United States v. James v. Pacente

might tempted to affirm we While suppression judge’s the district appropriate evidence, it more believe we judicial standpoint of sound remand so to reverse administration Judge, Swygert, Chief dissented on reconsideration be a there opinion majority basis of of division Chavez, light this Giordano originally of court which heard and de- manner, opinion. In this appeal. cided given judge will be district and the Sprecher, Judge, Circuit dissented upon the con- opportunity focus both with statement. statutory grounds for stitutional time, such a suppression. At the same spare

disposition us the discomfi- will apply attempting law to new ture of developed before which was

record fashioned. had been

law and remanded.

Reversed America,

UNITED STATES of Plaintiff-Appellee, PACENTE,

James V. Defendant- Appellant.

No. 72-1988. Appeals, Court

Seventh Circuit.

Argued April en banc Aug.

Decided 9, 1974.

Certiorari Denied Dec.

See 95 S.Ct. 623. Echeles, Chicago, 111.,

Julius Lucius defendant-appellant. for Thompson, James R. Atty., Gary U. S. Starkman, L. Atty., Chicago, Asst. U. S. 111., plaintiff-appellee. Judge, SWYGERT,

Before Chief FAIRCHILD, CUMMINGS, PELL, SPRECHER, Circuit STEVENS Judges. Judge. FAIRCHILD, Circuit appealed from con- Defendant Pacente of extortion under 18 U.S.C. victions § declaration and of a false material grand jury, A under before a panel and remand- of this court reversed v. Pa- trial. ed for a new cente, 490 F.2d 661 sugges- government’s to the Pursuant appeal tion, en banc. we reheard officer, Chicago Defendant, police first counts. indicted two was charged Ko- the extortion contrary 8(a), declaration to Rule vacevie, liquor sec counts owner. store and, joint F.R.Cr.P., if a indictment ma even made a ond requires grand permissible, Rule 14 terially declaration false separate trials. denying had ever re he alleged check, and a certain $200 ceived 8(a) provides: it at the in fact received had that he Before extortion. “Two or more charged time of the offenses trial, the court re moved that the defendant same or in- indictment government separate elect on which quire the formation in a for count each alternatively, order proceed, charged, or offense if the count to offenses court de separate The district trials.1 whether felonies or misdemeanors or 2 both, does motion. Defendant are of the same nied this or similar char- motion dur appear the acter or to have renewed are based on the same act or although ing trial, he of the or on the course transaction two or more acts or unsuccessfully together issue in his raise the did transactions connected parts or constituting motion after verdict. common plan.” scheme or government’s evidence is summa- requires and rized in F.2d 490 662-663 panel, As stated the both offenses are description Kovacevie, only “ brief here. ‘based on the same act or transaction’: Chicago-Oak Liquors, owner of testified taking Pacente’s $200 10, 1971, that on defendant entered June Kovacevie”3 and require both substan having his store and accused him sold tially proof. the same See United States liquor to a minor. Defendant informed Sweig, v. (2d F.2d 441 118-119 Cir. arrested, Kovacevie that he would be and denied, cert. 403 91 asked, money you then “How can much 2256, 29 conclude, L.Ed. 711. We as did give negotiations, me?” After Kova- panel, permitted 8(a) that Rule gave cevic defendant for a check $200 joinder. payable cash; no arrest occurred. provides F.R.Cr.P., part: stipulated that, The grand before the appears “If it that jury, prosecutor a defendant or had shown government prejudiced by joinder Chicago-Oak Liquors check, or of signed offenses 10, 1971, defendants an dated June dictment or payable information or and Kovacevie cash. such Defend- joinder together, receiving for trial ant then denied court the check. separate an order election or I. grant counts, trials of a severance of provide or Defendant that the indict defendants whatever other justice misjoins requires.” ment relief the extortion and false join- separate 1. The for basis the motion was the same “[f]he facts two if trials granted. der of the two counts in this Indictment severance were United States See prejudice Sweig, F.Supp. (S.D.N.Y. would v. and that his appearance 1970) Jury ”; “joinder likely before the Grand investi- and concluded is not gating might defendant, the instant cause lead be unfair rather improper conclusion, would, therefore, put and an undue burden on Govern- prejudice confuse and mislead the and ment.” jury against the Defendant.” 3. 