United States v. William Boroni

758 F.2d 222, 17 Fed. R. Serv. 1429, 1985 U.S. App. LEXIS 29913
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 3, 1985
Docket84-1925
StatusPublished
Cited by8 cases

This text of 758 F.2d 222 (United States v. William Boroni) 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. William Boroni, 758 F.2d 222, 17 Fed. R. Serv. 1429, 1985 U.S. App. LEXIS 29913 (7th Cir. 1985).

Opinions

GRANT, Senior District Judge.

Defendant-Appellant, Boroni, appeals his jury conviction for conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2, and for the unlawful use of a communications facility, a telephone, in order to facilitate the distribution of cocaine in violation of 21 U.S.C. § 843(b). Boroni asks this Court to reverse the district court’s denial of his request for a mistrial based upon the unduly prejudicial nature of testimony admitted against him. For the reasons set forth below, this Court reverses the jury’s decision, vacates the district court’s sentence and remands this case for a new trial.

Facts

On December 31, 1982, William Boroni, his friend, Steven Melka, and their dates went to Boroni’s bar in Lake Geneva, Wisconsin to celebrate New Year’s Eve. Ronald Steiskal joined the group at the bar. In a private conversation with Steiskal, Melka agreed to get some cocaine for a “buyer” Steiskal knew. Steiskal agreed to contact Boroni when his buyer was ready; Boroni would then contact Melka, who lived in Downer’s Grove, Illinois.

On January 2, 1983, Boroni telephoned Melka and told him that Steiskal wanted to see him. Boroni then told Steiskal to meet Melka in Boroni’s bar the next day.

On January 3, 1983, Melka and Steiskal met in Boroni’s bar. Melka gave Steiskal four ounces of cocaine. That evening Steiskal met with his buyer, June Halverson, to make the cocaine sale. Special [224]*224Agents with the Wisconsin Department of Justice, Division of Criminal Investigation, posing as buyers, arrested Halverson and Steiskal after Steiskal transferred the cocaine to Halverson.

On October 11, 1983, a grand jury indicted Boroni for his part in the cocaine sale. The three-count indictment alleged: 1) conspiracy to distribute, dispense, possess with intent to distribute and dispense cocaine, and to knowingly aid and abet, induce and procure the distribution, dispensation, and possession with intent to distribute four ounces of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2; 2) possession with intent to distribute cocaine, and aiding and abetting the possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and, 3) unlawful use of a telephone in order to commit a felony by causing and facilitating the distribution of four ounces of cocaine, in violation of 21 U.S.C. § 843(b).

The Government has tried this case twice. The first trial resulted in a hung jury. Steiskal testified at both trials after the Government agreed not to prosecute him for a number of criminal acts he had committed.

At a conference before opening statement in the second trial, the district court ruled that evidence of several of Steiskal’s previous criminal acts would be admissible to make the jury aware of Steiskal’s immunity agreement. Steiskal’s previous criminal acts included an alleged cash register skimming scheme with Boroni, which had been excluded from evidence in the first trial. (Record at 20). The district court reserved judgment on whether evidence of Boroni’s alleged involvement with Steiskal in the cash register skimming scheme was admissible. (Record at 23).

During Steiskal’s testimony, and over the objection of Boroni’s counsel, Steiskal implicated Boroni in the alleged cash register skimming scheme. Boroni moved for a mistrial based upon the unduly prejudicial nature of the testimony. The trial court found the testimony to be probative of Steiskal’s motive for testifying and did not find sufficient prejudice to require a mistrial. (Record at 88). Instead, the trial court instructed the jury to disregard Steiskal’s accusation. (Record at 90).

The jury convicted Boroni on Counts 1 and 3 of the indictment. The trial court entered judgment on the verdict and sentenced Boroni on Count 1 to six months in prison with work release, and to three years probation to commence upon release from prison and a $4,000 fine on Count 3.

Boroni presents one issue on appeal: whether the district court erred in denying him a mistrial after the admission of Steiskal’s testimony implicating Boroni in the cash register skimming scheme?

Federal Rule of Evidence 404(b) permits a trial court to admit evidence of a defendant’s prior criminal acts to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). Rule 404(b) prohibits the use of evidence of prior criminal acts to prove “the character of a person in order to show he acted in conformity therewith.” Fed.R. Evid. 404(b). Rule 404(b) does not exhaust the purposes for which evidence of other wrongs or acts may be admitted. United States v. Jordan, 722 F.2d 353, 356 (7th Cir.1983).

A court may admit evidence of a prior criminal act to establish a matter in issue other than propensity to commit the crime charged if: 1) the prior act is similar and close in time to the offense charged; 2) evidence of the prior act is clear and convincing; and 3) the probative value outweighs the danger of unfair prejudice. United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984).

The Government did not offer Steiskal’s testimony regarding Boroni’s alleged involvement in the cash register skimming scheme for any of the purposes listed in Rule 404(b). The trial court admitted the testimony to show Steiskal’s credibility and motive for testifying. However, Steiskal’s [225]*225testimony met none of the Shackleford standards. The alleged cash register skimming scheme differs greatly from the cocaine sale. The Government offered no evidence to show that the alleged scheme occurred near the time of the cocaine sale. Steiskal’s uncorroborated and vague allegation falls short of the clear and convincing evidentiary standard. The determination whether the probative value of evidence outweighs the risk of prejudice is left to the discretion of the trial court. United States v. Wormick, 709 F.2d 454, 459 (7th Cir.1983).

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Bluebook (online)
758 F.2d 222, 17 Fed. R. Serv. 1429, 1985 U.S. App. LEXIS 29913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-william-boroni-ca7-1985.