United States v. Centracchio, Anthony ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3963
United States of America,
Plaintiff-Appellant,
v.
Anthony T. Centracchio, Thomas R. Tucker,
Robert S. Urbinati, and Robert D. Natale,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 325--Robert W. Gettleman, Judge.
Argued April 12, 2001--Decided September 4, 2001
Before Flaum, Chief Judge, and Manion and
Kanne, Circuit Judges.
Manion, Circuit Judge. Four defendants
were indicted for a RICO conspiracy and
obstruction of law enforcement based on
their alleged illegal video poker
gambling business. In pre-trial motions,
the district court excluded two pieces of
evidence: a guilty plea allocution and
the statements of a deceased co-
conspirator. The United States appeals
those rulings on an interlocutory basis.
With respect to the district court’s
ruling on the guilty plea allocution, we
reverse. With respect to the district
court’s ruling on the statements of a
deceased co-conspirator, we reverse and
remand.
I.
A. Indictment
On April 13, 2000, a grand jury returned
a superseding indictment charging Anthony
Centracchio, Thomas Tucker, Robert
Urbinati and Robert Natale with various
criminal offenses including RICO
conspiracy, 18 U.S.C. sec. 1962(d), and
obstruction of state or local law
enforcement with intent to facilitate an
illegal gambling business, 18 U.S.C. sec.
1511.
In Count One of the indictment, the RICO
count, the government alleged that
defendants Centracchio and Tucker, and an
unindicted co-conspirator, Louis Eboli,
were members of an illegal enterprise.
Urbinati and Natale were allegedly
employed by the enterprise. The RICO
conspiracy allegedly began in about 1978
and continued until February, 1999 and
consisted of illegal gambling activities
which took place "in Franklin Park,
Melrose Park, Northlake, Stone Park, and
elsewhere in the State of Illinois."
Eboli was described as the leader of the
enterprise until his death in 1987, some
time after which Centracchio became the
boss. Both allegedly distributed bribe
money to law enforcement and public
officials for the protection of their
illegal activities. Tucker, a former
Stone Park police lieutenant, was
allegedly the second-in-command of the
enterprise and relayed orders and
distributed money from Centracchio and
Eboli to others. Urbinati, a Franklin
Park police officer between 1968 and
1995, allegedly received cash bribes from
Tucker on a monthly basis to protect the
gambling activities in Franklin Park.
Natale, employed by the Stone Park police
department from 1971 to 1989 and mayor of
Stone Park from 1989 to the time of the
indictment, also allegedly received cash
bribes from Tucker on a monthly basis to
protect the gambling activities in Stone
Park. Seymour Sapoznik, another
unindicted co-conspirator and the former
Chief of Police of Northlake and Stone
Park, Illinois, also allegedly received
cash bribes from Tucker on a monthly
basis to assure unhindered illegal
operation of video gambling businesses in
those towns.
In Count Three of the indictment, the
government charged that between 1978 and
December of 1994, all four of the named
defendants conspired together and with
Sapoznik and other law enforcement
officers to obstruct the enforcement of
the criminal laws of Illinois. In
furtherance of the conspiracy, Tucker and
Sapoznik allegedly met several times
between March, 1993 and November, 1994,
after Tucker had previously met with
Centracchio.
B. Seymour Sapoznik’s Plea Allocution
On September 8, 2000, the government
filed its Santiago proffer./1 In the
proffer, the government sought to
introduce Sapoznik’s guilty plea
agreement into evidence. Then, on
September 29, 2000, the government filed
a motion in limine to also admit his
guilty plea allocution into evidence as a
statement against penal interest,
pursuant to Fed. R. Evid. 804(b)(3).
On February 6, 1997, Sapoznik had
entered a guilty plea to a one-count
information charging that, while the
Northlake Chief of Police, he had
received monthly bribes from "Individual
A"/2, in violation of 18 U.S.C. sec.
1962. Sapoznik’s written plea agreement
was entirely prepared by the government,
and filed with and accepted by the court.
Therein, Sapoznik admitted that:
at the beginning of each month [between
November 1990 and December 1994]
Individual A made $500 bribe payments to
defendant on behalf of the Outfit and at
the direction of Individual A’s boss in
the Outfit. . . . These bribe payments
were made in return for defendant’s
assistance in ensuring that the illegal
activities of the Outfit, including the
payment of money to winning players on
joker poker machines in the town bars,
were not investigated by the Northlake
Police Department of which defendant was
police chief.
