U.S. v. Kucik, 89-2569

• Decision Date: 30 July 1990
• Docket Number: No. 89-2569,89-2569
• Citation: 909 F.2d 206
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martin R. KUCIK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 206

909 F.2d 206

UNITED STATES of America, Plaintiff-Appellee, v. Martin R. KUCIK, Defendant-Appellant.

No. 89-2569.

United States Court of Appeals Seventh Circuit.

Argued June 4, 1990.

Decided July 30, 1990.

John F. Hartmann, Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

James F. Young, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, CUMMINGS and MANION, Circuit Judges.

CUMMINGS, Circuit Judge.

Martin R. Kucik has been tried three separate times on charges that on four days in April 1982 he stole a series of cashier's checks from a federally insured bank through a check-kiting scheme. The first trial resulted in a guilty verdict, which was overturned by this Court on the basis of faulty jury instructions. United States v. Kucik, 844 F.2d 493 (1988). The second trial was declared a mistrial after the jury could not reach a verdict. The government's third prosecution produced a guilty verdict, but Kucik alleges in this appeal that the government violated the Speedy Trial Act in failing to commence that trial within 70 days of the declaration of mistrial the second time around. Kucik also alleges that during the third trial the district court erred in refusing to give certain jury instructions requested by the defendant, including a particular version of the instruction at issue in our first Kucik opinion, and in improperly imposing restitution in the amount of $301,000 as a condition of his sentence. The district court is affirmed on each of the three grounds.

I.

A lucid description of the important facts and legal implications of the government's case against Kucik is found in our first Kucik opinion. The facts relevant to this appeal may be stated briefly. Kucik had two personal accounts, one in the State Bank of Countryside, Illinois (the "bank"), and one in the Credit Union of Local 150 of the International Union of Operating Engineers of Countryside (the "credit union"). The bank was federally insured and the credit union was not. This is significant because 18 U.S.C. Sec. 2113(b), the statute Kucik was convicted of violating, does not cover theft from financial institutions that are not federally chartered or insured. ¹

Kucik kited checks in the following manner. He would buy cashier's checks (drawn on the bank's own funds) with share drafts drawn on his credit union account. The credit union account did not have sufficient funds to cover these purchases of cashier's checks. The share drafts did not bounce, however, because before the bank demanded payment by the credit union for the cashier's checks, Kucik had deposited the cashier's checks in his credit union account. Having covered the drafts with the last set of cashier's checks, Kucik considered himself free to go back for more cashier's checks, beginning the cycle anew.

From December 1981 through April 1982, Kucik purchased a total of over $3 million in cashier's checks through this shuffling of one promise (share drafts not backed by Kucik's cash) for another (cashier's checks backed by the bank's pledge to pay). The government sought to prove at trial that in shuffling the checks Kucik also diverted money out of the credit union account instead of recirculating it through the purchase of more cashier's checks. Government witnesses testified that Kucik took more than $300,000 from the credit union account for himself in the course of the check-kiting scheme.

Upon Kucik's conviction in the first trial, Judge Hart sentenced him to three years in prison on count one, to be followed by a five-year term of probation on counts two, three, and four. This sentence did not include any monetary penalty.

This Court reversed the convictions. The Court first showed how even under the government's view of the case, Kucik did not take any money from the bank in the four transactions described in the indictment because the credit union honored the share drafts used in two of the transactions (paying the bank in full) and the bank stopped payment on cashier's checks involved in the other two transactions and was never called upon to pay them. Kucik, 844 F.2d at 494-495. Instead, Kucik took from the bank, allegedly by false pretenses, cashier's checks, which were the bank's "unequivocal, irrevocable" promises to pay the face amounts to any holders in due course. Id. at 494-495, 496. The error found by the Court was that Kucik had been denied the chance to have the jury instructed that, under Williams v. United States, 458 U.S. 279, 284-285, 102 S.Ct. 3088, 3091-3092, 73 L.Ed.2d 767 (1982), "a check is not a statement that the drawer has funds in his account sufficient to pay it," and therefore the credit union share drafts should not be treated as false pretenses for the purposes of 18 U.S.C. Sec. 2113(b). Kucik, 844 F.2d at 498. The government was thus given a chance to retry Kucik, but with a Williams instruction. Evidence other than the share drafts themselves would be required to prove false pretenses.

