Appendix — Raineri v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

UNITED STATES OF AMERICA,

Plaintiff

v. DECISION AND ORDER

ALEX J. RAINERI,

Defendant.

INTRODUCTION

This decision and order addresses the

third unit or group of defendant Raineri's

pretrial motions, those bearing upon the

place and manner of trial. These motions are:

1) defendant's motion for trans-

fer of the trial to another

location within the Western

District of Wisconsin;

2) defendant's motion for dis-

qualification of the Honorable

Barbara B. Crabb as trial

judge; and

3) defendant's motion for severance

and separate trial of each of the

five counts of the indictment.

DECISION

Motion for Transfer of Trial

Rule 18, F.R.Cr.P., provides as fol-

lows:

Rule 18. Place of Prosecution and

Trial.

Except as otherwise permitted by

statute or by these rules, the pro-

secution shall be had in a district

in which the offense was committed.

The court shall fix the place of

trial within the district with due

regard to the convenience of the

defendant and the witnesses and the

prompt administration of justice.

Pursuant to this Rule, defendant has moved

for an order transferring the trial in this

case from Madison, Wisconsin, to alterna-

tively, Hurley, Wisconsin (where the crimes

in Counts I, II, III, and V of the indict-

ment were alleged to have occurred and where

the defendant resides), or Superior, Wiscon-

sin. 1/

Defendant argues that a transfer of

trial to Hurley or Superior would: 1) fur-

ther the interest of justice ty permitting

defendant to be tried by a jury of his peers

selected from the area where he resides, where

he has been elected to public office as dis-

trict attorney and state court judge, and

where most of the alleged offenses occur-

ed; 2/

1/ Hurley and Superior, Wisconsin were the

two cities to which transfer of the

trial was requested in defendant's

motion papers. Accordingly, the gov-

ernment's opposing brief and affidav-

its addressed the question of possible

transfer to those cities only. In his

reply brief, however, defendant argued

in addition -- and in a thoroughly con-

fusing fashion -- that, as a "final

alternative" to trial in those two cit-,

ies the court should consider a transfer

of trial to Wausau, Wisconsin, or the

selection of a jury in Hurley with sub-

sequent trial in Madison. I have no

idea which of these two alternatives

defendant meant as his real "final alter-

nat ive to trial in either Hurley or

Superior, but I need not decide that

question.

These "final alternative(s)" were raised

for the first time in a reply memorandum

submitted to the court more than a month

after the motion's filing and well after

the government's opposing brief and affi-

davits had been submitted pursuant to the

court's briefing schedule. The assertion

of these alternatives to the original

motion was untimely, and they will not

be considered by the court. If I were

to consider them, I would note as a

preliminary matter that their very asser-

tion substantially undercuts defendant's

argument that Hurley or Superior are the

only trial venues convenient to defendant

and the witnesses.

2/ The crime alleged in Count IV of the

indictment, the perjury count, appar-

ently occurred at the session of the

Grand Jury in Madison. As noted above,

Counts I, II, III and V involve offenses

allegedly committed in Hurley.

and 20 result in far greater convenience for

the defendant and the witnesses. The govern-

ment argues in opposition that defendant has

no legal entitlement to trial in, or a jury

selected from, the Hurley-Superior area of

this district, and that a trial in either

Hurley or Superior -- while perhaps more con-

venient to a majority of the witnesses in terms

of their travel time from place of residence to

court -- could be expected to produce substan-

tial delays during trial because of inadequate

library resources in those cities.

The parties have submitted affidavits

material to the transfer motion. From them,

and by the judicial notice, 3/ I find the fol-

lowing relevant facts:

Parties and counsel. The defendant re-

sides in the City of Hurley, Iron County,

Wisconsin. I take judicial notice that his

attorneys maintain offices in Madison and

Wausau, Wisconsin, and that the office of the

United States Attorney for this district is

located in Madison. The United States Attorney

has no facilities, including library facilities,

in Hurley or Superior.

Witnesses. Although the total number of

witnesses likely to be called at trial is un-

clear, it appears that the majority of witnesses

may come from the Hurley area. 4/ The govern-

3/ Judicially noticed facts will be speci-

fically identified.

4/ My findings on witnesses from the Hurley

area is necessarily imprecise. The gov-

ernment has not stated how many of its

witnesses will come from that locale.

Defense counsel has made two factual

statements in this regard, but they

are inconsistent; i.e., defense counsel

has stated his belief that "the vast

majority of the witnesses in this case

reside in Iron County, Wisconsin," but

has also stated in the same affidavit

that “approximately 50 witnesses will

be called .. most of whom reside in

or around Ashland, Hurley, Ironwood or

Hibbings (sic), Minnesota." I cannot

discern the distinction between coun-

sel's use of "the vast majority" and

"most" in these statements. I take

judicial notice, however, that of the

four cities identified in the laiter

statement, only Hurley lies within Iron

County, Wisconsin. Ashland, Wisconsin

is in an adjacent county and Ironwood,

Michigan is contiguous to Hurley but

across the Michigan-Wisconsin border.

ment intends to call at least four witnesses

from the Madison area and four to six witnes-

ses from outside Wisconsin. Defendant intends

to call several witnesses from California,

Nevada, and otu.er out-of-state locations.

I take judicial notice that the highway

driving distance between Madison and Hurley is

423 miles and between Hurley and Superior is

167 miles. I take further notice that an

airport is located in Madison that is served

by several commercial air carriers with daily

direct and connection flights to destinations

both within and without Wisconsin.

The Western District and its jury selec-

tion division. I take judicial notice that

28 U.S.C. 8 129 divides Wisconsin into Western

and Eastern districts. Section 129 does not

divide the Western District of Wisconsin into

divisions; it merely names places of holding

court (Madison and Superior being among them).

I take further notice that under the Jury

Selection and Service Act of 1968, 28 U.S.C.

s 1869(e) (2), "in judicial districts where

there are no statutory divisions," a "divi-

sion" is defined as "such counties, parishes,

or similar political subdivisions surrounding

the places where court is held as the dis-

trict court plan shall determine. PROVIDED,

That each county, parish or similar political

subdivision shall be included in some such

division." (emphasis added). Pursuant to

the Act, this district court has adopted a

Plan for the Random Selection of Grand and

Petit Jurors that divides the Western Dis-

trict into several divisions for jury selec-

tion purposes. Iron County and Douglas County

(in which Superior, Wisconsin lies) are inclu-

ded within the Plan's "Superior Division."

Madison is included within the Plan's Madison

Division."

Courtroom facilities. I take judicial

notice that the only full-time place of court

within this district is Madison, where the

court's chambers, the clerk's office, and

the U.S. Marshal's office are located. There

is no federal court facility in Hurley.

The federal court facility in Superior no

longer houses a functioning courtroom. It

has been declared surplus property; its

library and all courtroom furniture have

been removed from the building. I take

judicial notice that county courthouses are

located in Hurley and Superior.

Library facilities. The United States

Attorney has no library in those cities and

that the court maintains a substantial

library in Madison. The Iron County Law

Library is not a functioning federal law

library. 5/ The Douglas County Law Library

has a more adequate collection of federal

5/ The Iron County Law Library does not

contain the following materials:

United States Reports, Federal Supple-

ment, Federal Reporter Aries

Tore Annotated,

United States Shepherd's

Citations, Modern Federal Practice

Digest, and West's Federal Practice

gest.

legal materials, but lacks significant re-

search tools. 6/

The St. Louis County Courthouse and a

federal courthouse of the United States

District Court for the District of Minnesota

are both located in Duluth, Minnesota, approxi-

mately five miles from the former federal

court facility in Superior, Wisconsin.

A meeting on August 19, 1980, the Board

of Commissioners for Gogebic County, Michigan

(which is adjacent to Iron County, Wisconsin)

authorized use of the Gogebic County Law

Library by defense counsel Daniel Linehan and

established a daily rate of $100.00 for such

use. Attorney Daniel Linehan has stated

67 The Douglas County Law Library does con-

tain the following volumes: Un

States Reports, Federal Supplement,

United States Code Annotated, and

Federal Reporter (2d Series). The

rary, however, does not contain

the following materials: Shepherd's

Citations, Modern Federal Practice

Digest, and West's Federal Practice

Dige t ;

The materials not available in the

Douglas County Law Library can be

found in St. Louis County Law Library

in the adjacent city of Duluth,

Minnesota, between the hours of 8:00

a.m. and 4:30 p.m. on weekdays.

that it is his understanding that the fee

would also cover daily use of the library

by both the prosecution and this court.7/

Defense counsel Gene Linehan possesses

a set of the United States Code Annotated

which he will make available to the pro-

secution and the court during any trial in

7/

The action of the Gogebic County

Board of Commissioners and Attorney

Daniel Linehan's understanding of it

are reflected in correspondence sub-

mitted to this court by Attorney

Linehan.

Hurley or Superior as no other set is

easily accessible. Defense counsel

Daniel Linehan has promised to move to

Hurley any federal research tools which

the United States Attorney believes

necessary.

On the basis of these factual find-

ings, I now proceed to consideration of

the legal issues raised by defendant's

motion for intradistrict transfer of the

trial in this case.

While defendant places substantial

reliance upon the argument that transfer

is appropriate under Rule 18, F.R.Cr.P.,

because trial in Hurley or Superior will

be more convenient to defendant and the

witnesses, it is also clear that defen-

dant believes he has a right to "trial

in the division wher the offense alleg-

edly occurred. 8/ Defendant's latter

argument will be considered first.

Defendant apparently misapprehends

the constitutional and statutory context

in which Rule 18 operates. The consti-

tutional provisions controlling venue

(Article III, 82, clause 3) and vic-

inage (Sixth Amendment) make the state

and district of a crime's commission the

appropriate place for jury trial ina

federal prosecution. The former provi-

sion places venue "in the state where

the said crimes shall have been commit-

ted. The latter provision guarantees the

right to trial by an impartial jury of the

state and district wherein the crime shall

have been committed." Neither constitu-

8/ Defendant's Reply Memorandum, at 48.

tional provision makes any reference to

statutory divisions within a judicial

district. It has therefore been recog-

nized that "when a district is not separ-

ated into divisions .. . trial at any

place within the district is aliowabie

under the Sixth Amendment and the first

sentence of F. R. Cr. P. 18. United States

v. Fernandez, 480 F. 2d 726, 730 (2d cir.

1973). The same is true for districts

that have been separated into judicial

divisions; "the accused has no right to a

trial held in a particular division, even

one where the crime occurred, since the

constitutional guarantee is written in

terms of districts." Zicarelli v. Gray,

543 F.2d 466, 479 (3d Cir. 1976) (foot-

note citations omitted). The district,

and not a statutory division of it, is the

constitutionally prescribed unit of

venue in federal criminal cases.

Jnited States v. James, 528 F. 2d 999,

1021 (Sth Cir. 1976).

The Jury Selection and Service Act

of 1968 neither conflicts with nor expands

these constitutional requirements. The

Act, of course, declares it to be national

policy that all litigants in federal

jury cases "shall have the right to grand

and petit juries selected at random from

a fair cross section of the community in

the district or division wherein the court

convenes." 28 U.S.C. 81861.9/ This langu-

age does not create a requirement that a

trial court convene not only in the district

9/ As noticed in my factual findings, for

purposes of the Act, "division" is de-

fined as:

(1) one or more statutory divi-

sions of a judicial district; or

(2) in statutory divisions that

contain more than one place of

holding court, or in judicial dis

tricts where there are no statutor

divisions, such sounties, parishes,

or similar political subdivisions

surrounding the places where court

is held as the district court plan

shall determine; PROVIDED, That each

county, parish, or similar political

subdivision shall be included in some

such division;

28 U.S.C. $1869(e) (emphasis added).

but also in the division where the crime

occurred. United States v. Cates, 485 F.

2d 26, 27-28 (ist Cir. 1974). Instead, it

merely provides that the grand or petit

jurors, as the case may be, be selected

from a fair cross-section of the community

in either the district or division where

the jury sits is established not by the Act,

but by the Constitution and Rule 18.

If the place of trial in this case

were to be fixed at Superior or Hurley,

the jury would be selected from persons

residing in the "Superior division," a

multi-county division created by the

court's Plan for the Random Selection of

Grand and Petit Jurors, which was adopted

in compliance with the Jury Selection and

Service Act. "Divisions" created by the

court's Plan are for jury selection pur-

poses and are obviously different than a

congressionally-created statutory division

of a federal judicial district. See

United States v. Florence, 456 F.2d 46, 48

(4th Cir. 1972). If the place of trial in

this case remains fixed at Madison, the

jury will be selected from persons residing

in the Plan's “Madison division."

In either event, jury selection will

be conducted in compliance with the require-

ments of the Act and the Constitution. When

a court Plan under the Act creates divisions

for jury selection purposes and the place of

trial is properly fixed at a location within

one such division, a defendant has no statu-

tory or constitutional right to a jury selec-

ted from another division, not even when the

defendant's residence and the place of the

alleged crime are both within the other jury

selection division. Id., at 48-50.

