U.S. v. Savarese

• Decision Date: 28 May 1981
• Docket Number: No. 80-1615,80-1615
• Parties: UNITED STATES of America, Appellee, v. Vincent SAVARESE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 83

649 F.2d 83

UNITED STATES of America, Appellee, v. Vincent SAVARESE, Defendant, Appellant.

No. 80-1615.

United States Court of Appeals, First Circuit.

Argued April 6, 1981.

Decided May 28, 1981.

Alan R. Hoffman, Boston, Mass., by appointment of the court, with whom Lynch, Brewer, Hoffman & Sands, Boston, Mass., was on brief, for appellant.

Joan C. Stanley, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Appellant Vincent Savarese was convicted by a jury on 13 counts of transporting in commerce falsely made and forged money orders, knowing they were falsely made and forged, in violation of 18 U.S.C. § 2314. On appeal, he complains that the prosecutor's remarks during summation were improper, and that the evidence was insufficient to support the verdict. We affirm.

I.

The evidence showed that in February 1978 Savarese negotiated 13 Traveler's Express money orders, each imprinted in the amount of $195, at different locations in greater Boston. The money orders had been stolen, in blank form, from a pharmacy in Quincy, Massachusetts on April 3, 1977, but there was no evidence linking Savarese to the robbery. Defendant stipulated that the signature, Vincent Savarese, on each of the money orders had been written by him, and that on certain of the money orders the payee names and addresses were in his handwriting. The element of interstate transportation was established by the fact that the money orders were drawn on a Minnesota bank. Thus, the only significant issue in dispute was whether Savarese knew, prior to negotiating the money orders, that they had been stolen.

An FBI agent, Mohan, who had interviewed Savarese about the money orders in July 1978, testified as to what Savarese had then told him. According to Mohan, Savarese said he had sold a 1975 Custom 1200 Harley Davidson motorcycle to one Steven Wilkins, in December 1977 or early 1978, for approximately $5,800, and had received the money orders, already imprinted with the $195 amount, in payment. Defendant met Wilkins, who lived at the Huntington Avenue YMCA, at a party. When Savarese learned Wilkins wished to purchase the motorcycle with money orders instead of cash, he contacted an acquaintance, Mr. Lyons, who worked at the Provident Institute for Savings, to ensure that the money orders were good. ¹ Lyons inspected one of the money orders and advised that it "looked O.K." and that Savarese should be able to cash it; defendant then negotiated two of the money orders at the bank. The motorcycle was delivered to Wilkins' brother's place of business, a fruit and vegetable stand in Haymarket Square, the name of which Savarese could not recall.

Savarese told Mohan he had cashed all the money orders Wilkins had given him. He first learned the money orders were stolen when Lyons so informed him in early March 1978. Savarese then went to the Boston police to report the matter. Accompanied by two police detectives, he went to the Huntington Avenue YMCA to find Wilkins, but was unsuccessful.

The government attempted to show defendant's knowledge that the money orders were stolen primarily by impeaching the exculpatory statement given to Mohan. The director of the Huntington Avenue YMCA testified that there was no record of a Steven Wilkins having lived there in or around February 1978. ² In addition, Mohan testified that he had conducted an "investigation" and not found Wilkins. ³ An investigator for the Massachusetts Registry of Motor Vehicles testified that Registry records indicated a 1975 Harley Davidson motorcycle had been registered in Savarese's name and then reported stolen on October 27, 1976. ⁴ The application for registration, dated September 10, 1976, stated that the motorcycle frame was purchased at the Cycle Parts Center of Boston and that other parts were purchased at an address in North Attleboro. The investigator visited the North Attleboro address, apparently in 1976, and found only a vacant lot. A Medford police clerk testified that Savarese had reported a motorcycle stolen on October 27, 1976, and that the report had been cancelled on June 16, 1979; the serial number and Massachusetts registration number of the stolen motorcycle were the same as those of the motorcycle registered at the Registry of Motor Vehicles. Finally, the owner of a restaurant where defendant had negotiated one of the money orders testified that Savarese had maintained that "he just came back from Europe," he had the money orders "left over" from his vacation there, and they were "the only money he had."

