In sum, as evidence of the Aleman and Colella fixes would be admissible in a trial with Roti as the sole defendant, the introduction of such evidence prior to Marcy's leave does not warrant a mistrial on Roti's behalf.
B. References to Organized Crime
Roti's second ground for mistrial is his claim that he has been prejudiced by evidence of Marcy's connection to organized crime injected into the trial to date. Specifically, Roti contends that had he stood trial alone from the outset, such references to organized crime would not have surfaced at trial. Roti is mistaken. To be sure, this very matter has been the subject of at least two motions previously filed by Roti. As this court stated in an opinion dated March 19, 1992, the relevance of such references rests "not as inflammatory language to bandy about in front of the jury, but as explanations of behavior and motivation. United States v. Marcy, No. 90 CR 1045, slip op. at 9 (N.D. Ill. Mar. 19, 1992). For instance, "Cooley's fear of being caught by Marcy or other organized crime figures wearing a recording device, the government will contend, explains the absence of some taped evidence," including evidence relating to the Chow fix. Id. That Marcy is no longer on trial does not alter the rationale for the admissibility of Marcy's connection to organized crime.
C. The Use of Preemptory Challenges
In support of mistrial, Roti also asserts that, because this court requires defendants in multiple-defendant cases to pool preemptory challenges, the jury as selected does not represent the "tribunal" that he would have garnered had he been tried alone from the outset. Specifically, Roti claims that he sought to seat venire-person James Brannigan only to be overruled by the Marcy faction. In the end, Roti has no right to be tried by a jury of persons solely of his own choosing. In the absence of an offer of facts tending to show that "'the jury as finally selected was other than representative and impartial,'" Roti's motion for mistrial cannot be sustained on this ground. United States v. Sandoval, 847 F.2d 179, 184 (5th Cir. 1988) (denying mistrial based on allegations that a codefendant who plead guilty in the middle of the trial exercised preemptory challenges in a manner that the remaining defendants would not have used) (quoting United States v. Hooper, 575 F.2d 496, 498 (5th Cir.), cert. denied, 439 U.S. 895, 99 S. Ct. 256, 58 L. Ed. 2d 242 (1978)); see also United States v. Daniele, 886 F.2d 1046, 1055 (8th Cir. 1989) (same).
D. Roti's Theory of Defense
Roti maintains that he is entitled to a mistrial because "had [he] known that he would be facing trial alone, he would have advanced a different defense, made a different opening statement and foregone the concessions associated with a joint trial." Motion for Mistrial at 6. We disagree. Roti is, and has always been, free to present any substantial theory of defense that either he or his attorneys could devise. The opportunity to "point the finger" at Marcy was available prior to the grant of Marcy's mistrial.
To the extent that Roti wished to avail himself of such an antagonistic defense, he should have raised the issue in a pretrial motion for severance or misjoinder. That Roti did not raise the matter prior to trial precludes him from asserting that the lack of such an opportunity now affords him the right to a mistrial, a disingenuous assertion at best.
E. Government's Failure to Prove Facts
Roti's final argument in furtherance of his motion for mistrial is premised upon the assumption that the government will not be able to prove numerous prejudicial facts asserted in its opening statement. See United States v. Novak, 918 F.2d 107, 111 (10th Cir. 1990) (trial court should have granted a mistrial where government acting in bad faith failed to prove facts asserted in opening argument). Roti's contention fails for two separate reasons. First, the prejudicial facts that Roti assumes the government will not be able to prove presumably revolves around the Aleman and Colella fixes. Specifically, it appears that Roti assumed the evidence would be stricken as irrelevant to his trial and, as such, the government would be left with no substantive evidence regarding the statements detailing these fixes in its opening argument. Such evidence, however, will not be stricken as irrelevant and, hence, we cannot determine with any degree of certainty that the government is destined to fail to introduce facts at trial to support the statements made during its opening argument. Second, Roti neglects to mention that the court in Novak regarded the prosecutor's bad faith as essential to the grant of a mistrial in instances where the government fails to present evidence at trial in support of the statements in its opening argument. See Novak, 918 F.2d at 109-10. Roti makes no such allegation of bad faith, nor can we discern such based on the government's conduct to date. Consequently, Roti's motion for mistrial cannot be sustained on the ground that the government will not be able to support at trial the statements made in its opening argument.
For the reasons explained above, Roti's motion for mistrial is denied. It is so ordered.
MARVIN E. ASPEN
United States District Judge