Petition for Writ of Certiorari — Locksley v. United States

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No. JOSEPH F SP ANIOL, JR.

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In THE

Supreme Court of the United States

Octoser Trerm, 1986

LOWELL LOCKSLEY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MICHAEL T. NORRIS *

- ANTHONY PINELLI

1600 Golf Road

Suite 800

Rolling Meadows, IL 60008

(312) 593-8200

Counsel for Petitioner _

* Counsel of Record

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

QUESTION PRESENTED FOR REVIEW

Whether A Defendant Who Did Not Testify In A Close

Circumstantial Case Was Deprived Of A Fair Trial By

The Prosecutor’s Comment During Closing Argument

That Defendant’s Wife “Pinch-Hit For Her Husband”’

When She Testified.

il

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW ...

TABLE OF CONTENTS .........cccccceces: ii

TABLE OF AUTHORITIES ..............00- iii

CURIA DRED ow ok ooiceescke ete 1

WHITTON ic ee 2

CONSTITUTIONAL PROVISIONS

ES ere er 2

STATEMENT OF THE CASE .............-. 2

REASONS FOR GRANTING THE WRIT:

THE PROSECUTOR’S CLOSING ARGUMENT

REGARDING THE DEFENDANT’S FAILURE

TO TESTIFY AND USE OF HIS WIFE TO

“PINCH-HIT,” DEPRIVED HIM OF A FAIR

yy 1S eRe A Oe er a 5

CONCLUSION .....:.).0.5.2050 8

APPENDIX

A— Opinion of the United States Court of Ap-

peals for the Seventh Circuit, February 9,

ROSS vccacecvanst¥deupaeeee eee App. 1

B— Order of the United States District Court

for the Northern District of Illinois, Eastern

Division, November 1, 1985 ............ App. 11

ill

TABLE OF AUTHORITIES

Cases

Griffin v. California, 380 U.S. 609 (1965) .....

United States v. Hale, 422 U.S. 171 (1975) ....

United States v. Hastings, 461 U.S. 499, 103 S.Ct.

Tree a a ane wsehsveceseeees secs

United States ex rel. Burke v. Greer, 756 F.2d 1295

ee oe ee eoee sees

Constitutional Provisions

and Statutes

Fifth Amendment to the Constitution of the United

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Se M, aobcectceniececcoescosseces

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6

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In THE

Supreme Court of the United States

Octroser Term, 1986

LOWELL LOCKSLEY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

OPINIONS BELOW

The opinion of the United States Court of Appeals was

issued on February 9, 1987, Case No. 85-2981, United

States v. Lowell Locksley. A copy of the opinion is at-

tached as Appendix A. A copy of the order of the District

Court for the Northern District of Illinois is attached as

Appendix B.

= =

-

JURISDICTION

—<—$<$<—<—<_—$

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. See. 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Fifth Amendment to the Constitution of the United

States.

“No person . . . shall be compelled in any criminal

case to be a witness against himself... .”

STATEMENT OF THE CASE

Defendant-Petitioner, Lowell Locksley, (Defendant), was

convicted by a jury of knowingly and wilfully passing, ut-

tering and publishing altered United States Postal Ser-

vice money orders with intent to defraud, in violation of

18 U.S.C. Sec. 500. The Defendant was sentenced to a

five year term of probation, conditioned upon his partici-

pation in drug and psychiatric counseling.

The transactions which comprised the basis of the Gov-

ernment’s case occurred between July 20 and September

27 of 1982. Defendant was convicted of cashing approx-

imately $18,000.00 in altered money orders at several

banks and currency exchanges. He endorsed these money

orders in his own name and, in several cases, deposited

them in his own bank accounts.

—3-

Defendant did not testify in his own behalf.

Defendant's brother, Alan, testified that during the sum-

mer of 1982, his family was liquidating its auto repair

business. Part of the liquidation involved the sale of some

auto parts to Leroy Jones for $17,000.00. These funds

were paid to Lowell Locksley in the form of money or-

ders, each in the amount of $300.00.

