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Michael T. STEVENS

 
 
 
 
 

 

 

 

   
 
 
Classification: Spree killer
Characteristics: Bombing spree - Fearing that his girlfriend Brenda Chevere's family was trying to end their relationship
Number of victims: 5
Date of murders: December 28, 1993
Date of arrest: Next day
Date of birth: 1940
Victims profile: Brenda's mother, Eleanor Fowler, 56; sister, Pamela Lazore-Lanza; and stepfather, Robert Fowler, 38; and two bystanders
Method of murder: Letter bombs
Location: Rochester, Monroe County, New York, USA
Status: Sentenced to three terms of life imprisonment without parole in 1995
 
 
 
 
 
 

Fearing that his girlfriend Brenda Chevere's family was trying to end their relationship, Michael sent six booby-trapped mail bombs to Brenda's relatives across Upstate New York.

Four of the bombs exploded, one failed to detonate and another was intercepted by the police.

Brenda's mother, sister and stepfather were killed as well as two unlucky bystanders. Three more people were injured.

 
 

Death on Delivery

By David Van Biema - Time.com

Monday, Jan. 10, 1994

Chris Santella was feeding his infant daughter last Tuesday evening in the living room of his town house in Rochester, New York, when he heard the boom. "It was like someone slammed a door hard enough so that it shook the house," he explained.

At first he thought it was his water heater blowing up. When no gushers of water followed, he waited until the child was asleep before looking out his door and catching sight of the blasted-out window in a town house 25 ft. away, the one rented by a woman named Pamela Lazore-Lanza.

A bomb had gone off, killing Lazore-Lanza and a male friend. The bomb was one of four such devices that exploded almost simultaneously in different parts of western New York, killing five people and hanging a necklace of terror along 250 miles of the New York-Canada border.

The shirtbox-size bombs, delivered by mail or private courier, were packaged in brown cardboard and wrapped with tape. Several bore the return address of an iron-and-metal company in Pennsylvania. In each was a fishing-tackle box. When the latch was opened, it connected an electrical circuit and set off several pounds of dynamite surrounded by shrapnel.

One bomb killed Eleanor Fowler, 56, in West Valley, near Buffalo. Another was opened by her husband Robert, 38, at his job in an armored-car garage in nearby Cheektowaga; it killed him and a co-worker. A third blew up Lazore-Lanza and her friend; she was Eleanor Fowler's daughter from an earlier marriage.

And on the St. Regis Indian Reservation near the state's northern tip, an exploding package lacerated the legs of Lazore-Lanza's uncle, William Lazore. Identical parcels were sent to the Fowlers' daughter Lucille and her boyfriend but were detonated safely by authorities. All four explosions occurred within 90 minutes. It was as if someone was tracing the Fowler family tree -- in fire and blood.

At first some New Yorkers feared terrorism or a random killer. But by Wednesday evening, when police arrested Michael Stevens, 53, and Earl Figley, 56, the grudge began to seem very specific. Stevens' girlfriend is a woman named Brenda Lazore Chevere. The injured William Lazore is her uncle; the dead included her mother, her stepfather and her sister -- all apparently victims of a man they seem to have ostracized.

Chevere met Stevens and moved in with him soon after he got out of jail in 1989. He had served 20 months for overselling ads in store coupon books under the alias David Creditford -- "a con man who thought he was smarter than anyone else," a defense attorney recalled to New York Newsday.

Stevens reputedly suffered from emotional instability -- at his 1987 trial he launched into a speech about Jimmy Cagney. More seriously, in 1992 local merchants Susan Katz and John Spinelli filed a police complaint when, they say, after nine months of harassment that included cruising their block and stealing their garbage, Stevens threatened to burn their business down.

Stevens and Chevere, 31, have a two-year-old son. Recently, however, Chevere seems to have soured on Stevens, for which he apparently blamed her family. Local newspapers said last week that his relations with them, especially her mother, had nose-dived. He was reportedly resentful of being excluded from Thanksgiving and Christmas festivities.

