U.S. v. Rajewski, 75--1072

• Decision Date: 27 January 1976
• Docket Number: No. 75--1072,75--1072
• Citation: 526 F.2d 149
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert W. RAJEWSKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 149

526 F.2d 149

UNITED STATES of America, Plaintiff-Appellee, v. Robert W. RAJEWSKI, Defendant-Appellant.

No. 75--1072.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 8, 1975.

Decided Dec. 1, 1975.

Rehearing Denied Jan. 27, 1976.

Edward M. Genson, Theodore M. Becker, Chicago, Ill., for defendant-appellant.

Samuel K. Skinner, U.S. Atty., and Guy P. Seaberg, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CASTLE, Senior Circuit Judge, and SWYGERT and PELL, Circuit Judges.

PELL, Circuit Judge.

The defendant Robert W. Rajewski, Chief of Police of Calumet City, Illinois, was convicted by a jury of knowingly and willfully making and using false documents in a matter within the jurisdiction of the Small Business Administration in an application for a disaster loan, in violation of 18 U.S.C. § 1001 (Count One) and, with one Steven Ostrowsky, of knowingly and corruptly endeavoring to influence, obstruct, and impede the administration of justice by endeavoring to influence Thomas E. Toepfer, then known to the defendant to have been served a subpoena requiring his appearance before the February 1974 Grand Jury, to testify falsely before said Grand Jury as to matters then being investigated by said Grand Jury, in violation of 18 U.S.C. § 1503 (Count Two). ¹

Viewing as we must the evidence in the light most favorable to the Government, the factual situation involved in the present case arose out of an application made by Rajewski to the Small Business Administration for a disaster loan. Certain false documents were submitted to substantiate the loan. One of these was a statement for $531.00 due Thomas Toepfer Construction Company for labor and materials for repairs at a building owned by the defendant. This bill was marked to show payment in full. The work represented by the bill was never performed. The other document was a certification on a SBA form that the repair work had been performed. Toepfer was subpoenaed before the grand jury. There was evidence to show, as charged in Count Two, that as a result of Rajewski's efforts to that end Toepfer testified falsely with regard to the work which had been the basis of the false claim, all in a manner exculpatory to the defendant.

The defendant urges reversal on the ground of numerous, interconnected errors, especially: (1) the erroneous denial of motions for severance of counts; (2) the erroneous failure to declare a mistrial; (3) the improper admission of irrelevant, prejudicial, and hearsay testimony; and (4) the insufficiency of the evidence to establish guilt beyond a reasonable doubt.

I. Severance of Counts

The defendant made an appropriate pretrial motion, pursuant to Rule 14, F.R.Cr.P., ² for entry of an order granting separate trial on Count One and the remaining Counts. The original granting of this motion was later revoked after the Government moved for reconsideration. Although the defendant made no express trial motion seeking severance of counts, his objections to the admission of evidence clearly raised the problem of prejudicial joinder. Also the defendant's alternative motion for judgment of acquittal or for a new trial claimed error in the court's denial of a severance of the counts.

The defendant presents two basic reasons to support his contention of prejudicial joinder: (1) Testimony ostensibly offered in support of the obstruction of justice counts 'spilled over' to the substantive SBA count; (2) Joinder caused substantial jury confusion, which the trial court left undispelled by reason of inadequate and misleading instructions.

The testimony of trial witnesses Thomas Toepfer and Ed Peters before the February 1974 Grand Jury, if believed, indicated that Toepfer Construction Company, through subcontractor Ed Peters, had performed repair work on storage bins located in the basement of Toepfer's building, and constituted evidence that the defendant had not submitted false or fictitious documents to the Small Business Administration. At trial, however, where the prosecution read extensive excerpts of the witnesses' grand jury testimony, both Toepfer and Peters testified that their earlier grand jury testimony favorable to the defendant was not true.

Since the witnesses at the trial stated that they had lied to the grand jury, the defendant reasons that the petit jurors were predisposed to believe them and to reject his defense since the grand jury had rejected their testimony by returning an indictment. He argues that the admission of the grand jury testimony, taken together with the 'usual unfortunate inference' that the grand jury thought the defendant guilty, constitutes serious error, which is further exacerbated by inadequate instruction as to how the jury should gauge and utilize the Toepfer and Peters grand jury statements.