Defendant's wife, Yvonne, testified that she cashed some

of the money orders. She stated that she forged his en-

dorsement on the money orders cashed in September of

1982.

During closing argument, the prosecutor commented

upon Yvonne's testimony as follows:

“So now he [Locksley] has fourteen money orders

after A t 13th .. . he knows he can’t go running

around throwing ten ‘here, eight there, nine there,

because somehow it is a little too suspicious . .

“So what does [he] do now? . . . He is going to

go through his girlfriend's account. He is going to

launder it through her account.

“What he does is he goes to the First National

Bank of Skokie, where it worked before, but this

time he doesn’t want to bring in so many at one time

. He walks right in and makes a deposit here and

a deposit there, al ben enciae & Steve endl bo anton

it there. He does it all through his girlfriend’s ac-

count.

“Now, that is the defense in this case? Well, we

heard it from Yvonne Frye—now Locksley—who says,

no, it wasnt him after the 13th, it was she. She’s

the one who did it because at that time they were

breaking up or something like that. And so she

cashed twelve of the money orders and she just sort

of deposited them when she want to.

=

“But now Yvonne said something more about this

entire thing. Now, you remember Yvonne. She’s the

one who goes by different aliases. She’s the one that

can come up with a story or lie when it is necessary.

Yesterday, when she was here trying to pinch-hit for

her husband, trying to help him .. .

Mr. GENSON: Objection, Judge, and move for a

mistrial, if your Honor please.

THE Court: The objection will be sustained. The

motion for a mistrial will be denied.

THE ProsecuToR: When she was here trying to

help out her husband, she was talking and telling us

about how she used to work at the Avalon Park Auto

Rebuilder Company .. .

(Tr. 386-88).

In his initial appeal, Defendant claimed that the above

remarks constituted impermissible comment on his failure

to testify.

The Court of Appeals rejected this argument on the

basis that Defendant was not prejudiced by this single

comment and that the jury instruction regarding his deci-

sion to testify cured any harm.

It is Defendant’s position that this clearly improper and

prejudicial remark violated his right to remain silent and

justifies a new trial.

a

REASONS FOR GRANTING THE WRIT

THE PROSECUTOR’S CLOSING ARGUMENT REGARD-

ING THE DEFENDANT'S FAILURE TO TESTIFY AND

USE OF HIS WIFE TO “PINCH-HIT,’’ DEPRIVED HIM

OF A FAIR TRIAL.

In this case, the key question to be resolved by the jury

was whether or not Lowell Locksley knew that the money

orders which he cashed were altered. Certainly this was

an issue as it is undisputed that he endorsed them with

his own name and cashed them at financial institutions

at which he was known. Further, as to those money or-

ders cashed in September of 1982, there was an issue of

whether or not he had even cashed certain money orders,

as his wife admitted to cashing those particular orders.

The Defendant chose to present a defense through the

testimony of his brother and his wife. He chose not to

testify himself.

In closing argument the prosecutor stated:

“But now Yvonne said something more about this

entire thing. Now, you remember Yvonne. She’s the

one who goes by different aliases. She’s the one that

can come up with a story or lie when it is necessary.

Yesterday, when she was here trying to pinch-hit for

her husband, trying to help him... .

(Tr. 368).

This argument was clearly improper, it was prejudicial,

and it served no purpose other than to call attention to

the Defendant’s failure to take the stand. This argument

not only indicated that for some reason the Defendant did

not testify, but also implied that he would seek to have

his wife lie on his behalf.

Se

Clearly, a direct reference by a prosecutor to a defen-

dant’s failure to testify is improper. Griffin v. Califor-

nia, 380 U.S. 609 (1965). Such a comment is always a vio-

lation of the Fifth Amendment. United States ex rel.

Burke v. Greer, 756 F.2d 1295, 1300 (7th Cir. 1985). Such

a comment can serve no legitimate purpose.

