United States v. Bronk, 84-CR-54-S.

• Decision Date: 18 March 1985
• Docket Number: No. 84-CR-54-S.,84-CR-54-S.
• Parties: UNITED STATES of America, Plaintiff, v. David M. BRONK, William P. Bronk, Robert J. Horvath, Michael A. Stremkowski and Paul J. Wojtalewicz, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

604 F. Supp. 743

UNITED STATES of America, Plaintiff, v. David M. BRONK, William P. Bronk, Robert J. Horvath, Michael A. Stremkowski and Paul J. Wojtalewicz, Defendants.

No. 84-CR-54-S.

United States District Court, W.D. Wisconsin.

March 18, 1985.

COPYRIGHT MATERIAL OMITTED

James M. Shellow, Stephen M. Glynn, Milwaukee, Wis., David L. Mandell, Madison, Wis., Gene D. Linehan, Wausau, Wis., Sarah Furey Crandall, Madison, Wis., for defendants.

U.S. Atty. John R. Byrnes, Madison, Wis., for plaintiff.

MEMORANDUM AND ORDER

SHABAZ, District Judge.

On October 30, 1984, the prosecution of certain offenses was undertaken by the United States of America against the five defendants, David M. Bronk, William P. Bronk, Robert J. Horvath, Michael A. Stremkowski, and Paul J. Wojtalewicz, by the docketing in this Court of an indictment returned by the Grand Jury.

The defendants are alleged to have conspired to intimidate and interfere with the federally-protected activities of Olufunsho Adeshina, Nathaniel Aiyedatiwa and Anthony Isua because of race, color or national origin, which resulted in bodily injury to these three persons.

Specifically, the Indictment sets forth in Count 1 the overt acts of a conspiracy in violation of Title 18 U.S.C. § 371, and in Counts 2, 3 and 4 alleges a violation of Title 18 U.S.C. §§ 2 and 245(b)(2)(F) against each of the three named persons, Adeshina, Aiyedatiwa, and Isua.

Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), the Hon. James Groh, United States Magistrate for the Western District of Wisconsin, has held hearings and issued several written reports and recommendations concerning defendants' motions to dismiss this action. Several of the defendants have objected to certain of those recommendations. The Court will rule on those objections at this time. However, to the extent that no party objected to a particular recommendation of Magistrate Groh, that recommendation is adopted by the Court and the supporting report incorporated herein by reference without further comment.

Several of the defendants have also appealed certain of the Magistrate's orders on pre-trial motions. The Court will rule on those appeals at the outset.

APPEALS FROM PRE-TRIAL ORDERS

The defendants Bronk and defendant Wojtalewicz appeal from both the Magistrate's discovery order of February 25, 1985 and from his order of Februrary 27, 1985 denying their motions for severance. The Court may reconsider a decision of the Magistrate with regard to routine pre-trial matters if it is clearly erroneous and contrary to law. 28 U.S.C. § 636(b)(1)(A).

Discovery Orders

1. Production of Special Agent's Investigative Report.

The Court has considered the defendants' motions and the Magistrate's order with regard to this issue and concludes, pursuant to the Jencks Act, 18 U.S.C. § 3500(a) that it would be premature for the Court to order production of the materials sought at this time.

2. Production of Witness Statements, Co-conspirator Statements, and Notes from Interviews Conducted by Government Counsel.

The only issue of substance with regard to production of such materials decided in Magistrate Groh's order of February 25, 1985 was whether a defendant was entitled to receive statements made to the government by his or her co-conspirator(s) who would not be called by the government to testify at the defendant's trial. The Magistrate ruled that the moving defendants here were not entitled to such statements because they fell outside the scope of Rule 16, Federal Rules of Criminal Procedure and the Jencks Act (of course, the government had already been ordered to turn over any exculpatory Brady material). The essence of defendants' argument on appeal to the Court is that the Magistrate's order was contrary to controlling precedent and an abuse of his discretion. In support of that argument, they cite United States v. Fine, 413 F.Supp. 740, 743 (W.D.Wis.1976) (Gordon, J. sitting by designation), a case in which the court held that statements by the defendant's alleged co-conspirators were discoverable by the defendant pursuant to Rule 16(a)(1)(A) because those statements were not hearsay and thus could be admitted into evidence against the defendant with the same impact as his own prior statements.

