In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3535

United States of America,

Plaintiff-Appellee,

v.

Wieslaw Mietus,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 386--George M. Marovich, Judge.


Argued October 25, 2000--Decided January 22, 2001



      Before Coffey, Diane P. Wood, and Williams, Circuit
Judges.

      Diane P. Wood, Circuit Judge. Wieslaw Mietus was
tried along with two co-defendants on one count
of conspiracy to distribute marijuana, in
violation of 21 U.S.C. sec. 846, and one count of
possession with intent to distribute marijuana,
in violation of 21 U.S.C. sec. 841(a)(1). The
jury found the two co-defendants not guilty on
the substantive count and failed to reach a
verdict as to either of the co-defendants on the
conspiracy count. Mietus was not so lucky; it
convicted him on both counts, and the court
sentenced him to 151 months imprisonment followed
by 5 years of supervised release. In this appeal,
Mietus challenges his conviction on various
grounds and, in the alternative, requests that
the case be remanded for resentencing in light of
the U.S. Supreme Court’s decision in Apprendi v.
New Jersey, 120 S. Ct. 2348 (2000). For the
reasons that follow, we affirm both the
conviction and the sentence.

I

      On May 24, 1998, Krystian Gut was driving a
tractor-trailer owned by Mietus from El Paso to
Chicago when he was stopped at a border control
checkpoint in Alamogordo, New Mexico, about 90
miles north of El Paso. He gave the border agents
permission to search the trailer, and they found,
along with a load of cantaloupes, 33 boxes
containing approximately 2,300 pounds of
marijuana. Caught red-handed, Gut agreed to
cooperate with the government and to deliver the
truck to Chicago as planned. On the way to
Chicago, Gut made several recorded calls to
Mietus, during which Gut reported that the
truck’s refrigeration unit was broken and also
told Mietus that he was carrying "2300 pounds" of
something. Gut met Mietus and Andy Chrobak, one
of Mietus’s co-defendants at trial, at a truck
stop; from there, Mietus and Chrobak drove the
truck to a small truck-repair garage. Mietus had
asked the third defendant, Janusz Szarflarski, to
meet them at the garage. According to Mietus, he
was concerned that the refrigeration problem
would allow the cantaloupes to spoil, and he
wanted Szarflarski and Chrobak to help him fix
the problem.

      When they arrived at the garage at about 9 p.m.
on Memorial Day, Mietus asked Szarflarski and
Chrobak to help him "arrange" the small boxes
that were wedged between the cantaloupe boxes.
The three men spent about an hour unloading the
boxes of marijuana; none of the cantaloupe boxes
was moved, although some may have been trampled.
At that point, Mietus went outside, where waiting
DEA agents arrested him. The agents then entered
the garage and found Szarflarski and Chrobak
still busily unloading the boxes. The agents
detected a strong odor of marijuana in the
warehouse and noticed that one of the marijuana
boxes that had been unloaded was broken, spilling
some bundles of marijuana onto the floor of the
warehouse. The doors to the refrigeration unit
were closed, and there were no tools near the
unit. After a moment’s observation, the agents
arrested Szarflarski and Chrobak.

      The arrests were later followed with an
indictment charging Mietus, Szarflarski, Chrobak,
and Gut with conspiracy to distribute marijuana
and possession with intent to distribute
marijuana. Mietus, Szarflarski, and Chrobak went
to trial together; Gut entered into a plea
agreement and testified for the government at the
trial. As noted above, the jury acquitted
Szarflarski and Chrobak on the substantive charge
and failed to reach a verdict as to them on the
conspiracy charge, but it convicted Mietus on
both.

II

      After his conviction, Mietus moved for a new
trial on two grounds. First, he argued that the
prosecutor improperly called the jury’s attention
to Mietus’s failure to testify, in violation of
his Fifth Amendment rights. Second, he argued
that statements made by Chrobak’s lawyer in
closing deprived Mietus of a fair trial. The
district court denied the new trial motion, and
Mietus has appealed from that ruling.

