-
USCA1 Opinion
September 29, 1992 ____________________
September 29, 1992 ____________________
No. 91-2232
No. 91-2232
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
Appellee,
Appellee,
v.
v.
ANDRES GABRIEL BELLO-PEREZ,
ANDRES GABRIEL BELLO-PEREZ,
a/k/a GARBY,
a/k/a GARBY,
Defendant, Appellant.
Defendant, Appellant.
____________________
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Norman H. Stahl, U.S. District Judge]
[Hon. Norman H. Stahl, U.S. District Judge]
___________________
____________________
____________________
Before
Before
Cyr and Boudin, Circuit Judges,
Cyr and Boudin, Circuit Judges,
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and Hornby,* District Judge.
and Hornby,* District Judge.
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____________________
____________________
Martin D. Harris with whom Damon M. D'Ambrosio, Joseph Dugan and
Martin D. Harris with whom Damon M. D'Ambrosio, Joseph Dugan and
_________________ ___________________ ____________
Martin D. Harris, Esquire, Ltd. were on brief for appellant.
Martin D. Harris, Esquire, Ltd. were on brief for appellant.
_______________________________
Robert J. Veiga, Assistant United States Attorney, with whom
Robert J. Veiga, Assistant United States Attorney, with whom
________________
Jeffrey R. Howard, United States Attorney, and David A. Vicinanzo,
Jeffrey R. Howard, United States Attorney, and David A. Vicinanzo,
__________________ ___________________
Assistant United States Attorney, were on brief for appellee.
Assistant United States Attorney, were on brief for appellee.
____________________
____________________
____________________
____________________
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*Of the District of Maine, sitting by designation.
*Of the District of Maine, sitting by designation.
CYR, Circuit Judge. Along with thirteen other defen-
CYR, Circuit Judge.
______________
dants, appellant Andres Bello-Perez was charged with conspiring
to distribute cocaine in violation of 21 U.S.C. 846. Finding
no error in the indictment, trial or sentence, we affirm.
I
I
BACKGROUND
BACKGROUND
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Viewing the evidence in the light most favorable to the
government, see United States v. David, 940 F.2d 722, 732-33 (1st
___ _____________ _____
Cir. 1991), cert. denied, 112 S. Ct. 605 (1991), and cert.
____ ______ ___ ____
denied, 112 S. Ct. 908 (1992), and cert. denied, 112 S. Ct. 1298
______ ___ ____ ______
(1992), and cert. denied, 112 S. Ct. 2301 (1992); United States
___ ____ ______ _____________
v. Rivera-Santiago, 872 F.2d 1073, 1078-79 (1st Cir. 1989), the
_______________
jury could have found the following facts.
Beginning in the fall of 1987, New York-based Bello-
Perez, with the aid of his girlfriend, Paula Beltran, supplied
Peter Clark, first directly and then through a series of couri-
ers, with large quantities of cocaine for resale through Clark's
network of dealers in northeastern Massachusetts and coastal New
Hampshire. By late 1987, Bello-Perez had become Clark's princi-
pal source, supplying on average one to one and one-half kilo-
grams weekly. One of Clark's lieutenants was Edward
Murley, who assisted Clark by distributing cocaine supplied by
Bello-Perez and by collecting payments from purchasers throughout
Clark's distribution area. During the second half of 1988,
2
Murley estimated that he came in direct contact with Bello-Perez
at least seven times.
On December 7, 1988, Peter Clark was arrested with a
kilogram of cocaine in his possession. The seizure of the
cocaine left Clark owing Bello-Perez approximately $14,000, in
part payment of which Murley delivered Bello-Perez $3,000 raised
by Deborah Panneton, Clark's common-law wife. Murley himself
owed Clark $2,000, which Bello-Perez instructed Murley to pay
directly to him. Since Murley did not have the cash, he agreed
to sell approximately four and one-half ounces of cocaine "front-
ed" to him by Bello-Perez. The net proceeds were applied against
the Clark debt to Bello-Perez.
