United States v. Lyon

Decision Date14 October 1968
Docket NumberNo. 16518,16519.,16518
Citation397 F.2d 505
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Marcia LYON and Anton Lysczyk, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

COPYRIGHT MATERIAL OMITTED

Donald R. McCallum, Robert I. Perina, Jasper, Winner, Perina & Rouse, Madison, Wis., for appellants.

Edmund A. Nix, U. S. Atty., Thomas C. Eckerle and John E. Clarke, Asst. U. S. Attys., Madison, Wis., for appellee.

Before HASTINGS, FAIRCHILD and CUMMINGS, Circuit Judges.

Certiorari Denied October 14, 1968. See 89 S.Ct. 131.

HASTINGS, Circuit Judge.

Marcia Lyon and Anton Lysczyk appeal from a judgment of conviction entered June 19, 1967 on a jury verdict finding them guilty on Counts I and III of a six count indictment. Count I charged appellants with conspiracy to travel in, and to use the facilities of, interstate commerce with intent to carry on a prostitution enterprise unlawful in the State of Wisconsin, in violation of 18 U.S.C.A. § 371. Count III charged them with travel in, and/or inducing others to travel in, interstate commerce to carry on a prostitution enterprise unlawful in the State of Wisconsin, in violation of 18 U.S.C.A. §§ 2 and 1952. Other counts were dismissed before and during trial. Each appellant was fined $1,000 and sentenced to three years imprisonment on each count, the sentences to run concurrently.

The charged violations of federal law allegedly occurred between February 1 and August 15, 1965. During that period, it was alleged, appellants operated a house of prostitution at a building owned by them in Hurley, Wisconsin.

Appellants complain of eleven trial errors as grounds for reversal.

As a first ground appellants contend the trial court erred in admitting as evidence a ledger used in the prostitution business. They argue that the search warrant authorizing seizure of the ledger was based on an insufficient affidavit of probable cause.1

The record shows that at trial appellants strenuously objected to admission of the ledger, on the grounds that the search warrant was not served on the proper defendant, Lyon, and that at the time of the seizure Lyon was not advised of her right to an attorney. Appellants have abandoned both of these grounds on appeal. The sufficiency of the search warrant was not questioned in pre-trial motions, at trial or in post-trial motions.

A motion to suppress evidence on grounds of the insufficiency of a search warrant must be made before trial unless the opportunity for such a motion did not exist or the defendant was unaware of the grounds for the motion; motions to suppress may be entertained at trial in the discretion of the court. Rule 41(e), F.R.Crim.P., 18 U.S.C.A. The admissibility of evidence cannot be questioned in this court on grounds not presented to the trial court. United States v. Burrell, 7 Cir., 324 F.2d 115 (1963), cert. denied, 376 U.S. 937, 84 S.Ct. 791, 11 L.Ed.2d 657 (1964); United States v. Sferas, 7 Cir., 210 F.2d 69 (1954).

Appellants criticize the Government for its failure to introduce the challenged affidavit or the relevant testimony of the Federal Bureau of Investigation agent who obtained the warrant. This criticism is unjustified. On a motion to suppress the defendant has the burden of establishing that the evidence was unlawfully obtained. United States v. Melendez, 7 Cir., 355 F.2d 914 (1966); Anderson v. United States, 10 Cir., 344 F.2d 792, cert. denied, 382 U.S. 880, 86 S.Ct. 169, 15 L.Ed.2d 121, reh. denied, 382 U.S. 922, 86 S.Ct. 297, 15 L.Ed.2d 238 (1965); Addison v. United States, 5 Cir., 317 F.2d 808 (1963), cert. denied, 376 U.S. 905, 84 S.Ct. 658, 11 L.Ed.2d 605, reh. denied, 376 U.S. 966, 84 S.Ct. 1121, 11 L.Ed.2d 984 (1964); Chin Kay v. United States, 9 Cir., 311 F.2d 317 (1962). Appellants chose not to look behind the search warrant until this appeal. In the absence of a proper objection by appellants the Government had no reason to introduce the affidavit at trial.

Appellants allege error in the admission of an admittance card used in their prostitution business. They contend the Government failed to establish how the card came into its possession, how it was relevant and that it was authentic. The card is not described in the search warrant nor in the receipt given appellant Lysczyk by the agent who seized the ledger. Appellants' sole trial objection to admission of the card was that there had been no showing that appellants made the "entries" on the card.

