S.C. § 1951 (1982).*fn2 For the reasons set forth below, we reverse the conviction on the RICO count, but affirm the conviction on the Hobbs Act count.
The events leading up to DiCaro's convictions, insofar as they are relevant to our resolution of this appeal, may be briefly recounted. DiCaro was indicted under section 1962(c) of RICO based on his alleged commission of a series of seven predicate criminal acts between September 1970 and January 1978, including four actual or attempted armed robberies, two thefts, and an attempted murder. The most recent of these acts, the armed robbery of a grocery store in Chicago known as Halsted Foods Center, Inc. ("Halsted Foods") on January 19, 1978, served as both a predicate act on the RICO count and as the exclusive basis for liability on the Hobbs Act count. The RICO count charged DiCaro with conducting the affairs of an "enterprise," the enterprise being DiCaro himself, through a "pattern of racketeering activity," the pattern being the series of seven predicate acts. In essence, DiCaro was indicted and tried under RICO on the theory that he had conducted his own affairs through a pattern of racketeering activity.
DiCaro was tried jointly with co-defendant Michael Gurgone, who was charged only on the Hobbs Act count for his alleged involvement in the Halsted Foods robbery. The evidence offered by the government to prove the defendants' involvement in the Halsted Foods robbery, like that offered to prove DiCaro's participation in the other crimes, consisted principally of testimony from accomplices who had also participated in the robbery. The government's first witness was David Willis, who testified that those involved in the robbery included himself, DiCaro, Gurgone, and two others named Joe Zito and Ronald Brown. Willis testified that on the night of the robbery, he, Zito, and a woman named Luanne Walz met outside Halsted Foods and watched from Zito's car as the night janitor arrived and was locked inside the store by the manager. The three then left and drove to Walz's house, where they met Brown and picked up ski masks for Willis, Zito, and Brown. Willis, Zito, and Brown then drove back to Halsted Foods in a car that Willis and Brown had previously stolen.
Upon arriving at Halsted Foods, Willis helped Brown climb a telephone pole located next to the store, and then returned to the car where he and Zito watched the janitor working inside the store. Meanwhile, Zito communicated with Brown by walkie-talkie, and Willis listened to a police scanner. A few minutes later, Willis and Zito went to the back of the store, where Brown let them in though the back door. Once inside, Brown gave Willis a gun and told him to guard the janitor, who had been handcuffed and tied to a chair in the back room of the store. While he was watching the janitor, Willis saw Zito enter the store with two other men who were wearing masks and carrying two tanks and a hose.*fn3 These three men then joined Brown in the front of the store, where the store's office and safes were located. Willis then smelled something burning, and heard a "crackling, popping noise" emanating from the office. At some point thereafter, the noise stopped, and the men came into the back room where Willis was guarding the janitor. While they were in the back room, Willis heard one of the men ask Zito if Willis "was okay," and Zito said yes. The men then took their masks off. In court, Willis identified two of the men who had taken their masks off as the defendants DiCaro and Gurgone. The men thereafter went back to the front of the store, whereupon Willis heard some more crackling and popping sounds. Finally, Willis left the store with Zito and Brown, and ultimately went back to Luanne Walz's house, where they divided up the cash taken from the store.
As corroboration for Willis's testimony, the government sought to call as a witness Ronald Brown, who had twice before implicated DiCaro and Gurgone in the Halsted Foods robbery in sworn testimony before federal grand juries. In a voir dire conducted in the jury's absence, however, Brown stated his intention to invoke the Fifth Amendment with respect to the Halsted Foods robbery and several other crimes. At the government's request, the court then issued an order granting Brown use immunity for his testimony, and also appointed an attorney to advise Brown concerning his obligations under the order. After consulting with Brown, appointed counsel reported to the court that Brown claimed a lack of memory and that he still planned not to testify notwithstanding the immunity order. The court therefore held another voir dire, wherein Brown testified to a lack of memory concerning the events underlying his prior grand jury testimony. Brown also stated that as he was testifying he was under the influence of valium, and that he had been given three doses of valium per day while being housed during the trial at the Metropolitan Correctional Center ("M.C.C."). At the conclusion of this voir dire, the court requested that the government obtain the records of Brown's medical treatment at the M.C.C.
During the next day of trial, the court conducted a final voir dire of Brown, during which Brown testified that he suffered from amnesia as to anything that occurred prior to March 29, 1983. Brown stated that on that date he was arrested at a laundromat by police officer who pointed six shotguns and a pistol at his head and threatened to kill him. The court questioned Brown about a medical report indicating that on May 5, 1983, he told a doctor at the M.C.C. about a gunshot wound that Brown had suffered in 1973. Brown admitted that he had told a doctor that he was short but testified that he could not remember when he was shot. After this voir dire, the court found from its questioning and observation of Brown that he had falsely claimed amnesia.