Figley, the older suspect, had boarded at Stevens' house, drunk with him at a bar called McGhan's, and was regarded locally as a harmless layabout under his younger friend's sway. Last June, Stevens sent Figley on a deadly errand ! to Mount Vernon, Kentucky, police say. There, under the name Leslie V. Milbury, Figley bought 55 lbs. of Power Prime dynamite. (Government officials later noted pointedly that explosives can be sold over the counter as easily as guns could before the Brady Bill.)

Back in New York, the two used around 48 sticks' worth to craft last week's bombs, according to the federal complaint charging both men with transportation of explosives across state lines with intent to kill or maim, an offense punishable by death.

Had Stevens been planning the murders for half a year? Or were the fatal packages originally intended for some other purpose? One person who would doubtless add many questions of her own was, understandably, quiet. Reached by reporters at the house she shared with Stevens, Brenda Chevere excused herself from talking. "I've had a day," she said. "I've lost most of my family."

With reporting by Barbara Burke/New York

 
 


 

Letter bomb attacks

Five people were killed and two injured when letter bombs exploded at seven different locations in Buffalo, Rochester and Hogansburg. Eight hours later, the police arrested ex-con Michael Stevens and Earl Figley.

All of the bombs were delivered to relatives of Stevens' girlfriend, Brenda Lazore. Her mother, Eleanor Fowler, and her husband, Robert Fowler, were both killed. The police told the media that Stevens wanted to knock off Brenda's family because they were trying to break up their relationship.

"This guy just didn't want to deal with the fact that the stepfather of his girlfriend didn't like him," one investigator told The Buffalo News. The absurdity of this explanation was not overlooked by The News, which also reported that it was "a motive that hardly makes sense."

Still, that was the official police story and that's what the media pursued.

However, the media never followed up Brenda's relationship with her uncle, William Lazore, one of the bomb recipients, who lives on the edge of the Akwesasne reserve. Lazore opened the package with a rake and sustained only minor injuries to his legs. To begin with, anybody who opens their mail with a rake is probably afraid of somebody and in Lazore's case it could be any number of people. According to sources close to the reserve, Lazore is involved in cigarette smuggling and possibly gun running.

It would certainly appear that somebody has a vendetta against Lazore, considering the other recent catastrophe in his life. Eighteen days after the bombing, his daughter, Dawn Lazore, was found beaten to death on Cornwall Island.

However, Detective Klancy Grasman, who is heading up the joint investigation between the OPP and Long Sault Police into Lazore's death, said he contacted New York State Police about a possible connection with the bombing, and that so far there is "no indication that it's related to this incident at all."

 
 

A Conviction In Case Of 5 Deaths By Bombs

The New York Times

April 1, 1995

ROCHESTER A jury took just three hours today to convict a man of sending lethal package bombs to relatives of his girlfriend.

Michael Stevens, 54, was found guilty on all 16 counts in the deaths of five people in the bombing spree that took place on Dec. 28, 1993, in northern New York.

The jury, in Federal Court for the Western District of New York, was sent back into deliberations to determine whether Mr. Stevens should face multiple life sentences.

Prosecutors said Mr. Stevens plotted for at least six months in 1993 to kill Brenda Chevere's relatives and lay the blame on an alcoholic associate, Earl Figley. He was angry at Ms. Chevere's family for excluding him and afraid she would vanish with their 2-year-old son, the prosecution said.

The defense countered in closing arguments that Mr. Figley, the key prosecution witness, acted alone in building the bombs and sending them by mail, private courier and taxi over the Christmas holiday season.

Mr. Stevens, an ex-convict who spent two years in state prison on fraud charges, sent six bombs to several of Ms. Chevere's family members.

Ms. Chevere's mother, her stepfather, one of her sisters, the sister's boyfriend and a co-worker of the stepfather were killed. Four bombs exploded, one was intercepted by authorities and another failed to go off when opened by Lucille Kemp, another sister of Ms. Chevere.

Mr. Figley pleaded guilty in February and agreed to testify in exchange for a 20-year prison sentence.

"It's not the same as bringing them back," Ms. Kemp said after the verdict was read. "That's what I wish we really could do."

The prosecution called 72 witnesses during three and a half weeks of testimony; the defense called none.

