United States of America v. James Anthony Savage, a/k/a Mario J. Racanelli, a/k/a John Anthony Savage, a/k/a…

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES ANTHONY SAVAGE, a/k/a Mario
J. Racanelli, a/k/a John Anthony
Savage, a/k/a Egisto Grandoni, a/k/a No. 02-4576 
Max Marrache, a/k/a Greg
Masonotti, a/k/a M. John Delano,
a/k/a Robert Toliano, a/k/a
Grandoni Egistot, a/k/a Mark
Racanelli, a/k/a John Racanelli,
Defendant-Appellant. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-01-362)
Argued: October 1, 2004
Decided: December 10, 2004
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Niemeyer and Judge Motz joined.
COUNSEL
ARGUED: Peter David Goldberger, Ardmore, Pennsylvania, for
Appellant. Douglas Cannon, Assistant United States Attorney,

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OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee. ON BRIEF: Pamela A. Wilk, Ard-
more, Pennsylvania, for Appellant. Anna Mills Wagoner, United
States Attorney, Clifton T. Barrett, Assistant United States Attorney,
L. Patrick Auld, Assistant United States Attorney, Greenboro, North
Carolina, for Appellee.
OPINION
KING, Circuit Judge:
Appellant James A. Savage was convicted in the Middle District of
North Carolina in March of 2002 on multiple fraud-related charges in
a thirty-two count indictment. His convictions include fourteen counts
of wire and mail fraud, in violation of 18 U.S.C. §§ 1341 and 1343;
ten counts of interstate transportation of stolen property, in contraven-
tion of 18 U.S.C. § 2314; six counts of money laundering, in violation
of 18 U.S.C. § 1957(a); and two counts of conspiracy, in contraven-
tion of 18 U.S.C. §§ 371 and 1956(h). On appeal, Savage raises four
issues, most significantly challenging his money laundering convic-
tions on the basis that the court impermissibly amended the indict-
ment. As explained below, we affirm.
I.
A.
The factual scenario underlying the array of offenses lodged
against Savage primarily related to his scheme to defraud several
investors — mainly single, older women — of substantial sums of
money, by inducing them to invest in bogus business ventures (first,
wireless communication operations, and later, uncut gems from over-
seas). After securing large sums of money from his fraudulent activi-
ties, Savage spent most of it on personal extravagances. In carrying
out his fraudulent activities, Savage presented himself to his victims
under various aliases, particularly "Mario Racanelli," and he fre-
quently affected a mafia-type persona. He consistently advised his
victims of far-fetched and untrue stories about his family and busi-
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nesses. In sum, ten of Savage’s victims collectively suffered losses of
over $8,000,000.
In 1995 and 1996, operating primarily in North Carolina, Savage
met and romanced Connie Steinberg, Ellen Shlom, Rose Barron, and
Jule White. Steinberg invested $1,500 with Savage for a supposed
wireless communications venture. He also ran up $12,000 of debt on
Steinberg’s credit cards without her knowledge. Shlom invested
$2,500 with Savage for the same venture and also gave him $2,200
from an advance on her credit card. Barron invested $3,200 with Sav-
age for the same venture. Finally, White obtained a $5,000 advance
on her credit card and invested the money with Savage. None of the
women recovered any of their principal or the expected return on their
"investments."
In 1999, Savage met fifty-nine-year-old Marsha Cox in Florida. He
romanced Cox and persuaded her to purchase a $3,000 computer for
him. Cox was also persuaded to allow Savage to float large checks
through her bank accounts in order to launder his ill-gotten funds.
When some of his victims became suspicious of Savage’s activities
or threatened to report him to the authorities, Savage intimidated
them. For example, he advised Barron that she was constantly being
watched and that she "didn’t realize the contacts he had." When
White wanted to go to the police, he threatened that he would "take
care of [her]."