490 F.2d 663. opinion order, Compare In a Standards, memorandum and ABA Joinder Sev- 2.2(b), Approved Draft, district court stated that the counts erance 1968. The properly joined 8(a), F.R.Cr.P., offenses, under Rule standard severance of related charging perjury trial, apidieation because “the indictment re- where is made before appropriate pro- lates to the circumstances the ex- whether “it is deemed Regarding discretionary tortion count.” sev- a fair defendant’s mote determination erance, allegation guilt the court noted com- or innocence of each offense.” prejudice highly speculative; mentary, a severance is said: it “Whether government prove essentially granted would have “to must of related should be offenses Sweig grant guilty. pleaded or denial of severance Voloshen arguing separate appealed, trials under Rule 14 is dis convicted and that the or cretionary. See, g., conspiracy perjury v. e. United States should counts (7th together. Kahn, Cir. not have been In af- F.2d tried 1967) denied, firming, S. Circuit noted Second Sweig advantage 661; L.Ed.2d United States had not taken Ct. willingness Quinn, of the district court to re- produce stage 1966). relief will re Denial of consider at a later held circumstances, if of discretion is versal abuse under the denial Rogers, plain 475 F. shown. the motion was not error. Evi- dently appeals 2d court of deemed it deny was not an abuse of discretion to of the exercise of this Review separate ground trials where the sole on the must be based state of discretion charged the motion was that one count the time of the motion. the record at conspiracy and other counts Rogers, supra. perjury grand jury before the with re- Sweig, spect conspiracy.5 316 F. to elements the 'of 1970), Supp. (S.D.N.Y. 441 aff’d “To find an abuse of discretion it (2d denied, 1971), Cir. cert. necessary, effect, would be in to find 29 L.Ed.2d 403 711, U.S. presented that the facts and law to Sweig and indicted Voloshen were judge the trial at the time of the mo conspiracy to defraud the United tion for severance demonstrated that States, and a number of overt acts joinder likely trial under was to be alleged. A number of other counts unfair and that the trial inwas fact charged the one or other defendant with Kahn, supra, unfair.” 381 F.2d testimony grand perjury in before the Blue, 841. See also United concerning jury the transactions 1971), charged joint overt as acts. Because denied, cert. U.S. S.Ct. conspiracy of defendants on the trial 30 L.Ed.2d 68. unquestionably permissible, count was prejudice substantially Defendant’s claim of is and all the evi because supposed based on jury’s perjury prop the on effect dence on the erly counts could joint consideration of Count I infor- be heard such trial for con jury glean spiracy perjury mation the would even if the counts were from Count allegations absent, II. One of the of Count I the district court denied sever (and was apparently sep that defendant ance of obtained defendants $200 counts), June, perjury Kovacevic arate trials of the 1971. Count II charged prejudice that defendant did so without to a declared to the renewed grand jury application noting oath on, later under that he never re- that “It re possible, payable course, ceived a check, mains things that different Kovacevic $200 light cash, 10, 1971, may appear or a dated June different and charged through as the case that such advances toward or declaration was false stage.” in that he had received such check on trial largely (2d denied, remain within the .2d discretion judge upon trial consideration Al circum- 34 L.Ed.2d 219. though present stances of the individual our case.” decision is not based on pretrial waiver failure renew mo tion, Standards, Severance, In a similar case the in ABA Second Circuit has Joinder and terpreted Sweig holding 2.1(b), Approved Draft, 1968, provides: as both com that monality proof conspiracy per pretrial “If and a defendant’s sev- motion for jury permitted may overruled, crimes denial erance Rule 14 lie renew the pretrial separate trials, grounds motion for motion on the or at and that same before appellant who fails to renew his motion close of all the evidence. Severance trial, may on the eve of not raise the claim waived failure renew motion.” appeal. Carson, Commentary, pp. United States v. F See 27-28. Competent certainty that de- required evidence standard of June of a grand jury probable received check June fendant cause to believe to establish an element that a would tend defendant has committed an of-' fense, grand that and ju both counts. believe that a considering whether or not defendant ror will not vote to indict for a false I, personally Count statement received as unless convinced jury have before it Conceivably would that the witness lied. but, competent addition, proof, juror may deciding such be influenced in (and testimony by be aware from Count II believe a witness' grand jury proof grand jurors of defendant’s testimo- fact heard the ny) (1) that defendant had told the testimony same and did not believe it.7 grand jury check, he did not receive the things conceivable, These are all but it grand (2) did not be- judgment majority is the of a of this defendant. If lieve the Count I were court that it is an unwarranted over-re separately, hand, tried on the other speculate they finement present (1) would be unaware of