Prosecutors said Mr. Stevens had Mr. Figley carry out much of the dirty work to insulate himself from blame, from buying dynamite in Kentucky using a bogus Vermont driver's permit to stealing shrapnel from a dumpster.

All the motivation and the planning, including designing and building the booby trap bombs using how-to manuals, came from Mr. Stevens, said the prosecutor, Frank Sherman.

"Earl Figley was the ultimate patsy," the prosecutor said, depicting a master-servant relationship of two loners with troubled pasts.

In contrast, the defense lawyer, William Easton Jr., described Mr. Figley, a former science teacher who lost a large chunk of his brain in a 1958 car crash, as intelligent and conniving.

Mr. Easton suggested Mr. Figley's 1971 divorce left him "deeply wounded and embittered" and that when Ms. Chevere moved in with Mr. Stevens in 1990, forcing him to live elsewhere, his anger focused on how to remove her.

"Something went wrong in Earl Figley's mind," the defense lawyer said. "He went mad." Mr. Easton continued: "Figley cannot be trusted. It's obvious you cannot convict a man based on his testimony."

 
 

Jury Is Seated in Upstate Mail Bombing

March 7, 1995

Jury selection was completed in 4 1/2 hours today in the trial of a small-time con man accused of sending bombs by mail, private courier and taxi to his girlfriend's family, killing five people.

Five women and seven men will hear the case of Michael Stevens, 54, whose his accused accomplice, Earl Figley, agreed to testify against him in return for a 20-year sentence.

Opening statements will be presented Tuesday, and the trial is expected to last four to six weeks.

Judge Michael Telesca of Federal District Court turned down Mr. Stevens's request to act as co-counsel in his defense. In his motion, Mr.

Prosecutors say Mr. Stevens conceived a lethal plot against the family of Brenda Lazore Chevere, sending bombs made of dynamite and metal in fishing tackle boxes that exploded within an hour of each other across upstate New York on Dec. 28, 1993.

Mr. Stevens apparently feared that his girlfriend was trying to end their relationship.

 
 

Plea Bargain in Mail Bombings That Killed 5 Upstate

By Lawrence Van Gelder - The new York Times

February 9, 1995

One of two men facing trial in an onslaught of mail bombs that killed five people within 90 minutes in northern New York in December 1993 pleaded guilty in Rochester yesterday and promised to testify against his accused accomplice.

In return, Earl H. Figley, 57, of Canandaigua, N.Y., was told he would receive a 20-year sentence to a Federal prison in Butner, N.C.

He is to testify against Michael T. Stevens, 54, of Victor, N.Y., a Rochester suburb. Mr. Stevens has been described by prosecutors as the mastermind of a lethal plot against his girlfriend's family that unfolded in a haze of blood and shock during the holiday season two years ago.

The dynamite-and-metal fragment bombs killed two people in a Rochester town house, another two in an armored-car depot and blasted a two-foot crater in a hardwood kitchen floor of a home where yet another victim died.

Mr. Stevens is to stand trial on March 6 before Michael A. Telesca, the chief judge of the Federal Court for the Western District of New York, who accepted Mr. Figley's plea.

"It didn't come as a surprise," said Peter J. Pullano, who, with William T. Easton, also of Rochester, is defending Mr. Stevens. "We had been expecting it for some time. Basically as we have seen it, the case against our client relies upon Earl Figley's believability, and the deal he made with the Government today shows how much he'll act in his self-interest, and we feel he will not be a believable witness for the Government."

Mr. Figley's lawyer, Jonathan W. Feldman, Federal public defender for the Western District of New York, said, "I have absolutely no doubt in my mind that Earl Figley will be a credible and truthful witness at the trial, and I don't believe the Government would have entered into the agreement with him if they had any doubts themselves."

The authorities have said Mr. Stevens hatched the plot, directed at relatives of his girlfriend, 31-year-old Brenda Lazore Chevere, because he believed they were trying to rupture their relationship. Mr. Stevens and Ms. Chevere had lived together in Victor and had a 2-year-old son. Mr. Stevens's fear of losing the child was also said to be a motive in his actions.

When the carnage inflicted by the bombs had ended, the dead included Ms. Chevere's mother at her home, her sister and her sister's boyfriend in the town house, and her stepfather and one of his co-workers in an armored-car depot.