The primary victim of Savage’s fraudulent activities was Jean Fos-
ter, whom he swindled out of more than $6,000,000. Foster first met
Savage in 1996 at a ballroom dancing activity in Winston-Salem,
North Carolina; she was then sixty-five and Savage was in his late
twenties, though he told her he was forty-one. The two became inti-
mate and, over the next two and one-half years, Savage completely
depleted Foster’s net worth. Foster lost the funds in her trust accounts
and most of her jewelry to Savage, and she then sold her residence
to provide him with additional money. Foster finally went to the
police and an attorney in August 1999, and she then ceased giving
Savage money and began recording their phone conversations. Fos-
ter’s testimony at trial, along with her recordings, constituted impor-
tant evidence for the prosecution.
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In 1999, Savage expanded his fraudulent activities and began to
offer his victims false investment opportunities in diamond and emer-
ald importation and cutting. Savage and his then-wife, Margaret Hands-
man,1 convinced Glenn and Sheri Huminski to invest $205,000 in his
gem scheme after the Huminskis mortgaged their home. The Humin-
skis then convinced a friend, Glenn Whitfield, to invest an additional
$75,000 with Savage. Savage persuaded Jennifer Stack to invest
$900,000 in uncut emeralds; he also convinced Stack’s psychothera-
pist, Sharon Taft, to invest $360,000. Finally, Geri Black, a widow,
invested $600,000 in Savage’s gem importation scheme. Interestingly,
Savage once repaid Stack the sum of $20,000. He never returned any
principal or expected profits to his other victims.
In 2000, two Winston-Salem attorneys, Reginald Combs and Joslin
Davis, were paid legal fees by Savage and Handsman for representa-
tion in a civil action initiated by Foster. The source of the money used
for these payments was Savage’s fraudulent activities. Six of these
payments resulted in bank deposits of more than $10,000 — two
checks, two groups of money orders, and two wire transfers into law
firm bank accounts — occurring between February and December
2000. These transactions constituted the underpinnings of the six
money laundering counts of the indictment, set forth in Counts
Twenty-Six through Thirty-One (the "money laundering counts").
B.
On December 17, 2001, a grand jury in the Middle District of
North Carolina indicted Savage and Handsman for thirty-two offenses
arising from their fraudulent activities.2 Handsman pleaded guilty to
1Margaret Handsman was Savage’s wife during most of the fraudulent
activities for which he was prosecuted. Handsman testified at trial that
she met Savage in early 1996, married him in July of that year, left him
in October 2000, and divorced him in June 2001.
2Count Twenty-Six of the indictment, by way of example, alleged in
pertinent part as follows:
On or about April 4, 2000, in the County of Forsyth, in the State
and Middle District of North Carolina, JAMES ANTHONY
SAVAGE and MARGARET NATHALIE HANDSMAN, defen-
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one count of money laundering conspiracy (Count Thirty-Two) on
March 7, 2002, and the other charges against her were later dismissed
in exchange for her cooperation and testimony against Savage.
At trial, the prosecution introduced evidence of three answering
machine messages that Savage had left for Handsman after she had
agreed to testify for the prosecution.3 In these messages, Savage
threatened Handsman’s life, warned her to be careful when starting
her car, and directed a number of expletives at her. Handsman also
testified at trial to a sexual incident between her and Savage in which
he had dressed up as Jean Foster. The defense lodged proper and
timely objections to each of these items of evidence.
The prosecution also introduced evidence surrounding two inci-
dents in Florida, occurring in the course of the conspiracy, when Sav-
age was arrested. In the first incident, occurring near Miami on March
8, 2000, the police arrested Savage and recovered over $12,000 in
cash plus several items relating to false identifications. When Savage
objected to this evidence, the court instructed the jury that the evi-
dence was only admitted for the purpose of whether the items recov-
dants herein, together and with divers other persons to the Grand
Jurors both known and unknown, knowingly engaged in a mone-
tary transaction affecting interstate commerce, by, through and
to a financial institution, in criminally derived property of a
value of over $10,000, derived from specified unlawful activity,
namely mail fraud and wire fraud, and inducing the travel of per-
sons in interstate commerce in the execution of a scheme to
defraud, by causing the deposit of twenty thousand dollars
($20,000) into a Winston-Salem, North Carolina law firm’s bank
account, BB&T account number 5118542098.
All in violation of Title 18, United States Code, Sections
1957(a) and 2.
