U.S. v. Raineri
| Decision Date | 24 March 1982 |
| Docket Number | No. 81-1394,81-1394 |
| Citation | 670 F.2d 702 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alex J. RAINERI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Daniel W. Linehan, Linehan Law Offices of Madison, Madison, Wis., for defendant-appellant.
Frank M. Tuerkheimer (Then-U. S. Atty.), Madison, Wis., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, FAIRCHILD, Senior Circuit Judge, and PELL, Circuit Judge.
After hearing the testimony and deliberating upon the evidence, a jury at Madison, Wisconsin, found the defendant guilty on all five counts of an indictment. On appeal, he raises numerous issues. We affirm the convictions.
The first three counts charged the defendant with having caused travel and the use of a facility in interstate commerce to promote a Hurley, Wisconsin, business enterprise involving illegal prostitution. 1 The fourth count charged that he had knowingly made false and material declarations before a federal grand jury. 2 The fifth charged that the defendant had endeavored to obstruct the administration of justice by having a prospective grand jury witness threatened in connection with her prospective testimony. 3
The evidence showed the defendant's extensive involvement in operating the Showbar, a Hurley, Wisconsin, business enterprise involving prostitution. It also showed that certain checks issued in promoting that enterprise and some linen used on the beds where the prostitutes worked had crossed state lines. Trial evidence also demonstrated that the defendant testified falsely before the grand jury when he stated that he did not travel to and from Reno, Nevada, with Cira Gasbarri in September and October, 1978. There was also proof that after the grand jury asked the defendant whether Patricia Colossaco, a Showbar bartender, had ever told him that there was prostitution at the Showbar, he told Colossaco's brother to tell her to quit telling lies about the defendant, to keep her mouth shut, and if she did not listen to her brother, the defendant would get someone else to talk to her.
The defendant's arguments fall into three categories: objections to pretrial rulings; disputes over trial rulings; and challenges to the sufficiency of the evidence.
Raineri moved to transfer the trial of this case from Madison to Hurley or Superior. A magistrate denied the motion after assessing the probable convenience and inconvenience to defendant resulting from trial at either of those locations. The district court denied reconsideration. United States v. Raineri, 521 F.Supp. 30, 32, 33 (W.D.Wis.1980).
Rule 18, Fed.R.Crim.P., requires the court to "fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice."
We are not persuaded that there was an abuse of discretion. The magistrate concluded, for reasons set forth in his decision, that trial at either of the requested locations would result in greater inconvenience to defendant and the witnesses. Moreover Rule 18 requires due regard to the prompt administration of justice. In our view this requires consideration of the disruption of the functioning of the court caused by trial away from its customary headquarters.
Although defendant and a number of expected witnesses lived at Hurley, approximately 300 miles north of Madison, no federal court quarters exist there. The former federal courtroom at Superior, one of the places specified by statute for holding court, and approximately 100 miles west of Hurley, has been dismantled. The volume of cases in the Western District of Wisconsin and the limited personnel, facilities, and other resources available for dealing with this work have resulted in an increased centralization of judicial activity at the district's largest population and litigation center, Madison, where both the only district judge in regular active service at the time of trial and the district's only senior judge reside. In view of these facts, the adverse effect on the prompt administration of justice of holding a trial at Superior or Hurley must be significant, even assuming availability of a state court courtroom at either of these places without cost to the United States. See 28 U.S.C. § 142. 4
Defendant also argues that the Jury Selection Plan, under which his jury was selected, no longer complies with the Jury Selection and Service Act, 28 U.S.C. §§ 1861-69. Specifically, the claim is that citizens residing in many counties of the district are not currently and probably never will be considered for service on a petit jury.
The situation on which defendant predicates his challenge may be described as follows:
There are five statutory places for holding court within the district: Eau Claire, La Crosse, Madison, Superior, and Wausau. 28 U.S.C. § 130(b). In years past, the bulk of activity was at Madison, but jury trials were held to some extent at the other places. When the district court adopted its Jury Selection Plan under the Act, it placed every county in one of five "divisions," each of which surrounded one of the five places where court was held. There are no statutory divisions in the district, and the "divisions" in the Plan complied with § 1869(e)(2). Although grand jurors are selected from throughout the district, petit jurors are selected from the "division" in which the place of trial is located. As time went by the caseload for the district (with only one judgeship authorized until 1978) increased so as to become one of the highest per-judge caseloads in the nation. More and more of the judicial activity was necessarily concentrated at Madison. In recent years trials have come to be held only at Madison, except for some at Eau Claire. The district court quarters in the other places have been closed.
Defendant points to the policy stated in § 1861 "that all citizens shall have the opportunity to be considered for service on ... petit juries ...." Section 1863(a) requires that a district Plan "shall be designed to achieve the objectives" of § 1861. Defendant plausibly asserts that currently, at least, residents of the La Crosse, Superior, and Wausau divisions are not considered for service on petit juries. Essentially this is a claim that a plan which originally complied with the Act has fallen away from compliance because of changed circumstances.
Defendant's motion to change the place of trial would not have remedied the situation, except in the sense that some residents of the Superior division would have been members of his jury. In any event his motion did not preserve his claim. Congress prescribed a motion to stay proceedings as the exclusive means by which an accused may challenge a petit jury on the ground that it was not selected in conformity with the Act. 28 U.S.C. § 1867(a), (d), and (e).
Defendant did move to dismiss the indictment on the statutory ground just described, also asserting a constitutional right to trial by a jury drawn from the entire district, a claim he no longer presses. The motion was denied. United States v. Raineri, 521 F.Supp. 30, 32, 33, 36-38. A motion to dismiss the indictment is included in § 1867(a) and (e) as one of the exclusive remedies for challenging a jury not selected in conformity with the Act.
The text of § 1867(d) 5 makes clear that although the remedy for noncompliance in grand jury selection may be either a stay pending a conforming selection of a grand jury or a dismissal of the indictment, the only remedy for noncompliance in the selection of a petit jury is a stay pending the selection of a petit jury in conformity with the Act. We conclude, therefore, that the exclusive procedure for a challenge to the selection of petit jurors is a motion for stay of proceedings.
The magistrate concluded that although petit jurors are "routinely" selected in only two divisions, the possibility that trials might be held at some time in the La Crosse, Superior, or Wausau divisions keeps the district's Jury Selection Plan in compliance with the Act. Apparently the district court agreed. In addition there may be some question whether Congress intended that a litigant whose jury was otherwise properly selected from a division of a district could challenge the particular type of defect alleged here, involving, as it would, interests of citizens in an opportunity to be considered for service rather than the more traditional interests of litigants in the jury selection process.
Because defendant did not resort to the exclusive remedy provided, we do not reach either of these questions.
The defendant asserts that the commencement of trial on November 24, 1980, more than five months after both the June 23 arraignment and the June 6 indictment violated the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. That act required the trial to begin within seventy days of the arraignment; 18 U.S.C. § 3161(c)(1); but excluded from the seventy days certain periods of delay. 18 U.S.C. § 3161(h). One provision excludes the delay between the filing and the prompt disposition of any pretrial motion. 18 U.S.C. § 3161(h)(1)(F). Another excludes "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court." 18 U.S.C. § 3161(h)(1)(J). The defendant filed twelve motions on June 23 and seven motions on July 7, the last day on which the magistrate's June 23 pretrial order allowed the parties to file motions. In accord with the magistrate's pretrial order, the prosecution responded to the motions on July 18. The defendant filed a July 25 motion requesting the disqualification of the district judge; and a July 28 affidavit in support of his various motions. On August...
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