United States v. Gabriel

• Decision Date: 01 October 1981
• Docket Number: No. 77 CR 1068.,77 CR 1068.
• Parties: UNITED STATES of America, Plaintiff, v. John GABRIEL, Defendant.
• Court: U.S. District Court — Northern District of Illinois

525 F. Supp. 173

UNITED STATES of America, Plaintiff, v. John GABRIEL, Defendant.

No. 77 CR 1068.

United States District Court, N. D. Illinois, E. D.

October 1, 1981.

Robert W. Tarun, James R. Ferguson, Asst. U.S. Attys., Chicago, Ill., for plaintiff.

Allan Ackerman, Gregory Adamski, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Petitioner John Gabriel was convicted by a jury of conspiring to counterfeit Federal Reserve Notes in violation of 18 U.S.C. § 371, and with counterfeiting Federal Reserve Notes in violation of 18 U.S.C. § 471. On May 16, 1978, Gabriel was sentenced to seven years imprisonment on the substantive count and a consecutive term of five years probation on the conspiracy count. Gabriel's conviction was upheld by the Court of Appeals for the Seventh Circuit in United States v. Gabriel, 597 F.2d 95 (7th Cir. 1979), cert. denied, 444 U.S. 858, 100 S.Ct. 120, 62 L.Ed.2d 78. On November 13, 1979, Gabriel moved to reduce his sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. Judge Bua denied this motion and thereafter also denied Gabriel's motion to vacate his sentence and reverse his conviction. After Gabriel filed a notice of appeal from the denial of the motion to vacate, and after Judge Bua recused himself from all further proceedings in the case, the Seventh Circuit entered an order remanding the case to the Executive Committee, which in turn assigned the case to this Court. This Court directed Gabriel to file all his claims for relief from his sentence at one time, and in response Gabriel filed a petition pursuant to 28 U.S.C. § 2255 that gives rise to this Memorandum Opinion and Order.

Sentencing Options

Gabriel first argues that the trial court punished him for his persistence in maintaining his innocence and that such an action constitutes a denial of due process of law. It is undisputed that a defendant may not be punished for maintaining his innocence and asserting his constitutional right to a jury trial. United States v. Wiley, 278 F.2d 500 (7th Cir. 1960). Gabriel points to the following colloquy at the hearing held on Gabriel's motion for reduction of sentence as evidence that Judge Bua did penalize him for asserting his innocence:

MR. TARUN (Attorney for United States): We strongly oppose any reduction of sentence in this matter. The court's original sentence was seven years. John Gabriel was a convicted felon. He was previously convicted of robbery in state court. This was one of the largest counterfeiting cases in the history of the Northern District of Illinois. The defendant to this date shows no remorse for his conduct or involvement in that crime....

Gabriel responded with a lengthy plea for sentence reduction touching upon, among other things, evidentiary rulings made at trial, the credibility of certain witnesses, the conduct of the prosecution, and the competence of his counsel. After listening to Gabriel's argument, Judge Bua stated:

THE COURT: Mr. Gabriel, I struggled over your sentence on the occasion of the original sentence.¹ I thought the court was compassionate at that time.

I will respond to two of your questions to the court. What worthwhile purpose does incarceration serve in your case? It serves one worthwhile purpose that I can think of and what the court had in mind when it sentenced you to seven years in the custody of the Attorney General. That is deterrence. This was a serious crime involving, as I recall, over a million dollars in counterfeit. Okay? For that reason you have received the seven-year sentence in the custody of the Attorney General.

I commend you for your industry, but to this date, Mr. Gabriel, and it has been almost two years, and after a jury has found you guilty and after you have had the benefit of counsel whom I had occasion to remark offered probably one of the best defenses I have ever seen in 16 years on the bench and 11 years as a practicing attorney. Your lawyer did just an outstanding job in defending you. Okay?

MR. GABRIEL: Yes, sir.

THE COURT: You still to this day, after a finding by the jury, to this day, profess your innocence. You haven't even taken that first step toward rehabilitation if the court were to consider rehabilitation as an alternative form or philosophy of sentencing. To this day, you have not said, "I am sorry. I am contrite." For that reason, Mr. Gabriel — and I feel all compassion for your family. It always hurts the family, probably more, as you say, I quite agree, probably more than it will hurt you, because you have done time. You can do it. You will do it easily as anyone, in my humble opinion. Your family will do much harder time than you will while you are incarcerated. And I do have compassion for that, but for the reasons stated in the original sentencing, your motion to reduce the sentence will be denied.