Counts Twenty-Seven through Thirty-One differed from Count Twenty-
Six only with respect to their allegations of different monetary transac-
tions occurring on other occasions.
3In addition to the admission of these three taped messages, a fourth
such tape was offered by the Government but was excluded by the court
as being overly prejudicial.
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ered were tools and materials which had been used in the conspiracy.
Otherwise, according to the limiting instruction, the arrest was not
evidence of Savage’s guilt and "had nothing to do with the matter in
this case." Savage made no objection to this limiting instruction.
In the second incident, occurring near Sarasota on March 24, 2000,
Savage was arrested while seeking to conceal himself from officers
who were executing a search warrant for his person. The prosecution
first presented evidence relating to the Sarasota arrest through testi-
mony of a police officer involved in executing the warrant. On objec-
tion by Savage, however, this evidence was stricken by the court for
lack of relevance or materiality. During Handsman’s subsequent testi-
mony as a cooperating Government witness, evidence was again pre-
sented concerning the Sarasota arrest incident. When Savage objected
to her evidence concerning this incident, the court overruled the
objection. Savage made no request for a limiting instruction as to this
evidence, and none was given.
During his closing argument, the prosecutor described the evidence
against Savage as telling a "sordid and sad tale," and asserted that
Savage had used romance to weaken the judgment of his several
female victims. The prosecutor also urged the jurors to focus on the
credibility of the prosecution witnesses, regardless of the jurors’ sym-
pathy, or lack thereof, for those witnesses. Finally, he argued that
Savage "lost his good name, by whatever alias you choose" and that
he does not "feel that compulsion others do." Savage made no objec-
tion to the prosecutor’s closing argument.
Prior to the its deliberations, the court provided instructions to the
jury on the applicable legal principles. On the money laundering
counts, the court advised the jury, inter alia, that the prosecution was
required to prove, beyond a reasonable doubt, that Savage had
engaged "in a monetary transaction of criminally derived money of a
value of greater than $10,000." The court then instructed the jury, by
reading the pertinent part of 18 U.S.C. § 1957(f)(1), that a "monetary
transaction," as used in the indictment, is "the deposit, withdrawal,
transfer or exchange . . . of funds or monetary instruments by,
through, or to a financial institution."
On March 21, 2002, after a six-day trial, Savage was convicted on
all counts. In his sentencing proceedings on July 25, 2002, the district
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court applied a two-level enhancement to Savage’s base offense level
for his violation of an earlier court order. See U.S.S.G.
§ 2F1.1(b)(4)(C) (2000). The basis of this enhancement was Savage’s
violation of an injunction order entered in Foster’s civil action, in the
Middle District of North Carolina, prohibiting Savage from "dispos-
ing of, encumbering, and depleting any interest in any assets" owned
by him. Despite that order, Savage had transferred more than
$2,000,000 worth of personal property and liquid assets, some to
known associates and some to a storage unit, in an effort to evade the
civil judgment against him. At the conclusion of the sentencing pro-
ceedings, the district court sentenced Savage to 250 months of impris-
onment.
II.
On appeal, Savage raises four contentions of error. First, he main-
tains that the trial court erred in admitting the evidence of his phone
messages to Handsman, testimony regarding his sexual behavior with
Handsman, and the evidence surrounding his earlier arrests in Miami
and Sarasota. Second, he asserts prosecutorial misconduct by an
improper and prejudicial closing argument. Third, Savage contends
that the instructions on the money laundering counts impermissibly
broadened the bases for conviction alleged in the indictment. Finally,
Savage maintains that the trial court erred in enhancing his base
offense level for violation of a court order.4
A.
Savage first asserts that the district court erred in admitting four
items of evidence — answering machine messages, a sexual incident
with his wife, and the events relating to his two prior arrests —
because the probative value of each was substantially outweighed by
4By unpublished per curiam opinion filed on December 5, 2003, we
initially affirmed Savage’s convictions and sentence. United States v.
Savage, No. 02-4576, 2003 WL 22871605 (4th Cir. 2003). Savage subse-
quently petitioned for rehearing, specifically on the instructions relating
to the money laundering counts. We granted rehearing on February 9,
2004, vacating our earlier opinion. See Local Rule 40.2. Each of Sav-
age’s contentions is now before us.
