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

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before WOOD and POSNER, Circuit Judges, and NICHOLS; POSNER
• Citation: 737 F.2d 679
• Parties: 15 Fed. R. Evid. Serv. 1837 UNITED STATES of America, Plaintiff-Appellee, v. Richard CLARK and Christine Kunkel, Defendants-Appellants.
• Decision Date: 20 June 1984
• Docket Number: 82-2341,Nos. 82-1813

Page 679

737 F.2d 679 15 Fed. R. Evid. Serv. 1837 UNITED STATES of America, Plaintiff-Appellee,
v.
Richard CLARK and Christine Kunkel, Defendants-Appellants. Nos. 82-1813, 82-2341. United States Court of Appeals,
Seventh Circuit. Argued April 11, 1984.
Decided June 20, 1984.

Page 680

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

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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...