RIPPLE, Circuit Judge.
In April 1987, a grand jury returned a two-count indictment against the five appellants in this case. The first count charged each of the five appellants with conspiring to travel in and use the facilities of interstate commerce to promote, carry on, and distribute the proceeds of unlawful activities involving prostitution. See 18
I.
Facts
The prostitution activities underlying the offense alleged in Count One of the indictment were concentrated in three businesses that were part of an entity known as Worldwide Enterprises, Incorporated: the WW I Club, located in Kenosha County, Wisconsin; the Relaxation Health Systems massage parlor located next to the WW I Club in Kenosha County; and the WW II Club, located in Lake County, Illinois. The clubs were nude dancing establishments that served no food or alcoholic beverages. The testimony at trial revealed that the prostitution activities at the clubs were conducted pursuant to the following general procedure. A customer entering the club would be required to pay a cover charge. He would then be directed to a table and joined by a "dancer." After being seated, a waitress would approach the customer and ask him if he would like to purchase a drink (water or a soft drink) for himself and the dancer. Once the customer had purchased a drink, the waitress would return and ask the customer if he would like to go to a private area with the dancer. If the customer agreed and purchased a bottle of soda or water, at a cost of forty to fifty dollars, he would be taken to a "terrace," consisting of a number of booths, in the rear of the club. The customer would then be asked to buy additional bottles, and, once sufficient bottles had been purchased, the dancer would engage in sexual acts with the customer.
At the massage parlor, the customer would pay a flat fee for thirty minutes in a private room with a masseuse. The masseuse would then negotiate a "tip" with the customer. The amount of the tip would determine the degree of sexual contact that the masseuse had with the customer. At both the clubs and the massage parlor, customers could pay in cash or by credit card.
Josephine Christofalos assumed control of these businesses when her husband, George Christofalos, died in March 1979. At that time, one of the nightclub waitresses described to Ms. Christofalos the prostitution activities taking place on the premises. During the summer of 1979, Ms. Christofalos retained John Paul Doerr to assist her in managing the enterprise. He moved into a house next to the Kenosha club and massage parlor and maintained close contact
The other defendants each played lesser roles in the illegal enterprises. Archie Pixley participated in the management of the Kenosha club and massage parlor, and, when some of the massage parlor masseuses were arrested, Mr. Pixley posted their bail. Mr. Pixley's wife, Christa, was a waitress at the Kenosha club. Dale Doerr participated in the management of the massage parlor. Dale lived in Kenosha with his father, John Paul Doerr, during two different periods: from September 1979 to September 1980 (his junior year in high school) and from September 1981 until May 11, 1982. During the spring of 1982, both Dale and his father left Kenosha and moved to California. While in Kenosha, Dale worked at the businesses managed by his father. He was identified at trial as the massage parlor's assistant manager. In this capacity, he provided instructions on the treatment of customers, on proper work attire, and on scheduling. He also encouraged the massage parlor's masseuses to earn greater revenues by increasing their sexual favors. He sometimes received the massage parlor's receipts at the end of the evening, and, in January 1982, he became involved in the massage parlor's bookkeeping activities. Dale also assisted his father in the operation of RH Credit Systems, a company that processed credit card transactions for the Kenosha club and massage parlor.
Count Two of the indictment is based on a money-laundering scheme engineered by John Paul Doerr and Josephine Christofalos. Much of the evidence of this scheme was discovered during an FBI undercover operation in which the FBI operated a credit card processing business known as the National Credit Service (NCS).
II.
Analysis
A number of issues are raised by all five appellants jointly, while the individual appellants each raise several other issues. We shall first address those issues raised jointly and then turn to the contentions of individual appellants.
A.
Issues Raised by All Appellants
1. Improper admission of coconspirators' statements
The coconspirator exception to the hearsay rule, Fed.R.Evid. 801(d)(2)(E), provides
We recently emphasized that the "in furtherance" requirement of Rule 801(d)(2)(E) is a limitation on the admissibility of coconspirators' statements that is meant to be taken seriously. See Garlington v. O'Leary, 879 F.2d 277, 283 (7th Cir.1989). As we explained in Garlington, a coconspirator's statement satisfies the "in furtherance" requirement "when the statement is `part of the information flow between conspirators intended to help each perform his role.'" Id. (quoting United States v. Van Daal Wyk, 840 F.2d 494, 499 (7th Cir.1988)). We further explained that statements "in furtherance" of a conspiracy can take many forms, including statements made to recruit potential coconspirators, statements seeking to control damage to an ongoing conspiracy, statements made to keep coconspirators advised as to the progress of the conspiracy, and statements made in an attempt to conceal the criminal objectives of the conspiracy. Id. Narrative declarations, mere "idle chatter," and superfluous casual conversations, however, are not statements "in furtherance" of a conspiracy. See id.; see also United States v. Foster, 711 F.2d 871, 880 (9th Cir.1983) (mere narrative declarations, made without intent to induce assistance to
A district court's finding that a particular statement was made "in furtherance" is reviewed under a clearly erroneous standard. United States v. Shoffner, 826 F.2d 619, 627-28 (7th Cir.), cert. denied, 484 U.S. 958, 108 S.Ct. 356, 98 L.Ed.2d 381 (1987). In addition, a court may conclude that the challenged statement was "in furtherance" even though "`the statement [was] susceptible of alternative interpretations.'" Id. at 628 (quoting United States v. Mackey, 571 F.2d 376, 383 (7th Cir.1978)). Moreover, the "in furtherance" requirement is satisfied so long as "`some reasonable basis exists for concluding that the statement furthered the conspiracy.'" Id., quoted in Garlington, supra, at 283.
The government contends that the district court had a reasonable basis for concluding that Mr. Pixley's statements, described at trial by Meyer, were made "in furtherance" of the conspiracy. The government explains that, in addition to being a frequent customer, Robert Meyer had an interest in investing in the Kenosha club. Given this interest, the government asserts that "the trial court had a `reasonable basis' for concluding that Pixley's comments were made in furtherance of the conspiracy since Pixley and Meyer had an interest in discussing ways that the club could improve and remain in operation." Government Br. at 19. The government also contends that Dale Doerr's statement was "in furtherance" of the conspiracy, because it was a description of the clubs' illegal activities to John Patrick Doerr, a coconspirator who worked at the clubs as a manager and doorman.
