United States v. Innamorati ( 1993 )

August 17, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-1896
UNITED STATES,
Appellee,
v.
KENNETH INNAMORATI,
Defendant, Appellant.
No. 91-1897
UNITED STATES,
Appellee,
v.
WILLIAM THOMPSON,
Defendant, Appellant.
No. 91-1898
UNITED STATES,
Appellee,
v.
JAMES GRADY, a/k/a THE REBEL,
Defendant, Appellant.
No. 91-1899
UNITED STATES,
Appellee,
v.
ROBERT DEMARCO, SR.,
Defendant, Appellant.
No. 91-1900
UNITED STATES,
Appellee,
v.
WILLIAM LETTERS,
Defendant, Appellant.
No. 91-1901
UNITED STATES,
Appellee,
v.
ROBERT DEMARCO, JR.,
Defendant, Appellant.
No. 91-1902
UNITED STATES,
Appellee,
v.
PHILLIP BARGALLA, a/k/a FLIP,
Defendant, Appellant.
No. 91-1903
UNITED STATES,
Appellee,
v.
JAMES LITTERIO, a/k/a MICKEY,
Defendant, Appellant.
No. 91-1924
UNITED STATES,
Appellee,
v.
JOHN BOISONEAU,
Defendant, Appellant.
No. 92-1253
UNITED STATES,
Appellee,
v.
JOSEPH GILBERTI,
Defendant, Appellant.
ERRATA SHEET
The opinion of the Court issued on June 17, 1993, is amended
as follows:
On page 30, lines 1-2 of the fourth paragraph of the block
quote, replace "Paula Bufton" with "Paula [sic] Bufton".
July 8, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-1896
UNITED STATES,
Appellee,
v.
KENNETH INNAMORATI,
Defendant, Appellant.
No. 91-1897
UNITED STATES,
Appellee,
v.
WILLIAM THOMPSON,
Defendant, Appellant.
No. 91-1898
UNITED STATES,
Appellee,
v.
JAMES GRADY, a/k/a THE REBEL,
Defendant, Appellant.
No. 91-1899
UNITED STATES,
Appellee,
v.
ROBERT DEMARCO, SR.,
Defendant, Appellant.
No. 91-1900
UNITED STATES,
Appellee,
v.
WILLIAM LETTERS,
Defendant, Appellant.
No. 91-1901
UNITED STATES,
Appellee,
v.
ROBERT DEMARCO, JR.,
Defendant, Appellant.
No. 91-1902
UNITED STATES,
Appellee,
v.
PHILLIP BARGALLA, a/k/a FLIP,
Defendant, Appellant.
No. 91-1903
UNITED STATES,
Appellee,
v.
JAMES LITTERIO, a/k/a MICKEY,
Defendant, Appellant.
No. 91-1924
UNITED STATES,
Appellee,
v.
JOHN BOISONEAU,
Defendant, Appellant.
No. 92-1253
UNITED STATES,
Appellee,
v.
JOSEPH GILBERTI,
Defendant, Appellant.
ERRATA SHEET
The opinion of the Court issued on June 17, 1993, is amended as
follows:
On page 44, lines 14-16: replace the sentence "Although the
notation was produced prior to the cross-examination of Scott, counsel
for Grady declined to ask Scott any questions." with the sentence
"Grady sought to call O'Brien to the stand to question him about the
notation, but he never sought to recall Scott for further cross-
examination once the notes were produced."
June 23, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-1896
UNITED STATES,
Appellee,
v.
KENNETH INNAMORATI,
Defendant, Appellant.
No. 91-1897
UNITED STATES,
Appellee,
v.
WILLIAM THOMPSON,
Defendant, Appellant.
No. 91-1898
UNITED STATES,
Appellee,
v.
JAMES GRADY, a/k/a THE REBEL,
Defendant, Appellant.
No. 91-1899
UNITED STATES,
Appellee,
v.
ROBERT DEMARCO, SR.,
Defendant, Appellant.
No. 91-1900
UNITED STATES,
Appellee,
v.
WILLIAM LETTERS,
Defendant, Appellant.
No. 91-1901
UNITED STATES,
Appellee,
v.
ROBERT DEMARCO, JR.,
Defendant, Appellant.
No. 91-1902
UNITED STATES,
Appellee,
v.
PHILLIP BARGALLA, a/k/a FLIP,
Defendant, Appellant.
No. 91-1903
UNITED STATES,
Appellee,
v.
JAMES LITTERIO, a/k/a MICKEY,
Defendant, Appellant.
No. 91-1924
UNITED STATES,
Appellee,
v.
JOHN BOISONEAU,
Defendant, Appellant.
No. 92-1253
UNITED STATES,
Appellee,
v.
JOSEPH GILBERTI,
Defendant, Appellant.
ERRATA SHEET
The opinion of this Court issued on June 17, 1993, is amended as
follows:
On third page under list of attorneys "Levchuck should read
Levchuk."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-1896
UNITED STATES,
Appellee,
v.
KENNETH INNAMORATI,
Defendant, Appellant.
No. 91-1897
UNITED STATES,
Appellee,
v.
WILLIAM THOMPSON,
Defendant, Appellant.
No. 91-1898
UNITED STATES,
Appellee,
v.
JAMES GRADY, a/k/a THE REBEL,
Defendant, Appellant.
No. 91-1899
UNITED STATES,
Appellee,
v.
ROBERT DEMARCO, SR.,
Defendant, Appellant.
No. 91-1900
UNITED STATES,
Appellee,
v.
WILLIAM LETTERS,
Defendant, Appellant.
No. 91-1901
UNITED STATES,
Appellee,
v.
ROBERT DEMARCO, JR.,
Defendant, Appellant.
No. 91-1902
UNITED STATES,
Appellee,
v.
PHILLIP BARGALLA, a/k/a FLIP,
Defendant, Appellant.
No. 91-1903
UNITED STATES,
Appellee,
v.
JAMES LITTERIO, a/k/a MICKEY,
Defendant, Appellant.
No. 91-1924
UNITED STATES,
Appellee,
v.
JOHN BOISONEAU,
Defendant, Appellant.
No. 92-1253
UNITED STATES,
Appellee,
v.
JOSEPH GILBERTI,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior District Judge]
Before
Torruella, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Boudin, Circuit Judge.
J. Michael McGuinness, by Appointment of the Court, with whom
McGuinness & Parlagreco was on brief for appellant Kenneth Innamorati.
Diane Powers, by Appointment of the Court, for appellant William
Thompson.
Robert L. Rossi, by Appointment of the Court, for appellant James
Grady.
Robert J. Danie, by Appointment of the Court, with whom Bonavita,
Gordon, and Danie, P.C. was on brief for appellant Robert DeMarco, Sr.
Michael C. Bourbeau, by Appointment of the Court, with whom
Bourbeau and Bourbeau was on brief for appellant William Letters.
Warren R. Thompson, by Appointment of the Court, for appellant
Robert DeMarco, Jr.
Henry C. Porter, by Appointment of the Court, for appellant
Phillip Bargalla.
Arthur R. Silen, by Appointment of the Court, for appellant James
Litterio.
Frances L. Robinson, by Appointment of the Court, with whom
Davis, Robinson & White was on brief for appellant John Boisoneau.
Dwight M. Hutchison, by Appointment of the Court, for appellant
Joseph Gilberti.
Andrew Levchuk, Assistant United States Attorney, with whom A.
John Pappalardo, United States Attorney, and Kevin O'Regan, Assistant
United States Attorney, were on brief for appellee.
June 17, 1993
BOUDIN, Circuit Judge. In this case ten individuals
challenge, on a wide variety of grounds, their convictions
and sentences following a jury trial in the district court.1
All ten defendants were found guilty of conspiring to
distribute and to possess with intent to distribute cocaine
and marijuana, in violation of 21 U.S.C. 846 and
841(a)(1). All defendants except Thompson were convicted of
one or more additional counts relating to the ring's
activities. For the reasons that follow, we reverse
defendant Grady's conviction on one count for insufficient
evidence and remand for resentencing, and we sustain each of
the remaining convictions and sentences.
I. BACKGROUND
The voluminous testimony and other evidence properly
introduced at trial, viewed in the light most favorable to
the verdicts, see United States v. Rivera-Santiago, 872 F.2d
1073, 1078-79 (1st Cir.), cert. denied, 492 U.S. 910 (1989),
established the following facts. In 1984, Brian Fitzgerald
and Paul Callahan--two co-conspirators who testified for the
government at trial--met in Walpole penitentiary while
serving terms of imprisonment there. The two men formed an
1The ten are Kenneth Innamorati, William Thompson, James
Grady, Robert DeMarco Sr., William Letters, Robert Demarco
Jr., Phillip Bargalla, James Litterio, John Boisoneau, and
Joseph Gilberti.
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alliance, agreeing that upon their release from prison they
would begin a drug distribution network.
After their release, Callahan and Fitzgerald began drug
dealing. In 1985, they were approached by an intermediary
and asked if they could supply a kilogram of cocaine to
Kenneth Innamorati and his then-partner, Noel Bouvier.
Fitzgerald and Callahan agreed to supply the cocaine, which
they acquired from a source in Everett, Massachusetts, and
then delivered to Innamorati in Framingham in exchange for
$55,000. About three months later, Fitzgerald and Callahan
agreed to join forces with Innamorati and Bouvier. At that
time, Innamorati's principal source for cocaine was an
individual in Boston. Callahan and Fitzgerald each picked up
kilograms of cocaine from the supplier and delivered it to
Innamorati, who weighed it, mixed it with other substances to
increase its volume, and separated it into smaller
quantities. Callahan and Fitzgerald then delivered the drugs
to Innamorati's customers.
After a time, Innamorati lost the services of his Boston
supplier, and Callahan began supplying Innamorati with
cocaine from Callahan's own sources. Callahan made contact
with an individual named Tom Reilly in Florida. Reilly
ultimately supplied Callahan and Innamorati with large
quantities of cocaine and marijuana on a regular basis from
the summer of 1985 onward. In June 1985, Fitzgerald hired
-15-
defendant Grady, who drove a tractor-trailer, to pick up the
cocaine and marijuana from Reilly in Florida and haul it to
Massachusetts. Grady made this trip about once a month
between June 1985 and February 1988, occasionally bringing
cash down to Florida to pay for prior shipments.
Callahan and Innamorati developed an elaborate system
for storage and distribution of the narcotics once they
reached Massachusetts. The drugs were stored in several
different locations. For example, some of the drugs were
stashed in the trunk of a car parked in a storage unit at a
self-storage facility called Hyperspace in Holliston,
Massachusetts. Drugs were also stored in a rented apartment
in a development called Edgewater Hills in Framingham,
Massachusetts. In May 1987, a new apartment in Edgewater
Hills was selected. Edward Tulowiecki, an acquaintance of
Innamorati who was a star witness at trial, agreed to live in
the apartment and assist Innamorati; Innamorati paid a
portion of the rent for the apartment.
This Edgewater Hills apartment became the base of
operations for much of the conspirators' activities.
Innamorati and Callahan moved a considerable array of drug
distribution paraphernalia into the apartment, including
scales, a safe and a freezer. Callahan and Innamorati
frequently came to the apartment to deliver or pick up
packages of cocaine and marijuana, or to prepare and package
-16-
them for distribution. Tulowiecki was not permitted to have
other guests in the apartment.
Innamorati used beepers and cellular telephones to
facilitate his distribution activities. Each of the persons
to whom he regularly distributed the narcotics was assigned a
code number. To place an order, he or she would place a call
to Innamorati's beeper, and then enter the code number and
the quantity sought; the order would then be transmitted to
the digital display on Innamorati's beeper. Innamorati
preferred cellular rather than ordinary telephones for
communications relating to drug distribution, because he
believed that cellular telephones were more difficult to tap.
William Thompson, a former Clinton police officer and a
friend of Innamorati, acquired and installed several cellular
phones for Innamorati and registered the phones in Thompson's
own company name.
Innamorati distributed cocaine and marijuana to numerous
individuals between summer 1985 and February 1988, including
Thompson, William Letters, James Litterio, and John
Boisoneau; each of these purchasers was assigned a beeper
number in Innamorati's system. Callahan had a number of
customers of his own during this period, including defendants
Robert DeMarco Sr., Robert DeMarco Jr., Phillip Bargalla and
Joseph Gilberti. Generally there was evidence that these
-17-
persons resold portions of the cocaine they purchased from
Callahan or Innamorati to others.