The court's reasoning in Fine is not persuasive. If the only test for discoverability under Rule 16 is whether the material sought could potentially be used to impeach the defendant if he testified at trial, then the wide range of third-party statements in the government's possession would also be discoverable; as the court of appeals held in United States v. Zarattini, 552 F.2d 753 (7th Cir.1977), cert. den. 431 U.S. 942, 97 S.Ct. 2661, 53 L.Ed.2d 262 (1977), such third-party statements are not discoverable pursuant to that rule, even though they may incorporate the defendant's own statements. Id. at 757. Although in Zarattini the court does quote language from United States v. McMillen, 489 F.2d 229 (7th Cir.1972) cert. den. 410 U.S. 955, 93 S.Ct. 1420, 35 L.Ed.2d 687 (1973), indicating that a trial court may, in its discretion, require the government to produce statements made by co-defendants who are not expected to testify as government witnesses at trial, in the context of the Zarattini case that statement was gratuitous, while in McMillen itself it was sheer dicta because the only issue before the court was whether production of statements of a co-conspirator who was going to testify on the government's behalf was proper. Moreover, both McMillen and United States v. Feinberg, 502 F.2d 1180 (7th Cir.1974) (standing for a similar proposition regarding the trial court's discretion to require production of statements of which the government was aware made by the defendant to third parties) arose prior to the 1974 amendment to Rule 16 that limited the Court's role in discovery and stated in greater detail the government's discovery obligations. In light of the court of appeals' recent statement in United States v. Navarro, 737 F.2d 625, 630 (7th Cir.1984) that there is "no right of access to the prosecutor's files in order to search for impeachment material," the Court believes the Magistrate followed the better practice of construing Rule 16 strictly and denying production of materials not clearly within its scope.

Regarding the production of the notes of interviews conducted by government counsel, the Magistrate's decision was also correct.

3. FOIA Request

The only real issue presented in this case with respect to whether the defendants can utilize the Freedom of Information Act, 5 U.S.C. § 552, as a discovery tool is whether they have satisfied the procedural requirements for bringing an FOIA issue before the Court. The Magistrate has found that they have not, and the defendants have failed to bring anything to the Court's attention that would undercut his findings. Accordingly, the Magistrate's order denying their request for FOIA relief is affirmed.

Motions for Severance

Defendants' motion for severance was based on two grounds: that their defenses are antagonistic and that, as held in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), an admission in a joint trial of a non-testifying defendant's statement incriminating himself and his co-defendants would violate the co-defendant's right to confront witnesses guaranteed by the Sixth Amendment.

Defendants Bronk indicate that they will testify that their co-defendants, rather than they themselves, committed the assaults that underly the four offenses in the indictment with which all five defendants are charged. Presumably, defendant Wojtalewicz joins in the Bronks' motion, because he intends to testify, as he has on prior occasions, that it was the Bronk brothers and the other defendants who assaulted the victims of the indicted offenses. Clearly, these defenses are antagonistic; but in this circuit severance is required pursuant to Rule 14, Federal Rules of Criminal Procedure, only where "the conflict between the defenses is so prejudicial that differences are unreconcilable and that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty," United States v. Madison, 689 F.2d 1300, 1306 (7th Cir.1982) (citations and attributions omitted), or where "acceptance of one party's defense will preclude the acquittal of the other." United States v. Hendrix, 752 F.2d 1226, 1232 (7th Cir.1985) (citations and attributions omitted). Neither standard has been met here. The conflict inherent between defendants' proposed defenses is not such that all the defendants would necessarily be convicted as a result of being tried together. What each defendant did is a very important issue in this case. The jury's ultimate determination of that issue will likely depend on more than whatever testimony defendants themselves may provide. The jury may choose to believe or disbelieve each testifying defendant concerning his own guilt and the guilt of others as it wishes without finding another defendant guilty on the basis of that testimony. Furthermore, although it is generally stated that the mere presence of hostility among defendants or a desire of one to exculpate himself by inculpating others is not enough to require severance, see United States v. Madison, supra, that is especially true in this case where the offenses charged include complex elements beyond the simple fact of assault. Thus, a jury may believe that one or more of the defendants were involved in the assault and that one or more were not involved without necessarily finding that those who were involved in the assault are guilty of the offenses charged in the indictment.

As a second ground in favor of severance, defendants assert that the government's promise not to use extrajudicial statements made by any of the defendants in its case-in-chief is insufficient to protect defendants' Sixth Amendment rights, because it leaves open the possibility that such...