As the money raised from these sources was insufficient
to compensate him for the cocaine seized from Clark, Bello-Perez,
in the company of Beltran and a Dominican male named "Tony,"
drove north with Murley and began collecting Clark's drug debts
directly from Clark's customers. Luke Bixby, one of Clark's
helpers, was brought to Murley's house and taken into a bathroom
by Bello-Perez and Beltran. Bixby emerged visibly shaken. While
Tony stood nearby with an Uzi submachine gun, Bixby began placing
telephone calls to Clark's customers, urging them to bring Bello-
Perez the money they owed Clark. In further satisfaction of
Clark's debt, Bello-Perez, accompanied by Tony (toting the Uzi),
seized Clark's Trans Am automobile from another Clark confeder-
ate, and the next day, again at gunpoint, forced Panneton to
relinquish title to the car.
3
In the weeks following Clark's arrest, Murley and other
former Clark associates stepped forward to take over Clark's
distribution network. Murley's first drug purchase from Bello-
Perez followed Clark's arrest by only three weeks. Murley
testified that, through couriers (including some who had dealt
with Bello-Perez in behalf of Clark), he purchased approximately
nine ounces of cocaine from Bello-Perez every two weeks. Begin-
ning in March 1989, Bello-Perez (and occasionally Beltran) would
visit Murley in New Hampshire every week or ten days, to collect
drug payments and oversee Murley's drug distribution network. On
occasion, Bello-Perez would deliver drugs directly to members of
Murley's network to sell, bypassing Murley altogether.
On May 22, 1989, the Murley distribution chain was
infiltrated by an undercover agent for the New Hampshire State
Police, who arranged to purchase an ounce of cocaine from Murley
for $1,000. The agent observed Paula Beltran in Murley's pres-
ence when the deal was negotiated; Murley ultimately gave Beltran
the agent's $1,000 in satisfaction of a drug debt owed Bello-
Perez. On November 2-3, 1989, the Murley chain was infiltrated
again, this time by a former Clark confederate who had agreed to
cooperate with the U.S. Drug Enforcement Administration. Murley
agreed to sell the federal informant four and one-half ounces of
cocaine for $4,200. Bello-Perez, who was present at the time of
the transaction, again supplied the cocaine. On November 8 and
15, 1989, the same federal informant purchased nine ounces of
cocaine from Murley, who once again obtained the cocaine from
4
Bello-Perez. On November 6, 1990, following further investiga-
tion, Bello-Perez was arrested.
Count I of the indictment charged as follows:
Beginning at an unknown date but at the lat-
_________ __ __ _______ ____ ___ __ ___ ____
est by August, 1988, and continuing thereaf-
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ter up to and including January 17, 1991, in
__ _______ __ ____
the District of New Hampshire and elsewhere,
ANDRES GABRIEL BELLO-PEREZ [and thirteen co-
defendants] . . . did knowingly and inten-
tionally combine, conspire and agree with
each other and with others known and unknown
to the Grand Jury, to possess with intent to
distribute and to distribute quantities of
cocaine, a Schedule II narcotic controlled
substance, and marihuana, a Schedule I hallu-
cinogenic controlled substance, in violation
of Title 21, United States Code, Section
841(a)(1).2 (Emphasis added.)
Four days before trial, Bello-Perez' attorney was
provided with approximately 1,000 documents, including several
which implicated Bello-Perez in a conspiracy involving Peter
Clark and dating from the late fall of 1988. On the day of
trial, government counsel supplied defense counsel with addition-
al statements indicating that Clark would testify and implicate
Bello-Perez in cocaine sales during 1988 and extending through
December 1989. Following the two and one-half week trial, during
which Clark, Beltran, Murley and a number of other co-conspira-
tors testified, Bello-Perez was convicted and sentenced to 360
months in prison. We turn to the numerous claims raised on
appeal.
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2The marijuana charges were dropped.
5
II
II
DISCUSSION
DISCUSSION
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A. Variance
A. Variance
________
The indictment does not mention Peter Clark by name.
Rather, it alleges generally that Bello-Perez was involved in a
conspiracy beginning at an "unknown" date, "at the latest by
August 1988," names a number of alleged co-conspirators, and
specifies various overt acts involving (most prominently) Edward
Murley. Bello-Perez contends that the conspiracy which began in
1987, led by Peter Clark, was distinct from any conspiracy that
existed after Clark's arrest in late 1988, with Edward Murley at
its helm. Bello-Perez therefore argues that the indictment
afforded insufficient notice of the government's intention to
present evidence relating to the Clark conspiracy. Citing
Kotteakos v. United States, 328 U.S. 750 (1946), Bello-Perez
_________ ______________
contends that his defense against what he regards as the separate
and distinct "Murley conspiracy" was unfairly prejudiced by the
evidence relating to the uncharged "Clark conspiracy." We reject
the premise underlying his contention.
