U.S. v. Turk, s. 88-1171

• Decision Date: 22 March 1989
• Docket Number: Nos. 88-1171,88-1172,s. 88-1171
• Citation: 870 F.2d 1304
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy TURK and Veronica Joyner, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1304

870 F.2d 1304

UNITED STATES of America, Plaintiff-Appellee, v. Timothy TURK and Veronica Joyner, Defendants-Appellants.

Nos. 88-1171, 88-1172.

United States Court of Appeals Seventh Circuit.

Argued Feb. 8, 1989.

Decided March 22, 1989.

Richard F. Walsh, Alan M. Freedman, Chicago, Ill., for defendants-appellants.

Lisa A. Huestis, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before WOOD, Jr., POSNER and COFFEY, Circuit Judges.

Harlington WOOD, Jr., Circuit Judge.

Defendants Veronica Joyner and Timothy Turk were charged in a twenty-three count indictment for embezzlement, false statements, and wire fraud under 18 U.S.C. Secs. 2, 641, 1001, 1014, and 1343. Joyner was also indicted for making a false statement to an FBI agent. After a ten-day trial the jury convicted them on almost every count. Joyner and Turk now seek to set aside their convictions because, they argue, the court improperly denied motions for severance and continuance, the prosecution made improper statements in the closing argument, and a witness made a prejudicial comment while testifying. We reject the defendants' arguments and affirm the conviction.

I. FACTS

Veronica Joyner and Timothy Turk operated various small companies including TVJ Associates which did business as Almega International and specialized in export-import transactions. In the fall of 1982, the defendants read about a new Small Business Administration (SBA) program that guaranteed loans of revolving lines of credit from private banks to small businesses involved in exporting American products to foreign countries. The defendants contacted Sears Bank in Chicago to obtain financing guaranteed by the SBA for the sale of corn to the Greek government. They applied for a loan and in the process represented to Sears Bank and the SBA that they had structured a deal in which they would buy corn in Iowa, ship it through New Orleans, and sell it to the Greek government. Sears Bank and the SBA approved the loan; Joyner signed the loan authorization. In May 1983, Sears Bank backed out of the agreement but forwarded the loan application to the Michigan Avenue National Bank (MANB). MANB granted the loan and the SBA guaranteed it.

The defendants received $500,000 in twelve installments over the next four years. During that time the defendants represented to MANB that they were using the loan to finance the Greek transaction, presented fake documents to MANB to prove that the Greek transaction was being carried out, and established a dummy grain supply company to mislead MANB into believing that they had purchased corn to export to Greece. In fact, the defendants had not bought corn or sold it to the Greek government. In addition to making misrepresentations to the banks and the SBA, Joyner told an FBI agent that TVJ Associates had used part of the loan to post a performance bond in connection with the Greek deal when it had not.

The defendants also sought funding for their business through another government program. The defendants hired disadvantaged individuals through the Chicago Alliance of Business Employment and Training (CABET), a nonprofit company funded by the federal government. CABET promised to reimburse TVJ Associates for salaries paid to these employees. Apparently TVJ Associates did not always pay its employees, although it sought and obtained reimbursement from CABET.

After indictment for these activities, Joyner's court-appointed attorney filed a pretrial motion for severance and a separate trial, arguing that the codefendants' positions were mutually antagonistic. The trial court denied the motion. On November 17, 1987, Joyner's attorney moved to withdraw as counsel upon Joyner's request and the court appointed new counsel. Joyner's new counsel stated that he would be prepared for trial on December 3.

On December 1, 1987, the morning of trial, the district court stated that it had received a letter from Joyner requesting a continuance to obtain private counsel or, in the alternative, to represent herself pro se. Joyner's second attorney then orally moved for a continuance in order that he could withdraw because of Joyner's apparent displeasure with his representation. The district judge denied the continuance because the letter was received the day before trial and Joyner had, in his view, a good attorney appointed to represent her.

The case went to trial that day. Joyner was convicted on all counts while Turk was convicted on all counts except one. Both were sentenced to five years in prison and five years probation conditioned on their obtaining psychiatric treatment and making restitution. Joyner and Turk appeal.

