U.S. v. Menzer

• Decision Date: 21 July 1994
• Docket Number: No. 93-2594,93-2594
• Citation: 29 F.3d 1223
• Parties: 40 Fed. R. Evid. Serv. 1436 UNITED STATES of America, Plaintiff-Appellee, v. Michael S. MENZER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1223

29 F.3d 1223

40 Fed. R. Evid. Serv. 1436

UNITED STATES of America, Plaintiff-Appellee, v. Michael S. MENZER, Defendant-Appellant.

No. 93-2594.

United States Court of Appeals Seventh Circuit.

Argued Jan. 14, 1994.

Decided July 21, 1994.

Stephen J. Liccione, Asst. U.S. Atty., Milwaukee, WI (argued), for plaintiff-appellee.

Franklyn M. Gimbel (argued), Kathryn A. Keppel, Raymond M. Dall'osto, Gimbel, Reilly, Guerin & Brown, Milwaukee, WI, for defendant-appellant.

Before BAUER, COFFEY and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

A federal grand jury sitting in Milwaukee, Wisconsin, returned a one-count indictment against the defendant charging him with arson resulting in the death of his two children. A jury returned a guilty verdict and the defendant was sentenced to forty years imprisonment to be followed by five years of supervised release. Menzer was also fined $10,000 and ordered to pay a $50 special assessment. We affirm.

BACKGROUND

In the early 1980's, Michael Menzer purchased an old mill and granary in Waldo, Wisconsin in which he opened the Onion River Mill and Art Gallery. At this time, Menzer became acquainted with Grace Durfee, who had a son named Tyrone from a previous relationship. In May 1983, Grace gave birth to a second son, Jason, fathered by Menzer and thereafter the couple married in December 1983. Grace gave birth to a third son, Kyle, after the marriage. The family lived on the third floor of the Onion River Mill and Menzer operated his art gallery and souvenir shop on the first and second floors of the mill.

In 1988, Grace and Michael's marriage began deteriorating and Menzer filed for divorce in 1989. Prior to the final divorce proceedings, Grace threatened to report Menzer for his recent sexual abuse of the three boys. Menzer feared that if this information became known to law enforcement authorities it might result in the revocation of his probation for a prior sexual exploitation charge (of other children) to which he pleaded no contest and was convicted in 1986.

On September 13, 1990, the Sheboygan County Circuit Court entered the final decree terminating the marriage and providing for division of the property. The defendant received the mill and art gallery in the settlement encumbered with $90,000 in debt, while Grace obtained exclusive custody of the children. Grace and the boys remained in their residence above the mill for three days after the divorce was finalized while the defendant resided in his mother's home. On September 15, 1990, Grace and Menzer had an argument in which she again threatened to report his recent sexual abuse of her sons to the police. On the night of September 16, Grace and the boys were sleeping in the upstairs residence when a fire broke out in the Onion River Mill. Grace escaped with her youngest son Kyle but the two older boys died of smoke inhalation. Menzer, who was sleeping at his mother's home, was notified of the fire by sheriff's deputies and taken to the scene. He informed the deputies that in July, 1990, he had reported an alleged arson attempt at the Onion River Mill. At that time, Menzer told a sheriff's deputy that he had found a charred, rolled up newspaper under a wooden door on the north end of his building that burned a portion of the building.

One month later, in October 1990, following an investigation by Sheboygan law enforcement authorities, Menzer was arrested for the sexual exploitation of his three boys; his probation (from the 1986 conviction) was revoked and he was imprisoned. Menzer was charged, tried and acquitted by a jury of the new charges of abusing the three boys but remained imprisoned under the probation revocation resulting from the 1986 conviction. While in prison he confided in a fellow inmate, David Knoblock, that he had set fire to the Onion River Mill. Based on a tip from Knoblock, federal agents investigated Menzer regarding the arson while he was incarcerated at the Oshkosh Correctional Institution. Menzer voluntarily met with the agents regarding the arson without counsel present. Based on the evidence obtained in the investigation, including Knoblock's tip, and statements made to the federal agents, the federal grand jury indicted Menzer on

