U.S. v. Nero

• Citation: 733 F.2d 1197
• Decision Date: 25 April 1984
• Docket Number: No. 83-2095,83-2095
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Colleen NERO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1197

733 F.2d 1197

UNITED STATES of America, Plaintiff-Appellee, v. Colleen NERO, Defendant-Appellant.

No. 83-2095.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 29, 1983.

Decided April 25, 1984.

Frank J. Schiro, Salza & Schiro, Ltd., Milwaukee, Wis., for defendant-appellant.

Mel S. Johnson, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before POSNER, COFFEY and FLAUM, Circuit Judges.

COFFEY, Circuit Judge.

The defendant-appellant, Colleen Nero, was convicted of two counts of interstate transportation of forged securities (traveler's checks) in violation of 18 U.S.C. section 2314. On April 18, 1983, following the entry of judgment of conviction, the defendant filed a motion for a new trial on the basis of newly discovered evidence pursuant to Rule 33, Federal Rules of Criminal Procedure. The district court issued a written decision on May 27, 1983, denying the defendant's motion for a new trial. The defendant appeals the denial of her motion for a new trial.

The issues on appeal are whether a new trial should have been granted on the basis of newly discovered evidence and whether the defendant was provided with effective assistance of counsel. For the reasons indicated below, we find that the district court did not abuse its discretion in denying the defendant's motion for a new trial and that the ineffective assistance of counsel issue is not properly before this court. We affirm.

Briefly summarized, the record indicates that on October 26, 1982, the defendant was indicted on two counts of interstate transportation of forged traveler's checks. The government's theory of the case was that the traveler's checks had been stolen by the defendant from Dorner's World of Travel, Inc. in Green Bay, Wisconsin during her employment there. Count I of the indictment alleged that the defendant used seven individually identified American Express traveler's checks, which were the property of Dorner's, to purchase roundtrip airfare between Chicago and Las Vegas over the weekend of September 12-14, 1981. Count II alleged that six other American Express traveler's checks were used by the defendant in Las Vegas during that same weekend. On January 13-14, 1983, the case proceeded to a jury trial.

Certain facts and exhibits were received in evidence without dispute, including the facts that: the defendant worked for Dorner's at the time the checks were stolen; as an employee the defendant had access to the vault from which the checks were stolen; the traveler's checks used in Chicago on September 12, 1981, to purchase roundtrip airline tickets from Chicago to Las Vegas, and those used to make various purchases in Las Vegas, were all cashed by a person using the name "Debra Trinkle"; and the defendant's fingerprints were found on some of the traveler's checks in question.

The government's first witness was Charlie Raether, president of Dorner's. Mr. Raether testified that the defendant, as an outside group sales manager at Dorner's, would not ordinarily handle traveler's checks. He further stated that the defendant was absent from work on September 14, 1981, and that he recalled receiving a telephone call from her on that date during which she stated that she was ill and would not report for work on that date, but did not mention that she was in Las Vegas.

Melinda Fitzgerald Kidd, another government witness, was the controller at Dorner's. She testified to the procedures used at Dorner's to avoid having any employee actually touch any traveler's checks. Ms. Kidd's record revealed that the defendant never sold traveler's checks for Dorner's as that was not a part of her duties. On the basis of the audit procedures utilized at Dorner's, Ms. Kidd identified the traveler's checks in question as being among those found missing from the vault in September of 1981.

The government also called Fred Boyd, Wisconsin Station Operations Manager at United Airlines. Mr. Boyd identified seven traveler's checks issued to a "Debra Trinkle" as being those used to purchase a roundtrip ticket between Chicago and Las Vegas, departing on September 12, 1981, and returning on September 14, 1981. Mr. Boyd also testified that United Airlines' records reflected that the original return flight was scheduled to depart from Las Vegas at 1:40 p.m. on September 14, but was re-scheduled to a later flight, departing at 4:00 p.m. on the same date.

FBI Agent Dixie Lee Vaughn, another government witness, testified that the defendant asserted in a statement taken from her in May 1982, that she did not handle traveler's checks for Dorner's and had no access to them.

