United States v. Simone

931 F.2d 1186
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 3, 1991
DocketNos. 88-3412, 88-3479, 88-3480, 88-3513 to 88-3515, 88-3522 and 89-1094
StatusPublished
Cited by60 cases

This text of 931 F.2d 1186 (United States v. Simone) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Simone, 931 F.2d 1186 (7th Cir. 1991).

Opinion

GRANT, Senior District Judge.

Before the court are the consolidated appeals of eight defendants convicted of numerous conspiracy and drug trafficking offenses pursuant to 21 U.S.C. §§ 848, 846, 841(a)(1), 845b(f), and 844, and 18 U.S.C. §§ 201(b)(1), 924(c), and 922(g)(1). All the defendants challenge the conspiracy count of the indictment and two jury instructions. Defendants Bosko and Vasil Struminikov-ski also allege ineffective assistance of counsel and prejudicial error in the jury instructions during the forfeiture phase of the trial. In addition, defendant Deborah Cerveny challenges the sufficiency of the evidence concerning her participation in the conspiracy. For the following reasons, we affirm the convictions.

BACKGROUND

Under the eighteen-count superseding indictment 1, defendant Robert “Bosko” Struminikovski [Bosko] was individually charged with engaging in a continuing criminal enterprise; conspiracy; providing cocaine to a pregnant individual; offering a bribe to a public official; possession of morphine; possession of firearms by a convicted felon; and possession of firearms during and in relation to his commission of drug trafficking offenses. All the defendants were charged with conspiracy to distribute and to possess with intent to distribute cocaine and heroin, and various defendants were charged in separate counts of actual distribution and possession. The indictment additionally included the charge that certain assets belonging to Bosko, his father Vasil Struminikovski [Vasil], and Amanda Roland [Roland] were subject to forfeiture to the United States pursuant to 21 U.S.C. § 853(a).

On August 1, 1988, the jury trial commenced before United States District Judge llana D. Rovner. Following an eight-week trial, the jury returned guilty verdicts on all charges against all defendants.2 It also returned forfeiture verdicts against Vasil and Bosko Struminikovski.

FACTS

Even though Bosko’s appellate counsel took editorial liberties by glamorizing his client as a “Yugoslavian farm boy ... living the American dream,” he accurately described Bosko as a salesman (of drugs) who worked hard to sell his wares (cocaine, primarily) at all hours of the day and night, [1190]*1190“out of his car, out of his pockets, out of his home, out of some dozen restaurants and fast food joints.”3 But the facts are not glamorous; with the other defendants Bosko established a narcotics sales network of the type that this court has seen too often.

The indictment charged that there was a drug distribution conspiracy, under Bosko’s direction, in and around Cicero, Illinois, from 1985 through August 29, 1987. However, the evidence introduced at trial established that the conspiracy began in the summer of 1984, when Bosko and Roland, his girlfriend, met two of Bosko’s acquaintances in Florida. Three weeks later Roland flew to Florida and then drove back to Chicago; in the car was a kilogram of cocaine.

During the fall of 1984, Bosko began selling cocaine in the United Grill, a restaurant in Cicero. He sat at a back table and took drugs from the ceiling tiles when he made a sale. Defendant Lubin Milevski [Milevski] obtained cocaine from Bosko and sold it at the same restaurant in 1985. Soon Carmella Viola [Viola], Vito Cancialo-si [Cancialosi], and defendants Panagiotis Pistas [Pistas] and Deborah Cerveny [Cer-veny] were assisting Bosko and Milevski with the drug sales, usually selling 1/4-gram packets of cocaine and splitting the proceeds with Milevski or Bosko. Milevski and others sold cocaine during the day, and Bosko sold it in the evening.

On the evening of October 3, 1985, Cer-veny sold 3.7 grams of cocaine to undercover policeman Jeffrey Caudill [Caudill]. She told him that the cocaine would be delivered by someone driving a white Buick Riviera, and that she could get more for Caudill in the future. Shortly afterward Bosko drove up in a white Riviera and went into the United Grill. Five minutes later Cerveny emerged from the restaurant, delivered the cocaine to Caudill in exchange for $275, and re-entered the United Grill with the money.

In February 1986, Milevski opened La Petite Snack Shop in Cicero, near the United Grill, and the drug operation moved there. Again Milevski supervised the daytime cocaine sales and Bosko took charge at night. Viola, Pistas, Cancialosi, Brenda Parson [Parson], and defendants Nicholas Simone [Nick], Dominic Simone [Dominic], and John Suchan [Suchan] assisted Bosko and Milevski with the distribution of cocaine at La Petite from January 1986 to June 1986, when the restaurant closed. For security the conspirators installed surveillance cameras, monitor screens in the back room, a steel door with a peephole at the entrance to the back room, and a window in the wall through which the drugs were passed. Milevski hired Parson to work behind the counter and Pistas to cook. In fact, they watched for police and sold drugs; records showed that very little food was sold at La Petite.

But drug sales went well. Drugs were distributed from the back room of La Petite. Bosko packaged the cocaine and handed it through the window to Dominic, Nick or another of the co-conspirators for delivery. When Bosko was not present at La Petite, he left another co-conspirator in charge. At those times, Bosko would sell his drugs elsewhere. Throughout this period and after La Petite closed, Bosko and Vasil distributed cocaine from Vasil’s two houses in Cicero. Bosko also kept and sold cocaine in his home in Brookfield between April 1986 and April 1987.

When La Petite closed, Milevski continued to obtain cocaine from Bosko and to sell it through Viola and Parson from outside the United Grill. Bosko moved his drug sales to other nearby restaurants; Cerveny was often present with Bosko and the others. Nick and Dominic frequently returned phone calls received on Bosko’s pager, took cocaine orders from customers, accepted merchandise in exchange for cocaine, and occasionally delivered cocaine to customers. Suchan also helped Bosko distribute cocaine during this period by cutting, packaging and occasionally delivering cocaine to Bosko’s customers. In the summer of 1986, Bosko began selling drugs from Suchan’s house as well.

[1191]*1191In March and April of 1986, DEA Agent Tom Kelly [Kelly], posing as an attorney eager to buy drugs, purchased cocaine on two occasions from Bosko. In March 1987, Kelly purchased 55 grams of Bosko’s cocaine from Suchan. In July and August of 1987, Bosko and Suchan began negotiating with the agent for the sale of approximately 2.3 kilograms of Bosko’s cocaine. Kelly’s meeting with Suchan was videotaped by the DEA.

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Bluebook (online)
931 F.2d 1186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-simone-ca7-1991.