United States v. Zaccaria

Court: Court of Appeals for the First Circuit
Date filed: 2001-02-14
Citations: 240 F.3d 75
Copy Citations
15 Citing Cases

       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


                                         -3-
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


                                           -4-
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

                                         -5-
                                   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.

                                   -6-
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.




                                  -7-
            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




                                           -8-
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.

                                    -9-
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.

                                     -10-
            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


                                        -11-
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

                                      -12-
            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

                                      -13-
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


                                        -14-
"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


                                        -15-
(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


                                            -16-
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.

                                -17-
            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




                                         -18-
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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