United States v. Raineri, 80-CR-29.

• Citation: 521 F. Supp. 30
• Decision Date: 10 November 1980
• Docket Number: No. 80-CR-29.,80-CR-29.
• Parties: UNITED STATES of America, Plaintiff, v. Alex J. RAINERI, Defendant.
• Court: United States District Courts. 7th Circuit. Western District of Wisconsin

521 F. Supp. 30

UNITED STATES of America, Plaintiff, v. Alex J. RAINERI, Defendant.

No. 80-CR-29.

United States District Court, W. D. Wisconsin.

November 10, 1980.

Frank M. Tuerkheimer, U. S. Atty., Madison, Wis., for plaintiff.

Daniel W. Linehan and Gene D. Linehan, Linehan Law Office, Madison, Wis., for defendant.

ORDER

CRABB, Chief Judge.

Defendant, by counsel, has written a letter to the court dated November 5, 1980, in which he states his objection to two decisions and one recommendation made in this case by the Honorable William L. Gansner, United States Magistrate. Also, defendant requests certification of an interlocutory appeal on those issues to which he has raised objections or, alternatively, a delay in the start of trial to permit him to exercise his right to petition for appeal.

With respect to the magistrate's decisions, the review standard to be applied is set forth in 28 U.S.C. § 636(b)(1)(A). For pretrial matters authorized by law to be heard and determined by a magistrate, a judge may reconsider the magistrate's decision "where it has been shown that the magistrate's order is clearly erroneous or contrary to law."

Defendant has noted his objections to the magistrate's decisions (1) denying defendant's motion to move the place of trial from Madison, Wisconsin to a location near to that of the alleged crimes and (2) denying defendant's motion to sever Counts IV and V from Counts I, II, and III of the indictment. He has not marshalled any facts or legal arguments which might support a claim that the magistrate's decisions are clearly erroneous or contrary to law.

In the absence of any showing of error by defendant, I am free to disregard what I understand to be his motion for reconsideration. However, to avoid the delay which might be caused by the filing of a new motion for reconsideration, supported with legal argument, I have reviewed the magistrate's decisions on severance and on the relocation of the trial, together with the briefs of both parties on those issues. This review leaves no question about the correctness of the magistrate's decisions on both issues, or on the thoroughness with which he considered the motions and supporting or opposing arguments of both parties. There is no basis, in law or fact, for a successful challenge to his decisions, regardless of the standard of review which is applied.

With respect to the motion for transfer of the trial, the magistrate is correct in asserting that defendant has no legal entitlement to be tried elsewhere in the district and he is correct in his assessment of the inconvenience to the parties and to the court of holding trial in a location other than Madison.

With respect to the motion for severance, defendant has not met the burden of showing that a denial of severance would prevent him from having a fair trial. Therefore, there is no basis upon which to grant his motion for severance.

I turn next to defendant's objection to the magistrate's recommendation to deny defendant's motion to dismiss the indictment on the ground that the court's Plan for Random Selection of Grand and Petit Jurors operates to deny defendant a fair and impartial trial by a jury of his peers. Defendant objects specifically to the facts that the members of the petit jury in his trial will be drawn only from the Madison jury selection district and not from throughout the entire Western District of Wisconsin and that the petit juries in this district are rarely, if ever, selected from more than two of the five jury selection divisions which make up the Western District of Wisconsin.

As the magistrate noted in the Report and Recommendation entered October 28, 1980, the Sixth Amendment guarantees a trial "by an impartial jury of the state and district wherein the crime shall have been committed"; it does not impose any additional geographic restrictions on the selection of jurors. There is no requirement either that a defendant be tried only by jurors living within a close radius of the location of the crime or that he be tried only by jurors drawn from the entire judicial district in which the court sits. Defendant's arguments in this respect are meritless.

Defendant has raised no objection to the magistrate's recommendation to deny an additional dismissal motion grounded on the contention that he was indicted illegally by a grand jury whose members did not all hear all of the testimony put to the grand jury. Reviewing the magistrate's recommendation sua sponte, I find the recommendation legally correct and well-founded. I intend to adopt it as well as the magistrate's recommendation to deny defendant's motion grounded on the court's jury plan.