                January 28, 1992 for the arson of the Onion River Mill.  A trial was commenced on April 20, 1992 but the trial judge granted the defendant's motion for a mistrial on April 21 because the government made reference to his probation revocation contravening the court's pre-trial ruling. 1  After discharging the jury, the judge commented to counsel that the government "ha[d] a period of time within which to determine whether they are going to proceed or not."   The judge also stated that he would "await the developments in the future."   Shortly after the granting of the mistrial, the government, on May 8, filed a motion for clarification of the evidentiary rulings regarding the admissibility of certain statements made by Menzer as well as the probation revocation.  The trial court denied the government's motion on May 12.  The government filed a second motion for clarification on June 16 which the court denied on June 25.  On June 30, 1992, the government filed a motion to dismiss the indictment without prejudice which the court granted on July 28.  Menzer was reindicted on December 1, 1992 and made his initial appearance before the magistrate on December 11.  On December 14, defense counsel entered a motion to dismiss the arson charge based on the Speedy Trial Act, 18 U.S.C. Sec. 3161, which the court denied on December 17.  Aware of the fact that perhaps only fifteen days of nonexcludable time remained in which to try the defendant, 2 the court said it was willing to hold the trial within two weeks, but defense counsel declined to accept this option.  Accordingly, the court granted both counsel time to file pre-trial motions which were resolved on February 8, 1993 and the trial commenced on February 16, 1993
                

ISSUES

Menzer raises five separate challenges to his conviction and/or sentence: (1) whether his rights under the Speedy Trial Act, 18 U.S.C. Sec. 3161, were violated; (2) whether the federal government had a federal interest in prosecuting the arson of the Onion River Mill; (3) whether statements taken from Menzer while he was in prison violated his constitutional rights; (4) whether the trial judge abused his discretion in admitting evidence of Menzer's prior sexual abuse conviction; and (5) whether the sentencing court's upward departure from the Sentencing Guidelines was proper.

DISCUSSION

Speedy Trial Act

"The Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. (1982), was a legislative response to a perceived failure in the court system to adequately insure that 'in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial ...' " United States v. Montoya, 827 F.2d 143, 147 (7th Cir.1987) (quoting U.S. Constitution Amendment VI). Under the Act,

"the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs."

18 U.S.C. Sec. 3161(c)(1). However, the Act allows for the trial court to exclude time from the seventy-day period for various enumerated purposes including "delay 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." See 18 U.S.C. Sec. 3161(h)(1)(F).

The speedy trial problem in the case before us arose after the trial court granted a mistrial on April 21, 1992. Section 3161(e) provides that if "the defendant is to be tried again following a declaration by the trial judge of a mistrial or following an order of such judge for a new trial, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final." In this case, there is no dispute that following the mistrial on April 21, the government had seventy days in which to retry the defendant. The dispute involves the question of whether the government was entitled to a new seventy-day time period commencing on July 26, 1992, following the dismissal of the initial indictment without prejudice. The government subsequently reindicted the defendant on December 1, 1992 and the case was reassigned to a judge other than the one who presided over the original trial. See supra note 1. In a December 17 hearing before the new trial judge, the judge ruled that the government received a "fresh clock" after reindicting the defendant. Menzer argues that the trial court erred in ruling that the government obtained a "fresh clock" upon the December 1, 1992 reindictment. The defendant also argues that the court erred in determining that if there was not a fresh clock, that the government's two motions following the mistrial failed to exclude time under 18 U.S.C. Sec. 3161(h)(1)(F). We review the trial court's interpretation of the Speedy Trial Act de novo. Montoya, 827 F.2d at 146.

The only section of the Act relating to reindictment of a defendant appears in Sec. 3161(h)(6) which provides:

"[i]f the information or indictment is dismissed upon motion of the attorney for the government and thereafter a charge is filed against the defendant for the same offense, or any offense required to be joined with that offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge."

Although our circuit has not directly faced the question of whether a defendant receives a fresh clock upon reindictment, a number of other Circuit Courts have held that the government does not obtain a fresh clock when the dismissal of the original...