# Petition — Grzywacz v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1662%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 446 U.S. 935 ## Text IN THE seme Court of the United States ‘TERM 1980 No. %9=122] RONALD GRZYWACZ, RICHARD KRIESHOK AND EDWARD GOCLAN, Petitioners, vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI To the United States Court of Appeals For the Seventh Circuit NorMAN S. LONDON Attorney for Petitioner Grzywacz LAWRENCE J. FLEMING Attorney for Petitioner Krieshok 1600 Boatman’s Tower 100 North Broadway St. Louis, Missouri 63102 (314) 231-8700 CARMEN S. Durso Attorney for Petitioner Goclan 110 East Lincoln Street Belleville, Illinois 62221 St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477 TABLE OF CONTENTS Fe rae? aR sams oe Page Opinion Below ........ cece eee cece e cece eeeees | cg bbb aber tvcweeces se = l Questions Presented ..........0 eee eee eee eee eeees 2 SSI SEEN OO OP Eee ER EEE 2 Reasons for Granting the Writ ....... 6.6.0.0 eee seers 6 I. Further direction is needed to resolve a conflict among the United States Courts of Appeals regarding the scope and meaning of “‘enter- prise’? as the term is used in 18 U.S.C. §§ 1962(c) and 1961(4) (1976). .........-- eee 6 Il. Further direction is needed to resolve a decisive split among the United States Courts of Ap- peals regarding the criteria for admissibility of ‘‘other crime evidence’’ pursuant to PE IS Gives cc vcwscscceces 13 ca Gisdee wear sence soncs 21 Appendix A ........cccccccceee rec ccceccccccsenns A-1 Appendix B....... 2. e cece cece cece eect e eee eeccees A-23 ps en mrs ee A-24 Table of Cases Rewis v. United States, 401 U.S. 808 (1971) ........... 10 United States v. Back, 588 F.2d 1283 (9th Cir. 1979).... 15,16 United States v. Byrd, 352 F.2d 570 (2nd Cir. 1965) .... 20 ii United States v. Dennis, 458 F.Supp. 197 (E.D. Mo. MP ENUM ev eume eee ou” 12 United States v. Frumento, 405 F.Supp. 23 (E.D. Pa. 1975) aff'd 563 F.2d 1083 (3d Cir. 1977) cert. denied sub nom Millhouse v. United States, 434 i RET en ene ea 7,11 United States v. Grzywacz, 603 F.2d 682 (7th Cir. 1979) 1,10,11 United States v. Herman, 589 F.2d 119} (3rd_ Cir. cig, Ee PLE UG GT Pics Sena aL 14,16,17,19 United States v. Manafzadeh, 592 F.2d 81 (2nd Cir. esa eae ee gy pes ss Et, 14,16 United States v. Mandel, 415 F .Supp. 997 (D.Md. 1976) 7,10 United States v. Mandel, 591 F.2d 1347 (4th Cir. 1979) . 7,12 United States v. Moeller, 402 F.Supp. 49 (D.Conn. 6 iad EE ES re re 8 United States v. Nerone, 563 F.2d 836 (7th Cir. 1977) cert. denied 435 U.S. 951 GPE Sica eek 12 United States v. O’Connor, 580 F.2d 38 (Sth Cir. ME oda e eee a ee secenes 14,15,17,19 United States v. Ostrowskv’, 501 F.2d 318 (7th Cir. 1974) 15 United States v. Ring, 513 F.2d 1001 (6th Cir. 1975) .. 14,15,16 United States v. Rubin, 559 F.2d 975 (Sth Cir. 1977) vacated 58 L.Ed.2d 192, aff'd in part reversed in oot i |, 12 United States v. Seymour, et al, No. 75-27 MAC (M.D. Ga. 1975) aff’d sub nom United States v. Brown, 555 F.2d 407 (Sth Cir. 1977), cert. denied, 435 U.S. sie yids TTT Pe ee ei 7 iii United States v. Sutton, 605 F.2d 260 (6th Cir. OPENS eia's 3b oan laces laoreet es 7,8,9,10,12 United States v. Weidman, 572 F.2d 1199 (7th Cir. 1978) 16 United States v. Weir, 575 F.2d 668 (8th Cir. 1978)..... 16 Constitution and Statutes Cited PA er EE hors 65s oa 0 boo ean ba bee ee aka ree 2 FO NE Pe a's « eS SleN Toe hure ene ere aks 11 STi: UE iS s Rane sh eek ee kane eee an 2,11 arses NE oka 2 4 en 5b's Pekar kS ca nee eee 2,6,7,10 Se ES Ac ck wena sSatedanetd i per@eneen 6 ie EE 9195: 8 Avs cade esa hevesewereer eee 7 Pa in SE 5 2 G's pce eeca ee Visa snes 2,6,7,8,12 IE ia s'eX atid owe dedewee bese banseey 2 ee Rk eee rere rye errr Terre 11 28 as SE Fed.R.Evid. 404(b), states: Evidence of other crimes, wrongs, or acts is not admissi- ble to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes. such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. This evidence is not admissible unless its probative value outweighs its prejudicial effect. United States v. Weidman. 