United States v. Marek Stanislawczyk , 841 F.3d 450 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 15-2511 and 15-3106
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PAWEL W. WROBEL and MAREK
STANISLAWCZYK,
Defendants-Appellants.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 650 — Rebecca R. Pallmeyer, Judge.
ARGUED SEPTEMBER 20, 2016 — DECIDED OCTOBER 28, 2016
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
BAUER, Circuit Judge. On August 14, 2012, Slawomir
Wieckowicz, a confidential informant, alerted FBI agents of a
phone call he had with Zbigniew Oziemski, in which Oziemski
solicited Wieckowicz’s help in planned robberies that were
to occur in New York. Wieckowicz told the FBI agents of
Oziemski’s plan to travel from Poland to New York, and then
2 Nos. 15-2511 and 15-3106
to Chicago. In Chicago, Oziemski would meet with Marek
Stanislawczyk, and then they would travel to New York to
commit the robberies.
On August 15, 2012, Wieckowicz told agents that Stanis-
lawczyk was in New York, but he would return to Chicago and
then travel from Chicago to New York with Oziemski and a
third person (later identified as Pawel Wladyslaw Wrobel) to
commit the robberies. Stanislawczyk detailed Oziemski’s travel
plans to Wieckowicz, and explained that they would travel all
together from Chicago to New York. Stanislawczyk asked
Wieckowicz to rent a van under a false name.
On August 16, 2012, Wieckowicz, Wrobel, and Stanis-
lawczyk met at Stanislawczyk’s apartment in Elk Grove
Village, Illinois. Oziemski participated via Skype. Wieckowicz
recorded the conversations. During this meeting, Wrobel and
Stanislawczyk told Wieckowicz that they would travel to New
York with Oziemski to rob a particular individual, Jacob
Reichman, a diamond merchant, at his residence in Brooklyn,
New York. Wrobel said that Reichman would be so frightened
that he would “turn [the diamonds] over just like that. Those
people are fucking scared … you won’t fucking have to do
anything to him. He’ll just turn it over by himself and that’s it.”
Stanislawczyk described how a van would be most preferable
and efficient for conducting the robbery: “We drive up, the
doors are open; we throw the Jew [i.e., the diamond merchant]
inside … we take the diamonds, the easiest job. He has the
diamonds on him … . [H]e has it on him, and we fucking
taking it.”
Nos. 15-2511 and 15-3106 3
Assuming a successful robbery, Wrobel and Stanislawczyk
expected to sell the stolen diamonds to an individual Wrobel
knew as “Alex,” purportedly a former business partner of
Reichman. They predicted that the robbery would net between
one to three million dollars.
On August 18, 2012, Oziemski, Stanislawczyk, Wrobel, and
Wieckowicz met at Stanislawczyk’s apartment again. Wiecko-
wicz again recorded the conversations. Wrobel informed the
others that Reichman was an Orthodox Jew in his late sixties
who supplied diamonds to retail outlets. Stanislawczyk
expressed confidence that Reichman was certain to be carrying
gems of substantial value: “He has a minimum of two [million
dollars’ worth of diamonds] on his person … . He’s the kind of
Jew that receives a phone call that there’s a need for a fucking
so-and-so carat diamond in a color like this … and he fucking
has it.” Wrobel and Stanislawczyk had a specific address and
displayed the location of Reichman’s home on an iPad using
Google Maps. They also described the area based on their
observations from having visited the location the previous
week. The group agreed to rent a van equipped with New
York license plates to avoid unwanted attention from law
enforcement.
Under the supervision of the FBI, Wieckowicz rented a van
equipped with both New York license plates and a sliding
door. The FBI also equipped the rental van with a recording
device.
On August 20, 2012, Wrobel, Stanislawczyk, Oziemski, and
Wieckowicz began their travel from Elk Grove Village to New
York. Wrobel forgot “the bag with the tools … and gloves”
4 Nos. 15-2511 and 15-3106
inside Stanislawczyk’s apartment, so the group went back to
the apartment. Stanislawczyk retrieved the bag containing a
pry bar and three pairs of gloves.
