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United States v. Alpern

decided: October 26, 1977.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
PHILLIP ALPERN, PAUL BAKER, JOHN MIERLAK AND AUBRA PETERS, DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 75 CR 509 - James B. Parsons, Judge.

Fairchild, Chief Circuit Judge, Sprecher and Bauer, Circuit Judges.

Author: Bauer

BAUER, Circuit Judge.

Following a jury trial, defendants-appellants were convicted of conspiring to bomb a tavern engaged in interstate commerce and of various substantive offenses committed in the course of the conspiracy. They seek reversal of their convictions on several grounds. Mierlak, who was convicted of unlawful possession of an explosive device and of conspiracy, claims that the district court erred in refusing his requests for a bench trial and a severance. In addition, he claims that prejudicial remarks made by the Government during closing argument tainted his conviction, and that the evidence was insufficient as a matter of law to prove his participation in the conspiracy charged. Peters, who was convicted of conspiracy and a number of substantive counts, claims that the district court erred in admitting a co-conspirator's declaration into evidence and in refusing to grant a mistrial following improper comment on his failure to testify at trial. Baker and Alpern, who likewise were convicted of conspiracy and various substantive counts, join Peters's mistrial claim. In addition, Baker attacks the sufficiency of the evidence against him and complains that he was forced to exhibit an arm tattoo to the jury in the course of trial. We find no merit to any of the defendants' contentions and affirm their convictions for the reasons noted below.

I.

We turn first to Mierlak's claim that the district court abused its discretion in denying his motion for a severance. In support of this claim Mierlak points to the fact that he was named in only two of the 13 counts charged by the Government, and that he was the only one of the five defendants without a prior criminal record. A former policeman, Mierlak fears that he was found guilty by association, particularly in view of the fact that the Government produced so little evidence against him. Moreover, he contends that the jury was prejudiced by a codefendant's efforts to orchestrate a witness's testimony in the course of trial and by testimony that the Government's principal witness feared for his life, presumably because of threats of retaliation made by certain defendants against him. On the whole, Mierlak says, he was denied a fair trial because of the district court's refusal to grant him a severance. We disagree.

It is well settled that a defendant is not entitled to severance simply because a separate trial would provide him with a better chance of acquittal. Rather, a severance is mandated only when a defendant otherwise will be denied a fair trial. That depends upon whether, in the circumstances of a particular case, it is within the jury's capacity to follow the court's limiting instructions to assess each defendant's guilt or innocence solely on the basis of the evidence admissible against him. United States v. Papia, 560 F.2d 827 (7th Cir. 1977). Because the necessity for a separate trial depends so much on the peculiarities of particular cases, district judges are afforded wide discretion in ruling on motions for severance. Accordingly, their rulings will not be overturned on appeal unless there has been a clear abuse of discretion.

We find no such abuse of discretion in the case at bar. Though Mierlak's chances of acquittal were not improved by standing trial with his codefendants, his claim that he was denied a fair trial is wholly speculative. Indeed, the very fact that one of Mierlak's codefendants with a prior criminal record of his own was acquitted suggests that the jury was quite capable of assessing each defendant's case solely on the basis of the evidence admitted against him, notwithstanding the impact of the events to which Mierlak points as supporting his claim of prejudice. We find no more reason to assume the jury violated its clear instructions to give separate consideration to each defendant here than we did in United States v. Papia, supra, slip op. at 11-12.

Mierlak's assignment of error in the district court's refusal to grant him a bench trial rests upon the supposition that he could not obtain a fair trial from a jury infected by the prior criminal records and overwhelming evidence introduced against his codefendants. He acknowledges that, under Rule 23(a) of the Federal Rules of Criminal Procedure, he was not entitled to a bench trial over the Government's objection. Nevertheless, he points to Singer v. United States, 380 U.S. 24, 37-38, 13 L. Ed. 2d 630, 85 S. Ct. 783 (1965), as acknowledging the possibility that, in an exceptional case, the defendant's reasons for wanting a bench trial may be so compelling as to entitle him to one even over the Government's objection. According to Mierlak, this case, like the case hypothesized in the Singer dicta, is one in which an impartial trial by jury was impossible because of passions and prejudices stirred by his codefendants' prior records and the evidence introduced against them at trial.