At the plea colloquy, the government read
the foregoing portion of the plea
agreement out loud. The presiding judge
then asked Sapoznik, "Mr. Sapoznik, did
you hear what Mr. Levine just had to
say?" Sapoznik responded, "Yes, I did,
your Honor." The judge replied, "Is what
he said the truth?" Sapoznik answered,
"That is correct." This is the evidence
which the government seeks to admit in
the present case (referred to hereafter
as the plea allocution).
Several months after this plea colloquy,
Sapoznik was interviewed by a probation
officer and he denied that he had
accepted bribery payments while in Stone
Park./3 At his subsequent sentencing
hearing, the government presented
evidence of "relevant conduct" refuting
this denial and argued that Sapoznik was
a liar. The trial court found that
Sapoznik’s denial was false. Sapoznik was
then sentenced to 87 months’
imprisonment.
Sapoznik was unavailable to testify at
trial in this case; his attorney stated
that, even though he had been immunized
pursuant to 18 U.S.C. sec. 6002, he would
invoke his Fifth Amendment privilege and
refuse to testify if called as a witness.
Sapoznik’s intransigence is confirmed by
the fact that he previously chose to
serve 14 months (in addition to his 87-
month sentence) for civil contempt
instead of obeying an immunity order
compelling his testimony before the grand
jury. Accordingly, the government sought
to introduce into evidence the above-
described portion of the colloquy from
Sapoznik’s guilty plea allocution for the
limited purpose of proving the existence
of the charged conspiracy. The government
also proposed that a limiting instruction
be read to the jury to explain the
evidence./4
The defendants moved to exclude the
evidence, arguing it lacked indicia of
reliability because the government had
argued at Sapoznik’s subsequent
sentencing hearing that he was a liar.
The district court granted the motion,
relying on the fact that Sapoznik had
lied, thus finding that the evidence did
not have a sufficient guarantee of
trustworthiness under Fed. R. Evid. 804.
The district court judge also stated that
he was "concerned that under a 403
analysis it would be more prejudicial
than it would be probative because of the
basic lack of reliability that I find in
this statement." The government moved for
reconsideration, but the district court
denied that motion as well for the same
reasons, adding that "it’s incredibly
unfair to have a damaging statement like
this read to the jury without any ability
of the defense to cross-examine a person
like that."
C. Testimony of Edward Bluthardt, Jr.
In the government’s Santiago proffer, it
also sought to introduce the testimony of
Edward Bluthardt, Jr., who would testify
that he began work with the Schiller Park
Police Department in about 1976, and
served as its Chief of Police from 1980
to 1993. Bluthardt’s father was mayor of
Schiller Park during this time period.
The government further proffered that
Bluthardt would testify, pursuant to Fed.
R. Evid. 801(d)(2)(E), that several times
in the late 1970s and early 1980s, he ran
into Eboli at local restaurants and bars
at which time Eboli would bring up the
subject of video poker machines and how
lucrative they were. Eboli allegedly
promised him that once machines were put
in Schiller Park, Bluthardt would be
taken care of and get a lot of money.
Bluthardt always responded that he and
his father were opposed to the machines
and would not allow them into town.
Defendant Natale filed a motion to
suppress this testimony, arguing that the
circumstances surrounding the
conversations, which allegedly occurred
over 20 years ago, and the fact that
Eboli was dead, compelled their exclusion
under Fed. R. Evid. 403. In addition,
Natale argued that, since Bluthardt was
not alleged to have been a member of the
conspiracy, his statements were not
properly admissible under Rule
801(d)(2)(E). The government responded
that the statements were important
evidence of Eboli’s attempt to extend the
conspiracy. The district court
grantedNatale’s motion, stating, in part,
"I’m troubled by the remoteness in time
and the fact that this is by this
gentleman who is no longer alive about
somebody’s father who doesn’t like to
have them in his village . . . . I am
concerned under a 403 analysis that this
is very attenuated and not terribly
probative." And, in its final ruling, the
court stated, "Attenuated, it’s probably
a different conspiracy altogether, 403.
Shall I go on?"
II.