The offenses charged in this case are

alleged to have occurred with the Western

District of Wisconsin. The place of trial

may properly be fixed at Madison. Defendant

has no constitutional or statutory right

either to venue in the "Superior division"

or to a jury selected from within that

division.

Defendant has raised more substantial

arguments for transfer of trial through an

exercise of the court's discretionary

powers under Rule 18, F.R.Cr.P. A thorough

review of the relevant facts and legal auth-

orities has convinced me, however, that

trial of this case is more appropriate in

Madison than in either Hurley or Superior.

Rule 18 provides that the place of a

federal criminal trial be fixed within a

district with due regard to the convenience

of the defendant and the witnesses and the

prompt administration of justice." Rule

18 does not vest a defendant with a right to

choose a particular place of trial, Florence,

456 F.2d at 50; Houston v. United States,

4i9 F.2d 30, 33 (5th Cir. 1969), but grants

instead "a discretionary power to the

court to be exercised upon a showing of

good cause. Id. Accord, United States

v. Lewis, 504 F.2d 92, 97 (6th Cir. 1974).

I am willing to accept defendant's

assertion that trial in Hurley or Superior

would be more convenient for defendant and

the majority of his witnesses in terms of

travel time and expense in coming to Madison,

although I note that defendant has offered

no factual substantiation for his assertion

in brief that he “cannot endure" the cost

of housing witnesses in Madison hotels

during trial. In accepting defendant's

position on the greater convenience (again,

in terms of travel time and expense) of a

Hurley or Superior venue, I have considered

only the convenience of defendant and his

witnesses, for this appears to have been

the construction of the Rule intended by

its drafters. See 1966 Advisory Committee

Note to Rule 18.

The logistical problems with a trial

in Hurley or Superior, however, would likely

be severe. I believe these problems would

lead inevitably to a much longer trial than

could be had in Madison and therefore proe

duce considerable inconvenience for the

witnesses of both parties.

If trial were held in Hurley or Superior,

the court and Counsel would be working without

an adequate federal research library close

at hand. This is not a problem that is

satisfactorily solved by traveling to a

library in an adjacent city, whether an

extortionate fee is exacted or not for its

use; nor is it solved by defense counsel's

agreement to provide and deliver library

materials from their own collections (a

suggestion that I suspect is easier to make

than hono ). It is unreasonable to expect

a lengthy trial to be conducted efficiently

and properly under such circumstances, and

I believe the government is correct in antici-

pating that a trial in Hurley or Superior

would be punctuated by lengthy adjournments

while counsel and the court struggle as

best they can to secure adequate references.

No such problem or delays would likely be

encountered in Madison. For this compelling

rationale, I cannot conclude that trial in

Hurley or Superior would be more convenient

for defendant and his witnesses or in fur-

therance of the prompt administration of

justice.

Moreover, there are no federal court

facilities in either of the two cities pro-

posed for transfer. While I assume that

with time some arrangement could perhaps

be made for the use of space in county

courthouses in Hurley of Superior, I find

it difficult to conceive that the drafters

of Rule 18 ever intended that an intradis-

trict transfer of a federal trial be gran-

ted to venues having no federal court facili-

ties. 10 /

I believe I have given due regard to

the convenience of the defendant and the

witnesses," as required by Rule 18, F.R.Cr.

P. The consideration I have given to the

practical problems of a trial in Hurley or

Superior does not reflect a primary concern

for the government's convenience, see United

States v. Gurney, 393 F. Supp. 688, 706 (M.D.

Fla. 19740, or the court's. Instead I have

10/ I note in this respect that 28 U.S.C.

$142 mandates that federal court be

held “only at places where Federal

quarters and accommodations are

available, or suitable quarters and

accommodations are furnished without

cost to the United States." Whether

this statute is a definite legal im-

pendiment to defendant's requested

transfer of trial is a question the

court need not decide.

concluded that a trial in either of the two

requested locations would result in far

greater inconvenience to defendant and the

witnesses than can reasOnably be expected

in Madison. Defendant's transfer motion

should be denied.

1 he

Anited States Court of Appeals

Bor the Seventh Ctrrun

No. 81-1394

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

v.

ALEX J. RAINERI,

Defendant-A ppellant.

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 80 CR 29. Barb a J. Crabb. Judge.

ARGUED SEPTEMBER 15, 1981—DecIDED FEBRUARY 8, 1982

Before CUMMINGS, Chief Judge, FAIRCHILD, Senior

Circuit Judge, and PELL, Circuit Judge.

FAIRCHILD, Senior Circuit Judge. After hearing the

testimony and deliberating u the evidence, a jury at

Madison, Wisconsin, found defendant guilty on all

five counts of an indictment. On appeal, he raises

numerous issues. We affirm the convictions.

The first three counts charged the defendant with

having caused travel and the use of a facility in inter-

state commerce to a Hurley, Wisconsin, bus

ness enterprise inv — illegal prostitution.“ The fourth

count charged that he knowingly made false and

material declarations before a federal grand jury.? The

N 18 U.S.C. 66 2 and 1952. 'M6Env

2 18 USC. § 1623.

2 No. 81-1394

— ow Sas the — had r to

truet ministration justi aving a pro-

spective grand jury witness — in connection

with her prospective testimony.“

The evidence showed the defendant’s extensive in-

volvement in operating the Showbar, a Hurley, Wiscon-

sin, business enterprise involving prostitution. It also

showed that certain checks issued in moting that

enterprise and some linen used on the where the

prostitutes worked had crossed state lines. Trial evi-

dence also demonstrated that the defendant testified

falsely before the grand jury when he stated that he did

not travel to and from Reno, Nevada, with Cira Gas-

barri in September and October, 1978. There was also

proof that after the grand jury asked the defendant

whether Patricia Colossaco, a Showbar bartender, had

ever told him that there was prostitution at the Show-

bar, he told Colossaco’s brother to tell her to quit telli

lies about the defendant, to keep her mouth shut, and i

she did not listen to her brother, the defendant would

get someone else to talk to her.

The defendant’s arguments fall into three categories:

objections to pretrial rulings; disputes over trial rulings;

and challenges to the sufficiency of the evidence.

I

PRETRIAL RULINGS

A. Location of Trial

Raineri moved to transfer the trial of this case from

Madison to Hurley or Superior. A magistrate denied the

motion after assessing the probable convenience and

inconvenience to t resulting from trial at either

of those locations. The district court denied reconsidera-

tion. United States v. Raineri, 521 F.Supp. 30, 32, 33

(W.D. Wis. 1980).

sc. § 1502.

No. 81-1394 3

Rule 18, Fed. R. Crim. P., requires the court to “fix

the place of trial within the district with due regard to

the convenience of the defendant and the witnesses and

the prompt administration of justice.”

We are not persuaded that there was an abuse of dis-

cretion. The m concluded, for reasons set forth

in his decision, that trial at either of the requested loca-

tions would result in ter inconvenience to defendant

and the witnesses. Moreover Rule 18 requires due re-

gard to the prompt administration of justice. In our

view this requires consideration of the disruption of the

functioning of the court caused by trial away from its

customary headquarters.

Although defendant and a number of expected wit-

nesses lived at Hurley, approximately 300 miles north of

Madison, no federal court quarters exist there. The

former federal courtroom at Superior, one of the places

specified by statute for holding court, and approxi-

mately 100 miles west of Hurley, has been dismantled

The volume of cases in the Western District of Wiscon-

sin and the limited personnel, facilities, and other re-

sources available for dealing with this work have re-

sulted in an increased centralization of judicial activity

at the district's largest population and litigation center,

Madison, where both the only district ju judge in regular

active service at the time of trial and istrict’s only

senior Judge reside. In view of these facts, the adverse

effect on the prompt administration of justice of holding

a trial at Superior or Hurley must be significant, even

assuming availability of a state court courtroom at

either of these places without cost to the United States.

See 28 U.S.C. § 142.4

The legitimate factors which have led to the concentration

of judici Lr at the Western District’s Madison head -

quarters and uent 3 of other federal

courthouses distin ish ited States v. Fer-

mandes, 4a F.2d, 100 (2d Cir. 197 1 ST), which expresed de

approval w the only conven by a trial away

from the headquarters — distriet was the judge

r and United States v.

to

Burns, 662 F.2d 1378 (11th Cir. 1981).

1 No. 81-1394

B. Jrry Selection

Defenclant also argues that the Jury Selection Plan,

under which his jury was selected, no longer complies

with the Jury Selection and Service Act, 28 U.S.C.

§§ 1861-69. Specifically, the claim is that citizens resid-

ing in many counties of the district are not currently

and probably never will be considered for service on a

petit jury.

The situation on which 1 — predicates his

challenge may be described as follows

There are five statu places for hold, 1 —

within the district: Eau Claire, La Crosse

Superior, and Wausau. 28 U.S.C. § 130(b). In vears past

the bulk of activity was at 1 but .

Id to some extent at the othe the dis-

trict court adopted its hy Selection Pian under the

Act, it placed every county in one of five “divisions,”

each of which surrounded one of the five places where

court was held. There are no statutory divisions in the

district, and the “divisions” in the Plan complied with

§ 1869(eX2). Although grand jurors are selected from

ut che district, the 7 jurors are selected from

the “division” in which lace of trial is located. As

time went by the caseioad for the district (With only one

udgeship 14 until 1978) increased so as to

—— one of the highest per- judge caseloads in the

nat ion. More and more of the judicial activity was

necessarily concentrated at Madison. In recent years

trials have come to be held only at Madison, except for

some at Eau Claire. The district court quarters in the

other places have been closed.

Defendant points to - policy stated in § 1861 “that

all citizens shall have the —— to be considered

for service on . petit ju ion 186K a) re-

ve that a district Pian sh “shall be des 22

objectives” of § 1861. Defendant plausibly asserts

that currently, at least, residents of the La Crosse,

Superior, Wausau divisions are not considered for

service on petit juries. Essentially this is a claim that a

plan which originally complied with the Act has fallen

No. 81-1394 5

away from compliance because of changed cir-

cumstances.

Defendant's motion to change the place of trial would

not have remedied the situation, except in the sense that

some residents of the Superior division would have been

members of his jury. In any event his motion did not

preserve his claim. gress prescribed a motion to stav

proceedings as the exclusive means by which an accused

may challenge a petit jury on the ground that it was not

3 224 ee with the Act. 28 U.S.C. § 1867(a).

„and (e).

Defendant did move to dismiss the indictment on the

statutory ground just uescribed, also asser a con-

stitutional right to trial by a jury drawn from the entire

district, a claim he no longer presses. The motion was

denied. United States v. Raineri, 521 F.Supp. 30, 32 3%

36-38. A motion to dismiss the indictment is included in

§ 1867(a) and (e) as one of the exclusive remedies for

+> a jury not selected in conformity with the

ct.

The text of § 1867(d makes clear that although the

remedy for noncompliance in grand jury selection may

be either a stay pending a conforming selection of a grand

jury or a dismissal of the indictment, the only remedy

or noncompliance in the selection of a petit jury is a

— pending the selection of a petit jury in conformity

with tne Act. We conclude, therefore, that the exclusive

procedure ior a challenge to the selection of petit jurors

is a motion for stay of proceedings.

28 U.S.C. § 1867(d) provides in part: “If the court deter-

mines that there has been a substantial failure to comply with

the provisions of this title in selecting the grand jury, the

court shall stay the 1 — - the selection of a

grand jury in conformity with this title or dismiss the indict-

ment. whichever is appropriate. f the court determines that

there has been a substantiai failure to comply with the provi-

sions of this title in selecting the petit jury, the court shall

stay the processing perding the selection of a petit jury in

conformity with this ‘i e.“

6 No. 81-1394

The magistrate concluded that although petit jurors

are “routinely” selected in only two divisions, the

penis that trials might be held at some time in the

Crosse, Superior, or Wausau divisions keeps the dis-

trict’s Jury Selection Plan in compliance with the Act.

Apparently the district court . In addition there

may be some question whether Congress intended that a

<r whose jury was otherwise properly selected from

a division of a district could challenge the particular

type of defect alleged here, involving, as it would, in-

terests of citizens in an opportunity to be considered for

service rather than the more traditional interests of

Itigants in the jury selection process.

Because defendant did not resort to the exclusive

remedy provided, we do not reach either of these

‘questions.

C. The Speedy Trial Act

The defendant asserts that the commencement of trial

on November 24, 1980, more than five months after both

the June 23 arraignment and the June 6 indictment

violated the Speedy Trial Act, 18 U.S.C. §§ 3161-3174.

That act required the trial to in within seventy days

of the arraignment; 18 U.S.C. § 3161(cX1); but excluded

from the seventy days certain periods of delay. 18 U.S.C.

; 3161(h). One provision excludes the delay between the

pir the prompt — of any pretrial motion.

