U.S. v. Raszkiewicz

• Decision Date: 18 February 1999
• Docket Number: No. 98-1525,98-1525
• Citation: 169 F.3d 459
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy S. RASZKIEWICZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 459

169 F.3d 459

UNITED STATES of America, Plaintiff-Appellee, v. Timothy S. RASZKIEWICZ, Defendant-Appellant.

No. 98-1525.

United States Court of Appeals Seventh Circuit.

Argued Oct. 27, 1998.

Decided Feb. 18, 1999.

Monica Rimai (argued), Thomas P. Schneider, Office of United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Dean A. Strang (argued), Michael J. Fitzgerald, Fitzgerald & Strang, Milwaukee, WI, for Defendant-Appellant.

Before CUMMINGS, CUDAHY and FLAUM, Circuit Judges.

CUMMINGS, Circuit Judge.

Timothy Raszkiewicz wins no points for honesty, but even the district court whose judgment he appeals could not fail to remark upon the "insouciance" and "uniqueness" of his approach to bank robbery. In December 1992, Raszkiewicz held up the First Financial Bank in Milwaukee, where he had worked as a security guard and had learned how to circumvent the bank security system. On that occasion Raszkiewicz was dressed in an overcoat and wore a skull mask. In May 1993, Raszkiewicz appeared again at the First Financial Bank. This time, however, he wore a gorilla suit and a tuxedo and carried a bunch of silverized helium "Happy Birthday" balloons. Posing as a "gorilla-gram" deliveryman, he bluffed his way past the security guards, persuading them to allow him to enter the closed bank under the pretense of delivering a birthday gift.

Upon entering the bank, Raszkiewicz let go of the balloons, thus occupying the attention of a well-intentioned security guard who went to fetch a ladder to retrieve them. Raszkiewicz then approached teller Brenda Bargielski, saying, "This is it for you, you're being robbed," and directed her to open the vault. He told her that he had a police scanner. When another teller, Anton Butkovic, arrived for work, Raszkiewicz ordered him to lie on the floor, pointing toward him with some sort of unknown object in one hand and gesturing with the other hand stuck in the pocket of his tuxedo jacket in a manner that made Butkovic think that Raszkiewicz had a gun, although he was in fact unarmed. Raszkiewicz said that he did not intend to hurt anyone. When he bounced a packet of money off Bargielski's chest, apparently meaning to throw it to her, he apologized. Raszkiewicz then left with more than $35,000 and the balloons, which the security guard handed back to him as he left.

Raszkiewicz was ultimately caught when police and tax authorities, who suspected an inside job, investigated former employees. He was indicted under 18 U.S.C. § 2113(a) in the Eastern District of Wisconsin for the "gorilla suit" bank robbery and for money laundering offenses involving the purchase of rental property with the proceeds of the two bank robberies in violation of 18 U.S.C. §§ 1956-1957. Raszkiewicz moved for dismissal of the indictment, arguing that the jury selection process for the grand and petit jury venires in the Eastern District of Wisconsin violated his Sixth Amendment right to an impartial jury made up of a fair cross-section of the community because it excluded all Indians who live on the six reservations in the Eastern District of Wisconsin. The motion was referred to a magistrate judge, who recommended that it be granted, but the district court rejected the magistrate judge's recommendation and denied the motion to dismiss.

Raszkiewicz then pled guilty to the money-laundering charges and went to trial on the bank robbery count. He was convicted by a jury, sentenced to 78 months in prison, and ordered to make restitution in the amount of $35,717.35. The district court increased Raszkiewicz's sentence level by two steps under the Sentencing Guidelines (U.S.S.G.), finding that Raszkiewicz's gesture indicating that he had a gun together with an order that the victim lie down constituted a "threat of death" within the meaning of U.S.S.G. § 2B3.1(b)(2)(F).

Raszkiewicz appeals on two issues. He challenges the district court's ruling that the juries involved in his indictment and trial were selected from a fair cross-section of the community. He also disputes the applicability of the sentencing enhancement for threat of death. We affirm his conviction and sentence.

I.

