Appeal from the United States District Court for the Eastern District of Wisconsin. No. 80 CR 146 -- Robert W. Warren, Judge.
Wood and Posner, Circuit Judges, and Dumbauld,*fn* Senior District Judge.
DUMBAULD, Senior District Judge.
After a jury was selected and sworn, defendant and the prosecution negotiated a four-page handwritten stipulation or "agreement of the parties with respect to the disposition of the above-captioned matter." This agreement provided that "plaintiff and DeMichael have entered into a [sixteen-page typed] stipulation of facts and expected testimony which the Court may consider in determining the defendant's guilt or innocence on Count 1 of the superceding [ sic ] indictment in this case." Defendant DeMichael signed both stipulations and in open court confirmed and agreed to the four page handwritten stipulation filed on his behalf by his counsel Waring R. Fincke. (Tr. 85-86).
It should be noted that the agreement made by defendant DeMichael envisaged "disposition" of the case. That was to be accomplished by a determination by the Court regarding "the defendant's guilt or innocence on Count 1" and in making such determination the Court was to "consider" the "stipulation of facts and expected testimony" contained in the 16-page typed stipulation.
The reason the Government agreed to disposition of the case in this matter was its desire to obtain restitution for the victim of the fraud. This relief was not obtainable through a conventional jury trial but required voluntary action by the defendants. The Court co-operated by agreeing to postpone the date of sentencing in order to give defendants time to raise the money. The agreement anticipated conviction by the Court in a non-jury trial; in fact the State of Wisconsin's agreement to refrain from further prosecution was conditioned upon a conviction at the trial level, either by jury trial or non-jury trial. In the event of a reversal on appeal, Wisconsin would accept that outcome and observe the agreement not to prosecute further. But in the event of acquittal at the trial level the State would be free to take further action.
All parties agreed that the contentions raised in defendant's pre-trial motions (and post-trial motions if needful under the rules to preserve the points on the record) were preserved for consideration by the Appellate Court. This, indeed, was DeMichael's chief concern and principal defense. The stipulated facts sufficed to establish his guilt of the home improvement fraud with which he was charged; his reliance was on the defense of "vindictive prosecution" and violation of a prior plea agreement and double jeopardy.
Since the jury had been sworn in the case at bar, the Court insisted upon elimination of the double jeopardy issue with respect to the instant proceeding; and also insisted, since the jury could not be held in abeyance indefinitely, upon prompt disposition of the case either by stipulation or by jury trial.
Accordingly, after the stipulations had been filed, the Court discharged the jury, and after a recess to review the evidence, proceeded in a non-jury trial to "adjudge Defendant, Carl DeMichael, guilty as charged in Count 1 of the indictment."
From the foregoing summary gleaned from the transcript, it seems clear that the defendant knowingly and intentionally waived his right to jury trial. The contention in this Court to the contrary is an obvious afterthought. He sat through and took part in steps specifically designed to eliminate the impending jury trial, and empower the Court to dispose of the case on the basis of stipulated facts, preserving for appellate review the defenses upon which he really relied. Cf. U.S. v. Kopel, 552 F.2d 1265, 1274 (7th Cir. 1977).
DeMichael had been involved in prior State and federal prosecutions for home improvement frauds, and had discussed the case at bar thoroughly with able counsel. On July 25, 1980, as his brief shows, he entered a plea to five counts in a federal prosecution in the Northern District of Illinois at No. 80 CR 285. To postulate his ignorance of the nature of his rights with respect to jury trial would require a wild flight of imagination. There is no basis for finding any harmful error injurious to DeMichael.
It is true that we feel misgivings in the departure from the normal practice of requiring that jury trial be waived "in writing with the approval of the court and the consent of the government" in accordance with FRCrP 23(a). In substance and fact, however, there was a waiver in writing, signed by the defendant, and approved by the Court and the Government. It would be adhering to form over substance, in view of the circumstances of the case at bar, to insist upon an additional separate piece of paper and further colloquy.
We think it proper to emphasize, however, that the proper practice, which should uniformly be observed in the absence of unusual circumstances, is as stated in U.S. v. Scott, 583 F.2d 362, 364 (7th Cir. 1978).
We turn now to DeMichael's real arguments as developed in the pre-trial motions which were preserved for appellate review. The first point is "vindictive prosecution." This contention merely asserts that the instant prosecution in Wisconsin is precluded because it was instituted after two State prosecutions in Wisconsin (apparently relating to robbery of an apartment, see 91 Wis. 2d 847 and 96 Wis. 2d 232) had been dismissed, and the orders of dismissal later reversed by the Wisconsin Supreme ...