We cannot accept the government's contentions. Therefore, we conclude that the district court erred in admitting the challenged testimony. Neither Mr. Pixley's statement nor Dale Doerr's statement was made "in furtherance" of the conspiracy. After reviewing Robert Meyer's testimony, we conclude that Mr. Pixley's discussion of the red curtain with Meyer cannot reasonably be characterized as part of an attempt to induce Meyer to join or assist the conspiracy. Instead, the statements are more accurately characterized as a narrative discussion of a past event. As such, they do not satisfy the "in furtherance" requirement of Rule 801(d)(2)(E).
Similarly, Dale Doerr's statement to John Patrick Doerr fails to satisfy the "in furtherance" requirement. In making the statement recounted by John Patrick Doerr at trial, Dale was mocking his half-brother's ignorance of the clubs' unlawful activities; such a statement cannot be characterized as part of the normal information flow between coconspirators and in no way furthered the ends of the conspiracy. Thus, neither Mr. Pixley's statement nor Dale Doerr's statement should have been admitted under Rule 801(d)(2)(E).
The improper admission of these statements, however, does not constitute reversible error. Nonconstitutional errors, like the evidentiary errors in this case, are governed by the harmless error standard of Rule 52(a) of the Federal Rules of Criminal Procedure.
We are convinced that the erroneous admission of the challenged statements in this case had no substantial influence on the jury's verdict. Witnesses other than Meyer testified that they knew that Ms. Christofalos had been involved in the placement of a curtain in the rear of the clubs. Similarly, Dale Doerr's statement to his brother was hardly the only testimony showing that unlawful activity was obvious at the clubs; many witnesses testified that the appellants knew prostitution was occurring at the clubs and massage parlor. We therefore conclude that the district court's erroneous admission of the challenged hearsay statements was harmless.
2. Admission of Anthony Barbaro's grand jury testimony
On May 25, 1982, Anthony Barbaro, who had been employed at the massage parlor in 1981, testified before a grand jury investigating this case. Barbaro told the grand jury that prostitution had been going on at the massage parlor and that he had deposited cash from the massage parlor in the bank account of St. Michael's Southern Catholic Church (a church established by John Paul Doerr),
On November 25, the government had asked the court to declare Barbaro unavailable for trial. The court reserved ruling on this matter pursuant to defense counsels' request for more time to study the issue. On December 16, 1987, the court, over the defendants' objection, permitted the government to introduce portions of Barbaro's grand jury testimony. As noted above, Barbaro at no time informed the court of his willingness to testify. See J.P. Doerr R.176.
On appeal, the appellants maintain that introduction of Barbaro's grand jury testimony was improper under both Rule 804(b)(5) of the Federal Rules of Evidence (the catch-all hearsay exception)
a. Rule 804(b)(5)
In order for a hearsay statement to be admissible under Rule 804(b)(5), the proponent of the statement must show that the declarant is unavailable and that the statement contains "`circumstantial guarantees of trustworthiness' equivalent to those inherent in the more specific exceptions provided under Rule 804(b)(1)-(4)." United States v. Snyder, 872 F.2d 1351, 1354 (7th Cir.1989). We review the district court's decision that a particular hearsay statement is admissible under Rule 804 only for an abuse of discretion. See id.; see also United States v. Fuesting, 845 F.2d 664, 673 (7th Cir.1988) ("We will reverse a district court's evidentiary ruling only where there has been a clear abuse of [the court's broad] discretion."). We shall turn first to unavailability and then address
i. unavailability. Rule 804 provides that unavailability as a witness includes situations in which the declarant "persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so." Fed.R.Evid. 804(a)(2).
The district court did not err in concluding that Barbaro was unavailable as a witness for the purposes of Rule 804(b)(5). Barbaro repeatedly refused to testify despite a grant of immunity and the threat of contempt sanctions. He was directly ordered by the court to answer the government's questions and refused to do so. He was then held in civil contempt and ordered confined until he was willing to testify. Moreover, he was explicitly informed that if he testified he would be purged of his contempt and that he should immediately inform the court if he should change his mind. The court never received notice from Barbaro of any decision to testify. Under these circumstances, Barbaro's persistence had been adequately tested, see United States v. Boulahanis, 677 F.2d 586, 588 (7th Cir.), cert. denied, 459 U.S. 1016, 103 S.Ct. 375, 74 L.Ed.2d 509 (1982), and the court properly concluded that the unavailability requirement of the rule had been satisfied.
Mr. Doerr's assertion, accompanied by citation to United States v. Johnson, 736 F.2d 358 (6th Cir.1984), that the district court erroneously anticipated Barbaro's refusal to testify without giving him a chance to change his mind, see J.P. Doerr Br. at 6, is unfounded. The district court in Johnson improperly held a witness in civil contempt merely because, at a pretrial hearing before any order to testify had been imposed, the witness stated that he intended to refuse to testify. 736 F.2d at 359-60. No actual refusal to testify had occurred and the trial itself had not even started. In contrast, Barbaro had actually refused to testify, had properly been held in civil contempt for doing so, and had explicitly been given, by court order, an open invitation to change his mind. Thus, Barbaro was "unavailable" as defined in Rule 804 — he obstinately had persisted in his refusal to testify despite a court order to do so. Requiring the government to bring Barbaro back into court on December 16 solely so that he could refuse to testify once more would have served little purpose.
ii. circumstantial guarantees of trustworthiness. As noted above, in addition to demonstrating unavailability, Rule 804(b)(5) requires that a hearsay statement not covered by some other exception be supported by "equivalent circumstantial guarantees of trustworthiness" before it can be admitted. A trial judge has "`considerable discretion'" in determining whether "`hearsay statements contain the necessary circumstantial guarantees of trustworthiness'" to be admissible under the federal rules. See United States v. Guinan, 836 F.2d 350, 354 (7th Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 2871, 101 L.Ed.2d 907 (1988) (quoting United States v. Vretta, 790 F.2d 651, 659 (7th Cir.), cert. denied, 479 U.S. 851, 107 S.Ct. 179, 93 L.Ed.2d 115 (1986)). The factors that should be considered by the district court in assessing
Snyder, 872 F.2d at 1355-56. This list of factors is neither exhaustive nor absolute, and each case must be analyzed on its own facts. Id.; United States v. York, 852 F.2d 221, 225 (7th Cir.1988); United States v. Hooks, 848 F.2d 785, 797 (7th Cir.1988); Guinan, 836 F.2d at 355.
Our review of the record reveals that a number of the factors supporting admissibility are present in this case. For example, although Barbaro's grand jury testimony was not subject to cross-examination, it was given under oath and subject to a penalty for perjury.