The record reveals that a proper foundation was laid for admission of the card. Three government witnesses and appellant Lyon testified to the use of similar cards in appellants' prostitution business. Appellant Lyon testified that the card in evidence would have been issued to the next "customer" who did not already have an admittance card.

At trial, appellants did not question the manner in which the card came into the Government's possession. In the absence of such a challenge the Government had no reason to make such a showing. In any event, it appears from the record that similar cards were used in conjunction with the ledger and that the card in evidence was inside the front cover of the ledger when the ledger was offered in evidence. If so, the card was properly seized by authority of the warrant covering the ledger. We find no error on this contention.

Appellants contend that the closing argument of the United States Attorney stressed appellant Lysczyk's failure to take the stand and refute government evidence. This, they urge, violated 18 U.S.C.A. § 3481 and Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

Appellants complain of two remarks by the United States Attorney. The first was his comment that there was no testimony tending to refute the evidence that Lysczyk traveled from Hurley, Wisconsin to Ironwood, Michigan transporting a prostitute to a customer. The second was his comment that it was unrefuted that appellants were co-owners of the building where the prostitution business was conducted. According to appellants, these comments constituted improper references to Lysczyk's failure to testify, since the evidence characterized as unrefuted was such that only Lysczyk could have refuted it.

Appellants' point is not well taken. The prosecutor's comments are to be tested by whether the language used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be comment on the defendant's failure to testify. United States ex rel. D'Ambrosio v. Fay, 2 Cir., 349 F.2d 957, cert. denied, 382 U.S. 921, 86 S.Ct. 301, 15 L.Ed.2d 235 (1965); United States v. Wright, 7 Cir., 309 F.2d 735 (1962), cert. denied, 372 U.S. 929, 83 S.Ct. 873, 9 L.Ed.2d 733 (1963); Knowles v. United States, 10 Cir., 224 F.2d 168 (1955).

The challenged comments were made by the United States Attorney as part of a general review of the evidence. The commentary focused on the evidence as a whole and did not emphasize Lysczyk's failure to testify. Lysczyk was not the only witness who could have refuted the Government's testimony concerning ownership of the building and Lysczyk's interstate trip with a prostitute. The jury was instructed that "a defendant has the absolute right not to testify, and the jury must not draw a presumption of guilt or any inference against the defendant because he did not testify."

Considering these factors, we hold the challenged comments had neither the manifest purpose nor the natural and necessary effect of calling the attention of the jury to Lysczyk's failure to testify. There was no error, particularly in view of appellants' failure to object at trial. See Moody v. United States, 9 Cir., 376 F.2d 525 (1967); United States v. Weisman, 2 Cir., 366 F.2d 767 (1966).

Appellants complain that the trial court's action in denying their pre-trial motion for separate trials and in admitting evidence of their extrajudicial admissions violated their Sixth Amendment right of confrontation. The admissions, placed in evidence by the testimony of an FBI agent, were made by the appellants after the terminal date of the conspiracy charged in the indictment.

Motions for separate trials, governed by Rule 14, F.R.Crim.P., 18 U.S.C.A., are committed to the sound discretion of the trial court. United States v. Sopher, 7 Cir., 362 F.2d 523, cert. denied, 385 U.S. 928, 87 S.Ct. 286, 17 L.Ed.2d 210 (1966); United States v. Hickey, 7 Cir., 360 F.2d 127, 146, cert. denied, 385 U.S. 928, 87 S.Ct. 284, 17 L.Ed.2d 210 (1966); United States v. Gardner, 7 Cir., 347 F.2d 405 (1965); cert. denied, 382 U.S. 1015, 86 S.Ct. 626, 15 L.Ed.2d 529 (1966). On their motion appellants made no showing of prejudice. We find no abuse of discretion in the denial of that motion.

Appellant Lyon's admissions did not implicate Lysczyk. Therefore his right of confrontation clearly was not violated.

Lysczyk's admissions implicated Lyon as his partner in the prostitution enterprise. As post-conspiracy declarations they were inadmissible against Lyon under the established rule that a co-conspirator's declarations not made pursuant to or in furtherance of the conspiracy charged in the indictment are not admissible against a defendant. See Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946). Lysczyk did not testify at trial. The introduction of his extrajudicial admissions at this joint trial violated Lyon's Sixth Amendment right of confrontation and that violation could not be corrected by an instruction. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Neither was the violation corrected when Lyon subsequently took the stand and substantially admitted her partnership with Lysczyk. The damning evidence was before the jury when she took the stand. Her conviction must be reversed in light of...

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