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United States v. Gajo

May 20, 2002

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
BOGDAN GAJO, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 100--Joan B. Gottschall, Judge.

Before Flaum, Chief Judge, and Coffey and Kanne, Circuit Judges.

Argued April 9, 2002

Flaum, Chief Judge. A jury convicted Defendant-Appellant Bogdan Gajo of conspiracy to commit arson in violation of 18 U.S.C. sec. 371, solicitation to commit arson in violation of 18 U.S.C. sec. 373, arson in violation of 18 U.S.C. sec. 844 (I), and mail fraud in violation of 18 U.S.C. sec. 1341. Gajo appeals his conviction, challenging two evidentiary rulings related to the admission of tape recorded statements and a witness's grand jury testimony. For the reasons stated herein, we affirm.

I. Background

Gajo owned a business called Cragin Sausage, which sold specialty ethnic foods, beverages and cigarettes.*fn1 OnJanuary 16, 1996, the building where Cragin Sausage was located caught fire and burned moderately. The fire was concentrated in the rear kitchen and storage area of Cragin Sausage. After the fire was safely extinguished, Daniel Cullen, who worked in the Fire Department's Office of Fire Investigation, examined the property and concluded that the fire was deliberately set. Traces of gasoline were present in debris samples taken from the scene, even though there was no gasoline present in the store prior to the fire. In addition, Cragin Sausage's rear southwest door, which was the only door open at the time of the fire, exhibited marks indicating that the locks had been pried off from the inside in an attempt to simulate a forced entry. Three separate experts who testified at trial reached this conclusion: John Marcus, a private fire investigator hired by one of Gajo's attorneys; Mark Boese, a forensic scientist hired by Gajo's insurance company; and Cullen. Only Gajo and his girlfriend, Maria Grazina Curylo, had keys to Cragin Sausage. They were also the only two people who knew the code to the store's security system, which never activated during the fire. Approximately one week after the fire, Gajo submitted an insurance claim for the damage at Cragin Sausage. Gajo later submitted a proof of loss. The insurance company eventually denied Gajo's claim, although the record is unclear regarding the exact timing--a circumstance that will have some import in our later discussion.

During the arson investigation, government agents examined Cragin Sausage's outgoing telephone records, which led them to an individual named Jay Smith. Agents questioned Smith, who ultimately agreed to cooperate with the government. Smith recounted that in December 1995, a former co-worker named Edward Baumgart approached Smith at his place of employment (the Banks Grill) and introduced him to Gajo. According to Smith, Baumgart told him that "Gajo needed a building burned down." Smith also stated that although Gajo spoke almost exclusively in Polish, Gajo told him in English that burning down Cragin Sausage "was urgent." Gajo and Baumgart offered Smith $4,000 to set fire to Cragin Sausage, but Smith declined.

Further investigation led agents to several real estate agents, who testified that Gajo listed the Cragin Sausage property for sale and that Gajo was desperate to sell his business to obtain money. Indeed, one agent testified that Gajo told him he wanted to sell Cragin Sausage due to a lack of business.*fn2 After the agent failed to sell the property despite lowering the price, Gajo suggested that the agent burn down Cragin Sausage so Gajo could obtain the insurance proceeds. The government also presented evidence describing statements Gajo made to investigators that were inconsistent with eyewitness testimony. Following the fire, Gajo told both Cullen and an Alcohol, Tobacco and Firearms ("ATF") agent that he left Cragin Sausage on Sunday afternoon at approximately 4:00 p.m. for a short vacation and that he did not return to the store until after it caught fire on Tuesday morning. However, two neighbors testified that they saw Gajo at Cragin Sausage on the day before the fire. One witness observed Gajo loading what appeared to be boxes of liquor into the back of a minivan. Gajo had also told investigators that liquor was one of the classes of merchandise missing from Cragin Sausage.

Approximately 10 months after the fire, Smith contacted Baumgart at the direction of a federal ATF agent. Smith and Baumgart engaged in two conversations, each of which was recorded and ultimately introduced into evidence. On the first tape, Baumgart responds to Smith's probing about what he should say to an agent questioning him about the fire at Cragin Sausage. Baumgart instructs Smith to tell the investigating officer "to fuck off." In the second conversation, which occurred several minutes later, Baumgart admits introducing Gajo to Smith, but states that he does not know who burned Cragin Sausage:

SMITH: This guy you introduced me to.

BAUMGART: Uh huh.

SMITH: . . . is he going to put me in a bad spot? BAUMGART: He's not going to put you in a bad spot, because if he would he's gonna go to jail. OK.

SMITH: Alright. OK. Alright.

BAUMGART: Cause right now he doing all he can to get-- SMITH: . . . for my benefit what ...


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