In November 1987 Jeffrey Scott, a nephew and cocaine
customer of Callahan who was also in debt to Callahan,
contacted the Drug Enforcement Agency ("DEA") and provided
information about Callahan's activities. This began an
extensive covert investigation into the Callahan/Innamorati
operation. By late February 1988 the DEA had obtained enough
information to execute a series of search warrants at the
Hyperspace facility, Fitzgerald's and Callahan's residences,
and the Edgewater Hills apartment. At the latter site the
agents found two kilograms of cocaine and 75 pounds of
marijuana, as well as drug distribution paraphernalia,
records of drugs transactions and a small cache of weapons
and ammunition.
After a 32-day jury trial conducted from September to
November 1990, all ten defendants in this appeal were
convicted. In addition to the common conspiracy count, all
defendants except Thompson and Bargalla were convicted of one
or more counts of possession of cocaine or marijuana with
intent to distribute in violation of 21 U.S.C. 841(a)(1);
Bargalla was convicted of the lesser included offense of
simple possession. In addition, Innamorati was convicted of
using a firearm in relation to a drug trafficking offense in
violation of 18 U.S.C. 924(c)(1), and of conducting a
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continuing criminal enterprise in violation of 21 U.S.C.
848.
The ten defendants in this appeal raise numerous
separate issues relating either to conviction or sentence.
In certain instances, claims of error are made but only
cursorily discussed. Where appropriate we have invoked "the
settled appellate rule that issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived." United States v. Zannino,
895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082(1990). Because a number of the claims overlap, we discuss
them by subject.
II. SEVERANCE
Innamorati, Thompson, Grady, DeMarco Sr., DeMarco Jr.,
Bargalla, and Gilberti challenge the district court's denial
of their motions to sever each of their trials from those of
their co-defendants. Defendants argue that severance was
necessary to protect them from prejudice and the possibility
that the jury would fail to consider the evidence separately
as to each defendant.
Prejudice from joinder can come in various forms,
including jury confusion, the impact of evidence that is
admissible against only some defendants, and "spillover"
effects where the crimes of some defendants are more horrific
or better documented than the crimes of others. But joinder
-19-
is normally economical--especially where defendants are
charged with the same core crime--and clear instructions can
often confine the risk of prejudice. Accordingly, it is
settled that defendants are not entitled to severance merely
because it would improve their chances of acquittal; rather,
substantial prejudice "amounting to a miscarriage of justice"
must be proved before a severance is mandatory. United
States v. Sabatino, 943 F.2d 94, 96-97 (1st Cir. 1991). We
review the refusal of a trial court to grant a severance for
abuse of discretion, United States v. Johnson, 952 F.2d 565,
581 (1st Cir. 1991), cert. denied, 113 S. Ct. 58 (1992), and
we find no such abuse in this case.
Despite the number of defendants, there is no indication
of jury confusion in this case. The government in summing up
separated the evidence as to each defendant. The trial judge
gave the customary instruction, emphasizing that each
defendant must be judged separately based on the evidence
admissible against that defendant. The jury apparently found
itself capable of distinguishing: it acquitted one
defendant--Thomas Agnitti, who is not a party to this appeal-
-on the conspiracy count and on other counts convicted two
defendants (Agnitti and Bargalla) only on lesser included
offenses.
Innamorati aside, none of the defendants points to any
specific evidence that significantly inculpated that
-20-
defendant but was admissible only against another defendant.
Indeed, the core of the case was the alleged common
conspiracy; thus, after the necessary foundation, most of the
evidence of wrongdoing by one conspirator was admissible
against other conspirators as well. Nor is this a case in
which separable acts of an individual defendant are so
disproportionately heinous that there is an arguable taint
merely from the association among defendants. In sum, for
everyone apart from Innamorati, this is a garden-variety
joinder almost routine in drug conspiracy cases. Innamorati
does point to evidence that he argues was harmful to him but
properly admissible only as to another defendant, namely, the
grand jury testimony of Thompson. In our view, this grand
jury testimony was not admissible against Innamorati; but,
for reasons discussed in part IV, we also conclude also that
Innamorati is not entitled to a reversal on account of this
testimony.
III. SUFFICIENCY OF THE EVIDENCE
Thompson, Grady, Letters, DeMarco Jr., Bargalla,
Litterio and Gilberti argue that the evidence introduced at
trial was insufficient to support their convictions.2
2Innamorati also raises this issue in his brief, but
only by asserting in conclusory terms that the evidence was
insufficient to establish his guilt. Ordinarily, this claim
would be waived but in this instance we necessarily consider
the weight of the evidence against him in part IV as part of
our harmless error analysis.
-21-
Defendants bear the heavy burden of demonstrating that no
reasonable jury could have found them guilty beyond a
reasonable doubt. See Rivera-Santiago, 872 F.2d at 1078-79.
An appellate court must view the evidence in the light most
favorable to the prosecution, "drawing all plausible
inferences in its favor and resolving all credibility
determinations in line with the jury's verdict." United
States v. David, 940 F.2d 722, 730 (1st Cir.), cert. denied,
112 S. Ct. 605 (1991). We conclude that, with one exception,
the prosecution offered evidence adequate to support the
convictions.
A. William Thompson
Thompson was convicted of conspiracy to distribute and
to possess with intent to distribute cocaine and marijuana,
in violation of 21 U.S.C. 846 and 841(a)(1). Conviction
for conspiracy requires proof that the defendant entered into
an agreement with another to commit a crime, here, an
agreement with Innamorati to distribute cocaine and
marijuana. United States v. Concemi, 957 F.2d 942, 950 (1st
Cir. 1992). This agreement need not be expressed; it "may be
implicit in a working relationship between the parties that
has never been articulated but nevertheless amounts to a
joint criminal enterprise." United States v. Moran, 984 F.2d
1299, 1300 (1st Cir. 1993).
-22-
There was evidence--in fact, Thompson admitted in his
testimony before the grand jury--that Thompson provided
"registry checks" of license plates at Innamorati's request.
When Innamorati became suspicious of vehicles that he thought
were following him or that were being used by prospective
drug purchasers, he asked Thompson, a former police officer,
to run the plates through the state's computer registry. If
the registry check came back "not on file" or "no response,"
Innamorati had reason to believe that the vehicle belonged to
a law enforcement agency and was being driven by an
undercover agent. Thompson also admitted that he acquired
two cellular telephones for Innamorati's use which Thompson
leased in his own company's name.
Relying primarily on Direct Sales Co. v. United States,
319 U.S. 703, 709 (1943), Thompson argues that there was
insufficient evidence that Thompson knew of the use to which
Innamorati put these goods and services, or that Thompson
intended that they be used in that manner. But Thompson
admitted in testimony before the grand jury that he regularly
purchased cocaine from Innamorati when he was employed as a
police officer from 1970 to 1978. Tulowiecki testified that
he regularly distributed cocaine to Thompson from Innamorati
in 1987. Thompson was assigned a beeper number in
Innamorati's communications network. Thompson also admitted
-23-
that he knew that the cellular telephones he provided were to
be used to "elude law enforcement."
Thompson argues vehemently that he could not have been a
full-fledged conspirator because he was excluded from certain
locations at which Innamorati stored his drugs, and because
Callahan and Fitzgerald could not identify him at trial.
These facts do not defeat Thompson's membership in the
conspiracy. It is black-letter law that one need not be
familiar with every other person with whom he is found to
have conspired, nor must he participate in the conspiracy to
the same extent as all others. See United States v. Rios,
842 F.2d 868, 873 (6th Cir. 1988), cert. denied, 488 U.S.
1031 (1989); United States v. Giry, 818 F.2d 120, 127 (1st
Cir.), cert. denied, 484 U.S. 855 (1987). Taken as a whole,
the evidence allowed the jury to find that Thompson was a
knowing member of the drug conspiracy.
B. James Grady
The evidence showed that Grady brought numerous
shipments of cocaine and marijuana from Florida to Callahan
and Innamorati in Massachusetts. Several witnesses,
including Callahan, Fitzgerald and Reilly, described in
consistent detail Grady's practice of transporting the
cocaine and the cash in a tool box in the cab of his tractor-
trailer. There was also ample evidence that Grady knew that
the shipments contained narcotics. Fitzgerald testified that
he told Grady that the tool box contained cocaine. Reilly
-24-
recounted one occasion on which Grady watched while bales of
marijuana were loaded onto his truck. Evidence showed that
Grady occasionally brought large amounts of cash from
Massachusetts to Florida to pay Reilly.
In the face of this testimony, Grady contends that the
evidence was insufficient to convict him of conspiracy to
distribute. He argues that Callahan and Innamorati had
suppliers other than Reilly and that even as to Reilly there
were other couriers in addition to Grady. He also points out
that although the conspiracy allegedly continued from 1984
until November 1988, the evidence of his participation was
limited to the period between June 1985 and February 1988.
But Grady need not have been the exclusive courier in order
to be a conspirator, nor must he have been involved in the
conspiracy during the entire life of the operation. See,
e.g., United States v. Baines, 812 F.2d 41, 42 (1st Cir.
1987). We have no trouble finding the evidence adequate to
support Grady's conspiracy conviction.
In addition to conspiracy Grady was also convicted under
counts three and four of the indictment of possession of
cocaine on February 25 and 27, 1988, with intent to
distribute. These were the dates on which DEA agents
executed the search warrants on the Hyperspace facility and
the Edgewater Hills apartment, respectively. The
government's theory at trial was that Grady was guilty of
-25-
possessing the cocaine found at these locations because he
had carried that cocaine from Florida in his tractor-trailer.
Although Grady was linked to the cocaine found in the
Hyperspace facility, we agree with Grady that there was
insufficient evidence that he ever possessed the cocaine
found in the Edgewater Hills apartment.
Callahan testified that he gave Grady a toolbox
containing three kilograms of cocaine in Florida on February
20, 1988, and that on February 24 he retrieved the toolbox
from Grady in Massachusetts and drove to the Hyperspace
storage facility. The next day, the government executed the
search warrant at the facility and seized exactly three
kilograms of cocaine. It is difficult to see, therefore, how
the cocaine seized a few days later from the Edgewater
apartment could also have come from Grady's February 20
shipment. The government argues that Callahan also testified
that he brought the toolbox with him to the Edgewater
apartment after leaving Hyperspace. Thus, the government
says, "[w]hile the evidence on [this] score may be open to
dispute," that dispute was for the jury to resolve.
It is true that Callahan's testimony is unclear--one
cannot tell whether he stored the three kilograms at
Hyperspace, or took them with him when he left there and went
to the Edgewater apartment. But the testimony of Scott, who
accompanied Callahan, is clear on this point. Scott
-26-
testified that Callahan took the cocaine out of the toolbox,
placed it in the trunk of the car in the Hyperspace storage
compartment, and then left the facility with the toolbox, now
emptied of its drugs. The testimony is also clear that only
three kilograms were transported by Grady on this trip, and
that exactly three kilograms were seized by federal agents a
few days later from the Hyperspace facility.
It is of course quite possible, indeed likely, that at
least some of the cocaine found in the Edgewater apartment
was a remnant of a prior shipment by Grady. But this is
conjecture. The government does not advance the theory here,
nor did it do so before the jury, and there was evidence of
other suppliers and couriers. Accordingly, finding no
evidence to support Grady's conviction for possessing the
cocaine seized on February 27, we reverse his conviction on
count four. This may have no effect on Grady's actual
sentence, since the counts were grouped and the sentence was
based on the volume of drugs foreseen; but out of an
abundance of caution we remand his case to the district court
for resentencing.
C. William Letters
Letters was convicted of conspiracy and one count of
possession with intent to distribute. He argues that there
was insufficient evidence to prove he that entered into an
agreement to distribute narcotics. He concedes that the
-27-
evidence showed a number of deliveries of cocaine to him from
Innamorati (via Tulowiecki), in amounts ranging from nine
grams to, on one occasion, as much as an ounce (28 grams).