Whether the evidence adduced at trial established one
or more conspiracies was a question of fact for the jury. See
___
David, 940 F.2d at 732, 735; United States v. Drougas, 748 F.2d
_____ _____________ _______
8, 17 (1st Cir. 1984). In order to find a single conspiracy, the
jury need have found only that Clark, Murley and Bello-Perez,
pursuant to their tacit or express agreement, knowingly and
intentionally "directed their efforts towards the accomplishment
6
of a common goal or overall plan" to commit the substantive
offense charged in the indictment, i.e., possessing cocaine for
____
distribution. Rivera-Santiago, 872 F.2d at 1079 (quoting Drouga-
_______________ _______
s, 748 F.2d at 17); United States v. Giry, 818 F.2d 120, 127 (1st
_ _____________ ____
Cir.), cert. denied, 108 S. Ct. 162 (1987). The jury was permit-
____ ______
ted to consider a wide range of factors, including "the nature,
design, implementation, and logistics of the illegal activity;
the participants' modus operandi; the relevant geography; and the
scope of coconspirator involvement." United States v. Boylan,
_____________ ______
898 F.2d 230, 241 (1st Cir.), cert. denied, 111 S. Ct. 139
____ ______
(1990); see also David, 940 F.2d at 734 ("no mechanical test");
___ ____ _____
Rivera-Santiago, 872 F.2d at 1079. It was not necessary for the
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jury to find that the alleged coconspirators joined the conspira-
cy at the same time, see United States v. Kelley, 849 F.2d 999,
___ _____________ ______
1003 (6th Cir.), cert. denied, 488 U.S. 982 (1988) (single
____ ______
conspiracy can be found even where "the cast of characters
changed over the course of the enterprise"), or shared the same
knowledge, beyond the tacit understanding that their illicit
agreement existed, see United States v. Sanchez, 917 F.2d 607,
___ _____________ _______
610 (1st Cir. 1990), cert. denied, 111 S. Ct. 1637, and cert.
____ ______ ___ ____
denied, 111 S. Ct. 2809 (1991); Rivera-Santiago, 872 F.2d at
______ _______________
1079. Nor need the participants in the illicit scheme have known
all their coconspirators, see Rivera-Santiago, 872 F.2d at 1079;
___ _______________
Giry, 818 F.2d at 127; United States v. Moosey, 735 F.2d 633,
____ _____________ ______
635-36 (1st Cir. 1984), or have participated at the same time in
the furtherance of their criminal venture, see United States v.
___ ______________
7
Aponte-Suarez, 905 F.2d 483, 488 (1st Cir.), cert. denied, 111 S.
_____________ ____ ______
Ct. 531 (1990), and cert. denied, 111 S. Ct. 975 (1991); United
___ ____ ______ ______
States v. Cintolo, 818 F.2d 980, 997 (1st Cir.), cert. denied,
______ _______ ____ ______
484 U.S. 913 (1987). What was essential is that the criminal
"goal or overall plan" have persisted without fundamental alter-
ation, notwithstanding variations in personnel and their roles.
See, e.g., United States v. Aponte-Suarez, 905 F.2d at 488
___ ____ ______________ _____________
(finding single conspiracy even though initial venture was
thwarted, where conspirators adapted same conspiratorial plan to
new circumstances).
At the request of Bello-Perez, without objection by the
government, the jury was instructed to consider whether one or
more conspiracies existed, and to return a verdict against the
defendant only if it found a single conspiracy.3 Thus, there
can be no question that the jury squarely rejected the multiple-
conspiracy claim. Accordingly, as Bello-Perez did not move for
judgment of acquittal, see, e.g., United States v. Concemi, 957
___ ____ _____________ _______
____________________
3We quote the pertinent portion of the jury charge:
You must keep in mind that the defendant is charged
with involvement in a single conspiracy. The govern-
ment must prove the existence of the single conspiracy
charged in Count I of the indictment. If you find from
the evidence that there existed separate conspiracies
rather than a single conspiracy, then you must acquit.
Before you can conclude that a single conspiracy exist-
ed, you must be convinced that the alleged conspirators
directed their efforts towards the accomplishment of
the common goal or overall plan described in Count I of
the indictment . . . . In determining whether a single
conspiracy existed, you may consider the nature of the
illegal activity alleged in the indictment, the method
of operation and the scope and overlap of the conspira-
tor involvement.
