Appeal from the United States District Court for the Western District of Wisconsin. No. 87-CR-96-S -- John C. Shabaz, Judge.
Posner, Ripple, and Kanne, Circuit Judges.
Defendants-appellants Daniel D'Antoni and Richard Ales challenge their convictions for conspiracy to kill a government witness on several grounds. First, they challenge the district court's admission into evidence of testimony about statements made by D'Antoni's brother to a government informant under the co-conspirator exception to the hearsay rule. Second, they argue that admission of these statements was impermissible under Rules 404(b) and 403 of the Federal Rules of Evidence. Third, they charge that the district court erred in admitting several tape-recorded telephone conversations obtained in violation of Wisconsin law. Fourth, D'Antoni charges that his conviction should be reversed because the government's methods of investigating this case constituted outrageous governmental conduct, violating his due process rights. Finally, D'Antoni argues that the evidence was insufficient to convict him. For the reasons discussed below, we affirm the two convictions on all counts.
Todd D'Antoni ("Todd"), the brother of one of the appellants, gave cocaine to fifteen-year-old Tricia Schuh and fourteen-year-old Rebecca Reynolds in June, 1987. Tricia Schuh ingested the cocaine and died. Todd was charged with distribution of a controlled substance to a person under eighteen years of age. Rebecca Reynolds, who had testified before the grand jury, was to be the prosecution's key witness.
While Todd was incarcerated in the Dane County (Wisconsin) Jail for violating the conditions of his release, he met Ricco Ferguson. Ferguson had been arrested on charges of theft, obstructing justice and driving without a valid license. He was hoping to "cut a deal" with the government. Between September 14 and September 16, 1987, Todd told Ferguson that he (Todd) and his brother, appellant Daniel D'Antoni ("Dan"), had arranged for someone to be paid $10,000.00 to murder Rebecca Reynolds. Ferguson offered to commit the murder himself for less money, although he never in fact intended to do so. Todd agreed, saying he wanted it done by September 20th. Ferguson spoke with Dan on September 17th. Dan told Ferguson that he had spoken with Todd and that he was working on getting a picture of Rebecca Reynolds but didn't have one yet. Ferguson met with law enforcement officers that same day and agreed to cooperate in an investigation of the plan to murder Rebecca Reynolds.
Over the ensuing few days, Ferguson had several telephone conversations with Todd, Dan and defendant Richard Ales. All of these conversations were recorded on tape. Only Ferguson had consented to this. Ales met twice with Ferguson, once on September 18, 1987 to give him some money, and once on September 19, 1987 to show him where Rebecca Reynolds lived and to give him a description of her. Dan's supposed role in this scheme was to supply the pistol. He claimed at trial, however, that he in fact had no intention of doing so, and merely was pretending to go along with Ferguson to protect his brother. Dan was arrested during a September 20 meeting with Ferguson after he told Ferguson and the undercover policeman accompanying them that he was working on getting the gun and the money but did not have the gun yet. Both Ales and Daniel D'Antoni were convicted of conspiracy to kill a government witness. They appeal their convictions on numerous grounds.
A. Admissibility of Todd D'Antoni's Jailhouse Statements
As a preliminary matter, Daniel D'Antoni argues that his brother Todd's statements to Ferguson between September 14 and September 16, 1987 that the two of them (Todd and Dan) already had hired someone to kill Rebecca Reynolds were inadmissible as evidence of prior bad acts (or crimes) under Fed.R.Evid. 404(b). We agree with the government, however, that this was not a "prior act" at all, but evidence of the crime itself. This is because these statements are "intricately related to the facts of the case," United States v. Hawkins, 823 F.2d 1020, 1023 (7th Cir. 1987) (quoting United States v. Hattaway, 740 F.2d 1419, 1425 (7th Cir.), cert. denied, 469 U.S. 1089, 105 S. Ct. 599, 83 L. Ed. 2d 708 (1984)). Admissibility of this evidence is governed instead by Fed.R.Evid. 403. Hawkins, 823 F.2d at 1023. In that event, the evidence only is admissible if the probative value of statements is not outweighed by their prejudicial effect. As we discuss below, however, we do not think that this evidence was unduly prejudicial.
Defendants also argue that Todd D'Antoni's statements were inadmissible under the co-conspirator exception to the hearsay rule, Federal Rule of Evidence 801(d)(2)(E). This rule provides:
(d) Statements which are not hearsay. A statement is not hearsay if -- . . .
(2) Admission by party-opponent. The statement is offered against a party and is . . . (E) a statement by a co-conspirator of a party during the ...