Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 84-CR 765, Charles P. Kocoras, Judge.
Before CAMPBELL, Senior District Judge, BAUER, Chief Judge, WOOD, Circuit Judge.*fn*
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 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 remarks 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 overwhelming 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 operated the business on a daily basis and Bernice made all the major business decisions. Defendant Locksley did general office work, primarily writing estimates for auto repairs. 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 evidence as to whether records were ever kept concerning any of these transactions. Alan said no such records were kept; Yvonne testified otherwise. Defendant Locksley received 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 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 the amount of one dollar.
From July 20 to September 27, 1982, the following sequence 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 business. The checks were not in numerical sequence. The checks listed Locksley as payee and David Jordan as payor. Jordan's home address proved to be the address of a public park. Roy Mantle, a document examiner and handwriting expert with the Postal Service testified at trial and positively identified the endorsement 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 Johnson, whose listed home address turned out to be an empty lot. Locksley held a personal account at Skokie. Mantle positively identified the endorsement as Locksley'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 $2,400 involved, Locksley put $200 into his account.
August 12 First, Locksley cashed nine money orders at $300 apiece at Skokie, the payor being 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 concluded Locksley printed the information on the front of the money orders and endorsed 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 numbers of the money orders and telephone him at 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 been altered. She called Locksley and told him she would cash his money orders. However, Locksley never returned.
August 13 Locksley went to the Des Plaines Currency 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. Currency exchange owner Marvin Citro asked a customer to call the police since the exchange telephone was not working. While this ...