U.S. v. Clark, s. 82-1813

Decision Date20 June 1984
Docket Number82-2341,Nos. 82-1813,s. 82-1813
Citation737 F.2d 679
Parties15 Fed. R. Evid. Serv. 1837 UNITED STATES of America, Plaintiff-Appellee, v. Richard CLARK and Christine Kunkel, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Ted S. Helwig, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Anthony Intini, III, Chicago, Ill., for defendant-appellant.

Before WOOD and POSNER, Circuit Judges, and NICHOLS, Senior Circuit Judge. *

POSNER, Circuit Judge.

Christine Kunkel worked as a savings counselor for a federally insured savings and loan association. She was charged with misapplying $10,000 of the association's funds in violation of 18 U.S.C. Sec. 657; and her husband, Richard Clark, was charged with receiving the misapplied funds in violation of 18 U.S.C. Sec. 2113(c). They were tried together, but Kunkel was tried by a jury and Clark by the judge. Clark testified for himself in his own trial, out of the presence of the jury, but did not testify in Kunkel's; therefore he was the only witness not to appear before the jury. The judge convicted Clark and sentenced him to two years in prison. But the jury hung, so Kunkel was retried, again before a jury, and this time she was convicted, and the judge sentenced her to nine months in prison. Both Clark and Kunkel have appealed their convictions, and we have consolidated the appeals.

Although a number of issues are raised, only one is of much general interest--Kunkel's challenge to the prosecutor's use of four of his six peremptory challenges to exclude blacks from the jury. The other issues can be discussed quite briefly. Clark presents two. The first is whether the fact that the jury hung in his wife's first trial shows that there was insufficient evidence to prove him guilty beyond a reasonable doubt. His premise, which is reasonable, is that his guilt is derivative from his wife's; it is she who the government alleges diverted a $10,000 deposit from a customer of the bank to an account in the name of an alias of Clark, and if she didn't do this it is hard to see how a rational factfinder could find that Clark had received misapplied funds. But the jury did not acquit his wife; it merely was unable to arrive at a unanimous verdict. Moreover, it was a different factfinder. Clark was tried by the judge. If there was enough evidence to convict Clark (and implicitly his wife) beyond a reasonable doubt, it would be irrelevant that a jury evaluating the same evidence had decided, for whatever reason, to acquit (though in fact it did not acquit, as we have said). United States v. Beck, 615 F.2d 441, 448 (7th Cir.1980). We add that the evidence introduced against both of them was adequate to convict. A deposit made by a bank customer somehow ended up in the account of an alias of Clark; this much was undisputed. Kunkel, Clark's girl friend and later his wife, had a job at the bank that would have enabled her to divert the funds in this manner. Shortly after the money was deposited in the account and withdrawn in cash (which followed shortly on the deposit), Miss Kunkel left on vacation with Clark and told her employer that she probably would not return.

The other issue raised by Clark relates to the introduction into evidence of the two deposit slips, each for $5,000, by which the money was put into Clark's account. Clark objects that the slips are hearsay, and that they are not within the exception to the hearsay rule for regular business records (Fed.R.Evid. 803(6)) because the signature of the bank officer on the slips was forged--making them most irregular. But the slips were not put into evidence to show the truth of what they contained; to show, that is, that $10,000 was deposited to Clark's pseudonymous account. That fact was not disputed. They were introduced as foundation for the bank officer's testimony that his signature was forged. They were not hearsay at all.

We turn to the Kunkel appeal. The sufficiency of the evidence to convict her has already been discussed; and the denial of her motion for a bill of particulars under Fed.R.Crim.P. 7(f) barely warrants discussion. She could not have been harmed by the denial. Having already been tried on the same charge, in the trial that ended in a hung jury, she had a far more detailed idea of the government's case than most criminal defendants do who obtain bills of particulars. There is also no possible merit to her argument that the prosecutor should not have been allowed to ask the jury to infer from the fact that Clark did not testify that she probably was guilty. It was not disputed that he was the recipient of the misapplied funds; so he could have exonerated her if she had not been guilty. After Clark was convicted he was given immunity, to make doubly sure that he could not resist on Fifth Amendment grounds being called to testify in his wife's second trial. The government wanted to call him as a witness because, though it knew from his testimony at his own trial that he would try to exonerate her, it thought the jury would find his evidence so incredible that it would conclude that she must be guilty. But Clark refused to testify, and was held in contempt. We affirmed his contempt conviction in United States v. Clark, 712 F.2d 299 (7th Cir.1983), rejecting (on grounds unnecessary to discuss here) his argument that the spousal privilege entitled him not to testify in his wife's trial. The government had therefore a right to call Clark to the stand, hoping that he would implicate his wife indirectly by giving incredible testimony, and equally a right to comment on his refusal to take the stand--for otherwise he would have gained something from his contempt. No constitutional or other privilege was violated by the prosecutor's statement.

The most important question raised by Kunkel's appeal is whether the judge, before empaneling the jury, should have investigated the complaint by Kunkel's counsel that the prosecutor was using his peremptory challenges in a racially discriminatory manner. Miss Kunkel is white; but whites, as we have had occasion to note recently, have a constitutional (Sixth Amendment) and statutory (18 U.S.C. Sec. 1861) right to object to being tried by a jury from which blacks have been excluded because of their race. See United States v. Gometz, 730 F.2d 475, 478 (7th Cir.1984) (en banc). It does not necessarily follow however, that a defendant has a right to demand that the judge inquire into the basis on which a prosecutor exercises his peremptory challenges.

The Supreme Court held some years ago that it is not a denial of the equal protection of...

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