COFFEY, Circuit Judge.
Thomas Harty, Walter Lesczynski, Paul DiCaro and Michael Gurgone were convicted by a jury for participating in a conspiracy to commit robbery and attempted robbery in violation of the Hobbs Act, 18 U.S.C. § 1951,
On November 28, 1983, eight men attempted to burglarize the vault at Balmoral Park Race Track, a horseracing facility in Crete, Illinois.
In the investigation of the attempted armed robbery, the government discovered that one Paul Panczko was involved in the conspiracy to commit armed robbery.
II. DEFENDANTS' APPEAL OF JURISDICTION AND THE ADMISSIBILITY OF EVIDENCE
The appellants challenge the district court's jurisdiction under 18 U.S.C. § 1951, alleging that the conspiracy to commit armed robbery and the attempted armed robbery did not involve interstate commerce; thus the crime is not under the Hobbs Act. They also assert that the admission of the taped co-defendant conversations violates Federal Rule of Evidence 804(b)(3) and the Confrontation Clause of the Sixth Amendment, as the tapes allegedly lack adequate indicia of reliability.
A. Jurisdiction over the Hobbs Act Charges
For federal jurisdiction to exist over a Hobbs Act violation, the government must demonstrate that there is a nexus between interstate commerce and the alleged
The government argues that the required nexus between interstate commerce and the alleged conspiracy to commit armed robbery and attempted armed robbery is established through the aforementioned depletion of assets theory. In United States v. Blakey, we held "that the removal of $1,000 from [the victim's] pocket could curtail his purchases ... in interstate commerce ... [and] that [extorted] payments much smaller than $1,000 have at least a de minimis impact on interstate commerce." 607 F.2d at 784 (citations omitted). Thus, the government argues that if the extortion of less than $1,000 can impact interstate commerce, certainly an attempted theft of over $500,000 will provide the requisite nexus.
Conversely, the appellants contend that the government failed to demonstrate that the conspiracy to commit armed robbery and attempted armed robbery had a nexus with interstate commerce. They concede that the business of operating Balmoral Racing Club, Inc. has an impact on interstate commerce, but they assert that the monies in Balmoral's vault on the night of the armed robbery attempt was not the property of Balmoral because from October 2, 1983, to November 27, 1983, the day before the robbery attempt, Balmoral Racing Club, Inc. leased the racetrack and the $500,000 bank roll to Cloverleaf Racing Club, Inc.
Moreover, the appellants' jurisdictional challenge must fail regardless of who owned the money, for when Cloverleaf leased the racetrack from Balmoral, Cloverleaf's operation of the track impacted interstate commerce the same as if Balmoral were conducting the races. Approximately twenty-five percent of the horses and owners came from states other than Illinois, and many of the customers traveled to Illinois from the states of Michigan, Ohio, Indiana and Wisconsin. Furthermore, some of the racetrack's essential services (e.g., parimutuel betting machines and advertising) as well as some of the necessary supplies were delivered from out-of-state firms, and the use of telephones to obtain those services and supplies also involved interstate commerce. Balmoral's general manager testified (and the appellants do not deny) that the presence of the $500,000 bank roll, which Balmoral provided for parimutuel betting, was an integral part of the operation of the racetrack regardless of who operated it. Given these circumstances, had this attempted armed robbery been successful, it would obviously have impacted on interstate commerce because without the bank roll the racetrack would have been unable to operate (change money and accept wagers), thus curtailing its very operation regardless of the technical ownership and control of the property (money) in the vault. The district court's exercise of jurisdiction over the Hobbs Act charges was appropriate.
B. Admissibility of the Harty Tapes
As pointed out earlier, during the course of the government investigation, informant Panczko engaged and recorded the conversations of Harty, DiCaro and Gurgone regarding the attempted armed robbery. The defendants objected to the admission of this evidence, in particular the tapes of the conversations between Panczko and Harty. The petitioners contend that the receipt of these tapes in evidence violated Rule 804(b)(3) (because they lacked the requisite indicia of reliability) as well as their Sixth Amendment right to confront and cross-examine their accuser.
Rule 804(a) and (b)(3) provide for the admissibility of hearsay evidence when (1) the declarant is unavailable, and (2) the statement "at the time of its making ... so far tended to subject the declarant to civil or criminal liability ... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." "[T]he assumption that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true" provides the requisite "circumstantial guarantee of reliability" to make the hearsay statements admissible. Notes of Advisory Committee on Proposed Rules, Rule 804(b)(3). Rule 804(b)(3) adds a third requirement when the statement tends to incriminate the declarant and exculpate the accused: It "is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."
Id. at 700 (quoting S.Rep. No. 93-1277, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 7051, 7068). Congress properly left the question of the constitutional parameters for determining the admissibility of hearsay evidence to the courts. In Alvarez, the Fifth Circuit consolidated the requirements of Rule 804(b)(3) and the Confrontation Clause in dealing with the admission of incriminating, out-of-court statements by an unavailable declarant when offered to inculpate a defendant.