8
F.2d 942, 950 (1st Cir. 1992); United States v. Greenleaf, 692
_____________ _________
F.2d 182, 185 (1st Cir. 1982), cert. denied, 460 U.S. 1069
____ ______
(1983), the present challenge to the sufficiency of the evidence
supporting the jury's single-conspiracy finding must fail absent
a showing of "clear and gross injustice," id.; see also United
___ ___ ____ ______
States v. McDowell, 918 F.2d 1004, 1009 (1st Cir. 1990). Since
______ ________
we are convinced that a rational trier of fact could have found,
beyond a reasonable doubt, that there was but one conspiracy, we
conclude, a fortiori, that no "clear and gross injustice" oc-
_ ________
curred. See United States v. Arango-Echeberry, 927 F.2d 35, 38
___ ______________ ________________
(1st Cir. 1990); see also McDowell, 918 F.2d at 1009.
___ ____ ________
We consider the evidence in the light most favorable to
the verdict with a view to whether it was sufficient to satisfy a
rational trier of fact beyond a reasonable doubt. See, e.g.,
___ ____
United States v. Tejeda, Nos. 91-1332 & 1388, slip op. at 4 (1st
_____________ ______
Cir. September 1, 1992). The evidence revealed that Murley and
Clark began their collaboration during 1987, with Murley later
emerging as a lieutenant in Clark's cocaine distribution network.
Murley and other conspirators (including Bello-Perez and Beltran)
stepped into (or resumed) leadership roles in the considerably
smaller distribution network which persisted notwithstanding
Clark's arrest. Due in considerable measure to the criminal
initiative and diligence of Bello-Perez, the essential structure
and function of the illicit enterprise previously led by Clark
proceeded apace under new management, dominated by a familiar
"core" of conspirators who survived Clark's arrest. See Kelley,
___ ______
9
849 F.2d at 1003 (upholding "single conspiracy" finding "even
where the cast of characters changed over the course of the
enterprise"). Although their roles in the criminal enterprise
may have changed, their modus operandi remained essentially
_____ ________
unchanged. See Boylan, 898 F.2d at 242. Bello-Perez continued
___ ______
to supply Clark's former lieutenant, Murley, with substantial
quantities of cocaine on a regular basis, for distribution among
some of the smaller dealers in northeastern Massachusetts and
coastal New Hampshire previously supplied by Clark.
More to the present point, the temporal bounds of the
conspiracy alleged in the indictment fairly encompassed the pre-
Clark arrest period as well as the post-arrest period. Although
Clark was not a named conspirator,4 the indictment alleged that
the conspiracy began at an "unknown" date, "at the latest by
August, 1988" a time when Clark clearly remained in charge of
the distribution network supplied by Bello-Perez, and Murley was
serving as Clark's lieutenant.5 Finally, contrary to Bello-
____________________
4See United States v. Penagaricano-Soler, 911 F.2d 833, 840
___ _____________ __________________
n.5 (1st Cir. 1990) ("[w]here . . . the indictment alleges the
unlawful agreement with sufficient particularity, the defendant
is not denied adequate notice of the charge merely by virtue of
the failure to name all co-conspirators.").
5Moreover, the fact that the indictment charged a conspiracy
beginning at an "unknown" date, "at the latest by August 1988"
__ ___ ______
(emphasis added), did not preclude the evidence (including
Clark's testimony) relating to events predating August 1988. See
_________ ______ ____ ___
United States v. Crocker, 788 F.2d 802, 805 (1st Cir. 1986)
______________ _______
("approximate dates in an indictment are not controlling");
United States v. Morris, 700 F.2d 427, 429 (1st Cir.), cert.
______________ ______ ____
denied, 461 U.S. 947 (1983) ("Where a particular date is not a
______
substantive element of the crime charged, strict chronological
specificity or accuracy is not required.").