      This court reviews a district court’s decision
not to grant a new trial for abuse of discretion.
If the court’s decision rests on an error of law,
however, then it is clear that an abuse of
discretion has occurred, as it is always an abuse
of discretion to base a decision on an incorrect
view of the law. See Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 405 (1990). And, of course,
our review of this type of underlying legal
ruling is non-deferential.

      In evaluating whether a prosecutor’s comments
denied a defendant a fair trial, we look at them
first in isolation to determine whether they
stayed within proper bounds. United States v.
Cotnam, 88 F.3d 487, 498 (7th Cir. 1996). If not,
the next step in the analysis depends on whether
the impropriety violated one of the defendant’s
specific trial rights, such as the Fifth
Amendment right against self-incrimination, or
whether it reflected more general prosecutorial
misconduct, such as vouching for the credibility
of a witness or misstating evidence, which could
deprive the defendant of her due process right to
a fair trial. Id. If the defendant’s challenge is
to general prosecutorial misconduct, then, after
determining that the remarks were improper, the
court should consider the remarks in light of the
entire record to determine if the defendant was
deprived of a fair trial; that is, the court
should determine "whether the prosecutors’
comments so infected the trial with unfairness as
to make the resulting conviction a denial of due
process." Darden v. Wainwright, 477 U.S. 168, 181
(1986). If the improper remarks violated a
specific trial right, then a more stringent
standard of review applies. In such a case, the
court may hold the error harmless and uphold the
conviction only if the government proves beyond
a reasonable doubt that the defendant would have
been convicted absent the unconstitutional
prosecutorial comments. Cotnam, 88 F.3d at 500.

      In this case, Mietus argues that the
prosecutor’s statements during closing violated
his Fifth Amendment right against self-
incrimination, and thus we use the framework for
analyzing specific constitutional errors. We note
that this does not appear to be the approach the
district court took. Instead, it assumed arguendo
that the prosecutor’s comments were improper and
denied the new trial motion on the ground that
the prosecutor’s statements did not "infect the
trial with unfairness to such a degree as to make
Mietus’s conviction a denial of due process."
Failure to apply the "harmless beyond a
reasonable doubt" standard applicable to denials
of specific trial rights was a legal error, but
it is one that makes no difference to the outcome
here. That is because the statements Mietus
challenges were not improper to begin with.
Furthermore, even if they were, we are convinced
beyond a reasonable doubt that Mietus would have
been convicted even had they never been uttered.

      We turn first to the statements Mietus
challenges. In his closing argument, the
prosecutor said:

      Ladies and gentlemen, my guess is you are
familiar with the phrase, "actions speak louder
than words." Talk is cheap, particularly talk
nine years--nine months after the fact. Actions
tell us what’s really going on. They demonstrate
what’s really in a person’s mind, and that’s why
we have that phrase, "actions speak louder than
words."

      We’ve heard a lot of words, a lot   of talk
during this trial, through the opening
statements, through the questions, even   to Mr.
Szarflarski’s testimony. The defendants   have told
you what they want you to believe about   their
knowledge. . . .

      What do their actions tell us? On May 25, 1998,
Memorial Day night, a holiday, did they rush to
a warehouse in West Chicago, pull a tractor in
and begin unloading cantaloupes on to another
truck to make sure those cantaloupes got to the
market fresh? I didn’t hear any evidence about
that.

      On May 25th, did they rush to a repair place in
West Chicago and did Mr. Szarflarski and Mr.
Chrobak and Mr. Mietus immediately begin working
on a refrigerator unit to keep the temperature
correct so they could get the produce to the
market? No; we didn’t hear any testimony about
that.