A Defendant’s decision not to testify is ‘‘almost certain

to prejudice the defense no matter what else happens in

the courtroom.” United States v. Hastings, 461 U.S. 499,

103 S.Ct. 1974, 1984 (1983). A Defendant who chooses not

to testify must weigh the effect of his silence, and indeed

can suffer from the jury’s natural inclination to question

his failure to claim innocence. However, as this Court has

noted in Griffin v. California:

‘What the jury may infer, given no help from the

-Court, is one thing. What it may infer when the

Court solemnizes the silence of the accused into evi-

dence against him is quite another.”’

380 U.S. 609, 614.

The comment here infers that not only did the Defen-

dant not testify, but also that he asked his wife to sub-

stitute, and to lie, on his behalf. Neither inference is pro-

per and both are prejudicial. There is absolutely no inter-

pretation of this remark which can justify its purpose

other than to prejudice the Defendant’s right to remain

silent at his trial.

In its opinion affirming the case, the Court of Appeals

notes that this is an “isolated”? comment. While we ad-

mit that it was not repeated, we ask this Court to look

to its content and effect, rather than base an opinion on

a numerical analysis.

ats

This case turned upon a determination by the jury as

to whether or not the Defendant knew that the money

orders were altered. In reaching that conclusion, the jury

had to weigh and decide a number of factors. Some fac-

tors indicated innocence, while others may have indicated

guilt. The point is that the deliberation process should

have been free of improper and prejudicial influences.

While a Defendant cannot expect a trial which is con-

ducted in a laboratory-like, antiseptic atmosphere, he is

at least entitled to a fair trial that is free from the in-

fluences which this “pinch-hit’’ remark injected into the

matter. United States v. Hale, 422 U.S. 171, 180 (1975).

Finally, we note that the Court of Appeals relied upon

a form instruction given at the end of the trial to cure

whatever prejudice eccurred. Surely, this instruction,

given long after the damage was done and without refer-

ence to the particular comment, was not sufficient to

repair the damage done by the remark.

Clearly, the deliberate, improper, and prejudicial com-

ment complained of here deprived the Defendant of a fair

trial. The trial court erred in denying a mistrial, and the

Court of Appeals ruled incorrectly in its opinion affirm-

ing this matter. This Court should not allow a conviction

upon such an error to stand.

a ae

CONCLUSION

For the reasons stated herein, Petitioner hereby prays

that a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Seventh Circuit.

Respectfully submitted,

MICHAEL T. NORRIS *

ANTHONY PINELLI

1600 Golf Road

Suite 800

Rolling Meadows, IL 60008

(312) 593-8200

Counsel for Petitioner

* Counsel of Record

App. 1

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 85-2981

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

LOWELL LOCKSLEY,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 84-CR 765—Charles P. Kocoras, Judge.

ARGUED May 12, 1986—DEcIDED FEBRUARY 9, 1987

Before BAUER, Chief Judge, Woop, Circuit Judge, and

CAMPBELL, Senior District Judge.*

CAMPBELL, Senior District Judge. Defendant-appellant

Lowell Locksley (Locksley) was convicted by a jury of

knowingly and willfully passing, uttering and publishing

altered United States Postal Service money orders with

intent to defraud in violation of 18 U.S.C. §§ 500 and 2.

He was given a suspended sentence and placed on a five

year period of probation, conditional on him participating

in drug and mental health counseling. Locksley appeals

* The Honorable William J. Campbell, Senior District Judge of

the Northern District of Illinois, is sitting by designation.

App. 2

on three grounds. First, he believes there was insufficient

evidence against him to sustain a conviction. He claims

the government failed to prove the element of intent

needed to secure a conviction under § 500. He also claims

there was insufficient evidence he passed or caused the

money orders to be passed. Secondly, Locksley believes

his conviction should be reversed due to prosecutorial re-

marks during closing argument which he deems to have

been improper and in violation of his Fifth Amendment

rights. Finally, Locksley claims the trial court erred in

failing to include evidence of restitution in support of his

good faith defense. We find all of Locksley’s arguments

without merit and affirm his conviction.

The jury could have found the following facts, an over-

whelming number of which Locksley admits in his brief.