significant danger ju the trial (2).6 acting rors, give weight will together, jury’s It is claimed that the awareness grand ju the conclusion reached (1) prejudicial (2) to fair rors and fail to decide the issues of fact consideration of Count I because the according proper to their own evaluation grand jury’s disbelief of defendant’s de- of the evidence.7a nial would discredit defendant’s denial ordinarily, Jurors are and were in this testify, at trial if he chose to and would case, viewing fortified in the indictment any in against proof event tend to make the accusation, by as mere instructions persuasive. him seem more They the court. were told: jury ought The view the trial which going “The indictment that I am to take that each is count a mere ac is refer to in a few moments is not evi- Although concerning cusation. the issue guilt, dence of it the defendant’s receipt of the check was central to simply, you [presuma- as I told before count, proof each on that issue was to be bly dire], on voir the manner weighed according and the issue resolved government person which the a accuses court, to the instructions and not you of prej- a crime and should not be differently by presence reason of the of against udice a [d] defendant because two accusations as to of both which the an indictment returned has been significant. issue was In order to find against him. . merit in position, defendant’s we would “You are instructed to jurors have to consider the assume that the trial will given testimony merely treat the defendant Pa- Count II not aas formal Jury centé before the declaration, accusation Grand on Feb- of a false but as ruary pronouncement, 22nd worthy a as evidence under respect, you opinion concerning an Count of the indictment and Count I. Trial jurors may should not it grand in consider as evidence on fact know what a any jury other count in indict- how it functions. A trial juror may may ment. or . . . not realize that the weight government grand argue 6. The to a belief a number of that does least jurors already possibility prove (1) have decided the same issue. that it could as a false exculpatory statement if defendant panel’s 7a. rationale of the earlier deci present testimony reputation, were to as to rejected. sion Paoente was happened here, government as could 1124, 1159-1160, Isaacs, quire II, whether the witness knew of Count opin (dissenting opinion), (dissenting jurors (2). and thus make the aware petition rehearing), ion 7th Cir. on single juror count, may 1974), trial in a At a con- cert. den. 417 U.S. S.Ct. ceivably, though give improperly, (1974). some L.Ed.2d 1146 thing jury in this in- an “Now, two counts send to the indictment there are and, you, information, against I have each or dictment, as told the accusation something defendant, entirely charges separate crime. You the one separately. containing one different each to send affidavits consider should government’s guilt proof support or innocence The defendant’s Grady, such in one count should accusation.” See also su- the crime grand jurors your pra, at verdict on the other who voted not affect ” analogous II Count . . are uncon- count. . Grady Douglas fronted only affiants these We think instructions petit if it is assumed that against meaningful possi protection jury II treats Count as evidence with give bility the trial respect to Count I. considering weight, whether to con suggests I, prejudice vict to the determinations on Count indicting joint grand jurors made on inevitable at because unique factor to this case: At The feared reaction is not so Count II. instinctive, compelling declaration, time of false natural, or as the Chicago Supreme Depart Rule 51 of the Police one reject which caused Court prohibited protection ment inadequate the in officer’s refusal as testify, grounds self-incrimination, disregard struction to as one defend grand jury. incriminatory portion before a court This recent ant the of another ly held Rule 51 unconstitutional “to in Bru defendant’s admissions involved police extent it States, denies officers the ton v. 391 U.S. 88 S. privilege against (1968). self-incrimination Ct. 20 L.Ed.2d 476 prosecution where criminal follow.” theory upon the “Our of trial relies Conlisk, Confederation of Police ability of a to follow instructions.” de Opper States, v. United 348 U.S. nied, sub Rochford nom. v. Confederation 158, 165, (1954). 99 L.Ed. Police, course, “Of no curative are instructions L.Ed.2d 307 When defendant panacea, jurispruden- . . . but our appeared grand jury, however, before the system assumes, tial tent, at least to some ex- appeared his choice quish either to relin juries grasp are able to the privilege the Fifth Amendment or allega- fundamental distinction between employment. the risk loss his He con in an indictment and evidence tions pointing charge tends that declaration the false guilt.” Dallago toward v. Unit- product was a of that In dilemma. States, U.S.App.D.C. 276, ed 427 F. view, require his unfair to him it was (1969). 