U.S. v. Ferrera, 82-1255

• Decision Date: 11 October 1984
• Docket Number: No. 82-1255,82-1255
• Citation: 746 F.2d 908
• Parties: 16 Fed. R. Evid. Serv. 712 UNITED STATES of America, Appellee, v. Ricardo FERRERA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 908

746 F.2d 908

16 Fed. R. Evid. Serv. 712

UNITED STATES of America, Appellee, v. Ricardo FERRERA, Defendant, Appellant.

No. 82-1255.

United States Court of Appeals First Circuit.

Argued June 6, 1984.

Decided Sept. 28, 1984.

As Amended Oct. 11, 1984.

Thomas E. Peisch, Boston, Mass., with whom Burns & Levinson, Boston, Mass., was on brief, for defendant, appellant.

Thomas J. Drinan, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Circuit Judge, STEWART, ^* Associate Justice (Retired), and BREYER, Circuit Judge.

BREYER, Circuit Judge.

The government charged defendant Ferrera with two counts of transporting in interstate commerce several thousand dollars worth of checks that he had obtained through fraud. See 18 U.S.C. Sec. 2314. Essentially, it sought to prove that Ferrera deliberately gave to Larry Hector, a Canadian grain grower and broker, the impression that Ferrera was well connected with Conasupo, the Mexican government's grain buying department, and that Conasupo had placed a firm order through Ferrera for the purchase of about $1.5 million worth of Canadian grain from Hector's company. These impressions--which the government sought to prove false--led Hector to give Ferrera money, including several checks that Ferrera transported from Canada to the United States, where he deposited them in a bank account and successfully drew against some of them before Hector stopped payment. The jury found Ferrera

                guilty on both counts.  The court sentenced him to two years in jail followed by two years probation conditioned upon his making "restitution in the amount of $32,577.98."    Ferrera appeals, attacking both the validity of his conviction and the lawfulness of the restitution order.  We find that with the exception of one aspect of his challenge to the restitution order, Ferrera's appeal is without merit
                

I

a. Ferrera claims that the government's case against him was so weak that the district court should have directed a verdict in his favor. Viewing the evidence in the light most favorable to the government, however, see, e.g., United States v. Drape, 668 F.2d 22, 25 (1st Cir.1982); United States v. Murray, 621 F.2d 1163, 1166 (1st Cir.), cert. denied, 449 U.S. 837, 101 S.Ct. 112, 66 L.Ed.2d 44 (1980), we find the evidence more than sufficient for conviction.

The applicable statute punishes one who

transports in interstate or foreign commerce any ... securities or money, of the value of $5000 or more, knowing the same to have been ... taken by fraud ....

18 U.S.C. Sec. 2314. The only seriously disputed question at trial concerned fraud. The government, in the indictment and bill of particulars, charged that this fraud consisted, in part, of Ferrera's falsely leading the victim Hector to believe (1) that Ferrera was authorized to enter into grain contracts on behalf of Conasupo, and (2) that a telex purporting to confirm an order for Hector's grain came from Conasupo.

The evidence establishing the alleged fraud consisted largely of Hector's testimony. He described, among other things, how Ferrera gave the impression that he was an important international grain dealer, who dealt regularly with Conasupo and who could arrange for a large Conasupo purchase of Hector's grain. When the telex arrived, Ferrera (according to Hector's testimony) kept jumping up and down, telling Hector he was rich and ordering drinks. The telex said in part, "accept this as a firm order from Conasupo." (See Appendix) Ferrera then convinced Hector to give him several checks covering Ferrera's "commission."

Ferrera now points out that the telex, if read closely, says it comes from Eagle Grain (Ferrera's firm), not from Conasupo. But the jury might well have believed on the basis of Hector's testimony that Hector overlooked this fine point, and that Ferrera intended him to overlook it. Alternatively, viewing the matter more favorably for Ferrera, the jury might have thought Ferrera was trying to get Hector to believe (on the basis of the telex) that Conasupo had placed a firm order, not that the telex was the firm order. But this distinction is not sufficient to save Ferrera; for, any deviation from the bill of particulars arising from this distinction is slight and not sufficiently prejudicial to warrant reversal. See, e.g., United States v. Flaherty, 668 F.2d 566, 582 (1st Cir.1981) (concerning variance from indictment); United States v. Francisco, 575 F.2d 815, 818-19 (10th Cir.1978) (concerning variance from bill of particulars).

b. The prosecutor, in his opening statement, said that, after Hector received the telex, Ferrera told Hector they would enter other commodity deals together; that Ferrera suggested they merge their companies; and that Ferrera gave Hector $200,000 in promissory notes as a step towards merger. The government, however, introduced no evidence in respect to the $200,000 notes, and Ferrera now claims that the prosecutor's reference to the notes requires a new trial. Ferrera's counsel did not object to the opening statement at the time, nor did he seek a curative instruction or other relief at any point during the trial. He now claims, however, that the reference to the notes followed by the failure to introduce any supporting evidence was "plain error." See Fed.R.Crim.P. 52(b).