18 U.S.C. sec. 3731 authorizes this
court to review interlocutorily a
district court decision suppressing or
excluding evidence, where, as here, the
United States attorney certifies to the
district court that the appeal is not
taken for the purpose of delay and the
evidence is a substantial proof of a fact
material in the proceeding. We review the
district court’s construction of
evidentiary rules de novo, and the
application of those rules to the facts
for an abuse ofdiscretion. United States
v. Robbins, 197 F.3d 829, 837 (7th Cir.
1999).
A. Seymour Sapoznik’s Plea Allocution
1. Rule 804(b)(3).
The first issue on appeal is whether the
district court correctly excluded
Sapoznik’s plea allocution, which the
government sought to admit pursuant to
Fed. R. Evid. 804(b)(3), the hearsay
exception for statements against penal
interest. The exception applies if the
declarant is unavailable and the
statement:
which was at the time of its making . .
. so far tended to subject the declarant
to . . . criminal liability, . . . that
a reasonable person in the declarant’s
position would not have made the
statement unless believing it to be true.
Fed. R. Evid. 804(b)(3). The government
argues that a guilty plea allocution
satisfies the requirements of this rule
and that the district court committed a
reversible legal error by focusing on
Sapoznik’s credibility.
In Williamson v. United States, the
Supreme Court had occasion to "clarify
the scope of the hearsay exception for
statements against penal interest." 512
U.S. 594, 596 (1994). The Court noted
that "[r]ule 804(b)(3) is founded on the
commonsense notion that reasonable
people, even reasonable people who are
not especially honest, tend not to make
self-inculpatory statements unless they
believe them to be true." Id. at 599. The
Court further stated that "[t]he question
under Rule 804(b)(3) is always whether
the statement was sufficiently against
the declarant’s penal interest ’that a
reasonable person in the declarant’s
position would not have made the
statement unless believing it to be
true,’ and this question can only be
answered in light of all the surrounding
circumstances." Id. at 603-04. In
Williamson, the declarant had lied to the
police when he was first interviewed and
several hours later told a different
story. Id. at 596-97. When the declarant
refused to testify against a co-
defendant, the Court ruled that the self-
inculpatory parts of his confession were
admissible at trial. Id. at 604.
Likewise, the Supreme Court ruled that
Rule 804(b)(3) "does not allow admission
of non-self-inculpatory statements, even
if they are made within a broader
narrative that is generally self-
inculpatory." Id. at 600-01. When the
statement implicates someone else along
with the declarant, the statement has
less credibility than ordinary hearsay
evidence. Id. at 601.
Thus, as the Supreme Court in Williamson
made clear, the district court should
have addressed first whether the
statements in Sapoznik’s plea allocution
were self-inculpatory, and if so,
whether, in light of the surrounding
circumstances, a reasonable person would
have made those statements unless he
believed they were true. First, under
Williamson, "the district court must
consider whether each statement, not just
the confession as a whole, was truly
self-inculpatory." United States v.
Castelan, 219 F.3d 690, 694 (7th Cir.
2000). As in Castelan, the record before
us is silent on whether the district
court considered whether each statement
in the plea colloquy was an admission of
a fact or circumstance that tended to
establish Sapoznik’s own guilt. But our
review of each of the statements in the
plea allocution demonstrates that his
statements are genuinely self-
inculpatory.
The defendants argue that the plea
colloquy was not completely self-
inculpatory. Specifically, they point to
those statements where, even though no
other defendants are mentioned by name,
Sapoznik admitted he took bribes from
"Individual A . . . at the direction of
Individual A’s boss," thereby
incriminating other persons. We do not
find this argument persuasive. It is true
that the crime of bribery, like that of
conspiracy, by definition requires (at
least) two participants. But Sapoznik’s
statements were truly inculpatory to him
only because they did not seek to lessen
blame as to his crime by spreading blame
to others. While the admission of bribery
necessarily implies that another person
was involved, that is not the type of
blame-spreading which typically raises
concerns. See Williamson, 512 U.S. at 603
(noting that a declarant’s squarely self-
inculpatory confession--"I killed X"--
will likely be admissible under Rule
804(b)(3) against accomplices of his who
are being tried under a co-conspirator
liability theory). As Justice Scalia
noted in his concurrence, "a declarant’s
statement is not magically transformed
from a statement against penal interest
into one that is inadmissible merely
because the declarant names another
person or implicates a possible
codefendant." Id. at 606 (Scalia, J.,
concurring); Robbins, 197 F.3d at 839
(quoting same). Thus, the plea allocution
is admissible under Rule 804(b)(3) even
if it tends to incriminate the other
defendants when coupled with other
evidence at trial.
