United States v. Sergio M. Damiani

968 F.2d 1216, 1992 U.S. App. LEXIS 21266, 1992 WL 168817
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 21, 1992
Docket91-4147
StatusUnpublished

This text of 968 F.2d 1216 (United States v. Sergio M. Damiani) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sergio M. Damiani, 968 F.2d 1216, 1992 U.S. App. LEXIS 21266, 1992 WL 168817 (6th Cir. 1992).

Opinion

968 F.2d 1216

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Sergio M. DAMIANI, Defendant-Appellant.

No. 91-4147.

United States Court of Appeals, Sixth Circuit.

July 21, 1992.

Before BOYCE F. MARTIN, Jr. and SUHRHEINRICH, Circuit Judges, and KRUPANSKY, Senior Circuit Judge.

PER CURIAM.

Sergio Damiani is a Yugoslavian immigrant who makes his living selling jewelry from his home in Columbus, Ohio. In December 1990, James Bartlett sent Damiani two shipments of diamonds that Bartlett had stolen from his employer, KMA Sunbelt, Inc. ("KMA"). Damiani rejected the first but accepted the second for a price of $2,200--less than half their wholesale price.

In February 1991, Bartlett stole more than $60,000 worth of diamonds from KMA. He again contacted Damiani, who instructed Bartlett on how to ship the jewels and how the return payment to Bartlett would be made. Bartlett sent the stolen diamonds in two shipments. On March 1, 1991, Bartlett received $5,200 from Damiani for the first shipment, which was worth $10,000-$15,000, and sent the remaining diamonds. That same day, Bartlett was arrested in Florida.

After posting bond, Bartlett contacted Damiani on at least three occasions. Although he did not state that he had been arrested or tell Damiani that the diamonds were stolen, he did indicate that he was "scared." Damiani advised Bartlett to stay calm and to rent a number of post office boxes throughout the St. Petersburg area to receive further payments. Bartlett asked Damiani to corroborate an alibi he had concocted in the event any of the payments were intercepted. Bartlett asked Damiani to state that he was returning the deposit that Bartlett had made on a Rolex watch. Damiani told Bartlett not to worry and instructed him on how to avoid detection.

Bartlett was arrested again on March 20, 1991, and spent forty-seven days in jail. Bartlett's wife Jennifer decided to cooperate with the police. She agreed to allow the police to monitor and record her telephone calls to Damiani, whom Bartlett told her to call if he were arrested. She called Damiani on March 23, 1991, identified herself as "Jim's girlfriend," and informed Damiani that she and Jim had been arrested "for stolen jewelry." Damiani instructed her to destroy the envelopes in which he had sent them payment for the previous shipments. He then offered to send money to cover Jim's bond as well as "spending money" for Jennifer. He told her to say, if asked, that the money represented a deposit Jim had left on a Rolex watch.

After Jim was released, he too agreed to cooperate with the authorities. He called Damiani who agreed to accept another shipment of diamonds. On May 10, 1991, the F.B.I. made a controlled delivery of diamonds and a ring. Less than two hours after this controlled delivery was accepted, the F.B.I. searched Damiani's home. They found the package opened. Four of the diamonds were discovered in Damiani's shirt pocket and one had been mounted on a ring.

Damiani was arrested and charged with violating 18 U.S.C. §§ 2 & 2315 by receiving, possessing, concealing, storing, selling, or disposing of at least $5,000 worth of stolen jewelry that crossed state lines after being stolen. His defense was that he did not know the jewelry was stolen. The indictment was brought in four counts, the first dated February 26, 1991, the second March 1, 1991, the third March 23, 1991, and the fourth May 10, 1991. These indictments were not intended to indicate four distinct instances of criminal conduct, but rather to reflect the additional evidence of Damiani's knowledge that the government had accumulated by the date listed in the particular count. The jury convicted Damiani only of the last two.

I. Prosecutorial Misconduct

Damiani first contends that the prosecutor's closing argument included remarks that are unsupported by the record. Specifically, Damiani challenges two comments: "That's what he does for a living, he buys stolen jewelry" and "What happened in this case is quite simply that Sergio Damiani got caught doing what he has been doing for ... fifteen years as a jeweler."

Damiani's trial counsel failed to object to either of these statements. Consequently, we review for plain error. Plain error is an exacting standard that is not met by all harmful errors. To be plain error, an error must be not only harmful but also "so rank that [it] should have been apparent to the trial judge without objection, or ... strike[s] at the fundamental fairness, honesty or public reputation of the trial." United States v. Phillips, 888 F.2d 38, 41 (6th Cir.1989) (citation omitted).

The prosecutor's comments do not constitute plain error; they do not appear erroneous at all. In her summation, the prosecutor may state the inferences that she wishes the jury to draw from the evidence and "is permitted a certain degree of latitude" in doing so. Martin v. Foltz, 773 F.2d 711, 717 (6th Cir.1985), cert. denied, 478 U.S. 1021 (1986).

In addition, we must view the challenged comments in the context of the entire summation. The gravamen of these comments is that Damiani is knowingly engaged in the business of selling stolen jewels. The prosecutor noted that while Damiani claimed to have concluded sales totaling millions of dollars, his records showed that his legitimate sales were far more modest. The prosecutor also spoke of Damiani's frequent instructions to the Bartletts on how to avoid detection and what to do if arrested. In addition, she argued the implausibility of Damiani's belief that the jewels he dealt with were not stolen given that he routinely paid half or less of their wholesale value. All of this evidence was in the record and would support a conclusion that Damiani was experienced in the business of selling stolen jewels. See Martin, 773 F.2d at 717; United States v. Felix, 867 F.2d 1068, 1075 (8th Cir.1989); cf. United States v. Moreno, 899 F.2d 465, 468 (6th Cir.1990).

II. Evidentiary Issues

* At trial the government contended, inter alia, that Damiani must have known the diamonds were stolen because the price he paid was half or less of wholesale. Damiani countered that he often purchased diamonds legitimately at less than wholesale. In support, Damiani offered evidence that he had purchased for $28,000 a model of the Taj Mahal made of gold and diamonds with an appraised value of $365,000 and sold it for $68,000. The district court refused to admit this evidence holding it irrelevant.

This ruling was correct.

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968 F.2d 1216, 1992 U.S. App. LEXIS 21266, 1992 WL 168817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sergio-m-damiani-ca6-1992.