On August 21, 2012, the group checked into a Comfort Inn
near Linden, New Jersey, at approximately 6:30 a.m. Shortly
thereafter, Stanislawczyk, Wrobel, and the two others (includ-
ing the confidential informant) were arrested by the FBI. The
FBI agents found hooded sweatshirts and a black hat in Wrobel
and Stanislawczyk’s luggage, brought for the purpose of
disguising and concealing their identities. The FBI searched the
rental van and found a shopping bag containing three pairs of
gloves and a pry bar.
On November 6, 2012, Wrobel, Stanislawczyk, and Oziem-
ski were charged in an indictment with conspiring to obstruct,
delay, and affect commerce by robbery of diamonds and other
valuables, in violation of the Hobbs Act, 18 U.S.C. § 1951(a)
(Count 1); and, attempting to obstruct, delay, and affect
commerce by robbery in violation of § 1951(a) (Count 2). On
October 8, 2013, a Superseding Indictment added a third count,
and extortion allegations to Counts 1 and 2. Prior to the case
going to the jury, the government dismissed the extortion
allegations from Counts 1 and 2, and Count 3 in its entirety.
Prior to trial, on October 17, 2013, the government gave
notice of its intent to introduce expert testimony from Donald
Strzepek regarding the diamond business. Strzepek would
testify that all diamonds are mined outside the United States,
and that diamond dealers frequently carry diamonds from
place to place on their persons. The government sought to
introduce Strzepek’s testimony to establish a nexus between
Nos. 15-2511 and 15-3106 5
the charged offense and interstate commerce, and also to rebut
arguments that Wrobel, Stanislawcyzk, and Oziemski’s
statements regarding robbing a diamond merchant were mere
fantasy. On October 22, 2013, Oziemski filed a motion in limine
to suppress this testimony as irrelevant and prejudicial. The
district court denied the motion, and subsequently overruled
a similar objection at trial.
On November 8, 2013, the jury convicted Wrobel, Stanis-
lawczyk, and Oziemski on two Hobbs Act counts. On July 15,
2015, the district court ruled on a “plethora” of motions for
post-trial relief, including motions for judgment of acquittal
pursuant to Federal Rule of Criminal Procedure 29(c), and,
alternatively, motions for a new trial. All post-trial motions for
relief were denied.
On September 2, 2015, Stanislawczyk appeared pro se at
his sentencing hearing having dismissed three separate
appointed attorneys during the course of his case. At the
beginning of the hearing, the district court warned Stanis-
lawczyk of the disadvantages of refusing counsel and choosing
to represent himself. After the government provided its
argument to the court, the district court spoke directly to
Stanislawczyk, stating: “Mr. Stanislawczyk, you are welcome
to make a statement as well before your sentence is imposed.”
Stanislawczyk covered a variety of topics while exercising his
right of allocution.
On July 6, 2015, the district court sentenced Wrobel to
60 months’ imprisonment on each of his two convictions,
the sentences to run concurrently. On September 2, 2015,
the district court sentenced Stanislawczyk to 61 months’
6 Nos. 15-2511 and 15-3106
imprisonment on the two counts, the sentences to run concur-
rently. Wrobel and Stanislawczyk timely appealed.
Wrobel and Stanislawczyk claim that there was insufficient
evidence to establish the required nexus between the crime
and interstate commerce under the Hobbs Act, 18 U.S.C.
§ 1951(a); they also argued that the district court improperly
admitted testimony by the government’s expert witness. And
last, Stanislawczyk argues that the district court failed to
provide him an adequate opportunity for allocution.
A. The Sufficiency of the Evidence
We will overturn a jury’s verdict only if, “after viewing the
evidence in the light most favorable to the government, the
record is devoid of evidence from which a reasonable jury
could find guilt beyond a reasonable doubt." United States v.
Campbell, 770 F.3d 556, 571–72 (7th Cir. 2014) (citation omitted).
Since Wrobel and Stanislawczyk failed to properly raise this
challenge before the district court, we review for plain error
only. United States v. Mitov, 460 F.3d 901, 907 (7th Cir. 2006). As
a result, Wrobel and Stanislawczyk can only obtain a reversal
if they demonstrate a “manifest miscarriage of justice.” Id.Regardless, Wrobel and Stanislawczyk’s challenge fails under
either standard.