But Letters says that the evidence also showed that he was a
very heavy personal user of cocaine. He argues that there is
no basis for an inference that he was involved in further
distribution of the drugs he acquired. Thus, according to
Letters, "[t]he government's proof only demonstrated that
Letters was a regular customer of Innamorati for personal
use." We need not decide when and whether "a regular
customer" buying for personal use could be treated as a
conspirator in a drug distribution ring, see Moran, 984 F.2d
at 1302-04, because the evidence permitted the jury to find
that Letters also distributed portions of the large amount of
cocaine he purchased from Innamorati. During direct
examination of Tulowiecki, the following exchange took place:
Q. And how did you package the cocaine for
Letters?
A. Well, with Bill Letters, we would take nine
grams of cocaine and put in five grams of cut.[3]
And I grind that all together, and it would come
out to fourteen. And I would put these all into
individual packages. And one, another specific
package for Bill Letters himself that was pure
cocaine.
. . . .
3 Various witnesses explained during trial that "cut"
refers to additives that were mixed into the cocaine to
increase its volume and, potentially, its resale value.
-28-
Q. Why did [Innamorati] want you to package the
cocaine this way [for Letters]?
A. Because Billy Letters didn't have a scale. .
. .
From Tulowiecki's reference to individual packaging and
to a separate package of cocaine "for Bill Letters himself,"
there is certainly a permissible inference that the other
individual packages were destined to be resold to others.
This inference is reinforced by the use of "cut" and by the
large volume of cocaine that Letters acquired, shown by
Tulowiecki's records to be a total of 336.5 grams of cocaine
between June 1987 and February 1988. Accordingly, Letters'
convictions for conspiring to distribute cocaine and for
possessing cocaine with intent to distribute were supported
by adequate evidence.
D. Robert DeMarco Jr.
DeMarco Jr. was convicted of conspiracy and possession
of cocaine with intent to distribute. His challenge goes
less to the quantity of the evidence in support of these
convictions as to its quality. He argues that the evidence
was deficient because the government did not catch him in the
act, such as by recording his telephone conversations or
conducting a controlled buy from him, but instead relies
entirely on "weak circumstantial evidence." The evidence may
not be overwhelming but it is sufficient.
-29-
Both Callahan and Scott described repeated deliveries of
cocaine to DeMarco Jr. In addition, Callahan testified that
DeMarco Sr. told him that between May 1987 and February 1988,
DeMarco Jr. was selling ounces, half-ounces and quarter-
ounces of cocaine to his (DeMarco Jr.'s) various customers,
and complained that DeMarco Jr. was putting all the profits
"up his nose." In addition, Scott testified that after
Callahan was arrested, DeMarco Jr. complained that he
(DeMarco Jr.) was supposed to receive the briefcase in which
Callahan had stored a quantity of cocaine to conceal it from
the DEA. The evidence was adequate to find that DeMarco Jr.
entered into an agreement to distribute cocaine and possessed
cocaine with intent to distribute it.
E. Philip Bargalla
Bargalla was convicted of conspiracy to distribute, but
acquitted of the substantive count of possession of cocaine
with intent to distribute (the "PWI" count) and instead
convicted of the lesser included offense of simple
possession. Bargalla argues that there was inadequate
evidence that he entered into a conspiracy to distribute and
that, especially in light of his acquittal of the PWI
offense, the conspiracy conviction must have resulted from
prejudicial "spillover." Bargalla argues that a conspiracy
cannot fairly be inferred from the facts that Bargalla took
possession of Callahan's briefcase after Callahan's arrest,
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and was in possession of Callahan's car at the time it was
seized by the DEA.
The short answer is that additional evidence showed that
Bargalla was a regular purchaser of cocaine and marijuana
from Callahan and a distributer in his own right. For
example, Jeffrey Scott testified that he made about five
deliveries of marijuana to Bargalla from Callahan in 1987,
and Callahan confirmed that he sold cocaine and marijuana to
Bargalla on a regular basis beginning in late 1985 or early
1986. Moreover, there was evidence that Bargalla resold some
of the narcotics he acquired from Callahan. Scott testified
that he saw distribution paraphernalia -- a small scale and
chemicals such as Inositol that are used to mix with cocaine
to increase its volume -- in Bargalla's bedroom. Scott also
testified that Bargalla complained that people were not
paying him on time for the cocaine and marijuana that
Bargalla provided them.
This evidence was more than sufficient to support
Bargalla's conviction for conspiring to distribute cocaine
and marijuana. The testimony concerning the briefcase and
Callahan's car merely served to corroborate Bargalla's close
relationship with Callahan and his organization. The jury's
favorable treatment of him on the PWI count may or may not be
a windfall but it cannot be used to impeach the conspiracy
conviction. See United States v. Senibaldi, 959 F.2d 1131,
-31-
1135 (1st Cir. 1992) ("inconsistency in a criminal verdict is
not grounds for overturning it").
F. James Litterio
Litterio does not question the sufficiency of the
evidence to support his conviction for conspiracy. Instead,
he challenges the evidence with respect to count five, under
which he and Innamorati were convicted of possession with
intent to distribute cocaine on or about September 2, 1987.
We find the evidence sufficient.
The primary evidence supporting the possession charge
was the testimony of Tulowiecki, who described a four-ounce
purchase of cocaine by Litterio from Innamorati shortly
before September 2, 1987. Tulowiecki testified in detail
that he and Innamorati packaged four ounces of cocaine,
delivered the package to Litterio, and received the $5300
payment several days later. Tulowiecki also testified that
in the course of arranging this transaction Litterio said
that he wanted the four ounces of cocaine for his brother
Mark. In addition, in January 1989 Tulowiecki secretly
recorded a conversation with Litterio in which Litterio
referred to the four-ounce transaction.
Litterio argues at length that Tulowiecki's testimony
was inherently unreliable and uncorroborated. The
credibility of Tulowiecki's testimony was a matter for the
jury to resolve. As it happens, there was evidence that Mark
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Litterio visited James Litterio immediately after the latter
acquired the drugs, and further evidence that Mark Litterio
was involved in the sale of four ounces of cocaine to
undercover officers just after James Litterio's four-ounce
purchase from Innamorati. The jury could easily conclude
that James Litterio provided the four-ounce package to Mark
after acquiring it from Innamorati.
G. Joseph Gilberti
Gilberti argues that evidence of "isolated sales" of
cocaine from Callahan or Scott to Gilberti is not sufficient
to convict Gilberti of participation in a conspiracy to
distribute. The evidence, however, showed more than mere
"isolated sales;" it showed that Gilberti was another cog in
the Callahan/Innamorati machine.
Scott testified that he delivered cocaine to Gilberti
for Callahan in 1986, generally in one to two-ounce
quantities. He testified that he made approximately 25 to 50
deliveries of this nature to Gilberti over a six-month
period, including one four-ounce delivery. Callahan
confirmed that Gilberti was one of the individuals to whom he
delivered cocaine. Gilberti developed a code with Scott and
Callahan so that he could order drugs over the telephone
without detection; he would refer to "green buckets of paint"
when ordering marijuana, and "white buckets of paint" when
requesting cocaine.
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There was also evidence that the distribution of the
cocaine did not end when it reached Gilberti. Scott
testified that he gave Gilberti drug distribution
paraphernalia-- including a scale, ziploc bags and other
packaging, and sudocaine, a product used to mix with cocaine-
-and showed Gilberti how to use these items. Callahan
testified that Gilberti told him that he, Gilberti, had been
distributing cocaine to an individual named Ricky Green.
The evidence was adequate to support Gilberti's conviction
for conspiracy and possession of cocaine with intent to
distribute. The same evidence supported the forfeiture of
Gilberti's property under 21 U.S.C. 853, since his only
challenge to that forfeiture is that the evidence underlying
the conspiracy conviction was deficient.
IV. GRAND JURY TESTIMONY OF WILLIAM THOMPSON
On June 22, 1988, Thompson testified at length before
the grand jury about the drug distribution conspiracy in this
case. Thompson's testimony consisted almost entirely of the
government's recitation of a prior statement made by Thompson
to a DEA agent, interspersed at intervals with Thompson's
confirmation of the truth of the prior statement, sometimes
with qualifications. Some of this testimony incriminated
Thompson himself, but a great deal of the testimony
incriminated certain of his co-defendants, particularly
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Innamorati. Thompson was subsequently indicted by the grand
jury along with the other defendants in this case.
At trial, Thompson elected not to testify. The court,
over defendants' objections, permitted the government to read
into evidence the entire transcript of Thompson's grand jury
testimony. Innamorati, Grady, Boisoneau and, surprisingly,
Thompson himself claim that this testimony was inadmissible
hearsay and that its introduction was reversible error. The
defendants also argue that the introduction of this evidence
violated their Sixth Amendment right to confront the
witnesses against them, but this amounts to the same argument
dressed in different garb.4
A. Admissibility
The basis for the district court's admission of
Thompson's grand jury testimony is not entirely clear from
the record. At one point, the court stated:
I'm going to allow . . . [the grand jury testimony]
in evidence and instruct the jury the conversations
pertaining to Thompson are admitted at this point
only against Thompson. Unless and until there is
other evidence that connects the other named
4The admission of an out-of-court statement falling
within a "firmly rooted" exception to the hearsay rule does
not violate the Confrontation Clause. See Bourjaily v.
United States, 483 U.S. 171, 182-83 (1987); Ohio v. Roberts,
448 U.S. 56, 66 (1980). Most courts have concluded that the
declaration against interest exception embodied in Fed. R.
Evid. 804(b)(3) is a "firmly rooted" exception to the hearsay
rule. See, e.g., United States v. York, 933 F.2d 1343, 1363-
64 & n.5 (7th Cir.), cert. denied, 112 S. Ct. 321 (1991).
Thus, the constitutional issue merges into the evidentiary
question.
-35-
defendants in this conspiracy, it's excluded
against them.
Shortly thereafter, in response to a renewed objection by
defense counsel, the court ruled that "the grand jury
testimony of William Thompson is allowed. It's allowed
against Thompson. It's a declaration against interest, and
I'll explain that to the jury." Id. at 62. No explanation
or limiting instruction was given to the jury.
The only argument urged by the United States in this
appeal to overcome the hearsay objection is that the grand
jury testimony was a declaration against interest. Fed. R.
Evid. 804(b)(3) excepts from the hearsay rule, when the
declarant is unavailable as a witness,
[a] statement which . . . so far tended
to subject the declarant to civil or
criminal liability . . . that a
reasonable person in the declarant's
position would not have made the
statement unless believing it to be true.
Thompson's invocation of the Fifth Amendment at trial
rendered him "unavailable" for purposes of Rule 804(b)(3).
See California v. Green, 399 U.S. 149, 168 n.17 (1970).
Under the exception, a declaration against interest is
admissible against anyone to whom the statement pertains.
See United States v. Myers, 892 F.2d 642, 644 (7th Cir.
1990).
Whether Thompson's grand jury testimony represents a
statement against penal interest poses the question how
-36-
broadly to define the concept of a "statement." One could
describe the entire grand jury testimony as a single
statement or, at the other extreme, could subdivide a single
sentence ("John and I robbed the bank") into two different
statements to be tested separately. Both the rationale of
the exception--the trustworthiness of the unit to be
admitted--and our own precedents yield no mechanical rule as
to where, in between these extremes, the line is to be drawn.
A further concern is that, even if a broad view is
taken as to the scope of the "statement," a co-defendant who
confesses to the authorities and inculpates another may be
seeking to curry favor and cast the main blame upon another.
Thus the "statement" as a whole may be very much in the
interests of the confessing party who is minimizing his or
her role. Some have urged a blanket exclusion of such
confessions as inherently untrustworthy; early drafts of Rule
804(b)(3) excluded "a statement or confession offered against
the accused in a criminal case, made by a codefendant or
other person implicating both himself and the accused." See
generally 4 Weinstein & Berger, Weinstein's Evidence,
804(b)(3) [03] at 804-152 & n.42 (1992).