      The Fifth Amendment forbids prosecutors from
inviting the jury to draw an adverse inference
from a defendant’s decision not to testify.
Griffin v. California, 380 U.S. 609 (1965). This
rule prohibits indirect as well as direct
comments to this effect. United States v. Aldaco,
201 F.3d 979, 987 (7th Cir. 2000). Nevertheless,
indirect requests to draw adverse inferences from
the defendant’s silence violate the Fifth
Amendment only if (1) the prosecutor manifestly
intended to refer to the defendant’s silence or
(2) a jury would naturally and necessarily take
the remark for a comment on the defendant’s
silence. United States v. Butler, 71 F.3d 243,
254 (7th Cir. 1995). A prosecutor’s comment that
the government’s evidence is uncontradicted or
unrebutted will violate this rule if the only
person who could have rebutted the evidence was
the defendant. Aldaco, 201 F.3d at 987. In
considering whether a prosecutorial statement
violated a defendant’s Fifth Amendment rights,
the statement should be analyzed in context. See
United States ex rel. Lee v. Flannigan, 884 F.2d
945, 954 (7th Cir. 1989).

      Mietus first takes issue with the prosecutor’s
statement that "the defendants have told you what
they want you to believe about their knowledge"
and with the prosecutor’s reference to
Szarflarski’s testimony. These statements, Mietus
contends, indirectly highlighted his failure to
take the stand by inviting the jury to consider
what Mietus told them, which, since Mietus did
not testify, was nothing. But it is plain from
the statements themselves that if they referred
at all to his decision not to testify, they did
so only indirectly. That means they were
impermissible only if they were "manifestly
intended or [were] of such character that the
jury would naturally and necessarily take [them]
to be a comment on the failure of the accused to
testify." Butler, 71 F.3d at 254.

      Viewed in context, the statements had no such
necessary meaning. Instead, they merely referred
to what the defendants, through their lawyers and
through Szarflarski’s testimony, had argued
during the trial. The thrust of the prosecutor’s
argument was that the defense team’s "words" were
not consistent with the evidence of the
defendants’ actions. The statements did not draw
the jury’s attention to anything Mietus himself
did or did not say; rather, they referred to the
"words" of Szarflarski and of the defendants’
counsel. To the extent that the statements
referred to Szarflarski’s testimony, they can be
seen as simple commentary on the evidence. The
statements were not manifestly intended to
suggest that Mietus’s silence was evidence of his
guilt, nor would a jury naturally and necessarily
take them that way.

      Mietus also challenges the prosecutor’s remark
that "we didn’t hear any testimony" that the
defendants rushed to repair the refrigeration
unit as soon as they arrived at the garage.
Mietus argues that this statement was
impermissible because the only people who could
possibly have provided testimony about what the
defendants did when they got to the garage were
the defendants themselves. See Aldaco, 201 F.3d
at 987. But defendant Szarflarski did testify. He
could have provided testimony about what happened
at the garage, but he did not. This court has
held that where an accomplice could have provided
testimony to rebut a part of the government’s
case, the prosecutor’s statement that that
evidence was unrebutted would not be taken as an
impermissible comment on the defendant’s silence.
Aldaco, 201 F.3d at 988; Butler, 71 F.3d at 255.
Similarly, the arresting officers saw at least
some of what went on in the garage, and this
court has held that a reference to unrebutted
testimony is not improper where police officers
present at the arrest could have contradicted the
government’s theory. Butler, 71 F.3d at 255.
Mietus was far from the only person who could
have testified as to what actions the men took
when they got to the garage, which leads to the
conclusion that the prosecutor’s remark about the
lack of testimony indicating that they
immediately tried to repair the refrigeration
unit did not violate Mietus’s Fifth Amendment
rights.

