United States v. Silvestri

790 F.2d 186
CourtCourt of Appeals for the First Circuit
DecidedMay 7, 1986
DocketNos. 84-1673, 84-1674, 84-1685 to 84-1688, 84-1762 and 84-1870
StatusPublished
Cited by33 cases

This text of 790 F.2d 186 (United States v. Silvestri) is published on Counsel Stack Legal Research, covering Court of Appeals for the First 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. Silvestri, 790 F.2d 186 (1st Cir. 1986).

Opinion

TORRUELLA, Circuit Judge.

Appellants Frederick Silvestri, Jr., Jerry Zullo, Sr., Joseph Marshall, John Cassidy, Edward Walsh, Theodore O. Setterlund, III, John E. Zullo and Richard J. Heppenstall appeal from jury convictions on narcotics charges. They raise numerous claims challenging the legality of their convictions. We reject these claims, and affirm the judgment of the district court.1

I. Appellant Silvestri

Silvestri was convicted of conspiracy to import marijuana and importation of marijuana, in violation of 21 U.S.C. §§ 952(a), 963 and 960(a). He received a term of imprisonment of nine months and a two-year special parole term.

Silvestri first contends that the district court erred in denying a severance motion under Fed.R.Crim.P. 14 because the evidence against codefendants was stronger than evidence against him.

A motion for severance is addressed to the sound discretion of the trial court and to prevail a defendant must make a strong showing of prejudice. United States v. Arruda, 715 F.2d 671, 679 (1st Cir.1983). We review a trial court’s denial of a severance motion for abuse of discretion and reverse only if denial deprived defendant of [189]*189a fair trial, resulting in a miscarriage of justice. Id. Such is not the case here.

First, severance is not required merely because the government’s evidence against a defendant may be stronger than evidence against another defendant in the case. United States v. Smolar, 557 F.2d 13, 18 (1st Cir.), cert. denied, 434 U.S. 866, 98 S.Ct. 203, 54 L.Ed.2d 143 (1977). Thus, the fact that the evidence against codefendants may have been stronger than the evidence against Silvestri does not amount to prejudice justifying reversal. Second, the district court properly instructed the jury to “view the evidence as to each defendant separately as to each count in which the defendant is charged.” Appropriate limiting instructions to the jury are an adequate safeguard against evidentiary spillover. United States v. Porter, 764 F.2d 1, 12 (1st Cir.1985). Nothing here suggests that the cautionary instruction noted above was insufficient to prevent evidentiary spillover. Finally, it is significant that the jury returned a verdict acquitting appellant of conspiracy to possess marijuana with intent to distribute, while finding him guilty of other counts involving conspiracy to import marijuana and importation of marijuana. Such a discriminating verdict is indicative that the jury was able to and did consider each count individually. Id. at 14. Thus, we cannot say that the joint trial produced a miscarriage of justice in Silvestri’s case.

In short, that appellant had a better chance of acquittal at a separate trial is not enough to justify severance. Accordingly, we are not persuaded that the district court committed reversible error in denying Silvestri’s motion to sever.

Next, Silvestri contends that his fifth amendment privilege against self-incrimination was violated when the district judge required him to stand up and answer “yes” to a question during trial. The trial judge asked Silvestri to stand up after the latter was described and identified by a government witness. The witness did not, however, know appellant’s name. At that point the district judge asked appellant if he was Silvestri. Silvestri claims that since he answered “yes” to the court’s inquiry his fifth amendment privilege against self-incrimination was invalidly compromised. We disagree.

The Fifth Amendment protects individuals from compelled testimonial communications. Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826,1829-30, 16 L.Ed.2d 908 (1966). The critical question, for purposes of the self-incrimination clause, is whether the forced utterances had communicative content. Walker v. Butterworth, 599 F.2d 1074, 1082 (1st Cir.1979). Statements used simply for identification lack communicative content and are not protected by the Fifth Amendment. Meggs v. Fair, 621 F.2d 460, 462 (1st Cir.1980). The record shows that Silvestri’s answer to the trial judge’s inquiry was nontestimonial, having been used exclusively for purposes of identification. Accordingly, we cannot say that appellant’s fifth amendment rights were violated in the instant case. Id.

Next, Silvestri claims that the district court erred in charging the jury. He contends that the trial judge improperly singled out appellant by using a part of the indictment referring to him exclusively to explain the meaning of “overt act” to the jury.

In charging the jury, the trial judge is not limited to instructions of an abstract sort. Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1933); United States v. Blevins, 555 F.2d 1236, 1240 (5th Cir.1977). It is within the judge’s province to assist the jury by commenting and analyzing the evidence. Id. The judge, however, must make it clear that all matters of fact are submitted for the jury’s determination. United-States v. Blevins, supra at 1240. The record shows that the trial judge unmistakably instructed the jury that they were the sole triers of facts. She stated that the jury was not to infer from the judge’s comments any views as to “the guilt or innocence or the accuracy of the government’s proof as to any of the defendants.” Thus, we cannot say that [190]*190the trial court’s effort to assist the jury in understanding the law of “overt act” requires reversal.

Lastly, Silvestri faults the court for having charged:

What you should do is to review the evidence and reconstruct the events surrounding the importation and determine, first of all, whether you believe the witnesses, and to the extent that you believe the witnesses, determine what happened to Gloucester and — I think it was mostly in Gloucester, as far as Mr. Silvestri is concerned and this charge is concerned — what did he do, what did he say, what did the others do and say in his presence, and how did he respond to that. And then decide whether he imported marijuana or aided and abetted the importation, and whether he did so willfully-

(Emphasis added). Silvestri complains that the court below erroneously assumed that he had been conclusively identified as having been at Gloucester with other codefendants. We disagree.

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790 F.2d 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-silvestri-ca1-1986.