2d fn. 13 simultaneously to defend both the ex Grady, v. 185 F.2d 273 States tortion declaration and false counts 1950) and United v. States based on underlying denial of the coerced facts his Douglas, F.2d 894 extortion. the defendant, inapposite. relied on are cases, attesting In to those affidavits agree areWe unable to with this anal- charges supporting the facts in the ysis. pressures First, the to which the criminal informations were jury along sent subjected policeman-witness rule at the with informations.- We grand jury proceedings have little bear- de- reversed because defendant was ing joint propriety on the of a trial on right prived of the to af- confront the resulting charges. essence, In de- fiants. argument fendant’s is that the rule question Douglas, supra, made it him 895-96, unfair before In at grand jury him complaint and indict for a “No made court observed: argument false answer. If the were ac- permitted information because the was cepted, should be go relief dismissal of jury, di- but the criticism II, separate solely trials. not affidavits. It is one Count rected speculative require however, offenses was too Despite, threat of dis rule, department charge implicit The factors available to the severance. in the stage pretrial not im court at the motion did declaration count the false contrary result, grand jury, not and noth- proper. defend dictate Before the during emerged privilege ing to refute have invoked could ant against ruling. light this, self-incrimination, the initial refused endeavoring |200 regarding receipt “to of the court was correct to answer rule, possible prejudice event, despite the balance to the defend- In that check. joinder lawfully public have ant with the interest department could through judicial discharged on the efficient use of time insistence him for his Broderick, joint U. trial of defendants and privilege. offenses v. Gardner are L.Ed.2d 1082 which connected.” United v. States S. supra, Rogers, Ass’n, v. (1968); Inc. at 828.8 The district Men Sanitation Comm’r, court did not in de- 88 S. abuse discretion its Sanitation nying (1968). separate This the motion for trials L.Ed.2d 1089 Ct. holding in under Rule Confederation the court’s Conlisk, supra. oth On the of Police v. did, could, hand, as he er II. privilege In that and answer. waive Defendant four additional asserts ar- regarding past event, testimony con his guments for the of his reversal convic- against him in a not be used duct could panel tions. The which first heard involving proceeding such con criminal appeal unnecessary found it to reach Garrity Jersey, 385 New duct. 493, v. contentions, these of our view dif- 17 L.Ed.2d sepa- ferent conclusion the matter of compulsion rule does trials, points rate the other must now be however, justify not, testi a witness considered. short, public falsely. fying while a “In put employee to the Hobson’s not be on interstate commerce. A. Effect or unem of self-incrimination Choice privileged ployment, to resort he is not that there was alternative, e., lying.” i. Unit the third obstructed, proof no the extortion Deegan, ed ex rel. Annunziato delayed, or affected interstate comm (2d Cir., erce.9 wrong defendant’s denials Whether stipulated trial, At doing pet- for the were true or false was pertinent to this contention: the facts however, Nothing, it to decide. During Chicago-Oak (Ko- Liquors Department pre Rule 51 about Police liquor vacevic) purchased on a beer prosecution for false declarations. cluded regular located from distributors basis Devitt, discussion United States See Chicago. obtained distributors These 1974). (7th 140-142 Cir. 499 F.2d 135 at liquor out- their beer and from sources side Illinois. reasons, conclude For these we argument goods its that the the district court within Defendant’s Chicago deciding probabili in that the in and that the discretion ty had come rest single Chicago- prejudice trial on both distributors to of at a sales F.Supp. provides penalties Teemer, 1951(a) v. 214 18 See United States U.S.C. way obstructs, (N.D.W.Va. 1963) any degree “in : one who or 954 delays, the move- exercise of the discretion or affects commerce or [Rule 14] “The commodity balancing possible any in com- ment article or of involves consideration attempts merce, by robbery prejudice or in or extortion to the defendants the trial ” against conspires . or so to do. the several offenses one text, quoted 1951(b)(3), expense in- in the Gov- and Section inconvenience fra, ernment, in section as used of hold- defines commerce the court and the many ing separate interstate commerce. factual 1951 so as to include so trials where legal and issues are common.” 550 through any place state purely in the same Liquors intrastate Oak state, and all other com- disposed of such outside been has transactions DeMet, over which United States F.2d merce United States ours.) denied, (Italics jurisdiction.” 1973), (7th cert. has Cir.