Given the statement’s self-inculpation,
the district court next should have
considered whether, in light of the
surrounding circumstances at the time of
its making, a reasonable person would
have made the plea allocution unless
believing it to be true. A plea of guilty
is likely to be a classic statement
against penal interest for obvious
reasons, and the circumstances of this
particular plea allocution support our
conclusion. The defendants claim that
Sapoznik did not plead guilty because he
actually committed the crime of bribery.
Rather, they argue that he was induced to
plead guilty because he thought he was
getting a good deal from the government.
They allege that Sapoznik’s assumption
later turned out to be wrong because the
government allegedly reneged on the plea
agreement’s guideline calculations. The
district court stated that this rendered
the statement "inherently unreliable
given the circumstances of this plea."
Our own review of the plea agreement
itself reveals that paragraph 6(e)
provided "the defendant and his attorney
and the government acknowledge that the
above calculations are preliminary in
nature and based on facts known to the
government at the time of this Agreement
. . . the Court ultimately determines the
facts and law relevant to sentencing, and
that the Court’s determinations govern
the final Sentencing Guidelines
calculation." Nevertheless, even assuming
Sapoznik was promised a "good deal" by
the government, a reasonable person, with
benefit of counsel, under oath, in front
of a federal judge, with no promise of
leniency in the actual plea agreement,
and risking a substantial prison term,
would likely not admit that he committed
the crime of racketeering by accepting
monthly bribes, unless believing that
statement to be true. It is also safe to
assume that when an accused person pleads
guilty he is getting (if not a "good
deal") a better deal than risking the
consequences of going to trial.
Thus, in light of all the circumstances
of the plea allocution, we find that it
was properly admissible under Rule
804(b)(3). To the extent that the
district court considered Sapoznik’s
later lack of credibility (especially
based on events occurring several months
after the plea allocution), it erred as a
matter of law. Indeed, as the Supreme
Court made clear, "reasonable people,
even reasonable people who are not
especially honest, tend not to make self-
inculpatory statements unless they
believe them to be true." Williamson, 512
U.S. at 599 (emphasis added). Thus, the
district court’s failure to admit the
allocution under Rule 804(b)(3) was an
abuse of discretion.
We also address the district court’s
concern that the defendants would be
unable to cross-examine Sapoznik. The
inability to cross-examine a declarant is
not a ground for excluding a statement
under Rule 804(b)(3) because the
unavailability of the declarant is a
prerequisite to the admission of such
statements. See Fed. R. Evid. 804(a)(2)
and (b)(3). In any event, the rules of
evidence address the problem of
impeaching an unavailable declarant:
"[w]hen a hearsay statement . . . has
been admitted in evidence, the
credibility of the declarant may be
attacked, and if attacked may be
supported, by any evidence which would be
admissible for those purposes if
declarant had testified as a witness."
Fed. R. Evid. 806. Thus, to the extent
that the district court rested its
exclusion of the plea allocution on the
defendants’ inability to cross-examine
Sapoznik, it erred as a matter of
law./5
2. Sixth Amendment Confrontation
Clause.
Finding that the plea allocution was
properly admissible under Rule 804(b)(3)
does not end our analysis. Even if the
plea allocution qualifies as a statement
against penal interest, the defendants
argue that its admission would violate
the Confrontation Clause of the Sixth
Amendment. It is unclear whether the
district court rejected this argument or
whether it was an alternative basis for
its ruling. Regardless, we conduct a de
novo review of "an evidentiary ruling
that affects a defendant’s Sixth
Amendment right to confront witnesses,
and independently review whether the
proffered guarantees of trustworthiness
satisfy the demands of the
[Confrontation] Clause." Castelan, 219
F.3d at 694 (citations omitted).
The Confrontation Clause of the Sixth
Amendment guarantees the accused the
right "to be confronted with the
witnesses against him." U.S. Const.
Amend. VI. "The central concern of the
Confrontation Clause is to ensure the
reliability of the evidence against a
criminal defendant by subjecting it to
rigorous testing in the context of an
adversary proceeding before the trier of
fact." Maryland v. Craig, 497 U.S. 836,
845 (1990). This rigorous testing is most
often conducted through the use of cross-
examination. California v. Green, 399
U.S. 149, 158 (1970) (describing cross-
examination as the "greatest legal engine
ever invented for the discovery of
truth."). However, courts allow hearsay
to be admitted, even without the process
of cross-examination, where "(1) ’the
evidence falls within a firmly rooted
hearsay exception’/6 or (2) it contains
’particularized guarantees of
trustworthiness’ such that adversarial
testing would be expected to add little,
if anything, to the statements’
reliability." Lilly v. Virginia, 527 U.S.