We need not pursue these issues in depth. Thompson's
lengthy grand jury testimony contains only a few statements
that are directly against Thompson's penal interest--for
example, his descriptions of procuring the cellular phones
-37-
and checking license plate numbers--and even these could be
innocent acts, were context ignored. If these inculpatory
statements of Thompson were isolated from the rest, it would
be hard to say that the balance of the grand jury testimony,
especially the numerous accusations against Innamorati, were
against Callahan's interest. Thus if the directly
inculpatory statements are severed, little of the grand jury
testimony would be against Thompson's interest and admissible
against third parties.
If the inculpatory statements are not severed, the same
result prevails. Taken as a whole the testimony greatly
minimizes Thompson's own role in any wrongdoing. He admitted
a few acts of logistical assistance, doubtless hoping to
maintain (as he does here) that they were innocently
motivated. But the thrust of the testimony is that others
were guilty of wrongdoing from which Thompson himself had
been excluded but happened to have some knowledge. Although
later the extent of this knowledge could be turned into an
inference harmful to his interests, it is difficult to view
the testimony as a whole as consciously contrary to
Thompson's self-interest at the time it was made. "[F]or the
declaration to be trustworthy the declarant must have known
it was against his interest at the time he made the
statement". Filesi v. United States, 352 F.2d 339, 343 (4th
Cir. 1965).
-38-
In sum, the bulk of the testimony did not qualify as a
declaration against penal interest. As to Thompson, anything
he said constituted an admission so there was no error in
receiving the grand jury testimony as to him. Fed. R. Evid.
801(d)(2)(A). But as to the other defendants, most of the
testimony was both hearsay and outside the scope of Rule
804(b)(3)'s exception. We need not consider whether a
limiting instruction would have been a sufficient safeguard
to allow the testimony against Thompson but not the others,
compare Bruton v. United States, 319 U.S. 123 (1968), since
no such instruction was given.
B. Prejudice
Since error was committed in allowing the grand jury
testimony except as to Thompson, the only remaining question
is whether it was prejudicial as to the other defendants who
complain of its admission: Innamorati, Grady, and Boisoneau.
On direct appeal, in the case of a constitutional error (as
this one may be viewed in light of the Confrontation Clause),
the test for harmless error is a demanding one. The
appellate court must be persuaded beyond a reasonable doubt
that the jury's verdict was not attributable to the
challenged evidence. See Harrington v. California, 395 U.S.
250, 254 (1967); Milton v. Wainwright, 407 U.S. 371, 377-78
(1972); United States v. Figueroa, 976 F.2d 1446, 1455 (1st
Cir. 1992), cert. denied, 113 S. Ct. 1346 (1993).
-39-
This test is, and ought to be, stringently applied,
resolving all reasonable doubts against the government, since
it comes close to a trespass upon the jury's function. But
the case law is clear that, if the legitimate evidence
unquestionably assured the jury's verdict of conviction, the
error in admitting other evidence is not normally grounds for
reversal. Harrington, 395 U.S. at 256; Figueroa, 976 F.2d at
1455.5 Nor is this harmless error test confined to
inadmissible evidence so slight or duplicative that one can
assume that the jury scarcely noticed it. The wrongfully
admitted evidence must be "quantitatively assessed in the
context of other evidence presented . . . ." Sullivan, 61
U.S.L.W. at 4519 (quoting Arizona v. Fulminante, 111 S. Ct.
1246, 1264 (1991)). Even where the wrongfully admitted
evidence is singular and weighty, it can still be "harmless"
where the legitimate evidence is overwhelming. E.g., Clark
v. Moran, 942 F.2d 24, 27 (1st Cir. 1991).
Against this background, we conclude that the wrongful
admission of the grand jury testimony did not alter the
inevitable outcome of the case against Innamorati. We reach
this conclusion only after a careful scrutiny of the record,
5Errors that the Supreme Court deems to warrant
automatic reversal are rare. See, e.g., Sullivan v.
Louisiana, 61 U.S.L.W. 4518 (June 1, 1993) (improper
reasonable doubt instruction); Chapman v. California, 386
U.S. 18, 23 n.8 (1966) (denial of right to counsel or
partiality of trial judge).
-40-
for the grand jury testimony inculpates Innamorati in a
number of respects that are neither trivial nor literally
duplicative of other evidence. Among other things Thompson
testified that:
Mr. Innamorati sold marijuana while in high
school . . . . Around 1970 . . . [he] developed a
large distribution network which comprised of [sic]
many residents of Clinton and Lancaster,
Massachusetts.
[I]n 1985 Mr. Innamorati was arrested by the
Massachusetts State Police [while in possession of
cocaine and he later boasted that he] had paid his
attorney . . . several thousand dollars to fix the
charges against Mr. Innamorati.
[I]n the fall of 1987, [I] became aware that both
Innamorati and Tulowiecki purchased automatic
pistols and possessed these pistols when making
drug transactions. On several occasions, [I] saw
Innamorati and Tulowiecki before and after drug
deals and they were always carrying the pistols.
Tulowiecki also told [me] that Innamorati sent
Paula [sic] Bufton [Innamorati's companion] to the
corrections facility to visit Tulowiecki, and
during the meeting, Bufton told Tulowiecki that
Innamorati put aside one hundred thousand dollars
for any legal aid that Tulowiecki would incur . . .
. [Bufton told] Tulowiecki to be patient and
don't fold. That Tulowiecki would be taken care of
if he did the right thing.
Nevertheless, the case against Innamorati was
overwhelming and it is no accident that his "insufficiency of
the evidence" argument on this appeal is confined to
conclusory assertions. No less than seven persons testified
from personal knowledge that Innamorati was engaged in
cocaine and marijuana dealing, including among others his
partners (Callahan and Fitzgerald), his companion (Pamela
-41-
Bufton), and his lieutenant and record-keeper (Tulowiecki).
Drugs and money were confided by Innamorati to his friend
James Casasanto for safe-keeping when the authorities closed
in on the ring; and drugs, weapons, paraphernalia, and
records were found in the Edgewater apartment that Tulowiecki
maintained at Innamorati's behest.
In fact, the case against Innamorati--who stood at the
center of the ring's spider web--was a composite of
individual cases against other ring members, reinforced by
additional evidence against Innamorati. All of the other
ring members on this appeal played smaller parts but were
convicted on the conspiracy charge by the jury. Most of
these persons were not directly implicated by Thompson's
grand jury testimony or the testimony was at most duplicative
as to them. It defies belief that the jury, faced with the
aggregate of evidence against Innamorati, would have
acquitted him of conspiracy if the grand jury testimony had
been deleted from the record.
The remaining convictions against Innamorati stand on
the same footing. To establish a continuing criminal
enterprise under 21 U.S.C. 848, the government needed to
show only that Innamorati committed a continuing series of
violations of the federal narcotics laws and that he managed
or organized five or more individuals. See United States v.
David, 940 F.2d at 732. Without considering Thompson's
-42-
testimony, the evidence showed continuing violations and that
more than five persons acted at Innamorati's direction. The
individual possession counts against Innamorati were not
significantly bolstered by the Thompson testimony and the
weapons count--which Thompson corroborates--was supported by
ample and untainted evidence from other witnesses. We
conclude that the grand jury testimony was, as to Innamorati,
harmless beyond a reasonable doubt.
Turning to Boisoneau, Thompson's grand jury testimony
contains only two references to him. Near the conclusion of
his testimony, Thompson identified Boisoneau as one of
several "customers of Innamorati," and stated that he was
present at times when Innamorati supplied cocaine to these
customers. A short time later, Thompson testified that
Boisoneau and the other "customers" that he had identified
"were just weekend users," as opposed to distributors. Id.
at 114. These two statements were harmless beyond a
reasonable doubt in light of the abundant independent
evidence of Boisoneau's cocaine use and of his relationship
with Innamorati.
Tulowiecki testified that Boisoneau was one of
Innamorati's customers; that Tulowiecki had personally
delivered cocaine to Boisoneau; that Boisoneau was assigned
beeper number 004 in Innamorati's communications network; and
that Boisoneau visited Tulowiecki in prison and relayed a
-43-
message from Innamorati regarding the importance of "keeping
[Tulowiecki's] mouth shut." Records kept by Tulowiecki of
Innamorati's drug sales showed that Boisoneau purchased a
total of 19 grams of cocaine between September 1987 and
January 1988. Other witnesses, such as Pamela Bufton and
James Casasanto, also provided incriminating evidence.
Bufton, for example, testified that Boisoneau had aided in a
delivery of cocaine to Innamorati.
It is fair to say that, as to Boisoneau, Thompson's
testimony ("just [a] weekend user[]") was almost favorable.
That Boisoneau was a customer no one could fairly doubt. The
additional detail that made a conspiracy charge plausible
came almost entirely from others whom the jury chose to
believe.
Finally, as to Grady, we have scoured the thirty pages
of Thompson's grand jury testimony and are unable to find a
single reference to Grady. Grady in his brief does not
suggest any way in which he was directly prejudiced by the
admission of this evidence. We have no trouble, therefore,
concluding that the admission of the grand jury testimony was
harmless as to Grady.
V. VARIANCE
Boisoneau argues that a "variance" between the facts
alleged in the indictment and the facts adduced at trial
prejudiced his ability to defend the charges against him.
-44-
Although he uses the language of variance, Boisoneau's entire
argument is devoted to the contention that the government
introduced evidence at trial in addition to the evidence
listed as overt acts in the indictment and presented to the
grand jury.
The indictment sets forth 44 paragraphs of overt acts in
support of the alleged conspiracy. Paragraph 36 alleges
that, between May 1, 1987, and early 1988, Tulowiecki
distributed multi-ounce quantities of cocaine per month to
several buyers, including Boisoneau. Paragraph 37 alleges
that Tulowiecki's records show that Boisoneau purchased a
total of 12 grams of cocaine between September 27 and October
23, 1987. Boisoneau does not contend that the government
failed to prove these allegations at trial. Instead, he
argues that he was charged only with these acts, and that the
government "varied" from the indictment by offering
additional evidence, such as testimony that Boisoneau placed
cocaine in the trunk of a car that was to be driven to Maine
where Innamorati was staying, and testimony that Boisoneau
introduced Tulowiecki to two individuals who wanted to
purchase cocaine.
Boisoneau misapprehends the law. The government need
not recite all of its evidence in the indictment, nor is it
limited at trial to the overt acts listed in the indictment.
E.g., United States v. Ellender, 947 F.2d 748, 755 (5th Cir.
-45-
1991). The indictment charged all defendants, including
Boisoneau, with engaging in a conspiracy to distribute
cocaine and marijuana between 1984 and 1988. The evidence
complained of by Boisoneau falls squarely within the scope of
that alleged conspiracy, both temporally and substantively.
There is no variance.6
VI. RESTRICTIONS ON CROSS-EXAMINATION
A. Paul Callahan
Callahan was originally joined in the indictment as a
co-conspirator, but pleaded guilty prior to trial and was a
principal government witness at trial. Defendants sought to
impeach Callahan's credibility during cross-examination with
evidence that he had engaged in a wide of variety of criminal
acts throughout his life. The jury learned from the evidence
that Callahan had worked as a safecracker, that he was
convicted for a dozen specific acts of safecracking, that he
was a bookmaker, a bank robber, a burglar, a drug dealer, and
a perjurer, and that he spent much of his adult life--more
than sixteen years--in prison. But the court excluded
evidence relating to Callahan's participation in disposing of
6In discussing the supposed variance, Boisoneau also
alleges that the government failed to produce exculpatory
evidence and questions the district court's denial of a
motion for a bill of particulars. No effort is made to
develop these issues, however, and we do not address them.
Zannino, 895 F.2d at 17. For the same reason, we do not
discuss Innamorati's brief and conclusory claim of improper
variance.
-46-
the bodies of two homicide victims in the 1960's, and to
another incident in 1970 in which Callahan provided a
silencer to another individual who later used the silencer in
a shooting. Innamorati, Thompson, Grady, DeMarco Sr., and
DeMarco Jr. argue that this ruling improperly limited their
right of cross-examination and their Sixth Amendment right to
confront witnesses against them.
The trial judge apparently concluded that the references
to the homicides and silencer, events 20 to 30 years in the
past, were of limited importance in impeaching Callahan and
created a risk of prejudice that outweighed any benefit from
the evidence. The use of such ancient evidence merely to
show bad character for veracity is doubtful, cf. Fed R. Evid.