The bombs exploded in Rochester, the Buffalo suburb of Cheektowaga, the rural community of West Valley and the St. Regis Indian Reservation, where Ms. Chevere's uncle was injured.

Two of the bombs either failed to detonate or were intercepted by the police.

Within six hours, the police arrested Mr. Figley and Mr. Stevens. Within 12 hours, Scott Sammis, an agent for the Federal Bureau of Alcohol, Tobacco and Firearms, testified at a bail hearing that Mr. Figley had admitted buying the explosives in Kentucky and drove them to Rochester in a car owned by Mr. Stevens.

According to Mr. Sammis, Mr. Figley built prototype bombs by installing wires, batteries and a switch inside plastic toolboxes at his mother's house in Rochester, then stored the real bombs in his hotel room in Canandaigua.

Mr. Sammis said the two men drove to Buffalo to send one package through the United States mails, four through a private delivery service and dispatched another through a Rochester taxi service.

Bail was denied. Mr. Stevens was held in the Monroe County jail. Bradley E. Tyler, the Assistant United States Attorney prosecuting the case, declined yesterday to say where Mr. Figley was being held. Mr. Feldman said local newspapers had carried reports of a plot to assassinate Mr. Figley.

Mr. Stevens and Mr. Figley faced such charges as conspiracy, receiving and transporting explosives with intent to kill, injure and intimidate and to damage real and personal property.

Mr. Pullano said that the Government had decided about a year ago not to pursue the death penalty in the case. But, he said, his client, Mr. Stevens, could receive multiple life sentences as well as substantial fines, if convicted.

Mr. Pullano said: "Figley from the beginning said I did it, and Stevens made me do it. And we submit that after the jury has seen the evidence, they may find that Earl Figley was responsible for his own actions and that Michael Stevens had nothing to do with this."

 
 

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 1041 August Term, 1995

(Argued: February 15, 1996 Decided: May 8, 1996)

Docket No. 95-1346

UNITED STATES OF AMERICA, Appellee,
v.
MICHAEL T. STEVENS, Defendant-Appellant.

Appeal from a final judgment of conviction entered in the United States District Court for the Western District of New York (Telesca, J.), challenging the admission of testimony by prisoners turned government informants and objecting to a number of the district court's other rulings.

PER CURIAM:

This appeal challenges a number of district court rulings, made in the course of a lengthy and highly publicized criminal trial. Almost all of the claims raised are without merit and easily resolved. One issue -- the government's use of information obtained by other prisoners from the appellant while he was incarcerated pending trial -- requires more attention. We conclude that the district court did not err with respect to the testimony it admitted.

But important constitutional interests are implicated whenever the government uses information obtained from a defendant, after arrest, outside the presence of that person's attorney. And, while the record before us amply supports the district court's holding that the government did not cross the line and use information that was obtained illegally, we write to point out how close to that line the government came.

BACKGROUND

In December 1993, five people in western New York were killed, and several others were injured, by letter bombs. All of the individuals who received bombs in the mail were relatives of appellant Michael Stevens' girlfriend. After the bombings, police went to the home where Stevens and his girlfriend were living. They wanted her to identify one of the bodies. After meeting Stevens, the police asked him to accompany them to the police station to answer some questions. He agreed and went with them.

During the questioning that followed, Stevens -- who was clearly not yet under arrest -- confessed to sending the bombs. Some time thereafter, Stevens and a co-defendant were charged with unlawfully transporting, possessing, and using explosive devices to damage property and cause death, in violation of 18 U.S.C. 2, 842(a)(3), 844(d), 844(i), and 924(c)(1) and 26 U.S.C. 5861(d) and 5871.

While he was incarcerated, Stevens made several attempts to convince fellow inmates to assist him in disrupting the investigation of his crime. His trust was misplaced. At least seven of the prisoners he contacted sought to provide the government with the information they learned, in the hopes of receiving benefits in return.

At trial, defense counsel objected to the introduction of testimony from these inmates, arguing that the information being proffered was obtained in violation of Stevens' constitutional right to counsel because the prisoners were acting as government informants when they received it. Although the government conceded that some of the testimony was properly excluded, it argued, and the court agreed, that evidence provided by three of Stevens' fellow inmates was admissible.