Certain aspects of Barbaro's testimony are also corroborated by other evidence introduced at trial. For example, IRS Special Agent Gerald Ontko testified that St. Michael's Church did maintain a bank account in Kenosha and that the bulk of the deposits into that account were made in cash. See Tr. at 2562-63; Government Ex. 353-C (73% of deposits made in currency). In addition, the account's signature card was signed in the name of the "Rev. James Jackson." See Government Ex. 353-A. This was a name that Barbaro testified he knew John Paul Doerr used. See R. 178 at 5 (Tr. of Barbaro Grand Jury Testimony). The government also presented documentary evidence of a deposit slip initialed by
The appellants maintain that "crucial points" of Barbaro's testimony were not corroborated. Joint Br. at 24. However, "a court cannot require that every detail of an item of hearsay testimony be corroborated before admitting it under Rule 804(b)(5)." Guinan, 836 F.2d at 357; see also Snyder, 872 F.2d at 1356 ("While Snyder did not confirm every detail of Barton's testimony, he conceded enough to make the whole adequately trustworthy."). Because Barbaro's grand jury testimony did contain adequate "circumstantial guarantees of trustworthiness," we conclude that the district court did not abuse its discretion under Rule 804(b)(5) in allowing this testimony to be presented to the jury.
b. Confrontation clause
Although the hearsay rules and the confrontation clause "stem from the same root, ... the two are not equivalent." Vretta, 790 F.2d at 660 (quoting Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970)). Therefore, evidence that is admissible under the catch-all hearsay exception may still violate the sixth amendment. See Guinan, 836 F.2d at 358; see also Snyder, 872 F.2d at 1355 ("The standards are similar, yet distinct, and reliability may not be inferred under a Sixth Amendment analysis merely because the prior testimony is admissible under Rule 804(b)(5).") (citations omitted). We have explained that, in order to defeat a constitutional challenge to admissibility, the challenged statement must be supported by "`adequate indicia of reliability to justify the placement of the hearsay statement before the jury.'" Guinan, 836 F.2d at 358 (quoting United States v. Feldman, 761 F.2d 380, 387 (7th Cir.1985)); see also Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980); Snyder, 872 F.2d at 1354. Even where there has been no opportunity for cross-examination, a statement's admission is not constitutionally barred if the government has demonstrated the unavailability of the witness and has "`made a strong "showing of particularized guarantees of trustworthiness" concerning the statements.'" Guinan, 836 F.2d at 358 (quoting United States v. Howard, 774 F.2d 838, 846 (7th Cir.1985) (quoting Roberts, 448 U.S. at 66, 100 S.Ct. at 2539)); Vretta, 790 F.2d at 660.
The first requirement is clearly met in this case — the challenged evidence consists of excerpts of a grand jury transcript and no challenge to the accuracy of the transcript has been made. Thus, there is no question that Barbaro actually made the statements in question. See id. at 358. Moreover, in light of our previous discussion of the particular circumstantial guarantees of trustworthiness contained in Barbaro's testimony, we conclude that the second requirement is satisfied as well.
3. Admission of charts into evidence
The appellants next argue that they were denied a fair trial because the government was allowed to introduce an "overwhelming number" of enlarged charts that were merely cumulative of documentary evidence already presented to the jury. They contend that these charts were more prejudicial than probative. Thus, the charts should have been excluded under Rule 403 of the Federal Rules of Evidence.
This argument is without merit. We have explained that the decision to admit "summary charts is within the trial court's discretion, and will be reversed only for an abuse of that discretion." United States v. Howard, 774 F.2d 838, 844 (7th Cir.1985); see also United States v. Lamp, 779 F.2d 1088, 1094 (5th Cir.1986) (no abuse of discretion in allowing the government to use charts and summaries in complex tax evasion case), cert. denied, 476 U.S. 1144, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986). No abuse of discretion has been shown in this case. The district court reviewed the charts with some care, and concluded that "the charts [were] more helpful to the jury than sheets of paper." See Tr. at 2808. Because there were a number of separate transactions involved in the money-laundering scheme alleged in Count Two of the indictment, and scores of deposit slips and cancelled checks were submitted as documentary evidence, this was a reasonable conclusion. In addition, the court instructed the jury on the function of the charts as summaries. The court informed the jury that the charts were not themselves evidence
4. Refusal to strike testimony of Mary Patton Marino24
Mary Marino testified at trial that the promotion of prostitution at the clubs was discussed and acknowledged at the management level. On December 3, 1987, during a voir dire examination before she testified as a government witness, see Tr. at 1492, Ms. Marino denied that she had been charged with theft in Illinois in 1980, denied any memory of the theft charges, and denied ever appearing in court with respect to the theft charges. Illinois court documents, however, confirmed that Ms. Marino had in fact been charged with theft in 1980. Ms. Marino was not questioned about these charges during her direct examination or cross-examination as a government witness. Nor was any objection to Ms. Marino's testimony made at the conclusion of her appearance as a government witness on December 4. On December 8, however, defense counsel moved for a mistrial or, in the alternative, to strike Ms. Marino's testimony. The district court denied these motions.
On December 22, Ms. Marino again testified, this time as a witness for Mr. Pixley. In the presence of the jury, defense counsel confronted her with certified Illinois court records confirming the theft charges against her. She persisted in denying the charges and claimed not to remember appearing in court. See Tr. at 3621-25. After extensive examination, she ultimately conceded that the documents did say she had been indicted. She claimed, however, that the indictment "had nothing to do with [her]." Tr. at 3634.
The appellants (with the exception of Dale Doerr who expressly declined to join the other appellants' motion to strike) now argue that the district court erred in failing to strike Ms. Marino's testimony. They maintain that her "evasiveness and persistent refusal to acknowledge what was clearly the truth call into question her entire testimony." Joint Br. at 29. Because her testimony was shown to be so "inherently unreliable" that there was a substantial likelihood that it was false, the appellants contend that the district court's refusal to exclude her testimony constitutes reversible error. We disagree.
The appellants purport to rely primarily on two cases, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140
5. Improper instructions on Count One
In its jury instructions on Count One of the indictment, the district court read to the jury several Wisconsin and Illinois statutes defining a number of prostitution-related offenses. The appellants maintain that, because a prosecution under section 1952(a) does not require actual proof of a violation of state law, instructing the jurors with these statutes only served to confuse them. Such confusion allegedly arose from the fact that each statute read to the jury contains its own intent element, while the government was required to prove intent to conspire to violate section 1952. In addition, the court read to the jury a new Illinois prostitution statute that did not become effective until July 1, 1984. While the conspiracy charged in Count One allegedly lasted from 1979-1987, the appellants maintain that reading this statute to the jury was error because there was no allegation in the indictment and no proof at trial that any acts of prostitution were attempted or committed in Illinois after the effective date of the new Illinois statute. We reject these objections to the jury instructions.