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the danger of unfair prejudice. See Fed. R. Evid. 403. A decision on
the admission of evidence is peculiarly within the province of the trial
court, and we review such a decision for abuse of discretion. United
States v. Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996). Moreover,
even if evidence has been erroneously admitted, we review the trial
court’s ruling for harmless error. United States v. Francisco, 35 F.3d
116, 118 (4th Cir. 1994).
First, as the district court observed, the answering machine mes-
sages were relevant evidence against Savage, as they constituted
threats against a prosecution witness, indicating a consciousness of
guilt. See United States v. Van Metre, 150 F.3d 339, 352 (4th Cir.
1998). As the district court also observed, the phone messages were
relevant to establishing that Savage and Handsman had conspired to
defraud their victims. Accordingly, there was no abuse of discretion
in the trial court’s ruling on this evidence.
Second, although Handsman’s testimony regarding the sexual inci-
dent could have engendered some degree of distaste among the jurors,
it was relevant to show Handsman’s knowledge of Savage’s fraudu-
lent activities with respect to Foster, supporting the prosecution’s
proof of an ongoing conspiracy. Because of its relevance, and viewed
in context, this evidence was not unfairly prejudicial to Savage, and
it did not create "a genuine risk that the emotions of the jury [were]
excited to irrational behavior." United States v. Ham, 998 F.2d 1247,
1252 (4th Cir. 1993) (citation and internal quotation marks omitted).5
Accordingly, there was no abuse of discretion in the trial court’s
admission of this evidence.
The evidence relating to the Miami arrest incident was also not
5There is likewise no merit to Savage’s argument that the sexual inci-
dent was protected by privilege as a confidential marital communication.
Although Savage and Handsman were married when the communication
was made, they were jointly involved in ongoing criminal activity to
defraud Foster and others. See United States v. Parker, 834 F.2d 408,
412 n.7 (4th Cir. 1987) (recognizing that communications between
spouses that "are in any way related to a crime, and made in the course
of the spouses’ joint planning or participation in that crime" are excluded
from protection by marital privilege).
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erroneously admitted, when assessed in the context of trial.6 The trial
court properly exercised its discretion in admitting the evidence for
limited purposes only, and it provided the jury with an appropriate
limiting instruction, which included, inter alia, the admonition that
the arrest of Savage was not evidence of his guilt. See Francisco, 35
F.3d at 119 (observing that jury is presumed to follow instructions).
On appeal, Savage does not contest the sufficiency of this limiting
instruction, to which he lodged no objection at trial. In these circum-
stances, Savage’s contention of error with respect to the evidence of
the Miami arrest is without merit.
Finally, while we see the admission of Handsman’s testimony
regarding Savage’s Sarasota arrest as a closer question, the trial
court’s ruling hardly qualifies as an abuse of its broad discretion in
such matters.7 See United States v. Russell, 971 F.2d 1098, 1104-05
(4th Cir. 1992)(observing that trial court’s evidentiary rulings are
entitled to substantial deference). In any event, such an error would
6While evidence of unrelated arrests are not normally admissible
against a criminal defendant, a trial court possesses broad discretion,
under Federal Rules of Evidence 404(b) and 403, to admit evidence
which is inextricably intertwined with proof of the offenses for which an
accused is on trial. Falling outside the scope of Rule 404(b), evidence of
an arrest for activity "other than the offense charged . . . is not extrinsic
evidence if it is inextricably intertwined with the evidence of the charged
offense." United States v. Cancelliere, 69 F.3d 1116, 1124 (11th Cir.
1995).
7It is significant in our assessment of the Sarasota arrest evidence that
the warrant being executed was a Florida search warrant for Savage’s
person directed to a residential property titled in Handsman’s name. This
residence, which was being paid for by Savage, was equipped with a hid-
den room where surveillance cameras, located throughout the property,
were used to monitor activities in and about the residence. The district
court aptly described the secret room as "an area . . . similar to some of
the old movie stories that you sometimes see of old and unusual houses,
though this was a new one, with a wall that would reverse itself." It was
in this hidden room, on the second floor of the residence, that Savage
was discovered by the officers "in his shorts." Handsman, his confessed
co-conspirator, had earlier represented to the officers that she did not
know whether or not Savage was on the property. In such circumstances,
the trial court was within its discretion in ruling as it did.