Defendant's mother, Susan Savarese, testified, in large part corroborating defendant's statement to Mohan. She said her son built motorcycles from the frame up as a hobby. He had built two Harley Davidson motorcycles the first, green and black, was stolen in october 1976; the second, white, was sold to Wilkins. Mrs. Savarese had met Wilkins and was present when he discussed the purchase of the motorcycle with her son. Defendant was asking $6,500 for the motorcycle, but the two finally settled on a price of $5,500 or $5,800. When Mrs. Savarese learned that Wilkins intended to pay with "personal traveler's checks" (which she identified as the money orders introduced at trial), she advised her son to "check up on them." She did some checking of her own, and was informed by representatives of two banks that the money orders were "as good as money." Mrs. Savarese also noted that her son had run up a large telephone bill calling to North Attleboro to inquire about the purchase of motorcycle parts.

Dewey Ricci, a Boston Police Detective, was called by defendant. He said that around February or March 1978, Savarese had come to the Government Center police station in Boston to report that Wilkins had given him stolen money orders in payment for his motorcycle. Ricci advised Savarese to go to the Suffolk Superior Court and take out a complaint against Wilkins. (Savarese did so, and a copy of the complaint was introduced at trial.) Ricci and his partner went with Savarese to the Huntington Avenue YMCA; they talked to the clerk there and "staked the place out awhile." Ricci "learned (Wilkins) was living there at the time, but he never came back."

Defendant introduced into evidence a letter dated February 7, 1978, which read as follows:

To whom it may concern,

I Vincent Savarese, would like to inform you that any checks that you may have received as payment or exchanged for cash in your place of business, may be returned to you as stolen checks. This situation is brought not only on you, but also on me in an obstinate manner. I had received the checks as payment for property I own. I know this situation will be dissolved soon and I hope to have your understanding and cooperation in this matter.

Three persons who cashed money orders testified that they had received or seen this letter, although one said expressly that "nothing ever came of it."

II.

Defendant's primary complaint on appeal relates to comments made by the prosecutor during rebuttal argument. The prosecutor began the rebuttal statement by saying:

Ladies and gentlemen, I would ask you to keep just a few things in mind.

First of all, back to the mysterious Mr. Wilkins. From all the evidence in this case, ask yourselves why is the mother the only corroboration of the existence of Stephen Wilkins?

Later, discussing the motorcycle allegedly sold to Wilkins, she argued:

This motorcycle was supposedly sold to a person whose existence nobody except the defendant's mother can confirm at a place that is impossible to check out.

Defendant's counsel objected to the statements, immediately following the short rebuttal, on the grounds that they misstated the evidence and also could "be construed not only as a failure on the defendant's part to bring forward other witnesses, but take the stand on his own behalf." The court said it intended to instruct the jury concerning the defendant's right not to testify, ⁵ and asked if defendant wanted a mistrial. Defendant's counsel replied, "On the basis of that statement? I don't want a mistrial." The court then reiterated its intent to give an instruction, and admonished the prosecutor that "(i)t's very tricky business."

We do not think the prosecutor's statements would have been interpreted by the jury as reflecting on the defendant's silence, nor were they otherwise so prejudicial as to warrant reversal. This is not to deny that the prosecutor's choice of words was unfortunate, given the precedent in this circuit concerning indirect prosecutorial comment on a defendant's failure to testify, e. g., United States v. Flannery, 451 F.2d 880 (1st Cir. 1971); Rodriguez-Sandoval v. United States, 409 F.2d 529 (1st Cir. 1969). In Flannery, we held that prosecutorial statements that the government's evidence is "uncontradicted," when "contradiction" would have required the defendant to take the stand, constitute reversible error unless immediately and fully corrected by the district court. In subsequent cases we have had occasion to consider variations on the "uncontradicted" language, and other statements, made during prosecutors' closing arguments. E. g., Borodine v. Douzanis, 592 F.2d 1202, 1209-12 (1st Cir. 1978) (defendant "just (sat)" through trial); United States v. Goldman, 563 F.2d 501, 505 (1st Cir. 1977) ("That stands uncontested based on the cross examination of the testimony"), cert. denied, 434 U.S. 1067, 98 S.Ct. 1245, 55 L.Ed.2d 768 (1978); Lussier v. Gunter, 552 F.2d 385 (1st Cir.) ("There's only one person that could tell us (how defendant lured murder victim "down there"), cert. denied, 434 U.S. 854, 873, 98 S.Ct. 171, 221, 54 L.Ed.2d 124, 153 (1977); United States v. Hooker, 541 F.2d 300, 306 (1st Cir. 1976) ("Where is the exculpatory evidence?"; government's testimony is "...