United States Court of Appeals
For the First Circuit
No. 00-1317
UNITED STATES OF AMERICA,
Appellee,
v.
MARC A. ZACCARIA, A/K/A MATT SHAVONE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
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.
February 14, 2001
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
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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
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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
1
The government posits that the appropriate standard of
review on some or all of these claims is plain error because the
appellant's arguments were not properly preserved in the trial
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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
court. In this case, however, a more stringent standard of
review would not affect our ultimate conclusion. Thus, we
assume, favorably to the appellant, that all the issues raised
on appeal were duly preserved.
2 We say "apparently" because the appellant's claim to that
effect hinges on a somewhat cryptic note in the agency's case
file. The note, purportedly written by an unidentified Secret
Service agent, was vague as to what rights were invoked, when
those rights were cited, and whether the note pertained to
Morsilli, or to his son (who also was summoned to the office
because of his suspected involvement with the appellant), or to
both.
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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.
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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
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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
3There are, of course, potential differences in the
evidentiary considerations that pertain to a criminal defendant,
on the one hand, and an ordinary witness for the government, on
the other hand. While these differences might be important in
some circumstances, this case, on the whole, seems a fair
congener to Hale.
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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.
4
In this respect, the case at hand is unlike United States
v. Goldman, 563 F.2d 501 (1st Cir. 1977). There, we found Hale
not controlling because the defendant had waived his right to
silence and, later, failed to answer questions. Id. at 504. In
that context, the defendant's refusal had appreciable probative
value. Id.
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That ends this aspect of the appeal. With Morsilli's
silence not significantly probative, the likelihood of unfair
prejudice looming large, and a record devoid of special
circumstances, the lower court plainly did not misuse its
discretion in excluding the proposed line of questioning. See
Hale, 422 U.S. at 176-81; cf. Grunewald v. United States, 353
U.S. 391, 423-24 (1957) (holding, on evidentiary grounds, that
inquiries regarding an accused's invocation of his privilege
against self-incrimination when testifying before a grand jury
should not have been admitted for impeachment purposes).
B.
We proceed to the appellant's next ground for appeal.
During the trial, his counsel sought to question the lead Secret
Service agent, Peimer, concerning the administration of (or
failure to administer) polygraph tests to certain potential
witnesses. In launching this initiative, counsel forswore any
interest in the test results or in the techniques employed in
administering the tests. Instead, he explained that he wanted
to pursue whether polygraphs were used as a tool in the course
of this investigation, to whom they were offered, which
witnesses agreed to take them, and which did not. Zaccaria's
appellate counsel channels this offer of proof, suggesting that
this line of inquiry was designed to probe "whether the
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government agents may have ignored their own investigation
methods to protect their witnesses, or whether the government
felt that the witnesses were being evasive." Appellant's Brief
at 23.
The district court found the proposed inquiry wholly
irrelevant, potentially confusing, and unfairly prejudicial.
Consequently, it sustained the government's objection. Having
considered both the ruling and the appellant's claim of error,
we conclude that the court properly pretermitted the anticipated
line of questioning.
We begin with bedrock. The right to cross-examine
adverse witnesses in criminal cases is constitutionally
protected, and courts historically have given criminal
defendants considerable latitude in pursuing that right.
Nevertheless, cross-examination is not a freestyle exercise,
but, rather, must be conducted within reasonable limits.
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); United States
v. Chaudhry, 850 F.2d 851, 856 (1st Cir. 1988). Suitable
boundaries can and should be set by the trial judge. As we
wrote on an earlier occasion:
Defendants cannot run roughshod, doing
precisely as they please simply because
cross-examination is underway. So long as a
reasonably complete picture of the witness'
veracity, bias, and motivation is developed,
the judge enjoys power and discretion to set
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appropriate boundaries. Indeed, the judge
has a responsibility to do so.
United States v. Boylan, 898 F.2d 230, 254 (1st Cir. 1990)
(citations omitted). We follow the Boylan approach here,
mindful that the lower court, on the whole, treated the
appellant's wide-ranging cross-examination of Peimer and other
government witnesses very hospitably.
One border that constrains cross-examination involves
the question of whether a particular piece of proof is too
remote or peripheral, vis-à-vis the issues in the case, to be
admitted into evidence. By and large, the responsibility for
patrolling that border reposes with, and is subject to the sound
discretion of, the trial judge. See Averitt v. Southland Motor
Inn, 720 F.2d 1178, 1182 (10th Cir. 1983); Hill v. Rolleri, 615
F.2d 886, 891 (9th Cir. 1980). The "polygraph" questioning is
of that genre: its relevance to the appellant's guilt or
innocence is so tenuous as to place it at the margins of
allowable cross-examination (and, therefore, within the
discretion of the presider to admit or exclude).
The appellant claims that the appearance of remoteness
is deceiving. He argues poignantly that the proposed
interrogation was designed to show that the government was
somehow playing fast and loose (say, by unfairly protecting its
witnesses, currying favor with them, or tolerating their
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evasiveness). But that surmise requires much too attenuated a
chain of inference. For example, the fact that polygraph tests
ultimately were not administered could be attributable to any
number of reasons (e.g., administrative oversight, lack of time,
lack of resources, the personal proclivities of a specific
agent, knowledge that the test results would be inadmissible at
trial, and so on and so forth). Many (perhaps most) of these
possible reasons have no bearing either on the government's bona
fides or on the issues in this case. In the absence of a
particularized showing that the government was not turning
square corners, the district court acted well within its
discretion in refusing to let defense counsel embark on a
fishing expedition. See Bui v. DiPaolo, 170 F.3d 232, 244 (1st
Cir. 1999).
The lower court's exclusionary ruling is made all the
more invulnerable by the subject matter of the proposed inquiry.
