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US V. Terrance S. Wilson

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US V. Terrance S. Wilson _________________________________________________________________ _________________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT _____________________ No. 99-3097 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL D. ANDREAS, Defendant-Appellant, ____________________ No. 99-3098 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TERRANCE S. WILSON, Defendant-Appellant, ____________________ No. 99-3078 UNITED STATES OF AMERICA, Plaintiff-Cross-Appellant, v. MICHAEL D. ANDREAS and TERRANCE S. WILSON, Defendants-Cross-Appellees. _____________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS (Hon. BLANCHE M. MANNING) __________________________ BRIEF FOR APPELLEE AND CROSS-APPELLANT UNITED STATES OF AMERICA ________________________ SCOTT R. LASSAR JOEL I. KLEIN United States Attorney Assistant Attorney General A. DOUGLAS MELAMED Deputy Assistant Attorney General JOHN J. POWERS, III MARION L. JETTON ROBERT J. WIGGERS ANDREA LIMMER Attorneys Department of Justice Room 10542 601 D Street, N.W. Washington, D.C. 20530 202-514-3680 Of Counsel: PHILIP GUENTERT JAMES M. GRIFFIN Assistant United States Attorney MARVIN N. PRICE, Jr. ROBIN R. MANN 219 S. Dearborn Street JAMES H. MUTCHNIK Fourth Floor KEVIN C. CULUM Chicago, Illinois 60604 Attorneys Department of Justice 209 S. LaSalle Street Chicago, Illinois 60604 _______________________________________________________________ _________________________________________________________________ TABLE OF CONTENTS Page JURISDICTIONAL STATEMENT ................................................1 STATEMENT OF THE CASE ...................................................1 STATEMENT OF FACTS ......................................................2 SUMMARY OF ARGUMENT ..................................................10 ARGUMENT ................................................................14 I. The Evidence was Sufficient to Support Andreas’ Conviction ..................14 II. The Agreement To Allocate Sales Volumes Was Per Se Unlawful ..............17 III. After ADM Pled Guilty, The Cox Immunity Letter Conferred No Benefits On Appellants ...................................27 IV. Cox's Testimony About The Citric Conspiracy Was Properly Admitted .........32 V. Evidentiary Rulings Concerning the Whitacre Tapes Were Correct .............37 A. Appellants Failed to Establish Their Standing To Suppress The Whitacre Tapes ...............................................37 B. The Tapes Were Admissible .....................................38 1. Under Color of Law ......................................39 2. Criminal or Tortious Purpose ...............................42 C. Admission of Tapes Recorded by Whitacre Did Not Deny Appellants Due Process .........................................44 D. The Court Properly Excluded Agent Varounis’ Testimony ..............46 VI. The Trial Court’s Instructions Were Complete And Correct ..................49 VII. The Government’s Closing Argument Was Not Improper ....................54 i A. Fifth Amendment claims ........................................54 B. Additional claims of prosecutorial misconduct .......................60 VIII. The District Court Correctly Computed the Volume of Commerce Affected By the Violation ...........................................64 IX. The Sentences of Andreas and Wilson Should Have Been Increased Due to Their Leadership and Managerial Roles in the Conspiracy .............66 1. Andreas ................................................67 2. Wilson .................................................72 CONCLUSION ..............................................................74 ii TABLE OF AUTHORITIES FEDERAL CASES Alderman v. United States, 394 U.S. 165 (1969) .....................................38 Arizona v. Maricopa County Medical Society, 457 U.S. 332 (1982) .....................20 Blackburn v. Sweeney, 53 F.3d 825 (7th Cir. 1995) ..................................21 Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1 (1979) .... 20, 25-26 Brogan v. United States, 118 S. Ct. 805 (1998) ......................................56 By-Product Corp. v. Armen-Berry Co., 668 F.2d 956 (7th Cir. 1982) ....................43 California v. Trombetta, 467 U.S. 479 (1984) .......................................45 Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643 (1980) .................. 