During the time period of the activities at issue, July 20

through September 27, 1982, Locksley was 23 years old.

He lived either with his mother, Bernice, and his older

brothers, Morton and Alan, in Skokie or with his wife,

Yvonne, in Des Plaines after they had married. Lowell’s

father had died in a tragic car accident a year earlier.

The Locksley family owned and operated a car repair

business called Avalon Park Auto Rebuilders. Alan oper-

ated the business on a daily basis and Bernice made all

the major business decisions. Defendant Locksley did gen-

eral office work, primarily writing estimates for auto re-

pairs. His wife, Yvonne, was a secretary. In July, 1982

a decision was made to close the business. As part of the

liquidating of the business’ assets, Locksley sold used auto

parts to various dealers. A dealer named Leroy Jones

made several purchases, however, there is conflicting evi-

dence as to whether records were ever kept concerning

any of these transactions. Alan said no such records were

kept; Yvonne testified otherwise. Defendant Locksley re-

ceived payment in Postal Service money orders when

making the auto parts sales. Family members testified

Locksley was allowed to keep the orders for his own use.

Yvonne testified Lowell kept the money orders in an

envelope in their apartment. The money orders in Locksley’s

App. 3

possession were purchased by many individuals. However,

it was stipulated that all the money orders in question

in this action were issued by Postal Service officials for

an amount of one dollar.

From July 20 to September 27, 1982, the following se-

quence of events occurred:

July 20 Locksley cashed five postal money orders

apparently worth $300 each at the West

63rd Street Branch of the Chicago City

Bank & Trust Company. The transaction

was approved because Locksley was a

regular customer through the family busi-

ness. The checks were not in numerical

sequence. The checks listed Locksley as

payee and David Jordan as payor. Jor-

dan’s home address proved to be the ad-

dress of a public park. Roy Mantle, a

document examiner and handwriting ex-

pert with the Postal Service testified at

trial and positively identified the endorse-

ment as having been written by Locksley.

However, he concluded the printing on the

front of the money orders (the “pay to” and

“from” information) was not Locksley’s.

July 29 Locksley cashed five more money orders

at $291 each at the First National Bank

of Skokie (Skokie). They were payable to

Locksley from a payor named David John-

son, whose listed home address turned

out to be an empty lot. Locksley held a

personal account at Skokie. Mantle posi-

tively identified the endorsement as Locks-

ley’s but did not identify the writing on the

front of the money orders as Locksley’s.

August 6 Locksley cashed eight money orders at

$300 apiece at Skokie, the payor listed as

Leroy Jones whose listed address again

turned out to be an empty lot. Out of the

August 12

App. 4

$2,400 involved, Locksley put $200 into

his account.

First, Locksley cashed nine money orders

at $300 apiece at Skokie, the payor be-

ing Walter Miller. Eight were endorsed

by Locksley and deposited in his account,

the ninth in Yvonne’s account despite its

failure to be endorsed. Roy Mantle con-

cluded Locksley printed the information

on the front of the money orders and en-

dorsed them.

Secondly, Locksley deposited nine more

money orders in the amount of $300 each

at the Devon-Central Currency Exchange,

the payor again being Walter Miller. The

money orders were out of sequence and

Miller was deemed to reside in another

empty lot. The currency exchange charged

Locksley $3.16 for each money order cashed.

Apparently the currency exchange did not

have enough money to cash Locksley’s

orders but Locksley agreed to take two

currency exchange money orders in the

amount of $1,075, paying another $11.25

for these new orders. Mantle concluded

Locksley printed the front portions of the

money orders and then endorsed them.

Thirdly, Locksley traveled to the Able

Currency Exchange to cash 14 money

orders each in the amount of $300. Ms.

Otto, the cashier there, refused to cash

the money orders because they were out

of sequence and too numerous. She told

Locksley she would copy down the num-

bers of the money orders and telephone

him at a later point. Thereafter Locksley

left the premises with the money orders.

Ms. Otto then called the Postal Service

which told her the money orders had

August 13

August 20

September 7

App. 5

been altered. She called Locksley and told

him she would cash his money orders.