Defendant's request for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) will be denied. Section 1292(b) refers to orders entered in civil actions; it requires a finding that the order involves a controlling question of law as to which there is substantial ground for difference of opinion; and it requires the additional finding that immediate appeal would materially advance the ultimate termination of the litigation. None of the requisite factors are present here. This is a criminal action; the orders at issue do not involve controlling questions of law; the decisions made in the orders are not such that there could be said to be any ground for difference of opinion; and an immediate appeal would delay unnecessarily the ultimate termination of this litigation.

Finally, I turn to defendant's request for a delay in the start of trial, to allow time to attempt an interlocutory appeal of the matters discussed above. This request would be denied even if there were some arguable merit to defendant's objections to the decisions and recommendation of the magistrate. The request is untimely, coming twenty-eight days after the filing of the magistrate's decisions on October 10, 1980, and only two weeks prior to the scheduled start of trial.

ORDER

IT IS ORDERED that

1. Defendant's motion for reconsideration of the decisions of the Honorable William L. Gansner, deny defendant's motions for relocation of his trial from Madison, Wisconsin and for severance of Counts IV and V from Counts I, II, and III, is DENIED on the ground that the decisions are neither clearly erroneous or contrary to law.

2. The findings of fact proposed by the magistrate in his Report and Recommendation of October 28, 1980, are adopted as the court's own findings.

3. Defendant's motion to dismiss the indictment based on the number of grand jurors concurring in the indictment is DENIED.

4. Defendant's motion to dismiss the indictment based on the operation of this court's Plan for Selection of Petit Jurors is DENIED.

5. Defendant's request for certification of an appeal pursuant to 28 U.S.C. § 1292(b) is DENIED.

6. Defendant's request for a delay in the start of trial is DENIED.

REPORT AND RECOMMENDATION

WILLIAM L. GANSNER, Magistrate.

This report and recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1)(B). It addresses two dismissal motions not considered in my earlier report and recommendation of October 15, 1980. These motions are:

1) Defendant's motion to dismiss the indictment on the ground that there were not twelve or more grand jurors concurring in the indictment who were also present at each of the Grand Jury sessions at which evidence pertaining to this case was considered; and

2) Defendant's motion to dismiss the indictment on the ground that the court's Plan for Random Selection of Grand and Petit Jurors operates to deny defendant's right to trial by a fair and impartial jury of his peers.

Evidence relevant to these motions was introduced, and arguments of counsel presented, at a hearing before me on October 16, 1980. The sole witness testifying at that hearing was Joseph W. Skupniewitz, Clerk of this court. My proposed findings of fact relating to each motion are stated within the appropriate section of this report and recommendation.

I. MOTION TO DISMISS BASED ON NUMBER OF GRAND JURORS CONCURRING IN INDICTMENT WHO WERE PRESENT AT ALL GRAND JURY SESSIONS PROPOSED FINDINGS OF FACT

The following proposed findings of fact are drawn from the sources identified:

The indictment in this case was returned on June 6, 1980, with all 20 members of the Grand Jury present on that date concurring in the vote (Affidavit of Frank M. Tuerkheimer, filed July 18, 1980, at paragraph 4). The Grand Jury had considered matters relating to defendant Raineri on the following dates, all in 1980: February 12 and 26; March 18; April 8, 9, and 29; May 20; and June 6 (Affidavit of Joseph W. Skupniewitz, filed October 6, 1980). During this period — but not for the entire period — there were as many as 23 grand jurors; there were at least 17 grand jurors present on each of the above-listed eight dates (Testimony of Joseph W. Skupniewitz at October 16, 1980 evidentiary hearing).

Seven grand jurors were in attendance on all eight of the dates on which matters relating to defendant Raineri were considered; each of the other grand jurors were absent on one or more of these dates (Skupniewitz Affidavit).

OPINION

By motion filed on October 7, 1980, defendant moved for dismissal of the indictment in this action on the ground that "there were not twelve or more grand jurors concurring in the eventual issuance of the indictment in this action who were also present on each of the dates on which evidence in this matter was considered." At the conclusion of the hearing on the motion on October 16, 1980, I announced that I would recommend to the court that the motion be denied. This opinion contains the reasons for my decision, which I hereby reconfirm.

Defendant's argument in support of his motion was based entirely upon United States v. Leverage Funding Systems, 478 F.Supp. 799 (C.D.Cal.1979), a decision followed subsequently in the same district in United States v. Roberts, 481 F.Supp. 1385 (C.D.Cal.1980). In Leverage, the...