The standard of review applied to challenges to jury instructions is well established: "`The question of whether a jury has been properly instructed is to be determined not upon consideration of a single paragraph, sentence, phrase or word, but upon the charge as a whole.'" United States v. Alexander, 743 F.2d 472, 478 (7th Cir.1984) (quoting United States v. Lang, 644 F.2d 1232, 1240 (7th Cir.), cert. denied, 454 U.S. 870, 102 S.Ct. 338, 70 L.Ed.2d 174 (1981)); see also United States v. Bailey, 859 F.2d 1265, 1277 (7th Cir.1988) (must view jury charge as a whole, rather than focusing on isolated passages), cert. denied, ___ U.S. ___, 109 S.Ct. 796, 102 L.Ed.2d 787 (1989). So long as "`the instructions treat the issues fairly and accurately,'" they will not be disturbed on appeal. United States v. Thibodeaux, 758 F.2d 199, 202 (7th Cir.1985) (quoting United States v. Croft, 750 F.2d 1354, 1366 (7th Cir.1984)); see also General Leaseways, Inc. v. National Truck Leasing Ass'n, 830 F.2d 716, 725 (7th Cir.1987) (jury instructions must be construed in a "`common sense manner, avoiding fastidiousness, inquiring whether the correct message was conveyed to the jury reasonably well'") (quoting Wilk v. American Medical Ass'n, 719 F.2d 207, 218 (7th Cir.1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2398, 81 L.Ed.2d 355 (1984)).
As the appellants correctly note, we have held that section 1952 does not incorporate state law as part of the federal offense: "[t]he federal crime is the use of the interstate facilities in furtherance of the unlawful activity, not the violation of state law." United States v. Peskin, 527 F.2d 71, 79 n. 3 (7th Cir.1975), cert. denied,
Moreover, the likelihood of jury confusion with regard to the intent element that the government actually was required to prove appears to be quite slim. Indeed, such a possibility is pure speculation. We believe that the instructions, read as a whole, reasonably and accurately informed the jury of the intent requirement under section 1952(a) and did not mislead the jury with respect to the applicable time frames. The appellants were charged with conspiring to violate 18 U.S.C. § 1952. The jury was instructed that the government must prove that the defendant knowingly and intentionally became a member of the conspiracy. See Tr. at 4159. In addition, the jury received specific instructions detailing the essential elements of a section 1952 violation, including the intent element. See Tr. at 4164. The court also informed the jury that the definition of "unlawful activity" under section 1952 includes "any business enterprise involving prostitution in violation of the laws of the state in which they are committed." Tr. at 4165 (emphasis supplied). Only after giving these specific instructions did the court read the state prostitution statutes to the jury. No special attention was drawn to the intent elements of these statutes. See Tr. at 4171-75. Thus, the instructions accurately informed the jury of the applicable law. When the instructions are viewed in their entirety, we conclude that there is no merit in the appellants' challenge to the instructions given the jury.
B.
Issues Raised by Josephine Christofalos
1. Government use of "off-the-record" statements
Before her arrest, Ms. Christofalos was interviewed by government agents on February 4, 1987. At that time, she was represented by court-appointed counsel who assured her that any statements she gave to the agents would be "off-the-record" and could not be used against her. Her attorney's advice was based on his belief that he had an agreement with the government prosecutor that her statements would be off-the-record. Ms. Christofalos moved to suppress any statements (and any "fruits" of the statements) obtained during the February 4 interview and sought dismissal of the indictment against her. At the suppression hearing, however, the prosecutor testified that no off-the-record agreement had been made. The magistrate conducting the suppression hearing found that there was no agreement between the government and Ms. Christofalos' counsel that the February 4 interview was to be off-the-record. The magistrate also found that no coercive governmental conduct, deception, or overreaching had occurred in this case. The magistrate therefore concluded that Ms. Christofalos' statements were voluntary and should not be suppressed.
The district court adopted the magistrate's findings of fact and conclusions of law and denied Ms. Christofalos' motion to suppress. On appeal, Ms. Christofalos does not challenge the district court's conclusion that her statements at the February 4 interview were voluntary. See Christofalos Br. at 7 ("voluntariness is not in
We reject Ms. Christofalos' contention on two grounds. First, in light of the unchallenged findings of the district court, we cannot say that Ms. Christofalos' February 4 statements were obtained in violation of her fifth amendment right to be free from compelled self-incrimination. In addition, even assuming that her statements were obtained in violation of the fifth amendment, use of those statements at trial and before the grand jury did not constitute reversible error.
a.
The fifth amendment provides in relevant part that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V (emphasis supplied). Thus, by its own terms, the fifth amendment only protects criminal defendants from compulsory self-incrimination. As the Supreme Court has repeatedly explained, "the Fifth Amendment is limited to prohibiting the use of `physical or moral compulsion' exerted on the person asserting the privilege." Fisher v. United States, 425 U.S. 391, 397, 96 S.Ct. 1569, 1574, 48 L.Ed.2d 39 (1976). Thus, where a defendant's incriminating statements were wholly voluntary and were not the "product of any sort of coercion, legal or factual[,] ... it is clear that no right protected by the Fifth Amendment privilege against compulsory self-incrimination [has been] violated." Hoffa v. United States, 385 U.S. 293, 304, 87 S.Ct. 408, 414, 17 L.Ed.2d 374 (1966). Because the uncontested facts in this case reveal that Ms. Christofalos' presence at the February 4 interview was wholly voluntary and her statements were not the product of any coercive governmental conduct, Ms. Christofalos has failed to demonstrate any violation of her fifth amendment rights.
b.