18 U.S.C. § 316ith 1XF). Another excludes “delay

reasonably attributable to any period, not to exceed thir-

7 , during which any eae concerning the

efendant is actually under advisement by the court.” 18

U.S. C. § 3161(hX1XJ). The defendant filed twelve

motions on June 23 seven motions on July 7, the last

day on which the magistrate’s June 23 pretrial order

allowed the parties to file motions. In accord with the

magistrate’s pretrial order, the prosecution respended to

the motions on July 18. The defendant, filed a July 25

motion requesting the disqualification of the district

judge; and a July 28 affidavit in support of his various

motions. On August 1, the prosecutor filed the final af-

fidavit in oppositior to the defendant’s pretrial motions.

No. 81-1394 7

This affidavit responded in — to the defendantꝭs July

25 motion. Thus, the period June 23 until August 1

does not count toward the seventy days because it was

occupied with the prompt disposition of the motions the

defendant filed on three different dates. 18 U.S.C. §

3161(hX1XF).

The magistrate had some of these motions under ad-

visement until October 28. (He had decided some of

them and made recommendations on others on October

3, October 7, October 10, and October 15.) It is

reasonable to attribute and exclude thirty of the days

between August 1 and October 28 to the motions under

advisement. 18 U.S.C. §3161(hX1XF) & (J) United

States v. io, No. 81-1618, s 328 at 4 (7th Cir.,

Dec. 28, 1981); United States v. Brim, 630 F. 2d 1307.

1311-13 (8th Cir. 1980). See also Furlow v. United States

644 F.2d 764, 768 (9th Cir. 1981). Thus, the seventy-day

period may be counted from September 1.

On October 3, the magistrate partially granted one of

the defendant’s discovery motions. Information disclosed

as a result of this decision led the defendant, on October

7, to file another motion to dismiss. The October 7 motion

stopped the S Trial clock at the point when thirty-

seven days had elapsed. On November 10, the court denied

the motion to dismiss. Thirty of the intervening days are

reasonably attributed to the i determination of

that motion and are excluded. 18 U.S.C. § S161(hX1XF)

& (J). Thus, by November 10, for pu of the Speedy

Trial Act, forty-one days had elapsed. Under these cir-

cumstances, commencement of the trial on November 24

did not violate the Speedy Trial Act.

The defendant urges that the magistrate’s June 23

pretrial order uires a different result. That order

provided that trial commence on August 29. The order

also provided that the magistrate would not extend the

Our calculations disclose that the trial commenced fifteen

days before the Speedy Trial Act deadline. Thus even if the

time between July 25 and August 1 must be considered as

24 under advisement, there is no Speedy Trial

ct v .

8 No. 81-1394

time set by the order, absent a finding that the ends of

justice served by an extension outweighed the best in-

terest of the public and the defendant in a 141 —

On July 29, the trial date was cancelled, but the finding

described above was not weeny made. This cancella-

tion is entirely understandable, coming as it did, shortly

after defendant filed a late motion and a separate

late affidavit in support of his earlier motions. On

August 29, the 7 1 trial date, the defendant's

numerous motions still burdened the magistrate.

The language in the magistrate’s order concerning the

finding as a prerequisite to an extension was doubtless

borrowed from 18 U.S.C. § 31610 h 8A). The inclusion of

this | in the order did not bind the court to a

stand more rigid than the statute.

D. Joinder

1. Rule 8

The defendant asserts that Rule 8, Fed. R. Crim. P.

does not authorize joinder of Counts IV and V (perjury

and causing a witness to be threatened) with Counts I,

II. and III (causing interstate travel and use of in-

terstate facilities to promote a — — enterprise).

Rule &a) authorizes joinder where “offenses ... are

based on . . . two or more acts or transactions connected

2 or constituting parts of a common scheme or

plan.“

There is obviously a degree of connection between the

acts charged in the five counts. The expected proof

would show Travel Act offenses followed by perjury and

threatening of a witness for the pur of escaping

prosecution. In determining whether connection is

sufficient for the purpose of Rule & a) “the court should

be guided by the extent of evidentiary overlap.” United

States v. Zouras, 497 F.2d 1115, 1122 (7th Cir. 1974).

Xe

the e per jury proof o per-

27 threat tended to show defendant's awareness of

guilt of the Travel Act counts. Specifically, significant

testimony in establishing defendant’s involvement in the

No. 81-1394 9

prostitution enterprise came from the witness who was

threatened, and the perjury tended to persuade the

grand jury that defe t’s relationship with Ms. Gas-

barri was casual and thus to divert it from discovering

the close relationship between them incidental to the

operation of the enterprise.

We think the criterion quoted from Rule &a) was

fulfilled.

2. Rule 14

The defendant argues that even if Rule 8, Fed.R.

Crim.P., permits joinder, the district court should,

under Rule 14, Fed.R.Crim.P., have granted his re-

quest for relief from 1 — joinder and ordered

trial of Counts I, II, and III se tely from Counts IV

and V. We may reverse a denial of Rule 14 relief oniy if

the trial court has abused its discretion or committed

lain error affecting substantive rights. United States v.

one 552 F.2d 1265, 1272 (7th Cir.), cert. denied, 434

U.S. 970 > Such a reversal would entail finding

“that the facts and law presented to the trial j at

the time of the motion for severance demonstrated that a

trial under joinder was likely to be unfair and that the

trial was in fact unfair.” United States v. Kahn, 381 F.2d

824, 841 (7th Cir.), cert. denied, 389 U.S. 1015 (1967). See

also United States v. Pacente, 503 F.2d 543, 546 (7th

Cir.), cert. denied, 419 U.S. 1048 (1974).

The defendant — that eredibility was the main

issue in this trial and that the jury failed to fully credit

his denials of promoting an i prostitution enter-

prise because he was charged with perjury and obstruc-

tion of justice and because the prosecution’s opening

argument posited that the defe t’s involvement in

the illegal enterprise furnished the motive for his per-

jury 2 . of justice. * are not 22

er of charges which, proved, m

dam his credibility, deprived him of a fair trial, nor

that district court abused its discretion.

10 No. 81-1394

E. Psychiatric Examination

The defendant claims that the court committed rever-

sible error by its denial of his request to compel a psy-

chiatric examination of Gasbarri. district court has

broad discretion in determining whether to compel a

witness to undergo a chiatric examination. United

States v. Jackson, 576 F. 2d 46, 48 (5th Cir. 1978); United

States v. Russo, 442 F.2d 498, 503 (2d Cir. 1971), cert.

denied, 404 U.S. 1023 (1972). See United States v.

LaBarbera, 463 F.2d 988, 990 (7th Cir. 1972); United

States v. Riley, 657 F.2d 1377, 1387 (8th Cir. 1981). In

exercising this discretion the court must consider the in-

fringement on a witness’s privacy, tne opportunity for

harassment, and the possibility that an examination

will hamper law enforcement by deterring witnesses

from coming forward. United States v. Jackson, 576

F.2d at 49; United States v. Butler, 481 F.2d 531, 534

(D.C. Cir. 1973).

We have examined defendant’s motion and very

general supporting affidavit filed at the time of arraign-

ment and cited in his brief. We have also examined the

magistrate’s 1 on the motion. We note that on the

crucial issues barri's testimony was corroborated by

other witnesses or by documents. We are not persuaded

that there was any abuse of discretion.

II

TRIAL RULINGS

A. Medical Records

1. Privilege

The defendant takes issue with the trial court’s rejec-

tion of his counsel’s attempts to introduce into evidence

as an exhibit the H Community Mental Health

Center’s (Center) records regarding Cira Gasbarri.

Pursuant to a subpoena, the Center provided the

ae & me. tee ry but indicated that they were

confidensm) and could not be turned over to any other

No. 81-1394 11

entity.“ The Center's assertion of a statutory privilege

conflicted with the prosecution’s obligation to turn over

exculpatory material. Therefore, the prosecution placed

before the magistrate the question of the disposition

of those records. In a July 24, 1980 letter to the is-

trate, the prosecutor asserted good cause to disclo:

the data recording Gasbarri’s treatment, diagnosis,

and prognosis and the dates of her enrollment, atten-

dance, and disch See 42 U.S.C. § 458206b (2 C). 42

C. F. R. § 2.1-2.66. The prosecution suggested an order

directing the turnover of such data to the court for

review and possible disclosure to the defendant. On J uly

31, the magistrate ordered the Center to disciose suc

data to him. The Center reported the information to the

magistrate on August 11. On September 4, the mag-

istrate ordered the release of this limited information

to defense counsel.

This information disclosed that: (1) Gasbarri had been

hospitalized at the Center from mber 6, 1979 to

December 21, 1979, a period subsequent to the 1978

events about which she testified at trial; (2) at the time

of her hospitalization, her diagnosis had been psychotic

depression reaction transient situational disturbance; (3)

during her hospitalization, her treatment consisted of in-

dividual and group therapy and 200 mg. of Mellaril

every hour for nine days; (4) her prognosis was good; (5)

she received outpatient treatment on December 31, 1979

and in 1980 on January 7, 14, and 29, February 8,

March 31, April 14, June 20, and July 14; (6) during

her outpatient treatment, she received individual thera-

py with 25 mg. of Meilaril to be taken twice a day as

n :

The records contained a statement that This information

has been disclosed to you from records whose confidentiality

is protected by 1 21 5328 Welfare and Institu-

tions Code: and/or federal law. Federal r (42 C. F. R.

part 2) prohibit froni making any fu disclosure of it

without the specific written consent of the person to whom it

pertains or as otherwise permitted by such regulations. A

general authorization for the release of medical or other

information is NOT sufficient for this purpose.”

12 No. 81-1394

The magistrate suggested getting Gasbarri’s position

on turning over the remainder of the records. After Gas-

barri objected, the prosecutor, in a letter to the

trate, to return the records to the Center

a n defense counsel subpoena the records

to ve the question of privilege in advance of trial

under Fed. R. Crim. P. 17.1. prosecutor sent a copy of

the letter to the defendant’s lawyers. The trate

scheduled a hearing on the issue, but cancelled it when

defense counsel advised him that they did not ob to

the proposal stated in the — letter (A. 22).

— counsel did not subpoena the records before

trial.

After Gas i testified, defense counsel subpoenaed

‘he records. judge received them on December 4

and allowed defense counsel access to the records. On

December 9, the prosecution submitted a memorandum

concerning the records. On the next day, the judge

stated that, by oversight, she had not opened the sealed

materials read all of the ings before the

magistrate in connection with medical records in

uestion until the previous evening. She indicated that

she had erred in permitting access to the records. The

jud 11 the return of all copies of the records

and s that the regulations prohibited dissemination

until a showing of justification for the release. After

criticizing defense counsel for failing to deal with the

rivilege problem before trial, she said that she would

ave to hear testimony from an official of the Center

before she could determine whether to release the

records. The judge then allowed defense counsel an op-

portunity to explain why they had failed to raise and

resolve the privilege question before trial. (Tr. 12/10/80

p. 445.) When defense counsel offered no satisfactory ex-

planation, the court ruled that their failure precluded

them from disputing in mid-trial the Center’s assertion

that the records were ey gaan (Tr. 12/10/80 pp. 462-

63 483: 12/15/80 pp. 94.

in view of defense counsel’s consent to the s ion

to resolve the claim of privi before trial their

failure to do so, the court did not abuse its discretion

No. 81-1394

trial to challenge whether the records

See United States v. Jackson, 621 F 2d 216, 220 (

. 8 v. Scanland, 495 F.2d 1104 e

ir

We do not have the records before us. From the

remarks of the attorneys at the trial we have deter-

mined that in addition to the information disclosed pur-

suant to the te’s order, the records contained:

an admitting is of chronic paranoid schiz-

— (Tr. 12/10/80 453); reference to a prior

hospitalization at Camari lo State Hospital in California

(Tr. 12/11/80 p. 620); summaries of barri’s conver-

sations including some statements attributed to her

about her desire to expose a Wisconsin attorney (Tr.

12/8/80 p. 22 The prosecution conceded the authenticity

of these records but opposed their admission not only on

the grounds of privilege but also on the grounds of hear-

say and insufficient foundation to determine the qualifi-

cations of the persons who had reached the recorded

conclusions.

After several — efforts to have the court

reconsider its trom the er ense counsel called two

witnesses from ter. George Paz, a * psy-

chiatrist and s treating physician a the

Center, 1 —— a statutory privilege under 21 USC. §

1175. The court ordered him to answer those questions

necessary to determine whether the privi ty -

to his testimony and that of Constance Wi , the

clinical director and psychiatric — Rt oy Who

treated Gasbarri and wrote most of the records in

question. At —_ ne had net

participa a or .

when it refused to allow —y counsel to —

:

g

af

112

14 No. 81-1394

have someone with her all the time, and that she was

creating inter-personal conflicts with family members.

Gasbarri’s family t her to Olive View County

Hospital which hospitalization on a voluntary

basis and referred Gaabarri to the Center.

Williams and Paz testified that duri 8

at the Center her diagnosis was psyc

reaction, and her treatment included d doses of ellaril.

Williams said Gasbarri had made statements that she

had lost some of her at peenerty cod has bese expenses 8g

an attorney in Wisconsin with whom

friends. According to Paz, Gasbarri had difficulty

responding di to questions during her stay at the

Center (Tr. 12/15/80 p. 746) and would frequently re-

spond by starting four to ten years prior to the question.