The retrial ended with a declaration of a mistrial on December 15, 1988, on the ground that the jury was deadlocked. The mistrial was declared over Kucik's objection. Upon declaring a mistrial, Judge Norgle continued the case until January 20, 1989. On January 13 Kucik filed a motion for an order allowing him to be provided with a transcript of the second trial at no cost pursuant to 18 U.S.C. Sec. 3006A(e)(1). One week later, on January 20, Judge Norgle granted that motion. The following exchange occurred at the January 20 hearing, with emphasis supplied:

COURT: Have I set a trial date in the case?

GOVERNMENT COUNSEL: No, Judge, one of the things we were going to talk about today is the Government's evaluation of the case, and that's still going on.

COURT: Then with respect to the ordering of [the] transcript we'll stay that until the Government determines whether there will be a third trial.

GOVERNMENT COUNSEL: Well, we'd like another week if possible to finish our discussions.

COURT: All right.

DEFENSE COUNSEL: Judge, excuse me one second. I have no problem. I just want to get my date book. I'm sorry.

COURT: All right.

DEFENSE COUNSEL: Thank you.

COURT: January 27th at 9:30.

DEFENSE COUNSEL: Fine, Judge, thank you.

COURT: For the Government to state its position regarding a third trial.

DEFENSE COUNSEL: Thank you.

On its own motion, the court later reset the January 27 date to February 1.

On February 1, 1989, the government advised the court that it would proceed with a third trial. The district court then set the matter for trial on March 20. The court also ordered that the court reporter prepare the transcript. On February 22, Kucik's counsel picked up and signed a receipt for the second trial transcript.

On March 10, Kucik filed a motion to dismiss the indictment for violation of 18 U.S.C. Sec. 3161(e) of the Speedy Trial Act. The motion tolled the speedy trial period for any further computations. On March 17, the district court issued a minute order denying the motion to dismiss.

At the third trial in May 1989, the district court refused four of Kucik's proposed instructions, including Kucik's version of the Williams issue discussed by this Court in the first appeal. The district court used a different version, discussed below. The jury found Kucik guilty of four counts of stealing a total of $581,000 in cashier's checks from the bank in violation of 18 U.S.C. Sec. 2113(b). Each count represented a different transaction on four separate days in April 1982. The district court sentenced Kucik to one year and one day in prison on count one, to concurrent terms of five years of probation on counts two, three, and four, and, as a condition of probation, to pay restitution in the amount of $301,000.

II.

A. Tolling of Speedy Trial Act

The parties agree that 84 days passed between the time the district court declared a mistrial in December 1988 and the day Kucik filed his speedy trial claim in March 1989. A timely trial would have commenced on February 23, 1989, barring periods of excludable delay. Kucik asserts that this constitutes a violation of 18 U.S.C. Sec. 3161(e) ² and therefore his indictment must be dismissed pursuant to 18 U.S.C. Sec. 3162(a)(2). As is typical in such cases, the government response uses the statute in the manner of a Chinese menu; the government asserts that any of a series of combinations of excludable periods allowed under 18 U.S.C. Sec. 3161(h) saves its case from a speedy trial violation. The following periods described in Section 3161(h), which the statute directs "shall" be excluded from the elapsed time, are relied upon by the government:

--"[D]elay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." Sec. 3161(h)(1)(F).

--"[D]elay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court." Sec. 3161(h)(1)(J).

--"[D]elay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." This finding must be supported by an oral or written statement by the judge. Sec. 3161(h)(8)(A).

Finally, the government points to language in Section 3161(h)(1) to the effect that excludable time "resulting from other proceedings concerning the defendant" includes but is not limited to the specific periods described. Thus the specific periods constitute an inclusive and not an exclusive list.

In September 1989 the district court issued findings in support of its conclusion that the Speedy Trial Act was not...