116, 124-25 (1999) (plurality opinion)
(quoting Ohio v. Roberts, 448 U.S. 56, 66
(1980)).
In Lilly v. Virginia, a plurality of the
Supreme Court held that an accomplice’s
confession that inculpates another
criminal defendant is not within a firmly
rooted exception to the hearsay rule
(even if the statement was technically
against his own penal interest). 527 U.S.
at 134. The plurality stated that it is
unlikely that the presumptive
unreliability that attaches to
accomplices’ confessions that shift or
spread blame can be effectively rebutted
when the statements are given under
conditions that implicate the core
concerns of the old ex parte affidavit
practice--that is when the government is
involved in the statements’ production,
and when the statements describe past
events and have not been subjected to
adversarial testing.
Id. at 137. The plurality then ruled that
admissions by an accomplice which
incriminate a co-defendant are only
admissible when they contain
"particularized guarantees of
trustworthiness" because "such statements
are suspect insofar as they inculpate
other persons." Id. at 139. The Lilly
court concluded that the statements
before it did not bear the guarantees of
trustworthiness, where the police had
extracted a confession from a drunk co-
defendant in the middle of the night, id.
at 121, and the declarant was primarily
responding to the officers’ leading
questions, id. at 139.
Like the plurality in Lilly (which was
addressing a state law hearsay
exception), we have concluded that
statements under Rule 804(b)(3) which
spread or shift blame to others do not
fall within a "firmly rooted hearsay
exception." See United States v. Ochoa,
229 F.3d 631, 637 (7th Cir. 2000). We
need not decide whether statements, like
Sapoznik’s plea allocution, which do not
spread or shift blame, fall within such
an exception because, as explained below,
we conclude that the allocution contains
particularized guarantees of
trustworthiness to justify its admission
into evidence.
This court, citing Lilly, has explained
that the "guarantees of trustworthiness
must be inherent in the circumstances of
the testimony itself . . . ." Castelan,
219 F.3d at 695. Thus, we look to the
circumstances of the plea allocution
itself. The defendants argue that
Sapoznik’s one-word answers to the
judge’s questioning at the plea colloquy
are the functional equivalent of those ex
parte affidavits so frowned upon by the
Supreme Court in Lilly. In our own case
law, we have placed emphasis on whether
the government was involved in the
production of the statement sought to be
admitted into evidence. See Castelan, 219
F.3d at 695-96 (admission of declarant’s
custodial confession to law enforcement
officers violated Confrontation Clause
where declarant specifically inquired as
to benefits of his cooperation); Ochoa,
229 F.3d at 638 (statements to an FBI
agent violated Confrontation Clause where
agent gave declarant an incentive to
curry favor by implicating his co-
conspirators and where declarant’s story
spread blame to other participants).
Contrast Denny v. Gudmanson, 252 F.3d
896, 903 (7th Cir. 2001) (confessions to
friends and relatives were admissible
under Confrontation Clause where made in
the course of noncustodial conversations,
were not blame-shifting and were self-
inculpatory); Robbins, 197 F.3d at 840
(declarant’s voluntary statement to his
fiancee admissible under Confrontation
Clause).
However, none of our cases addressing
the scope of Lilly have involved plea
allocutions, such as the one before us.
The Second Circuit has had occasion to do
so in a number of cases, and we find
those cases persuasive. For example, in
United States v. Gallego, 191 F.3d 156,
166-68 (2d Cir. 1999), the court found
that a plea allocution of an unavailable
co-conspirator declarant was admissible
under Rule 804(b)(3) and under the
Confrontation Clause. The admitted
references included conspiring with other
participants. Id. at 168. The court
focused on the fact that the declarant
faced a significant prison sentence, that
he delivered the allocution under oath
and before a judge, that "only self-
inculpatory portions of the allocution"
were introduced and that the district
court "limited the impact of those
excerpts by instructing the jury to
consider George Gallego’s allocution only
as evidence of a conspiracy." Id.
