Appeal from the United States District Court for the Western District of Wisconsin. No. 80 CR 29, Barbara J. Crabb, Judge.
Before Cummings, Chief Judge, Fairchild, Senior Circuit Judge, and Pell, Circuit Judge.
After hearing the testimony and deliberating upon the evidence, a jury at Madison, Wisconsin, found the 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 interstate commerce to promote a Hurley, Wisconsin, business enterprise involving illegal prostitution.*fn1 The fourth count charged that he had knowingly made false and material declarations before a federal grand jury.*fn2 The fifth charged that the defendant had endeavored to obstruct the administration of justice by having a prospective grand jury witness threatened in connection with her prospective testimony.*fn3
The evidence showed the defendant's extensive involvement in operating the Showbar, a Hurley, Wisconsin, business enterprise involving prostitution. It also showed that certain checks issued in promoting that enterprise and some linen used on the beds where the prostitutes worked had crossed state lines. Trial evidence 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 Gasbarri 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 Showbar, he told Colossaco's brother to tell her to quit telling lies about the defendant, to keep her mouth shut, and if 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.
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 defendant resulting from trial at either of those locations. The district court denied reconsideration. United States v. Raineri, 521 F. Supp. 30, 32, 33 (W.D.Wis.1980).
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 discretion. The magistrate concluded, for reasons set forth in his decision, that trial at either of the requested locations would result in greater inconvenience to defendant and the witnesses. Moreover Rule 18 requires due regard 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 witnesses 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 approximately 100 miles west of Hurley, has been dismantled. The volume of cases in the Western District of Wisconsin and the limited personnel, facilities, and other resources available for dealing with this work have resulted in an increased centralization of judicial activity at the district's largest population and litigation center, Madison, where both the only district judge in regular active service at the time of trial and the district'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.*fn4
Defendant 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 residing 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 defendant predicates his challenge may be described as follows:
There are five statutory places for holding court within the district: Eau Claire, La Crosse, Madison, Superior, and Wausau. 28 U.S.C. § 130(b). In years past, the bulk of activity was at Madison, but jury trials were held to some extent at the other places. When the district court adopted its Jury Selection Plan 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(e)(2). Although grand jurors are selected from throughout the district, petit jurors are selected from the "division" in which the place of trial is located. As time went by the caseload for the district (with only one judgeship authorized until 1978) increased so as to become one of the highest per-judge caseloads in the nation. 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 the policy stated in § 1861 "that all citizens shall have the opportunity to be considered for service on ... petit juries ...." Section 1863(a) requires that a district Plan "shall be designed to achieve the objectives" of § 1861. Defendant plausibly asserts that currently, at least, residents of the La Crosse, Superior, and 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 away from compliance because of changed circumstances.
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. Congress prescribed a motion to stay proceedings as the exclusive means by which an accused may challenge a petit jury on the ground that it was not selected in conformity with the Act. 28 U.S.C. § 1867(a), (d), and (e).
Defendant did move to dismiss the indictment on the statutory ground just described, also asserting a constitutional 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, 33, 36-38. A motion to dismiss the indictment is included in § 1867(a) and (e) as one of the exclusive remedies for challenging a jury not selected in conformity with the Act.
The text of § 1867(d)*fn5 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 for noncompliance in the selection of a petit jury is a stay pending the selection of a petit jury in conformity with the Act. We conclude, therefore, that the exclusive procedure for a challenge to the selection of petit jurors is a motion for stay of proceedings.
The magistrate concluded that although petit jurors are "routinely" selected in only two divisions, the possibility that trials might be held at some time in the La Crosse, Superior, or Wausau divisions keeps the district's Jury Selection Plan in compliance with the Act. Apparently the district court agreed. In addition there may be some question whether Congress intended that a litigant 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, interests of citizens in an opportunity to be considered for service rather than the more traditional interests of litigants in the jury selection process.
Because defendant did not resort to the exclusive remedy provided, we do not reach either of these questions.
