United States v. Martinez

• Decision Date: 11 September 1972
• Docket Number: No. 71-1673.,71-1673.
• Citation: 466 F.2d 679
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro M. MARTINEZ et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

466 F.2d 679 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Pedro M. MARTINEZ et al., Defendants-Appellants.

No. 71-1673.

United States Court of Appeals, Fifth Circuit.

September 11, 1972.

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William G. Earle, Kelly, Black, Black & Kelly, P. A., Miami, Fla., for Martinez.

George D. Gold (Court appointed), Pozen, Pestcoe, Gold & Gold, Miami, Fla., for Walters.

Joseph A. Varon, Varon & Stahl, P. A., Hollywood, Fla., John W. Prunty, Miami, Fla., for Berman.

Edward M. Kay, Hollywood, Fla., for Berman.

Robert W. Rust, U.S. Atty., Neal R. Sonnett, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Before WISDOM, GOLDBOLD and RONEY, Circuit Judges.

RONEY, Circuit Judge:

We affirm the convictions of all three defendants for conspiracy and possessing securities stolen from the mails. 18 U.S.C. §§ 371, 1708, and 2.

$500,000 worth of Chesapeake and Potomac Telephone Company bonds were shipped by registered mail from Bankers Trust Company of New York to First National Bank of Boston. They never arrived. Eleven months later the same debentures were delivered to Jefferson National Bank of Miami Beach in connection with a purchase for which Jefferson was to act as escrow agent. A check on the validity of the securities resulted in the F.B.I. and postal inspectors being informed. This prosecution resulted. Martinez, Walters, and Berman were each convicted of conspiracy to receive and possess securities stolen from the mails and of the substantive offense of receiving and possessing securities stolen from the mails.

It is unnecessary to recite the details. A general view of the evidence finds defendant Berman discussing with other co-conspirators the disposition of stolen securities, among which were the Chesapeake and Potomac bonds. Subsequently, defendant Martinez opened an account at Jefferson National in the name of Associated Insurance Investors, Inc., a corporation for which Martinez and defendant Walters were listed as officers, and "care of Bernard Berman" was listed as an address. An accounting firm was asked to prepare a balance sheet for Associated which they were told was needed in order for Associated to purchase an English insurance company. The balance sheet reflected $500,000 as "funds held in escrow, purchase Pendragon Company," which figure was supplied by Martinez. A check for $50,000 was drawn on the Associated account in Jefferson National payable to the order of Martinez, signed by both Martinez and Walters. The check was endorsed in exchange for a cashier's check payable to Bernard Berman, which he cashed. He gave the $50,000 to Robert Cardillo, who together with Vincent Teresa, was in possession of the stolen securities involved in the first conversations with Berman. Three days later the bonds were delivered to Jefferson National with escrow and other documents concerning the purchase of Pendragon. Thereupon the validity check was made and the stolen character of the bonds was discovered.

Each defendant asserts different grounds for reversal.

BERMAN

Appellant Berman raises two issues on his appeal: first, that prejudicial remarks by the prosecutor in his closing argument violated appellant's right to a fair trial; and second, that testimony of a government witness was inadmissible and destroyed appellant's character before his character was placed in issue.

(1) Prosecutor's Remarks

During the course of his closing argument, the prosecutor remarked:

"Because old lawyer Berman was fixer lawyer Berman and old lawyer Berman\'s purpose in the entire conspiracy was to arrange to get the legal maneuvering set up, the corporate set up to satisfy the British Board of Trade."

No objection was made at the time to the prosecutor's remarks. Later in the argument counsel for Berman, while making another objection, as an afterthought, made a delayed objection to the use of the term "fixer." The court then instructed the jury that it was to disregard any reference to the term "fixer," was to base its decision solely on the evidence in the case and the law, and was not to base its decision on characterizations by the government attorney.

Considering the prosecutor's statement as a whole and the court's cautionary instructions given when requested, we find no reversible error.¹

Further in his argument, the prosecutor made two references to Berman's having lied on the stand and a government witness having told the truth. Counsel for Berman failed to object to these remarks at the time. He urges now, however, that the prosecutor was stating his individual belief in the guilt of the accused and that such belief was based on evidence not before the jury.