As this court has frequently observed, a denial of Rule 14 relief is reviewable only for abuse of discretion or plain error affecting substantial rights. United States v. Isaacs, 493 F.2d 1124 (7th Cir. 1974), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); United States v. Sweig, 441 F.2d 114, 119 (2d Cir. 1971), cert. denied, 403 U.S. 932, 91 S.Ct. 2256, 29 L.Ed.2d 711 (1971); United States v. Echeles, 352 F.2d 892, 896--7 (7th Cir. 1965). The defendant must make a 'strong showing of prejudice' in order to support a claim of prejudicial joinder. See United States v. Hutul, 416 F.2d 607 (7th Cir. 1969); United States v. Kahn, 381 F.2d 824, 839 (7th Cir. 1967), cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967).

In support of his argument, defendant relies upon United States v. Quinn, 365 F.2d 256 (7th Cir. 1966); Flores v. United States, 379 F.2d 905 (5th Cir. 1967); and, probably more significantly, on the en banc opinion in United States v. Pacente, 503 F.2d 543 (7th Cir. 1974) (en banc), cert. denied, 419 U.S. 1048, 95 S.Ct. 623, 42 L.Ed.2d 642 (1974).

In Quinn, this court held that the defendant was greatly prejudiced by denial of his severance motion which, on the facts of that case, was an abuse of the trial court's discretion. The court found that the offenses alleged in the first two counts were based on a transaction separate and distinct from that relied on in the last two counts, and that the first two charged offenses were not of the same or similar character as the latter charges. A reading of the record, the arguments, and the colloquies between judge and counsel convinced the court that the case was highly confusing from both the legal and evidentiary standpoints. The trial judge had difficulty grasping the Government's charges contained in the different counts and the relation which they bore to each other. Moreover, Government counsel in numerous respects had difficulty in explaining satisfactorily the Government's position. The court concluded that even a proper charge to the jury would not have prevented a contaminated resolution of the issues presented in the latter counts. On the facts of that case, therefore, the court found compelling reasons for severance.

In Flores, the Government had not disclosed the substance of a Secret Service Special Agent's testimony to the defendant's counsel. Moreover, the agent's testimony as to a statement given by co-defendant Briones presented direct evidence of a possessory crime where 'there was no other direct and little circumstantial evidence of Flores' guilt.' 379 F.2d 905 at 909. Under these circumstances, the court found that there was a high probability that the jury, as a practical matter, would not be able to keep separate the evidence relevant to each defendant. Not only did the record establish that counsel was genuinely and understandably surprised when the statement was revealed at trial, but the potential prejudicial effect of the testimony in relation to its minimal importance to the Government's case was extremely high. A serious Sixth Amendment question lurked in the case, and the Fifth Circuit concluded that the situation was not susceptible of correction by instruction, however careful and complete. Id. at 910.

We have no difficulty concluding that the factual circumstances of the present case are singularly different from those in Quinn and Flores.

The more important question in this appeal evolves from the two Pacente decisions. In United States v. Pacente, 490 F.2d 661 (7th Cir. 1973), the panel concluded that a trial of the substantive count with a false declaration count was prejudicial to the defendant. The panel was not persuaded that the court's limiting instruction would cure any prejudice that might have resulted from trying the two counts together. Defendant Pacente had himself testified under oath before the grand jury. The subsequent return of an indictment charging extortion and the making of a false declaration, the panel concluded, placed him in a difficult position. Should the defendant testify concerning the substantive extortion count, the petit jurors' knowledge that the grand jurors believed the defendant to have lied had the effect of informing them that his testimony was not to be believed. If he chose to testify, the defendant was impeached as soon as he reached the witness stand. If he chose not to take the stand, the false declaration count substantially reinforced the substantive extortion count. 490 F.2d at 664.

In the en banc rehearing of Pacente, supra, the majority of this court expressly noted, 503 F.2d 543, 547 n.7a, that the rationale of the panel's earlier decision had been rejected in United States v. Isaacs, 493 F.2d 1124, 1159--1160, 1167 (dissenting opinion), 1169 (dissenting opinion on petition for rehearing), (7th Cir. 1974), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974). The Pacente en banc majority opinion recognized it was conceivable that 'a trial juror may be influenced in deciding to believe a witness' testimony by the fact that the grand jurors heard the same testimony and did not believe it.'...