Likewise in United States v. Moskowitz,
215 F.3d 265, 269 (2d Cir. 2000), the
court found that a guilty plea allocution
had the requisite guarantees of
trustworthiness where it subjected the
defendant to a lengthy prison term, was
given under oath and where a limiting
instruction was given to the jury. See
also United States v. Petrillo, 237 F.3d
119, 122-23 (2d Cir. 2000) (guilty plea
allocutions were properly admitted even
though there is the "potential for
coercion or misrepresentation during the
negotiation over guilty plea
allocutions").
Like the Second Circuit in Gallego,
Moskowitz and Petrillo, we find that
Sapoznik’s redacted plea allocution
contains the particularized guarantees of
trustworthiness that justify its
admissibility under the Confrontation
Clause. As we discussed above, the mere
fact that Sapoznik may have pleaded
guilty to get a "good deal" does not mean
he lied about his actual guilt. And,
while the government was admittedly
involved in the production of the text of
the plea allocution, this is
distinguishable from our cases addressing
custodial confessions. No one has
presented evidence in this case to
suggest that the wording of the plea
colloquy was coerced or manipulated for
the purpose of indicting other
individuals. The mere fact that the
prosecutor recited the actual content of
the plea agreement and Sapoznik just
acknowledged with a short reply that he
agreed with it does not persuade us that
the allocution is inherently unreliable.
Of course, it would be preferable if
every sentencing judge encouraged
defendants to put their guilty pleas into
their own words, rather than merely
adopting the prosecutor’s statements.
This would allow the reviewing court to
more easily determine whether the
defendant understood the charges before
him and whether he freely admitted those
crimes. See, e.g., United States v.
Martinez, 169 F.3d 1049, 1054 (7th Cir.
1999) ("An open-ended question, inquiring
into whether the defendant has any firm
beliefs about . . . his decision to plead
guilty could better flesh out these
situations, and aid district courts in
the first instance, and appellate courts
on review, in assessing the validity of a
defendant’s claim to withdraw his
plea."). See also Fed. R. Crim. P. 11(f)
(stating that "[n]otwithstanding the
acceptance of a plea of guilty, the court
should not enter a judgment upon such
plea without making such inquiry as shall
satisfy it that there is a factual basis
for the plea."). Nevertheless, we find
that the circumstances before us, the
fact that the statements were genuinely
self-inculpatory and did not seek to
downplay his own role, that Sapoznik had
the benefit of counsel, that he was under
oath in front of a federal judge, with no
promise of leniency, and risking a prison
term, and the limiting instruction
proposed by the government, constitute
sufficient guarantees of trustworthiness
such that the plea allocution’s admission
into evidence will not violate the
defendants’ rights under the Sixth
Amendment’s Confrontation Clause. See
Williamson, 512 U.S. at 605 ("the very
fact that a statement is genuinely self-
inculpatory--which our reading of Rule
804(b)(3) requires--is itself one of the
’particularized guarantees of
trustworthiness’ that makes a statement
admissible under the Confrontation
Clause."). Cf. Richardson v. Marsh, 481
U.S. 200, 211 (1987) (holding that
Confrontation Clause was not violated by
the admission of a non-testifying
codefendant’s confession with a proper
limiting instruction when the confession
was redacted to eliminate the defendant’s
name and existence).
B. Testimony of Edward Bluthardt, Jr.
We now turn to whether the district
court correctly excluded the testimony of
Edward Bluthardt, Jr., a police officer
and son of the mayor in Schiller Park. In
its Santiago proffer, the government
sought to introduce Bluthardt’s testimony
that a deceased and unindicted co-
conspirator, Eboli, had attempted to
bribe him to bring video gambling
machines into Schiller Park./7 The
government argued this evidence was
admissible under Fed. R. Evid.
801(d)(2)(E) as evidence of a statement
by a co-conspirator./8 Such statements
are admissible where the government
establishes, by a preponderance of the
evidence, that (1) a conspiracy existed;
(2) the defendant and the person making
the statement were members of the
conspiracy; and (3) the statement was
made during the course and in furtherance
of the conspiracy. See Bourjaily v.
United States, 483 U.S. 171, 175 (1987);
Stephenson, 53 F.3d at 842. We review the
district court’s decision to exclude this
testimony for an abuse of discretion,
United States v. Skidmore, 254 F.3d 635,
638 (7th Cir. 2001), and we review a
trial court’s determination that the
government has proved these three
elements under a clearly erroneous
standard. Stephenson, 53 F.3d at 842.