      Even if, for the sake of argument, we indulged
the assumption that the closing statement might
have amounted to an impermissible comment on
Mietus’s failure to testify, we have no trouble
finding here that any error connected with it was
harmless beyond a reasonable doubt. The
government caught Mietus, Chrobak, and
Szarflarski in the act of unloading 2,300 pounds
of marijuana from a truck that Mietus owned. The
only real issue in the case was which of the men
knew that the boxes contained marijuana. On that
point, the government offered Gut’s testimony
that Mietus arranged the pickup of the marijuana
in Texas and hired Gut to drive it back to
Chicago. Gut made tapes of conversations he had
with Mietus; although the tapes apparently
weren’t entirely intelligible, there were
references to "2300 pounds" in one of the
conversations. Government agents testified that,
when Mietus and the other men arrived at the
garage with the truck, they did not attempt to
unload any of the cantaloupes, but went straight
for the boxes of marijuana. A government agent
also testified that at least some of the boxes
were ripped and that there were bundles of
marijuana lying on the floor of the garage when
Mietus was arrested. The same agents testified
that there was a strong odor of marijuana in the
garage while Mietus and the others were unloading
the truck.

      To this, Mietus responds only that the
government’s supposedly powerful case actually
rested principally on the uncorroborated
testimony of Gut, who had a strong motive to lie
to lower his own sentence. Even if that were
true, it would be unpersuasive, given the jury’s
prerogative to decide credibility questions. But
it is not; there was substantial evidence of
Mietus’s actions after Gut delivered the truck to
him. Many of the details of Gut’s testimony were
also corroborated with circumstantial evidence
such as records of phone calls between Gut and
Mietus and documents that established that Gut
and Mietus had traveled to Texas together at the
times Gut said they did.

      Finally, Mietus argues that the evidence of
what happened in the garage, without the
testimony of Gut, must have been insufficient to
convict him, because the jury acquitted
Szarflarski and Chrobak. But the jury was fully
within its proper right to acquit some defendants
and to convict another. Indeed, we do not even
reverse convictions if juries return inconsistent
verdicts for a single defendant. See United
States v. Powell, 469 U.S. 57, 64-66 (1984).
Here, the jury rationally could have seen
Mietus’s role in a different light from that of
the others. Mietus was the one who picked up the
truck from Gut and drove it to the garage; Mietus
was the one who called Chrobak and Szarflarski
and asked them to meet him. The jury might have
thought that Szarflarski and Chrobak were merely
taking orders from Mietus, or even that they were
not aware that it was marijuana they were
unloading. That same evidence indicated that
Mietus was running the operation and was aware of
what was going on. Viewed in the proper light,
the evidence against Mietus was indeed
overwhelming, and thus, even if the prosecutor’s
remarks strayed over the line, any error was
harmless.

       Mietus next argues that he was entitled to a
new trial because statements Chrobak’s attorney
made in his closing unfairly prejudiced Mietus
and denied him the opportunity for separate
consideration of the charges against him.
Chrobak’s main defense was that even if there was
a conspiracy he was not a part of it; he was just
a laborer taking orders from his boss, Mietus. In
closing, Chrobak’s lawyer pointed to an instance
when Gut and Mietus apparently tried to hide
their association from Chrobak as evidence that
Chrobak must not have been in on the conspiracy.
Mietus argues that this line of defense unfairly
prejudiced Mietus’s ability to argue that any
conspiracy must have been between Gut and unknown
third parties. The district court also denied
Mietus’s motion for a new trial on this ground;
our review is for abuse of discretion. United
States v. Irorere, 228 F.3d 816, 829 (7th Cir.
2000).

      There is a preference in the federal system for
joint trials of defendants who are indicted
together. A district court should grant a
severance (or a new trial for one of the
defendants) only if the joint trial
"compromise[d] a specific trial right of one of
the defendants, or prevent[ed] the jury from
making a reliable judgment about guilt or
innocence." Zafiro v. United States, 506 U.S.
534, 538-39 (1993). Even a showing that two
defendants have "mutually antagonistic defenses,"
that is, that the jury’s acceptance of one
defense precludes any possibility of acquittal
for the other defendant, is not sufficient
grounds to require a severance unless the
defendant also shows prejudice to some specific
trial right. Zafiro, 506 U.S. at 538; United
States v. Dimas, 3 F.3d 1015, 1020 (7th Cir.
1993).