609(b)(10-year-old felonies presumptively excluded), and in
this case the excluded evidence was weak and largely
cumulative so far as it cast an unflattering light on
Callahan's character for veracity. Judgments of this kind
are very much within the trial court's discretion. See
United States v. Garcia-Rosa, 876 F.2d 209, 237 (1st Cir.
1989), cert. denied, 493 U.S. 1030, vacated on other grounds,
498 U.S. 954 (1990). We see no abuse in excluding the
evidence for this use.
There is a somewhat more substantial use that might have
been made of the evidence, namely, to suggest that Callahan
could still be prosecuted for involvement in homicides,
-47-
giving the government some hold over him. But there was no
indication when the questions were sought to be asked in this
case that the applicable statute of limitations still
permitted prosecution or, even if it did, that federal
authorities controlled the decision as to future prosecution.
It is not even clear that the prior bad acts were offered to
show that Callahan was subject to government pressure or that
this objective was squarely presented to the district judge.
In sum, we do not think that cross examination of
Callahan was unreasonably restricted. Similarly, since a
reasonable opportunity to test Callahan's veracity and
motives was offered, no Confrontation Clause issue is
presented. "Once the defendant has been afforded a
reasonable opportunity" for such an inquiry, "the trial judge
retains broad discretion in determining the scope or extent
of cross examination." Garcia-Rosa, 876 F.2d at 237.
B. Sean McDonough
Thompson challenges the district court's restrictions
upon his cross-examination of DEA agent Sean McDonough. At
trial, McDonough testified that the government had lost the
only copy of a "corrected statement" that Thompson had
provided to the DEA and that, according to Thompson,
contained material exculpatory evidence. This statement may
have been in McDonough's custody at the time it was
misplaced. On cross-examination of McDonough, Thompson's
-48-
counsel sought to show that, in a prior unrelated case, 86
seconds mysteriously had been erased from an audio tape in
McDonough's custody. The trial court sustained the
government's objection to this line of inquiry.
The intent of Thompson's counsel in inquiring about the
erased tape was to suggest to the jury that in both
instances--the missing 86 seconds and the misplaced DEA
statement--Agent McDonough had deliberately concealed or
destroyed material evidence. Counsel did not proffer any
proof that the missing portion of the tape had been linked to
misconduct by McDonough, nor was there any showing that the
corrected statement in this case had been deliberately
misplaced. Absent a foundation for this inquiry, the
district court was justified under Fed. R. Evid. 403 in
forbidding the question.
VII. QUASHING OF SUBPOENAS OF SPRINGFIELD POLICE OFFICERS
During direct examination, government witness Scott gave
the following account of an incident that allegedly occurred
during his cooperation with the DEA. On November 27, 1987,
prior to Callahan's agreement to cooperate with the
government, two DEA agents wired Scott with a hidden
recording device and brought him to a bar to meet and record
a conversation with Callahan. After the meeting, the agents
agreed to allow Scott to stop by his girlfriend's house
before returning to DEA headquarters. Scott went into the
-49-
house--leaving the agents waiting in the car outside--and was
arrested by officers of the Springfield police department who
coincidentally were raiding the house as part of an unrelated
investigation.
According to Scott's testimony, one officer searched
Scott and found nothing. Then a second officer searched
Scott and purported to find vials of cocaine. Scott was
taken to police headquarters and charged with possession of
cocaine with intent to distribute. Scott testified that he
did not have any cocaine in his possession on this occasion,
and would never have carried cocaine in such a situation
since he knew it was standard procedure for the DEA agents to
search him thoroughly each time he returned to the vehicle.
Scott testified that after being released by the Springfield
police officers he contacted the DEA agents to complain about
the arrest--he thought at first that the arrest had been a
ploy by the DEA, in conjunction with the Springfield police,
to get him "under their thumb"--and that subsequently the
charges were dismissed and he was not prosecuted.7
Following this testimony, several of the defendants
sought to subpoena the Springfield police officers involved
in this incident in an attempt to prove that Scott did in
7The DEA agents testified that they too were approached
by Springfield police officers while waiting in their car in
front of the house. Not wanting to expose Scott's role in
the investigation, they quickly departed.
-50-
fact possess cocaine on that evening. The district court
quashed the subpoenas, finding that the proposed testimony
was inadmissible under Fed. R. Evid. 608(b), which provides
that "[s]pecific instances of the conduct of a witness, for
the purposes of attacking or supporting the witness'
credibility, other than conviction of a crime as provided in
rule 609, may not be proved by extrinsic evidence."
Defendants argue that the officers' proposed testimony
was not excluded by Rule 608(b), because defendants did not
seek merely to impeach Scott's credibility through extrinsic
evidence of a prior bad act but also sought to contradict a
specific assertion made by him during his direct testimony,
thereby showing that he had lied before the jury in the very
case. Nevertheless, the proposed contradiction involved a
matter collateral to the main issues in this trial, since the
Springfield incident did not in any way involve any of the
defendants or the charges against them. A court may, indeed
normally does, preclude a party from proving with extrinsic
evidence that a witness lied in court on a collateral matter.
See United States v. Tejada, 886 F.2d 483, 489 (1st Cir.
1989); Walker v. Firestone Tire & Rubber Co., 412 F.2d 60, 63
(2d Cir. 1969). Here, the district court was justified in
preventing a major detour into this essentially irrelevant
episode.
-51-
Defendants say that the Springfield officers' testimony
was relevant because it showed that Scott continued to use
cocaine even after his cooperation with the DEA, which
rebutted his testimony that he contacted the DEA because he
"knew what we were doing was totally and completely wrong"
and wanted "to make things right." But Scott admitted on
cross-examination that he used cocaine long after he began to
cooperate with the DEA, in fact up until a couple of months
prior to the trial. Thus, the Springfield episode was at
best cumulative evidence, and given the diversion involved to
procure it, properly excluded as duplicative on this issue.
Any claim by Scott as to the purity of his motive was
undoubtedly discounted by the jury since Scott received
$250,000 from the government, as well as other benefits.
VIII. BELATED PRODUCTION OF DEA NOTES, AND
TESTIMONY OF DEA AGENT O'BRIEN
Edward O'Brien was a DEA agent who was involved in the
early investigation of this case, but subsequently left the
DEA under some sort of cloud; the circumstances of his
departure from the agency are unclear. Early in the
proceedings, the court granted the government's motion to
exclude any reference to O'Brien at trial, stating: "I don't
want him coming in and the government being prejudiced
against [sic] because they had an agent who turned out bad.
So we will kick that out."
-52-
On the fifth day of trial, after the court made its
initial decision to exclude O'Brien, the government produced
to defendants notes made by DEA Agents McDonough and O'Brien
during their initial debriefing of Scott. Contained within
these documents was a notation that arguably reads "driver
for Fitzgerald = Wall." Grady argued that the notes tended
to exculpate him, since he was accused of being the truck
driver for the conspiracy. His theory was that the notes
indicated that the truck driver was actually an individual
named Wally Barrett, whose name had surfaced on other
occasions during the trial.
Grady questioned Agent McDonough about the notation but
McDonough testified that he was not present during the entire
debriefing, that he believed this particular notation was
made by Agent O'Brien, and that he (McDonough) knew nothing
about it. Grady then asked the court either for dismissal or
a mistrial based on the belated disclosure of the exculpatory
evidence or, alternatively, for permission to call Agent
O'Brien in light of these new developments. The court denied
both of these requests. Grady argues, first, that the
belated disclosure of the DEA notes violated Brady v.
Maryland, 373 U.S. 83 (1963), and deprived him of fair trial;
and second, that the court's exclusion of Agent O'Brien
further compounded this violation.
-53-
We agree that the "Wall" notation constituted
exculpatory evidence within the meaning of Brady. It
provided Grady with a basis for arguing, or at least
developing evidence to show, that "Wally" and not Grady was
the truck driver. However, in cases of belated disclosure,
as opposed to outright non-disclosure, of exculpatory
evidence, "the critical inquiry is . . . whether the
tardiness prevented defense counsel from employing the
material to good effect." United States v. Devin, 918 F.2d
280, 290 (1st Cir. 1990). Here, the notation was produced
early in the trial, well before the start of defendants' case
(indeed, prior to cross-examination of the government's first
witness). We do not believe that Grady was prevented from
making good use of the information or otherwise prejudiced by
the delay.8
Although Grady argues that he was prejudiced by being
deprived of the opportunity to investigate the "Wall"
reference prior to trial, he never asked the trial court for
a continuance to allow him to investigate the reference. We
have held it "incumbent upon a party faced with such a
situation to ask explicitly that the court grant the time
8There is no indication that the notation was withheld
in bad faith or deliberately suppressed. The disputed
notation consists of one line in a voluminous collection of
notes; the notation itself is difficult to decipher and is
subject to different readings. Its exculpatory nature--even
assuming defendants' reading is the correct one--is not
immediately apparent.
-54-
needed to regroup, or waive the point . . . ." United States
v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.), cert. denied,
493 U.S. 862 (1989). Nor has Grady described any specific
avenue of investigation that would have been pursued had the
notation been disclosed earlier. Accordingly, we conclude
that the belated disclosure of the "Wall" notation did not
prejudice Grady and does not entitle him to a new trial.
Grady contends that at the very least he should have
been permitted to call Agent O'Brien to the stand to question
him about the notation. The government's unsupported
response that O'Brien "likely had little to add concerning
the notes of the Jeffrey Scott debriefing" is not at all
comforting. What O'Brien might have added is that Scott did
say that the driver referred to was Wally Barrett,
information that would be helpful to Grady if it were
admissible for its truth. But Scott's statements to O'Brien
during the debriefing would have been inadmissible hearsay if
offered for their truth (as opposed to impeachment). Thus,
the exclusion of O'Brien did not prejudice Grady in this
respect.
The only apparent use that Grady could have made at
trial of the "Wall" notation would have been to impeach
Jeffrey Scott's testimony. Scott testified that he did not
know the name of Innamorati's driver; Grady could have asked
him on cross-examination whether he recalled telling the DEA
-55-
that the driver's name was Wally. Grady sought to call
O'Brien to the stand to question him about the notation, but
he never sought to recall Scott for further cross -
examination once the notes were produced. If Scott had been
asked about the "Wall" statement and denied making it, then
Grady might have been entitled to call O'Brien in an effort
to prove that Scott in fact made the statement. Absent any
effort by Grady to cross-examine Scott on the point, we
cannot see how the court's refusal to involve O'Brien
prejudiced Grady.9
IX. PAYMENTS TO WITNESS
Scott, a key witness for the prosecution, received
$250,000 from the government prior to trial for his
cooperation as well as immunity from prosecution and
enrollment in the federal witness protection program. The
$250,000 payment was made pursuant to a DEA program that
awards twenty percent of the value of seized assets to
parties who are instrumental in successful investigations.
9Grady also complains of the district court's denial of
his motion for a mistrial based on a violation of the court's
sequestration order. The violation occurred when the
government permitted Fitzgerald and Callahan to converse
together in the prosecutor's office after Callahan's
testimony but prior to Fitzgerald's. The district court held
a voir dire, rebuked the government, but refused to declare a
mistrial. Briefly addressing this issue, Grady provides no
persuasive explanation for his claim of prejudice and we do
not think that the trial court abused its discretion in
denying the mistrial motion. See United States v. Rossetti,
768 F.2d 12, 16 (1st Cir. 1985).
-56-
Gilberti argues that these benefits conferred upon Scott were
so likely to induce perjury that they infringed upon
defendants' right to a fair trial, and he points to our
dictum in United States v. Dailey, 759 F.2d 192 (1st Cir.
1985), that "we can think of no instance in which the
government would be justified in making a promised benefit
contingent upon the return of an indictment or a guilty
verdict." Id. at 210 (footnote omitted).
Subsequently in United States v. Cresta, 825 F.2d 538(1st Cir. 1987), cert. denied, 486 U.S. 1042 (1988), this
court upheld an agreement much like that in this case. In
Cresta a government witness was promised $50,000 from the
sale of a vessel that was to be seized and forfeited to the
government as a result of the witness's cooperation. Cresta
relied upon the facts that the terms of the agreement were
disclosed to defense counsel and explored on cross-
examination; there was substantial corroboration of the
witness's testimony; and the court admonished the jury to
weigh carefully the credibility of accomplice testimony. See
id. at 546.10
Those same facts are present in this case. The terms of
the agreement were not concealed; to the contrary,
10See also United States v. Wilson, 904 F.2d 656 (11th
Cir. 1990) (testimony by government witnesses who could
potentially recover up to $11 million held not to violate due
process), cert. denied, 112 S. Ct. 250 (1991).