i. use of statements at trial. Even if Ms. Christofalos' right against self-incrimination was violated, we are confident, beyond a reasonable doubt, that she suffered no prejudice at trial. Ms. Christofalos points to only one instance in this lengthy trial in which the government used any information derived from the February 4 interview. See Christofalos Br. at 5. On December 18, the government asked Ms. Christofalos several questions about an employee known as "Big Mouth Mike" allegedly based on information discussed during the interview. Tr. at 3133-34. No objection was made to the line of questioning at that time. Four days later, defense counsel moved that the testimony be stricken. Tr. at 3508. After characterizing the dispute as a "tempest in a teapot," Tr. at 3510, the court granted the motion to strike. The court noted that the challenged testimony had not "one iota of probative value." Tr. at 3511. The court also explicitly informed the jury that the "Big Mouth Mike" testimony had been stricken and instructed them to disregard any reference to "Big Mouth Mike." Tr. at 3919. We are confident that any potential constitutional violation growing out of the government's trial use of information stemming from the February 4 interview was clearly harmless beyond a reasonable doubt. See Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
United States v. Calandra, 414 U.S. 338, 344-45, 94 S.Ct. 613, 618-19, 38 L.Ed.2d 561 (1974); see also Midland Asphalt Corp. v. United States, ___ U.S. ___, 109 S.Ct. 1494, 1499, 103 L.Ed.2d 879 (1989) ("even the grand jury's violation of the defendant's right against self-incrimination does not trigger the Grand Jury Clause's `right not to be tried.'"); United States v. Blue, 384 U.S. 251, 255 & n. 3, 86 S.Ct. 1416, 1419 & n. 3, 16 L.Ed.2d 510 (1966) (even if government presented to grand jury evidence acquired in violation of the fifth amendment, "our precedents indicate this would not be a basis for abating the prosecution pending a new indictment, let alone barring it altogether") (citing Costello and Lawn); 2 W. LaFave & J. Israel, CRIMINAL PROCEDURE § 15.4(a) at 303 (1984). In light of these principles, the validity of Ms. Christofalos' indictment cannot be challenged on the basis of her suspicion that statements obtained in violation of the fifth amendment were presented to the grand jury. Thus, Ms. Christofalos' contention that the district court committed reversible error by refusing to explore the evidence presented to the grand jury must be rejected.
2. Pre-indictment delay
Ms. Christofalos maintains that an unwarranted five-year pre-indictment delay
Although statutes of limitation provide the "primary guarantee" against prosecutorial delay, the Supreme Court has explained that "the Due Process Clause has a limited role to play in protecting against oppressive delay." United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). When considering whether the due process clause of the fifth amendment
Prejudice for the purposes of this analysis is difficult to prove; the defendant must point quite specifically to how she was prejudiced, and the defendant's showing must be concrete, not speculative. "A defendant must do more than allege that a particular witness is no longer available and that the witness's testimony would have helped the defense." United States v. Antonino, 830 F.2d 798, 805 (7th Cir. 1987). Moreover, we shall only conclude that the death of a witness has prejudiced a defendant where we are "`convinced that [the witness] would have testified, that his testimony would have withstood cross-examination, and that the jury would have found [him] a credible witness.'" United States v. Valona, 834 F.2d 1334, 1339 (7th Cir.1987) (quoting United States v. Williams, 738 F.2d 172, 176 (7th Cir.1984)). Further, even if we are convinced that an absent witness would have been a credible witness for the defendant, "we must still evaluate this testimony against the other trial evidence to determine if indeed its introduction would affect the trial outcome." Id.
We cannot accept Ms. Christofalos' undue delay argument. She has failed to make the requisite showing of actual and substantial prejudice. She quite frankly admits that she has no "in-depth knowledge about what the vanished witnesses or the dead witnesses could say" and she does not state how exculpatory their testimony might be. She does not even know the
3. Restricted admission of IRS Special Agent's Report
In an investigation separate from that leading to the indictments in this case, the Internal Revenue Service inquired into Ms. Christofalos' failure to file federal personal income tax returns in 1981, 1982, and 1983. This investigation was discontinued in 1986. A Special Agent's Report (SAR) reviewing the investigation and recommending that it be discontinued had been prepared by the IRS special agent working on the case. On November 16, 1987, two days before trial, the district court granted Ms. Christofalos' motion for exculpatory material under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and ordered the government to produce any portion of the SAR pertaining to Ms. Christofalos. The government made the report available to Ms. Christofalos' counsel the next day.
On the first day of trial, November 18, the district court granted the government's motion in limine prohibiting Ms. Christofalos from introducing evidence of the special agent's recommendation that the investigation be discontinued. See Tr. at 93. The court, however, did not prohibit Ms. Christofalos from informing the jury of the fact that the investigation was discontinued or from introducing any factual material arising out of the discontinued IRS investigation. Only the agent's reasons for recommending discontinuation of the investigation were to be excluded. See Tr. at 93-94. Ms. Christofalos contends that the court's evidentiary ruling denied her the fundamental constitutional right to present a defense and constitutes reversible error. We disagree.
It is a well-established principle that district courts have broad discretion to assess the relevance of proffered evidence. See United States v. Fuesting, 845 F.2d 664, 673 (7th Cir.1988); United States v. West, 670 F.2d 675, 682 (7th Cir.), cert. denied, 457 U.S. 1139, 102 S.Ct. 2972, 73 L.Ed.2d 1359 (1982). Therefore, we shall only reverse a district court's evidentiary ruling where there has been a clear abuse of that
C.
Issues Raised by John Paul Doerr
1. Submission of tape transcripts to the jury
At trial, the government presented audio tapes of conversations between an FBI undercover agent and several of the defendants. The jury was provided with transcripts of the tapes at the time the tapes were presented, and both the tapes and the transcripts were provided to the jury during its deliberations. Mr. Doerr asserts that there is an inaccuracy in one of the transcripts — the transcript incorrectly shows that he identified himself to the agent as "John Miller." Because of this alleged inaccuracy in one of the transcripts, Mr. Doerr contends that the court erred in submitting the transcripts to the jury. We disagree.
Trial courts possesses wide discretion in determining whether to allow juries to use written transcripts as aids in listening to audio tape recordings. See United States v. Keck, 773 F.2d 759, 766 (7th Cir.1985). In addition, we have previously held that allowing the jury to have the transcripts during their deliberations, as well as when the tapes are played during the trial, is not error. See United States v. Puerta Restrepo, 814 F.2d 1236, 1242 (7th Cir.1987); United States v. Dorn, 561 F.2d 1252, 1257 (7th Cir.1977). We cannot say that the district court abused its discretion in permitting the jury here to have the transcripts, as well as the tapes, during its deliberations. The court reasonably concluded that the transcripts would be helpful to the jury in this lengthy trial. See Tr. at 3898, 3916 (transcripts "would materially assist the jury here rather than making them listen to fairly long tapes"). In this case, as in Dorn, the "discrepanc[y] complained of [is] so minimal that [it] could not have substantially affected the meaning of the conversations." 561 F.2d at 1257. In addition, Mr. Doerr's challenge to the accuracy of the transcript was placed before the jury during defense counsel's cross-examination of the agent who had prepared the tapes. See Tr. at 383-89, 415-16. Finally, the district court twice instructed the jury, once before the tapes were played and again prior to their deliberations, that the tapes, not the transcripts, were evidence in this case. The jury was clearly informed that, if there was any variation between the tapes and the transcripts, they were to rely solely on the tapes. See Tr. at 305, 4153; see also Puerta Restrepo, 814 F.2d at 1241; Dorn, 561 F.2d at 1257 (any problems arising from alleged inaccuracies in transcripts "were obviated by the meticulous instructions given the jury concerning the proper function of the transcripts"). Under these circumstances, the district court did not abuse its discretion in allowing the jury to have the transcripts during its deliberations.