The Hobbs Act makes it a crime for a person to "obstruct[],
delay[], or affect[] commerce or the movement of any article
or commodity in commerce, by robbery … or attempt[] or
conspire[] so to do … .” 18 U.S.C. § 1951(a). Because the Hobbs
Act also criminalizes attempts, the government does not
need to prove that the defendant’s actions actually affected
interstate commerce, but “only that there exists a ‘realistic
Nos. 15-2511 and 15-3106 7
probability’ of an effect on commerce.” United States v. Bailey,
227 F.3d 792, 797 (7th Cir. 2000) (citation omitted). To prove an
attempt, the government must have shown only that Wrobel
and Stanislawczyk acted with specific intent to commit the
underlying offense, and took a substantial step towards its
completion. See id.The jury heard the following evidence: Wrobel and Stanis-
lawczyk traveled across state lines for the purpose of robbing
diamonds from a diamond merchant whose diamonds were
invariably obtained via foreign commerce, i.e., “commerce
between any point in a State … and any point outside thereof
… .” 18 U.S.C. § 1951(b)(3). While Wrobel and Stanislawczyk
objected to testimony of the government’s expert witness,
they did not—and still do not—challenge the expert’s claim
that diamonds are not mined in the United States.1 The market
for diamonds in the United States implicates foreign com-
merce. Thus, Wrobel and Stanislawczyk’s conspiracy and
attempted robbery of a diamond merchant had a “realistic
probability” of an effect on interstate commerce.
Moreover, the government was able to show an effect on
interstate commerce under the “depletion of assets” theory.
Under this theory, “commerce is affected when an enterprise,
which either is actively engaged in interstate commerce or
customarily purchases items in interstate commerce, has its
assets depleted through [robbery], thereby curtailing the
victim's potential as a purchaser of such goods.” United States
1
At oral argument, defense counsel admitted that “zero” diamonds were
mined in the United States, and stated: “We are not disputing that a
diamond merchant is interstate commerce.”
8 Nos. 15-2511 and 15-3106
v. Harty, 930 F.2d 1257, 1261 (7th Cir. 1991) (alteration in
original) (quoting United States v. Elders, 569 F.2d 1020, 1025
(7th Cir. 1978); accord United States v. Muratovic, 719 F.3d 809,
813 (7th Cir. 2013).
Wrobel and Stanislawczyk planned and intended to rob
Reichman because they believed he was a diamond merchant
with an abundant supply of diamonds. Wrobel and Stanis-
lawczyk’s belief that Reichman was actively engaged in the
business of buying and selling diamonds is evidenced, among
other things, by hours of recorded conversations. For example,
Stanislawczyk stated: “[Reichman] has a minimum of two
[million dollars’ worth of diamonds] on his person … . He’s the
kind of Jew that receives a phone call that there’s a need for a
fucking so-and-so carat diamond in a color like this … and he
fucking has it.” Wrobel and Stanislawczyk’s intent to sell the
stolen diamonds to Reichman’s former business partner also
evidences their belief that Reichman conducted himself in
some form of a business entity. Had the robbery occurred as
planned, Wrobel and Stanislawczyk would have not only
depleted the diamond merchant’s assets, but also curtailed the
diamond merchant’s potential as purchaser and seller of
diamonds having moved through interstate commerce.
Therefore, the government provided sufficient evidence for a
reasonable jury to find that the interstate commerce element
was satisfied under the “depletion of assets” theory.
In response, Wrobel and Stanislawczyk’s main argument
largely relies on this court’s decision in United States v. Mattson,
671 F.2d 1020 (7th Cir. 1982). They argue that the attempted
robbery could not have affected interstate commerce because
the government failed to present evidence that Reichman was
Nos. 15-2511 and 15-3106 9
actually engaged in conducting business as a diamond mer-
chant at the time of the offense. They contend that had they
successfully robbed Reichman, they would have only robbed
an individual, which would not have affected interstate
commerce.