We recently adopted the Fifth Circuit's approach to Rule 804(b)(3) in United States v. Garcia, 897 F.2d 1413 (7th Cir.1990), while retaining a separate Confrontation Clause analysis. Under the three-prong 804(b)(3) test we established in Garcia, "a court must find that, (1) the declarant's statement was against the penal interest of the declarant, (2) corroborating circumstances exist indicating the trustworthiness of the statement, and (3) the declarant must be unavailable." 897 F.2d at 1420. Our Confrontation Clause test has long required "that the declarant actually made the statement ... [and (2) that] there must be circumstantial evidence supporting the truth of the statement." United States v. Blakey, 607 F.2d 779, 786 (7th Cir.1979). Under the Supreme Court's recent holding in Idaho v. Wright, ___ U.S. ___, 110 S.Ct. 3139, 3150, 111 L.Ed.2d 638 (1990), however, the second prong of Blakey is invalid and the test must now conform to the requirement that the hearsay must be reliable "by virtue of its inherent trustworthiness."
1. Admissibility under Rule 804(b)(3)
The appellants do not question whether Harty's statements were against his penal interest, and their contention that Harty was unavailable as a witness only because the government chose to make him a defendant is without merit.
Initially, the appellants contend that the Harty tapes are inherently unreliable because the conversations recorded on the tapes occurred nearly two years after the armed robbery attempt, thus the passage of time is crucial because much of the conversation on the Harty tapes dealt with the identity of the government informant who was supplying incriminating evidence to the grand jury, and many outsiders had also acquired knowledge about the attempted armed robbery subsequent to the event. Thus, they argue, there was a risk that the trial jury would confuse and possibly misinterpret a person's knowledge about the armed robbery attempt, acquired after the fact, for actual participation in the attempt.
2. Confrontation Clause Challenge to Admission of Harty Tapes
The appellants argue that the admission of the Harty tapes violated their Sixth Amendment right to confront and cross-examine their accuser, but they fail to address the test adopted by the Seventh Circuit. This Court has previously adopted a two-part test from Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213 (1970), to be addressed in determining whether the admission of the Harty tapes under a hearsay exception violates the defendants' right to confront their accuser. "First, it must be clear that the declarant actually made the statement in question. Second, there must be circumstantial evidence supporting the truth of the statement." United States v. Blakey, 607 F.2d at 786. In view of Idaho v. Wright, 110 S.Ct. at 3150, the Supreme Court has mandated a new test for the second prong of our analysis. "To be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial." Id. Thus under our new test, it must be clear that Harty made the statements, and the statements must be inherently reliable because of the circumstances surrounding them. The appellants do not challenge the fact that Harty
The appellants argue that our decision in Riner v. Owens, 764 F.2d 1253 (7th Cir.1985), bars the admission of the Harty tapes. In Riner we reversed a conviction that was based on an out-of-court statement by a co-defendant. The inadmissible statement in Riner is clearly distinguishable from the Harty tapes, however, because it "was the only evidence clearly implicating [the defendant] as an aider and abettor of his uncle." Id. at 1260. Consequently, there was an inadequate demonstration of reliability of the statement. In contrast, the information contained in the Harty tapes was inherently trustworthy because of the circumstances (Harty's attempt to protect himself) surrounding the making of the statements. Moreover, the evidence contained in the tapes was corroborated in the trial testimony of Basile, Ciancio and Panczko, who participated in the taped conversations, as well as through the physical evidence of burglary from the scene of the crime (bypassed alarm) and the testimony of the security guard regarding the theft of her radio. Thus the appellants' reliance on Riner is misplaced.
III. GURGONE'S CHALLENGE TO THE SUFFICIENCY OF THE EVIDENCE OF THE LENGTH OF HIS SENTENCE
Michael Gurgone challenges the sufficiency of the evidence for his conviction and further alleges that his seven-year sentence is excessive and disproportionate to the sentences of the other defendants and is thus in violation of the Eighth Amendment.
A. Sufficiency of Evidence
"When assessing a challenge to the sufficiency of the evidence, we must affirm a verdict of guilty if the evidence, when viewed in the light most favorable to the government, establishes that any rational trier of fact could have found the defendant guilty of the crime charged." United States v. O'Malley, 796 F.2d 891, 902 (7th Cir.1986) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Gurgone essentially argues that the Harty tapes were inadmissible
Despite Gurgone's examples of minor inconsistencies in the testimony, we refuse to reassess the credibility of the witnesses' testimony because that is the prerogative of the trial court.
United States v. Dunigan, 884 F.2d 1010, 1013 (7th Cir.1989). The minor inconsistencies referred to in the testimony of Panczko and Basile cited by Gurgone fail to meet the standard required of evidence that is "incredible as a matter of law." It was for the trier of the facts, the jury, to determine whether the inconsistencies rose to the level of incredible testimony, and obviously they found the testimony to be sufficiently credible to render a verdict of guilty. Upon review, we see no reason to disturb the jury's findings.