-57-
defendants' counsel questioned Scott closely about his
arrangements with the government, and argued at length in
closing that Scott should be disbelieved as a result of them.
There was evidence to corroborate virtually every aspect of
Scott's testimony. And the court instructed the jury to
consider carefully any inducements or advantages that any
witnesses had received. Finally, the $250,000 payment to
Scott was completed several days prior to trial, and the
payment was thus not directly dependent upon the result of
Scott's testimony in court.
Clearly such immense payments are troubling. The
payments may be for "information," rather than for later
testimony or convictions, but the steps are linked and the
inducement to testify in accordance with prior reports is
obvious. Yet defendants are regularly convicted based on
testimony secured by the prosecutor's decision to reduce or
dismiss charges against testifying co-defendants. In fact,
Congress has enacted statutes that directly reward those who
disclose misconduct and who doubtless testify for the
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government in the ensuing trials.11 In all events, Cresta
is the governing law in this circuit and controls this case.
X. COMMENTS BY THE PROSECUTION
Boisoneau alleges that he was unfairly prejudiced by
improper comments made by the prosecutor during closing
argument. First, Boisoneau challenges the following passage
from the prosecutor's rebuttal argument at the close of the
case, in which the prosecutor sought to justify the
government's $250,000 payment to Scott in exchange for his
cooperation:
What did the government know before Jeffrey Scott
walked into the [DEA] in contrast to what the
government knew as a result of Jeffrey Scott's
cooperation? And even on pure dollars and cents,
consider the amount of forfeitures, the seizures
that it led to. But go beyond that, because if you
do a cost benefit analysis you must also consider
the cost that was saved to society by dismantling
an operation like the one you've heard about
here. . . .
Boisoneau made no objection to these remarks during trial,
and our review is therefore limited to plain error. Fed. R.
Crim. P. 52(b).
11"[R]ewards for assistance are essential to the
business of detecting and punishing crime." United States v.
Bringham, 977 F.2d 317, 318 (7th Cir. 1992). See, e.g., 31
U.S.C. 3730(d) (providing for an award of up to 10 percent
of the proceeds of suit to any individual whose provision of
information leads to government's recovery of funds under the
False Claims Act, 31 U.S.C. 3729); 26 U.S.C. 7623
(providing for Secretary of Treasury to make awards "for
detecting and bringing to punishment persons guilty of
violating the internal revenue laws").
-59-
Boisoneau now argues that the prosecutor's statement was
an improper allusion to facts not in the evidence, namely, to
some actual cost-benefit analysis commissioned by the
government showing the advantages and disadvantages of the
payment to Scott. These remarks do not suggest to us that
some actual cost-benefit analysis was undertaken: they are
nothing more than an argument, using the latest fashionable
jargon, that the payment was reasonable in light of the
results obtained. The prosecutor's own language--"if you do
a cost benefit analysis"--shows that he was merely suggesting
a way for the jury to look at the payment.
Boisoneau also objects to the prosecutor's statement in
closing that the trial judge alone would determine the
sentences for each of the cooperating witnesses, and that the
jury therefore should not think that the witnesses were
getting "a walk." Boisoneau points out that in fact the
government had dismissed, or elected not to assert, numerous
criminal charges against many of the cooperating witnesses
and also had promised to make motions for downward departures
with respect to certain witnesses. Therefore, Boisoneau
argues, the government in fact had far more significant
influence on the witnesses' ultimate sentences than the
prosecutor's disclaimers would suggest.
We agree that the prosecutor's statement told only half
the story, but it is usually the function of opposing counsel
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to remind the jury of the other half. Indeed, witnesses are
normally cross-examined as to just such inducements. Perhaps
in some instances a prosecutor's incomplete version of events
might involve so much distortion that a cautionary
instruction by the trial judge would be required. In this
instance, no objection was made at the trial nor any
instruction sought, and there is no "plain error" here in the
court's failure to give such an instruction sua sponte. We
have similarly examined Boisoneau's other claims of
prejudicial error arising out of the prosecutor's closing
arguments and find them unpersuasive.
Nor do we see any merit in Thompson's suggestion that
the prosecutor's closing argument contained improper
"vouching" for the government's witnesses. The line between
the legitimate argument that a witness's testimony is
credible and improper "vouching" is often a hazy one, to be
policed by the trial court in the first instance. See United
States v. Martin, 815 F.2d 818, 822-23 (1st Cir.), cert
denied, 484 U.S. 825 (1987). Here, at worst the challenged
remarks -- for example, the prosecutor's statement that
"[t]he testimony of the witnesses in this case is well
corroborated . . . [a]nd as a result, you know that the
witness's testimony is true" -- fell in the grey area.
Thompson did not object to the remarks at trial when a
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curative instruction might have been given, and we think that
is the end of the matter.
XI. FAILURE TO PRESERVE EVIDENCE
Thompson argues that his due process rights were
violated by the government's failure to preserve exculpatory
evidence, specifically a DEA-6 form prepared by Agent
McDonough summarizing an interview with Thompson. It appears
that McDonough interviewed Thompson on March 10, 1988, and
then memorialized the interview on the DEA-6 form. On June
22, 1988, just prior to Thompson's appearance before the
grand jury, McDonough again met with Thompson, and Thompson
made certain handwritten corrections on the form and then
signed it. In the grand jury, the government attorney read
each statement on the DEA-6 form to Thompson, and then asked
Thompson to confirm the truth of the statement. Thompson did
so, making some modifications or corrections. The form with
Thompson's handwritten corrections was lost after the grand
jury appearance.
Thompson filed a motion to dismiss the indictment on the
ground that the DEA-6 form as corrected by him prior to the
grand jury appearance was material exculpatory evidence, and
that the government's failure to preserve that evidence
deprived him of a fair trial. This motion was denied by the
magistrate judge to whom it was referred. The magistrate
judge's report advised the parties that pursuant to the local
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rules the failure to file written objections to the report
within ten days "shall preclude further appellate review by
the Court of Appeals." Thompson failed to file a written
objection. The issue, therefore, was waived. See Thomas v.
Arn, 474 U.S. 140, 155 (1985); United States v. Valencia-
Copete, 792 F.2d 4, 6 (1st Cir. 1986).
Although we will address waived issues where necessary
to prevent a miscarriage of justice, we certainly perceive
none here. The corrected DEA-6 form was essentially
preserved by the grand jury testimony itself, during which
the government attorney went through the form line-by-line.
The transcript of this grand jury testimony was read to the
jury at trial.
XII. JURY INSTRUCTIONS
Several defendants--Thompson, Letters, Litterio and
Boisoneau--challenge various aspects of the district court's
charge to the jury.
First, Thompson argues that the court erred by denying
his request for an instruction stating that the motor vehicle
licenses and registrations were public documents. As already
noted, one of the crucial pieces of evidence linking Thompson
to the conspiracy was his provision to Innamorati of registry
checks on the license plates of vehicles of which Innamorati
was suspicious. Thompson asked that the jury be told that
"as a matter of law, motor vehicle licenses and registrations
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are public documents, and disclosure of their contents does
not, in itself, violate the law."
The only case on the point cited in Thompson's brief,
Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,
528 N.E.2d 880 (1988), actually stands for the proposition
that the motor vehicle registry is not prima facie a public
record. In any event, the government did not charge Thompson
with stealing government secrets; it was enough for it to
show that Thompson's behavior in facilitating access to the
registry was part of the conspiracy. There is no indication
that the instructions as a whole misled the jury as to what
was needed to convict on the conspiracy count.
Second, Thompson challenges the district court's refusal
to instruct that "mere proof of a buyer-seller relationship
is not enough to convict one as a co-conspirator on drug
conspiracy charges." This instruction is at best an
incomplete statement of the law of conspiracy. Depending on
the surrounding circumstances, a buyer-seller relationship
could, in some cases, be the very core of a drug distribution
conspiracy. See Moran, 894 F.2d at 1302-04. For this
reason, courts that have approved the "buyer-seller"
instruction have restricted its use to cases in which the
evidence showed only a single or a very limited number of
sales for personal use. See United States v. Canino, 949
F.2d 928, 941 (7th Cir. 1991), cert. denied, 112 S. Ct. 1701,
-64-
1940 (1992); United States v. Medina, 944 F.2d 60, 65-66 (2d
Cir. 1991), cert. denied, 112 S. Ct. 1508 (1992).
In this instance, the gist of the conspiracy charge
against Thompson was not his drug purchases as such but his
other affirmative acts--notably, procuring cellular phones
and performing license plate checks--that the government said
were knowingly designed to assist Innamorati's extensive drug
ring operations. We doubt whether the instruction Thompson
sought is well tailored even for a case in which the
conspiracy charge focuses on multiple purchases and the
"defense" is personal use. The instruction is even less
appropriate for the case actually presented against Thompson.
Finally, Thompson complains in a cursory fashion of the
trial court's responses to several questions posed by the
jury during its deliberations. For example, although
Thompson argues that a supplementary instruction on
conspiracy was a "misstatement" of law, he fails to tell us
how the statement was inaccurate. We find no prejudicial
error here, nor with respect to each of Thompson's remaining
objections to the judge's handling of the jury's inquiries.
Next, Letters says that the court's supplemental
instruction on the definition of "aiding and abetting," in
response to a jury inquiry on the fourth day of
deliberations, failed to tell the jury that some affirmative
participation on the part of the defendant is required for
-65-
conviction. Letters failed to object to the challenged
language at trial. Once again confining our review to a
search for plain error, we find none. The supplemental
instruction adequately informed the jury of the requisite
level of participation required to convict for aiding and
abetting. Letters' underlying concern--that the jury be told
that merely purchasing cocaine for personal use does not aid
and abet the seller's possession with intent to distribute--
was specifically addressed by the court in the supplemental
instruction immediately after the portion Letters challenges.
Finally, Litterio and Boisoneau claim as error the
district court's refusal to give their requested "accomplice
testimony" instruction. From reading their briefs, one might
get the impression that no "accomplice testimony" instruction
was provided. In fact, the court admonished the jury at
length on the need to weigh carefully the uncorroborated
testimony of an accomplice and to consider the advantages
that such witnesses might receive in exchange for their
testimony. The court is not required to track the
defendants' requested language so long as the jury is fairly
informed of the pertinent law, United States v. Newton, 891
F.2d 944, 951 (1st Cir. 1989), as it was in this instance.
XIII. ADMISSION OF "DRUG LEDGER" AND TELEPHONE SUMMARIES
Thompson devotes a half page in his brief to an argument
that the court abused its discretion by allowing the
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government to introduce two items of evidence: first, a
"ledger" and related evidence summarizing certain of the drug
sales made by Tulowiecki; and second, evidence of telephone
calls between various telephone numbers associated with the
alleged conspiracy, as well as summary charts of that
information.
The drug "ledger" was a book maintained by Tulowiecki
for about a month in the fall of 1987, in which Tulowiecki
recorded cocaine sales, showing the purchaser (by code
number), the amount of narcotics bought, the price and the
date. When not using the ledger, Tulowiecki frequently
recorded cocaine sales on slips of paper, a number of which
were also introduced into evidence. In addition, Tulowiecki
prepared for use at trial a summary of the transactions that
were recorded in the ledger and on the slips of paper.
Defendants did not object at trial to the introduction of the
ledger and original papers, but they did object when the
government sought to introduce Tulowiecki's summary.
Thompson's brief does not identify any basis for concluding
that the admission of these materials was error.
The telephone evidence consisted of frequency reports
showing the number of calls between various telephone numbers
of persons and businesses associated with the conspiracy, as
well as charts summarizing that information. Many courts
have admitted this type of evidence in conspiracy cases.
-67-
E.g., United States v. Porter, 821 F.2d 968, 975 (4th Cir.
1987), cert. denied, 485 U.S. 934 (1988); United States v.
