Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 CR 579 -- Nicholas J. Bua, Judge.
Harlington Wood, Jr., Richard A. Posner, and John L. Coffey, Circuit Judges.
Defendants Veronica Joyner and Timothy Turk were charged in a twenty-three count indictment for embezzlement, false statements, and wire fraud under 18 U.S.C. §§ 2, 641, 1001, 1014, and 1343. Joyner was also indicted for making a false statement to an FBI agent. Alter a ten-day trial the jury convicted them on almost every count. Joyner and Turk now seek to set aside their convictions because, they argue, the court improperly denied motions for severance and continuance, the prosecution made improper statements in the closing argument, and a witness made a prejudicial comment while testifying. We reject the defendants' arguments and affirm the conviction.
Veronica Joyner and Timothy Turk operated various small companies including TVJ Associates which did business as Almega International and specialized in export-import transactions. In the fall of 1982, the defendants read about a new Small Business Administration (SBA) program that guaranteed loans of revolving lines of credit from private banks to small businesses involved in exporting American products to foreign countries. The defendants contacted Sears Bank in Chicago to obtain financing guaranteed by the SBA for the sale of corn to the Greek government. They applied for a loan and in the process represented to Sears Bank and the SBA that they had structured a deal in which they would buy corn in Iowa, ship it through New Orleans, and sell it to the Greek government. Sears Bank and the SBA approved the loan; Joyner signed the loan authorization. In May 1983, Sears Bank backed out of the agreement but forwarded the loan application to the Michigan Avenue National Bank (MANB). MANB granted the loan and the SBA guaranteed it.
The defendants received $500,000 in twelve installments over the next four years. During that time the defendants represented to MANB that they were using the loan to finance the Greek transaction, presented fake documents to MANB to prove that the Greek transaction was being carried out, and established a dummy grain supply company to mislead MANB into believing that they had purchased corn to export to Greece. In fact, the defendants had not bought corn or sold it to the Greek government. In addition to making misrepresentations to the banks and the SBA, Joyner told an FBI agent that TVJ Associates had used part of the loan to post a performance bond in connection with the Greek deal when it had not.
The defendants also sought funding for their business through another government program. The defendants hired disadvantaged individuals through the Chicago Alliance of Business Employment and Training (CABET), a non-profit company funded by the federal government. CABET promised to reimburse TVJ Associates for salaries paid to these employees. Apparently TVJ Associates did not always pay its employees, although it sought and obtained reimbursement from CABET.
Alter indictment for these activities, Joyner's court-appointed attorney filed a pretrial motion for severance and a separate trial, arguing that the codefendants' positions were mutually antagonistic. The trial court denied the motion. On November 17, 1987, Joyner's attorney moved to withdraw as counsel upon Joyner's request and the court appointed new counsel. Joyner's new counsel stated that he would be prepared for trial on December 3.
On December 1, 1987, the morning of trial, the district court stated that it had received a letter from Joyner requesting a continuance to obtain private counsel or, in the alternative, to represent herself pro se. Joyner's second attorney then orally moved for a continuance in order that he could withdraw because of Joyner's apparent displeasure with his representation. The district judge denied the continuance because the letter was received the day before trial and Joyner had, in his view, a good attorney appointed to represent her.
The case went to trial that day. Joyner was convicted on all counts while Turk was convicted on all counts except one. Both were sentenced to five years in prison and five years probation conditioned on their obtaining psychiatric treatment and making restitution. Joyner and Turk appeal.
Joyner challenges three aspects of the trial. She claims that the district court abused its discretion in denying her motion for severance. She also argues that the district court abused its discretion in rejecting her motion for a continuance on the morning of the trial. Finally, she claims that the government's rebuttal argument prejudiced her counsel by claiming that counsel must be "kidding" in presenting her defense. Turk joins the challenge to the "kidding" reference and also demands a new trial because the prosecution permitted a witness to ...