B. Excessive and Disproportionate Sentence
The jury found the defendant Gurgone guilty of conspiracy to commit robbery in violation of 18 U.S.C. § 1951, attempted robbery in violation of 18 U.S.C. § 1951, and the use of a firearm during the commission of an attempted robbery in violation of 18 U.S.C. § 924(c)(1).
For crimes that occurred before the Sentencing Guidelines became effective, it is well settled that "a trial judge in
Gurgone's presentence report reflected that he had a number of arrests for burglary, one conviction for attempted rape and one citation for civil contempt. Without citing legal support, Gurgone asserts that his arrest record was "improper matter" for the trial judge to consider in determining his sentence. Nonetheless, "it is well within a trial court's discretion to rely upon presentence reports which contain references to any prior criminal record which establishes a propensity toward crime on the part of the defendant...." United States v. Madison, 689 F.2d 1300, 1312 (7th Cir.1982) (emphasis original). Furthermore,
Id. at 1313 (emphasis added). Gurgone's arrest record was within the "wide latitude ... of information [the judge] can consider when sentencing," especially considering the number of prior arrests dealing with burglary (eight) and theft or robbery (two others).
Id. at 1314-15. In view of the length of Gurgone's arrest record, it seems rather obvious that he has failed to "learn from his past mistakes and transgressions of the law."
The hearsay that Gurgone challenges consisted of a statement by an FBI agent at Gurgone's detention hearing reciting information received from five informants detailing Gurgone's involvement in several burglaries and robberies. Gurgone argues that the FBI's informants were unreliable because two of them told inconsistent stories, depending upon who spoke with them.
After consideration of the facts surrounding the history of Gurgone's criminal activity, the trial judge concluded that Gurgone was not a first-time offender who carelessly got involved with the attempted armed robbery on the spur of the moment. Rather, after reviewing Gurgone's arrest record, prior criminal conviction of attempted rape, incarceration for civil contempt
Gurgone asserts that his sentence of seven years' imprisonment violates the Eighth Amendment prohibition against cruel and unusual punishment because his sentence is disproportionate to that of the other defendants when compared with their respective culpability and past criminal activity. Gurgone received the second-longest sentence of the co-defendants despite his claim that he had a reduced role in the attempted armed robbery of Balmoral racetrack. Gurgone has had one criminal conviction (for attempted rape when he was 19) and one civil contempt citation, as opposed to Lesczynski, DiCaro and Harty who all have a history of criminal convictions. Lesczynski, one of the co-defendants
We fail to understand how a seven-year sentence out of a maximum of 50 years could possibly constitute cruel and unusual punishment considering Gurgone's sordid record of criminal activity, and an unmeritorious challenge of this nature does nothing but waste the court's valuable time. Indeed, the sole case upon which Gurgone relies for his proportionality argument, Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), is inapplicable to his contention. In Solem, the Supreme Court focused on the proportionality of the sentence to the crime rather than on the sentences among co-defendants. Moreover, "the disparity of sentences between co-defendants does not alone prove abuse of discretion...." United States v. Madison, 689 F.2d 1300, 1315 (7th Cir.1982). "If the sentencing judge gives `thoughtful consideration' to the sentence ... this court will not disturb the imposition of disparate sentences on co-defendants." United States v. Nowicki, 870 F.2d 405, 409 (7th Cir.1989). The sentencing judge gave "thoughtful consideration" to how Gurgone's past should affect the sentence and explained that "[a]s a result [of your record of criminal activity], I am permitted by the law to deal with you differently than I could deal with someone else who was convicted of breaking the same law. * * * In trying to fashion the sentence I can't overlook what you did."
Furthermore, a comparison of the co-defendants' culpability and total duration of incarceration demonstrates that Gurgone's allegation of impropriety lacks merit. Gurgone had far more culpability in the attempted armed robbery than Harty: Gurgone introduced the two leaders of the Balmoral conspiracy to each other, Panczko and DiCaro;
The judgment of the district court is
18 U.S.C. § 924(c)(1). 18 U.S.C. § 2(a) provides, "[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."
Harty's argument dealing with the admission of the tapes is without merit in that Rule 801(d)(2)(A) says that an admission by a party that is "the party's own statement" is not hearsay.
The petitioners make a further spurious argument in contending that Douglas v. Alabama, 380 U.S. 415, 420, 85 S.Ct. 1074, 1077, 13 L.Ed.2d 934 (1965) and United States v. Key, 725 F.2d 1123, 1126-27 (7th Cir.1984), co-defendant confession cases, require exclusion of hearsay evidence that adds "critical weight" to the government's case. The "critical weight" argument, if accepted, would completely emasculate our statement-against-penal-interest doctrine, and it is without basis in law. The statements in the cases the appellants cite lacked the requisite indicia of reliability, and the courts were required to determine whether the admission of the unreliable evidence so prejudiced the defendants that the verdict must be vacated. There is no question that the Harty tapes possess the requisite indicia of reliability.