In Paz’ — — —1 124 * — 5

as an outpatient, ic ive ion

resolved shortly after — i

Center, but a situational disturbance continued to

produce milder forms of anxiety which Paz called

ituation adjustme.:t reactions or transient situational

ljisturbances with adjustment reaction.”

The court sustained an objection to the relevance of

= admitting diagnosis (Tr. 12/15/80 p. 736), a ruling

defendant does not appeal. Defense counsel never

Paz or Williams any questions about the medical

records. Nor did the defense again Atfer any part of the

The court’s ruling that tne statutory privilege did not

bar the testimony of Paz and Williams undermined the

Center 's claim of privilege, but, itself, it did not

S into an abuse of

iscretien.

i yo!

—＋ assistance. United States v. Fleming, 594 F. 2d 598,

(7th Cir.), cert. denied, 442 U.S. 931 (1979). We

No. 81-1394 15

— — the totality of each case's cir-

cumstances. United States v. Starnes, 644 F.2d 673, 681

(7th Cir. 1981); United States v. Phillips, 640 F 2d 87, 92

(7th Cir.), cert. denied, 101 S.Ct. 2331 (1981), not by an

isolated failure. Furthermore, the defendant has shown

no judice from his counsel's failure. See United States

v. Weir, 657 F.2d 1005, 1008 (8th Cir. 1981); United

States v. Coupez, 603 F.2d 1347, 1350 (9th Cir. 1979).

The defendant made an extensive attack on Gasbarri's

credibility and her ability accurately to perceive, recall,

and —— by Le —— ine luded evidence — ex-

cessive drinking; public ian acts; attem to

shoot the defendant and to drive att is; her

confinement at a mental health center; her destruction

of electrical outlets, television sets, and other furniture in

the belief that the Mafia was after her and that the FBI

was in the television, light bulbs, thermostat, telephone

wires, and telephone poles; her statements that she had

attended her own funeral three or four times, that she

was being followed, that her home was being filled with

— gas, and that the defendant had burned the

howbar and had hired someone to kill her (the alleged

hired killer categorically denied Gasbarri's statement);

the diagnosis of her attending physician that in late

1979 she was undergoing a psychotic de ive reaction

which may have involved delusions; and her physician’s

testimony that he had prescribed Mellaril for 1

In view of the testimony of George Paz and Constance

Williams and the other evidence which attacked Gas-

barri’s credibility. the records may have added little or

nothing to the extensive onslaught.

B. Gasbarri Subpoena

The prosecution called Cira Gasbarri, at that time a

California resident, as its first witness. She testified and

8 counsel r — = so November 24 and

‘ nse counsel subpoenaed barri to reappear on

December 12 as a defense witness. The prosecutor moved

to quash the sub The court granted the motion.

The defendant advances several rationales for finding

16 No. 81-1394

tnat the trial court erred when it quashed his subpoena

to recall Gasbarri. “i

1. Prosecution Standing

The defendant urges that the prosecution had no stand-

ing or authority to move to quash the subpoena. We

disagree. 4 jew has standing to move to quash a

subpoena ressed to another if the subpoena in-

fringes upon the movant's legitimate interests. In re

Grand Jury, 619 F.2d 1022, 1027 (3rd Cir. 1980). The

prosecution’s standing rested u its interest in pre-

venting undue lengthening of trial, undue harrass-

ment of its witness, and prejudicial over-emphasis on

Gasbarri’s credibility.

2. Confrontation

The defendant argues that quashing the subpoena

violated the defendant’s constitutional right to confront

Gasbarri. The Sixth Amendment right to confront

witnesses through cross-examination “is not without

some reasonable limitation within the sound discretion

of the trial oe. United States v. Hansen, 583 F.2d

325, 332 (7 ir.), cert. denied, 439 U.S. 912 (1978).

When, as , the defendant has already subjected the

witness to an intense and complete cross-examination, a

trial judge’s refusal to recall the witness for further

cross-examination does not violate the defendant's right

to confront the witnesses oy him. United States ex

rel. King v. Schubin, 522 F. 2d 527, 529 (2d Cir.), cert.

denied, 423 U.S. 990 (1975); United States v. Somers, 496

F.2d 723, 734 (3rd Cir.), cert. denied, 419 US. 832

(1974). See Alford v. United States, 282 U.S. 687, 694

(1931); Faust v. United States, 163 U.S. 452, 455 (1896).

8. Right to Call Witnesses

The defendant asserts that qrashiog the 1 —

deprived him of the right to call Gasbarri as a witness

in his favor. Unless Gasbarri would have produced rele-

vant and material testimony which favored the defen-

dant, the quashing of the subpoena could not have

No. 81-1394 17

violated the defendant’s right to call witnesses in his

a, ma States v. DeStefano, 476 F. 2d 324, 330 (7th

ir. ;

The judge used great effort to find out whether Gas-

barri’s reappearance would lead to the introduction of

substantive evidence. She invited defense counsel to sub-

mit a written ex parte statement of the substantive

evidence they would seek to elicit if she allowed them to

recall Gasbarri. They never responded to that invitation.

We accept the court’s conclusion based on defendant's

earlier oral offer of proof that the defense sought to

recall Gasbarri solely to impeach her further. The right

to produce witnesses does not extend to such a recall.

4. Policy Arguments

The defendant that he should nave been aNuw

ed to subpoena i because (1) requiring a defen-

dant to explore every possible area of cross-examination

during the prosecution’s case might result in defeating a

motion for a judgment or a directed verdict of acquittal

and (2) during cross-examination of the prosecution’s in-

itial witnesses, defense counsel may unaware of

things which become known later in the trial. These

arguments have some it, but the defendant

faiis to shaw that they to Ais case. Furthermore,

Fed.R.Evid. 611 ists the policy considerations which

shall guide a trial court’s reasonable control over the

mode and order of interrogation witnesses; (1) effec-

tiveness for the ascertainment of truth; (2) avoiding

needless consumption of time; and (3) protecting

witnesses from harassment or undue em assment.

On the record before us we cannot that the trial

court departed from the standards of Rule 611.

C. The Defendant's Direct Examination

The following exchanges occurred during the defen-

dant’s direct testimony:

By Mr. DAN LINEHAN ICounsel for the defen-

dant}: Q. Do you remember testifying before the

Grand Jury in this case?

18 No. 81-1394

A. Yes, I do.

Q. Do you remember being asked whether or not

— flew to Reno, Nevada, with Cira Gasbarri in

mber of 1978?

. Yes, I do.

Q. Do you remember being asked if you flew

bees a Minneapolis with Cira Gasbarri in October

A. Yes, I do.

Q. What did you answer to those questions?

: answer, on the way to Reno I didn’t

believe that I flew on the same plane with her. I

believe that she flew directly to California.

Q, You said you didn’t fly there with her, didn't

you’?

A. That was my honest belief. I didn’t think that

she was on the plane with me. I couldn’t remember

her being ihere.

Q. And this was—

MR. TUERKHEIMER [' !nited States Attorney]: Your

Honor, I move to strike that portion of the answer

which was “That was my honest belief.”

MR. DAN LINEHAN: I object to that motion.

MR. TUERKHEIMER: I think that’s what the jury

van decide, not for the witness.

THE CourT: The motion is granted and the daz

should disregard the witness's statement about that.

That is a decision for the jury to make.

By Mr. DAN LINEHAN: Q. Alec, when you

testified before the Grand Jury did you believe that

u had flown to Reno in 1978 in September with

ira Gasbarri?

A. I believed I went alone.

(Tr. 12/11/80 pp. 16-18)

Raineri’s testimony that he believed his statement to

the grand jury when he made it was allowed to stand.

We rej defendant’s argument that by striking the

redundant characterization of his belief as “honest” the

court uoduly prejudiced the presentation of his defense.

No. 81-1394 19

D. Post-Summation Comment

Defense counsel’s summation included an extensive

argument on the credibility of numerous prosecution

witnesses. Yvonne Spears was the 6 of an especial-

ly emphatic commentary, parts of which follow:

“July and August, Gross and Spears. And Gross

4 testified, no prostitution. S testified that

there was prostitution. She told FBI when they

took the stand it was out of context that she was the

only girl involved in prostitution. But she had a key

to the upstairs. She was doing it on her own. Today

she says there was more. There’s been no immunity

granted to Miss Spears. I venture to say that she

was the only witness who came without a subpoena.

She testified to that fact. Why? Use your common

sense. The letters are in evidence. Read them. Read

them when you get to the jury room. Imm nity or a

letter of intent of immunity from Iron County from

the District Attorney. Correspondence between Mr.

Tuerkheimer [the United States Attorney] and the

people in Milwaukee where she was in on five

counts of sale of heroin.

“She talked to Mr. oars an FBI Special Agent).

25,000 cash bond. Couldn't make that. Apparently

she wasn’t making that much money either selling

heroin or as a prostitute in Milwaukee. But she

knows how to get what she wants. She’s for sale and

that lady knows it. She talks to Mr. Burg. Her bond

is drop to signature bond. Four counts are

dro and she pled to one count of sale of heroin.

She's on the streets.

“Hasn't been sentenced yet; keep that open until

after she testifies here. I think her test is

sickening. I think it’s incredible, totally incredible.

If I the power of the Government to move

people[’s} lives in that manner and to work in con-

junction with other law enforcement, even to give a

recommendation that could help, I think I could

probably bring 20 or 30 heroin dealers and

prostitutes from Milwaukee before you and say that

20 No. 81-1394

they had face“ with Mr. Tuerkheimer or that

Milwaukee doesn’t even exist.

“Spears comes back in, tries to take over some con-

. — — seen that 11 was =

wide open. pears is going to take advan

of an . y y= —— don't fet any = you

any different. Interesting stipulation wi pears.

You find it; it’s in the evidence. The banker who

notarized the fact that she wasn’t in prostitution,

who wasn’t her best trick. There is a stipulation

signed between me and Mr. Tuerkheimer represent-

ing the United States Government that if that

banker were to testify that he would testify that he

was never at the Show Bar, that he was never a

date of Yvonne S and anything to the contrary

is untruthful in his opinion.

“Do you think for one minute the Government is go-

ing to give me that in this case if it weren’t true?

They know it. They’re covering for their witnesses

now. They come on strong and now they re cover-

ing.

(Tr. 12/16/80 pp. 950-955)

After defense counsel concluded the judge said:

“Thank you, Mr. Linehan [defense counsel]. I

believe it is necessary to advise the jury, however,

that they should disregard any implication by Mr.

Linehan in his closing argument implying that the

Governinent arranged or proc untruthful

eee, by Yvonne Spears. Whether or not

Yvonne Spears is credible or not is entirely up to

you to determine and nothing that I say is intended

to affect your determination of that. But it is not

proper for a lawyer to imply that another side has

procured untruthful testimony.”

8 ae pectanation exugeate Gat the werd “ines lo on arves

in Sp Sangeet ant t defense counsel actually used the

word “sex.

No. 81-1394 21

Thereafter defense counsel moved for a mistrial on the

grounds that the judge’s remark was not a fair comment

on his argument. Alternatively, defense counsel re-

— the court to retract its comment or to instruct

t Jury to disregard it. The court denied all these re-

quests.

The court’s comment did not encourage the jury to

disre defense counsel’s argument that Spears

testified falsely. The full context demonstrates that the

court told the jury to disregard only the possible im-

plication that the prosecution knowingly procured un-

truthful testimony. The words used by defense counsel

could be interpreted as a suggestion that the prosecution

purchased untruthful testimony. The judge personally

observed the argument. In the circumstances, we find no

reversible error in the comment.

Ill

SUFFICIENCY OF THE EVIDENCE

A. Travel Act Violations

The defendant contests the sufficiency of the evidence

which supports his convictions for the violations of the

Travel Act, 18 U.S.C. § 1952, charged in the first three

counts of the indictment. The Travel Act provides:

da) Whoever travels in interstate . . commerce or

uses any facility in interstate . . commerce, in-

cluding the mail, with intent to

“(3) otherwise promote, manage, establish, carry

on, or facilitate the promotion, management, es-

tablishment, or carrying on, of any unlawful activi-

ty,

“and thereafter performs or attempts to perform

any of the acts specified in subparagraphs (1), (2),

and (3), shall be fined not more than $10,000 or im-

prisoned for not more than five years, or both.

“(b) As used in this section ‘unlawful activity’

means (1) business enterprise involving.

rn offenses in violation of the laws of the

tate in which they are committed... .”

22 No. 81-1394

To convict the defendant for violating this statute in

the manner charged in the indictment the prosecution

had to prove that the defendant (1) with intent to

promote a business enterprise involving illegal prostitu-

tion, (2) caused? someone to travel in interstate com-

merce or use an interstate facility, and (3) the defendant

thereafter promoted or attempted to promote the

business enterprise. United States v. Stevens, 612 F.2d

1226, 1231 (10th Cir. 1979), cert. denied, 447 U.S. 921

(1980); United States v. Me urtlin, 595 F. 2d 1321, 1361

(7th ir). cert. denied, 444 U.S. 833 (1979); United States

v. Craig, 573 F.2d 455, 489 (7th Cir. 1977), cert. denied,

439 U.S. 820 (1978). See United States v. Hedge, 462 F. 2d

220. 223 (5th Cir. 1972).