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be harmless in the context of this trial. In view of the overwhelming
nature of the proof against Savage, we are convinced that the verdict
"was not substantially swayed" against him by the admission of this
evidence.8 Brooks, 111 F.3d at 371 (citation and internal quotation
marks omitted). Accordingly, we also reject Savage’s contention with
respect to his Sarasota arrest.
B.
Savage next maintains that the prosecutor engaged in misconduct
by referring to Savage’s character and playing to the jury’s emotions
during closing argument. We review this claim for plain error, how-
ever, as Savage made no contemporaneous objection to the prosecu-
tor’s argument. United States v. Ollivierre, 378 F.3d 412, 417-18 (4th
Cir. 2004) (citing United States v. Olano, 507 U.S. 725, 732 (1993)).9
Assessed carefully under the first prong of Olano (whether there
was error), we are unable to identify any misconduct or erroneous
actions in the prosecution’s closing argument. As we have recog-
nized, "[c]ommitted advocates do not always present antiseptic clos-
ing statements," and an appellate contention concerning the propriety
of a closing argument must be examined in that vein. Bates v. Lee,
308 F.3d 411, 422 (4th Cir. 2002). And as we have often observed,
"prosecutors enjoy considerable latitude in presenting arguments to a
jury, because the adversary system permits the prosecutor to prose-
cute with earnestness and vigor." Id. (internal citations and quotations
omitted). Our assessment of the prosecutor’s argument in Savage’s
trial, examined in context, fails to disclose any misconduct or error
8In order for a trial error to be harmless, "we need only be able to say
with fair assurance, after pondering all that happened without stripping
the erroneous action from the whole, that the [verdict] was not substan-
tially swayed by the error." United States v. Brooks, 111 F.3d 365, 371
(4th Cir. 1997) (citation and internal quotation marks omitted).
9The plain error mandate of Olano is satisfied if: (1) there was error;
(2) it was plain; and (3) it affected the defendants’ substantial rights. 507
U.S. at 732. If these conditions are met, we may then exercise our discre-
tion to notice the error, but only if it "seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings." Id. (citation and
internal quotation marks omitted).
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and, as a consequence, Savage’s contention on this point must also be
rejected.
C.
1.
In seeking a new trial on the money laundering counts, Savage
complains on appeal that the instructions impermissibly amended
those counts, authorizing the jury to convict him on the basis of alle-
gations which had not been charged by the grand jury. See Stirone v.
United States, 361 U.S. 212 (1960) (recognizing that right to be tried
only on charges lodged by grand jury is violated when instructions
broaden possible bases of conviction). More specifically, Count
Twenty-Six charged, in pertinent part, that Savage had "knowingly
engaged in a monetary transaction affecting interstate commerce
. . . in criminally derived property of a value of over $10,000 . . . by
causing the deposit of twenty thousand dollars ($20,000) into a
Winston-Salem, North Carolina law firm’s bank account" in violation
of 18 U.S.C. § 1957(a).10 (emphasis added). The other five money
laundering counts contained identical allegations, except for the dates
and sums of the deposits.
At the close of the evidence, the court instructed the jury on the
applicable legal principles. Certain of the instructions, to which Sav-
age consented, related to the money laundering counts. They required,
inter alia, that the prosecution prove, beyond a reasonable doubt, that
Savage had engaged "in a monetary transaction of criminally derived
money of a value of greater than $10,000." (emphasis added). Consis-
tent with § 1957(f)(1) of Title 18, the court explained the money laun-
dering offenses by also instructing the jury that a "monetary
transaction" means "the deposit, withdrawal, transfer or exchange, in
or affecting interstate commerce of funds or monetary instruments by,
through, or to a financial institution." (emphasis added). When the
10Pursuant to § 1957(a) of Title 18, "[w]hoever . . . knowingly engages
or attempts to engage in a monetary transaction in criminally derived
property that is of a value greater than $10,000 and is derived from speci-
fied unlawful activity, shall be punishable as provided in subsection (b)."