572 F.2d 1199 (7th Cir. 1978). ° The total length of the trial transcript is 1040 pages. At the end of the third day the transcript ran to 505 pages. All but 35 pages of the evidence presented by the Government during the first three days was County evidence. — A-20 — evidence. More than half of the evidence .presented by the Government was County evidence; yet, according to the majority, all of this was necessary to show “the planned design and modus operandi of appellant Grzy- wacz.” Supra, at p. 10. I do not dispute that evidence of similar acts of prior misconduct may be used to show opportunity, prepara- tion, plan, etc. Fed.R.Evid. 404(b). But evidence of this sort is not admissible unless its probative value outweighs its prejudicial effect. Weidman, supra, 572 F.2d at 1202- 03. Weighing the probative value of the evidence against its prejudicial effect leads me to the conclusion that the County evidence should not have been admitted. Arguably its probative value is, as the majority stated, its utility in showing design and mode of operation of one of the three defendants.’ But there can be little doubt about the potential prejudicial impact of the evidence. Little demonstration is needed to conclude that three days of County evidence would distract the jury’s attention from the real issues in this case. Presented at the very beginning of the trial, the County evidence could serve only to create an aura of guilt against all three defendants before the jury had heard any evidence on the crime for which they actually were indicted. This distracting evidence was prejudicial in its volume alone. The trial court should have “limit[ed] the evidence 7 The elements of a conspiracy offense are: (1) an agreement by two or more persons to combine efforts for an illegal urpose and (2) an overt act in furtherance of the agreement. elson v. United States, 415 F.2d 483 (5th Cir. 1969), cert. denied, 396 U.S. 1060 (1970). The Government concedes that the County evidence is not related to the conspiracy and was in no way connected to two of the three defendants; it is not evidence of an agreement nor does it constitute an overt act in furtherance of the conspiracy. It is evidence of actions by one of the defendants which is only indirectly relevant in proving the overt act. Thus its probative value is minimal and when probative value is weighed agninst prejudicial effect as required by Weidman, supra, 572 F.2d at 1202-03: the limited relevancy of the County evidence could hardly tip the scales in favor of admitting the evidence. eee — A-21 — to the quantity that [was] necessary to the purpose for which it [was] admitted.” United States v. Ostrowsky, 501 F.2d 318, 373 (7th Cir. 1974). Three days of evidence were not necessary to demonstrate Grzywacz’ mode of operation and plan, especially where the evidence was unrelated to the indictment and was likely to create a bias against the defendants in the minds of the jurors. Further “{iJt is generally recognized that there can be no complete assurance that the jury ever under the best of instructions will strictly confine the use of this kind of evidence to the issue of [planned design and modus operandi] and wholly put out of their minds the implica- tion that the accused, having committed the prior similar criminal act, probably committed the one with which. he is actually charged.” United States v. Byrd, 352 F.2d 570, 574 (2d Cir. 1965). The strongest reason for excluding the evidence, however, was its potential prejudicial effect on Goclan and Krieshok. Although the jury was admonished not to consider the evidence against them, it is unlikely that this instruction was effective in removing the prejudice since the City of Madison evidence, in conjunction with the joint trial of all three defendants, tended to establish