U.S. v. Greene, 77-5674

• Decision Date: 21 August 1978
• Docket Number: No. 77-5674,77-5674
• Citation: 578 F.2d 648
• Parties: 3 Fed. R. Evid. Serv. 617 UNITED STATES of America, Plaintiff-Appellee, v. Edward L. GREENE and Salvatore Cataldo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 648

578 F.2d 648

3 Fed. R. Evid. Serv. 617

UNITED STATES of America, Plaintiff-Appellee, v. Edward L. GREENE and Salvatore Cataldo, Defendants-Appellants.

No. 77-5674.

United States Court of Appeals, Fifth Circuit.

Aug. 21, 1978.

Roy Beene, Houston, Tex., for defendants-appellants.

Kenneth J. Mighell, U. S. Atty., Fort Worth, Tex., Judith A. Shepherd, James A. Rolfe, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before CLARK, FAY and VANCE, Circuit Judges.

FAY, Circuit Judge:

The defendants Greene and Cataldo were convicted in a jury trial of making a materially false statement to a federally insured bank in a loan application in violation of 18 U.S.C. § 1014. ¹ The facts underlying this appeal are relatively simple and do not require extensive treatment. Considered in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the facts reveal that in 1972 Greene and Cataldo became participants in the Witness Protection Program conducted by the Department of Justice in order to avoid incarceration for offenses which they had committed. They testified against various figures associated with organized crime and in return were relocated and furnished with new identities and background information. In 1974 both defendants moved to Dallas, Texas, where they hoped to jointly establish a used car dealership and repair shop. Greene established a banking relationship with the Lakewood Bank and Trust Company of Dallas in early 1974 and the institution subsequently financed the purchase of several automobiles by Greene. In the fall of 1974 Greene and Cataldo approached Mr. Hudson Mead, a loan officer for Lakewood, and sought to secure a loan to finance the dealership-repair shop. Greene informed Mead that he had exhausted his capital in purchasing equipment to be used in the repair business and that the loan was needed to supply operating capital. Lakewood agreed to loan the defendants $9,000 and the defendants pledged various pieces of equipment as collateral. Mead requested a copy of the bill of sale evidencing Greene's ownership of the equipment and on October 4, 1974, the defendants supplied a bill of sale showing that the equipment had been purchased one month earlier from Mr. Gary Triano of Arizona Frontier Used Cars in Tucson, Arizona. The defendants subsequently defaulted on the $9,000 obligation and returned to Arizona, taking the collateral with them.

In the spring or early summer of 1975, the defendants were taken to Washington, D.C. by the Department of Justice and threatened with prosecution in this case after it was learned that the bill of sale supplied to Lakewood was forged. The defendants continued to testify on behalf of the government but, to their chagrin, were indicted in this case on March 30, 1977, and trial commenced on September 19, 1977. The government introduced the testimony of Mr. Mead who detailed his banking relationship with Greene and the circumstances leading up to the $9,000 loan, including receipt of the forged bill of sale. Mr. Gary Triano, whose signature purportedly appears on the bill of sale, testified that neither he nor anyone with his consent signed the bill of sale and that the equipment in question had not been purchased from Arizona Frontier Used Cars in Tucson, Arizona. The defendants attempted to establish that their lives were endangered as a result of providing government testimony against organized crime figures and, accordingly, it was necessary to conceal where the equipment had actually been purchased in order to protect themselves. Second, the defense challenged the materiality of the forged bill of sale, contending that ownership of the equipment by the defendants was the crucial factor and that where and from whom the equipment had actually been acquired was immaterial from the bank's perspective. Both defendants were found guilty and this appeal followed.

The defendants raise a panoply of errors on appeal, many of which are ripe for summary disposition. The defendants do, however, raise a serious question as to the propriety of various statements made by the prosecuting attorney during argument to the jury. After careful scrutiny of the entire record, we have concluded that the convictions of the defendants are due to be affirmed.

1. Prosecutorial Argument

The defendants contend that their convictions should be reversed because the prosecutor engaged in improper, prejudicial comment during his argument to the jury. In order that the comments of the prosecutor may be viewed in prospective, we have set out below pertinent portions of the argument which the defendants claim constitute reversible error.