10
Perez' contention, the fact that the majority of overt acts
detailed in the indictment took place after Clark's arrest is not
determinative. The government is not required to plead or prove
any overt act in furtherance of a section 846 conspiracy. United
___ ______
States v. Arboleda, 929 F.2d 858 (1st Cir. 1991); United States
______ ________ _____________
v. Williams, 809 F.2d 75, 80 (1st Cir. 1986), cert. denied, 481
________ ____ ______
U.S. 1030 (1987). Although overt acts are "gratuitously set
forth in the indictment," Aponte-Suarez, 905 F.2d at 488, the
_____________
government is not limited at trial to proof of the alleged overt
acts; nor is the indictment rendered insufficient for failure to
plead other overt acts.
B. Motion to Dismiss
B. Motion to Dismiss
_________________
Bello-Perez moved to dismiss the indictment on the
additional ground that he was unfairly surprised by delayed dis-
closure of Clark's role in the conspiracy (and Clark's impending
testimony).6 The district court properly rejected the claim.
First, disclosure was not impermissibly delayed. Immediately
prior to jury empanelment, the government disclosed that Clark
was a potential prosecution witness, and made available Clark's
prior statements. Contrary to Bello-Perez' implicit assumption,
there is no constitutional or statutory requirement that the
____________________
6As we have stated, the alternate ground for the motion to
dismiss that the admission of Clark's testimony engendered a
"fatal variance" between the crime charged in the indictment and
the proof presented at trial is groundless. In the present
case, the appropriate relief, if any, was not dismissal of the
indictment but exclusion of Clark's testimony. Bello-Perez does
not challenge the district court ruling which declined to exclude
the Clark testimony.
11
identity of prosecution witnesses be disclosed before trial, see
___
United States v. Reis, 788 F.2d 54, 58 (1st Cir. 1986); United
_____________ ____ ______
States v. Barrett, 766 F.2d 609, 617 (1st Cir.), cert. denied,
______ _______ ____ ______
474 U.S. 923 (1985); nor, under the Jencks Act, was the govern-
ment required to produce the prior statements of its prospective
witnesses until after their direct examination. 18 U.S.C.
3500(a); United States v. Arboleda, 929 F.2d 858, 862-63 (1st
_____________ ________
Cir. 1991); United States v. Grandmont, 680 F.2d 867, 874 (1st
_____________ _________
Cir. 1982).
Moreover, even if Bello-Perez had shown unfair surprise
resulting from disclosure of the Clark evidence so near the time
of trial, the appropriate procedural relief in these circumstanc-
es would not have been the dismissal of the indictment, but a
continuance of the trial to permit defense counsel to meet the
surprise evidence. Bello-Perez did not request a continuance,
let alone demonstrate grounds warranting dismissal of the indict-
ment. See United States v. Osorio, 929 F.2d 753, 758 (1st Cir.
___ _____________ ______
1991) ("Generally, we have viewed the failure to ask for a
continuance as an indication that defense counsel was himself
satisfied [that] he had sufficient opportunity to use the evi-
dence advantageously") (citing cases).
C. Evidentiary Claims
C. Evidentiary Claims
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Bello-Perez next asserts a right to a new trial due to
alleged errors in the admission of various government exhibits,
including a photograph of a kilogram of cocaine and a photograph
of Bello-Perez in the company of Clark and Murley.
12
13
1. Photograph of Cocaine
1. Photograph of Cocaine
_____________________
During Peter Clark's direct testimony on the first day
of trial, the government offered a photograph depicting Clark
holding a kilogram of cocaine. The photograph was admitted, over
objection, at least initially for the purpose of showing the jury
what a kilogram of cocaine looked like. Later, however, Clark
testified that the cocaine depicted in the photograph had been
bought from Bello-Perez. Bello-Perez argues that the probative
value of the photograph was substantially outweighed by its
prejudicial effect. See Fed. R. Evid. 403.
___
A trial court's decision to admit evidence over a Rule
403 objection is accorded considerable deference. "Only rarely
and in extraordinarily compelling circumstances will we,
from the vista of a cold appellate record, reverse a district
court's on-the-spot judgment concerning the relative weighing of
probative value and unfair effect." Freeman v. Package Mach.
_______ ______________
Co., 865 F.2d 1331, 1340 (1st Cir. 1988); see also Doty v.
___ ___ ____ ____
Sewall, 908 F.2d 1053, 1059 (1st Cir. 1990) (extremely deferen-
______
tial standard, "perhaps even higher" than abuse of discretion)
(citing S. Childress & M. Davis, 1 Standards of Review). Even if
______ ___________________
we were persuaded that the photograph somehow unfairly prejudiced
________
Bello-Perez, we could not conclude that any unfair prejudice
substantially outweighed the probative value. The photograph
tended to corroborate the testimony of a key government witness
relating to the distribution of large quantities of cocaine. Cf.
