Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 84 CR 304, William T. Hart, Judge.
Before WOOD, JR., and POSNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
WOOD, JR. Circuit Judge. Were this attempted murder case not so serious, a recitation of some of its facts might suggest a Marx Brothers skit instead of a relationship to organized crime.
On April 11, 1984, defendants Richard Guzzino and Robert Ciarrocchi were charged with conspiracy to deprive a United States citizen of his right to provide information and testify as a witness in a judicial proceeding, in violation of 18 U.S.C. § 241 (1982) (Count I),*fn1 obstruction of justice, in violation of 18 U.S.C. § 1503 (1982) (Count II),*fn2 and use of a firearm in the commission of a felony, in violation of 18 U.S.C. § 924(c)(1) (1982) (Count III).*fn3
After a jury trial defendants Guzzino*fn4 and Ciarrocchi were convicted of all three counts.*fn5
On appeal defendants argue three issues: (1) whether the evidence was sufficient to establish that this bungled murder attempt involved federal crimes; (2) whether the evidence was sufficient to show defendants' knowledge and intent to commit the charged crimes, and (3) whether certain evidentiary trial rulings were erroneous. We affirm.
This is the story of a "mob" -related but unsuccessful conspiracy to kill Alfred Pilotto. Participants in the conspiracy included the two defendants and also Sam Guzzino, now deceased brother of defendant Richard Guzzino, and Daniel Bounds. Sam Guzzino, who died prior to the return of the indictment, and Bounds were named as co-conspirators but not as defendants. Bounds testified as the government's principal witness.
Pilotto, a high-ranking official of the Laborers' International Union, was indicted June 3, 1981, in the southern District of Florida along with Anthony Accardo, the reputed head of the Chicago organized crime family, and fourteen other defendants. All were charged with conspiracy to conduct the affairs of an enterprise through a pattern of racketeering activity (RICO), specifically, for receiving a two million dollar kickback from union insurance programs, in violation of 18 U.S.C. § 1962(d) (1976). See United States v. Accardo, No. 81-230-CR-ALH (S.D. Fla. June 3, 1981).*fn6 The Accardo defendants were arraigned on June 19, 1981, pleaded "not guilty," and the court set trial for Monday, July 27, 1981. The facts of the present case, set primarily in Chicago, Illinois, intervene in the Accardo case time sequence. On July 25, 1981, two days before the date set for trial, Bounds, aided by coconspirators Sam Guzzino, Richard Guzzino and Ciarrocchi, shot and wounded, but did not succeed in killing Pilotto.
This intervening Illinois factual situation demonstrates that in some circles golfing is very serious business. It appears that you cannot always trust the other members of your foursome, not just because they may fudge a little on their scores, but because one of them may have you murdered before the game is over.
This story, strenuously attacked by defendants, was revealed to the jury largely through the testimony of unindicted coconspirator Daniel Bounds. The defendants, Richard Guzzino and Robert Ciarrocchi, did not actually pull the trigger on the eighth tee at the Lincolnshire Country Club in Will County, Illinois, but they were important accessories. Sam Guzzino "masterminded" the murder effort. Sam Guzzino was the brother of Richard Guzzino and the former father-in-law of Bounds, a cab driver, whom he hired to murder Alfred Pilotto. prior to these events, Bounds had been married to Sam Guzzino's daughter and fathered a child, who after the Boundses' divorce was in the custody of the mother.
On July 17, 1981, Sam Guzzino and Bounds were alone when Sam advised Bounds he had a job for him - murder. Bounds reluctantly accepted the assignment, induced by Sam's assurances that he would make it easier for Bounds to visit Bounds's daughter, and that, in addition, there would be certain financial benefits. Sam also promised a down payment of $2,000, plus a weekly stipend and a job at one of his several businesses. Bounds's decision to accept this assignment may have been slightly influenced by Sam's pointed reference to the way these matters are customarily handled if, after a friendly discussion of the job, the recruit hesitates. Sam explained the remedy for hesitation. "Now [that] you know about the hit coming down," he said, "I can't guarantee how long you're going to live." Sam also admitted that he personally stood to gain "millions" from it. The hit was to be accomplished "soon," but Sam declined to identify the victim because, as he explained, "the least [Bounds] knew about it . . . the better off [he was]."
The following morning Bounds, Sam Guzzino, and defendant Richard Guzzino met at Sam's cab company where Bounds was employed. Defendant Guzzino mentioned that he had heard Bounds had been picked for the job and expressed his confidence in Bounds, adding that he himself was "too fat" to handle it although he would "love" to do it. He further assured Bounds of the many benefits that would result. Bounds, however, was kept in the dark about who the target was or when it would take place.
That afternoon at the cab company Bounds again met with Sam Guzzino and defendant Guzzino. They were joined by defendant Robert Ciarrocchi, who turned out to be the "weapons man." They all got in Sam's car an drove to a rural area in Will County to determine if Bounds knew how to shoot, a basic qualification of the job. Ciarrocchi extracted a rifle from a golf club box,*fn7 adjusted the telescopic sight, and fitted a silencer to the end of the barrel. Ciarrocchi fired at a small sign and hit it. Sam complained that the rifle was too loud. Defendant Ciarrocchi conceded he needed to do a little more work on it. Bounds then fired at the sign and missed it. When they all inspected the target, they discovered that Ciarrocchi's shot, although right on the mark, merely dented the sign without penetrating it. Sam again complained and defendant Ciarrocchi again conceded that the rifle needed more adjusting. He assured Sam that the rifle would be ready on time.
Returning from the unsuccessful target practice, they drove by the country club to look it over, not for golf, but for murder. Sam pointed to the eighth tee, but added that that location would require the use of a handgun, not the rifle. Another tee they examined would permit use of the rifle, Sam thought, from a concealed area across the street. Bounds wondered why the intended victim's golf game should be interrupted. Sam satisfied Bounds's curiosity by explaining that Will County, in which the country club was located, was a dumping ground for the mob because the county had no money to investigate mob assassinations. Defendant Ciarrocchi, his rifle now back in the golf club box, was dropped off elsewhere, but Bounds and the two Guzzino brothers drove back to the country club for another look. Sam Guzzino advised that he was going to Las Vegas for a few days, but in the meantime Bounds and defendant Guzzino were to work out the details. Sam made one more suggestion. Bounds, he said, might use a bicycle to escape after the shooting. Bounds was not very enthusiastic about that novel idea.
Nevertheless, the next day defendant Guzzino, driving his blue Eldorado Cadillac, picked up Bounds and told him they were going to buy him a bicycle. They drove to a residence where there was a sign nailed to a tree that announced "Bikes for Sale." Bounds approached the house and inquired about buying a bicycle. He was shown an old repainted ten-speed bicycle priced at $20. Bounds went back to the car and defendant Guzzino gave him $20 to pay for the bicycle. They then loaded this bicycle into the trunk, picked up Sam Guzzino at the cab company, and drove out to the eighth tee for a practice bicycle ride to some intended rendezvous point. Bounds tried to ride as fast as possible, but as the gears and chain kept slipping they gave up on that idea. Bounds retired the bike to his basement, no doubt to his great relief.
Bounds' marksmanship obviously left something to be desired so on the morning on July 20, defendant Guzzino, Ciarrocchi, and Bounds drove to a dump area in Will County for more practice. Ciarrocchi pulled a .45 caliber automatic pistol and a .357 magnum revolver from a brown paper sack. The dump "Keep Out" sign was designated as the target. Bounds was praised for ...