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United States v. Cuozzo

filed: April 27, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ALPHONSE CUOZZO, DEFENDANT-APPELLANT, UNITED STATES AMERICA, PLAINTIFF-APPELLEE, V. ROBERT FRANK STELLA, JR., DEFENDANT-APPELLANT, UNITED STATES AMERICA, PLAINTIFF-APPELLEE, V. KARIN SUSAN MONARI, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Nevada. D.C. No. CR-90-00072-E,R,. D.C. No. CR-90-00072-E,R,. D.C. No. CR-90-00072-E,R. Edward C. Reed, Jr., District Judge, Presiding.

Before: Cecil F. Poole, Stephen Reinhardt, and Ferdinand F. Fernandez, Circuit Judges. Opinion by Judge Poole.

Author: Poole

POOLE, Circuit Judge:

I.

During the spring and summer of 1989, appellants Alphonse Cuozzo and Karin Susan Monari represented to potential borrowers that they could broker a loan of one million dollars or more to borrowers able to provide one percent of the loan in cash up front. Appellant Robert Frank Stella, Jr. joined this enterprise in August, 1989. On September 6 and 7, 1989, Cuozzo, Monari, and Stella (posing as an insurance broker under the name Anthony Mazzolo) met with the majority of borrowers at two different hotels in California, where the borrowers signed documents, made additional cash payments, and received promises that their loans would arrive within days. Since none of the money was ever received, an investigation was launched and Cuozzo, Monari, and Stella were subsequently indicted by a grand jury for conspiracy and fraud.

Following a jury trial, Cuozzo was found guilty of one count of conspiracy in violation of 18 U.S.C. § 371, and thirteen counts of wire fraud and aiding and abetting in violation of 18 U.S.C. §§ 1343 and 2. Monari was convicted of one count of conspiracy, thirteen counts of wire fraud and aiding and abetting, and two counts of mail fraud and aiding and abetting in violation of 18 U.S.C. §§ 1341 and 2. Stella was convicted of three counts of wire fraud and aiding and abetting.

All three now appeal their convictions. Monari alleges error in the use of a prior conviction to impeach her during cross-examination. She also appeals the district court's decision to compel her to respond to questions regarding other allegedly fraudulent activities. All three appeal the district court's denial of their motions for severance. They also allege error in the district court's use of an Allen*fn1 charge. Stella appeals the district court's denial of a jury request for a review of his trial testimony. Finally, Cuozzo appeals the district court's denial of his motion for judgment of acquittal. We affirm.

II.

Before testifying in her own defense, Monari moved in limine to prevent the introduction of her prior felony conviction for dealing in counterfeit obligations or securities in violation of 18 U.S.C. § 473. The court denied Monari's motion, finding impeachment permissible under Fed. R. Evid. 609(a)(2) since the conviction involved dishonesty or false statement. Monari then admitted the prior conviction during her own direct examination. The government used this admission to impeach her during cross-examination.

We review de novo the district court's evidentiary ruling. Dean v. Trans World Airlines, Inc., 924 F.2d 805, 811 (9th Cir. 1991). Monari argues that the evidence was improperly admitted, contending that conspiracy and aiding and abetting in dealing in counterfeit obligations or securities is not a crime involving dishonesty or false statement. She argues that the conviction could therefore not be admitted under Rule 609(a)(2) unless the government first proved that it "rested on facts warranting the dishonesty or false statement description." United States v. Hayes, 553 F.2d 824, 827 (2d Cir.), cert. denied, 434 U.S. 867, 54 L. Ed. 2d 143, 98 S. Ct. 204 (1977)(quoting United States v. Smith, 179 App. D.C. 162, 551 F.2d 348, 364 n.28 (D.C. Cir. 1976)). This argument, however, is not availing. In the first place, Hayes only required such a showing if the title of the offense under which the defendant was previously convicted "leaves room for doubt" concerning whether the crime involved dishonesty. Id. There is no room for doubt in this case, because we have previously held in this circuit that passing counterfeit money is a crime involving dishonesty and fraud. United States v. Harris, 738 F.2d 1068, 1073 (9th Cir. 1984). It follows that a conviction for conspiracy and aiding and abetting the dealing of counterfeit obligations or securities likewise demonstrates a propensity towards testimonial dishonesty. See United States v. Brashier, 548 F.2d 1315, 1326-1327 (9th Cir. 1976), cert. denied, 429 U.S. 1111, 51 L. Ed. 2d 565, 97 S. Ct. 1149 (1977)(prior conviction for conspiracy to issue unauthorized securities and mail fraud admissible under Rule 609(a)(2)). The trial Judge did not err in allowing Monari to be impeached through her prior conviction.*fn2

III.

During cross-examination of Monari, the prosecution sought to develop her involvement in a previous similar fraud. The questioning was ultimately allowed under Fed. R. Evid. 404(b). The trial court compelled Monari to respond to the questions, as it held that Monari had waived her Fifth Amendment right against self-incrimination by taking the stand and testifying as to her intent. Monari contests this holding, as well as the admissibility of the evidence under Rule 404(b).

A.

A defendant who testifies in her own defense waives her right against self-incrimination and subjects herself to cross-examination concerning "any matters reasonably related to the subject matter of [her] direct testimony." United States v. Panza, 612 F.2d 432, 436-437 (9th Cir.), cert. denied, 447 U.S. 925, 65 L. Ed. 2d 1118, 100 S. Ct. 3019 (1980). "The scope of the defendant's waiver is coextensive with the scope of relevant cross-examination." United States v. Black, 767 F.2d 1334, 1341 (9th Cir.), cert. denied, 474 U.S. 1022, 88 L. Ed. 2d 557, 106 S. Ct. 574 (1985). Thus, a defendant may be found to have waived her right to refuse to testify regarding prior bad acts so long as the testimony is otherwise ...


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