      In this case, Mietus cannot show that his and
Chrobak’s defenses were mutually antagonistic,
much less that Chrobak’s defense interfered with
one of Mietus’s specific trial rights. Chrobak’s
defense was essentially that even if there was a
conspiracy, there was no evidence that Chrobak
was involved or that he knew what was in the
boxes. Chrobak’s attorney did not focus on
Mietus’s role in the conspiracy or try to
persuade the jury that Mietus must have been part
of the conspiracy. In fact, in the portion of
Chrobak’s closing statement to which Mietus
objects most strenuously, Chrobak’s attorney did
not even mention Mietus by name. Chrobak’s
closing statement focused instead on Chrobak’s
limited role in the events and his lack of
knowledge of what was in the boxes. The jury
could have believed Chrobak’s defense that
Chrobak was unaware of what was going on and also
accepted Mietus’s defense that, if there was a
conspiracy, it was between Gut and unknown third
parties. Because this is so, Chrobak’s and
Mietus’s defenses were not so antagonistic that
a new trial was required.

      Mietus nevertheless argues that his specific
trial rights were infringed because Chrobak’s
attorney implicated Mietus in the conspiracy in
his closing statement at a time when Mietus had
no opportunity to rebut Chrobak’s accusations.
According to Mietus, this violated his rights
because it made Chrobak’s attorney "functionally
a second prosecutor." But the case on which
Mietus relies, United States v. Romanello, 726
F.2d 173 (5th Cir. 1984), was decided before
Zafiro, and we are not convinced that Romanello’s
holding that prejudice in a joint trial can be
shown when one defendant strongly attacks another
survives Zafiro. There is no specific trial
right, in the sense the Zafiro Court used the
term, not to have a co-defendant give damaging
testimony. In any event, unlike the situation in
Romanello, where the court thought that the co-
defendant’s lawyer was effectively an extra
prosecutor, here Chrobak’s attorney made no
particular effort to prove that Mietus or anyone
else was part of the conspiracy. He wanted only
to suggest that if a conspiracy existed, his
client had no part in it. Because Mietus has
shown neither prejudice to any of his specific
trial rights nor the risk of an unreliable
judgment, he was not entitled to a new trial.

III

      Mietus’s final argument is that, in the event
his conviction is affirmed, his case should be
remanded for resentencing in light of the U.S.
Supreme Court’s recent decision in Apprendi v.
New Jersey, 120 S. Ct. 2348 (2000). In Apprendi,
the Court held that factual findings that raise
a defendant’s sentence above the statutory
maximum for the crime for which he is convicted
must be considered elements of the offense rather
than sentencing factors, and accordingly must be
charged in the indictment and proved at trial
beyond a reasonable doubt. 120 S. Ct. at 2362-63.
We have recently held that in drug cases under 21
U.S.C. sec.sec. 841 and 846, before a defendant
can be sentenced to a term of imprisonment above
the default statutory maximum provided in sec.
841(b)(1)(C) or (D), Apprendi requires that a
drug type and amount sufficient to trigger the
higher statutory maximums of sec. 841(b)(1)(A) or
(B) be charged in the indictment and found by the
jury. See United States v. Nance, No. 00-1836,
2000 WL 1880629 (7th Cir. Dec. 29, 2000).