Testimony about the government's non-administration of polygraph
examinations would be apt to spark an unwarranted — and
profoundly prejudicial — inference that the Secret Service
agents believed the test results would be harmful to their
cause. Cf. Wolfel v. Holbrook, 823 F.2d 970, 974-75 (6th Cir.
1987) (excluding evidence of an individual's refusal to
volunteer for polygraph testing because such evidence would be
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"likely to create a highly prejudicial inference that the
results of the test would have been unfavorable"). The
substantial likelihood of unfair prejudice associated with this
line of questioning, combined with the speculative nature of the
appellant's bias theory, convinces us that foreclosing the
inquiry entailed no abuse of discretion. See Williams v. Drake,
146 F.3d 44, 47 (1st Cir. 1998) ("Trial courts have significant
leeway in determining whether to admit or exclude evidence under
the aegis of Rule 403.").
C.
The appellant's last sortie involves a question on
cross-examination concerning whether a government witness,
Blume, had ever sold drugs with Adamo (another government
witness). Blume replied in the negative, but the prosecutor
nonetheless objected. The district court sustained the
objection. The appellant assigns error. We discern none.
As previously noted, cross-examiners cannot be
permitted to rove at will. One salubrious limitation that
courts have developed holds that a party who seeks to cross-
examine a witness for the purpose of impeaching his credibility
cannot base his queries solely on hunch or innuendo. See Bui,
170 F.3d at 243-44; United States v. Carty, 993 F.2d 1005, 1010
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(1st Cir. 1993). The appellant's attempt to cross-examine Blume
about his supposed drug dealing transgressed this principle
because the questioning lacked a satisfactory evidentiary
foundation. We explain briefly.
When the government objected to the appellant's
question, Judge Lisi asked defense counsel to identify a factual
basis for it. All that counsel had to offer was an
unsubstantiated claim that the appellant (who did not plan to
testify or submit an affidavit) had told him that Blume had
admitted participating in drug trafficking activities with
Adamo. Judge Lisi was understandably skeptical. She demanded
some sort of evidentiary corroboration, stating that "I'm going
to want to see something from your client. Until then, the
objection is sustained." The appellant made no further proffer.
The stated basis for the question — counsel's
secondhand assertion that Blume had made an admission to
Zaccaria — was too porous to support the weight of so charged a
line of cross-examination. As a fundamental proposition, some
proof in the form of concrete facts must underlie any offering
that can be accepted by a trial court as evidence. Cf. 1 John
Henry Wigmore, Wigmore on Evidence § 1 (Peter Tillers ed., 1983)
(noting that "[e]vidence . . . is any matter of fact that is
furnished to a legal tribunal otherwise than by reasoning or a
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reference to what is noticed without proof"). There is little
law on the exact dimensions of what constitutes a satisfactory
evidentiary foundation in any given instance. Thus, the answer
tends to be case-specific.5
While this standard is difficult to articulate and
apply in close cases, it is self-executing at the margins. This
is such a situation. The appellant offered no evidence whatever
that Blume had ever dealt drugs (with Adamo or anyone else).
This, then, is the paradigmatic example of which Professor
Wigmore warns: that on cross-examination "facts of
discreditable conduct [may be] groundlessly asked about in the
hope that though denied they will be assumed by the jury to be
well founded." 1 Wigmore, supra, § 17. In such circumstances,
a firm judicial hand is the best safeguard of the fairness of
the trial process.
5Our ruling in Bui is instructive. There, the petitioner
claimed that he was being framed by a drug lord. 170 F.3d at
243. To develop this theory, he sought to cross-examine a
government witness as to whether the witness knew that he (the
petitioner) had declined to transport contraband for the drug
lord. Id. This, the petitioner hoped, would lead the jury to
conclude that the rebuffed drug lord framed him as retribution
for his lack of cooperation. Id. We found the petitioner's
proffer in support of this proposed line of cross-examination
unacceptable because "to that point in the trial, there had been
no evidence even remotely supporting the petitioner's offer of
proof." Id. Given such an "exiguous record," the petitioner
could not rewardingly cite himself as the source of the
foundational facts — at least in the absence of sworn testimony
or an affidavit. Id. at 243-44.
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To say more on this point would serve no useful
purpose. Given the complete lack of undergirding factual
support for the appellant's question, it cannot reasonably be
said that the trial judge abused her discretion in refusing to
allow further inquiry into the matter of drug trafficking. See
Bui, 170 F.3d at 243-44; Carty, 993 F.2d at 1010.
In all events, there is another, independently
sufficient reason for rejecting this assignment of error: Blume
answered the question and the district court did not strike his
negative response. His denial was, therefore, before the jury.
E.g., United States v. Polito, 856 F.2d 414, 419-20 (1st Cir.
1988) (holding that testimony not stricken from the record may
be regarded by the jury as evidence, notwithstanding parties'
mutual, but mistaken, assumption that the court had stricken
it); Tanner v. United States, 401 F.2d 281, 290-92 (8th Cir.
1968) (explaining, in analogous circumstances, that testimony
not stricken "remained before the jury for [its] consideration"
despite the sustaining of the opponent's objection). In light
of Blume's disclaimer, nothing would have been gained from
further questioning. See Fed. R. Evid. 608(b) (barring the
introduction of extrinsic evidence for impeachment on collateral
matters). Thus, even if the district court had erred in
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sustaining the objection — and we do not believe that it did —
the error would have been harmless.
III. CONCLUSION
We need go no further. The appellant has failed to
show that the district court abused its discretion in the
exclusion of evidence. For aught that appears, the appellant
was fairly tried. In other words, his conviction is authentic,
not counterfeit.
Affirmed.
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