However, Locksley never returned.

Locksley went to the Des Plaines Curren-

cy Exchange with ten unendorsed money

orders which were also out of sequence.

The cashier refused to cash the money

orders and in fact held onto them. Cur-

rency exchange owner Marvin Citro asked

a customer to call the police since the ex-

change telephone was not working. While

this was being done, Locksley left the

premises. Citro gave the money orders to

the police.

Locksley cashed two money orders at

Skokie. He also deposited a check into the

family business account. The money orders

were the same as the ones Locksley had

tried to cash earlier at the Able Curren-

cy Exchange. The orders were endorsed

by Locksley and made payable to Yvonne.

Mantle identified Locksley’s printing on

the front of the money orders and con-

cluded that Locksley probably wrote

Yvonne’s name on the backside of the

money orders.

Three money orders were presented by

Locksley at Skokie. Again, the three orders

comprised part of the 14 money orders

the Able Currency Exchange had refused

to cash. The orders were made out to

Locksley from Walter Miller and payable

to Yvonne. Mantle identified the printing

on the front of the orders as that of

Locksley. He could not make a positive

identification of the writing or endorse-

ments on the back.

September 10

September 16

September 27

App. 6

Locksley unsuccessfully tendered two more

money orders at Skokie, all of which, once

again, had been rejected at the Able Cur-

rency Exchange earlier. The money

orders were payable to Locksley from

Walter Miller, and then endorsed by

Locksley and made payable to Yvonne.

Yvonne had never endorsed them. Mantle

concluded Locksley made out the front

rtions of the orders and probably signed

is endorsement and printed Yvonne's

name on the back of one. Mantle could

not conclude whether Locksley signed the

back of the other orders.

Locksley cashed a single money order at

Skokie which the Abie Cassone Exchange

would not take. The money order was

payable to Locksley from Walter Hill (ac-

cording to the government) or Walter

Miller (according to .Locksley). Mantle

identified the handwriting on the front

and back of the money order as Locks-

ley’s.

Yvonne brought a $300 money order to

the Golf Police Station to bail out a

friend. Both Locksley’s and Yvonne's

names appear signed on the back of the

money order. Yvonne testified she signed

Locksley’s name.

Alan testified on behalf of his brother and stated the

business was indeed liquidating in the summer of 1982

and that leftover auto parts were sold to Leroy Jones

after a series of meetings for $17,000 in postal money

orders. Alan testified no record was kept of this sale. Alan

claimed Locksley technically made the sale and did not

ut the money into the business account, keeping it for

imself.

App. 7

Yvonne testified and stated that she and Locksley sepa-

rated over the summer of 1982. They kept the money

orders in their — and when they se ted, Locks-

ley asked for the money orders back. She claimed she

obliged for the most part, but kept 12 orders for herself.

Yvonne stated Locksley filled in the front of the orders

but then she forged his endorsement on the reverse sides

without Locksley’s permission and cashed them at Skokie.

She claimed she did this on the money orders cashed in

September. However, on cross-examination Yvonne stated

her endorsement on the September 10 money orders was

Locksley’s.

Locksley claims the government failed to prove beyond

a reasonable doubt that he knowingly passed or caused

to be passed altered postal money orders. We reject this

argument as totally unpersuasive. As the government aptly

— out, evidence was presented at trial indicating

ksley passed or caused to be passed $18,000 in out-

of-sequence money orders in five different locations on

nine different days. Some of Locksley’s behavior is simply

incredible from a person who could be deemed innocent

of causing the alterations. For example, on August 13,

1982, why didn’t Locksley cash all of the money orders

in his possession at Skokie? Why did he subsequently pro-

ceed to the Devon-Central Currency Exchange where there

was a charge to cash the money orders? Further, why

did he go to a second currency exchange, the Able Cur-

rency Exchange, after Devon? n Ms. Otto at the Able

Currency Exchange later called Locksley to tell him she

would cash the orders, why didn’t Locksley return?