      Mietus was sentenced to 151 months imprisonment,
or 12 years and 7 months, for possession of
marijuana under 21 U.S.C. sec. 841; the default
statutory maximum sentence for possession of an
unspecified amount of marijuana is 5 years. 21
U.S.C. sec. 841(b)(1)(D). Before a defendant can
be sentenced to between 5 and 40 years, he must
be found to have possessed at least 50 kilograms
of a substance containing a measurable amount of
marijuana. 21 U.S.C. sec. 841(b)(1)(B). The
indictment against Mietus charged him with a
conspiracy that involved transporting two loads
of marijuana, one of approximately 2,500 pounds
(1,134 kg) and one of approximately 2,300 pounds
(998 kg), and with possession of approximately
1,000 kilograms of marijuana. All these amounts
were well above the 50 kilograms needed to
trigger sec. 841(b)(1)(B)’s heightened statutory
maximum sentence, and thus the indictment
complied with the requirements of Apprendi. The
jury instructions are another matter. They did
not require the jury to find that Mietus
possessed or conspired to possess any specific
amount of marijuana; rather, (in keeping with
accepted law at the time) they told the jury that
it could convict Mietus if it found that he
possessed and conspired to possess a "measurable
amount" of marijuana. This instruction was
inadequate under Apprendi to allow the district
court to sentence Mietus to between 5 and 40
years imprisonment under sec. 841(b)(1)(B);
therefore, imposing a sentence greater than 5
years on a conviction based on this jury
instruction was error.

      As was the case in Nance, however, the fact
that the jury instructions and sentence imposed
in this case did not comply with the requirements
of Apprendi does not end our analysis of this
issue. The Supreme Court has held that errors in
jury instructions are subject to harmless error
analysis, Neder v. United States, 527 U.S. 1
(1999), and this court has held that this rule
applies to Apprendi errors. See Nance, supra.
Moreover, although Apprendi was not decided until
June 26, 2000, which was after Mietus filed his
original brief but before he filed his reply
brief in this appeal, the argument that factual
findings that increase a defendant’s sentence
above the statutory maximum must be treated as
elements of the offense was available to
defendants well before that date. Just a few days
after Mietus was convicted and before Mietus’s
sentencing hearing, the Supreme Court handed down
its decision in Jones v. United States, 526 U.S.
227 (1999), which (as we explained in Nance) put
the issue of the distinction between sentencing
factors and offense elements squarely on the
table. Mietus never raised this argument with the
trial court, and did not raise it in this court
until a mere five days before oral argument was
set, when he filed a motion to stay these
proceedings and remand the case to the district
court for resentencing. At that time, this court
denied the motion but agreed to treat the motion
and the government’s response as supplemental
briefs on appeal. We conclude that, just as in
Nance, Mietus forfeited the Apprendi argument,
and thus our review is only for plain error.

      This means we must determine (1) whether there
was error at all, (2) whether it was plain, (3)
whether it affected the defendant’s substantial
rights, and (4) whether it seriously affected the
fairness, integrity, or public reputation of the
judicial proceedings. Johnson v. United States,
520 U.S. 461, 466-67 (1997). Even if we accept
that there was error in this case, that the error
was plain, and that it affected Mietus’s
substantial rights by increasing his sentence by
over 7 years, Mietus’s claim for relief fails
because he cannot show that the error seriously
affected the fairness, integrity, or public
reputation of the judicial proceedings. When the
government arrested Mietus, it seized nearly
1,000 kilograms of marijuana from his truck. None
of the defendants in the case ever contested the
amount of marijuana found in the truck; rather,
their only defense was that they did not know the
boxes contained marijuana. In order to convict at
all, the jury must have found that Mietus knew
that the boxes contained marijuana. There was no
evidence to suggest that Mietus could have been
guilty of possessing some but not all of the
seized drugs. Therefore, the district court’s
failure to charge the jury as to drug quantity
did not seriously affect the fairness, integrity,
or public reputation of the judicial proceedings,
because had the jury been properly charged, it
certainly would have found that Mietus possessed
more than 50 kilograms of marijuana. For the same
reasons, even if Mietus had properly preserved
this argument, we would find that any error here
was harmless.

IV

      For the foregoing reasons, we Affirm the judgment
and sentence of the district court.
