part of the consideration that Venzor exchanged for Chavez's promise to fight Houk included the settlement of the then-pending state court claim against Chavez for breaching the March 1993 agreement to fight in the Chicago area, a claim assertedly worth at least $ 229,355. King Defs.' 12(M) P 59, Ex. 4 (citing Venzor Dep. at 916-21). Whether the plaintiff will convince a fact-finder of that valuation of the original claim against Chavez is another matter, but there are genuine issues of material fact as to damages.
After taking into account the above rulings, what remains against Chavez are the relatively straightforward state law fraud and conspiracy to defraud claims as theories of liability. And if the plaintiff can show liability, then the available damages include the consideration paid to Chavez for the allegedly fixed fight. We now turn to the King Defendants' summary judgment motion.
III. King Defendants
The reasoning as to certain counts discussed above also disposes of the parallel claims against the King Defendants. Accordingly, we enter summary judgment for the King Defendants as to the Boxing Act claims (Counts 4-6). This leaves the following claims against the King Defendants: breach of contract premised on the fact that Houk did not have a 47 win and 6 loss record as promised (Count 1); common law fraud, statutory fraud, and conspiracy to commit fraud (Counts 2, 3, and 7); and violations of RICO, § 1962(a), (b), and (c), and conspiracy to violate RICO, § 1962(d) (Counts 9-11 and 14). As we explain below, because important pieces of evidence admissible against Chavez and Houk are not admissible against the King Defendants, a reasonable trier of fact cannot find the King Defendants liable on the fraud and RICO claims. Additionally, because the plaintiff fails to present sufficient evidence as to his damages for breach of contract, summary judgment is proper on that claim as well.
To start, the statements made by Chavez to Mario Martinez in March 1995, which are presented in Martinez's affidavit discussed earlier, are inadmissible against the King Defendants because the statements are not party-admissions as against the King Defendants. Rule 801(d)(2)(A) of the Federal Rules of Evidence defines as non-hearsay a statement that "is offered against a party and is (A) the party's own statement in either an individual or representative capacity." Accordingly, because Chavez was not acting as King's representative, Chavez's statements are inadmissible against the King Defendants. See United States v. Curry, 977 F.2d 1042, 1057 (7th Cir. 1992). The same admissibility problem infects Houk's admission to Venzor in late 1995 and to a newspaper reporter in 1996 that an employee of DKP, Defendant Al Braverman, told Houk to "go down and make [Venzor] look bad in doing so," presumably because Braverman thought Venzor was "arrogant." Pl.'s King 12(N)(3)(b) PP 1-2 (citing Venzor Aff. P 1 and Jorge Oclander Dep. at 119); King Defs.' Mot. to Strike P 5. Although Braverman's statement to Houk would presumably be admissible as a party-admission against the King Defendants, Houk's statement to Venzor and the reporter reciting that Braverman made such a statement is not a party-admission against the King Defendants. Although the plaintiff argues that the prior statements of parties are admissible to impeach that party's credibility, Pl.'s Resp. to King Mot. to Strike at 2, the statements are not admissible as substantive evidence against other parties who did not make the statements.
Nor are Chavez's or Houk's statements admissible as non-hearsay statements made "during the course and in furtherance of the conspiracy" with the King Defendants. Fed. R. Evid. 801(d)(2)(E). Despite the multiple forms which co-conspirator statements may be "in furtherance" of a conspiracy, there must be at least a "reasonable basis" for finding that the statements were made to help further the conspiracy's objectives. Garlington v. O'Leary, 879 F.2d 277, 283-84 (7th Cir. 1989). Neither Chavez's nor Houk's statements can be reasonably viewed as furthering the conspiracy to fix the Chavez-Houk fight. Indeed, Chavez's statements in March 1995 stand in contrast to statements made to recruit other conspirators, a common variation of the admissible co-conspirator statement, United States v. Godinez, 110 F.3d 448, 454 (7th Cir. 1997); United States v. Guyton, 36 F.3d 655, 659 (7th Cir. 1994). And Houk's statements to Venzor in November or December 1995 and the reporter in 1996 were made after the conspiracy's "central objectives" were obtained, United States v. Xheka, 704 F.2d 974, 985 (7th Cir. 1983) (quoting Grunewald v. United States, 353 U.S. 391, 405, 1 L. Ed. 2d 931, 77 S. Ct. 963 (1957)), and thus fail not only to be "in furtherance" of the conspiracy but were also made after the conspiracy.