Wrobel and Stanislawczyk’s reliance on Mattson is mis-
placed. They believe that Mattson precludes us from finding
that the government satisfied the interstate commerce element
because Reichman, like the victim in Mattson, is an individual
not engaged in interstate commerce. This argument overlooks
a crucial distinction based on well-established law. Unlike the
extortion conviction reversed in Mattson, Wrobel and Stanis-
lawczyk’s convictions were for an attempted Hobbs Act
robbery. Factual impossibility and mistake of fact are not
defenses to an attempt crime. Mitov, 460 F.3d at 908 (citing
Bailey, 227 F.3d at 797); Muratovic, 719 F.3d at 814 (noting that
the “inability to complete the crime ‘does not diminish the
sincerity of any efforts to accomplish that end’” (quoting
United States v. Cotts, 14 F.3d 300, 307 (7th Cir. 1994))). It does
not matter whether or not Reichman was actually a diamond
merchant engaged in interstate commerce. What matters is
that the evidence demonstrated that Wrobel and Stanislawczyk
acted with the specific intent to rob a diamond merchant
and took a substantial step toward robbing diamonds from
someone whom they believed to be a diamond merchant. The
government presented sufficient evidence to establish the
required nexus between the offense and interstate commerce.
10 Nos. 15-2511 and 15-3106
B. Improperly Admitted Evidence
Wrobel and Stanislawczyk do not object to Strzepek’s
qualifications as an expert, nor do they contend that the district
court improperly applied the Federal Rule of Evidence 702
and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1993), analysis. Instead, Wrobel and Stanislawczyk argue
that the district court abused its discretion by admitting
Strzepek’s expert testimony because it was not relevant under
Federal Rule of Evidence 401; or, even if relevant, it was
unfairly prejudicial under Federal Rule of Evidence 403.
Prior to trial, the government gave Wrobel and Stanis-
lawczyk notice of its intent to introduce Strzepek’s testimony
regarding the diamond business. Strzepek, a certified gemo-
logist with over thirty years of experience in the diamond
industry, would testify that all diamonds are mined outside of
the United States, and that diamond dealers frequently carry
diamonds from place to place on their persons as a means of
transportation. In response, the defendants argued that the
testimony would be irrelevant and prejudicial. The district
court disagreed and denied the motion. The district court
overruled a similar objection at trial, and stated:
First of all, that is the subject of expert testimony
makes sense to me because—I mean, let’s just
use sort of a rough-and-ready test. Is this some-
thing the average person knows? I’m an average
person. I don’t know how diamond dealers
carry diamonds. I have never seen anything like
this. It’s completely unfamiliar to me.
Nos. 15-2511 and 15-3106 11
So somebody that has experience and exposure
to the diamond-dealing practices would be
someone who I would characterize as having
specialized knowledge of this issue. And the
other concern, that he obviously didn’t see the
victim wearing this vest or doesn’t even know
the victim, is all material that’s subject to cross-
examination.
I think it does go to rebut the notion that it’s
fantastical to expect that a diamond dealer
would leave his house carrying diamonds on his
body. Again, this is something I am personally
completely unfamiliar with. And I do think
jurors may very well have no idea how this is
done or whether it is indeed fantastical or not
fantastical.
We find that the district court did not abuse its discretion
in admitting this evidence, nor do we find the evidence
unfairly prejudicial. We consider each argument in turn.
1. Relevance
In determining the materiality and relevancy of evidence,
the district court has been accorded “wide discretion.” United
States v. Hall, 165 F.3d 1095, 1117 (7th Cir. 1999). Wrobel and
Stanislawczyk contend that the district court abused its
discretion by admitting Strzepek’s testimony because it is not
relevant. To support this argument, Wrobel and Stanislawczyk
revert to similar claims that they made regarding the suffi-
ciency of the evidence, and claims better fashioned as Rule 403
arguments. They argue that only an individual would have
12 Nos. 15-2511 and 15-3106
been robbed, not a diamond merchant; and, that the govern-
ment cannot establish the jurisdictional element “by using
Strzepek’s testimony because the defendants were not plan-
ning on robbing Strzepek.” But, these claims do not address
whether the evidence at issue is relevant or not.
Strzepek’s testimony regarding his “specialized knowl-
edge” of the diamond industry is relevant because it could
assist the jury in understanding the evidence or in determining
a fact at issue. Because diamonds are not mined in the United
States, Strzepek’s testimony is relevant to the interstate
commerce element of the Hobbs Act.
