United States v. Panteleakis

        Thomas E. Wright, Asst. U.S. Atty. for District of R.I., Providence, R.I., for plaintiff.

        Joseph A. Kelly, John F. Dolan, John F. Sheehan, Providence, R. I., for defendants.

        MEMORANDUM AND ORDER

        PETTINE, Chief Judge.

        The defendants, Andrew Panteleakis, Guido R. Salvadore, Kent Nursing Home, Inc., Grandview Nursing Home, Inc., and Great American Nursing Centers, Inc. were indicted by the Grand Jury on twenty-one counts alleging fraud in the administration of the Federal Medicare Program as health care providers operating nursing homes.

        Defendants seek to be tried without a jury pursuant to Rule 23(a) Fed.R.Crim.P. but the government refuses to consent to the waiver.

        Rule 23(a) provides:

        However, it appears that the recited governmental consent is not an inflexible condition precedent to a trial before a judge alone. In Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965) the Court stated:

At the least it can be concluded that Singer suggests an exception to Rule 23 when "passion, prejudice or public feelings", would deny an accused a fair and impartial trial. There is a paucity of decisional law interpreting Singer. However, it seems to this Court that the very basic concepts of a criminal trial demand that judges engraft on this rule such exceptions as justice demands in the face of "compelling" circumstances, when a defendant for such reasons desires to waive his constitutional right to a jury and expose himself to the exacting scrutiny of a judge as trier of fact. To be sure courts must act with reserve and cautiously exercise their discretion in the light and circumstances of the particular facts before them. See United States v. Wright, 491 F.2d 942 (6th Cir. 1974).

        In United States v. Schipani, 44 F.R.D. 461 (E.D.N.Y.1968), a non-jury trial was ordered over the objection of the government. Although it is true the court was actually deciding whether to allow the government to withdraw its waiver to a jury trial in a second trial of the same case, nevertheless, the rationale would appear applicable to the present case. In denying the government's motion, the Schipani court noted that the case was being tried on a net worth theory, and that evidence necessary to prove the government's case would apprise the jury that the defendant had a lengthy prior criminal record and substantial links with organized crime. The court found a "substantial danger that the defendant will be severely prejudiced if he is tried before a jury"; and correspondingly that "no disinfecting admonition by the Court and no minor exclusions of evidence" would erase that substantial danger. Id. at 463.

         On the other hand, the mere fact that a case is complicated and might not be correctly understood by a jury is not, in and of itself, sufficient reason to circumvent a jury trial. United States v. Simon, 425 F.2d 796, n.1 (2nd Cir. 1969). This stricture is analogous to that imposed on appellate courts when considering assignment of error based on alleged jury instructions beyond the comprehension of the jury. "(A)ppellate courts should be slow to impute to juries the inability to correctly understand the totality of jury instructions, even in a (complicated case)." United States v. Smaldone, 485 F.2d 1333, 1349 (10th Cir. 1973). Certainly the government's refusal to waive its right to a jury trial is not unreasonable in every complicated case.

         Here, the defendants contend that they cannot obtain a fair and impartial jury trial for the following reasons:

In evaluating these reasons, which have not been disputed by the government, it can be seen there is something more to be considered than the mere question of whether or not this complicated case should be kept from a jury. Here there are multiple defendants and as the defendants argue, the trial will unquestionably involve intricate rulings on the admissibility or inadmissibility of evidence as it relates to each particular defendant. This is not a conspiracy case and each defendant is entitled to the full benefit of rulings on evidence relating to hearsay, admissions, etc. Many rulings

on the evidence presented in the course of a lengthy trial might be the subject matter of appeal in a jury trial which would not be so in a jury-waived trial.

        In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968), the Court stated:

The Court feels that this is the kind of case where "the practical and human limitations of (a) jury . . . cannot be ignored," because of the context within which the evidence must be presented. This case indeed presents that "other factor . . . render(ing) unlikely an impartial trial by jury". Singer, supra, at 38, 85 S.Ct. at 791. It is unrealistic to expect a jury to hear all the evidence over a three month period, weigh approximately 1,000 exhibits and then categorize everything as it pertains to each particular defendant to the exclusion of others against whom it is inadmissible without prejudice to all. The government has not attempted to rebut the inference that substantial prejudice is practically impossible to avoid under these circumstances. Nor has it moved for severance. Indeed, it has represented to this Court that the case is a patchwork of many pieces to be tied together to make up the whole. However, the separate rights of each defendant must be safeguarded. This Court is charged with protecting each defendants' right to a fair trial, free from prejudice. Fulfilling its duty in this regard must be the Court's overriding concern. For this reason alone, the Court finds the government's refusal to grant consent unreasonable and arbitrary, see 8A J. Moore, Federal Practice, paragraph 23.03(2) (1976), and feels compelled to grant the defendants' motion.

        A waiver as required by Rule 23, absent the government's consent, will be filed together with an order reflecting this ruling.

        So ordered.