U.S. v. Zaccaria

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Lipez; SELYA; When the government objected to the appellant's question
• Citation: U.S. v. Zaccaria, 240 F.3d 75 (1st Cir. 2001)
• Decision Date: 09 January 2001
• Docket Number: No. 00-1317,00-1317
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. MARC A. ZACCARIA, A/K/A MATT SHAVONE, Defendant, Appellant. Heard

Page 75

240 F.3d 75 (1st Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. MARC A. ZACCARIA, A/K/A MATT SHAVONE, Defendant, Appellant.

No. 00-1317

United States Court of Appeals For the First Circuit

Heard January 9, 2001

Decided February 14, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

[Copyrighted Material Omitted] Edward J. Romano, by appointment of the court, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, and Richard W. Rose, Assistant United States Attorney, were on brief, for appellee.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Lipez, Circuit Judge.

SELYA, Circuit Judge.

This appeal requires us to determine, for the first time, the extent to which a prospective witness's silence after receiving Miranda warnings can be used as impeachment evidence. Finding no error in the district court's exclusion of this evidence or in either of the other rulings challenged on appeal, we affirm the judgment of conviction.

I. BACKGROUND

The parties, ably represented, have provided us with an exegetic account of the events leading to the appellant's indictment. The issues before us, however, are context-specific. Thus, an apothegmatic summary suffices to place them into perspective. We add more details, as the occasion demands, in connection with our subsequent discussion of the points on appeal.

The evidence showed (or so the jury could have found) that defendant-appellant Marc A. Zaccaria contrived a scheme to counterfeit United States currency through the use of a state-of-the-art color copier. The phony bills were high-quality; they contained, inter alia, replicas of the Treasury Department's latest security strip and a protective coating designed to frustrate the most commonly used test for authenticity. The appellant moved the copying operation from location to location, and dealt with several different individuals (many of them acquaintances from his days in the automobile business) in his endeavor to bring the scheme to a lucrative climax.

It is said that all good things come to an end. So it was here: the Secret Service eventually got wind of the appellant's nefarious activities. Its ensuing investigation was aided by a number of people who were involved with the appellant and/or the scheme in one way or another. Of this rather motley crew, two individuals (both of whom testified against the appellant at trial) are particularly important to the instant appeal.

The first, Joseph Morsilli, Sr., helped the appellant to start his "copy business." Morsilli insisted that he had relied on the appellant's representation that the proposed venture was entirely legitimate. The second witness, Ted Blume, was close to the appellant and to various other persons who testified for, or gave information to, the government. Among Blume's intimates were individuals who the appellant alleged were attempting to frame him.

We shall return to Morsilli and Blume shortly. For now, we note that, after a six-day trial, the jury found the appellant guilty of conspiracy to pass counterfeit monetary instruments, sale of such instruments, and possession of a counterfeiting deterrent (the security strips). See 18 U.S.C. §§ 371, 472, 474A(b). The trial court imposed a forty-eight month incarcerative sentence, to be followed by a five-year supervised release term. This appeal ensued.

II. DISCUSSION

On appeal, Zaccaria complains of three evidentiary rulings. He claims that each of these rulings was as bogus as the bills that the government offered in evidence at his trial. He also claims that each ruling constituted reversible error.

We apply a familiar standard of review. Every trial presents a blend of idiosyncratic circumstances, and presiding judges must be afforded some leeway in making evidentiary rulings. For the most part, therefore, a district court's rulings admitting or excluding evidence are evaluated for abuse of discretion. E.g., United States v. Winchenbach, 197 F.3d 548, 559 (1st Cir. 1999); Iacobucci v. Boulter, 193 F.3d 14, 20 (1st Cir. 1999). We use this benchmark in assaying the appellant's asseverational array.¹

A.

We deal first with the implications of a witness's invocation of his right to remain silent. The background facts are these. In July 1996, Morsilli went to the Secret Service's Providence office to provide fingerprints and handwriting exemplars in compliance with a grand jury subpoena. While there, he apparently received Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 479 (1966), and thereafter eschewed any further discussion with federal agents.²

Morsilli testified for the prosecution at the appellant's trial, portraying himself as an innocent dupe. During cross-examination, the appellant sought to discredit this testimony by showing that Morsilli had declined to speak with the agents after having been advised of his constitutional rights. The district court sustained the government's objection to this line of questioning. Zaccaria assigns error to this ruling.

