United States v. Alex

Citations: 790 F. Supp. 798; 1992 U.S. Dist. LEXIS 13320; 1992 WL 87924Docket: No. 91 CR 727

Court: District Court, N.D. Illinois; April 30, 1992; Federal District Court

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The court is evaluating the government’s Santiago proffer and its amendment concerning the superseding indictment against defendants Gus Alex and Nicholas Gio. Defendant Gio has filed a motion to exclude testimony by Leonard Patrick regarding his involvement in the alleged conspiracy. The court must determine the admissibility of coconspirator statements under Federal Rule of Evidence 801(d)(2)(E). This requires proof that a conspiracy existed, that the defendants were members, and that the statements were made during and in furtherance of the conspiracy, as established in prior case law.

The government has provided an eleven-page original proffer detailing the conspiracy and the defendants' roles, later amended to include Patrick's testimony following his guilty plea. The court finds that the government has largely met the burden of proof for both defendants. Gio's involvement in the conspiracy will be supported by testimony from unindicted coconspirator James LaValley, who will state his awareness of Gio's collaboration with Patrick. The court concludes that it is more likely than not that a conspiracy existed and that both Gio and Alex participated, with relevant statements made in furtherance of the conspiracy.

Gio's motion to exclude Patrick's testimony is denied. Evidence regarding Alex’s involvement will also be substantiated by various means, including Patrick’s testimony about a conversation with LaValley regarding financial dealings and prior communications with Alex. The court finds these statements sufficiently close in time to the alleged conspiracy. The government also seeks to introduce statements from another unindicted coconspirator, James Marcello, instructing Patrick to intimidate Lake Theater owners, further supporting the conspiracy claims.

Patrick will testify that he directed his crew to assault Al Tapper due to suspicions of fraud. Alex objects to this evidence under Rule 801(d)(2)(E), claiming insufficient proof of his involvement in the conspiracy. The court disagrees, conditionally admitting the statements against Gio and Alex, pending proof of an actual conspiracy at trial. However, not all statements from the government's proffers are admissible. Specifically, the government has withdrawn its proffer regarding statements made by Patrick to Gary Edwards in November 1989. Additionally, Patrick cannot testify about a hearsay statement from Sam Giancana regarding Alex, as it is inadmissible due to Giancana's death and the remoteness of the conversation. 

The government argues that statements related to a loansharking conspiracy involving the Lenny Patrick Street Crew are admissible against Gio and Alex. The court rejects this, noting that the superseding indictment does not charge "juice loans" or loansharking. Consequently, the court rules that this collateral evidence is inadmissible under Rule 801(d)(2)(E). The court will not permit the government to pursue this line of questioning at trial. Aside from the excluded evidence, the court finds sufficient basis for the conditional admission of remaining coconspirator statements under Rule 801(d)(2)(E) against Gio and Alex, subject to proof of conspiracy at trial. Gio's motion in limine is denied, and the record notes that Gio's characterization of the government's amended proffer is incorrect, as it confirms Patrick's knowledge of Gio's involvement in the conspiracy. The government will not use Patrick's comments to LaValley against Gio.