v.
MILAN BAGARIC, MILE MARKICH, ANTE LJUBAS, VINKO LOGARUSIC, RANKO PRIMORAC, and DRAGO SUDAR, Defendants-Appellants
Nos. 82-1247, 82-1249, 82-1251, 82-1253, 82-1255, 82-1257, Nos. 887, 932, 877, 876, 886 - August Term, 1982
OPINION: KAUFMAN, Circuit Judge:
...Further accomplice testimony showed [conspirator Milan] Bagaric was the bomb-maker in two of the bombing incidents charged in the indictment as acts of racketeering. In 1976, Bagaric gave Skrabo and Vjelko Jaksic a time-bomb to carry to Pittsburgh to use at the home of Milan Vranes. In 1977, Bagaric travelled to San Francisco to wire bombs in Mile Boban's home. Later that year, Caran used one of the bombs in his unsuccessful attempt to bomb the Yugoslavian consulate in that city.
This evidence, standing alone, was sufficient to support the jury's guilty verdict. When combined with other testimony implicating Bagaric, along with [Miro] Baresic and Mico Jaksic, in an aborted attempt on the life of Father Majic; tying him to the transportation of guns and ammunition from California to New York, via Chicago, and to the delivery of blasting caps to Caran; and otherwise demonstrating his allegiance to and knowledge of the operations of the enterprise, the evidence of Bagaric's guilt was more than ample.
Bagaric's other claim is that the district court erred by admitting evidence of an act not alleged in the indictment as one of the predicate acts of racketeering. Specifically, he objects to the testimony of Mico Jaksic, that Jaksic met with Bagaric and Baresic in 1978, and the latter two men indicated they planned to bomb the church of Father Majic, only to be dissuaded by Jaksic. Bagaric contends this testimony was prejudicial, not significantly probative, and he was denied an opportunity to rebut it.
It is clear the Government may offer proof of acts not included within the indictment, as long as they are within the scope of the conspiracy. United States v. Cohen, 518 F.2d 727, 733 (2d Cir.), cert. denied, 423 U.S. 926, 96 S. Ct. 271, 46 L Ed. 2d 252 (1975). Here, the testimony was properly admitted as proof of Bagaric's membership in the racketeering enterprise, and was clearly relevant to the alleged acts of racketeering. Father Majic was a critic of the extortion scheme and, in 1979, was a target of one of the book bombs, mailed to him at the same church Bagaric and Baresic told Jaksic they intended to bomb in the summer of 1978...
Initially, [co-conspirator Vinko Logarusic] objects to the introduction of a pistol, registered to one Razov, who lived in the same two-family dwelling as Logarusic. The pistol had been discovered in Razov's car. Logarusic argues that the fact that the gun had been purchased by an official of the Paraguayan embassy at the time Baresic was employed there is insufficient to link Logarusic to Baresic. This claim is not insubstantial, as it points up the Government's dependence upon a chain of inferential reasoning perhaps too weak to support a determination of relevancy... That is, Baresic did not buy the gun, but is tied to its purchase by virtue of his and the buyer's common employer; and Logarusic is not found to have been in possession of the gun, but is instead joined with its owner, Razov, by their common place of residence. These inferred relationships, together, are offered as proof of the association of Logarusic and Baresic. But, while the better course might have been to exclude the gun as prejudicial, see Fed. R. Evid. 403, we will not overturn the trial judge's decision to admit it absent a clear abuse of discretion, see United States v. Robinson, 560 F.2d 507, 512-16 (2d Cir. 1977) (en banc), cert. denied, 435 U.S. 905, 55 L. Ed. 2d 496, 98 S. Ct. 1451 (1978). In any event, any prejudice to Logarusic was minimal, in light of the virtual arsenal of weapons and ammunition seized from his home during the above described search, the relevancy of which is not challenged, and any error was therefore harmless beyond a reasonable doubt.
Logarusic challenges the admission of additional evidence linking him to Baresic. We refer to a letter discovered during a consent search of Logarusic's home on April 3, 1981, after his arrest. Appellant claims the letter was not properly authenticated. Fed. R. Evid. 901(a). We disagree. The requirement of authentication "is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims," id. This finding may be based entirely on circumstantial evidence, including "appearance, contents, substance . . . and other distinctive characteristics" of the writing, id. 901(b)(4). Here, the letter was addressed to Logarusic and postmarked Asuncion, Paraguay, where Baresic resided. It began with the salutation "Dear Vinko" and ended "your Miro Baresic . . . your Miro Toni." "Toni Saric" was the alias Baresic had used in gaining entry into the United States. The letter referred to "our people in Chicago," where four of the defendants lived, and it asked Logarusic to contact "Crni," which the proof showed was Ljubas's sobriquet among his confederates. It also contained references to "Mercedes," a friend of Logarusic who testified on his behalf and admitted knowing Baresic, and to "the Razov family," Logarusic's landlord. Finally, the letter stated that "the Swedes, Americans, and Yugoslavs are requesting expulsion because I am a terrorist and dangerous," a fact confirmed by testimony that Baresic was a fugitive from Sweden where he was sought for the murder of the Yugoslavian ambassador. In sum, as Chief Judge Motley found, there was ample demonstration "that the letter was in fact what the Government claimed, i.e., a letter from Miro Baresic to Vinko Logarusic."