In the appellant's view, Morsilli's invocation of his right to remain silent during the interview with the Secret Service implies guilt -- specifically, his participation in the counterfeiting scheme -- thus contradicting his trial testimony and providing fertile ground for impeachment. This argument for the use of silence to impeach has a patina of plausibility, but it does not withstand close scrutiny.

We begin our analysis by emphasizing that the issue before us is evidentiary, not constitutional. The law is now firmly settled that an accused's invocation of the right to remain silent is constitutionally protected and ordinarily cannot be used against him for impeachment or otherwise as evidence of guilt. Doyle v. Ohio 426 U.S. 610, 617-19 (1976); United States v. Daoud, 741 F.2d 478, 480 (1st Cir. 1984). The appellant, however, does not seek to impinge upon this constitutional bulwark. He points out, correctly, that Morsilli appeared as a witness, not as a defendant, and argues that the Constitution therefore interposes no impediment to the proposed line of cross-examination. This is a meaningful distinction and, to its credit, the government concedes the point.

There is, however, an evidentiary dimension (in addition to a constitutional dimension) to an invocation of the right to remain silent. The Supreme Court dealt with this evidentiary dimension in United States v. Hale, 422 U.S. 171 (1975). That case involved an inquiry into a criminal defendant's silence at the time of questioning -- but the case was decided the year before the Doyle Court extended constitutional protection to a defendant's decision to remain silent after receiving advice about his rights. Because the Court treated the question as a matter of evidence, as must we, Hale affords relevant guidance.

The Hale Court noted that the admissibility of this sort of disputed evidence necessarily hinges on the validity of the premise that silence in the face of questioning is inconsistent with -- and thus impeaches -- a later claim of innocence. Id. at 176. The Court remarked the dubiousness of that premise, stating that "[i]n most circumstances silence is so ambiguous that it is of little probative force." Id. The Court proceeded to mine the record in search of special circumstances that might have rendered Hale's silence inconsistent with a subsequent claim of innocence, and found none. Id. at 177-80. As a result, the Court concluded that Hale's invocation of the right to remain silent had virtually no probative value as an inconsistent statement. Id. at 180.

The Hale Court then turned to the other pan of the scales. Balancing against the lack of probativeness, the Court found a substantial likelihood of unfair prejudice should the showing of silence be allowed. "The danger is that the jury is likely to assign much more weight to the defendant's previous silence than is warranted." Id. The resulting combination -- scant probative value and a significant risk of unfair prejudice -- proved deadly: the Court concluded that information about Hale's invocation of his right to remain silent should not have been allowed into evidence as a means of impeachment. Id. at 180-81.

The same analytic framework pertains here.³ The admissibility vel non of evidence anent Morsilli's silence depends on constructing a balance involving the probative worth of the evidence and its unfairly prejudicial effect. See Fed. R. Evid. 403. Hale teaches that the trial court must start this task from a binary premise: (1) that silence per se generally has little or no probative value for impeachment purposes, 422 U.S. at 176; and (2) that evidence of the invocation of the right to remain silent is inherently prejudicial, id. at 180. Thus, a proffer of such evidence should be rejected unless special circumstances exist in a given case that materially shift the balance in favor of admissibility.

In this instance, the district court understood its role and methodically constructed the appropriate balance. Surveying the record, it found no extraordinary circumstances and, hence, no basis for making an exception to the usual rule. We agree with this determination. On the facts of this case, as in Hale, 422 U.S. at 176-80, Morsilli's silence was completely ambiguous. The appellant does not identify, nor can we discern, any special trappings that might imbue Morsilli's silence with unaccustomed probative force.⁴ Moreover, the appellant does not seriously dispute that the proffered evidence was freighted with potential prejudice; there was, after all, a real danger that the jury would read considerably more into the witness's close-mouthedness than reason might warrant.

That ends this aspect of the appeal. With Morsilli's silence not significantly probative, the likelihood of unfair prejudice looming large, and a...