The defendant virtually concedes the sufficiency of the

evidence which demonstrated his intent to promote

prostitution at the Showbar and his promotion of

prostitution there. To whatever extent he challenges the

sufficiency of that evidence his challenge is meritless.

The defendant raises three points which warrant discus-

sion: that the use of the facilities in interstate commerce

41) was unconnected to him; (2) was unconnected to the

rostitution enterprise; and (3) constituted, at most, a

happenstance The defendant's first two arguments seem

W question whether, when viewed in the light most

favorable to the prosecution, Glasser v. United States,

315 U.S. 60, 80 (1942), the evidence would enable a

reasonable juro — r to conelude beyond a reasonable doubt

that the defendant's intentional promotion of a prostitu-

tion enterprise caused the three proven uses of facilities

in interstate commerce. The defendant's third argument

Although 18 U.S.C. 5 1952 only expressly applies to one

who travels in or uses any facility in interstate or foreign

— 18 U.S.C. § Ab allows indietment ane cones —_-

cousing such travel or use. United

52 71. 7 1 Cir. 1975), cert. denied, 429 US. 81 fades

U nder the Travel Act, each act of interstate travel

terstate use may constitute a separate offense. United States

3 620 F. 2d 138. 142 (6th Cir.), cert. denied, 449

6.8. 843 (1980): United States v Polizzi, 500 500 F.2d 856, 898

(9th Cir. 1974), cert. denied, 419 U.S. 1120 (1975).

No. 81-1394 23

questions whether Congress extended federal criminal

jurisdiction to the defendant’s activities.

1. Showbar Prostitution 0

During the period when the defendant promoted

r at the Showbar, dancers employed by the

would go to booths in the bar and masturbate those

customers who spent thirty-five or fifty dollars for a

three dollar e of champagne. During the same

period, the dancer/prostitutes would make arrange-

ments in the bar for the sale of their sexual favors

to customers of the bar. Prostitutes would either

ut a share of their receipts into a box in the ladies’

ressing room or give it to the bartender. Above the bar

there were about twenty rooms with beds used for

prostitution. The rooms were supplied with sheets,

pillowcases, and electricity. This evidence demonstrated

that illegal prostitution permeated the Showbar.

2. The Defendant's Involvement

In 1976, at the defendant’s request Cira Gasbarri

returned from California to reopen the Showbar, which

her husband had operated as a 1 enterprise

before his death in November, 1975. From late 1976 un-

til early 1979, the defendant managed the Showbar in

conjunction with Gasbarri. He gave her fifty dollars for

every night she worked at the Showbar. At his urging

Gasbarri permitted prostitution in the Showbar. After

she had once removed prostitution related booths from

the bar, the defendant told her to put them back and let

the girls mingle with the customers or the Showbar

would not survive. Throughout this period, the defen-

% Effective June 1, 1978, Wisconsin defined the offense of

itution to include intentionally masturbating * —

any thing of value. Wis. Stat. § 944.3004) City of Madison

v. Schultz, 98 Wis.2d 188, 197 (Ct. App. 1980). A some

of the testimony on this point concerned a period before the

—~ | in the statute, there was similar mony covering a

thereafter.

24 No. 81-1394

dant and Gasbarri collected, and the defendant usually

retained, the A from this prostitution. He

prepared Showbar checks for Gasbarri’s signature,

recorded information on check stubs and deposit slips,

helped her with payroll problems, icipated in hiring

and firing employees, recruited a nder, chose Jim

Vitich to run r 1 during his trip to Reno with

Gasbarri, worked with her whenever problems arose,

dealt with the bar’s accountant larly, and counted

the bar and prostitution p . At his request,

various dummy officers signed liquor license forms. In

June, 1978, when Patricia Colossaco told him about the

prostitution, the defendant replied that she had nothing

to worry about. When Wisconsin Alcohol and Tobacco

Enforcement Division agents made a routine inspection

of the Showbar, in March, 1979, he spoke to them over

the phone, represented himself as the janitor, yelled at

them, harrassed them, and told them they would not get

very far with any prosecution in the county. The defen-

dant had served as Circuit Judge for Iron County,"

‘Wisconsin, since January 1, 1978. The defendant’s

statements to the state agents permitted the jury to infer

that he would have his official position to protect

his prostitution enterprise.

This evidence sufficed to allow a reasonable juror to

find that the defendant caused prostitution to permeate

the Showbar and rendered the Showbar an instrumen-

tality of a prostitution enterprise. Therefore the jury

could reasonably conclude that the defendant caysed!?

* iron County includes Hurley.

2 Convictions under 18 U.S.C. § 1952 do not require that the

_‘2fendant knowingly cause or reasonably foresee interstate

travel or use of an interstate facility. United States v. McPart-

im, 595 F.2d 1321, 1361 (7th 8 cert. denied, 444 U.S. 833

(1979); United States v. Craig, 573 F.2d 455, 489, (7th Cir.

1977), cert. denied, 439 U.S. (1978); United States v. Pes-

kin, 527 F.2d at 78.

Because the Travel Act counts did not require proof that

the defendant knew of the use of an interstate facility, the

trial court correctly rej his request to instruct the jury

that knowledge of such use was required.

(Footnote continued on following page)

No. 81-1394 25

whatever use the Showbar made of facilities in in-

terstate commerce to further i. V United States

v. Inciso, 292 F.2d 374, 378 (7th Cir.), cert. denied, 368

U.S. 920 (1961); United States v. Levine, 457 F.2d 1186,

1188 (10th Cir. 1972).

8. The Interstate Elements

The benefit sought or gained from the interstate

travel or use need not be essential to the ill activity.

United States v. McLeod, 493 F. 2d 1186, 1189 (7th Cir.

1974); United States v. Miller, 379 F.2d 483, 486 (7th

Cir.), cert. denied, 389 U.S. 930 (1967), It need only hold

the promise of facilitating that activity. United States v.

Craig, 573 F 2d at 46/, (unsuccessful effort to obtain

help in collecting money to pay bribes); United States v.

Hedge, — F.2d 220 (5th Cir. 1972) (shipment never

pic up).

With respect to Count I, the prosecution proved the

use of a facility in interstate commerce by showing that

a payroll check drawn August 12, 1978 on the Showbar’s

Michigan bank account" was given, in Hurley, Wiscon-

sin, to Yvonne Spears, a dancer and prostitute at the

Showbar, as compensation for her nude dancing, and

crossed the state line in the process of collection. Gas-

2 continued

The Sixth Circuit rejects the majority ition and holds

that a defendant must have actual know of the inter-

state activity. United States v. Alsobrook, F.2d 139. We

continue to adhere to the majority position because we believe

that an implied scienter requirement would severely under-

mine the vel Act’s purpose: to assist local authorities in

combating criminal activities that extend the borders

of one state. United States v. Peskin, 527 F.2d at 78. We note

that the reach of the Travel Act extends beyond organized

criminal activity occurring in one state but managed from

another. Erlenbaugh v. United States, 409 U.S. 239, 247 n.21

ae United States v. Archer, 486 F.2d 670, 678-80 (2d Cir.

The Showbar maintained the account in question under

name Ritz Bar, Inc.

26 No. 81-1394

found that the payment to a prostitute nude dancing

facilitated prostitution at the Showbar.

Count II was based upon a September 12, 1978, check

drawn on the Showbar’s Michigan bank account and

used in Wisconsin to pay the Lake Superior Power Com-

peny. a Wisconsin business, for power at the Showbar.

defendant prepared this check for Gasbarri's

signature. The check crossed state lines as part of the

regular clearance process. Among other things, electrici-

ty was used to light the barroom and the upstairs rooms,

to chill the champagne, and to provide musical accom-

paniment for the dancer/prostitutes. Thus a reasonable

juror could have found that the payment facilitated

prostitution

The delivery of sheets and pillowcases from Hibbing,

Minnesota, to the Showbar on October 2, 1978, formed

the basis for Count III. Two prostitutes testified that

they found sheets and pillowcases on the beds where

they worked upstairs. Thus the jury also could have con-

cluded that the interstate delivery of the linen facilitated

prostitution.

In a Travel Act prosecution the interstate travel or

use must relate significantly, rather than incidentally or

minimally, to the il activity. United States v. Craig,

573 F.2d at 489. Proof that the defendant, without detri-

ment to the illegal enterprise, could have replaced the

interstate travel or use with an intrastate activity does

mot suffice by itself to prove the insignificance of the in-

terstate element. We test the sufficiency of the jurisdic-

tional basis (the interstate element), not by black-letter

rules but by nature and degree of interstate activity

in furtherance of the state crime.” United States v.

5 525 F. 2d 1170, 1174 (7th Cir. 1975) }

Un States v. Isaacs, 493 F.2d 1124, 1148 (7th Cir.),

cert. denied, 417 U.S. 976 (1974).

The jury could readily find that the maintenance and

regular use of a bank account and the use of a linen

supply house were significant in facilitating the illegal

enterprise. Whatever the reason for the choice of bank

No. 81-1394

27

or linen supply house, transactions with the ones chosen

involved travel or use of a facility in interstate com-

merce. It was unnecessary to identify

compare,

(7th Cir 1971), or because of the fortuitous orgar ix at ion

of the Federal Reserve System, compare, United States

Lee ical

gin of customers, compare, Rewis v. United States,

401 US. 808 (1971). In case before us “the nature

and ol interstate activity in furtherance of the

state crime” provides a sufficient basis for the 2

of federal — United States v. Rauhoff, 525

F.2d at 1174

B. False Declarations

The defendant contends that his false statements

Anti.

tion. The materi ity of a false statement is an essential

element of the crime and is a question of law for the

court to decide. United States v. 655 F.2d 837,

5 ve Cir.), cert. denied, 50 U.S.L.W. 3402 (Nov. 16,

See Sinclair v. United States, 279 U.S. 263, 298

(198) 9 We have defined materiality as a statement's

or tendency to impede, 4 My or dissuade the

rsu its investigation.” Picketts,

grand jury rom, pars Ss States v. Parker, 244 F.2d 943.

„1 7th Cir.) ce cert. denied, 355 U.S. 836 (1957). See

Whimpy, 531 F.2d 768, 770 (5th Cir.

1976) ( Unt influence or mislead); United

States v. 526 F.2d 189, 190 (9th Cir. 1975) (rele-

vant to any — lg under consideration); United

States v. Koonce F.2d 374, 380 (8th Cir. 1973)

(tending to influence, mislead, or ham ). Potential in

nce with a line of inquiry suffices to establish

28 No. 81-1394

teriality, less of whether the j tes-

a ot Go a oe

1 Howard, 560 F. 2d 281, 284 Cir.

In March, 1980, before the grand jury, the defendant

stated: that he and his wife were like brother and sister

either they looked * or he ran into her sister by ac-

cident; and that he p ably nt one day with Gas-

barri in Reno. In fact, the defendant traveled to and

from Reno with Gasbarri and they stayed together for

the three weeks except for three or four days. He paid

for her travel expenses.

The relationship between the defendant, a Circuit

Judge and former District Atto , and Gasbarri, the

person ostensibly in charge of the howbar, was im —

tant to the grand jury's investigation into the

dant’s involvement in the prostitution enterprise. The

C. Obstructing Justice

The defendant asserts that the record contains insuf-

ficient —— to 54 that he yo that Patricia

Colossaco person epvengee to have threatened,

would be a witness before the grand jury. The defendant

wp. AIL, a. b ry investigation. He

had testified before the grand jury, at which time the

No. 81-1394 29

endeavored to silence

wae sons i to be a witness before the ury. Odom

v. Un States, 116 F.2d 996, 999 (5th Cie) vov'd on

other grounds, 313 U.S. 544 (1941).

In light of our conclusions that the trial judge did not

err in various rulings and that the evidence supports

the convictions, the judgment is AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA 5730—Midwest Law Printing Co., Inc., Chicago—2-8-82—400

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Case No. 81-1394

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

ALEX J. RAINERI,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin,

the Honorable Barbara J. Crabb, Presiding

PETITION FOR REHEARING,

WITH SUGGESTION FOR REHEARING IN BANC

LINEHAN AN OFFICES

Daniel W. Linehan

Attorney for Defendant-

Appellant

105 West Doty Street

Madison, WI 53703

(608) 257-0625

SUGGESTION FOR REHEARING IN BANC

Petitioner respectfully suggests that

this petition be heard in banc. The basis

for this suggestion is as follows:

1. If the Court's decision on location

of trial and jury selection is allowed to

stand, three-fifths of the jurors (on a geo-

graphical basis) in the Western district of

the State of Wisconsin will never see service

on a petit jury, and there will be no future

jury trials in three of the five divisions of

the Western District of Wisconsin since the

United States Government has seen fit to close

down the Courthouse facilities in those

divisions.

| 2. The Court's decision represents a

substantial expansion of the Travel Act, con-

sidering the incidental, minimal and happen-

stance nature of the interstate activity

in this case. Allowing the Court's decision

to stand would indicate that individuals who

happen to live within several blocks of a

State boundary, and use economic institutions

on either side of that State boundary, can

be hauled into Federal Court and required to

answer under The Travel Act, while individuals

who engage in the identical behavior in the

middle of a state could not be hauled into

Federal Court to answer for their behavior.

