The opinion of the court was delivered by: Gettleman, District Judge.
MEMORANDUM OPINION AND ORDER
Defendant Michael Gochis, a former union steward at Air
Express International ("AEI"), was charged, tried by a jury
before a magistrate judge, and convicted of three misdemeanor
counts of threatening and using violence against a fellow union
member for the purpose of interfering with and preventing the
exercise of the victim's rights under the labor laws, in
violation of 29 U.S.C. § 530. Defendant and the government
appealed. This court vacated defendant's conviction, holding
that the magistrate judge had no authority to enter a final
judgment of conviction because defendant had not been properly
advised of his rights when consenting to trial before the
magistrate judge rather than an Article III district judge.
See, United States v. Gochis, 196 F.R.D. 519 (N.D.Ill. 2000).
The court of appeals reversed that holding because it found the
magistrate judge's error to be harmless, and remanded the case
for this court to address the other issues raised in defendant's
appeal and in the government's cross-appeal. See, United States
v. Gochis, 256 F.3d 739 (7th Cir. 2001). For the reasons
discussed below, the court affirms the judgment of conviction,
but remands the case to the magistrate judge for resentencing.
Defendant and his fellow employees worked at AEI's warehouse
in Bensonville, Illinois, and were members of the International
Brotherhood of Teamsters, Local 405. During April and May 1995,
the Union was in negotiations with AEI for a new contract, and
union members were debating whether to accept the contract terms
offered by the employer. Defendant was in favor of accepting the
terms and avoiding a strike, while other members, including
David Bothum ("Bothum"), were in favor of rejecting the offer
even if it meant a strike.
Emotions were running high among the employees, leading to the
incidents in question. The first two incidents, which involved
verbal threats by defendant to Bothum, took place at meetings of
union members at the warehouse. Although, to be sure, there is
conflicting evidence as to the precise words spoken by defendant
at that meeting, it is quite clear that defendant felt very
strongly that the membership should vote in favor of the
contract, Bothum felt to the contrary, and both men expressed
their feelings in no uncertain terms. According to the
government witnesses, Gochis threatened Bothum, telling him
"I'll kick your ass," or words to that effect. In the third
incident, according to certain government witnesses, defendant
encountered Bothum on the warehouse floor outside the context of
a meeting of the members, threatened him again and pushed Bothum
down to the floor, causing Bothum to sustain a rib fracture and
lumbar strain. Bothum had recently returned to work after
recuperating from a serious back injury.
Many of defendant's arguments are easy to dispose of because
defendant failed to preserve these issues by adequately making
objections at trial. These include issues (b), (c), and (e)
above. Thus, with respect to the government's impeachment of
several witnesses with prior inconsistent statements, the record
reveals that defendant failed to object to the impeachment
testimony at issue or the prosecutor's reference to it at
closing argument.*fn1 Nor did defendant tender any authority
to the magistrate judge to support his theory of defense
instruction,*fn2 or object to the magistrate judge's
redaction of Bothum's letter. These issues are therefore not
properly reviewable by this court on appeal. United States v.
Linwood, 142 F.3d 418, 422 (7th Cir. 1998).
Evidence of Bothum's Prior Domestic Dispute
Defendant asserts that the magistrate judge erred in refusing
to allow the introduction of evidence of a domestic dispute in
which Bothum allegedly slapped his wife approximately eight
months prior to the events in question in the instant case but
after Bothum's back surgery.*fn3 According to defendant, this
evidence should have been considered Brady*fn4 material
because it would have drawn into question Bothum's testimony
that he would not have confronted or provoked defendant because
he lacked physical ability to move about or defend himself in
Defendant's logical and legal reasoning are lacking with
respect to this issue. First, as the government points out,
because defendant was not convicted of this charge and because
Bothum's testimony regarding it would not be probative of
Bothum's truthfulness, it could not be used as a basis for
impeachment under Federal Rule of Evidence 608(b). Varhol v.
National R. Passenger Corp., 909 F.2d 1557, 1567 (7th Cir.
1990). Second, the obvious prejudice toward Bothum that would
likely be caused by such testimony clearly outweighs whatever
probative value the it has, making it prime for exclusion under
Federal Rule of Evidence 403.*fn5 Finally, testimony about
domestic abuse obviously was brought to the attention of
defendant prior to trial, and thus Brady does not appear to be
applicable at all.
For all of these reasons, the court finds that the magistrate
judge did not abuse his discretion in excluding the above
evidence. United States v. Berry, 60 F.3d 288, 293 (7th Cir.
Defendant's argument that the evidence was insufficient to
support conviction on any of the counts is likewise without
merit. Although defense counsel skillfully has pointed out to
this court, as he did at trial, inconsistencies in the testimony
of various witnesses and other matters affecting witness
credibility, those were (and shall remain) matters left to the
jury. United States v. Reed, 875 F.2d 107, 111 (7th Cir.
1989). There was more than ample testimony to support the
finding of guilt on each of the counts. Indeed, Bothum's
testimony alone, if believed, was sufficient to support the
verdict. Added to the various inconsistencies in defendant's own
statements, this ...