MR. GABRIEL: Your Honor —

THE COURT: Yes.

MR. GABRIEL: — is what you are saying that if I were to reverse my plea, and I would submit to you and say now that I'm guilty, and that I'm sorry, that I will carry this thing no farther, that you will reconsider it? Is that what you are telling me?

THE COURT: I am saying if you originally were contrite and admitted your guilt openly, honestly, and candidly, the court probably would have given you a lighter sentence than seven years. This seven-year sentence is the most stringent sentence I have imposed in two years here, well, outside of narcotics cases.

I'm sorry, Mr. Gabriel. Surrender date November 18. (Emphasis added).

Gabriel highlights the underscored portions of Judge Bua's comments, arguing that these statements indicate that the judge's sentencing decision and his decisions on Gabriel's motions to reduce and vacate his sentence were tainted by an impermissible intent to penalize him for having gone to trial. Judge Bua's statements, however, must be taken in context. In opposing Gabriel's motion for sentence reduction, the government argued that Gabriel had failed to take even the first step toward rehabilitation in that he had shown no remorse for his actions. Gabriel effectively strengthened the government's argument by using his response as a forum for attempting to relitigate his case. Judge Bua's comments came as a result of Gabriel's persistent attempts to relitigate every point of his trial and expressed the judge's concern that Gabriel had not yet come to face the reality of the jury's verdict.

A fair review of Judge Bua's remarks taken in full context reveals a lack of any improper sentencing motive on the part of the judge. The judge made it clear, both at the original sentencing and at subsequent hearings, that he was considering the circumstances of the crime and the character of the defendant — considerations which are proper and necessary in reaching a sentencing decision. United States v. Allen, 596 F.2d 227, 231 (7th Cir. 1979), cert. denied, 444 U.S. 871, 100 S.Ct. 149, 62 L.Ed.2d 97.² As in Allen, the sentence given to Gabriel was well below the statutory maximum, was not harsh, and was not a penalty for going to trial. Id. The record shows that the sentence and the denial of Gabriel's motions for reduction and vacation of that sentence were decisions reached in "a thoughtful and discriminating way," United States v. Santiago, 582 F.2d 1128, 1137 (7th Cir. 1978), and accordingly, this Court will not alter those decisions.

Gabriel also moves this Court to vacate his sentence on the grounds that in sentencing, the trial court impermissibly considered certain information allegedly received by the trial court in camera during the course of Gabriel's trial. It is clear, however, that the judge neither reviewed nor considered the document in question when reaching his sentencing decision. Indeed, on December 20, 1979, Judge Bua stated for the record that he never looked at the document as part of his sentencing consideration. In light of both Judge Bua's explicit disclaimer of reliance upon the document at issue, and the paucity of any evidence in the record to suggest that the judge did so rely, this Court finds that the sentence imposed was not based upon any impermissible consideration. See Lawary v. United States, 599 F.2d 218, 226-27 (7th Cir. 1979).

Jury Instructions

Gabriel argues that two of the supplemental instructions given to the jury were improper. The first instruction challenged by Gabriel is the supplemental Allen charge as modified in United States v. Silvern, 484 F.2d 879, 883 (7th Cir. 1973). The propriety of this instruction was reviewed at length by the Seventh Circuit in considering Gabriel's direct appeal, United States v. Gabriel, supra, 597 F.2d at 100, and was found to be proper.³ Petitioner has failed to provide any reason why this Court should review an instruction specifically found to be proper by the Seventh Circuit.

Gabriel also complains of the trial court's response to a note from the jury requesting to see a printing plate.⁴ Gabriel construes the request to indicate that the jury mistakenly believed that the actual printing plate used in the commission of the crime was introduced into evidence, whereas in reality, only a blank plate was introduced for demonstrative purposes. The jury's request, however, is susceptible to a variety of interpretations. It is not at all clear that the jury misunderstood the nature of the plate that was introduced into evidence. Rather than draw undue attention to any particular piece of evidence, the trial court properly and accurately responded to the jury request by instructing the jury that it had "all the evidence necessary to reach a verdict." Gabriel was not prejudiced by this truthful and appropriate response, nor was he prejudiced by the fact that the judge responded to the jury's request in writing rather than by calling the jury into court and instructing them orally with the defendant present. See Stein v. United States, 313 F.2d 518 (9th Cir. 1962), cert. denied, 373 U.S. 918, 83...