One of these, Maximillion Franco, testified to conversations in which Stevens asked him to locate someone who could make a payment on a rental storage locker. Some of Stevens' statements concerning the locker led Franco to believe that the locker might contain explosives. After Stevens gave Franco the locker number and the telephone number of the storage facility, Franco called the government and offered to make this information available to them.

In court, Franco said that he had had two conversations with government agents. During the first, he obtained a promise that if he provided the government with useful information he would receive some cash benefit. At the second, six days later, he gave the government the evidence that he had gotten from Stevens. Franco ultimately received $600 for his testimony. In addition, since he was to be extradited to Texas (where he is currently jailed) he was promised a letter to his parole board there, describing his cooperation.

The district court concluded that all of the incriminating information had been received by Franco before he had initiated contact with the government. At that time, he was not yet a government informant. Accordingly, the court held that his testimony was admissible.

Barry Berman, another prisoner, testified that Stevens sought his help in formulating an alibi for December 27 and 28, 1993. Stevens gave Berman three documents -- one statement to be signed by Stevens' mother, and two to be signed by his co-defendant.

He asked Berman to give the statements to Stevens' girlfriend, who would then get the signatures. Berman stated that Stevens had said that he intended to kill the co-defendant after the co-defendant had signed the alibi.

Like Franco, Berman had several conversations with government agents. Though Berman had initiated contact with the government agents and had met with them two or three times while still in jail, only later, when he was free, did he give the government the documents he obtained from Stevens.

Berman admitted, moreover, that it was after he had telephoned the government, and offered to cooperate, that Stevens had given him some of the documents. But he said that this had happened solely at Stevens' own direction. Berman also stated that he received approximately $700 in exchange for his cooperation.

A third government witness, David Streb, testified that Stevens had talked with him about Stevens' plan to kill his co-defendant. Streb immediately contacted government agents and offered to provide them with information. In exchange, he hoped to get his own sentence shortened. Streb had several meetings with Stevens after this initial contact with the government. In some of these, Streb received a variety of incriminating documents from Stevens.

According to Streb's testimony, he contacted the agents on a Friday and set up a meeting with them for the following Monday. On his own initiative, he used the intervening weekend to obtain the incriminating documents. In return for the information, the government posted $500 bail for Streb.

On the basis of this and much other evidence, Stevens was convicted on sixteen counts related to the possession and use of explosive devices. He was sentenced to three terms of life imprisonment without possibility of parole, and several other terms of years to be served either concurrently or consecutively with these life terms. He now appeals, asking this Court to reverse his conviction because of the use of testimony allegedly obtained in violation of his constitutional rights. He also claims a variety of other trial errors.

DISCUSSION

A. The Testimony by Stevens' Fellow Inmates

Stevens contends that the government's use of testimony offered by inmates with whom he had spoken while incarcerated violated his Sixth Amendment right to counsel under the rule announced in Massiah v. United States , 377 U.S. 201 (1964). In Massiah , the Supreme Court held that it is a violation of the Sixth Amendment right to counsel for a private individual, acting as a government agent, to "deliberately elicit[]" incriminating statements from the accused. Id. at 206.

The Massiah rule covers only those statements obtained as a result of an intentional effort on the part of the government , so information gotten before the inmates became agents/informants is not protected by the rule.

If, however, an informant obtains some initial evidence, approaches the government to make a deal on the basis of that information, and then -- with the backing of the government -- deliberately elicits further evidence from an accused, the materials gotten after such government contact are properly excluded under the Massiah rule.

Stevens argues that the three inmates to whom he gave the incriminating statements and documents admitted at trial were acting as government informants throughout their communication with him. Although he apparently concedes that his initial contact with each of them occurred before they had formalized agreements with the government, Stevens asks us to conclude that they were informants within the meaning of Massiah throughout their interactions with him.

He argues that if an inmate receives information from another inmate and subsequently transmits it to the government, that information is inadmissible under the Massiah rule whenever the information is received in the hope of exchanging it for a benefit (for example, trading it for a reduction in sentence).