More questions abound. On August 13, when Des Plaines

Currency Exe owner Citro suspected the orders to

be altered and asked a customer to call the police, why

did Locksley leave the premises? If he was innocent, why

wouldn’t he stay to get to the bottom of the matter? Why

wouldn’t he want to tell the police who gave him these

orders so that that person could be apprehended and

Locksley could receive any money due to him in a lawful

manner? In addition to this circumstantial evidence, there

App. 8

is the testimony of Mr. Mantle as well, who stated Locks-

ley’s printing and signature were evident on a number

of the altered orders. We could raise more questions to

wowed upon and more incriminating evidence as well,

owever there is no need to. This is because our stan-

dard of review in this case is too narrow to entertain and

endorse arguments which may conceivably point toward

Locksley’s innocence. As we stated in United States v.

Draiman, 784 F.2d 248 (7th Cir. 1986), when reviewing

jury findings favorable to the government:

Our standard of review requires that the evidence

be viewed in the light most favorable to the govern-

ment in determining whether “any rational trier-of-

fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d

560 (1979); United States v. Roman, 728 F.2d 846,

857 (7th Cir.), cert. denied, __. U.S. ___., 104 S.Ct.

2360, 80 L.Ed.2d 832 (1984). In reviewing sufficien-

cy of the evidence at this distance from the trial we

must give deference to the jury’s weighing of the

evidence and its drawing of reasonable inferences.

United States v. Pritchard, 745 F.2d 1112, 1122 (7th

Cir. 1984); United States v. Niemiec, 611 F.2d 1207

(7th Cir. 1980).

Id. at 251.

Surely the jury verdict in the case at bar withstands the

scrutiny we are to give it as described above.

Defendant also argues along the line that he was con-

victed on circumstantial evidence “based solely on the

piling of inference upon inference.” See United States v.

Redwine, 715 F.2d 315, 319 (7th Cir. 1983). What Locksley

fails to realize is that, “The test for evaluating circum-

stantial evidence is the same as in evaluating direct evi-

dence. . . . Circumstantial evidence can be and frequent-

ly is more than sufficient to establish guilt beyond a rea-

sonable doubt.”” United States v. Henderson, 693 F.2d

1028, 1030 (11th Cir. 1982) (citing United States v. Hinds,

App. 9

662 F.2d 362, 367 (5th Cir. 1981)). We note, as stated in

Redwine, that:

.. it is. . . imperative that we not rend the fabric

of evidence and examine each shred in isolation;

rather, the reviewing court “‘must use its experience

with people and events in weighing the chances that

the evidence correctly points to guilt against the

possibility of innocent or ambiguous inference. . . .”

715 F.2d at 319.

In sum, after reviewing the evidence and all reasonable

inferences in a light most favorable to the government

(see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct.

457, 469 (1942)) it must be concluded a jury could find

beyond a reasonable doubt that Locksley was guilty as

charged. We therefore reject Locksley’s sufficiency argu-

ment.

Locksley’s second argument is that the government vio-

lated his Fifth Amendment right against self-incrimination

when the prosecution commented during closing argument

that Yvonne, Locksley’s wife, testified only “to pinch-hit

for her husband, trying to help him.” (Tr. 386-88). Locks-

ley claims that since the evidence against him was weak,

the failure of the district court to give an immediate

curative instruction was an error that cannot be con-

sidered harmless beyond a reasonable doubt.

We do not believe the alleged error here constitutes

grounds for a mistrial. First, the district court ultimate-

ly instructed the jury that, “. . . the defendant has an

absolute right not to testify. The fact that the defendant

did not testify should not be considered by you in any

way in arriving at your verdict.” (Tr. 435). Further, we

do not believe the evidence against Locksley was as weak

as Locksley would like us to believe (see discussion above).