___
United States v. Gonzalez, 933 F.2d 417, 427 (7th Cir. 1991) (no
______________ ________
14
error in displaying large quantity of seized cocaine, to assist
jury in understanding logistics of transportation and impossibil-
ity of personal use).
2. Photograph of Murley, Clark and Bello-Perez
2. Photograph of Murley, Clark and Bello-Perez
___________________________________________
The district court admitted a photograph of Murley,
Clark and Bello-Perez with their arms around each other's
shoulders. Bello-Perez objected on the ground that no proper
foundation had been laid for the introduction of the photograph,
whereas in fact it is the objection which was without foundation.
Clark testified that the photograph was taken in his living room
during the last half of 1988; i.e., during the course of the
____
conspiracy alleged in the indictment. See Lucero v. Stewart, 892
___ ______ _______
F.2d 52, 55 (9th Cir. 1989) (approximate date of photograph
adequate for authentication).
On appeal, Bello-Perez asserts for the first time that
the photograph should have been excluded under Rule 403. As the
objection was not preserved below, we review only for plain
error, "a demonstration that justice has miscarried or that the
trial's basic fairness has been compromised." United States v.
_____________
Hadfield, 918 F.2d 987, 995 (1st Cir. 1990), cert. denied, 111 S.
________ ____ ______
Ct. 2062 (1992). As the photograph itself, simply depicting a
friendly meeting among the alleged conspirators, portended no
unfair prejudice whatever, the claim is frivolous.
3. Photocopies of Notebooks and Papers
3. Photocopies of Notebooks and Papers
___________________________________
15
Bello-Perez challenges the admission of photocopies of
certain documents seized at the time of Clark's arrest. The
documents contained clearly relevant information concerning
Clark's cocaine distribution operations and drug debts, as well
as Bello-Perez' telephone and beeper numbers. As Bello-Perez
identifies no unfair prejudice resulting from the admission of
the information in these documents, and we discern none, the
claim is rejected.7
4. Photographs of Bello-Perez
4. Photographs of Bello-Perez
and Associates in Santo Domingo
and Associates in Santo Domingo
_______________________________
Bello-Perez contends that several photographs
depicting Bello-Perez, Murley and Robinson in Santo Domingo
were irrelevant, particularly a photograph of Murley holding a
firearm. Murley later testified, without contradiction, that
Bello-Perez had given him the gun. We find no merit to these
claims, as all the
____________________
7Although Bello-Perez asserts on appeal that the photocopies
were not properly authenticated, Clark vouched at trial that each
photocopy represented a fair and accurate reproduction. See Fed.
___
R. Evid. 101(4). Thus, this claim too is frivolous.
Some of the documents were in the handwriting of Deborah
Panneton, Clark's common-law wife. Bello-Perez complains that
"there was no testimony that Clark could authenticate her hand-
writing or was familiar therewith." These documents found
among Clark's personal papers and reflecting Clark's handwriting
as well as Panneton's contained sufficient intrinsic indicia
of authorship to permit their authentication by Clark under Fed.
R. Evid. 901(a); see also id. 901(b)(1), (4); Drougas, 748 F.2d
___ ____ ___ _______
at 26 (authentication of handwritten lists of coconspirators
through "the source of the [lists], the circumstances surrounding
their seizure, the fact that the information corresponded to
other evidence of the participants in the conspiracy, and the
extreme unlikelihood that such a list would be prepared by one
not privy to the operations of the conspiracy").
16
photographs tended to corroborate Murley's testimony that he and
Robinson were closely associated with Bello-Perez.
5. Travel Documents
5. Travel Documents
________________
At trial, Bello-Perez asserted a relevancy challenge to
the introduction of Murley's boarding pass for the trip to Santo
Domingo, and a travel document containing certain Santo Domingo
telephone numbers Murley received from Bello-Perez during their
trip. Bello-Perez has failed to mount any "effort at developed
argumentation" in support of this claim. See United States v.
___ _____________
Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 110 S. Ct. 1814
_______ ____ ______
(1990) (claim deemed waived in such circumstances). In any
event, the challenged exhibits clearly corroborate Murley's
testimony that the conspirators associated closely during the
course of the conspiracy.