2. Failure to prove existence and duration of conspiracy before trial
Prior to trial, Mr. Doerr requested that the court hold a hearing, pursuant to United
The district court did not err in refusing to order a pretrial hearing to determine the existence of a conspiracy for the purposes of Rule 801(d)(2)(E). Because the evidence presented at trial might alter the court's pretrial Santiago determination, we have explained that "holding a full blown pretrial hearing for a decision which is not final is an inefficient means of resolving" the preliminary factual issues arising under the coconspirator exception. Andrus, 775 F.2d at 837. Therefore, we recognized in Andrus that procedures like those demanded by Mr. Doerr "[are] not the only acceptable means of making the Santiago determination," 775 F.2d at 837, and explicitly approved the alternate methodology utilized by the district court in this case. A trial court "can admit the [coconspirators'] statements subject to the government's eventual proof by a preponderance of the evidence of the elements required under rule 801(d)(2)(E). If the government fails its burden, the court will either declare a mistrial or issue an appropriate limiting instruction, depending on the degree of damage done by the declarations admitted." Id.; see also United States v. Shoffner, 826 F.2d 619, 629 (7th Cir.) (order of proof on preliminary questions of fact under Rule 801(d)(2)(E) "rests within the sound discretion of the trial court"; court can require preliminary proffer of evidence or defer ruling until close of government's case), cert. denied, 484 U.S. 958, 108 S.Ct. 356, 98 L.Ed.2d 381 (1987); United States v. Peters, 791 F.2d 1270, 1285 (7th Cir.) ("The judge may admit the coconspirator hearsay conditioned upon the prosecution subsequently establishing by independent evidence the existence of a conspiracy. If the condition is never satisfied, a mistrial or at least an instruction for the jury to disregard the hearsay statements would be necessary.") (citation to Andrus omitted), cert. denied, 479 U.S. 847, 107 S.Ct. 168, 93 L.Ed.2d 106 (1986). Thus, the district court's refusal to hold a pretrial hearing on this issue was not error.
3. Sufficiency of the evidence/statute of limitations on Count One
Mr. Doerr asserts that the government presented insufficient evidence to support a guilty verdict with respect to him on Count One of the indictment because he withdrew from the conspiracy charge in Count One when he left Kenosha and moved to California in March 1982. He argues that the evidence presented in this case shows that he did not participate in any conspiratorial agreement or commit any acts facilitating
Mr. Doerr's contention is without merit. As we recently noted, "[a]n appellant raising a sufficiency of the evidence claim shoulders a heavy burden." United States v. Johnston, 876 F.2d 589, 593 (7th Cir. 1989). In our review of a sufficiency of the evidence claim, we are required to consider the evidence in the light most favorable to the government. "It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Therefore, we shall only reverse a conviction for lack of evidence when the record contains no evidence, "`regardless of how it is weighed,'" from which a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. See Johnston, supra at 593 (quoting United States v. Angulo, 864 F.2d 504, 508 (7th Cir.1988)).
We have reviewed the record in this case and conclude that the government did present sufficient evidence to support a guilty verdict on Count One. For example, the government's evidence shows that Mr. Doerr participated in the laundering of funds generated by the prostitution activities in Kenosha as late as July 6, 1982.
D.
Issues Raised By Dale Doerr
1. Sufficiency of the evidence
Dale Doerr argues that his conviction is not supported by sufficient evidence because the only evidence of his knowledge of the existence of the conspiracy charged in Count One came from the testimony of unindicted coconspirators. Dale also maintains that the overt acts alleged against him, which included participating in the massage parlor's bookkeeping, are consistent
The government clearly presented sufficient evidence to support Dale Doerr's conviction. Several witnesses testified that prostitution occurred at the massage parlor, and Camille Jenkins, a masseuse at the massage parlor, identified Dale Doerr as the massage parlor's assistant manager. As Dale concedes in his reply brief, "[o]bviously, an assistant manager would know what was happening at the massage parlor." Dale Doerr Reply Br. at 3. Ms. Jenkins also testified that she received instructions from Dale regarding the manner in which she should treat customers and how she should dress. Moreover, she testified that Dale had discussed a quota system with her and told her that the masseuses had to "bring in business" and "try to make [their] quota." Tr. at 536. Another masseuse testified that Dale had given her scheduling instructions. Tr. at 1184-85. Moreover, John Patrick Doerr testified that Dale was present during conversations in which their father, John Paul Doerr, stated that the massage parlor's employees should be encouraged to have sexual relationships with "regular customers," in order to avoid being "in the back room with a cop." Tr. at 909-11. A reasonable jury could easily infer from this evidence that Dale Doerr was part of a conspiracy to facilitate prostitution.
2. Failure to restrict jury's consideration of Dale's premajority acts
Dale Doerr reached the age of 18 on August 17, 1981. He contends that the district court erred by denying his request for a jury instruction that would have precluded the jury from considering his premajority acts as evidence of acts in furtherance of the conspiracy charged in Count One of the indictment. See Tr. at 4206-08. The requested instruction would have informed the jury that premajority acts could only be considered as evidence of knowledge of the conspiracy. Id. at 4207. Dale maintains that the instruction he requested was approved by the court in United States v. Spoone, 741 F.2d 680, 687 (4th Cir.1984), cert. denied, 469 U.S. 1162, 105 S.Ct. 917, 83 L.Ed.2d 929 (1985).