This contention fails for two reasons. First, to treat every inmate who hopes to cut some future deal as a "government informant" is to extend the idea behind Massiah far beyond its natural reach, and that we are not willing to do. Second, Stevens himself initiated the conversations with Franco, Berman, and Streb during which they obtained the challenged information. And the Massiah rule does not apply to statements made completely voluntarily by an accused. United States v. Accardi , 342 F.2d 697, 701 (2d Cir.), cert. denied , 382 U.S. 954 (1965).

Massiah is supposed to cover situations that "look" like government interrogations. Just as the Sixth Amendment is not violated -- even after counsel has been requested -- if a defendant begins confessing to police officers without any prompting or questioning by those officers, so the right to counsel is also not infringed when a defendant approaches an informant and admits to a crime without any urging on the part of the informant. Kuhlmann v. Wilson , 477 U.S. 436, 459 (1986); United States v. Rosa , 11 F.3d 315, 329 (2d Cir. 1993), cert. denied , 114 S. Ct. 1565 (1994).

There is support in the record before us for the conclusion that contact between Stevens and the other inmates was primarily at his own behest and that this continued to be so even after the inmates had contacted the government. This alone would not be enough to avoid the Massiah rule if the government had actually encouraged contact between the informants and Stevens. See Maine v. Moulton , 474 U.S. 159, 176 (1985); Jenkins v. Leonardo , 991 F.2d 1033, 1036 (2d Cir.), cert. denied , 114 S. Ct. 231 (1993).

But the government swore that in their initial meeting, the investigating agent told Berman to avoid affirmatively seeking further contact with Stevens, and that neither Franco nor Streb was encouraged to acquire any further information from the defendant.

The district court, having heard the testimony and arguments below, concluded both that the contacts between Stevens and his fellow inmates took place at Stevens' own urging, and that the statements he made to the informants were without encouragement from the government.

The information either was obtained before the inmates could properly be described as government agents or was spontaneously offered by Stevens himself. The record, while not pellucid, provides adequate support for this conclusion.

We wish to point out, however, that the government appears to have strayed dangerously close to the Massiah line in this investigation. We do this because Massiah demarcates a constitutional boundary, because we wish to avoid even inadvertent crossings of that boundary by the government, and because few things are more troubling to courts than the need to exclude important evidence as a result of careless government behavior.

We note that, in the case before us, the government was initially less than forthcoming about precisely when Stevens gave incriminating information to Franco, Berman, and Streb.

The affidavit of the investigating officer did not provide a sufficiently clear explanation of the timing and nature of the various contacts the inmates had with Stevens and with government agents. As a result, the district court at first declined to reach a judgment on the admissibility of the testimony provided by these informants. Judge Telesca, instead, felt compelled to hold hearings outside the presence of the jury before letting any of the witnesses testify.

At these hearings, the court allowed the government to make an offer of proof concerning the circumstances in which the information provided by each witness came to the government's attention.

Each of these witnesses, and the investigating officers with whom they had spoken, affirmed that the initial contact with the government had been made by the informants themselves, and that no government official had asked or even encouraged the prisoners to obtain information from Stevens.

The inmates further stated that anything they received from Stevens after the initial government contact had not been "deliberately elicited" by them, but had, instead, come entirely at Stevens' own prompting.

The district judge credited the statements made in the government's original, inadequate, affidavit and in the hearings he had required prior to the presentation of each witness' testimony. There being no suggestion that the court's conclusions as to these essentially factual questions lacks support in the record, we will not disturb the court's findings.

But we note that a judge of less experience and ability might not have taken the precautions that Judge Telesca did. Had that happened, and especially since the government has long been on notice that the use of prison informants risks treading on the constitutional rights of an accused at a time when the accused is "particularly susceptible to the ploys of undercover Government agents," United States v. Henry , 447 U.S. 264, 274 (1980), this Court could well have found itself unable to sustain the conviction of someone found guilty of the most heinous of crimes. 

B. Other Issues Raised on Appeal

Stevens raises a number of other issues on appeal. Although none of them ultimately has merit, we address each of them briefly.