Drougas, 748 F.2d 8, 25-26 (1st Cir. 1984). Thompson argues
that the telephone records did not identify the specific
persons who made or received the calls; but this merely
limits and does not eliminate their relevance. Thompson also
says that "testimony and exhibits made it clear that the
compilation of numbers [in the government's summaries] did
not match the phone records." But Thompson fails either to
specify any respects in which the summary materials were
inaccurate or to cite us any such "testimony and exhibits."
XIV. "GUILT ASSUMING HYPOTHETICALS"
Thompson argues that he is entitled to a new trial on
account of the prosecutor's use, in Thompson's phrase, of
"guilt assuming hypotheticals" during redirect examination of
Lancaster Police Chief Eric Mcavene. During cross
examination of Mcavene, Thompson's counsel sought to
establish that it was a common practice for police officers
to run registry checks on license plates, and that such
checks were done for many different reasons including
requests from the public. Mcavene admitted that registry
checks were conducted for a variety of reasons and that he
was not consulted in every instance.
In response, government counsel sought to dispel the
notion that registry information was freely disseminated.
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Pursuing that theme, the prosecutor asked Mcavene, "[I]f a
known drug dealer had asked you for a Registry check, would
you do it for him?" Before the witness could answer, the
court upon objection ruled (mistakenly) that this question
had already been asked. The prosecutor acquiesced and moved
on to his next inquiry: "[I]f William Thompson had asked you
for the Registry check would you have done it?" The court
sustained Thompson's objection to this question, struck the
question, and denied Thompson's motion for a mistrial.
It may be a close call whether either of these questions
was improper as an implied assertion that Thompson was a drug
dealer, but we need not pursue the issue. Even if both
questions were error, they did not conceivably have such a
prejudicial impact as to require reversal. Neither question
was answered by the witness, one was stricken from the
record, and the court elsewhere instructed the jury that
statements of counsel are not evidence. The precise limits
on who could obtain registry checks was largely a side-show
and Mcavene's attitude toward disclosure was a subject raised
by Thompson's own counsel.
XV. MARK LITTERIO EVIDENCE
Litterio argues that the court erred by permitting the
government to introduce evidence of a drug transaction
involving Litterio's brother, Mark Litterio, as well as a
statement made by Mark Litterio to an undercover officer.
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Litterio was convicted under count five of the indictment for
possession of cocaine with intent to distribute. The primary
evidence was Tulowiecki's testimony that Litterio purchased
four ounces of cocaine from Innamorati in late August 1987.
According to Tulowiecki, Litterio said at the time of the
purchase that he was buying the cocaine for his brother Mark.
To corroborate this testimony, the government offered
testimony from a parade of police officers showing that Mark
Litterio and an accomplice were involved in the sale of four
ounces of cocaine just after James Litterio's purchase from
Innamorati.
Although the evidence of the Mark Litterio transaction
was a major detour, the evidence was relevant to the charge
against Litterio in count five. The fact that Mark Litterio
sold four ounces of cocaine to undercover agents just after
James Litterio bought the same amount from Innamorati
strongly corroborated Tulowiecki's testimony. The only
"prejudice" was the potential for distracting the jury with
details of an uncharged crime, and this judgment is largely
within the discretion of the trial judge. See United States
v. Bonneau, 970 F.2d 929, 935 (1st Cir. 1992) ("only rarely--
and in extraordinarily compelling circumstances" should this
court "reverse a district court's on-the-spot judgment
concerning the relative weighing of probative value and
unfair effect").
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Litterio also challenges as hearsay the admission,
through the testimony of one of the officers involved in the
Mark Litterio undercover investigation, of Mark Litterio's
contemporaneous statement that he was doing the four-ounce
cocaine deal with his brother "Mickey" (James Litterio's
nickname). This statement, however, was admissible against
Litterio under Fed. R. Evid. 801(d)(2)(E), which excludes
from the definition of hearsay "a statement by a
coconspirator of a party during the course of and in
furtherance of the conspiracy." Litterio objects that there
is nothing to show that Mark himself was a member of the
Innamorati ring. But based on this single transaction James
and Mark Litterio were evidently engaged in a conspiracy in
which James supplied, and Mark sold, four ounces of
cocaine.12 Mark Litterio's statement to the undercover
officers was in furtherance of it. Whether this was a
separate conspiracy or part of the larger Innamorati
conspiracy makes no difference so far as the admissibility of
the statement against James Litterio is concerned.
XVI. REFERENCES TO "THE DEMARCOS"
12Mark Litterio's statement itself may be considered in
determining admissibility, see Bourjaily v. United States,
483 U.S. at 178-79, and in addition there was evidence that
James Litterio stated to Tulowiecki that he (James Litterio)
needed the four ounces for his brother Mark, and that Mark
Litterio was followed to James Litterio's house immediately
after James Litterio received the drugs from Tulowiecki.
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Robert DeMarco Jr. argues that he was deprived of a fair
trial by repeated references to "the DeMarcos." He contends
that these collective references deprived him of an
individual adjudication of guilt or innocence, and instead
grouped him together with his father as a single entity.
We have examined the record and conclude that the phrase
"the DeMarcos" was used as a substitute for "both Robert
DeMarco Sr. and Robert DeMarco Jr.," and that this was made
clear to the jury. For example, in one of the instances
cited by Demarco Jr., Callahan testified that he distributed
portions of two half-kilograms of cocaine to, among others,
"the Demarcos." Upon counsel's objection to the collective
reference, the prosecutor asked whether Robert DeMarco Sr.
and Robert DeMarco Jr. "were both present" at the time of
this distribution, and Callahan replied, "Yes."
A witness may testify that two persons jointly performed
a given act so long as confusion is avoided. Here, the
witness was merely using the shorthand phrase "the DeMarcos"
to refer to "both Robert DeMarco Sr. and Robert DeMarco Jr."
When counsel objected, the witness made clear his meaning.
We have examined the other instances cited by DeMarco Jr. and
find them to be equally lacking in confusion or prejudice.
XVII. EX PARTE PROCEEDINGS
After the trial concluded, the government discovered
information in its possession that related to an incident
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recounted during the trial testimony of a government witness.
Although the government believed that the information was not
Brady material, it did not wish to conceal the information
from the court or take the final responsibility for
appraising its importance. At the same time, the government
feared that release of the information would pose a
substantial danger of serious harm.
Accordingly, the government submitted the information to
the district court ex parte, described the reasons for its
position and explained why it feared disclosure. The
district court ruled that the information was not material
and that the government's justification for non-disclosure
was persuasive. The district court sealed its order
containing these rulings. At no time during this episode
were defendants or their counsel made aware of these
proceedings or of the court's order.
The government's submission and the district court's
order were forwarded to this court and brought to the
attention of this panel. This court in turn issued an order
on November 18, 1992, informing all defense counsel of the
existence of the ex parte proceedings. Not surprisingly,
defendants have moved for disclosure of the information, or
at the very least a synopsis of the information so that they
may argue intelligently as to its materiality and the need
for disclosure. Certain defendants also argue that the ex
-73-
parte procedures utilized by the district court deprived them
of a fair trial.
We sympathize with defendants' protestations and agree
that the procedures utilized in this case raise extremely
serious issues. Outside of emergencies, see Fed. R. Civ. P.
65(b) (temporary restraining orders), the ex parte submission
of information from a party to the court and the court's
ruling on that information without notice to or participation
of the opposing party is fundamentally at odds with our
traditions of jurisprudence, Haller v. Robbins, 409 F.2d
857, 859 (1st Cir. 1969), and can be justified only in the
most extraordinary circumstances. Nevertheless, in rare
situations requirements of confidentiality outweigh the
interest in adversarial litigation and permit a court to rule
on an issue in camera without the participation of an
interested party.
For example, in United States v. Perkins, 926 F.2d 1271(1st Cir. 1991), the government possessed information that
was arguably useful to impeach a government witness, but
whose disclosure would have jeopardized an ongoing criminal
investigation. The government submitted the information to
the district court for an in camera determination of its
materiality. The court concluded that the information was
not material and need not be disclosed. After trial--
presumably after the threat to the investigation had ceased--
-74-
the government's ex parte submission was unsealed and the
defendant was for the first time apprised of the information.
On appeal we upheld the court's finding of immateriality and,
implicitly, the procedure employed.
There are other examples. Fed. R. Crim. P. 16(d)(1)
expressly authorizes the court to deny discovery of
information sought by a defendant based on an ex parte
showing by the government of the need for
confidentiality.13 The Classified Information Procedures
Act, 18 U.S.C. App. 1-16, permits the ex parte submission
of affidavits by the government in support of a protective
order authorizing the non-disclosure of national security
information. See United States v. Pringle, 751 F.2d 419, 427
(1st Cir. 1984). And under Franks v. Delaware, 438 U.S. 154(1978), courts often make an in camera assessment of the
veracity of a confidential government informant and the harm
from revealing his identity. See United States v. Southard,
700 F.2d 1, 10-11 (1st Cir.), cert. denied, 464 U.S. 88(1983).
The present case is unusual because not only were
defendants denied access to the material but they did not
even know of its submission to the court. We agree that the
13See e.g., United States v. Napue, 834 F.2d 1311, 1317
(7th Cir. 1987) (approving this procedure in appropriate
cases). Rule 16(d)(1) requires the court to preserve the
records of the ex parte communication for the appellate court
in the event of an appeal, as was done in this case.
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secret submission to the court is especially dangerous,
depriving the opponent even of the opportunity to argue
generally against the need for secrecy. Yet there is no
question here of convictions based upon secret evidence
furnished to the factfinder but withheld from the defendants.
What the government did was to provide material to the court
to permit the court to determine whether under applicable law
the material needed to be produced to the other side and,
collaterally, to determine whether there was a legitimate
reason for continued secrecy in the submission.
Each of the three judges on this panel has considered
the information in this case bearing on these two issues.
Our standard in this inquiry was to resolve every legitimate
doubt in favor of the defendants precisely because they could
not argue the matter for themselves. We nevertheless have
concluded that there was a substantial threat of serious harm
warranting the initial examination by the district court
without notice to defendants; that the threat has abated
sufficiently to justify notice to the defendants now but not
the disclosure of the information itself; and that the
information, whether or not technically Brady material, would
not have significantly assisted any of the defendants and
could not conceivably have altered any of the verdicts.
As for the government's action in submitting the
information to the district court without notice to
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defendants, we would expect this dangerous course to be very
rare indeed, but in this instance we find that it was
justified and, given the unimportance of the material, it
inflicted no prejudice on the defendants. No doubt we could
construct a judicial rule forbidding the government, absent a
statute or regulation, from making any secret submission.
But we think that the interests of justice are better served
by encouraging the government to let the district court
resolve the Brady issue or like questions in close cases.
Defendants in general would not gain from a regime that
encouraged the government to decide the matter itself.
XVIII. SENTENCING ISSUES
A. Introduction
Thompson, DeMarco Sr., Letters, Litterio and Boisoneau
challenge the district court's calculation of their sentences
under the Sentencing Guidelines.14 Many of defendants'
arguments concern the court's calculation of the amount of
narcotics attributable to each defendant. It is useful to
say a few words on the subject at the outset.
Under the Guidelines, the sentence for a drug-related
offense hinges substantially upon the total amount of drugs
involved in that offense. See U.S.S.G. 2D1.1(c) (drug
14The district court applied the 1990 version of the
Sentencing Guidelines and therefore all citations unless
otherwise indicated are to that version.
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quantity table).15 This determination often turns on the
"relevant conduct" provision of the Guidelines, which
provides that a defendant's base offense level shall be
determined on the basis of "all acts and omissions committed
or aided and abetted by the defendant, or for which the
defendant would be otherwise accountable, that occurred
during the commission of the offense of conviction . . . ."
U.S.S.G. 1B1.3(a)(1). In the case of concerted criminal
activity, conduct "for which the defendant would be otherwise
accountable" includes "conduct of others in furtherance of
the execution of the jointly-undertaken criminal activity
that was reasonably foreseeable by the defendant." Id.comment note 1.
Thus, "[t]he central concept . . . is foreseeability."
United States v. O'Campo, 973 F.2d 1015, 1023 (1st Cir.
