U.S. v. Buljubasic

• Decision Date: 02 February 1987
• Docket Number: 86-2269,Nos. 86-1263,s. 86-1263
• Parties: 22 Fed. R. Evid. Serv. 642 UNITED STATES of America, Plaintiff-Appellee, v. Ivan BULJUBASIC and Slobodan Pavlovic, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1260

808 F.2d 1260

22 Fed. R. Evid. Serv. 642

UNITED STATES of America, Plaintiff-Appellee, v. Ivan BULJUBASIC and Slobodan Pavlovic, Defendants-Appellants.

Nos. 86-1263, 86-2269.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 3, 1986.

Decided Jan. 7, 1987.

Rehearing En Banc Denied Feb. 2, 1987 in No. 86-1263.

^*

Frederick F. Cohn, Frederick F. Cohn Ltd., Jeffrey Steinback, Chicago, Ill., for defendants-appellants.

Joan Bainbridge Safford, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, CUDAHY, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Robert Samuelson put the torch to an occupied apartment building in Chicago. The effort to destroy the building failed; Samuelson tried and failed again three days later; he was caught after trying the third time. Samuelson identified Ivan Siprak and Ilija Zabic as the people who had hired him and furnished gasoline, but they fled with the aid of $9,000 they had received from Slobodan Pavlovic, the real estate dealer who had sold the building to Ivan Buljubasic and arranged for substantial insurance on it. Siprak and Zabic eventually were caught. Samuelson and Siprak pleaded guilty to attempted arson; Zabic was convicted of arson after a jury trial and became the prosecution's star witness in the trial of Buljubasic and Pavlovic.

Zabic testified that Buljubasic hired him to find an arsonist, so that Buljubasic could collect insurance on the dilapidated building. Buljubasic was convicted of violations of the Explosives Control Act, 18 U.S.C. Sec. 844(i), for arranging the arson and participating in its execution; of mail fraud, 18 U.S.C. Sec. 1341, for collecting on the insurance policy; and of conspiring to do these things. He received a total of 12 years' imprisonment, was fined $41,000, and was directed to pay restitution of $4,200. Pavlovic was charged with the conspiracy, with aiding and abetting Buljubasic by paying Zabic, and with threatening Zabic to prevent his testimony. Two weeks into the joint trial, Pavlovic's case was severed from Buljubasic's and Pavlovic was granted a mistrial. Pavlovic vowed to testify that he knew what the payment to Zabic was for and paid Zabic in fear of his life; he depicted Buljubasic as a violent person who would not have let Pavlovic leave the room alive if he had not given $9,000 to Zabic. The district court thought that this degree of conflict in the defenses precluded a continuation of the joint trial.

The joint trial produces the only substantial issues on appeal. Buljubasic contends that Pavlovic's lawyer tried to fix the blame on Buljubasic, creating prejudice that requires reversal. Pavlovic maintains that the double jeopardy clause of the fifth amendment precludes a second trial after the mistrial. Both arguments depend on the circumstances that led the trial to proceed for so long before the severance was granted.

I

The arsons took place in January 1981. Zabic was convicted in 1983. Buljubasic and Pavlovic were indicted in October 1984. The indictment charged a common scheme, making the joinder proper under Fed.R.Crim.P. 8(b). At the time of the indictment the prosecutor had little reason to think that Buljubasic and Pavlovic would advance antagonistic defenses. Buljubasic had denied from the beginning knowing about or having anything to do with the arson, or even knowing Zabic (more than casually) until after Zabic's conviction. (Buljubasic maintained this position through his trial.) Pavlovic had testified at Zabic's trial and before a grand jury; he also had given statements to the prosecutors. On all occasions Pavlovic had denied knowing the purpose of any payment his company made to Zabic (the checks to Zabic had been signed by one of Pavlovic's employees, not by Pavlovic personally) or having any involvement in the scheme. Pavlovic said that the $9,000 were escrowed funds for repairs that Zabic and others were performing for Buljubasic. Perforce Pavlovic had not claimed to be the victim of coercion.

More than 13 months after the indictment--and only 12 days before trial--Pavlovic moved for a severance under Fed.R.Crim.P. 14. The two-page motion stated in a cursory fashion that the defenses were antagonistic. The only detail was:

Buljubasic intends to take the stand on his own behalf and testify that Defendant Pavlovic hired ... Zabic to burn the building.... Similarly, it is Defendant Pavlovic's intention to take the stand and testify that to his knowledge co-defendant Buljubasic hired Zabic to burn the building.

As it turned out, Pavlovic was wrong about Buljubasic's defense; Buljubasic never pointed a finger at Pavlovic or anyone else. The motion, which Buljubasic did not join, does not provide details or suggest that Pavlovic will accuse Buljubasic of coercion.