Appellant respectfully represents that the

fortuitous location of Cira Gasbarri's busi-

ness (being within several blocks of the

Wisconsin-Michigan state line) was the princi-

pal basis for the acquisition of federal juris-

diction in this action.

3. This Court's decision in United States

vs. McPartlin, 595 F. 2d 1321 should be reversed

to the extent that a defendant should be

required to have actual knowledge of inter-

state activity before he may be prosecuted

under the Travel Act. This should be parti-

cularly true when the interstate connection

is based upon the fortuitous and happenstance

location of a state boundary, rather than a

design to frustrate local law enforcement.

I

PETITION FOR REHEARING

A. Location of Trial and Selection of Jury

The Court's decision in this case refer-

red to a variety of "facts" which Appellant

respectfully represents are not properly

in the record. On page 3 of the Court's

decision there was reference to "the volume

of cases", “limited personnel", facilities“,

and "other resources", "increased centrali-

zation of judicial activity" and other

reasons to justify holding this trial in Madison.

Footnote four (4) referred to these as "legi-

timate factors" and distinguished it in that

regard from several cases which we believe

should have led to a reversal of this case.

The above-referred to "facts" in the

opinion of Appellant are not "facts because

they are not in the record and are not factual

in nature.

Furthermore, and even more importantly,

the record demonstrates that there was a

federal courtroom available in Superior, which

the trial court refused to use.

Appellant's issues with regard to jury

selection and location of trial are inextri-

cably interwined. This Court ruled that

Appellant did not properly preserve the issue

of jury selection because Appellant did not

comply with the text of Section 1867(d), which

is quoted in Footnote #5. Appellant respect-

fully represents he did comply with that since

had the Court determined that Superior was a

proper location for trial, the petit jury

would have been picked from that division

under the juror selection plan for the Western

Division of Wisconsin. This Court further

Stated on page five (5) of its decision that

defendant's motion to change the place of

trial would not have remedied the situation.

Had trial been held in Superior, each and

every juror would have been from the Superior

division under the Western Division's Plan.

Both the allusion to Section 1867(d)

and the argument relating to lack of judicial

facilities were raised for the first time

on appeal, and were further raised by the

Court of Appeals rather than the government

or the Appellant. Furthermore, if the Court

determined that the failure to draw excess

of five years (petit jurors) was improper,

it was the Court that was supposed to stay

the proceedings pursuant to Section 1867(d).

It is apparent from the entire record

that the refusal to try this case in Superior

led directly to the result of having a petit

jury without a single juror from the division

in which the defendant resided, the crimes

were allegedly committed, and the vast

majority of the witnesses were called from.

It was apparent that the trial in Madison

was most convenient only to the Court, with

the possible exception of being more conveni-

ent for the United States Attorney's office.

Appellant's request for a trial in Superior

was the practical equivalent of a request for

a stay, since such a trial could not have

been conducted until jurors from the Superior

Division had been selected, remedying Appell-

ant's objection to the Plan for selection of

jurors for the Western District.

In summary, the motion relating to loca-

tion of trial and jury selection were inextri-

cably interwined and had the motion for loca-

tion of trial in Superior been granted,

the problem with the Plan for selection of

jurors would have been remedied. Also Sec-

tion 1867(d) (emphasis added) provides that

the Court shall stay the proceedings if the

Court determines that there has been a fail-

ure to comply with the provisions of Section

i8S7(d) (emphasis added).

B. Appellant's Right to a Speedy Trial Was

nied.

This Court's finding that the cancella-

tion of the trial date was entirely under-

standable is essentially speculation, in the

respectful opinion of Appellant. The Magi-

strate's June 23rd pretrial order specifically

stated that the trial date would not adjourned

without a finding on the record regarding the

reasons for adjournment. This order was

entered after the defendant had requested an

adjournment and that request had been denied.

For reasons which are contained nowhere in

the record, the trial date was adjourned by

way of a one-paragraphed letter from the Clerk

of Court. It would be as easy to speculate

that it was adjourned for the convenience of

the government as it is to speculate that it

was adjourned because of motions. Appellant's

right to a speedy trial was denied because

the adjournment of the trial violated the

order of the Magistrate on its face.

The June 23rd order of the Magistrate

may be based upon the speedy trial statute,

but that does not change the fact that both

the Magistrate's order and statute require

findings on the record for an adjournment

such as the adjournment of Appellant's August

29th trial date.

C. The Medical Records in estion Should

Have Been Admitted into Evidence.

The record in this action reflects the

fact that the defense had hired their own

psychiatrist, Dr. Leigh Roberts, and that

the medical records in question had been

turned over to him prior to the time the

Court discovered its error“ having allowed

defense counsel to look at the records.

The trial court's refusal to grant a

psychiatric examination, together with its

refusal to even consider the issue of privi-

lege with regard to the medical records

effectively precluded defense counsel from

making any showing as to the witness' (Cira

Gasbarri) mental competence and state of

mind at the time she testified, as well as

preventing the defense from fully exploring

her state cf mind at the time the events in

question occurred.

The trial court refused co consider the

issue of privilege and refused to even consi-

der the issue of admissibility of the records

in quesiton, based on defense counsel's

alleged failure to bring the issue before

the Court in a timely fashion.

Interestingly enough, however, when the

issue was brought before the Court (by way of

the testimony of Dr. Paz) the Court ruled

within a period of five or ten minutes that

Dr. Paz' testimony was not privileged. This

ruling applied equally well to the medical

records.

This court pointed out (page 4) that

defense counsel did not ask Dr. Paz any ques-

tions about the medical records. Further,

the Court comments that the records were not

offered again. The trial court made it abun-

dantly explicit that the trial court did not

want to hear any more about the medical rec-

ords in question and would not consider their

admissibility again. This was made clear

more than once in the record of the trial

prior to the testimony of Dr. Paz.

The medical records were clearly not

privileged, as Dr. Paz' testimony showed

within a matter of minutes. There would

have been no delay in the trial had this

issue been addressed at the time defense

counsel asked for permission to argue the

admissibility of the records. Considering

the type of facts that the record indicates

were in these medical records, the failure

to even allow argument about their admissi-

bility was clearly prejudicial. The intro-

duction into evidence of those records,

together with the ability for the defense

expert to analyze these records, and then

offer testimony of his own, if relevant,

clearly was critical to the approach the

defense chose in the trial.

In short, there was more delay arguing

over the court's refusal to consider the issue

of privilege and admissibility than there

would have been in actually deciding the issue,

and this is clearly demonstrated during the

testimony of Dr. Paz. The medical records

were necessary to an adequate defense, and

nullified any use defense counsel was able to

make of his expert witness (Dr. Leigh Roberts).

Even this Court stated that "the record may

have added little or nothing to the exten-

sive onslaught" (emphasis added), (page 15,

this Court's opinion).

D. Gasbarri's Subpoena.

The subpoena on Cira Gasbarri should not

have been quashed. It is apparent on its face

that in a trial of this length there will

easily be factual questions to ask a witness

at the end t the trial, which could not

possibly or reasonably be asked of the same

witness at the beginning of the trial. This

Court based part of its ruling on Gasbarri's

subpoenas on what it termed "prejudicial over-

emphasis" on Gasbarri's credibility. The

Appellant respectfully represents that there

was prejudicial under-emphasis on Gasbarri's

credibility by allowing the government to

call her as a first witness in a trial of

this length, and refusing defense counsel

the right to call her as a witness at all.

Among other items which Cira Gasbarri

could have been questioned about would have

been the contents of the medical records,

and this would have constituted questioning

based upon issues other than impeachment.

This and other issues which Appellant believes

were brought to the attention of the trial

court, and this subpeona was still quashed.

It is certainly not undue harassment

of Cira Gasbarri to be asked to testify on

the behalf of the defense, with all expenses

paid, when she has been able to find the time

to do the same at least twice for the govern-

ment (trial and grand jury).

Furthermore, even this Court's decision

admits that their ruling supporting the ability

of the Court to quash Cira Gasbarri's subpoena

puts defense counsel in a place of having to

explore every possible area of cross-examina-

tion during the government's case in chief,

which could result in defeating a motion for

a directed verdict of acquittal. This Court

also concedes that defense counsel may be

unaware of things which become known later in

the trial during the cross-examination of the

prosecution's initial witness. This is even

more glaringly true in the trial of this length.

E. The Word "Honest" Should Not Have Been

Stricken from the endant'’s Direc

xamination.

This Court ruled that the trial court's

striking of the work honest from the defen-

dant's testimony did not unduly testify

regarding his belief, even if he was not

allowed to testify that his belief was

"honest".

While there may be some abstract merit

to this Court's characterization of the word

honest as being redundant to the word "belief",

the effect of having the work "honest stricken

from the defendant's testimony in front of the

jury when the defendant is charged with per-

jury is so devastating to the defendant's

testimony and plainly indicates on its face

a belief by the Court that the defendant is

not "honest".

The issue of this trial, or at least the

principal issue, was credibility, and the

Court's upholding of the government's motion

to strike the work "honest" from the defen-

dant's own testimony was completely prejudi-

cial and should result in a reversal.

F. This Decision by the Court of Appeals

Represents a Significant Expansion of

e Travel Act.

The Court of Appeals obviously made a

completely extensive review of the record

in rendering its opinion in this matter.

With that in mind, this Court is certainly

aware that the interstate elements in the

prosecution of this action were intimately

connected with the fortuitous location of

Cira Gasbarri's bar, being extremely close

to the boundaries between Wisconsin and

Michigan.

Furthermore, it is not reasonable to

conclude that a reasonable juror could have

believed that the defendant caused“ whatever

use the Showbar made their facilities in

interstate commerce. There is absolutely no

connection between Appellant and the laundry.

A decision to bank in Michigan was Cira

Gasbarri's, and that bank was so close to

her bar that is is simple coincidence that

the bank in question was in another state.

While the benefit from the interstate

travel may not be essential to the illegal

activity, it is equally true that under the

Travel Act the use of the interstate travel

should be part of the design to frustrate

local law enforcement, or at least be part of

a factual circumstance which does frustrate

local law enforcement. That is clearly not

the case since the selection of interstate

institutions or business was fortuitous and

happenstance, and the record demonstrates

this. Furthermore, while the benefit from

cue interstate activity may not be essential

to the illegal activity, this Court's own

opinion (page 26) recognizes that the inter-

state activity must relate significantly to

the illegal activity. It is clear that all

interstate activity in this factual situation

was completely coincidental, and did not

relate in any significant fashion to the

illegal activity.

Applying this Court's interpretation of

the Travel Act, individuals such as Cira

Gasbarri who operate bars on or near inter-

state boundaries can be hauled into Federal

Court to answer for the occurances in those

bars even if local law enforcement is not

frustrated. An identical individual and

bar located further from state line would be

hauled into Federal Court. The Travel Act

is not designed to have any firmer appli-

cation near a state boundary than far

away from a state boundary, provided that

the location of an enterprise near a state

boundary is not meant to frustrate local

law enforcement and does not in fact

result in the frustration of local law en-

forcement.

In summary, this Court’s opinion repre-

sents an expansion of the Travel Act, but

it is necessary to review the fortuitous

circumstances involved in the use of inter-

state facilities before it becomes apparent

that the decision was in fact an expansion

of the Travel Act. Also, in a variety of

other cases, such as United States vs.

Altobella, 442 F. 2d 310, 315 (7th Circuit

1971), and United States vs. Isaacs, 493

F. 2d 1148, the nicncy or check involved

were intimately connected with a criminal

enterprise, while that is not the case in

this instance.

G. The Record Does Not Support a Conviction

on Obstructing Justice.

Appellant respectfully repeats his

earlier representation that the record does

not contain any facts to support a jury's

finding that Appellant was aware that

Patricia Colossaco was to be a witness

before the grand jury. Furthermore, Ms.

Colossaco herself testified that she was

not frightened by the alleged threat in

question

Respectfully submitted,

LINEHAN LAW OFFICES OF

Madison

/s/ Daniel W. Linehan

Daniel W. Linehan

Attorney for Defendant-

Appellant

105 West Doty Street

Madison, WI 53703

608/257-0625

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

MARCH 24, 1982

Before

Hon. WALTER J. CUMMINGS, Chief Judge

Hon. THOMAS E. FAIRCHILD, Senior

Circuit Judge

Hon. WILBUR F. PELL, JR., Circuit

Judge

UNITED STATES OF AMERICA,

Plaintiff-~Appellee,

No. 81-1394 vs.

