U.S. v. Martin, s. 85-1985

• Decision Date: 06 April 1987
• Docket Number: 86-1152,Nos. 85-1985,86-1072 and 86-1073,s. 85-1985
• Citation: 815 F.2d 818
• Parties: 22 Fed. R. Evid. Serv. 1739 UNITED STATES of America, Appellee, v. William MARTIN, Defendant, Appellant. UNITED STATES of America, Appellee, v. James REKRUT, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 818

815 F.2d 818

22 Fed. R. Evid. Serv. 1739

UNITED STATES of America, Appellee, v. William MARTIN, Defendant, Appellant.

UNITED STATES of America, Appellee, v. James REKRUT, Defendant, Appellant.

Nos. 85-1985, 86-1152, 86-1072 and 86-1073.

United States Court of Appeals, First Circuit.

Argued Sept. 11, 1986.

Decided April 6, 1987.

John A. MacFadyen, Providence, R.I., for William Martin.

Neil P. Philbin, with whom Kirshenbaum & Kirshenbaum, Cranston, R.I., was on brief, for James Rekrut.

Maury S. Epner, Washington, D.C., with whom Lincoln C. Almond, U.S. Atty., Robert D. Krause, Asst. U.S. Atty., Providence, R.I., and Patty Merkamp Stemler, Dept. of Justice, Washington, D.C., were on brief, for appellee.

Before CAMPBELL, Chief Judge, WISDOM, ^* Senior Circuit Judge, and COFFIN, Circuit Judge.

LEVIN H. CAMPBELL, Chief Judge.

Appellants Martin and Rekrut, together with four others, Cortellesso, Speakman, Carnevale and Galligan, were indicted by a federal grand jury on counts charging interstate transportation of stolen motor vehicles, the sale and concealment of stolen motor vehicles, the interstate transportation of falsely made securities (i.e., certificates of title), and conspiracy, in violation of 18 U.S.C. Secs. 2312, 2313, 2314 and 371 (1982). When brought before the district court, Carnevale was acquitted. Cortellesso, Speakman and Galligan pled guilty to several counts with the balance of the charges being dismissed. Cortellesso and Speakman entered into a plea agreement, agreeing to cooperate with the government; they both testified against Martin and Rekrut at trial. Martin was convicted on 41 counts that included violations of each of the previously cited sections. Rekrut was convicted on one count of interstate transportation of a falsely made security under 18 U.S.C. Sec. 2314. Martin and Rekrut now appeal. We affirm Martin's conviction, but reverse Rekrut's.

The facts, viewed in a light most favorable to the government, include the following. In 1978 Cortellesso decided to sell repaired used cars. Needing a license to do so, he paid Lionel Belanger of Pershing Auto Sales $200 per month to use two of Pershing's dealer plates. ¹ Several months later Cortellesso originated the scheme through which Martin purchased a wrecked car from an insurance company, procured a duplicate title for the car, eliminated from the chain of title all reference to the insurance company as a past owner, and forged the signature of the last owner of the car in the assignment block. Galligan stole a car that matched the wreck, as closely as possible in color, model, year, engine size and number of doors, and delivered it to Cortellesso. Cortellesso and Speakman then removed all the vehicle identification numbers from the wrecked car and transferred them to the stolen car. In addition, the locks of the stolen car were exchanged, the odometer was reset, and the stolen car was cleaned and prepared for sale.

Martin was then in charge of transporting the retagged cars to the Northway Auction in Albany, New York, and selling the cars there to dealers. For this job he used various people including Carnevale and Rekrut. The latter two drove at least some of the cars to the auction, helped sell the cars there, and filled in the Pershing/Belanger name on title papers which they turned over to dealer-purchasers.

We will turn first to the issues raised by Martin.

I. MARTIN

A. Admission of the Plea Agreements

Martin claims it was error for the court to allow the government to read to the jury the full contents of Cortellesso's and Speakman's plea agreements. These included a provision that the witness will be exposed to prosecution for perjury if he gives false information or false testimony. Martin argues that for the prosecutor to present such provisions to the jury, unredacted, amounts to improper vouching for the credibility of the witness. Martin contends that "[t]his language suggested, inaccurately, that the Government was carefully monitoring the veracity of this witness." He adds that the contingent nature of the benefits accorded Cortellesso and Speakman provided an inducement for these witnesses to testify falsely.