1. Venue

Stevens asserts that the pre-trial publicity in his case was so substantial, and contained so much inherently prejudicial information, that the district court should have granted his request for a change of venue. A district court has discretion to decide whether to transfer a case because unfavorable press makes a fair trial unlikely, and "we will overturn the denial of such a motion only upon a clear showing of abuse of that discretion." United States v. Maldonado-Rivera , 922 F.2d 934, 967 (2d. Cir. 1990), cert. denied , 501 U.S. 1211 (1991).

Substantial publicity alone is not enough to require a change of venue. Dobbert v. Florida , 432 U.S. 282, 303 (1977); see Murphy v. Florida , 421 U.S. 794, 799 (1975). In this case, even though it seems that some of the information obtained by the media may have been released by the government -- and this fact can be an important factor in weighing the prejudicial effect of pre-trial coverage, Maldonado-Rivera , 922 F.2d at 967 -- it also appears that much of the publicity was generated by the defendant himself. (The record shows that Stevens made persistent efforts to hold jailhouse interviews.) Under the circumstances, it was not an abuse of discretion for the district court to conclude that the media coverage was not unduly prejudicial.

Of course, even if the media coverage was not unusually harmful, Stevens might have had a right to a change of venue had he been able to show that the impanelled jury was in fact impermissibly biased. Stevens does not, however, put forward any evidence of actual prejudice.

He makes conclusory statements that the judge was not sufficiently "thorough" in questioning jurors about their ability to "lay aside [their] impression[s] or opinion[s] and render a verdict based on the evidence presented in court," Irvin v. Dowd , 366 U.S. 717, 723 (1961).

But Judge Telesca dismissed numerous prospective jurors specifically because they had indicated uncertainty about their ability to be impartial. And the defense counsel was present throughout the voir dire, and had every opportunity to ask whatever further questions might have helped to uncover any potential prejudice on the part of other jurors.

The jury that was selected was composed of individuals who maintained that, although they had heard of the case through media reports, they nevertheless believed they could reach a verdict based solely on the evidence presented to them in the courtroom. This is what the law requires. See Knapp v. Leonardo , 46 F.3d 170, 176 (2d Cir.) ("[T]he Constitution does not require ignorant jurors, only impartial ones."), cert. denied , 115 S. Ct. 2566 (1995). There is no reason to believe that the district court abused its discretion in concluding that an impartial jury could be -- and had been -- impanelled without a change of venue.

2. Request to Serve as Co-Counsel

Stevens also challenges the district court's decision to deny his motion -- made just after the start of jury selection -- to serve as "co-counsel" at his trial. It is unclear whether Stevens intended this motion as a request to represent himself -- without any legal assistance -- or as a request to work with his lawyers in his own defense. Whichever way the motion is construed, the district court acted well within its discretion in denying the request.

A defendant in a criminal trial has an absolute right to represent himself, and to reject the aid of legal counsel. If a defendant asks to proceed pro se before the trial commences, that request must be granted. United States ex rel. Maldonado v. Denno , 348 F.2d 12, 15 (2d Cir. 1965), cert. denied , 384 U.S. 1007 (1966).

But once a trial has begun, a defendant's right to represent himself "is sharply curtailed," and the judge considering the motion must weigh "the prejudice to the legitimate interests of the defendant" against the "potential disruption of proceedings already in progress." Id. How this balance should be struck is ultimately within the sound discretion of the district court, and we find nothing in the record that suggests that the court might have abused its discretion in denying Stevens' motion.

There is, in any event, a crucial difference between a defendant seeking to represent himself and a defendant asking to serve as "co-counsel" in his defense. The defendant has no absolute right to the latter. Instead, "[t]he decision to grant or deny hybrid representation' lies solely within the discretion of the trial court." United States v. Tutino , 883 F.2d 1125, 1141 (2d Cir. 1989), cert. denied , 493 U.S. 1081 (1990).

The district court considered Stevens' motion carefully, and denied it after concluding 1) that Stevens was not claiming either that his counsel was not adequately representing him, or that he would be unduly prejudiced by not being permitted to serve as co-counsel, and 2) that Stevens' appointment as co-counsel would be disruptive. These conclusions are amply supported in the record.