The district court did not err in refusing to give the requested instruction. Contrary to Dale Doerr's assertion, the Fourth Circuit in Spoone did not explicitly "approve" an instruction of the type he requested. Instead, the court rejected the appellant's claim that he had been convicted solely on the basis of premajority acts because "the trial court repeatedly instructed the jury that it could not consider the juvenile acts as evidence of [the appellant's] guilt." 741 F.2d at 687. Moreover, the Eleventh Circuit, in United States v. Cruz, 805 F.2d 1464, 1475-77 (11th Cir. 1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 (1987), squarely rejected any implication based on Spoone that the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042, would prohibit the conviction of a defendant on the basis of his premajority actions. The court noted that the protections of the Juvenile Delinquency Act are designed "`to guarantee certain basic rights to juveniles who come within Federal jurisdiction.'" 805 F.2d at 1476 (quoting 120 Cong. Rec. 25,162 (statement of Sen. Bayh)). Thus the protections of the Act are not applicable to a defendant, like Dale Doerr, who is not a juvenile and has not committed an act of juvenile delinquency. See id.
The court also noted that "conspiracy is a continuing crime." 805 F.2d at 1475. As the courts in both Spoone and Cruz recognized, "`[t]he Juvenile Delinquency Act does not ... prevent an adult criminal defendant from being tried as an adult simply because he first became embroiled in the conspiracy with which he was charged while still a minor.'" Cruz, 805 F.2d at 1475 (quoting Spoone, 741 F.2d at 687). Thus, once it is established that certain acts of the charged offense occurred after the defendant's eighteenth birthday, it is appropriate for the entire case to be tried in adult court, in accordance with adult rules of procedure and evidence. Id. at 1477. The court in Cruz therefore held that, once sufficient evidence has been introduced to allow a jury reasonably to conclude
In this case, sufficient evidence was introduced by the government to allow the jury reasonably to conclude that Dale Doerr had participated in the charged conspiracy after his eighteenth birthday. For example, one of the masseuses at the massage parlor testified that she saw Dale Doerr at work in the massage parlor as assistant manager almost every day that she worked over a five-month period between September 1981 and January 1982. See Tr. at 629-30. Dale's eighteenth birthday was in August 1981. In addition, in early 1982, Dale began participating in the operation of RH Credit Systems, the entity established by John Paul Doerr to process credit transactions at the Kenosha club and massage parlor. RH Credit Systems processed payment only from those two enterprises. See supra note 35. Thus, a reasonable jury could conclude that Dale engaged in postmajority conduct that facilitated the prostitution activity occurring at the Kenosha club and massage parlor. Because there was evidence that Dale's participation in the conspiracy continued after his eighteenth birthday, the district court did not err in refusing to give the requested limiting instruction.
3. Untimely motion to produce handwriting exemplar
Dale Doerr contends that the district court erred when it granted the government's motion requesting that he produce handwriting exemplars. This motion was filed more than two months after the deadline, already extended once, for filing pretrial motions had passed. Pursuant to the pretrial order, the last day for filing pretrial motions was July 24, 1987. The government's motion requesting a handwriting exemplar from Dale Doerr was not filed until October 5, 1987. The government's motion was granted on October 23, 1987. See Dale Doerr R. 148.
Dale's contention that the court erred in granting this motion is meritless. "A trial court has discretion when considering an untimely [pretrial] motion and a reviewing court may disturb the trial court's decision only for clear error." United States v. Hamm, 786 F.2d 804, 806 (7th Cir.1986). No clear error has been demonstrated here. The government has a legitimate reason for its untimely request — it maintains that it did not learn until late September 1987 that Dale intended to contest his authorship of various RH Credit Systems documents. See Dale Doerr R. 13 at 2; Government Br. at 63. Moreover, the court granted the government's motion nearly one month before the trial was scheduled to begin, and Dale has not made any concrete showing that he was prejudiced by the order requiring him to produce the handwriting exemplar. Under these circumstances, we cannot say that the district court clearly erred in granting the government's untimely request.
4. "Youthful" jurors
Over Dale Doerr's objection, the district court refused to adjourn the trial to allow two ill jurors, characterized by Dale as "youthful," to recover. Instead, the district court excused the ill jurors and replaced them with alternates. Dale maintains that the court abused its discretion by failing to interrogate the jurors with regard to the seriousness of their illnesses before dismissing them. He also contends that dismissing the two jurors without any factfinding prejudiced him because both jurors were approximately the same age that he was.
Rule 24(c) of the Federal Rules of Criminal Procedure allows the district judge to replace with alternates any jurors who "become or are found to be unable or disqualified to perform their duties." The decision to remove a juror under this rule "is committed to the sound discretion of the trial judge, and there is no abuse of discretion if the record shows some legitimate basis for his decision." United
We reject Dale Doerr's contention that the district court's dismissal of the two jurors constitutes reversible error. Because legitimate reasons for the court's decisions to excuse the jurors are evident, no abuse of discretion has been demonstrated. The district court consulted with a nurse before dismissing the first juror, see Tr. at 2540, 2542-43, and the second juror informed the court that he was "very very ill." See Tr. at 3502. Under these circumstances, the jurors' inability to continue was clearly evident to the court. Moreover, adjourning the trial while awaiting the recovery of these jurors would have unnecessarily delayed the completion of an already lengthy trial. Perhaps more importantly, Dale has not made any showing that he was prejudiced by the court's action. He merely asserts that the dismissed jurors were the same age as he was and, thus, may have "identif[ied] more with his case." See, e.g., Tr. at 2544, 3504. He has not in any way explained why youthful jurors might have been any more sympathetic to him. Such speculation hardly constitutes a demonstration of prejudice warranting reversal of a conviction. See also Tr. at 3505 (district court noted that it was "not aware of anything that guarantees to any defendant any particular type of juror"). The district court's decision to excuse the jurors and replace them with alternates thus was not an abuse of discretion.
E.
Issues Raised by the Pixleys
Christa Pixley and her husband Archie both moved that their trials be severed from those of the other defendants in this case. The Pixleys assert that, because the indictment lists a large number of overt acts attributable to their codefendants in which they themselves did not participate, the possibility of the guilt of the other defendants "spilling over" onto them was great. They maintain that the mass of evidence, the number of defendants and issues involved, and the complexity of the case made it difficult for the jury to keep separate the evidence relating to each defendant. The Pixleys maintain that the district court's denial of their severance motions constituted an abuse of discretion. We do not agree.
Rule 14 of the Federal Rules of Criminal Procedure authorizes the district court to grant a severance where it appears that a defendant is prejudiced by the joinder of offenses or defendants for trial.