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jury was preparing to deliberate, the court provided it with a copy of
the indictment.
Savage contends that these instructions served to constructively
amend the six money laundering counts by authorizing his conviction
for monetary transactions other than those charged by the grand jury,
specifically for the "withdrawal, transfer, or exchange" of funds,
while the indictment had limited the six monetary transactions to the
"deposit" of criminally derived monies. Because there was no objec-
tion to these instructions, we review this contention for plain error
only. Fed. R. Crim. P. 52(b); Olano, 507 U.S. at 732.
2.
Assessed under United States v. Olano, 507 U.S. 725 (1933), we
are unable to identify any error here, and the money laundering
instructions thus were not plainly erroneous. The money laundering
counts simply charged Savage with conduct prohibited by the statute,
and they properly framed each charge "in the words of the statute."
United States v. Wicks, 187 F.3d 426, 427 (4th Cir. 1999) (holding
that indictment is sufficient if it alleges offense in language of stat-
ute). Each of the money laundering counts properly alleged that Sav-
age, under § 1957(a), had knowingly engaged in a "monetary
transaction" in criminally derived property valued over $10,000. The
grand jury then particularized the monetary transactions underpinning
those offenses as six specific bank deposits.
The trial court properly instructed the jury on the elements of
§ 1957(a), including the requirement that the jury find, beyond a rea-
sonable doubt, that Savage had engaged "in a monetary transaction."
Savage does not contend on appeal that § 1957(a) is either vague or
ambiguous. See Rimerman v. United States, 374 F.2d 251, 254-55
(8th Cir. 1967) (instructing jury in language of statute is appropriate
when statutory provision is clear and concise) Wheeler v. United
States, 190 F.2d 663, 663 (D.C. Cir. 1951) (same); 2 Charles Alan
Wright, Federal Practice and Procedure §§ 485, 487, at 712 & n.6,
729 & n.15 (2d. ed. 1982 & Supp. 1999) (collecting cases). Moreover,
the court then appropriately instructed the jury on the statutory defini-
tion of a "monetary transaction," as it is set forth in § 1957(f)(1), that
is, "the deposit, withdrawal, transfer, or exchange . . . of funds." That
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aspect of the instructions properly served to explain the monetary
transaction element of the money laundering offenses, including the
fact that proof of a bank deposit would satisfy that element of such
an offense.
Notwithstanding Savage’s protestations, it is of no moment that the
money laundering counts alleged only that Savage had deposited the
criminally derived monies. And the instructions complained of did not
identify a separate or different offense from that alleged in those
counts. As a result, the jury could not have convicted Savage of any
crimes other than those alleged. See United States v. Downer, 143
F.3d 819, 822 (4th Cir. 1998) (finding constructive amendment when
trial court substituted another offense for that charged in indictment);
United States v. Floresca, 38 F.3d 706, 710 & n.9 (4th Cir. 1994) (en
banc) (finding constructive amendment when trial court instructed
jury it could convict under either of two statutory subsections but only
one charged in indictment). In these circumstances, there was nothing
erroneous in the money laundering instructions, and Savage’s conten-
tion on this point must also be rejected.
D.
Savage’s final contention is that the district court erred in enhanc-
ing his base offense level under the Sentencing Guidelines for his vio-
lation of the injunction order entered in Foster’s civil action. See
U.S.S.G. § 2F1.1(b)(4)(C) (2000) (providing for two-level enhance-
ment where the offense involves "a violation of any prior, specific
judicial or administrative order, injunction, decree, or process"). We
review a district court’s factual findings at sentencing for clear error
and its application of the Guidelines de novo. United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Savage’s actions —
transferring assets to storage and to his associates — plainly consti-
tuted an effort to hide those assets from the court, in violation of the
court’s order enjoining him from "disposing of, encumbering and
depleting any interest in any assets." The sentencing court’s findings
in this regard are not clearly erroneous, and its application of the
Guidelines was entirely proper. Accordingly, we must deny relief on
this claim as well.
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III.
Pursuant to the foregoing, we reject Savage’s contentions of error
and affirm his convictions and sentence.
AFFIRMED
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