Decided September 5, 1986.*fn* Reheard February 18, 1987. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 84 CR 688, John A. Nordberg, Judge.
Cummings, Flaum and Ripple, Circuit Judges.
Musa "Moses" Sweiss was the manager and part owner of a Super Low grocery store in Chicago, Illinois. Sweiss was convicted of conspiring to destroy a competing grocery store and of attempting to obstruct the government's investigation of that crime. Sweiss appeals the district court's refusal to allow the jury to hear the first of two tape-recorded conversations between the defendant and one of the main prosecution witnesses. After examining the transcript of the conversation, we conclude that because of a decision made by defendant's counsel as to trial strategy, the district court did not abuse its discretion in refusing to admit the conversation at the time it was offered. We therefore affirm the district court's holding.*fn1
Moses Sweiss was indicted in September, 1984, on charges that he conspired with Bassam Faraj to commit arson and aided and abetted an attempted arson. Moses Sweiss was also indicted for assisting Bassam Faraj in his plans to flee the jurisdiction of the United States and for attempting to persuade a grand jury witness to retract or change his testimony against Sweiss. Moses Sweiss' defense at trial was that he was "framed" in order to "take the fall" for the true instigator of the conspiracy, his "millionaire uncle," Michael Sweiss, who was the controlling partner of the Super Low grocery store that Moses Sweiss operated.
Faraj, who was working as a butcher at the Super Low, asked a frequent customer by the name of William Franklin to "torch the One Stop" supermarket. That same day Franklin contacted the Chicago Police Department Bomb and Arson Hotline and told them that Faraj had offered him $1,500 to burn down the One Stop. Agents of the Department of Alcohol, Tobacco and Firearms ("ATF") outfitted Franklin with a hidden recording device that was then used to tape nine conversations that detailed Faraj's plans to destroy the One Stop. During Faraj's conversations with Franklin, Faraj never revealed the name of the person who had hired him, but referred to that person as "the man," "my uncle," and "one of my uncles." On one occasion, when Franklin walked into the Super Low, he saw Faraj speaking to Moses Sweiss. Faraj later said to Franklin that, "Man, I was inside, you know, talking to the man."
Faraj was arrested on May 3, 1984, and after hearing the tape-recorded conversations between himself and Franklin, Faraj named Moses Sweiss as the person for whom he was working. Faraj remained in custody until several members of the Sweiss family, including Moses Sweiss, posted a $15,000 cash bond. Three months later, Faraj called an ATF agent and told him that he wanted to talk to the government about Moses Sweiss. Faraj then agreed to wear a hidden recording device, and secretly recorded two conversations that Moses Sweiss was involved in, one on August 14, 1984, and the other on September 10, 1984. Faraj became a trial witness for the government.
The government introduced a transcript of the September conversation into evidence at Moses Sweiss' trial; however, the district court refused to admit a transcript of the August conversation which was offered by the defense after the prosecution rested its case. Both conversations were in Arabic. Both parties stipulated to the use of an English translation of the September conversation. During the September conversation, Faraj and Moses discussed how Faraj could flee to Mexico and how Faraj had been solicited to bomb the One Stop grocery store. Although Sweiss did not say anything in the conversation that directly incriminated himself, the government argued to the jury that his statements implicated him in the crime.
In his opening and rebuttal arguments the prosecutor stressed the importance of the September conversation. He told the jury that "the big evidence against Moses Sweiss is his own words" from the September tape. The prosecutor argued that the September conversation showed that: (1) Moses Sweiss had solicited Faraj to commit the arson; (2) by implication Sweiss admitted that the solicitation conversation occurred; and (3) because Sweiss knew the details of Faraj's plans to flee the country he was a participant in those plans. The government also argued that an individual named Adnan [Eddie] Al-Abbasi had witnessed the solicitation conversation. Abbasi was a key government witness. His testimony fully corroborated Faraj's and Franklin's testimony. Moreover, Abbasi testified that he witnessed Sweiss' offer of $5,000 to Faraj to destroy the One Stop. Abbasi also testified as to another conversation with Sweiss concerning the destruction of the One Stop.
The defense argues that the conversation recorded on August 14, 1984, shows that these contentions are not true. First, the defense argues that when Faraj initially told Sweiss during the August conversation that "everyone," including his "lawyer and all the Arabs," were pressuring him to name Moses Sweiss as the one who solicited Faraj to commit the arson, Sweiss clearly was shocked and strongly denied any involvement. Second, the defendant protests the prosecution's assertion that in the September conversation when Faraj mentioned a witness who would corroborate the solicitation conversation and Sweiss responded, "Do you mean Adnan?" (referring to Eddie Al-Abbasi's formal name) that this meant Sweiss knew of a witness. The defense argues that it was Faraj who volunteered Eddie as the corroborating witness, and that when he did, Sweiss did not know whom Faraj was talking about. The defense also argues that in the August tape-recorded conversation, when Faraj first told Sweiss he would say there was a solicitation conversation, Sweiss strongly denied that such a conversation had occurred. Finally, the defense argues that in the September conversation Sweiss had knowledge of Faraj's plans to flea the country only because Faraj had told Sweiss of his travel plans during the August conversation. Sweiss' defense was, therefore, partly based on a theory that the information concerning the bombing solicitation, and the escape that he discussed in the September conversation, were told to him by Faraj during the August conversation.
After the trial, the jury returned a verdict finding defendant Sweiss guilty on all four counts charged in the superseding indictment. Sweiss filed a motion for a new trial. The motion was denied and the court sentenced Sweiss to concurrent three year sentences on Counts I, II, and III, and five years probation on Count IV. The court also imposed a three thousand dollar fine. Thereafter, defendant Sweiss filed a timely notice of appeal.
On appeal, the defendant contends that the first transcript was admissible because the August 14th conversation contained therein: (1) was not hearsay; (2) was a prior consistent statement; (3) fell within the "state of mind" hearsay exception; (4) fell within the "residual" hearsay exception; or (5) was admissible in the interest of justice and the rule of completeness. We need not decide whether the August tape was ...