United States v. Gajo

290 F.3d 922 (7th Cir. 2002)

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Nature of the Case

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Facts

D owned a business that sold specialty ethnic foods, beverages, and cigarettes. On January 16, 1996, the building caught fire and burned moderately. The fire was concentrated in the rear kitchen and storage area. Cullen, who worked in the Fire Department's Office of Fire Investigation, examined the property and concluded that the fire was deliberately set. Traces of gasoline were present in debris samples taken from the scene, even though there was no gasoline present in the store prior to the fire. One week after the fire, D submitted an insurance claim. The claim was eventually denied. Agents examined outgoing telephone records, which led them to an individual named Jay Smith. Agents questioned Smith, who ultimately agreed to cooperate with the government. A former coworker of Smith named Edward Baumgart approached Smith at his place of employment and introduced him to D. Baumgart told him that 'D needed a building burned down.' Smith also stated that although D spoke almost exclusively in Polish, d told him in English that burning down Cragin Sausage 'was urgent.' D and Baumgart offered Smith $4,000 to set fire to Cragin Sausage, but Smith declined. A real estate agent was also solicited by D to burn down Cragin Sausage. D told agents he was on vacation but two neighbors testified that they saw D at Cragin Sausage on the day before the fire moving boxes of liquor into the back of a minivan. Ten months after the fire, Smith contacted Baumgart at the direction of a federal ATF agent. Smith and Baumgart engaged in two conversations, each of which was recorded and ultimately introduced into evidence. Baumgart responded to Smith's probing about what he should say to an agent questioning him about the fire at Cragin Sausage. Baumgart instructed Smith to tell the investigating officer 'to fuck off.' In the second conversation, which occurred several minutes later, Baumgart admits introducing D to Smith but states that he does not know who burned Cragin Sausage. In the second tape, Baumgart further instructed Smith about how to respond if investigating agents asked who set the fire. Baumgart stated, 'Well, you, you, you weren't there. I wasn't there.' Baumgart also told Smith, 'You don't know a motherfuckin thing. Neither do I.' D was convicted and appealed.