We do not agree. As we noted above, nothing of record exists that causes us to doubt the jury's ability to give Mierlak a fair trial. Mierlak was tried by the same jury that acquitted one of his codefendants of the same charge, and we refuse to assume that the jury was so inflamed by passion and prejudice as to be unable to separate the guilty from the innocent. In view of the Government's objection to Mierlak's request for a bench trial, we do not believe the district court erred in refusing Mierlak's request.

We turn next to the question of whether the evidence was insufficient as a matter of law to support the conviction. In support of this claim Mierlak presents to us essentially the same arguments that he urged upon the jury in his closing statement. The jury found them unpersuasive, and we do likewise. Suffice it to say that, cognizant of our duty to scrutinize the sufficiency of the evidence linking Mierlak to the conspiracy charged, United States v. Buschman, 527 F.2d 1082, 1084-85 (7th Cir. 1976), we believe that, when the evidence is viewed in the light most favorable to the Government together with all reasonable inferences that may be drawn therefrom, Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942), we must conclude that it was sufficient as a matter of law for a reasonable jury to have found beyond a reasonable doubt that Mierlak knew of the object of the conspiracy and agreed to aid, abet and facilitate its achievement. That is the essence of the crime of conspiracy, and the fact that Mierlak's actual contribution to the illegal undertaking was peripheral, relative to that of his codefendants, is of no aid to him here.

Finally, Mierlak contends that prejudicial comments made during the Government's closing argument to the jury denied him a fair trial. First, Mierlak points to the statement of the Assistant United States Attorney that "What this amounts to, I submit, is a fabricated defense." According to Mierlak, this comment amounted to an improper statement of personal opinion regarding the defendant's veracity and guilt. Harris v. United States, 131 U.S. App. D.C. 105, 402 F.2d 656 (1968). Next, Mierlak complains that the prosecutor suggested to the jury that one of the other defendants had talked to each of the witnesses in an attempt to manipulate their testimony. Additionally, he complains that the Government argued facts not in evidence by stating that Mierlak's prints were all over the tape of his conversation with a co-conspirator used against Mierlak at trial. Finally, Mierlak complains that the prosecutor made reference to his oath of office before the jury in an improper effort to bolster the credibility of his case and his final argument. Mierlak contends that the total effect of the prosecutor's improper final argument was so prejudicial that a new trial is required. We disagree.

As to Mierlak's complaint regarding the prosecution's reference to a "fabricated defense," we believe that the comment could not have prejudiced Mierlak, for the reference was clearly directed to another defendant. Viewed in its context, the remark did not constitute and could not have been construed by the jury as an expression of the prosecutor's personal opinion regarding Mierlak's veracity or credibility. Similarly, the prosecutor's oblique reference to another defendant's attempts to manipulate the testimony of various witnesses could not have prejudiced Mierlak for the simple reason that the remark was not directed at any of his actions. Thus, notwithstanding the possible impropriety of these remarks, they give us no cause to reverse Mierlak's conviction.

Unlike Mierlak, we find nothing objectionable in the prosecution's statement that Mierlak's fingerprints were all over the tape of his incriminating conversation with a government witness. To be sure, the statement was literally untrue, for Mierlak never had any contact with the actual tape of his conversation. The jury, however, could not have failed to recognize that the prosecutor's reference to Mierlak's fingerprints being on the tapes was simply a metaphor designed to counter Mierlak's closing argument, which stressed the fact that his fingerprints were never found on the explosive device that he allegedly provided his codefendants. All the prosecutor meant was that the incriminating admissions made by Mierlak were even more convincing evidence of his guilt than any fingerprints would have been. We believe it was apparent to the jury that the prosecutor's statement was simply a metaphor and not an invitation to convict Mierlak on the basis of facts not in evidence. Indeed, if that was not ...


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