6. Anonymous Letter
6. Anonymous Letter
________________
Bello-Perez objected to the introduction of an anony-
mous letter, not written in Bello-Perez' handwriting, urging
Murley not to implicate the author in drug dealing. The objec-
tion was based on lack of authentication. Anonymous correspon-
dence may be sufficiently distinctive in its "appearance, con-
tents, substance, internal patterns or other distinctive charac-
teristics," within the meaning of Fed. R. Evid. 901(b)(4), to
meet the authentication requirement. See United States v.
___ ______________
Ingraham, 832 F.2d 229, 236 (1st Cir. 1987), cert. denied, 486
________ ____ ______
U.S. 1009 (1988) (authentication of telephone call and anonymous
17
letters based on caller-author's "peculiar obsession with [and
approach to] the same obscure litigation," amounting to an idio-
syncratic "signature"); see also United States v. McMahon, 938
___ ____ _____________ _______
F.2d 1501, 1508-09 (1st Cir. 1991) (authentication of unsigned
note based on circumstantial indicia of authorship); United
______
States v. Newton, 891 F.2d 944, 947 (1st Cir. 1989) (authentica-
______ ______
tion of unsigned document based on internal references to defend-
ant's girlfriend, wife, lawyer and aliases).
There was ample circumstantial evidence that the letter
originated with Bello-Perez. The given name of the addressor on
the envelope, though unclear, appears to be "ANDREWS" or "ANDREU-
S", similar to Bello-Perez' first name "Andres". The return
address inside the letter gives the post office box of the state
prison where Bello-Perez was incarcerated pending trial. The
author identifies himself as an Hispanic; Bello-Perez was the
only Hispanic state-prison inmate known to Murley. The author
plainly implies that he is facing drug charges and that Murley
might be asked to testify against him. Finally, the letter
includes statements about family problems known to Bello-Perez.
In light of these indicia of Murley's authorship, the discrepan-
cies adverted to by the defense went to the weight of the evi-
dence, not its admissibility. See Ingraham, 832 F.2d at 233.
___ ________
7. Beltran Testimony
7. Beltran Testimony
_________________
Paula Beltran, Bello-Perez' girlfriend, twice blurted
out at trial that Bello-Perez had sustained a gunshot wound in an
event unrelated to the alleged conspiracy. The district court
18
denied the ensuing motion for mistrial, choosing instead on each
occasion to give a cautionary jury instruction.
Motions for mistrial address the discretion of the
trial court. United States v. Chamorro, 687 F.2d 1, 6 (1st
______________ ________
Cir.), cert. denied, 459 U.S. 1043 (1982); United States v.
____ ______ ______________
Pappas, 611 F.2d 399, 406 (1st Cir. 1979). There was no abuse of
______
discretion in this instance. First, there is no evidence that
Beltran's statements were deliberate, or the result of bad faith
on the part of the government or its witness. Bello-Perez
nevertheless urges that Beltran's statements left the jury with
the "unmistakable impression" that Bello-Perez was involved in
violent activities. In our view, however, such an impression was
neither inevitable nor unmistakable, considering the context, as
Beltran merely mentioned the gunshot wounds, not their source or
the surrounding circumstances. Second, through independent
evidence Bello-Perez already had been tied to the possession and
use of firearms. Third, the independent evidence of guilt
against Bello-Perez was overwhelming. See United States v.
___ _____________
Sclamo, 578 F.2d 888, 891 (1st Cir. 1978) (denial of mistrial
______
inappropriate in light of cautionary instruction and "strong case
and substantial evidence produced by the government"); see also
___ ____
United States v. Scelzo, 810 F.2d 2, 5 (1st Cir. 1987) (consider-
_____________ ______
ing "extremely strong" case against defendant in upholding denial
of mistrial). Finally, we conclude that any significant risk of
unfair prejudice resulting from Beltran's statements was "effica-
19
ciously dispelled" by the district court's strong cautionary
instructions. See Chamorro, 687 F.2d at 6.
___ ________
D. Sentencing
D. Sentencing
__________
Bello-Perez advances various challenges to the 360-
month sentence imposed by the district court. First, he asserts
that the court erred in calculating the base offense level at 36
(50-150 kilograms of cocaine), see U.S.S.G. 2D1.1(c)(4), rather
___
than at base level 34 (15-50 kilograms), see id. 2D1.1(c)(5).
