U.S. v. Senak, 74--1965
| Decision Date | 29 March 1976 |
| Docket Number | No. 74--1965,74--1965 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Nick SENAK, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Max Cohen, Gary, Ind., for defendant-appellant.
William L. Gardner, Atty., U.S. Dept. of Justice, Washington, D.C., John R. Wilks, U.S. Atty., Fort Wayne, Ind., Richard L. Kieser, Asst. U.S. Atty., South Bend, Ind., for plaintiff-appellee.
Before CLARK, Associate Justice, * FAIRCHILD, Chief Judge, and PELL, Circuit Judge.
The defendant, Nick Senak, a lawyer, was charged with violation of 18 U.S.C. § 242 in a five count indictment. The indictment in substance charged Senak with having used his office as pauper attorney of the Lake County, Indiana, Criminal Court, to exact sums of money from a person he had been appointed to represent (Count I) and from relatives and friends of persons he had been appointed to represent (Counts II-V) by stating to such persons that he would not adequately represent the persons he had been appointed to represent unless he were paid amounts in addition to his salary; that this conduct deprived those persons of property without due process. On motion of the defendant the indictment was dismissed. The judgment of dismissal was reversed by this court and the case was remanded for further proceedings. United States v. Senak, 477 F.2d 304 (7th Cir. 1973), cert. denied, 414 U.S. 856, 94 S.Ct. 157, 38 L.Ed.2d 105. At the trial which followed, Count V was dismissed on motion of the Government on the morning of trial. At the conclusion of the Government's evidence, the district court sustained the defendant's motion for acquittal as to Count I. The jury returned a verdict of guilty on Counts II and IV (concerning James Cadle and Honore Gilarski) and not guilty on Count III (concerning Willie Drake). The defendant was sentenced to a term of imprisonment for 60 days on each of Counts II and IV to run concurrently and was fined in the total amount of $2000.00.
On this appeal, the defendant's contentions are directed to evidentiary matters (admission of a witness's statement as past recollection recorded; admissions of testimony of past similar acts; cross-examination of three defense witnesses; and a remark by Government counsel in closing argument), jury instructions, and denial of motions for judgment of acquittal.
The evidence viewed as it must be in the light most favorable to the Government's position with regard to the two Counts on which there were convictions is in substance as follows.
Cadle who lived in Detroit learned from a telephone call from his mother that his father, whom he knew to be 'broke' was charged with a crime in Lake County and that he was represented by Senak. The defendant was appointed on September 20, 1966, as pauper attorney to represent the father who according to the court entry was 'in Court without funds to employ counsel.' Cadle borrowed $100 from a friend and went to Gary. Upon arrival there he had a telephone conversation with Senak who 'said that he wasn't representing anyone until he has his fee, and it was $500.' The following day Cadle went to Senak's office and saw a sign on the desk which said 'Pauper's Attorney.' The office was in the court house at the county seat. Cadle gave Senak the $100 and told him he would have to borrow the balance. Cadle told Senak that he thought his father was an alcoholic and should be in a hospital rather than in a prison. Senak agreed and said that if Cadle could come up with additional money that 'we can see that he don't go' to prison and 'we'll get him in a hospital.' Cadle did not pay the additional amount. The father was sentenced to imprisonment on a guilty plea. At the time the plea was entered on October 10, 1966, Senak withdrew as pauper attorney but appeared as counsel for the father. The son was unaware of this.
Cross-examination developed some conflicts in Cadle's testimony. However, we are not the trier of facts and the conflicts were not sufficient to cause us to disregard the above summary as having been established to the satisfaction of the jury.
Steve LaPosi was charged by affidavit filed on August 12, 1967, with statutory rape (No 39254, hereinafter No. 54) and by affidavit filed on August 14, 1967, with assault and battery with intent to gratify sexual desires (No. 39256, hereinafter No. 56). On September 13, 1967, the court's entry in No. 54 showed that the defendant was without funds and that the court appointed Pauper Attorney Senak to represent him. No similar appointment appears in the docket sheet of No. 56; however, on September 22, slightly more than a week after the defendant had been judicially found to be without funds, the defendant by 'Atty Nick Senak, files verified petition to establish' the defendant as being a criminal sexual psychopathic person. The status of Senak at the outset in No. 56 is not clear from the record. Senak testified in response to a leading question from his own counsel that he appeared as private counsel in No. 56 on September 22. 1 At one point, Senak testified, This would appear to suggest that he had been appointed in the second case but that the appropriate entry had not been made. The next question concerned Senak being contacted by one (Honore) Gilarski. The following then appears in Senak's testimony:
'Q And would that have been before or about on September 22, 1967, when you appeared as private counsel in Cause No. 39256?
A That would be, as I remember, and at the same time--the other sheet I interviewed him and at the time I entered my appearance in the sheet you're talking about, I brought in the other sheet. And I told the Court to--because Mr. LaPosi wanted to retain me. And he said that a girl-friend--I believe he said that he was going to marry--was going to pay his attorney's fees. I brought in both sheets at the same time as the sheet that shows that I was appearing as private counsel.'
Senak then returned to the subject of Gilarski, testifying that he told her what LaPosi was charged with, that the cases would have to be consolidated, that LaPosi had told her he wanted Senak as his attorney and she had said she was willing to pay the attorney's fees, that he was permitted to enter an appearance for LaPosi and would do the best he could under the circumstances and the type of case involved, that she would retain any lawyer she wanted but she wanted Senak because he was familiar with the case and that she gave him some money at that time and some more later.
Gilarski, the girl friend of LaPosi, who was the Government witness on Count IV, testified that she first came to know Steve LaPosi in March or April of 1968, which was at least one half a year after the first contact Senak's testimony would seem to say he, Senak, had had with her about LaPosi's criminal prosecution. The docket entry in No. 56 shows that on March 22, 1968, LaPosi was A.W.O.L. from the Dr. Norman M. Beatty Memorial Hospital at which he had been earlier accepted in accordance with the trial court's commitment of him to the Division of Mental Health. Gilarski testified that she first became acquainted with LaPosi about a week after he had run away from the hospital.
Gilarski also testified that he said if she gave him any money in regard to 'this case' that he would have 'to withdraw as a Court-represented attorney,' and appear as a private attorney. Senak did not withdraw as pauper attorney in No. 54 until July 9, 1969, the date of the one day trial in that case upon which LaPosi was found not guilty. The two cases were never consolidated and the record reflects no effort to achieve that end. Gilarski did not know that there was an assault and battery case, No. 56, until after the trial in No. 54. At that time Senak asked for about $700.00 additional On September 24, 1968, the State dismissed, being unable to produce any of its witnesses.
According to Gilarski, her first contact with Senak was by telephone. The conversation was initiated by Senak and he asked her to pay about $500.00 to defend Steve. She asked what the charges against LaPosi were and Senak told her it was rape.
Gilarski also testified that during the telephone conversation Senak said '(t) hat Steve didn't have much of a chance, but that if I came up with some money, he would have a better chance.'
The telephone conversation took place in the Spring of 1968. She met Senak at the court house and made the first payment of $300.00 to him on May 29, 1968, for which he gave her a receipt. She met him again at the court house the day of the trial on No. 54 and paid him the balance. Gilarski was uncertain just when she learned Senak was the pauper attorney. He did say to her that 'Steve would not have much help without me giving him the money.'
The first contention of Senak is that the district court erred in denying his objection to improper argument by the Government in its final summation. The defense brought in a number of witnesses who testified that Senak's reputation in the community for honesty, integrity, truth, and veracity was excellent. Senak then took the stand. On cross-examination, he was asked with regard to...
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