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United States v. Cunningham

April 19, 1995




Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 93 CR 100--James T. Moody, Judge.

Before CUMMINGS, ESCHBACH, and KANNE, Circuit Judges.

KANNE, Circuit Judge.



Todd Cunningham, Richard Hanus, Timothy Marlette, and Vince Gallo appeal their convictions for retaliating against a federal witness. Gallo also appeals his sentence. We affirm both the convictions and the sentence.

I. Background

In March 1993, Keith Bolen was tried in federal court for shooting at a private airplane with a high-powered rifle. Terry Potts, who had been with Bolen when he allegedly shot at the airplane, testified against Bolen. Ultimately Bolen was acquitted, but his trial received publicity in the region surrounding the small Indiana community of Cedar Lake, where Bolen, Potts, and the defendants in this case all lived. Newspaper accounts of Potts' testimony appeared, and the trial was widely discussed.

A few months later, on Friday, July 2, 1993, Potts, together with his boss and his boss' girlfriend, went to the Cedar Lake Summerfest, a Fourth of July festival that lasted for several days. The defendants also went to the Summerfest, and spent the day drinking beer, eating fried catfish, and watching such dubious entertainment as women's mud wrestling.

Around 8 P.M., Potts was drinking in the beer garden, an area with several picnic tables under a tent where beer had been served all day. While in the beer garden, Potts got into an altercation with Gary Garcia, a friend of both Bolen and the defendants. Potts and Garcia yelled and cursed at each other, and pushed each other several times. With Garcia in the beer garden were Cunningham, Marlette, Hanus and Gallo. Only Garcia was physically involved in the initial altercation with Potts, although Hanus did try to break up the fight. Festival security guards quickly separated Potts and Garcia and removed Potts from the tent. While he was being removed, Potts loudly complained that he had been a federal witness, that Garcia was attacking him because he had been a federal witness, and that he should be allowed to stay in the beer garden while Garcia and his friends should be thrown out.

The security guards delivered Potts to an off-duty Cedar Lake police officer, Roger Patz. Patz calmed Potts down and then left, but shortly thereafter Potts again got into a verbal altercation with Marlette and Hanus, who had remained in the beer garden. Potts was standing outside the beer garden, on the other side of two low fences, so there was no physical contact, but much in the way of cursing, threatening, and obscene gestures was passed back and forth. The security guards arrived again, and Patz escorted Potts out of the festival grounds and told him he should go home. Potts asked Patz to walk him all the way to his car, several hundred yards down the road, telling Patz he was afraid of the people with whom he had been arguing, because they wanted to harm him for testifying against their friend. Patz, however, said he could not leave the festival grounds, so Potts walked to his truck alone.

When he got to his truck, Potts was beaten up. Witnesses told different versions of the events, but there was no dispute at trial that Hanus, at least, struck Potts several times and wrestled with him on the ground. The other defendants all denied touching Potts, but they admitted standing nearby while the fight was going on. Potts was severely beaten: his head was cut in several places, gravel was imbedded in his skin, and he had a bootprint on his face.

Three sisters who were walking by screamed for the beating to stop. They and others passing by summoned police, who arrived very quickly, but after the fighting had ended. Hanus had fled, and the other defendants were milling around as part of a large crowd that had gathered.

A grand jury indicted Cunningham, Hanus, Marlette and Gallo, and after a joint trial a jury convicted them of retaliating against a federal witness in violation of 18 U.S.C. sec. 1513. The three sisters who had seen the fight and called the police, Sharon Miller, Sandra Reeves, and Ethel Herron, testified against the defendants. The district court sentenced ...

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