___ ___
The crux of the claim is that he distributed no more than 7.5
kilograms to Murley between 1988 and 1990, and that the sentenc-
ing judge improperly considered the much larger quantities of
cocaine previously distributed in furtherance of the putatively
separate conspiracy involving Peter Clark.8 As we reject the
"separate conspiracy" theory, see supra part IIA, the present
___ _____
claim must fail. See United States v. Moreno, 947 F.2d 7, 9 (1st
___ _____________ ______
Cir. 1991) (sentencing court may consider "quantities . . . of
____________________
8The presentence investigation report, which credits Clark's
testimony that he had obtained approximately 1.5 kilograms per
week from Bello-Perez, ascribed a total of approximately 80
kilograms of cocaine to Bello-Perez during Clark's involvement in
the conspiracy. On appeal, Bello-Perez challenges Clark's
estimates as "inconsistent and contradictory." The resolution of
any conflict in Clark's estimates was for the trier of fact. See
___
United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990) ("[T]he
_____________ ____
sentencing court's choice among supportable alternatives cannot
be clearly erroneous."). We note, moreover, that even if Bello-
Perez had distributed only 0.9 kilograms of cocaine weekly to
Clark an amount well within the estimate Bello-Perez himself
cites Bello-Perez would be accountable for over 42.5 kilograms
during the course of the Clark conspiracy. Accordingly, in
combination with the 7.5 kilograms distributed to Murley, the
minimum 50 kilogram quantity required to trigger base offense
level 36 was met.
20
[cocaine] not specified in the count of conviction . . . if they
were part of the same course of conduct or . . . common scheme
or plan as the count of conviction."), citing U.S.S.G. 1B1.3(a-
______
)(2), comment (backg'd).
Next, Bello-Perez asserts that the court committed
clear error in imposing a four-level enhancement under U.S.S.G.
3B1.1(a) for his role as an organizer or leader of criminal
activity involving five or more participants. See United States
___ _____________
v. Preakos, 907 F.2d 7, 9-10 (1st Cir. 1990) ("clearly erroneous"
_______
standard applies to determination of "role in offense"). Since
Bello-Perez apparently does not question that the criminal enter-
prise charged in the indictment was sufficiently extensive to
come within U.S.S.G. 3B1.1(a), we understand him to challenge
the district court determination that he had a "leadership role"
in the criminal enterprise. The record, on the other hand,
reveals that Bello-Perez supplied and "fronted" the cocaine and,
after Clark's arrest, directly supervised the collection of drug
debts from Clark's customers and provided operational oversight
_______ _________
of Murley's cocaine distribution network on a regular basis. See
___
Preakos, 907 F.2d at 9-10; see generally U.S.S.G. 3B1.1(a)
_______ ___ _________
(application note 3) ("Factors the court should consider include
the exercise of decision making authority, the nature of partici-
pation in the commission of the offense, the recruitment of
accomplices, the claimed right to a larger share of the fruits of
the crime, the degree of participation in planning or organizing
21
the offense, the nature and scope of the illegal activity, and
the degree of control and authority exercised over others.").
Finally, Bello-Perez assigns error to the two-level
enhancement for use of a firearm during the offense. As the
enhancement was not challenged below, we review for "plain
error." United States v. Morales-Diaz, 925 F.2d 535, 540 (1st
_____________ ____________
Cir. 1991). The claim is meritless. Although he was not found
to have been in actual possession of a firearm, Bello-Perez was
accountable for the use of firearms by his assistant ("Tony") in
strong-arming drug debt collections in furtherance of the crimi-
nal venture. See United States v. Bianco, 922 F.2d 910, 912 (1st
___ _____________ ______
Cir. 1991) (enhancement appropriate where "codefendant's posses-
sion of a firearm in furtherance of their joint criminal venture
was reasonably foreseeable by the defendant"); see also David,
___ ____ _____
940 F.2d at 742 (defendant "responsible for the gun's use [to
intimidate coconspirator] whether or not he actually held the gun
himself"); McDowell, 918 F.2d at 1011 (enhancement appropriate if
________
firearm present, "unless it is clearly improbable that the weapon
and the offense were connected").
The district court judgment is affirmed.
_______________________________________
22
Document Info
Docket Number： 91-2232
Filed Date： 9/29/1992
Precedential Status： Precedential
Modified Date： 3/3/2016