However, our review of the transcripts
indicates that the district court did not
go through a Rule 801(d)(2)(E) analysis
and instead excluded the evidence under
Rule 403./9 We review a district
court’s exclusion of evidence under Rule
403 for an abuse of discretion. United
States v. Gardner, 238 F.3d 878, 881 (7th
Cir. 2001). The district court did not
find that Bluthardt’s proposed testimony
was unduly prejudicial, would mislead the
jury or that it would create undue delay,
all typical Rule 403 considerations.
Rather, it stated that it was concerned
that the evidence was too remote in time,
that Eboli was deceased, that it probably
involved a different conspiracy
altogether and was not probative.
First, the government argues that the
court incorrectly concluded that the
statements were too remote in time. We
agree. While the statements were made
over twenty years ago (they were
allegedly made in the 1970s and 1980s),
the charged RICO conspiracy was alleged
to have begun in 1978. If evidence were
excludable on the sole basis that it
stretched back over the decades, the
government would be substantially limited
in attempting to prove its case. There is
no expiration date on probative
testimony. Of course, the defendants may
wish to present evidence, or argue on
cross-examination, that Bluthardt’s
recollection is poor or that his
testimony is otherwise not believable.
However, this does not mean the evidence
is unduly prejudicial. Instead, it goes
to its credibility, a determination the
jury is particularly suited to make. See
Mejia, 909 F.2d at 245. Accordingly, it
was an abuse of discretion for the court
to exclude the evidence based on the fact
that the conversations were remote in
time.
Second, the government argues that the
court incorrectly focused on Eboli’s
death. The government argues that the
death of a co-conspirator is an
insufficient basis to exclude evidence of
his statements. Cf. United States v.
Guzzino, 810 F.2d 687, 695 (7th Cir.
1987) (witness’ testimony regarding co-
conspirator statements made by deceased
co-conspirator sufficient to support
conviction). If Eboli’s statements (and
Bluthardt’s repetition of them) are
otherwise admissible under a hearsay
exception, we cannot see how his death
creates a problem under Rule 403. There
is no danger of unfair prejudice,
confusion of the issues, or misleading
the jury, nor are there considerations of
undue delay, waste of time, or needless
presentation of cumulative evidence. Nor
did the district court explain why
Eboli’s death would create any such
problems. Accordingly, we believe the
district court abused its discretion by
excluding the evidence under Rule 403
based on Eboli’s death.
Next, the government argues that the
court incorrectly speculated that the
testimony involved a different conspiracy
by focusing on the fact that Eboli’s
attempted bribery of Bluthardt was in a
town other than one specifically named in
the indictment. We agree. The government
seeks to present the evidence as an
(unsuccessful) attempt to expand the
conspiracy by influencing public
officials. The indictment specifically
stated that the conspiracy existed in
various named towns and "elsewhere in the
State of Illinois." In addition, the
indictment itself need not allege each
and every overt act committed by the co-
conspirators in furtherance of that
conspiracy. See, e.g., United States v.
McKinney, 954 F.2d 471, 476 (7th Cir.
1992) ("a jury may base a conspiracy
conviction on proof of an overt act not
charged in the indictment.").
Accordingly, it was an abuse of
discretion for the district court to
exclude Bluthardt’s testimony under Rule
403 because it refers to a town not
specifically charged in the indictment.
Lastly, the government argues that the
district court abused its discretion in
concluding that the evidence was not
probative. We agree. The testimony, if
true, is certainly probative of the
existence and structure of the conspiracy
and that one aspect of the conspiracy
included bribery of law enforcement and
public officials. In addition, we see
nothing unfairly prejudicial about the
testimony. True, the testimony makes the
defendants look guilty, but probative
evidence is always prejudicial in this
literal sense. However, such prejudice is
not "undue" and is therefore not subject
to exclusion under Rule 403. See United
States v. Bradley, 145 F.3d 889, 893 (7th
Cir. 1998).