We first consider Raszkiewicz's Sixth Amendment attack on the representativeness of the jury selection process in his case. ¹ The procedure for selecting jurors in the Eastern District operates to exclude all Indians who live on reservations--"reservation Indians"--from venire plans. "Urban Indians," who live away from reservations, are not excluded. Under its own Plan for Random Selection of Grand and Petit Juries (the "Plan"), the Eastern District of Wisconsin is divided into two parts, the Milwaukee Division in the south and the Green Bay Division, including all six Indian reservations, in the north. When a trial is to be held in a division, the Plan calls for the petit jury to be selected from the counties within that division. But there has been no jury trial in the Green Bay Division since at least 1992, so that no potential jurors have been selected from that division since that time. Thus no reservation Indians, all of whom live in the Green Bay Division, were included in Raszkiewicz's jury venire. Raszkiewicz argues that this exclusion violates his constitutional right to be indicted and tried by a fair cross-section of the population. Although one might doubt the wisdom and reasonableness of the Eastern District's policy, Raszkiewicz has not shown that the defects of that policy rise to a constitutional level.

Whether a defendant has been denied his right to a jury selected from a fair cross-section of the community is a mixed question of law and fact, which we review de novo. ² The Constitution requires that grand jurors and the venire of petit jurors be chosen from a fair cross-section of the community. See Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 42 L.Ed.2d 690. The jury must be chosen from a source which is representative of the community, but the Constitution does not require this to ensure representative juries, but rather impartial juries. United States v. Ashley, 54 F.3d 311, 313 (7th Cir.1995). "In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Accordingly, there is no requirement that a venire or a jury mirror the general population. United States v. Duff, 76 F.3d 122, 124 (7th Cir.1996). Defendants are not entitled to a jury of any particular composition, Taylor, 419 U.S. at 538, 95 S.Ct. 692; see also Holland v. Illinois, 493 U.S. 474, 482-483, 110 S.Ct. 803, 107 L.Ed.2d 905, so long as there is a fair process which generates an impartial jury. In cases where problems have been found with the representativeness of the jury selection process, "the exclusion [of certain groups] raised at least the possibility that the composition of juries would be arbitrarily skewed in such a way as to deny criminal defendants the benefit of the common-sense judgment of the community," Lockhart v. McCree, 476 U.S. 162, 175, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), among other concerns.

To make a prima facie case that the fair cross-section requirement has been violated, a defendant must show that: (1) the group allegedly excluded is a distinctive part of the community; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury selection process. Johnson v. McCaughtry, 92 F.3d 585, 590 (7th Cir.1996) (citing Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579). If the defendant establishes these elements, the government must show that those aspects of the jury selection process which result in the disproportionate exclusion of a distinctive group manifestly advance an overriding, significant government interest. Ashley, 54 F.3d at 313.

The issue in dispute here is whether reservation Indians are a "distinctive part of the community," as required by Duren, 439 U.S. at 364, 99 S.Ct. 664. Whether or not a class of persons is a sufficiently distinctive group to be cognizable for jury representativeness purposes is a question of fact. Cf. Hernandez v. Texas, 347 U.S. 475, 478, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (see p. 464 infra and note 3). In rejecting the magistrate judge's recommendation, the district court relied on a three-factor test for "distinctiveness" suggested in United States v. Smith, 463 F.Supp. 680, 682 (E.D.Wis.1979) (holding reservation Indians of the Menominee tribe not to be a distinctive group). The test is similar to one later adopted, with slight variations, by several sister Circuits. As the Eleventh Circuit articulated the test, a defendant must show:

(1) that the group is defined and limited by some factor ( [e.g.], that the group has a definite composition such as by race or sex); (2) that a common thread or basic similarity in attitude, ideas, or experience runs through the group; and (3) that there is a community of interests among members of the group such that the group's interest cannot be adequately represented if the group is excluded from the jury selection process.

Willis v. Zant, 720 F.2d 1212, 1216 (11th Cir.1983); accord United States v. Canfield, 879 F.2d 446, 447 (8th Cir.1989); Ford v. Seabold, 841 F.2d 677, 681-682 (6th Cir.1988); Barber v. Ponte, 772 F.2d 982, 986-987 (1st Cir.1985) (en banc), United States v. Fletcher, 965 F.2d 781, 782 (9th Cir.1992).

We have not hitherto set criteria for group distinctiveness for fair cross-section purposes, but the 11th Circuit Willis test is reasonable. The elements of the test are: (1) the existence of qualities that define a group, (2) similarity of attitudes, beliefs, or experiences, and (3) a community of interest among group members. The test is not to be...