ALEX J. RAINERI,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin No. 80

CR 29

BARBARA J. CRABB, Judge.

On consideration of the petition for re-

hearing with suggestion for rehearing in banc,

filed by counsel for the defendant-appellant

in the above entitled cause, all members of

the original panel having voted to DENY a

rehearing, and no member in regular active

service having requested a vote on the in

banc suggestion, accordingly,

IT IS ORDERED that the aforesaid peti-

tion for rehearing be, and the same is here-

by, DENIED.

The mandate of this Court issued March 9, 1982.

On March 10, 1982 we entered an order per-

mitting defendant to file his petition

for rehearing instanter. Under the circum-

stances it would have been propriate to recall

the mandate pending consideration of the

petition for rehearing, and the mandate would

have been stayed pursuant to Rule 41( a), F. R.

A.P.

The petition for rehearing now having

been considered and DENIED,

IT IS ORDERED that the mandate be deemed

to have been recalled. It will again issue

seven (7) days after the date of the order,

unless further stayed. Under the circum-

stances, the record now in the district court

need not be physically returned to this Court.

NO. 81-1394

On March 22, 1982 defendant filed a

motion for continued stay of execution of

sentence. The purpose of the motion will

be accomplished by the recall of mandate

herein ordered, and the motion is therefore,

DENIED.

PLAN OF THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

FOR THE RANDOM SELECTION OF GRAND AND PETIT

JURORS

April 23, 1979

1. Policy.

It is the policy of this Court to give

effect to the statutory directives contcined

in 28 U.S.C. SS1861-62: [t is the policy

of the United States that all litigants in

Federal courts entitled to trial by jury

shall have the right to grand and petit juries

selected at random from 4 fair crosssection

of the community in the district or division

wherein the court convenes. It is further

the policy of the United States that all

citizens shall have the opportunity to be

considered for service on grand and petit

juries in the district courts of the United

States, and shall have an obligation to

serve as jurors when summoned for that pur-

pose. No citizen shall be excluded from

service as a grand or petit juror in the

district courts of the United States on

account of race, color, religion, sex,

national origin, or economic status."

2. Applicability of plan.

The western District of Wisconsin is

hereby divided into divisions for jury

selection purposes, pursuant to 28 U.S.C.

$1869(e), as follows:

Eau Claire Division, consisting of

the counties of Chippewa, Clark, Dunn, Eau

Claire, Pepin, Pierce, St. Croix, and

Taylor;

La Crosse Division, consisting of the

counties of Buffalo, Crawford, Grant,

Jackson, La Crosse, Monroe, Richland,

Trempealeau, and Vernon;

Madison Division, consisting of the

counties of Columbia, Dane, Green, Iowa,

Jefferson, Lafayette, Rock, and Sauk;

Superior Division, consisting of the

counties of Ashland, Barron, Bayfield,

Burnett, Douglas, Iron, Polk, Price, Rusk,

Sawyer, and Washburn;

Wausau Division, consisting of the

counties of Adams, Juneau, Lincoln, Marathon,

Oneida, Portage, Vilas, and Wood.

The provisions of this plan apply to

all the divisions in this district.

3. 1 i and supervision of jury

selection process.

The clerk of court shall manage the

jury selection process. The clerk shall act

under the supervision and control the chief

judge of this district.

4. Source of names of prospective jurors.

The names of prospective jurors shall

be selected from the official lists of

actual voters of the political subdivisions

within the relevant division in the most

recent federal general election held in

the fall of even numbered years. New source

lists shall be obtained every two years as

soon as possible after the federal general

election held in the fall of even numbered

years. Copies of official voter lists

shall be obtained from the county clerk

of each county in this district, or made by

copying official voter lists furnished by

county clerks. The court finds that it is

not necessary in this district to prescribe

some other source or sources of names in

addition to official lists of persons actu-

ally voting in order to foster the policy

and protect the rights secured by 28 U.S.C.

$S1861-62.

5. Procedure for selecting names of pro-

Spective jurors from source lists.

For each division the following pro-

cedure shall be used for selecting names of

prospective jurors from source lists. Deter-

mine a quotient number, n, by dividing the

total number of names on the lists for that

division by the number of names desired to

be selected. Drop any fraction which might

result from this division. Then determine

a starting number by placing in a wheel

discs of the same size numbered from 1 to n,

and picking one numbered disc at random from

the wheel. Arrange the source lists alpha-

betically by county, and, within each county,

towns arranged alphabetically followed by

cities arranged alphabetically. From the

first list select the name corresponding

to the starting number, and then select

every nth name that appears. Do not inter-

pret this selection of every nth name when

passing from one political subdivision's

list to another's, but make the selections

as if there were one continuous list of

names for the entire division. Each name

selected shall be clearly indicated on the

source list and numbered consecutively

starting with number one.

6. Master Jury Wheels.

The clerk shall maintain a master jury

wheel for each of the divisions within the

district. The master jury wheel shall be

filled with discs of the same size numbered

to correspond with the numbers assigned

to each name selected from the source lists

for that division. The minimum number of

discs to be placed initially in each master

jury wheel shall be one thousand. The court

finds that it would be unnecessary and cum-

bersome to require that a larger number of

discs be placed initially in any master jury

wheel. The chief judge of this district

may order additional names to be placed in

any master jury wheel from time to time as

necessary. Each master jury wheel shall be

emptied and refilled every two years as soon

as completed source lists are obtained from

all the counties in the relevant division.

7. Withdrawal of discs from master jury wheel.

From time to time as directed by the

chief judge of this district, the clerk

shall publicly draw at random from the master

jury wheel for each division discs corres-

ponding to the names of as many persons as

may be required for jury service. The clerk

shall prepare an alphabetical iist of the

names so determined. This list shall be

typed on sheets of perforated gummed maii-

ing labels, and a copy of this list retained

as a record of prospective jurors. This list

shall not be disclosed to any person except

pursuant to 28 U.S.C. SS 1867-68, or upon

the direction of the chief judge of this dis-

trict.

8. Completion of juror qualification forms.

The clerk shall mail to every person

whose name is determined pursuant to section

7 of this plan a juror qualification form

which has been prescribed by the Administra-

tive Office of the United States Courts and

approved by the Judicial Conference of the

United States. The form shall be accompanied

by a postage-paid return envelope and by a

letter instructing the prospective juror to

fill out and return the form, duly signed

and sworn, to the clerk by mail within ten

days. The letter of instruction shall

include a list of those groups or classes

whose members shall be excused upon indi-

vidual request according to this plan.

9. Persons not qualified for jury service.

All prospective jurors shall be deemed

qualified to serve on grand and petit juries

in this district unless

(a)

(b)

(c)

He is not a citizen of the United

States, eighteen years old, who

has resided for a period of one

year within the judicial district;

He is unable to read, write, and

understand the English language

with a degree of proficiency

sufficient to fill out satisfac-

torily the juror qualification

form;

He is unable to speak the English

language;

(d)

(e)

He is incapable, by reason of

mental or physical infirmity,

to render satisfactory jury

service; or

He has a charge pending against

him for the commission of, or has

been convicted in a state or

federal court of record of, a

crime punishable by imprisonment

for more than one year and his

civil rights have not been re-

stored.

10. Exemption from jury service.

The court finds that exemption from

jury service of the following groups of

persons or occupational classes is in the

public interest and would not be inconsis-

tant with 28 U.S.C. SS 1861-62, and there-

fore members of the following groups or

classes shall be barred from jury service

on the ground that they are exempt:

(a)

(b)

Members in active service in the

armed forces of the United States;

Members of the fire or police depart-

ments of any state, district,

territory, possession, or sub-

division thereof;

(c) Public officers in the executive,

legislative, or judicial branches of

the government of the United States, or

any state, district, territory, or

possession or subdivision thereof, who

are actively’ engaged in the performance

of official duties. public officer"

shall mean a person who is either elected

to public office of who is directly

appointed by a person elected to public

office.

ll. Excuses on individual request.

The court finds that jury service by the

following groups of persons or occupational classes

would entail undue hardship or extreme inconven-

ience to the members thereof, and that the excuse

of members thereof would not be inconsistent with

28 U.S.C. Sections. 1861-62. Therefore, members

of the following groups or classes shall, on

individual request therefore, be excused from

jury service:

(a) All persons over 70 years of age;

(b) Actively engaged members of the

clergy and actively engaged

members of religious orders;

(c) Any person responsible for the

active day to day supervision of

a child or children under the

age of 10 years;

(d) Actively practicing attorneys, phy-

Sicians, dentists, and registered or

practical nurses;

(e) Actively engaged school teachers;

(f) Sole proprietors of businesses;

(g) Persons who have served as a grand or

petit juror in a state or federal

court within the preceding two years;

12. Determination of qualifications, exemptions,

and excuses.

The chief judge, on his initiative or upon

the recommendation of the clerk, shall determine

solely on the basis of information provided on the

juror qualification form and other competent evi-

dence whether a person is unqualified for, or

exempt, or to be excused from jury service. The

clerk shall enter such determination in the space

provided on the juror qualification form and the

alphabetical list of names determined by drawing

discs from the master jury wheel.

13. Qualified jury wheels.

The clerk shall maintain separate qualified

jury wheels for each division in the district, and

shall place in such wheels all the discs which

were drawn from the appropriate master jury wheel

and which correspond to the names of persons who

are not disqualified, exempt, or excused from

petit jury service pursuant to this plan. From

time to time the clerk shall publicly draw at

random from the qualified jury wheels discs corre-

sponding to the names of as many persons as may be

required for assignment to petit jury Hanels.

The clerk shall prepare a separate list of names

of persons assigned to each petit jury panel.

These lists shall be disclosed to the parties as

soon as practicable after a firm trial date has

been established, unless otherwise directed by the

chief judge or the judge assigned to try the case.

At the time such a list is disclosed to the par-

ties, it shall be made available at the clerk's

office to the public upon request therefore, unless

otherwise directed by the chief judge or the judge

assigned to try the case. The chief judge or the

judge assigned to try any case may order such

lists to be kept confidential in any case where the

interests of justice so require.

Each qualified jury wheel shall be emptied

every two years at the time the corresponding

master jury wheel is emptied and refilled.

14. Assignment to petit jury panels.

Persons whose names were selected pursuant

to section 13 of this plan shall be called to

appear as prospective jurors for all jury trials

held in the appropriate division for a period not

to exceed eighteen months. In any such period no

person shall be required to complete service in

a particular case. If the current panel for a

division contains more persons than reasonably

needed for the selection of a jury in a specific

case, the clerk shall select at random the names

of the number of persons he determines should be

called. This selection shall be made by drawing

numbered discs at random from a box or similar

container.

If two or more jury trials are to commence

on the same day in the same city in this district,

a central jury pool shall be used. The names of

the prospective jurors directed to repoit to any

specific courtroom shall be determined at random

by the clerk by drawing aunbered discs from a box

or similar container. Persons excluded from ser-

vice in a particular case upon pereptory challenge

or upon challenge by a party for good cause shown

shall be returned to the central jury pool.

15. Selection of grand jury.

When the court orders that a new grand jury

should be summoned, the clerk shall publicly draw

at random from the qualified jury wheels of the dis-

trict discs corresponding to names of as many

persons as may be required for grand jury service.

If inspection of the juror questionnaire of a

person so selected reflects that the person should

be excused from grand jury service but not from

petit jury service pursuant to section 1l(h) of

this plan, that person's disc shall be replaced

in qualified jury wheel and another disc drawn at

random. The number of discs drawn from the

qualified jury wheel for each division shall be

as near as possible in the proportion which the numb

number of names on the current source lists for

that division bears to the total number of names

on the current source lists for the entire dis-

trict. The clerk shall prepare a list of names of

persons assigned to each grand jury panel. This

list shall not be disclosed except as may be dir-

ected by the chief judge. Each grand jury shall

serve for a period not to exceed eighteen months.

oO

———

—

Dtwvisipv

>

101

PROCEEDINGS

JOSEPH W. SKUPNIEWITZ,

called as a witness by the defendant herein,

having been first duly sworn, was interrogated and

testified as follows:

DIRECT EXAMINATION

BY MR. LINEHAN:

Q Would you state your name for the record,

please sir?

Joseph W. Skupniewitz.

Q How are you employed?

A I'm the Clerk, United States District Court,

Western District of Wisconsin.

How long have you held that position?

Since October of 1971.

Q Do you have in your custody records that

would indicate how many Grar 1 Jurors were

present on the dates on which evidence was

considered in this particular action?

A Yes, I do.

Do you have those records with you?

I have with me not the source records them-

selves but rather a worksheet that I made

up from those records. I 11 describe

briefly the work sheet lists by code number

the 23 Grand Jurors that were at various

times members of this Grand Jury. And it

lists each one of the dates on which the

U. 8. Attorney has advised me that matters

concerning defendant Raineri were considered.

I have then indicated whether the Grand

Juror was present or absent for each Grand

Juror for each date.

And the record that you have in front of you,

is that something that was compiled by you

personally?