860 F.2d at 754 (quoting United States v. Peters, 791 F.2d 1270, 1301 (7th Cir.) (quoting United States v. Papia, 560 F.2d 827, 836 (7th Cir.1977)) (citations omitted), cert. denied, 479 U.S. 847, 107 S.Ct. 168, 93 L.Ed.2d 106 (1986)); see also United States v. Diaz, 876 F.2d 1344, 1357 (7th Cir.1989).
We do not believe that the Pixleys have met their burden under this demanding standard. While we have recognized that denial of a severance motion may constitute an abuse of discretion when there is a great disparity of evidence between the moving defendant and his codefendants, see, e.g., Moya-Gomez, 860 F.2d at 765 (citing Peters, 791 F.2d at 1302), the mere existence of such a disparity "`is not itself grounds for a severance.'" Diaz, supra, at 1357 (quoting United States v. Hendrix, 752 F.2d 1226, 1232 (7th Cir.), cert. denied, 471 U.S. 1021, 105 S.Ct. 2032, 85 L.Ed.2d 314 (1985)). Instead, "the relevant inquiry is whether it is within the jury's capacity to follow the trial court's limiting instructions requiring separate consideration for each defendant and the evidence admitted against him." Moya-Gomez, 860 F.2d at 765, quoted in Diaz, supra, at 1358.
In this case, the district court twice informed the jury, once at the beginning of the trial and then again before the jury began its deliberations, see Tr. at 39-40, 4155, that separate consideration must be given to each defendant and each count of the indictment. The following instruction was given to the jury before it began deliberating:
Tr. at 4155. In addition, when explaining the elements of the conspiracy charge to the jury, the court instructed the jury that, "[i]n determining whether the defendant became a member of the conspiracy, you may consider only the acts and statements of that particular defendant." Tr. at 4160. In Diaz, identical limiting instructions recently were held sufficient in themselves to protect the defendants from any prejudice resulting from a joint trial. See Diaz, supra, at 1358. In this case as well, in light of the significant public benefits attendant to the joint trial of multiple defendants allegedly involved in a single conspiracy, the instructions given by the district court adequately protected the defendants from prejudice. The Pixleys have made no showing of prejudice aside from raising the spectre of "spill over" guilt. Because we must presume that jurors are capable of following the court's limiting instructions and sorting through the evidence for each defendant separately, such speculation does not constitute the demonstration of actual prejudice required to challenge successfully a district court's denial of a severance motion. See id. ("`To say that the jury might have been confused amounts to nothing more than an unfounded speculation that the jurors disregarded clear instructions of the court in arriving at their verdict. Our theory of trial relies upon the ability of a jury to follow instructions.'") (quoting Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954)). We cannot say that the Pixleys' trial was unfair. Thus, denial of their motions to sever was not an abuse of discretion.
For the preceding reasons, we affirm the convictions of Dale Doerr, John Paul Doerr, Josephine Christofalos, Christa Pixley, and Archie Pixley.
AFFIRMED.
FootNotes
18 U.S.C. § 1952(a) & (b).
18 U.S.C. § 371.
The appellants objected to the Meyer statement on the first trial day after the challenged testimony had been presented. Five days had passed only because the Thanksgiving holiday weekend intervened. Moreover, when the appellants made their objection on November 30, the district court disregarded the government's argument that any objection was untimely and ruled on the appellants' challenge to the statement. See Tr. at 751-52. With regard to the John Patrick Doerr statement, the appellants made their hearsay objection as soon as it was clear that testimony regarding an out-of-court statement had been presented. During direct examination, John Patrick Doerr had merely stated that Dale "kind of laughed and thought it was funny that I didn't know yet what was going on." Tr. at 894. In contrast, during his cross-examination, John Patrick Doerr clearly testified as to a statement made by Dale. See Tr. at 999.
Because the district court ruled on the appellants' objection to the Meyer statement and their objection to the Doerr statement was made in a timely fashion, we shall reach the merits of the appellants' objections.
18 U.S.C. § 1826(a).
At this time, Barbaro was already serving a prison sentence for a second-degree murder conviction in Florida. The appellants contend that, when Barbaro's grand jury testimony was presented, the jury was not informed that he was a convicted murderer. This is incorrect. The district court clearly advised the jury that Barbaro had been convicted of second-degree murder and informed them that that fact could be considered by them in assessing his credibility. See Tr. at 2708.
J.P. Doerr R. 66 at 2.
Fed.R.Evid. 804(b)(5).
448 U.S. at 65, 100 S.Ct. at 2538 (quoting Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934)) (citations omitted); see also Bourjaily v. United States, 483 U.S. 171, 182, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987) (to harmonize confrontation clause with society's interest in accurate fact finding, "which may require consideration of out-of-court statements," Supreme Court has "required the prosecution to demonstrate both the unavailability of the declarant and the `indicia of reliability' surrounding the out-of-court declaration").
As discussed earlier in this opinion, the government has demonstrated Barbaro's unavailability as a witness in this case. See Part II.A.2.a.i supra; see also Roberts, 448 U.S. at 74, 100 S.Ct. at 2543 ("The basic litmus of Sixth Amendment unavailability is established: `[A] witness is not "unavailable" for purposes of ... the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.' ... The law does not require the doing of a futile act.") (quoting Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 1321-22, 20 L.Ed.2d 255 (1968)) (emphasis supplied by Supreme Court in Roberts).
Fed.R.Evid. 403.
Tr. at 4152-53.
Ms. Christofalos also asserts that her lawyer's deficient performance at the February 4 interview resulted in a denial of her sixth amendment right to the effective assistance of counsel. However, any potential prejudice stemming from this allegedly ineffective assistance was cured when the district court granted Ms. Christofalos' motion to strike the challenged "Big Mouth Mike" testimony and instructed the jury to disregard the remarks. Because she cannot demonstrate that she was prejudiced by any use made of her February 4 statements, Ms. Christofalos cannot establish that her right to the effective assistance of counsel has been impaired. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) (unless defendant can show both deficient performance and prejudice to the defense, "it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable").
Dale Doerr has adopted that portion of his father's brief challenging the sufficiency of the evidence with regard to Count One on the basis of Mr. Doerr's asserted withdrawal from the conspiracy. Dale apparently believes that he also withdrew from the conspiracy before April 30, 1982. We disagree. After April 30, 1982, Dale continued to participate in the management and operations of RH Credit Systems, an entity that existed solely to process the credit transactions of the Kenosha club and massage parlor. The jury could rationally conclude that such actions facilitated the prostitution activities at those establishments.
Fed.R.Crim.P. 14.
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