821-822 L.Ed.2d element The italicized second facts were sufficient specifical- element most definition present ly case. in the to those similar ly germane in this case. to the evidence The court observed: quite It seems clear that the court element, either “Although tended to read the second tavern-owner’s] [the by local, depletion the third and or followed primarily alone business was Inadvertently goods mon- fourth elements. and assets [his] skipped and extorted, of his court to the third element ey or cessation only: yield and his instructed he did not if business realized, tend to re- would fears were “And the term ‘commerce’ means all and amount of demand for duce the points commerce between within the moving liquor Illinois. into beer through any place same state outside interstate commerce The effect on such state and all other commerce though exist, small most ju- over which the has indirectly standards, caused risdiction.” * * * by defendant’s acts. Standing literally alone, the statement is

here, “Where customarily ^[*] victim obtains ^[*] extortion, as ^[*] inventory ^[*] ticular case. No one called the matter correct, the court’s but not attention. very helpful Although this par- objections from outside did ask for at the which has come court not delay instructions, state, of and ef- close of the under Rule obstruction may, pur- F.R.Cr.P., oppor- upon adequate for the there was an fect commerce tunity Act, colloquy pose found short about other Hobbs immediately potential of the victim’s matters after the re- curtailment buyer goods, This tired. as a such through depletion be traced either In the context the entire record we fulfillment of the of his assets his do not consider the omission “basic and or harm extortionate demands highly prejudicial error.” Cf. United follow if the threats were which would Esquer, States v. 459 F.2d carried out.” denied, Cir. Defendant also 243; L.Ed.2d United inadvertent omission from instructions Malasanos, States (7th though commerce, on the effect on 1973); United v. Can challenged time, appropriate is re at the tu, 1019 at 1021