Based on this finding, the court concluded, over the vigorous objections of defense counsel, that the government could introduce Brown's prior grand jury testimony as part of its case-in-chief. The court reasoned that Brown's feigned lack of memory concerning the incidents that he had previously described to the grand jury was inconsistent with his prior testimony recounting these incidents, and thus that his grand jury testimony was admissible substantively as a prior inconsistent statement under Rule 801(d) (1) (A) of the Federal Rules of Evidence.
Before Brown's prior testimony was introduced, however, he was called to the stand and questioned by both the government and the defense in front of the jury. The government initially laid a foundation for introducing the grand jury testimony by conducting a direct examination of Brown in which he answered "I don't remember" to each of the prosecutor's questions about both the grand jury testimony itself and the underlying events recounted therein. Defense counsel also conducted a cross-examination of Brown, during which he testified among other things that the incident on March 29 had so upset him as to cause him to suffer amnesia, that he had been threatened by federal government agents, and that he remembered previously participating in the Federal Witness Protection Program.
The judge then read to the jury certain portions of the transcripts of Brown's testimony before federal grand juries on September 12, 1979, and September 22, 1982. In this testimony, Brown had offered a description of the Halsted Foods robbery that closely resembled Willis's description in his testimony at trial, although Brown had added some additional details that Willis might not have been in a position to observe. According to Brown's testimony, he entered Halsted Foods on the night of the robbery by cutting a hole in the roof and then dropping down inside the store. Brown then handcuffed the janitor in the store and put something over his head so he could not see. Brown stated that Willis's job during the robbery was to watch the janitor, while DiCaro's and Gurgone's job was to open the store's safe. The safes were opened with the use of torches and acetylene tanks that Brown, DiCaro, and Gurgone brought into the store. Finally, Brown testified that the robbery lasted about six to seven hours and netted about $3,000, which was later divided among the participants at Luanne Walz's house.
In addition to the Halsted Foods robbery, Brown implicated DiCaro in the armed robbery of a record company and the attempted armed robbery of a jewelry store. Brown also testified before the grand jury in 1982 concerning one of the crimes that DiCaro was charged with as a predicate act under the RICO count: the attempted shooting murder of Brown in June 1973. Brown did not implicate DiCaro in the crime, however, but rather named only Richard Mara and Anthony Gallichio as responsible for shooting him. At trial below, Mara testified for the government that DiCaro had ordered and planned the murder because he feared that Brown was cooperating with the police.
After the judge completed the reading of Brown's grand jury testimony, the judge permitted defense counsel to impeach Brown by reading from his testimony in unrelated hearings before a Cook County Circuit Court judge in September 1982 and a United States District Court judge in December 1980 and August 1981. In this testimony, Brown made a number of seriously impeaching admissions. Brown generally admitted to being a life-long burglar who had committed as many as fifty crimes that were not listed on his rap sheet as of August 1981. Brown also testified about his role as a confidential informant who provided tips to the government in return for money. Beginning in 1978, for example, Brown stated that on numerous occasions he gave "bogus" information to an F.B.I. agent in return to $10 payments, and that he did so in order to conceal his own criminal activities. Brown said that he entered the Federal Witness Protection Program in 1979 and that as a part of this program he received a total of $20,000 from the federal government over a three-year-period ending in 1982.
Beyond the cash payments, Brown also testified that as a result of his cooperation with the government he was not prosecuted for numerous crimes. Rather than having defense counsel read Brown's testimony on this point, the government stipulated before the jury below that Brown was not prosecuted for fifteen separate burglaries in exchange for his cooperation with the state and federal government. On the ultimate point of his character for truthfulness, Brown testified several times that prior to 1979, when he claimed that he was "reborn," he would have lied to help himself. Moreover, when he was asked in 1981 whether he would lie to help himself then, he replied, "I probably would."
The trial testimony of Willis and the grand jury testimony of Brown were the only evidence directly connecting DiCaro and Gurgone with the Halsted Foods robbery. The bulk of the government's case consisted of testimony concerning DiCaro's involvement in the other predicate acts charged under the RICO count. After the government rested, DiCaro's counsel called as witnesses only Anthony Gallichio, who testified that DiCaro was not involved in either the attempted murder of Brown or in the two thefts listed as predicate acts on the RICO count, and DiCaro himself, who denied involvement in any of the criminal acts that he was charged with.
The jury returned guilty verdicts against DiCaro on both the RICO and the Hobbs Act counts, but returned a not guilty verdict for Gurgone on the Hobbs Act count. The judge sentenced DiCaro to ten years imprisonment on the Hobbs Act count and five years probation on the RICO count to begin after his release from confinement.
On appeal, DiCaro presents separate arguments for reversing each of the two convictions. With respect to the RICO conviction, DiCaro contends that he could not be properly convicted as both the defendant and the enterprise under section 1962(c) of RICO, and that the evidence was insufficient to prove either that he committed the predicate acts charged or that these acts constituted a discernible "pattern of racketeering" under RICO. As to the Hobbs Act count, DiCaro argues that the court's admission of Brown's prior grand jury testimony violated both the Federal Rules of Evidence and his Sixth Amendment right to confrontation, that the evidence was insufficient to prove his participation in the Halsted Foods robbery, and that the ...