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 begin within seventy days of the arraignment; 18 U.S.C. § 3161(c)(1); but excluded from the seventy days certain periods of delay. 18 U.S.C. § 3161(h). One provision excludes the delay between the filing and the prompt disposition of any pretrial motion. 18 U.S.C. § 3161(h)(1)(F). Another excludes "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court." 18 U.S.C. § 3161(h)(1)(J). The defendant filed twelve motions on June 23 and 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 responded 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 affidavit in opposition to the defendant's pretrial motions. This affidavit responded in part to the defendant's July 25 motion. Thus, the period from 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(h)(1)(F).
The magistrate had some of these motions under advisement 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(h)(1)(F) & (J).*fn6 United States v. Regilio, 669 F.2d 1169, 1172 (7th Cir. 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 Speedy 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 prompt determination of that motion and are excluded. 18 U.S.C. § 3161(h)(1)(F) & (J). Thus, by November 10, for purposes of the Speedy Trial Act, forty-one days had elapsed. Under these circumstances, 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 requires a different result. That order provided that trial commence on August 29. The order also provided that the magistrate would not extend the time set by the order, absent a finding that the ends of justice served by an extension outweighed the best interest of the public and the defendant in a speedy trial. On July 29, the trial date was cancelled, but the finding described above was not expressly made. This cancellation is entirely understandable, coming as it did, shortly after the defendant filed a late motion and a separate late affidavit in support of his earlier motions. On August 29, the original 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. § 3161(h)(8) (A). The inclusion of this language in the order did not bind the court to a standard more rigid than the statute.
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 interstate facilities to promote a prostitution enterprise). Rule 8(a) authorizes joinder where "offenses ... are based on ... two or more acts or transactions connected together 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 purpose of escaping prosecution. In determining whether the connection is sufficient for the purpose of Rule 8(a) "the court should be guided by the extent of evidentiary overlap." United States v. Zouras, 497 F.2d 1115, 1122 (7th Cir. 1974). Proof of the Travel Act counts tended to show motive for the charged perjury and threat, and proof of the perjury and threat tended to show defendant's awareness of guilt of the Travel Act counts. Specifically, significant testimony in establishing defendant's involvement in the prostitution enterprise came from the witness who was threatened, and the perjury tended to persuade the grand jury that defendant's relationship with Ms. Gasbarri 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 8(a) was fulfilled.
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 request for relief from prejudicial joinder and ordered trial of Counts I, II, and III separately from Counts IV and V. We may reverse a denial of Rule 14 relief only if the trial court has abused its discretion or committed plain error affecting substantive rights. United States v. Kopel, 552 F.2d 1265, 1272 (7th Cir.), cert. denied, 434 U.S. 970, 98 S. Ct. 520, 54 L. Ed. 2d 459 (1977). Such a reversal would entail finding "that the facts and law presented to the trial judge 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, 88 S. Ct. 592, 19 L. Ed. 2d 661 (1967). See also United States v. Pacente, 503 F.2d 543, 546 (7th Cir.), cert. denied, 419 U.S. 1048, 95 S. Ct. 623, 42 L. Ed. 2d 642 (1974).
The defendant alleges that credibility was the main issue in this trial and that the jury failed to fully credit his denials of promoting an illegal prostitution enterprise because he was charged with perjury and obstruction of justice and because the prosecution's opening argument posited that the defendant's involvement in the illegal enterprise furnished the motive for his perjury and obstruction of justice. We are not persuaded that the joinder of charges which, if proved, might damage his credibility, deprived him of a fair trial, nor that the district court abused its discretion.
E. Psychiatric Examination
The defendant claims that the court committed reversible error by its denial of his request to compel a psychiatric examination of Gasbarri. 91 F.R.D. 159. The district court has broad discretion in determining whether to compel a witness to undergo a psychiatric 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, 92 S. Ct. 669, 30 L. Ed. 2d 673 (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 infringement on a witness's privacy, the 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, 156 U.S. App. D.C. 356, 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 arraignment and cited in his brief. We have also examined the magistrate's report on the motion. We note that on the crucial issues Gasbarri's testimony was corroborated by other witnesses or by documents. We are not persuaded that there was any abuse of discretion.