The defendant's estranged husband, Dean Nero, testified that in September of 1981, he drove the defendant from their home in Green Bay to O'Hare Field in Chicago, to enable her to catch her flight to Las Vegas where she intended to arrange a sale of their townhouses located there. Mr. Nero recalled receiving a phone call from his wife on September 14, 1981, informing him that the real estate closing would be delayed and that she would be taking a later flight. On cross-examination, Mr. Nero stated that he believed he had driven his wife to Chicago for the flight to Las Vegas because the Green Bay airport was fogged in. He could not remember whether he had made a similar trip with the defendant in August of 1981, when she flew to Alaska. Finally, Mr. Nero recalled that one of the tenants in their Las Vegas townhouses was named Debra Trinkle.

William Janson, the individual who bought the Las Vegas townhouses from the defendant on September 14, 1981, and who also happened to be an FBI agent, corroborated Mr. Nero's testimony. Mr. Janson testified that he received a call from the defendant on September 12, 1981, informing him that she had just arrived in Las Vegas. On the next day, Mr. Janson met the defendant to inspect the townhouse and, in a passing conversation, the defendant stated that her husband had driven her from Green Bay to Chicago and that she had flown on United Airlines from Chicago to Las Vegas. Mr. Janson also testified that on September 14, he met the defendant at 2:00 p.m. for the real estate closing, at which time he observed the defendant call her husband and heard her tell him that the real estate closing had been delayed and that she would be taking the 4:00 p.m. flight from Las Vegas.

Debra Trinkle Lawrence testified that she was a tenant in one of the Nero's Las Vegas townhouses from April 1 through August 30, 1981. Ms. Trinkle stated that she had moved to Arizona in September of 1981, had not been in Las Vegas during that time, and did not cash any traveler's checks in Las Vegas during the time in question. Ms. Trinkle reviewed the traveler's checks bearing the endorsement of "Debra Trinkle" and testified that the endorsements were not in her handwriting.

FBI Investigating Agent, John Thomas Aziere, testified that he discussed the case with the defendant and her trial counsel and took statements from her on December 22 and 30, 1981, and again on December 2, 1982. According to Mr. Aziere, the defendant originally denied that she was in Las Vegas in September of 1981, but after he confronted her with information showing that she had been at the real estate closing, she admitted her presence in Las Vegas from September 12 to 14, 1981. According to Mr. Aziere, the defendant also told him that she had flown to Las Vegas on a friend's airline pass, but refused to reveal the name of the friend.

The defendant testified on her own behalf. She denied ever taking any traveler's checks from Dorner's, or ever forging any such checks. The defendant denied flying to Las Vegas via United Airlines, and denied paying for her ticket with the traveler's checks. She claims she flew to Las Vegas from Milwaukee on Republic Airlines using an airline pass provided by Republic Airlines. The defendant testified that her husband drove her from Green Bay to Milwaukee for her September flight to Las Vegas. She further testified that in August of 1981, her husband had driven her from Green Bay to Chicago to allow her to fly to Alaska.

The defendant also questioned the credibility of her husband and the three FBI agents who had testified for the government. She believed Agent Aziere misinterpreted her answers since she only denied traveling to Las Vegas via United Airlines, that Agent Vaughn was simply mixed up about her answers, and that Agent Janson was wrong in his testimony. The defendant admitted knowing Debra Trinkle, but stated she only knew her as "Debra Stevens" when she was a tenant in Las Vegas. The defendant testified that she had handled traveler's checks on various occasions while an employee at Dorner's. Finally, the defendant admitted calling Mr. Raether on September 14, 1981, and telling him she could not come into work that day because she was sick.

On January 14, 1983, the jury returned a verdict of guilty on both counts. Between the time of conviction and sentencing, the defendant replaced her trial attorney with new counsel, Mr. Frank Schiro. After sentencing, the defendant's counsel filed a motion for new trial based on newly discovered evidence. That motion did not allege ineffective assistance of counsel on the part of the defendant's trial lawyer.

The newly discovered evidence on which the defendant based her motion for a new trial consists of a February 12, 1983, letter purportedly signed by Dean Nero, recanting his trial testimony; a letter postmarked January 20, 1983, also purportedly signed by Dean Nero to Green Bay airport's Weather Service Office which inquires as to whether the airport was fogged in on September 12, 1981; weather reports from the National Weather Service which allegedly show that the Green Bay Airport was not fogged in on September 12, 1981; a March 9, 1983, letter from the defendant to the president of Republic Airlines reflecting her difficulty in obtaining flight documentation from Republic Airlines for...