Furthermore, we reject Venzor's argument that Houk's hearsay statements are admissible under Rule 804(b)(3) as statements against penal interest. According to the plaintiff, Rule 804's requirement that the declarant be unavailable is met because Houk lives and works outside the 100-mile range of a civil subpoena. Pl.'s Resp. to King Defs.' Mot. to Strike. However, that limitation on a trial subpoena applies only to "a person who is not a party." Fed. R. Civ. P. 45(c)(3)(A)(ii) (emphasis added). There is no reason to believe that Houk will be unavailable to testify at trial, and thus Rule 804(b)(3) is not a basis to admit Houk's statements.
Without Chavez's and Houk's hearsay statements, the plaintiff's remaining evidence fails to raise a genuine issue as to the King Defendants' involvement in the allegedly fixed fight. Venzor attempts to link DKP to an "Indiana-Oklahoma Connection" comprising boxers, managers, and promoters who fixed numerous fights, including fights involving Houk and his manager Pete Susens. See Pl.'s King 12(N)(3)(b) PP 9-13. However, to prove the operation of the Indiana-Oklahoma Connection, the plaintiff points only to a Special Report prepared by the administrative assistant of an Oklahoma Labor Commissioner. Id. P 9. The portions of the Special Report to which Venzor cites, however, simply contain statements from two boxers interviewed by the administrative assistant. Id. Ex. 7 (Report at 10-12).
No widespread ring of boxers is proven or inferable from these statements alone, and the two interviewees make no mention of Houk. In addition, Venzor fails to adequately support his contention that DKP "purchased boxers from the Indiana-Oklahoma Connection" on approximately twenty-four fight cards, with all but one boxer losing their fight. Id. P 12. The plaintiff cites only to the deposition testimony of Fred Berns, who is apparently a former partner of Susens, but Berns's testimony only confirms that he supplied fighters for DKP, not that he engaged in fight fixing. Berns Dep. at 55, 160-61. Although the plaintiff points to scattershot evidence that at least a few boxers and promoters fixed fights, the evidence admissible and actually directed against the King Defendants is insufficient for a reasonable trier of fact to find against those defendants. Accordingly, we enter summary judgment for the King Defendants on the claims premised upon their involvement in the fixed fight, specifically, the fraud counts (Counts 2, 3, and 7) and RICO counts (Counts 9-11 and 14).
Finally, we enter summary judgment against the plaintiff on his breach of contract claim against the King Defendants (Count 1). Venzor grounds this claim on his belief that, rather than 47 wins and 6 losses, Houk's record was really 40-11 at the time the King Defendants contracted to deliver his services as Chavez's opponent. Pl.'s 12(N)(3)(b) PP 32-36. However, even if the King Defendants breached the contract by supplying a fighter with a worse record than promised, the plaintiff proffers no evidence as to the benefit of the bargain damages that he incurred as a result. See Sager v. Friedman, 270 N.Y. 472, 1 N.E.2d 971, 973-74 (N.Y. 1936) (benefit of the bargain damages for breach of contract) (cited by Ostano Commerzanstalt v. Telewide Sys., 794 F.2d 763, 767 (2d Cir. 1986)).
Just as Venzor presented insufficient evidence of lost profits against Chavez, there is no evidence to support that attendance was poor because of the King Defendants' alleged breach, or that any refunds have been sought, or that Venzor has been damaged in any other way by the breach. Accordingly, summary judgment is entered for the King Defendants on Count 1.
For the reasons detailed above, we grant summary judgment for Chavez on Counts 4-6 and 12-13; what remains as to Chavez is the state common law fraud, statutory fraud, and conspiracy to defraud, as well as Chavez's own counterclaim against Venzor for the unpaid balance, if any, of the purse. We enter summary judgment for the King Defendants as to all claims. The status hearing and filing of the pretrial order is reset from June 13, 1997 to July 1, 1997 at 10 a.m. The remaining parties, including Defendant Craig Houk, shall appear at that time. It is so ordered.
MARVIN E. ASPEN
United States District Judge