19, 21, 23, 24-25 Chapman v. California, 386 U.S. 18 (1967) .....................................54, 60 Corrugated Paper Product, Inc. v. Longview Fibre Co., 868 F.2d 908 (7th Cir. 1989) .............................................................30 D'Amato v. Wisconsin Gas Co., 760 F.2d 1474 (7th Cir. 1985) .........................31 DeRance, Inc. v. PaineWebber, Inc., 872 F.2d 1312 (7th Cir. 1989) .....................55 Dortch v. O'Leary, 863 F.2d 1337 (7th Cir. 1988) ...................................60 Ex rel. Savory v. Lane, 832 F.2d 1011 (7th Cir. 1987) ................................57 FTC v. Superior Court Trial Lawyers Association, 493 U.S. 411 (1990) ...............20, 21 General Leaseways, Inc. v. National Truck Leasing Association, 744 F.2d 588 (7th Cir. 1984) ................................................11, 20, 25 Greer v. Miller, 483 U.S. 756 (1987) .............................................59 Griffin v. United States, 502 U.S. 46 (1991) ........................................27 iii Hennon v. Cooper, 109 F.3d 330 (7th Cir. 1997), cert. denied, 118 S. Ct. 72 (1997) .............................................................63 Huddleston v. United States, 485 U.S. 681 (1988) ...................................34 Kastigar v. United States, 406 U.S. 441 (1972) ......................................29 Metropolitan Industrial, Inc. v. Sammi Corp., 82 F.3d 839 (9th Cir. 1996) ................21 Moran v. Burbine, 475 U.S. 412 (1986) ...........................................29 National Society of Prof'l Engineers v. United States, 435 U.S. 679 (1978) ...............21 National Collegiate Athletic Association v. Board of Regents, 468 U.S. 85 (1984) .............................................................11, 20 NYNEX Corp. v. Discon, Inc., 119 U.S. 493 (1998) ..................................19 Northern Pacific R. Co. v. United States, 356 U.S. 1 (1958) ...........................19 Obron Atlantic Corp. v. Barr, 990 F.2d 861 (6th Cir. 1993) ...................... 39, 41-42 Palmer v. BRG of Ga., Inc., 498 U.S. 46 (1990) .....................................20 Pierson v. O'Leary, 959 F.2d 1385 (7th Cir. 1992) ...................................64 Price v. Pierce, 823 F.2d 1114 (7th Cir. 1987) ......................................31 Rakas v. Illinois, 439 U.S. 128 (1978) .............................................38 Richardson v. Marsh, 481 U.S. 200 (1987) ......................................53, 62 Rodriguez v. Peters, 63 F.3d 546 (7th Cir. 1995) ..............................54, 61, 62 State Oil v. Khan, 522 U.S. 3 (1997) ..............................................19 Sugar Institute, Inc. v. United States, 297 U.S. 553 (1936) .............................20 Thomas v. Pearl, 998 F.2d 447 (7th Cir. 1993) ......................................42 United States v. Adames, 56 F.3d 737 (7th Cir. 1995) ...........................33, 34, 36 United States v. Akinrinade, 61 F.3d 1279 (7th Cir. 1995) .............................34 iv United States v. Avila, 905 F.2d 295 (9th Cir. 1990) ..................................71 United States v. Bailey, 859 F.2d 1265 (7th Cir. 1988) ................................53 United States v. Barnes, 993 F.2d 680 (9th Cir. 1993) ................................71 United States v. Bell, 936 F.2d 337 (7th Cir. 1991) ................................ 64-65 United States v. Blackburn, 992 F.2d 666 (7th Cir. 1993) ..............................52 United States v. Brack, 1999 WL 605640 (7th Cir. August 6, 1999) ............49, 51 United States v. Brady, 145 F.3d 889 (7th Cir. 1998) .................................37 United States v. Briscoe, 896 F.2d 1476 (7th Cir. 1990) ...............................53 United States v. Buege, 578 F.2d 187 (7th Cir. 1978) .................................59 United States v. Bustamante, 45 F.3d 933 (5th Cir. 1995) .............................29 United States v. Butler, 71 F.3d 243 (7th Cir. 1995) ...............................58, 60 United States v. Caceres, 440 U.S. 741 (1979) ......................................42 United States v. Capitol Services, Inc., 568 F. Supp. 134 (E.D.Wis. 1983), aff'd, 756 F.2d 502 (7th Cir. 1985) ...........................22 United States v. Chaudhry, 850 F.2d 851 (1st Cir. 1988) ...........................44, 45 United States v. Cooperative Theatres of Ohio, Inc., 845 F.2d 1367 (6th Cir. 1988) .........................................................22 United States v. Cotnam, 88 F.3d 487 (7th Cir. 1996) ...........................57, 58, 60 United States v. Cotton, 101 F.3d 52 (7th Cir. 1996) .................................27 United States v. Craig, 573 F.2d 455 (7th Cir. 1977) .....................39, 41, 63 United States v. Cruz-Camacho, 137 F.3d 1220 (10th Cir. 1998) ........................68 United States v. Delay, 440 F.2d 566 (7th Cir. 1971) .................................52 United States v. Dillard, 43 F.3d 299 (7th Cir. 1994) .................................73 v United States v. Emerson, 128 F.3d 557 (7th Cir. 1997) ...............................66 United States v. Evans, 92 F.3d 540 (7th Cir. 1996), cert.
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