The law is clear that a prosecutor's remarks cannot imply that evidence not before the jury implicates the defendant. McMillian v. United States, 363 F.2d 165 (5th Cir. 1966). Nor can a prosecutor vouch for a witness by suggesting that the government would not use a witness unless his credibility was confirmed. Gradsky v. United States, 373 F.2d 706 (5th Cir. 1967). We do not find either infirmity in the present case. In McMillian we said that a prosecutor may express his belief in the guilt of a defendant if such belief is based solely on the evidence introduced and the jury is not led to believe that other evidence justifies that belief. We read nothing more in the prosecutor's statement than an attempt to point out the apparent inconsistencies in Berman's testimony.

(2) Testimony of Government Witness

The government made an in camera proffer that the testimony of Vincent Teresa would deal with conversations and transactions that took place in early 1969, approximately three months before the date the indictment alleged to be the beginning of the conspiracy. The court allowed such testimony to go to the jury for the purpose of showing knowledge and intent on the part of Berman.

The general rule is that evidence of prior criminal activity of a similar nature is inadmissible to prove the commission of a later offense. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). There is, however, an exception to the general rule. When "intent and knowledge are essential elements of the crime for which the defendant is being tried, evidence of other transactions, even though criminal in nature, is admissible to prove the necessary criminal intent or guilty knowledge, if the transactions are so connected with the offense charged that they serve to show a general pattern." Gilstrap v. United States, 389 F.2d 6, 9 (5th Cir.), cert. den. 391 U.S. 913, 88 S.Ct. 1806, 20 L.Ed.2d 652 (1968).

Berman says that the theory of the government's case was that he had participated in a complicated plan to use stolen securities as collateral for the purpose of buying and maintaining a British insurance company but that Teresa was barred from referring to the insurance company scheme because the trial judge had determined that such reference would be prejudicial to one of the other co-defendants. Under these circumstances, Berman argues that Teresa's testimony was irrelevant and prejudicial to him in that there was no similarity as far as scheme or plan in that testimony and the evidence adduced at trial by the government relative to the method used to dispose of the securities.

Briefly stated, Teresa testified to conversations and transactions between Berman, himself, and another about the disposition of the stolen securities. This testimony was directly related to the crimes charged against Berman in both point of time² and factually.³ Simply because Teresa was not allowed to testify as to one point of the discussion, i. e., the buying of a British insurance company, does not vitiate the relevance and probative value of the evidence given as to Berman's intent and knowledge in connection with his participation and involvement in the overall plan or scheme.

This testimony comes well within the Gilstrap exception admitting such evidence of a general pattern of criminal activity for the purpose of showing intent and knowledge.

WALTERS

Appellant Walters raises four issues: first, insufficiency of the evidence to link him to the conspiracy; second, the testimony of government witness Teresa was so prejudicial to him that a severance should have been granted; third, error in refusing to give an "aider-abettor" instruction to the jury; and fourth insufficiency of evidence of a conspiracy involving Walters prior to the admission against him of a statement made by a co-conspirator.

(1) Sufficiency of Evidence

In deciding the sufficiency of the evidence we must take the view most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). And, of course, when the evidence relied on is circumstantial, we must determine whether the trier of fact might reasonably find that the evidence excludes every reasonable hypothesis except that of guilt. United States v. Sidan-Azzam, 457 F.2d 1309 (5th Cir. 1972).

The evidence shows the following:

Walters was the Secretary-Treasurer of Associated Insurance Investors, Inc., a Nevada corporation, of which Martinez was President. Walters signed a trust agreement between Associated and Jefferson National Bank of Miami Beach in which some stolen securities were assigned to Jefferson National as Trustee. He signed an attorney-in-fact agreement dated May 8, 1969, between Associated and Berman wherein Berman was authorized to exercise the power of direction under the Trust Agreement. Associated\'s lease of a suite was signed by Walters. His mortgage broker office was maintained in Associated\'s suite. A check drawn on Jefferson National payable to check drawn on Jefferson National payable to Martinez was signed by Walters. He signed the corporate resolutions of Associated dated April 14, 1969, and filed with Jefferson National. Walters made three trips to Alaska with Martinez and a co-conspirator, who paid for

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