II. ANALYSIS

Joyner challenges three aspects of the trial. She claims that the district court abused its discretion in denying her motion for severance. She also argues that the district court abused its discretion in rejecting her motion for a continuance on the morning of the trial. Finally, she claims that the government's rebuttal argument prejudiced her counsel by claiming that counsel must be "kidding" in presenting her defense. Turk joins the challenge to the "kidding" reference and also demands a new trial because the prosecution permitted a witness to make, what he considered to be, an improper response to a question. Having jurisdiction under 28 U.S.C. Sec. 1291, we address Joyner's claims first.

A. Motion for Severance

Joyner contends that the district court abused its discretion by denying her motion for severance. Joyner contends that her codefendant Turk took a position antagonistic to her own. Turk claimed that he was not a knowing participant in the SBA scheme but an "errand boy" for Joyner. Joyner argued that she was simply in a business deal that was "over her head," that her statements and actions were truthful, and that the prosecution had not proven its case against her.

Pursuant to Rule 14 of the Federal Rules of Criminal Procedure, a district court may grant severance if codefendants assert mutually antagonistic defenses. United States v. Goudy, 792 F.2d 664, 673 (7th Cir.1986). Defenses are mutually antagonistic only where acceptance of one defendant's position precludes the acquittal of the other defendant. United States v. Rollins, 862 F.2d 1282, 1289 (7th Cir.1988). There is a "strong public interest in having persons jointly indicted tried together, especially where the evidence against the defendants arose out of the same acts or series of acts." United States v. Oxford, 735 F.2d 276, 280 (7th Cir.1984). We will, therefore, reverse a district court's decision on a severance motion only upon a showing that the court abused its discretion, Rollins, 862 F.2d at 1289; United States v. Bruun, 809 F.2d 397, 407 (7th Cir.1987), and limit our review to the state of the record at the time the motion was made. Rollins, 862 F.2d at 1289.

Joyner's claim is virtually identical to the severance issue raised in United States v. Bruun, 809 F.2d 397 (7th Cir.1987). In Bruun the appellant-defendant Berkowitz moved for severance on the grounds that his defense was antagonistic to that of his codefendant. See 809 F.2d at 407. Berkowitz claimed that the government failed to prove his guilt beyond a reasonable doubt; his codefendant argued that he was unaware of any illegal activity and merely followed Berkowitz's instructions. Id. The codefendant, in effect, argued that Berkowitz conned him into engaging in the illegal activity. In Bruun we stated that these defenses were not mutually exclusive. Id. A jury could find that Berkowitz had duped his codefendant into engaging in allegedly illegal activity and at the same time acquit Berkowitz for lack of evidence of his guilt. Id. "While there was no doubt some hostility and finger pointing during the joint trial, this alone is insufficient to justify granting a severance." Id.; see also United States v. Buljubasic, 808 F.2d 1260, 1263 (7th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 67, 98 L.Ed.2d 31 (1987) ("Finger-pointing is an acceptable cost of the joint trial and at times is even beneficial because it helps complete the picture before the trier of fact").

Recognizing that our decision in Bruun is directly on point, Joyner attempts to distinguish the two trial scenarios. She argues that in Bruun the codefendant made only minor references to his innocence in a trial that lasted three weeks. See Bruun, 809 F.2d at 407. The judge in Bruun minimized prejudice and confusion by instructing the jury to focus on the evidence as it applied to each defendant separately. Id. Joyner argues that Turk's defense, in comparison, permeated the entire trial because Turk testified and his defense was presented in both opening and closing argument.

Joyner's argument misses the essential point of Bruun. If one defendant claims that he was uninvolved or duped into participating in questionable activity, a jury can still acquit a codefendant on the grounds that the prosecution failed to prove that the questionable activity was illegal. See United States v. Gironda, 758 F.2d 1201, 1220 (7th Cir.), cert. denied, 474 U.S. 1004, 106 S.Ct. 523, 88 L.Ed.2d 456 (1985). Regardless of Turk's claim that he was unaware of what was transpiring and that he simply took orders from Joyner, the prosecution still was obligated to prove that Joyner intentionally defrauded the government. Joyner, who claims that the prosecution did not prove its case, was not precluded from acquittal by Turk's argument that he was unaware of what was happening. The defenses are not mutually antagonistic.

B. Motion for Continuance

Joyner also claims that the district court abused its discretion because it refused to grant a continuance in order for Joyner to hire new counsel. Joyner argues that the denial of the continuance infringed upon her sixth amendment right to counsel. The district court received a letter from Joyner the day before trial. In the letter Joyner asked for a continuance in order to hire couns...