Accordingly, we hold that whether Stevens' motion is viewed as a request to represent himself -- made after the start of trial -- or a request to serve as co-counsel, the district court did not abuse its discretion in denying the motion.

3. Jury Instructions

Stevens makes two objections to the district court's jury instructions. First, he argues that the judge erred by refusing to instruct the jurors that, in determining what weight they should give to his statements to the police, they should consider the degree of voluntariness of these admissions. Throughout the trial, Stevens maintained that his confession was obtained under coercive conditions, and that the jurors should accord it less than the usual weight.

The defendant does not argue that the coercion of which he complained was at a constitutionally impermissible level. (A magistrate judge had already determined in a suppression hearing that Stevens had made the statements voluntarily, and at a time when he was not under arrest.)

But Stevens argues that 18 U.S.C. 3501, which governs the admission of confessions in trials, requires the judge to instruct the jurors that they can consider the degree of voluntariness of statements in determining what weight to accord to them. By failing to do so, Stevens maintains, the judge committed reversible error.

Stevens' contention is without merit. This Court has ruled that 18 U.S.C. 3501 applies only to confessions made during interrogation following arrest or detention. United States v. Valdez , 16 F.3d 1324, 1333 (2d Cir.), cert. denied , 115 S. Ct. 60 (1994). Since the magistrate judge concluded, and the district judge agreed, that Stevens had confessed without interrogation, and that he was not arrested or detained at the time of the confession, Valdez requires us to hold that the statute on which Stevens relies does not apply.

The defendant also objects to the court's instruction that the jurors could consider his use of false names between December 1992 and December 1993 as evidence of consciousness of guilt. Stevens argues that there was evidence at trial indicating that the false names were used in connection with an entirely separate scheme.

Accordingly, he maintains, the judge erred in instructing the jurors that they could consider the false names as evidence of consciousness of guilt for the crimes charged in this case.

The jury instruction to which the defendant objects, however, explicitly took safeguards against any such possible misunderstanding. The court stated that the jury could consider the use of the false names "if [it] find[s] that the defendant knowingly used a name other than his own . . . with respect to the crimes charged in this indictment ," (emphasis added). Since there was evidence on the basis of which the jury could make such a finding, Stevens' complaint about this instruction is without merit.

4. Evidentiary Rulings

Stevens challenges a number of the judge's evidentiary rulings, primarily on the ground that the court allowed testimony concerning the defendant's prior bad acts, in violation of Federal Rule of Evidence 404(b). A trial judge has broad discretion to regulate the admission of evidence, and we will reverse a district court's conclusions only if they constitute a clear abuse of discretion -- that is, if "the district court acted arbitrarily and irrationally." United States v. Myerson , 18 F.3d 153, 166 (2d Cir.) (internal quotation marks omitted), cert. denied , 115 S. Ct. 159 (1994). There is nothing in the record here to suggest that the district court so acted.

Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." But this Circuit takes an inclusive approach to prior bad act testimony: such testimony can be admitted for any purpose except to show criminal propensity. See United States v. Brennan , 798 F.2d 581, 589 (2d Cir. 1986).

As to each of the pieces of evidence to which Stevens objects, adequate other reasons for admission existed. Accordingly, we cannot say that any were offered only to show criminal propensity. For example, the court's decision to allow testimony a) concerning the defendant's comfort with explosives and b) mentioning his subscriptions to magazines containing information about explosives is amply justified by the need to refute the defendant's claim that he was ignorant about explosives.

Similarly, evidence about earlier criminal schemes between Stevens and his co-defendants was admissible to show that the co-defendants had an ongoing relationship with Stevens.

Moreover, even were it the case that any of the prior bad act testimony offered by certain government witnesses served no clear purpose other than to suggest criminal propensity, such testimony formed so very small a fraction of any individual witness's testimony that we cannot say that the district court erred in admitting it. See United States v. Roldan-Zapata , 916 F.2d 795, 804 (2d Cir. 1990), cert. denied , 499 U.S. 940 (1991).

CONCLUSION

We have examined all of the defendant's arguments and found them meritless. The judgment of conviction against appellant Michael Stevens is therefore affirmed.

 

 

 
 
 
 
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