In addition, Strzepek’s testimony was also relevant as a
rebuttal to Wrobel and Stanislawczyk’s defense. Wrobel and
Stanislawczyk claimed that they only spoke in fantastical
terms, and therefore did not exhibit an actual intent to rob
Reichman; Strzepek testified that diamond merchants fre-
quently carried diamonds on their persons from place to place
as a means of transporting diamonds. This testimony tended
to show that Wrobel and Stanislawczyk reasonably believed
Reichman would actually have millions of dollars’ worth of
diamonds on his person, and that this belief was reasonable.
The district court did not abuse its discretion in finding
Strzepek’s testimony relevant.
2. Prejudice Under Rule 403
Wrobel and Stanislawczyk contend that even if Strzepek’s
testimony was relevant, the district court should have ex-
cluded it because its probative value was substantially out-
weighed by its prejudicial effect.
Nos. 15-2511 and 15-3106 13
Wrobel and Stanislawczyk assert that Strzepek’s testimony
created an impermissible inference that Reichman was a
diamond merchant. But, Strzepek’s testimony did not imply
that Reichman was a diamond dealer, and the district court
made sure of this. Prior to Strzepek’s testimony, the district
court made sure the government was “not going to suggest
that [Strzepek] saw the victim wearing [a diamond merchant’s
vest or wallet] or anything of the kind.” At trial, the govern-
ment did not ask Strzepek if Reichman was a diamond dealer.
In fact, Strzepek was asked this question and gave this answer
in front of the jury:
Q: It would be fair to say, wouldn’t it, that you
don’t know anything about the particular facts
of this particular case?
A: No, I don’t.
Strzepek’s testimony was not intended to mislead the jury
into believing Reichman was a diamond merchant. Instead,
Strzepek’s testimony was intended to support the govern-
ment’s position that Wrobel and Stanislawczyk actually
believed that, as a person in the business of buying and selling
diamonds, Reichman was likely to be in possession of dia-
monds, either on his person or at his home, and that their belief
was reasonable.
Wrobel and Stanislawczyk argue that the district court did
not balance the evidence’s probative value against its prejudi-
cial effect. However, the district court considered whether
Strzepek’s testimony had the potential to mislead the jury. To
prevent this danger, the district court instructed the govern-
14 Nos. 15-2511 and 15-3106
ment to ask Strzepek questions regarding his specialized
knowledge only.
The district court did not abuse its discretion when admit-
ting Strzepek’s testimony.
C. Right of Allocution
Stanislawczyk separately contends that the district court
did not adequately comply with Federal Rule of Criminal
Procedure 32 and denied him his right of a meaningful
allocution. Rule 32 provides that, "[b]efore imposing sentence,
the court must … address the defendant personally in order to
permit the defendant to speak or present any information to
mitigate the sentence … ." Fed. R. Crim. P. 32(i)(4)(A)(ii). We
recognize that the right of allocution is an important right that
the district courts must construe liberally. United States v.
Covington, 681 F.3d 908, 910 (7th Cir. 2012) (citing United States
v. Barnes, 948 F.2d 325, 328–30 (7th Cir. 1991)). But, the right of
allocution is not without limits. United States v. Alden, 527 F.3d
653, 663 (7th Cir. 2008) (collecting cases describing limits on the
right to allocute). Rule 32 “does not purport to set out a script
that the district courts must follow when advising defendants
of their right to allocution.” United States v. Williams, 258 F.3d
669, 674 (7th Cir. 2001). Instead, we look to the “substance of
what occurred.” Id.In considering Stanislawczyk’s arguments, we will follow
the same analysis utilized by this Court in Williams. See id. at
674–75. First, the district court satisfied the first part of Rule 32
when it personally addressed Stanislawczyk—“Mr. Stanis-
lawczyk, you are welcome to make a statement as well before
your sentence is imposed.” In Williams, we held that the district
Nos. 15-2511 and 15-3106 15
court’s question to the defendant—“Mr. Williams, is there
anything you would like to say?”—satisfied Rule 32’s require-
ment that the district court address the defendant personally.