We do not agree that informing the jury of the contents of a plea agreement of, at least, normal stripe is error. Martin relies upon United States v. Roberts, 618 F.2d 530 (9th Cir.1980), a case markedly different from this (the prosecutor told the jury that a police officer had been monitoring the witness's testimony). The Ninth Circuit commented on the side,

A trial court should be alert to the problem of vouching before admitting a plea agreement containing a promise to testify truthfully. The court should consider the phrasing and content of the promise to ascertain its implications and decide whether an instruction to the jury would dispel any improper suggestions.

Id. at 536. In the present case, a cautionary instruction was given.

Recent circuit opinions have held that the admission into evidence of plea agreements "does not constitute impermissible bolstering of the witness's credibility." United States v. Townsend, 796 F.2d 158, 163 (6th Cir.1986). See, e.g., United States v. Binker, 795 F.2d 1218, 1223 (5th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1287, 94 L.Ed.2d 144 (1987); United States v. Dennis, 786 F.2d 1029, 1046-47 (11th Cir.1986). Such agreements may often, as in the present case, point in different directions: a warning therein that the defendant will be prosecuted for false testimony enhances his credibility as a witness, but the rewards promised to him in the same document may undermine his credibility by showing that he stood to gain from incriminating others. Townsend, 796 F.2d at 163. As the district court noted, redaction would leave the jury with a slanted and false picture of what the bargain entailed. Only by viewing the entire agreement can the jury get the whole picture, from which to assess, as best it can, the probable motives or interests the witnesses could have in testifying truthfully or falsely.

Martin argues that, in any event, remarks made by the prosecutor in the redirect examination of Cortellesso and during rebuttal argument, constituted improper vouching for the witness's credibility. But we do not believe the prosecutor here portrayed himself "as a guarantor of truthfulness." Roberts, 618 F.2d at 537. The Eleventh Circuit has said that improper vouching may occur in two ways:

First, the prosecution may place the prestige of the government behind the witness, by making explicit personal assurances of the witness' veracity. Secondly a prosecutor may implicitly vouch for the witness' veracity by indicating that information not presented to the jury supports the testimony.

United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984) (citations omitted).

Neither sort of impropriety took place here. At the end of his redirect examination of Cortellesso, the prosecutor said,

Q. The plea agreement requires you to testify truthfully, is that correct?

A. Yes, sir.

Q. Have you told the truth to this jury as best you recall and recollect, sir?

MR. BUTTERFIELD: Objection.

THE COURT: Sustained.

MR. KRAUSE: Thank you, Mr. Cortellesso, no further questions.

Then, in his rebuttal at closing argument the prosecutor said,

The plea agreement that Mr. Butterfield says was such a deal. Each one of those individuals, Speakman, Cortellesso expect to go to jail. The plea agreements are in evidence, you can look at them. The Government is going to recommend substantial jail, the maximum penalty is five years, and even with good time off, five years, four years in a Federal Penitentiary, that's no walk in the park. If the agreement was that they would be immunized from all prosecution, if they were to get straight probation and go about their business for the next several years, sure, you could say this stinks, something's rotten here. That's not the deal. The deal is that they are fully expected to go to jail. No immunity, no probation on that first count of conspiracy. In the final analysis of course it's up to the judge as to what happens but they all both expect to go to jail, and the Government is going to recommend that they go to jail.

There's another clause in that plea agreement that says if they lie, they're in bigger trouble than they were when they walked into this courtroom because that's called perjury. And you decide whether they would risk that on top of everything else they had to risk. And the fact that the second count carries with it something other than jail, doesn't mean it's a light count because the judge can do pretty much what he wants with that count except jail. Probation, restitution for the next five years after Speakman and Cortellesso finish the first sentence. If they so much as drive with a suspended license, they're looking at another five years in the Federal Penitentiary. This is no walk in the park, this is no sweet deal. These people are going to jail and they came here and they told you the truth.

While we disapprove of the last quoted phrase ("they told you the truth"), the rest of these remarks, taken in context, were not improper. To say the plea agreement, already in evidence, required Cortellesso to tell the truth was not a personal assurance by the prosecutor that Cortellesso had indeed told the truth. The point was made, moreover, only "after the defense had cross-examined the witness[es Cortellesso and Speakman] about the agreement in a manner that utilized the agreement to challenge the witness' credibility." Binker, 795 F.2d at 1223.

By the same token, the prosecutor's comments during rebuttal came only after, and in response to, the defense's discussion of the plea agreements in its own closing argument. The defense had argued that the agreements manifested the witnesses' motivation to fabricate. The Fifth Circuit has said in a...