We note that the district court’s
exclusion of the evidence under Rule 403
is somewhat inconsistent with its ruling
admissible the testimony of Michael
O’Donnell, a Franklin Park bar owner, who
will testify that, in the mid 1980s,
Eboli asked him to offer Bluthardt
$50,000 to allow video poker machines
into Schiller Park. If that testimony is
not too remote in time, related to a
different conspiracy or affected by
Eboli’s death, we do not see how
Bluthardt’s own testimony is unduly
prejudicial or insufficiently probative
under Rule 403. All in all, we believe
the district court abused it discretion
by excluding Bluthardt’s testimony under
Rule 403 and we remand the matter for the
district court to make a determination of
whether the testimony otherwise qualifies
as a statement of a co-conspirator under
Rule 801(d)(2)(E), an issue that it did
not address and thus we cannot review.
III.
In sum, with respect to the district
court’s ruling on the guilty plea
allocution, we reverse, finding that the
admission of Sapoznik’s plea allocution
satisfies the demands of both Fed. R.
Evid. 804(b)(3) and the Sixth Amendment’s
Confrontation Clause. With respect to the
district court’s ruling on the statements
of a deceased co-conspirator, we find
that the district court abused its
discretion in excluding them under Fed.
R. Evid. 403 and remand for further
proceedings.
FOOTNOTES
/1 The court has a duty to screen proposed co-con-
spirator statements for admissibility. See United
States v. Stephenson, 53 F.3d 836, 842 (7th Cir.
1995); Fed. R. Evid. 104(a). A recognized way of
bringing such issues to the court’s attention is
through the filing of a pre-trial proffer pursu-
ant to United States v. Santiago, 582 F.2d 1128
(7th Cir. 1978). See United States v. Rodriguez,
975 F.2d 404, 406 (7th Cir. 1992).
/2 Defendant Tucker was referred to by name in
Sapoznik’s December 2, 1994 confession, but was
referred to anonymously in this plea agreement
because he had not yet been indicted.
/3 In his plea agreement, Sapoznik did not plead
guilty to taking bribes while in Stone Park, only
in Northlake.
/4 The proposed instruction was: "You have heard
statements from the federal plea allocution of
Seymour Sapoznik. You may consider these state-
ments as evidence of the activities of Seymour
Sapoznik and that is relevant to the case. You
may consider these statements as evidence and,
like any other evidence in this case, give these
statements such weight as you believe appropri-
ate. Please understand, however, that you may
only consider these statements on the issue of
whether the conspiracies charged in Counts One
and Three existed. You can not consider this evi-
dence in determining whether a particular defen-
dant joined the charged conspiracies."
/5 In addition to its Rule 804(b)(3) ruling, the
district court also relied on Rule 403, finding
that the evidence was probably not probative,
based on its conclusion that Sapoznik was a liar.
Credibility determinations are properly in the
province of the jury and not for a court to
determine. See United States v. Mejia, 909 F.2d
242, 245 (7th Cir. 1990). See also United States
v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000)
(noting that a judge does not have the "right to
prevent evidence from getting to the jury merely
because he does not think it deserves to be given
much weight."). Accordingly, the district court
abused its discretion in excluding Sapoznik’s
plea allocution under Rule 403 on this basis.
/6 The concept "firmly rooted hearsay exception" for
Confrontation Clause purposes does not mean
merely a hearsay exception under the Federal
Rules of Evidence, but rather one that "in light
of longstanding judicial and legislative experi-
ence . . . rests on such a solid foundation that
admission of virtually any evidence within it
comports with the substance of the constitutional
protection." Lilly, 527 U.S. at 126 (citations
omitted).
/7 There is a dispute in the briefs about the
intended scope of Bluthardt’s testimony. Accord-
ing to the United States’ Reply to Defendant
Natale’s Response to United States’ Santiago
Proffer, Bluthardt’s anticipated testimony in-
cluded evidence regarding anti-gambling ordinanc-
es in Schiller Park and regarding Eboli’s at-
tempts to bring video gambling machines into
Schiller Park. The argument before the district
court, and presumably its ruling, involved both
portions of the testimony. However, on appeal,
the government only challenges the district
court’s exclusion of the second aspect of Bluth-
ardt’s testimony. Thus, we limit our analysis to
that portion of the evidence and leave undis-
turbed the district court’s ruling as to the
first aspect of the testimony.
/8 Fed. R. Evid. 801(d)(2)(E) provides that a state-
ment is not hearsay if it is "offered against a
party and is a statement by a coconspirator of a
party during the course and in furtherance of the
conspiracy."
/9 Rule 403 provides that "[a]lthough relevant,
evidence may be excluded if its probative value
is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of
undue delay, waste of time, or needless presenta-
tion of cumulative evidence."