We are simply unpersuaded that this isolated remark by

the prosecution deprived Locksley of a fair trial. Locksley

compares his situation to the one found in United States

ex rel. Burke v. Greer, 756 F.2d 1295 (7th Cir. 1985). Yet

in Burke, we noted there were seven indirect references

~

App. 10

to the defendant’s failure to testify and that these seven

references were made after the presiding judge warned the

prosecutor about making references. Clearly the Burke situa-

tion was more severe than the instant one where we have

one indirect, isolated reference. Of course, we recognize

the analysis to be employed here is not how many indirect

references were made but rather what kind of indirect

reference was made (and any direct reference is always

a fifth amendment deprivation. Jd. at 1300). However, in

this case, we do not believe the one indirect reference

advanced constitutes grounds to declare a mistrial.

Defendant’s final argument is that the district court

erred in excluding evidence of restitution which Locksley

claims was crucial to making a determination that he in-

tended to defraud when he passed the altered money orders.

Yet, the record reveals the restitution was made by Locks-

ley’s mother, not Locksley himself. (Tr. 317-18). Acts of

Locksley’s mother are obviously immaterial and irrelevant

to the issue of Locksley’s intent.

For the reasons set forth above, the decision of the

district court is

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 11

APPENDIX B

[1]* IN THE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 84 CR 765

UNITED STATES OF AMERICA, :

Plaintiff,

VS.

LOWELL LOCKSLEY,

Defendant.

EXCERPT OF PROCEEDINGS BEFORE

THE HONORABLE CHARLES P. KOCORAS

NOVEMBER 1, 1985

APPEARANCES:

For the Plaintiff:

Hon. ANTON R. VALUKAS

UNITED STATES ATTORNEY

By: Ms. MAUREEN DEMAIO

219 S. Dearborn, 15th Floor

Chicago, Illinois 60604

* Numbers in brackets refer to the pagination of the Official

Court Reporter’s transcript of proceedings.

App. 12

For the Defendant:

Mr. EDWARD GENSON

53 West Jackson Blvd.

Chicago, Illinois 60604

Also Present:

Ms. SUSAN ROZANSKI, Probation Office

Court Reporter:

Ms. JOENE HANHARDT

Official Court Reporter

219 S. Dearborn Street, Suite 2102

Chicago, Illinois 60604

THE Court: .. . [9] not going to work, that he needs

to be an inpatient, then I will leave that to the discre-

tion—I will just leave that open. I will not designate in-

patient or outpatient. If Gateway says, “We have to have

him full-time,” and you think that is what has to happen,

then you make the call on that.

Ms. ROZANSKI: He has to be clean for Inpatient to ac-

cept him.

THE Court: Okay. Well, maybe that is all the more

reason to leave the question open. If they want him in

there, they will let him know. If he goes in there dirty,

then you are going to be back before me and you are

going to go to jail.

Mr. GENSON: We understand.

THE Court: All right.

Mr. GENSON: We have the next appointment with the

Gateway people at 3:00 o’clock Saturday and we under-

stand that whatever they say to do, we will do.

THE CourT: Okay.

All right. The Gateway Program, the first condition of

probation. It is five years’ probation. The imposition of

the sentence is suspended. You also have to have a full

App. 13

psychiatric evaluation and then whatever else Ms. Rozan-

ski thinks appropriate by way of future treatment. If it

is some kind of a full-scale therapy program, then that

is what it is; and if it is less than that, then it will be

less than that.

What else should I do here?

[10] Ms. RozANski: Just as long as he has psychiatric

counseling—or I probably should say mental health counsel-

ing is ordered as a special condition of probation.

THE Court: Okay. That will be a special—those two

will be special conditions of probation: Mental health coun-

seling and the Gateway House; and whether it is an in-

house or a non in-house program, we will await what

Gateway and Ms. Rozanski think.

Okay, Mr. Locksley, you got a break today. I am not

just going to hammer it all over again. You have got to

know you got a break today. That is your last break, Kid.

Okay?

THE DEFENDANT: Okay, your Honor. Thank you.

Mr. GENSON: Thank you, your Honor.

Ms. DEMato: I move to dismiss the underlying indict-

ment.

THE Court: That motion will be granted.

* * * * X

[Certificate of Official Court Reporter omitted in printing.]