U.S. v. Sacco, 86-3143

• Citation: 869 F.2d 499
• Decision Date: 08 March 1989
• Docket Number: No. 86-3143,86-3143
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco SACCO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 499

869 F.2d 499

UNITED STATES of America, Plaintiff-Appellee, v. Francisco SACCO, Defendant-Appellant.

No. 86-3143.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 12, 1988.

Decided March 8, 1989.

Jeffrey P. Robinson, Seattle, Wash., for defendant-appellant.

Peter O. Mueller, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, WALLACE and HUG, Circuit Judges.

WALLACE, Circuit Judge:

Sacco appeals from his convictions for failure to report the transporting of more than $10,000 across the United States/Canadian border and for making false statements to customs officials in violation of 31 U.S.C. Secs. 5316 and 5322(a), and 18 U.S.C. Sec. 1001. Sacco contends that the district court erred by permitting the jury to replay the videotaped deposition of a prosecution witness after deliberations had begun. The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231 and we have jurisdiction under 28 U.S.C. Sec. 1291. We hold that the court did not abuse its discretion in authorizing a second viewing of the videotaped deposition, and therefore affirm Sacco's convictions.

I

On February 14, 1986, Sacco and a passenger, Milito, approached the United States border from the Canadian side in Sacco's car. A customs inspector, after seeing identification and asking a few questions, directed Sacco and Milito to park the car and go inside for further inspection.

A customs official explained the currency law and requested Sacco and Milito to fill out a customs form. They both checked the "no" answer to the question inquiring whether they were transporting more than $10,000 in United States currency or its equivalent. Sacco said that he had $1,400 in United States currency and $1,000 in Canadian currency, and that there was nothing of value in the car. Sacco then produced the $1,820 in United States currency and $1,520 in Canadian currency he was carrying. Milito had approximately $1,000 in United States currency on his person.

During this time, customs officials searched Sacco's car. Inside the trunk they found rolls of Canadian currency amounting to about $20,000 (Canadian), mostly in $100's. The money was in a brown paper bag which was in a brown shaving kit which was inside a black plastic bag. After counting the currency, the customs officials dusted it with fluorescent powder and replaced it in its original location.

Sacco and Milito were then permitted to proceed into the United States under surveillance. They drove to a restaurant in Blaine, Washington, where they remained for an hour and a quarter having lunch. After lunch, the surveillance agents observed the two men return to the car, and saw Sacco open the trunk and rummage around in it. Both men then got in the car, and Sacco drove around the streets of Blaine for a short time, stopped the car, got out, and went into the trunk again. The agents then arrested Sacco and Milito and took them back to the customs inspection station. There, examination revealed traces of the fluorescent powder on Sacco's right hand. No fluorescent powder was found on Milito's hands. Agents searching the trunk discovered the money was not inside the plastic bag where they had left it, but under a rug.

Milito was detained as a material witness and subsequently examined and cross-examined in a videotaped deposition. Milito was not available for trial, but an edited version of his videotaped deposition was played for the jury. During the deposition, Milito testified that he and Sacco were to have lunch with two women whom they had met the night before in a bar in Vancouver. Because he and Sacco were detained by customs, when they reached the restaurant the women were no longer there.

Milito testified that he was not aware of the currency in the trunk until after his arrest, that the money was not his, and that he had no connection with it. He stated that when they left the restaurant, Sacco opened the trunk, reached inside, and commented, "Yeah, they went in the trunk," meaning that the customs officials had examined the contents of the trunk. He testified that Sacco said that he wanted to park somewhere else and examine the trunk thoroughly.

Sacco's defense was that he was not the owner of the money and that he did not know it was in the car. Sacco did not testify, but called Janet and Frank Sansalone. Each was cross-examined thoroughly. Their direct testimony indicated that they were the owners of the cash, and that Frank Sansalone had placed it in the car.

Janet Sansalone testified that after her mother's death, she and her husband discovered $24,000 (Canadian) in cash in her mother's house. Rather than put it in the bank, she and her husband kept it at home in a closet so they could use it to purchase farm equipment in cash. Frank Sansalone testified that the money was to be used to buy farm equipment on a trip he and Sacco had planned through Western Canada and the United States, followed by a holiday in Los Angeles. They were to leave on the day of Sacco's arrest. He stated that because his wife was unaware of the trip, he secretly obtained the cash and placed it and a few items of clothing in the trunk of Sacco's car two days earlier. He testified that he never told Sacco that the money was in the trunk.

After deliberations began, the jury asked to view the videotape of Milito's deposition. Though citing no authority, Sacco's counsel objected, arguing that presenting Milito's testimony again would "tend to emphasize it over other evidence in the case." The court denied an alternative defense request to reread to the jury part of Frank Sansalone's testimony and to allow brief defense argument. The court granted the jury's request, but required the videotape to be played in its entirety.

The jury found Sacco guilty on both counts. This appeal followed.

II

A trial court's decision to replay videotaped testimony during jury deliberations is reviewed for abuse of discretion. United States v. Binder, 769 F.2d 595, 600 (9th Cir.1985) (Binder ), citing United States v. Sims, 719 F.2d 375, 379 (11th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984). "Undue emphasis of particular testimony should not be permitted" after the jury has begun deliberations. Binder, 769 F.2d at 600. Our concern with rereading or replaying testimony is that, in addition to the delay involved, it may place undue emphasis on testimony considered a second time at such a late stage of the trial. Id.; see United States v. Nolan, 700 F.2d 479, 486 (9th Cir.) (Nolan ), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983). In exercising its "great latitude" over whether to allow rereading or replaying of testimony, Nolan, 700 F.2d at 486, the court must evaluate the likelihood of undue emphasis in light of the "particular facts and circumstances of the case." Binder, 769 F.2d at 600.

"Videotaped testimony is unique." Id. Replaying videotaped testimony creates concerns not present when rereading written testimony. "It enables the jury to observe the demeanor and to hear the testimony of the witness. It serves as the functional equivalent of a live witness." Id. In Binder, however, we did not establish a per se rule against replaying videotaped testimony. The decision to replay testimony is within the broad discretion of the trial judge to be exercised on a case-by-case basis. Id. at 600-01; see United States v. King, 552 F.2d 833, 850 (9th Cir.1976) (discretion granted trial judge to reread testimony is large, and determination of whether discretion is abused turns on circumstances of the individual case), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977).

In Binder, the defendant was accused of child molestation. The district court and the parties agreed to substitute the children's videotaped testimony for their live testimony in order to relieve the children's apprehensions about appearing in court. 769 F.2d at 598. The government offered no physical evidence of child molestation; the sole evidence of actual criminal acts of molestation was presented through the children's videotaped testimony. Id. at 600-01. The defense was that these acts did not occur. Thus, the credibility of the children became a crucial issue. Id. at 601. We concluded that allowing the jury to see and hear "the functional equivalent of live testimony" for a second time in the jury room unduly...