Pavlovic later filed three affidavits in support of his motion. One, dated November 7, is by Buljubasic's counsel, who stated that Buljubasic would testify and that "I shall argue to the jury if I have been able to develop evidence ... that ... Pavlovic may have arranged with Mr. Zabic for the burning of the building." (Emphasis added.) Counsel never developed that evidence. A second, dated November 12, is by Pavlovic's counsel. This affidavit stated unequivocally that the defense would be that Buljubasic hired Zabic and Siprak to burn the building and that "Buljubasik [sic] authorized payment to Ilija Zabic and had Slobodan Pavlovic pay Zabic the sum of $9,000." Again no mention of coercion, and no suggestion that Pavlovic would concede that he knew the purpose of the payment. The third affidavit is by Pavlovic and was tendered at the hearing on November 14. This affidavit states that Pavlovic paid $9,000 to Zabic at Buljubasic's instructions and that Pavlovic knew Buljubasic hired Zabic to burn the building.

In open court on November 14, Judge Grady denied Pavlovic's motion for severance and Buljubasic's belated oral motion for the same relief. Judge Grady thought that the allegations of conflicting defenses were too sketchy. Indeed they were, especially so in light of the fact that for more than four years both Buljubasic and Pavlovic had affected absolute ignorance of the events. More, the prosecutor and the defense counsel had agreed on an "open files" discovery policy, and the prosecutor represented to Judge Grady that the defendants had turned over nothing indicating that there would be a conflict. The most that could be said is that Pavlovic planned to testify that he made a payment to Zabic at Buljubasic's direction and without knowing its purpose--for to admit knowing its purpose would be to confess guilt. Pavlovic's further assertion that he knew that Buljubasic had hired Zabic did not include essential details, such as when Pavlovic learned this information, how he planned to prove it, and what use he intended to make of it at trial.

There is a strong interest in joint trials of those who engaged in a common enterprise. See United States v. Velasquez, 772 F.2d 1348, 1352-54 (7th Cir.1985). Joint trials reduce the expenditure of judicial and prosecutorial time; they reduce the claims the criminal justice system makes on witnesses, who need not return to court for additional trials; they reduce the chance that each defendant will try to create a reasonable doubt by blaming an absent colleague, even though one or the other (or both) undoubtedly committed a crime. The joint trial gives the jury the best perspective on all of the evidence and therefore increases the likelihood of a correct outcome. See United States v. Oxford, 735 F.2d 276, 280 (7th Cir.1984). This is not to deny that a joint trial may create a risk that the jury will hear evidence that is inadmissible with respect to one defendant. Inconsistent defenses also may create prejudice. But as a rule evidence and arguments may be controlled by the court, and inconsistent defenses are not enough to require severance. United States v. Joyce, 499 F.2d 9, 21 (7th Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974); United States v. Hutul, 416 F.2d 607, 620-21 (7th Cir.1969), cert. denied, 396 U.S. 1007, 90 S.Ct. 562, 24 L.Ed.2d 499 (1970). Finger-pointing is an acceptable cost of the joint trial and at times is even beneficial because it helps complete the picture before the trier of fact. Unless the defenses are so inconsistent that the making of a defense by one party will lead to an unjustifiable inference of another's guilt, or unless the acceptance of a defense precludes acquittal of other defendants, it is not necessary to hold separate trials. See United States v. Hendrix, 752 F.2d 1226, 1232 (7th Cir.), cert. denied, 471 U.S. 1021, 105 S.Ct. 2032, 85 L.Ed.2d 314 (1985); United States v. Banks, 687 F.2d 967, 973 (7th Cir.1982), cert. denied, 459 U.S. 1212, 103 S.Ct. 1208, 75 L.Ed.2d 448 (1983); United States v. Ziperstein, 601 F.2d 281, 285 (7th Cir.1979), cert. denied, 444 U.S. 1031, 100 S.Ct. 701, 62 L.Ed.2d 667 (1980); United States v. George, 477 F.2d 508, 515 (7th Cir.), cert. denied, 414 U.S. 827, 94 S.Ct. 155, 38 L.Ed.2d 61 (1973). If Pavlovic should persuade the jury that he gave money to Zabic without knowing its purpose, that would not preclude Buljubasic's acquittal. So as of November 14 it was appropriate to proceed toward the joint trial four days away.

On November 18 Pavlovic renewed his motion for severance. For the first time, counsel for Pavlovic stated that he would raise a defense of compulsion. Counsel said that he would produce evidence "that the reputation of Mr. Buljubasic was one of a dangerous one [sic]; that there were guns present in the room on that day." Judge Crabb, hearing the case by designation, was surprised, for none of the papers in the case mentioned compulsion; the prosecutors were surprised as well and asked the judge to forbid use of the defense, which was not supported by any of the reciprocal discovery or by Pavlovic's testimony on other occasions....