Mr. Rolfe: You're people of common sense, and you're people of intelligence, and I think you can determine from the facts and circumstances of what Mr. Cataldo did and what Mr. Davis said, that that is not the fact. They came down and they both came in and they wanted a loan. They wanted to start, I think it's a reasonable deduction from the evidence based on the millions of dollars that were involved in New York that they wanted to start again . . . . R. Vol. III, 354.

He was driving a 1975 Cadillac in 1974 with a telephone in it. Is Mr. Greene and Mr. Cataldo, are they trying to do right? They commit, I say a grievous crime in New York and New Jersey. You are talking about $10,000,000.00 and $12,000,000.00.

Mr. Beene: Your Honor, we object. There is no evidence that Mr. Greene and Mr. Cataldo committed the $10,000,000.00. There is approximately some evidence of $23,000.00.

The Court: Follow the evidence.

Mr. Rolfe: I believe that the evidence was that they and their co-conspirators and confederates had in the area of $10,000,000.00 worth of counterfeit stock and I believe that you would recall that we heard mention of United States Postal Service bonds that were stolen that were pledged as collateral to loans for money was taken out of the bank. That there were United States treasury bills pledged at banks. They were caught, they were living high. They were relocated and they began living high again. I think you will recall the gentleman, Mr. Dusenback, they left Dallas. I would say because their quote unquote credit was caving in on them. And where did they go to protect themselves.

Mr. Beene: We object, Your Honor. There is no evidence that their credit was caved in on them. R. Vol. III, 373-374.

Mr. Rolfe: If you are going in for a six month term and get out in two months. They wanted to keep themselves out of the penitentiary up there and keep themselves out of it right now. They want to go to New York and pledge all kinds of stolen stock and security and

Mr. Beene: I object, Your Honor.

The Court: I overrule the objection.

Mr. Rolfe: And come down here to Dallas, and do the same thing. They say they work for the Justice Department. I work for the Justice Department and my wife is a school teacher and I am driving a 74 car and these men are driving five of them in 1974. It's ridiculous. R. Vol. III, 378.

The record reveals that the defendant's attorney entered timely objections to all of the alleged prejudicial comments except the last dealing with the prosecutor's wife and automobiles. Accordingly, we must determine whether this comment constitutes plain error. As to the comments concerning the defendants' activities in New York and New Jersey, and to which the defendant objected, reversal is mandated only if the comments were improper and if they may have affected the substantial rights of the defendants. United States v. Corbo, 555 F.2d 1279, 1282 (5th Cir. 1977); United States v. Bell, 535 F.2d 886, 888 (5th Cir. 1976).

We simply cannot agree with the contention of the defendants that the prosecutor's comments concerning the offenses committed by the defendants in New York and New Jersey merit reversal. Testimony concerning the prior offenses was first put into evidence by the defendants. The defendants sought to show that various individuals who participated with them in the earlier offenses were dangerous and were likely to have them killed if their true identity in Dallas had been divulged. On cross-examination, the government probed into the nature of the offenses. The defendants did not object. A careful reading of the entire text of the prosecutor's argument concerning the prior offenses convinces us that the prosecutor attempted to elicit a motive for the commission of the offense in question and that he did not probe into these areas for the purpose of establishing that the defendants are "bad men" with the propensity to engage in crime. The record is replete with evidence that the defendants had developed a taste for high living and the prosecutor's argument, when read as a whole, drives this point home. This is simply not a case like United States v. Garber, 471 F.2d 212 (5th Cir. 1972), wherein the prosecutor stated in closing argument that the jury could consider prior offenses in determining whether the defendant possessed the disposition to commit the act in question. While we do not necessarily condone reference to prior convictions in closing argument, we do not feel that reference to such acts was improper per se in light of the facts of this case. In any event, even if the reference to the prior offenses in closing argument was improper, we are firmly convinced that due to the overwhelming evidence of guilt, such evidence did not affect the substantial rights of the defendants. See Corbo and Bell, supra. Because the prejudicial effect, if any, of the comments was slight in relation to the overwhelming evidence of guilt, any impropriety was harmless beyond a reasonable doubt. ² Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

A much more difficult question is presented concerning the prosecutor's statement that "my wife is a school teacher...