versible error. have been 30 F.R.Cr.P. It must 1951(b)(3) clear to all that Illi defines “com- commerce between U.S.C. § being purposes nois and other referred merce” for Hobbs Act as: states to.11 within the “Commerce District any posses- opening government territory

Columbia, In an or or statement States; acknowledged govern- all com- sion of the counsel point state, any merce between in a ment must show that the extor- territory, possession way or the District tion “in some interstate affected of Columbia, any point stip- there- outside commerce” and there said would be points of; with- all commerce between ulated evidence to Kovacevic show that Gill, Gill, pp. supra, 10. See also fn. 237-238. Cf. 1973) cert. denied 236-237 41 L.Ed.2d bought beverages necessary from local one, distributors is not a and would in- be bought preceding portion out- who had them from sources with consistent stipulated parties The Moreover, Illinois. same side sentence. the court representatives in verdict, three of distributors furnished three forms of one for called, Chicago testify, guilty if counts, that he verdict of on both guilty both, to Kovacevic which one for not sold merchandise and one for bought per- guilty (with from a number of on one had been number to be specified serted) guilty Illi- sons at locations outside not on the other. nois. These forms read and their use ex- plained. jury reasonably could not government argument In final counsel sug- have understood the instruction as it clear that Kovacevic dealt in said is gested by defendant. products Illinois, that came from outside affected inter- and that the extortion juror during C. Excuse delibera- response state commerce. defense tions. stipulated testi- counsel referred mony and asked whether there wasn’t Defendant contends that an incident taking reasonable doubt whether during jury’s deprived deliberations away from the tavern owner “interfered right him of his Sixth Amendment to a with interstate commerce.” jury selecting jurors, trial. After prior opening testimony, but During instructions, the court re- signed agree- counsel indictment, had filed viewed the and mentioned stating: ment allegation that articles “manufac- tured various states other than Illi- hereby stipulated by “It and be- purchased pur- nois were and to be by tween the hereto their re- chased.” The court at said another spective attorneys that in case one but point government need not jurors not more than two shall ex- prove particular shipment that a panel cused from the reason of ill- delayed, out of state was obstructed or any good ness or for other cause as depletion and referred to “the Court, determined engaged sources of the business [re] may proceed before the remain- interstate commerce.” ing panel members of the with the pan- same force and effect as if a full separate B. Instruction as to consid- present.” el were eration counts. evidence, The 12 heard the re- The district court instructed: instructions, ceived their and retired to “Now, during are in there two counts this consider their verdict. Sometime dictment, and, you, evening I told deliberations, as have each the first charges separate one crime. You marshal received a call from the hus- separately. informing should consider each one juror band of him Woodson guilt The defendant’s or innocence of that Mrs. father was serious- Woodson’s charged ly the crime expected one count should ill mar- and not to live. The your not affect on the other verdict shal transmitted this information to the you count and judge. judge, district without con- if find defendant beyond guilty sulting a reasonable doubt counsel, excused Mrs. Woodson. either the crimes in the in stipulation Defendant dictment, guilty then a verdict of although binding because, (Italics ours.) should be returned.” nothing signed counsel, there is his indicating suggests in the record that the italicized agreed 23(b), portion open it. F.R. himself to the construction that provides: guilty shall be of Cr.P., “Juries if the found defendant par- any gener- count, time before verdict return one it should writing may stipulate with the guilty. al verdict of a construction ties Such 552 jury notified. Defendant said noth-