Yes, sir, from the source records in my

custody.

And to the best of your knowledge then it's

accurate if compared with the source records

themselves?

Yes, sir.

There were 23 Grand Jurors all together, is

that correct for this case?

At any given time there were as many as 23

Grand Jurors. At one point during the

chronological sequence the Grand Jury was

brought up to full strength of 23. At the

earlier stages, as a result ot permanent

excuses, there were not 23. At some point,

I believe in March or April, two additional

Grand Jurors were added to bring it up to

full strength of 23.

Do your records indicate how many Grand Jurors

were present on the eight dates mentioned in

your affidavit recently filed on October 6th?

Yes, they do.

To make it short, perhaps, were there less

than sixteen Grand Jurors present on any of

the eight dates mentioned in your affidavit?

No. There were at least seventeen present

on each of the dates in question.

And did you make any independent examination

of your source records to determine whether

or not those eight dates were the only dates

on which Mr. Raineri's case was considered?

I have no information or records as to what

matters are considered by the Grand Jury

on any given date. The information as to

the identity of these dates was furnished

me by the U. S. Attorney.

Does the record you have with you indicate

how many Grand Jurors concurred in the indict-

ment in this action?

No, it does not. That record is available

to me as a sealed document downstairs.

Does it indicate specifically on what dates

the Foreperson was present in regard to

these--I'm speaking only of these eight dates

which Mr. Tuerkheimer provided you with?

MR. TUERKHEIMER: Objection, Your Honor.

THE COURT: I'm sorry. Would you restate

the question.

BY MR.

LINEHAN:

Does it indicate on which of these eight

dates we have been discussing the Fore-

person of this particular Grand Jury was

present?

THE COURT: And what's the ground of

your objection?

MR. TUERKHEIMER: That it is of no

relevance when the Foreperson was or was

not present. As I understand the motion,

we're talking about the entire body of

Grand Jurors.

THE COURT: Yes, Mr. Linehan, what's

the relevance of the presence or absence of

the Foreperson?

MR. LINEHAN: The only relevance would

be the fact that this individual eventually

Signed the document.

I think I'll withdraw the

question because I don't think their vote

BY MR.

Q

A

carries any more weight than anybody else's.

THE COURT: No. I think in that respect

Mr. Tuerkheimer is right. It's an irrele-

vant matter. Okay.

LINEHAN :

Do you have a record in front of you that

gives you the date on which two Grand Jurors

were added to bring the Grand Jury to 23?

Not precisely. I know the first of the

eight dates that Mr. Tuerkheimer has indicated

the Raineri matter was considered--the two

additional Grand Jurors first appeared on

April 8th. But it's possible that there

was a Grand Jury meeting that did not con-

sider Raineri prior to that time where these

two people were added.

MR. LINEHAN: I guess at this point it

would be the appropriate point to determine

whether or not there is relevance in the

legal sense to determining what issues were

determined or were testified about on which

date, and who was presen* and who eventually

voted to indict with regard to those issues.

THE COURT: Okay. Before doing that

let me ask--you've made a sufficient inquiry,

Mr. Linehan, or Mr. Skupniewitz as to--at

least as far as you're concerned, on the

question of the number of the quorum?

MR. LINEHAN: I'm satisfied that based

on the testimony that there was at least

seventeen on each of these eight dates that

the Clerk has been provided with.

THE COURT: Okay. Let me first ask,

Mr. Tuerkheimer, do you have any questions

you wish to address to Mr. Skupniewit . with

respect to the quorum issue?

MR. TUERKHEIMER: On the quorum issue?

THE COURT: Or any of the questions

Mr. Linehan covered up to this point.

MR. TUERKHEIMER: Yeah, one or two.

CROSS EXAMINATION

BY MR. TUERKHEIMER:

Q Mr. Skupniewitz, you've eluded to eight

dates--

A Yes, sir.

Q --that kind of formed the focal point of your

examination of the records. Are those the

eight dates which are mentioned in the affi-

davit which you filed with this court on

October 6th, 1980?

A Yes, it is.

MR. TUERKHEIMER: All right. That's

all I have.

THE COURT: Okay. I think we ought to

deal now with the question of the legal

relevance of further inquiry with respect

to who was present at particular times.

* * *

THE COURT: Okay. Mr. Skupniewitz is

still present and let me ask him, if I can,

and still under oath, Mr. Skupniewitz, how

difficult would it be for you to provide the

information which Mr. Linehan is requesting?

THE WITNESS: I believe this chart is

the information and I can make copies in

minutes. This chart indicates for each of

the eight days which specific Grand Jurors

were present.

MR. LINEHAN: By numbers?

THE WITNESS: By numbers. So you can

follow through and see that on a particular

day all 23 were present. And so that day would

drop out of your consideration completely.

You would be able to take the

three Grand Jvrors that were not present on the

last day and disregard other days on which

they weren't present, they weren't present

to vote either.

You could do your job from this

duta.

R. LINEHAN: I would agree that I

probably could. I'm not looking for names.

THE COURT: Okay. That's right, which

wouldn't be revealed in any event.

* * *

THE COURT: Well, it seems to me it's

a simple enough matter to take care of. We

can simply have Mr. Skupniewitz retake the

witness stand and Mr. Linehan can ask you

about your knowledge as to the last trial in

Superior. Why don't we just simply accomplish

that.

Mr. Linehan.

REDIRECT EXAMINATION

BY MR. LINEHAN:

Q Mr. Skupniewitz, I believe you said this

earlier, but I forgot, how long have you

been ‘the Clerk of Court here?

Since October of 71.

Q And to the best of your recollection when

was the last time that there was a

Federal criminal case for the Western

District that was venued in Superior?

That was tried in Superior?

That's right.

I can be certain that there was none

within the last five years. That includes

the entire period of time since the

facilities there were relinquished by the

Federal courts back to the General Ser-

vices Administration.

Going back the ten years before

that, from say, 65 to 75, I do know

that there were one or more criminal trial:

at Superior. Whether they went all the

way to jury verdict or whether they

settled; but they were, as you used the

term “venued", they were scheduled to

take place at Superior.

I can't be more precise in that

ten year period, partly because of failure

of memory and partly because I was not

Clerk of Court during that entire period.

But I am aware of memory of a criminal

case or two having been tried at Superior.

I have a vague recollection that one of

them was before a visiting judge, and

that's about the extent of my memory on

that.

Do part of your duties involve the

sending or the supervision of sending of

subpoenaes to jurors for petit jurors?

Yes, sir.

During your tenure here--was it 72, did

you say?

71.

Since 1971 has your office ever sent sub-

poenaes for petit jurors to the individuals

in the Superior Division?

I can't be positive during the period

from say 71 to 75. I know we have not

Since that time summoned any jurors for

petit jury service at Superior.

If you know, as the Clerk, would this

mean that since 75 no jurors from the

Superior Division have served on jury

duty on civil or criminal cases in this

District?

MR. TUERKHEIMER: That's as

petit jurors?

THE WITNESS: As petit jurors,

that is correct.

MR. LINEHAN:

Mw

Do the Grand Jurors come from the entire

District?

Yes, they do.

Do you know of your own knowledge when

the current Jury Selection Plan was

implemented in this District?

The current Plan was implemented in

approximately January of 1972 and has

received two or three relatively minor

revisions since, none affecting location

of trial or where jurors are summoned

from.

Would the information or records in your

office indicate whether or not jurors

from the Superior Division have ever

received subpoenaes, if that's the

proper word, for petit juror service

since 727

Juror records are presently retained for

approximately five years. So going back

into the period of time prior to 75

there might not be records unrelated to

specific cases. And it would be a task

of memory of people that have been around

the court to try and remember specific

cases that were tried at Superior, obtain

those files and then verify that in fact

petit jurors were present for those cases.

MR. LINEHAN: That's all the

questions that I have.

4

THE COURT: Mr. Tuerkheimer,

do you have any questions?

MR. TUERKHEIMER: I just have

one or two.

RECROSS EXAMINATION

BY MR. TUERKHEIMER:

w

The decision to dismantle the courthouse

in Superior and to relinquish it to the

General Services Administration, who

makes that decision?

That decision was made by the Chief

Judge of the District.

All right. As far as you know does the

Justice Department or the Executive Branch

of Government have anything to do with

that decision?

No, they do not. And I'm trying to recall

if they were consulted for their advice

or views at the time we were considering,

the court were considering closing down

three of the four non-Madison locations.

I do not recall if the U. 8.

Attorney and/or the Marshal's Service

were specifically contacted as to their

views of the effect of closing down

specific locations.

MR. TUERKHEIMER: I don't

have any other questions.

MR. LINEHAN: I do have one or

two with regard to what was asked by

Mr. Tuerkheimer.

THE COURT: Okay.

REDIRECT EXAMINATION

BY MR. LINEHAN:

Q Were three of the four non-Madison locatic

closed down for trial purposes?

A The physical facilities at LaCrosse,

Wausau and Superior were all closed down

approximately four to five years ago.

Q Which is the non-Madison that wasn't

closed down then?

Eau Claire. We still have court

facilities at Eau Claire, Wisconsin.

If you know, does this mean as a prac-

tical matter that for these four or five

years jurors in the LaCrosse, Wausau and

Superior Division have not seen jury

service in thisDDistrict?

Petit jurors from those areas have not

since the facilities were closed, that

is correct.

And if you can answer this on your per-

sonal knowledge, would it be fair to say

that that's based on the terms and pro-

visions of the Plan for the selection of

Grand and petit jurors which is used

in this District?

We have had no trials at those locations

and, therefore, have summoned no jurors

for those locations.

MR. LINEHAN: And I'm only

asking, because I don't think the Plan is

a part of the record, is there any ob-

jection if we get a copy and make it a

part of the record? 7

MR. TUBRKHEIMER: No.

MR. LINEHAN: I think that's a

better way to do it. Then I don't have

to go into that.

I don't have any more questions.

THE COURT: Okay. Anything

further?

MR. TUERKHEIMER: No.

THE COURT: Thank you, Mr.

Skupniewitz.

* * *

(Whereupon, said testimony was concluded).

CERTIFICATE

I, Loretta Peters, Official Court Reporter

for the United States District Court in and

for the Western District of Wisconsin, hereby

certify that as such official reporter I was

present in said court, throughout its sessions,

held in the City of Madison, in said Western

District and State of Wisconsin, on Thursday,

October 16, 1980; that I then and there re-

ported by machine shorthand the proceedings

had on hearing then and there held in the

above-entitled criminal action; that I there-

after caused to be prepared, under my personal

direction, the foregoing typewritten trans-

script of said portion of proceedings from

my original stenographic notes thereof, so

taken at said time and place; that the

above and foregoing is a full, true and com-

plete transcript of the portion of proceedings

had upon said hearing at said time and place,

and is the official Giese Wat

/s/ Loretta Peters

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

UNITED STATES OF AMERICA,

Plaintiff,

v. ORDER

ALEX RAINERI, 80-CR-29

Defendant.

This order is designed to ensure com-

pliance with the time limits prescribed in

this court's plan for the prompt disposition

of criminal cases adopted in accordance with

the requirements of the Speedy Trial Act of

1974 (18 U.S.C. Sec. 3161-3174). To ensure

compliance with speedy trial requirements,

it is essential that the time limits set

forth in this order be fully complied with.

The defendant having appeared for

arraignment and having entered pleas of not

guilty.

IT IS HEREBY ORDERED:

1. That counsel and defendant appear on

July 12, 1980 at 1:30 p.m. for a pretrial conference

to be held in accordance with Rule 17.1 of the

Federal Rules of Criminal Procedure.

2. That no later than July 7, 1980, counsel

file and serve any and all pretrial motions including

motions for discovery if counsel have been unable

to agree on the material which is to be disclosed

by each side. If a discovery motion is filed, it

shall set forth that a conference was held between

a representative of the United States Attorney's

office and defense counsel, the name of the

persons involved in such conference, and the

specific material as to which agreement could

not be reached. If a motion to suppress is filed,

it shall be accompanied by an affidavit by a per-

son competent to testify to the facts therein,

setting forth with particularity the facts upon

which the motion is grounded. Briefs, affi-

davits, and other materials in support of any

and all pretiral motions must also be filed and

served on July 7, 1980.

3. That briefs, affidavits, and other mat-

erials in opposition to any and all pretrial

motions be served and filed no later than

July 18, 1980.

4. That reply briefs on behalf of any moving

party be served and filed no later than July 25,

1980.

5. A principal purpose of the pretrial con-

ference is to identify all motions and any other

matters that can be decided before trial. In the

event that there is need for an evidentiary hearing

or argument, a time will be fixed by the magistrate

for those further proceedings.

6. Trial in this case is to commence on

August 29, 1980.

7. The court will not extend the time set

by or pursuant to this order, absent a finding by

by the court that the ends of justice served by

such extension outweigh the best interest of

the public and the defendant in a speedy trial.

Entered this 23rd day of June, 1980.

/s/ William L. Gansner

WILLI L. NE

United States Magistrate