a link between Grzywacz and Goclan and Krieshok. The power of guilt by association is not easy to dispel: the jury may well have credited Goclan and Krieshok with the acts of Grzywacz. I fail to see how this dangerous risk is outweighed by the need for showing one defen- dant’s modus operandi. The County evidence also was introduced improperly; no contemporaneous limiting instructions were given by the court. See generally Lutwak v. United States, 344 U.S. 604 (1953). The majority determined that this argu- ment was meritless because the appellants did not re- quest such an instruction. This brief dismissal of appellants’ contention hardly seems fair given that the Government introduced the County evidence under a rationale entirely distinct from the theory upon which its admissibility finally was weighed. When the County evidence initially was presented, the Government in- sisted that it pertained to an overall substantive con- — A-22 — spiracy. Only after all the evidence had been presented did the Government confess that the County evidence was not related to the conspiracy. Faced with a motion for mistrial, the Government tendered for the first time its theory that the evidence was admissible to show plan, design, etc. It appears as if the procedure employed by the Govern- ment was a pretext designed to gain the admission of the County evidence; the prosecution must have known there was insufficient evidence to connect the County evidence to the City conspiracy. In conference the Government stated that “there was at least an inference that could be drawn that (the County evidence] was part of the conspiracy.” (Tr. p. 890.) Without any fact tying the County evidence to the conspiracy this inference is not permissible. Unfortunately, it is not unlikely that this inference took shape behind the closed doors of the jury room. Because of the manner in which the County evidence was introduced, the volume in which it was received and the fact that it was hardly probative and highly prej- udicial, I believe that the admission of the evidence was erroneous, and separately warrants reversal. A true Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit — A-23 — APPENDIX B UNITED STATES COURT OF APPEALS For the Seventh Circuit Chicago, Illinois 60604 December 10, 1979 Before Hon. Luther M. Swygert, Circuit Judge Hon. Walter P. Gewin, Senior Circuit Judge * Hon. Robert A. Sprecher, Circuit Judge ~ ae United States of America, Plaintiff-Appellee, Appeal from the United Nos. 78-2301, 78-2302, ve. States District Court for 78-2303 the Southern District of - Illinois, Alton Division Ronald Grzywacz, Edward Goclan, and Richard No. 78-Cr-50003 Krieshok, Judge J. Waldo Ackerman Defendants-Appellees. | On consideration of the petition for rehearing and suggestion for rehearing in banc filed in the above-entitled cause by counsel for the defendants-appellants, no judge in active service has re- quested a vote thereon, and a majority of the judges on the original panel** has voted to deny a rehearing. Accordingly, IT IS ORDERED that the aforesaid petition for rehearing be, and the same is hereby, DENIED. * Honorable Walter P. Gewin, Senior Circuit Judge for the Fifth Circuit United States Court of Appeals is sitting by designation. ** Judge Swygert voted to grant the petition. — = oe APPENDIX C SUPREME COURT OF THE UNITED STATES No. A-544 Ronald Grzywacz, Et Al., Petitioners, Vv. United States ORDER EXTENDING TIME TO FILE PETITION FOR WRIT OF CERTIORARI UPON CONSIDERATION of the application of counsel for petitioner(s). IT IS ORDERED that the time for filing a petition for writ of certiorari in the above-entitled cause be, and the same is hereby, extended to and including February 8, i980. /s/ John Paul Stevens Associate Justice of the Supreme Court of the United States Dated this 26th day of December, 1979 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1662%3A1. Public record. Not legal advice.