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United States v. Thomas

October 4, 1985


Appeals from the United States District Court for the Central District of Illinois, Peoria Division. No. 83 CR 10031 - Michael M. Mihm, Judge.

Author: Campbell

Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and CAMPBELL, Senior District Judge.*fn*

CAMPBELL, Senior District Judge. Codefendants Jerry Troutman and Donald R. Thomas bring this consolidated appeal from their convictions arising from an elaborate bank loan financing scheme. Troutman was convicted on two counts of wire fraud (in violation of 18 U.S.C. 1343), a single count of using a fictitious name to perpetrate the scheme (18 U.S.C. 1342) and one count of conspiracy to embezzle (18 U.S.C. 371). Thomas was convicted on the conspiracy to embezzle count. Both defendants appeal their convictions for a number of reasons. We affirm the convictions.

Both defendants allege the admission of the testimony of a third codefendant, Steven Freel, after he had negotiated a plea agreement nine days into the sixteen-day trial, constituted reversible error.*fn1 The defendants claim error was committed here for three reasons. First, they argue Freel had participated in the pre-trial defense planning with them as a defendant and was therefore aware of privileged conversations and strategies. Second, they argue Freel's testimony violated Federal Rule of Evidence 615, the witness exclusion rule, because he had heard the other witnesses testify during the first nine days of the trial when he was still a defendant. Hence Freel could mold his testimony to stand consistent with other government witnesses. The third reason the defendants believe Freel's and the other codefendant's testimony is cause for reversal is more general: simply that the prejudicial impact upon the jury of testimony of a defendant-turned-government witness "cannot be overstated." (See Thomas brief p.27.

Taking the last argument first, it is well-recognized that the testimony of codefendants after negotiating a mid-trial plea bargain is admissible in certain instances for limited purposes. This is true even if the testimony addresses the plea bargain itself. See U.S. v. Bryza, 522 F.2d 414, 425 (7th Cir. 1975); U.S. v. Romeros, 600 F.2d 1104, 1105 (5th Cir. 1975); U.S. v. Halbert, 640 F.2d 1104 (9th Cir. 1981). Defendants fail to cite a significant line of case law that rules otherwise. At the appellate level, an examination of the lower court's cautionary instructions concerning the use of the testimony and the evidence of the guilty plea is the key to determining whether a constitutional violation occurred. This is because the testimony is admissible for limited purposes.

Defendants in the case sub judice never allege how the district judge's cautionary instruction was lacking. Instead the defendants resort to broad statements that the codefendants' testimony was somehow manifestly prejudicial. Yet no specifics as to how they were prejudiced from Freel's or the other codefendant's testimony is advanced. Only the event of Freel and the others testifying is advanced as grounds for reversal. This is insufficient according to the current legal criteria. The only recent legal authority relied upon by the defendants for support is Bisaccia v. Attorney General of the State of New Jersey, 623 F.2d 307 (3rd Cir. 1980). The case is easily distinguishable. In Bisaccia the admission of a codefendant's guilty plea was considered reversible error because the trial judge failed to give any cautionary instructions to the jury about the use of the testimony. In the case sub judice the district court gave a cautionary instruction and defendants never argue how it was deficient. Hence Bisaccia cannot be used for reversal in our case.

Defendants also fail to specifically allege how they were prejudiced by Freel's participation in their pretrial strategy conferences with counsel. There is no evidence any confidences from these sessions were revealed by Freel on the witness stand or that his testimony was formulated with any pretrial strategies of the defendants taken into account. As for Freel's apparent violation of Federal Rule of Evidence 615, the witness exclusion rule, the case law surrounding Federal Rule of Evidence 615 reveals that absent any indication Freel's presence in the courtroom was the product of government connivance (or in some way a willful violation of the rule) it is within the district court's sound discretion to allow the witness to testify. See U.S. v. Schaefer, 299 F.2d 625, 630-31 (7th Cir. 1962); Hollstein v. Grier, 262 S.W.2d 954 (1953). We see no abuse of discretion by the district court here. There is no evidence of a willful or strategic violation of Federal Rule of Evidence 615 by the prosecution or Freel. Nor is there evidence Freel's presence throughout the trial prejudiced the defendants. We not Freel's testimony appears limited to one of many financial transactions surrounding the case which were already documented. We find no reason for reversal.

Defendant Thomas argues his speedy trial rights were violated, requiring reversal. (Defendant Troutman adopts this argument in a footnote in his brief, but has nothing to add to Thomas' argument.) The Speedy Trial Act, 18 U.S.C. 3161, et seq., requires a defendant to be tried within seventy days from either the date the information or indictment was filed, or from the date upon which the defendant appeared before a judicial officer of the court in which the charge is pending, whichever date occurs last. In this case Thomas' arraignment on August 8, 1983 triggered the speedy trial clock. On September 12, thirty-five days later, a codefendant named Stoller filed a motion for a continuance. The court granted the continuance and saw fit to set a trial date for November 10, well beyond the seventy-day speedy trial deadline.

The court's main reason for granting the continuance far beyond the seventy-day speed trial time table was that the case was complex. In a written order explaining its actions, the district court observed the case involved six defendants and thousands of financial documents which had been secured through discovery. The district court concluded the defendants' request for more time to prepare a defense was reasonable.

Such a decision is well within the sound discretion of the district court.

"The need for further preparation in a complex case and the likelihood that failure to grant a continuance would . . . result in a 'miscarriage of justice' . . . would justify an ends-of justice continuance. 18 U.S.C. ยงยง 3161(h) (8) (B) (i), (ii) . . ." U.S. v. Wiehoff, 748 F.2d 1158, 1159 (7th Cir. 1984).

We believe the written order of the district court sufficiently articulated legitimate reasons for granting the continuance and was well within the necessary guidelines found at 18 U.S.C. 3161(h) (8) (A) and (B). We see no abuse of discretion here.

Thomas' reliance on U.S. v. Perez-Reveles, 715 F.2d 1348 (9th Cir. 1983) is misguided. In Perez-Reveles the Circuit Court reversed the district court becuase [sic] the lower court's rulings did not include explicit findings required by the Speedy Trial Act as to why the continuance was granted. The district court even failed to characterize the continuance as an "interest of justice continuance." The court labeled the case complex, yet gave no reason why it was. In the case sub judice the district court stated in a written order that the case was complex because it contained numerous defendants and thousands of financial documents. The court also explicitly mentioned it was granting an "ends of justice" continuance. Such an explanation, contained in a written order, sufficiently separates the case at bar from Perez-Reveles. A final case advanced by Thomas, U.S. v. Carrasquillo, 667 F.2d 382 (3rd Cir. 1981) is also distinguishable. In that case no formal continuance was ever granted by the district court. Instead, the trial date was set beyond the speedy trial time limit by a deputy clerk at the request of defendant's attorney. Hence, judging whether the reason for the continuance in the case at bar was legally sufficient cannot be deduced by referring to Carrasquillo.

Thomas claims he did not have notice his codefendants were moving for a continuance and had no input into the motions. Yet Thomas was sent a court order of the granting of the continuance. Approximately one week later he appeared before the court and failed to assert any claim the continuance violated his speedy trial rights. Two weeks after that, he moved to dismiss his ...

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