approval that the shall not been of the court ing. judge plan to any later indicated a than 12.” number less consist jury 11 a. the deliberate until about let m., give 23(b) suggests Nothing that instruction, let a modified Allen signature stipulation for a on a counsel’s noon, jury deliberate until and then the jury the does not bind reduced size of discharge it if no verdict had been represents party if the record fails he Defense then said: reached. counsel party authorized counsel show my suggestion, “My defendant’s progress During stipulate. your just Honor, to leave them wait. ordinarily presumed trial, it is Charge object any Allen We authority attorney to bind of record has object being and I will to them dis- represents party to matters he as charged, your Honor.” Defendant re- Attorneys 120, procedure. Am.Jur.2d 7 mained silent. conclude that defend- We Although policy consider at Law 121. position repudiate ant is not in a his forego reli courts to ations cause attorney’s authority agree to reduc- presumption as the matter on that ance jury. tion in the size of the stature, Supreme stipulated rises in argu rejected “squarely has Court Defendant asserts three addi any . waiver of con ment that . . objections juror tional Woodson’s rights ineffective unless [is] stitutional deliberately being First, excused. he contends that expressly ap made and juror’s the illness of father did not proved the defendant.” United stipulation fall within the terms Twomey, ex rel. Allum v. 484 F. States permitting “by excuse reason of illness 1973). 740, (7th 2d 745 Cir. any good or for other cause as deter mined the court.” thinkWe that the personal expres Absence of recorded judge district acted within the discre by defendant of consent to reduc sion de-) stipulation tion conferred jury of a has been held not tion size termining that the event constituted ground of collateral attack. to be good Rogers cause. Cf. v. United States, 40, F.2d Horne v. United States, 5, (7th 1963), F.2d Cir. (5th 1959), denied, 360 41-43 Cir. cert. denied, 989, 524, cert. 375 U.S. 84 S.Ct. 1549; 1460, 79 S.Ct. 3 L.Ed.2d U.S. (1964) (snowbound ju 11 L.Ed.2d 475 States, v. United 332 F.2d Williams ror) ; Houlihan, v. United States F. 1964), denied, Cir. cert. (2d denied, 2d 12-13 Cir. L.Ed.2d 85 S.Ct. 13 L.Ed.2d 37 Agreement by counsel has been (nurse-juror due excused to illness of appeal. Beatty held sufficient on direct patient). States, v. Second, argues Vega, Cf. United stipulation only authorized of a release (2d 1971) where juror during receipt evidence, not the record showed that counsel had also jury after the retired to deliberate. The conferred with client. his however, stipulation, contains no such limitation, language and the of Rule The record before us does 23(b) permitting stipulation “any time presence colloquy in the show de clearly requires before verdict” none. stipulation fendant at signed by time filed, his counsel and the first Finally, defendant day colloquy of trial. It does show a court should have notified district morning open juror court the after the excusing defense Mrs. counsel before pursuant stipu had been excused rejected Woodson. second circuit lation and while continued to contention in similar judge deliberate. The announced the Houlihan, supra, at 13: concerning juror. the excused De facts “notwithstanding objected “Although every fense counsel effort should be ground opportunity, stipulation” on the had to afford such an he made representing failure to do do not think that so a client we arrested relieving notify defendant; e., a counsel before defendant was also [i. presents present juror] this a in a case such as had moustache. grounds reversal. for Situations denying motion, the district respect when a for arise sometimes judge (who, course, had seen and rights require the will the judge witnesses) heard the indicated that he with- to take immediate action regarded testimony Lascaro as cu- consulting ju- a g., counsel—e. if out mulative, unlikely change the re- ill that he cannot come ror is taken so sult since a witness could be as mistaken family emergency re- to court or has a to a matter like moustache and still a night during quiring him to leave make a correct identification. Two of a weekend.” or over propositions which must be estab- that, had the court Defendant asserts support lished of a motion for new counsel, he would have in- consulted his newly trial because of discovered evi- verifying of Mrs. sisted on the illness proba- dence are that the evidence would However, father. Woodson’s bly produce a different verdict and is stipulated that the court would de- had merely cumulative. Grant or denial good cause. termine what constituted discretionary. of the motion is United think notice was not essential We Curran, described. See exercise of function 1972). find We no abuse of discre- Vega, supra; United States v. tion here. Ricks, U.S.App.D.C. 57, States v. judgment appealed from is af- F.2d 1326. firmed. D. Denial motion new trial on ground newly discovered evi- Judge (dissenting). SWYGERT, Chief dence. adopt I dissent and as the basis for my opinion majority dissent of the At trial Kovacevic identified originally division court which defendant as the man who was in his appeal. heard and decided this That April June, store and with opinion reported at 490 F.2d involving whom he had the transaction cross-examination, check. On asked, among he was other matters SPRECHER, Judge (dissent- Circuit appearance, the man’s whether he had a ing). moustache. Kovacevic answered “No.” wife, sister-in-law, Defendant’s and bar I dissent the basis that I believe ber testified that defendant had full that the district court abused its discre- moustache at the time of the ex tion under the facts of this case—that produced photo tortion. Defendant is, by trying together single substan- graph appeared in which he with a single perjury tive count and a count moustache and which he said taken volving receipt check, of the same $200 February, tracking with each count the other with double-teaming Defendant’s motion for new effect. Whether dis- supported by separately the affidavit cretion is abused of Lascaro. must be de- attorney; case, Lascaro stated that he was an cided each but I find appeared that he had in court on abuse here. June

Case Details

Case Name: United States v. James v. Pacente

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Dec 9, 1974

Citation: 503 F.2d 543

Docket Number: 72-1988

Court Abbreviation: 7th Cir.