Id. at 675. The unambiguous manner in which the district court
personally addressed the defendant in Williams is sufficiently
similar to the way the district court addressed Stanislawczyk.
The district court satisfied the requirement that it personally
address Stanislawczyk.
Second, the district court permitted Stanislawczyk to speak
or present any information to mitigate the sentence. Although
we do not know the duration of Stanislawczyk’s allocution, it
extended for more than nine pages in the transcript. Stanis-
lawczyk elected to use his allocution time to cover a vast array
of topics, including: (1) inadequacies in the government’s case;
(2) ineffectiveness of his trial counsel; (3) the United States
Constitution; and, (4) family problems in Europe. In conclud-
ing his allocution, Stanislawczyk stated that the “only thing
[he] ask[s]” for is that “your Honor to use your gavel as a
magic wand and kick me out of this county, make me return to
my country to Poland.” The record as a whole shows that the
district court satisfied its obligation under Rule 32 and that
Stanislawczyk’s right to allocution was not denied.
Stanislawczyk’s argument essentially requests us to adopt
an expansive and unprecedented interpretation of Rule 32.
Rule 32 provides the defendant two opportunities to persuade
the court as to the appropriate sentence: once by the defen-
dant’s attorney, Rule 32(i)(4)(A)(i), and the other by the
defendant, Rule 32(i)(4)(A)(ii). Stanislawczyk contends that
when a defendant proceeds pro se, his inability to exercise his
right to have an attorney speak on his behalf “penalize[s] a
16 Nos. 15-2511 and 15-3106
pro se defendant.” Stanislawczyk argues that the district court
therefore has a duty to “clarify[] the two separate procedural
rights” to a pro se defendant and explain to the pro se defendant
of “his right to speak in mitigation.”
This argument is flawed. Stanislawczyk erroneously
believes that Rule 32 requires the district court to treat a
defendant proceeding pro se as two separate entities: the
defendant as the defendant’s attorney, and the defendant as
the defendant. Unsurprisingly, Stanislawczyk does not cite to
any authority in support of this argument, and we do not
believe any reasonable reading of Rule 32 would support it.
Thus, when the district court personally addressed Stanis-
lawczyk, it was only as a defendant. There was no error in this
procedure.
Furthermore, Stanislawczyk cannot claim he was “penal-
ize[d]” by not having an attorney at sentencing when he
insisted on proceeding without counsel. When asked by the
district court as to whether he would proceed without counsel,
Stanislawczyk stated: “Yes. I would like your Honor to be done
and over with, with this case today, yes.”
Reviewing the sentencing transcript in its entirety, it reveals
that the district court advised Stanislawczyk of the concerns
and disadvantages in proceeding pro se pursuant to Faretta.
422 U.S. 806. The district court not only advised Stanislawczyk
just before sentencing began, but had conducted an extensive
colloquy in earlier proceedings. See March 9, 2015, Order.
Stanislawczyk does not contend otherwise.
In a last attempt, Stanislawczyk argues that the record,
consisting of over nine pages of transcript, shows that he did
Nos. 15-2511 and 15-3106 17
not understand that his allocution time was meant to cover
topics such as remorse or present arguments in mitigation.
Stanislawczyk points out that this confusion is further high-
lighted by the fact that he set out two arguments in mitigation
—sentence disparity and criminal history—only after the
district court had already imposed his sentence.
These claims are unpersuasive. First, the transcript shows
that Stanislawczyk talked about remorse. In fact, Stanislawczyk
claimed “[t]here is nobody [he] could apologize to,” except to
his family. Second, Stanislawczyk could not have offered an
argument based on sentence disparity—as compared to his co-
defendants’ sentences—prior to the district court’s imposition
of his sentence. Stanislawczyk was the last of the three co-
defendants to be sentenced, and he had the lowest sentencing
Guidelines range.
The transcript shows that the district court gave Stanis-
lawczyk what seemed like free-range to talk about whatever
he pleased. The district court did not commit procedural error
when it permitted Stanislawczyk to speak or present any
information to mitigate his sentence.
CONCLUSION
For the foregoing reasons, we AFFIRM Wrobel and Stanis-
lawczyk’s convictions, and AFFIRM Stanislawczyk’s sentence.