Our reading of the record convinces us that the prosecutor's statement prejudiced Ferrera very little, if at all. The conduct in c. Hector testified that, in addition to the checks that Ferrera transported from Canada to Massachusetts, he gave Ferrera $18,000 as a 'loan'--a loan he apparently made because he expected that Ferrera would become 'entitled' to at least $18,000 in future commissions on sales Hector expected to make with Ferrera's help. In his closing argument, the prosecutor said,

                question--providing Hector with $200,000 in promissory notes--is not itself blameworthy.   Cf. United States v. Steinkoetter, 593 F.2d 747 (6th Cir.1979) (per curiam) (prejudice from references in opening statement to series of fatal bombings unconnected to crime charged and not subject of any subsequent evidence).  And, in context, the giving of the notes was mentioned as but one more piece of cumulative evidence suggesting Ferrera was trying to gain Hector's confidence by passing himself off as a big-time international commodities dealer.  The district court cautioned the jury not to take counsels' statements as evidence.  Had the court been asked for an additional cautionary instruction at the close of the trial, it might well have issued it.  And a cautionary instruction would have sufficed, in this situation, to cure any possible harm.  The prosecutor's behavior here was a far cry from the conduct at issue in cases where new trials have been granted.   See, e.g., Stumbo v. Seabold, 704 F.2d 910, 911 (6th Cir.1983) (multiple "egregious acts of prosecutorial misconduct," relating to questioning of witnesses, use of inflammatory language, and impermissible closing arguments);  United States v. Corona, 551 F.2d 1386, 1391 (5th Cir.1977) (prosecutor in closing statement "singlehandedly violated each" of ABA's standards for prosecution jury arguments);  cf. United States v. DeVincent, 632 F.2d 147, 153 (1st Cir.1980) (conviction upheld where opening statement did not "poison the minds of the jury");  Government of Virgin Islands v. Turner, 409 F.2d 102, 103-04 (3rd Cir.1968) (similar).  We find no "plain error."
                

If you have any doubt about that, consider the letter in evidence written by Ricardo [Ferrera]: "Yes, I will get you the $18,000 back." Quite clear it was a loan.

The letter from which he quoted was not in evidence. And Ferrera claims the prosecutor's statement warrants a new trial.

We have previously held, however, that

[a]rguing evidence not presented is harmless error, ... if the judge, on objection, instructs the jury that closing arguments are not evidence and that the jury's recollections control, and if the absent evidence does not weigh heavily on the other evidence in the case.

United States v. Flaherty, 668 F.2d at 595. In this instance, the prosecutor corrected himself immediately, and the district judge gave an appropriate curative instruction. The misstatement was not critical; the $18,000 was not a central matter; the payments at issue in the case were the other, transported checks. Moreover, the existence of the $18,000 'loan' was suggested by other evidence, namely Hector's uncontradicted testimony, and whether or not the funds were intended as a loan--the issue to which the absent letter related--was of limited relevance, at best. In addition, the prosecutor's misstatement appears accidental, not deliberate. The cases Ferrera cites involve more seriously prejudicial misstatements or more egregious prosecutorial behavior than are involved here. See United States v. Brainard, 690 F.2d 1117, 1122 (4th Cir.1982) (prosecutor transforms defendant's innocent testimony into "unequivocal inculpatory statements with respect to the only disputed issue in the case"); United States v. Fearns, 501 F.2d 486 (7th Cir.1974) (prosecutor in closing argument buttresses key witness's credibility by knowingly and repeatedly discussing her prior consistent statements that were not introduced into evidence); United States v. Guajardo-Melendez, 401 F.2d 35, 39-40 (7th Cir.1968) (prosecutor mistakenly attributes to witness remarks directly undercutting defendant's central defense). Following Flaherty, we conclude a new trial is not required d. Ferrera claims it was error for the judge to admit evidence (1) that Hector paid Ferrera's living expenses on his trips to Canada, (2) that Hector provided him the $18,000 loan, and (3) that Ferrera falsely told a bank teller, when depositing Hector's checks, that they were written not in Canadian, but in (more valuable) United States dollars. Ferrera points to Fed.R.Evid. 404(b), which forbids...