1992). This means that each member of a drug distribution
conspiracy may be held accountable at sentencing for a
different quantity of narcotics, depending on the
circumstances of each defendant's involvement. See U.S.S.G.
1B1.3 comment note 1. The foreseeability determination is
15Section 2D1.4 provides that if a defendant is
convicted of conspiring to commit an offense involving a
controlled substance, "the offense level shall be the same as
if the object of the conspiracy or attempt had been
completed." Section 2D1.1, in turn, sets forth the offense
levels for the completed offenses of distribution and
possession with intent to distribute based primarily upon the
drug quantity table.
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inherently fact-bound, and "[a] district court's finding of
the amount of drugs involved in an offense will be overturned
on appeal only upon a showing of clear error." United States
v. Tracy, 989 F.2d 1279, 1287 (1st Cir. 1993). "[W]here more
than one reasonable inference may be drawn from undisputed
facts, the court's choice from among supportable alternatives
cannot be clearly erroneous." United States v. McCarthy, 961
F.2d 972, 978 (1st Cir. 1992).
In this case, the court held an evidentiary hearing to
determine the drug quantities attributable to each defendant.
Callahan and Tulowiecki testified regarding the amounts of
narcotics distributed to certain of the defendants. The
court also relied heavily on detailed pre-sentence reports
prepared by the probation officer. See Fed. R. Crim. P.
32(c). Thereafter, the court issued a memorandum opinion
setting forth its factual findings including "how much
controlled substance is attributable to each defendant in
order to establish his base offense level for Guideline
purposes." Order of July 12, 1991 at 2.
B. William Thompson
Thompson first argues that the Sentencing Guidelines do
not apply to him because the principal evidence against him--
the provision of registry checks and cellular phones--
occurred prior to November 1987, when the Sentencing
Guidelines took effect. Thompson waived this claim by
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failing to make it during the sentencing process. See
Figueroa, 976 F.2d at 1462. In any event, the Guidelines
applied to Thompson, because he was a member of an ongoing
conspiracy that continued past the effective date of the
Guidelines and Thompson did not withdraw before the
Guidelines became effective. See United States v. Thomas,
895 F.2d 51, 57 (1st Cir. 1990).
Thompson next contests the calculation of the quantity
of drugs for which he is accountable. Thompson's principal
contributions to the venture did not lie in particular drug
transactions but rather in the provision of services to
Innamorati. Thompson helped Innamorati set up his
communications network and ran license plate registry checks
on prospective customers, and Thompson knew Innamorati was a
large-scale distributor. Innamorati himself was responsible
for the importation and distribution of approximately 16
kilograms of cocaine and 450 pounds of marijuana.
The pre-sentence report concluded that Thompson
purchased small quantities of cocaine for personal use
amounting to approximately 46 grams. Further, Thompson
admitted before the grand jury that he had been aware since
1983 or 1984 that Innamorati was distributing cocaine, and
that he often was present in Innamorati's house when
Innamorati possessed large amounts of cocaine. Based on
these facts, the probation officer (and later the court)
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determined that it was reasonable to conclude that Thompson
could have foreseen that Innamorati was dealing in multiple
kilograms. Recognizing that it was engaged in a "highly
speculative task," the probation officer determined that
Thompson could reasonably have foreseen 3.2 kilograms of
cocaine, based on the cocaine purchased and the cocaine he
personally saw in Innamorati's house.
We think the 3.2 kilogram finding is at the low end of
the range of figures that might reasonably have been chosen.
Thompson knowingly assisted Innamorati's drug ring
operations, well aware that Innamorati was involved in the
importation and distribution of large amounts of cocaine. He
saw large caches of cocaine in Innamorati's home and made
purchases for himself, and the district court treated
Thompson favorably by limiting his accountability to these
amounts. The computation of what Thompson himself saw and
bought is necessarily an estimate but is hardly an
implausible one. We see no error.
Thompson argues that the court wrongly increased his
base offense level under U.S.S.G. 3B1.3, which provides for
a two-level enhancement if "the defendant abused a position
of public or private trust . . . in a manner that
significantly facilitated the commission or concealment of
the offense." The court based this enhancement on the fact
that Thompson had worked as a Massachusetts Registry police
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officer from 1978 until some time around 1985 and used that
position to gain access to the registry computer and provide
license plate checks to Innamorati.
Employment as a registry police officer clearly
qualifies as a "position of public . . . trust" within the
meaning of the Guideline. E.g., United States v. Rehal, 940
F.2d 1, 5 (1st Cir. 1991) (police sergeant). Although we
have found no case law on point, we do not believe it matters
that Thompson was no longer employed with the registry at the
time he provided the information to Innamorati, so long as he
abused the access that his former position afforded him. The
Guideline itself does not limit its application to cases in
which the defendant is employed at the time, and the
underlying policy appears to apply to this case.
If and when others among the public could gain access to
motor vehicle information in the registry is not entirely
clear. But the evidence at trial indicated that Thompson's
prior employment made it easier for Innamorati to do so.
There was police testimony that it was improper for anyone to
perform a check without a valid law enforcement purpose, a
test that Thompson's activities clearly did not meet. Given
these facts, we do not believe that the sentencing judge
committed clear error by concluding that Thompson abused a
position of public trust. See Rehal, 940 F.2d at 5 (applying
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"clearly erroneous" standard of review to abuse-of-trust
adjustment under section 3B1.3).
Finally, Thompson argues that the court erred by failing
to award him a four-level reduction as a "minimal
participant" under section 3B1.2(a). A "minimal" participant
is defined as one who is "plainly among the least culpable of
those involved in the conduct of a group." U.S.S.G. 3B1.2
comment note 1. A "minor" participant"-- defined as one "who
is less culpable than most other participants, but whose role
could not be described as minimal," id. (n.3) -- is entitled
to a two-level reduction under U.S.S.G. 3B1.2(b). The
Guideline also permits the court to award a three-level
decrease to persons whose participation was more than minimal
but less than minor. The four-level "minimal participant"
adjustment was intended to be applied "infrequently"; an
example given is an individual recruited as a courier for a
single transaction in an larger enterprise. Id. note 2.
Here, the court concluded that Thompson was not a "minimal
participant" in light of his substantial assistance to and
close association with Innamorati. At the same time, the
court found that Thompson played a limited role in
Innamorati's overall distribution activities, and was not
shown to have cocaine himself or to have shared in the
profits. The court was reasonable, indeed generous, in
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awarding Thompson a three-level reduction for persons falling
in between the "minimal" and "minor" participant categories.
C. Robert DeMarco Sr.
DeMarco Sr. challenges the court's determination that he
is accountable for 4.25 kilograms of cocaine. This finding
was based on the testimony of Callahan at the sentencing
hearing that he distributed an average of a quarter kilogram
of cocaine per month to DeMarco Sr. from January 1987 through
February 1988. It is unclear whether Callahan was including
in this "average" one or both of two initial one-kilogram
sales to DeMarco Sr. But the district judge resolved that
uncertainty by concluding that one of the kilograms was
included in the average and the other was not. This
conclusion was not clearly erroneous. Indeed, Callahan
testified:
I would say the second full kilo was part of the
average. But conservatively speaking, I would say
you could exclude the first kilo and the average
would still be quarter kilo a month.
Thus, the sum of 4.25 kilograms was derived by totalling the
quarter kilogram sales over a thirteen-month period (which
amounts to 3.25 kilograms), and then adding the additional
one-kilogram sale. Although there were discrepancies in
Callahan's testimony as to the quantities and dates of drug
sales to DeMarco Sr., "the court's choice from among
supportable alternatives cannot be clearly erroneous." See
McCarthy, 961 F.2d at 978.
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DeMarco Sr. also argues that the court abused its
discretion by failing to award him the reductions provided
under section 3B1.2 to "minor" or "minimal" participants.
The district court was justified in concluding that DeMarco
Sr. was a major customer whose monthly purchases of quarter
kilograms of cocaine for more than a year helped keep the
conspiracy in operation. Indeed, as the government points
out, only two of the defendants--Innamorati and Grady--had
more cocaine attributed to them at sentencing than DeMarco
Sr. We find no error in the court's refusal to grant a
downward adjustment.
D. William Letters
The court found that Letters was responsible for 510
grams of cocaine. This was less than a third of the amount
attributed to Letters by the probation officer. Tulowiecki
testified at trial that he delivered quarter, half or full
ounces of cocaine at least weekly and often several times per
week to Letters between January 1987 and February 1988.
Taking an average of one ounce or 28 grams per week over this
fourteen-month period, the probation officer determined that
Letters should be held responsible for approximately 1588
grams. For reasons that are unexplained, the court reduced
this amount to 510 grams. The court's reduction did not have
a corresponding effect on Letters' sentence, however, since
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the Guidelines supply the same base offense level of 26 for
any quantity between 500 grams and two kilograms.
Despite Tulowiecki's testimony, Letters points out that
the chart prepared from Tulowiecki's drug ledger reflected
the sale of only 336.5 grams of cocaine to Letters. But it
was clear from Tulowiecki's testimony at trial and at the
sentencing hearing that the chart was incomplete; it showed
only sales over a limited period of time and for which there
were written records, not all sales. The chart showed sales
to Letters only for the period June 1987 to February 1988,
whereas Tulowiecki testified that deliveries were made to
Letters starting in January 1987. In sum, although the basis
for the court's calculation of 510 grams does not appear from
the record, the evidence supported a determination of at
least that amount.
Letters also challenges the calculation of his criminal
history category. On March 30, 1990, while Letters was
released on bail pending trial in this case, he was arrested
for possession of cocaine with intent to distribute. Letters
was convicted of that offense in April 1991 and was serving a
sentence on that conviction at the time of sentencing in this
case. This new conviction increased Letters' criminal
history by three points pursuant to U.S.S.G. 4A1.1(a),
which directs the district court to "add 3 points for each
prior sentence of imprisonment exceeding one year and one
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month." Combined with other pertinent information, this
increase gave Letters a total of seven criminal points,
placing him in Criminal History Category IV.
Letters now argues that the March 1990 offense should
not have been included in the calculation because under the
Guidelines "prior sentences imposed in related cases" are to
be treated as one sentence in the criminal history
computation. U.S.S.G. 4A1.2(a)(2). Letters contends that
the March 1990 offense was "related" to the conspiracy for
which he was convicted in this case, and therefore should not
have been separately considered in determining his criminal
history. Letters, however, did not make this argument at
sentencing, in response to the calculation of his criminal
history in the Pre-sentence report or at the sentencing
hearing before the district court. The argument was
therefore waived. See Figueroa, 976 F.2d at 1462. Contrary
to Letters' brief, the statutory provision permitting
appellate review of sentencing errors, 18 U.S.C.
3742(e)(1), does not disturb the long-standing rule that
claims must first be made in the district court to preserve
them for review.16
16Even if the issue had not been waived, there is
substantial reason to believe that Letters' March 1990
offense occurred after the end of the Innamorati conspiracy.
The DEA search warrants were executed in February 1988 and by
March 1988 Innamorati was in prison on a state-court
conviction.
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E. James Litterio
Litterio contends that there was insufficient evidence
to support the district court's determination that he is
responsible for 1.7 kilograms of cocaine. The 1.7 kilogram
figure is based on Tulowiecki's testimony that he delivered
small amounts of cocaine to Litterio several times a week
between January 1987 and February 1988 (based on a
conservative estimate of 10 grams per week, the total amount
was fixed at 600 grams); on evidence that Litterio provided
four ounces (112 grams) of cocaine to his brother Mark that
were then sold to undercover agents; and on Tulowiecki's
testimony that soon after the four-ounce deal Litterio
ordered an additional kilogram of cocaine from Innamorati,
although the deal was canceled when it was discovered that
undercover officers might be involved.
Although Litterio argues that he should not be held
responsible for cocaine that he purchased for personal use,
this confuses the standard for criminal liability with that
for sentencing accountability. Purchases by an addict or
casual user for personal use may not automatically make one a
member of a conspiracy to distribute. The situation is quite
different where, as here, the evidence shows that there was a
conspiracy and that a defendant was a member. At that point,
that defendant's purchases for personal use are relevant in
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determining the quantity of drugs that the defendant knew
were distributed by the conspiracy.
F. John Boisoneau
The court held Boisoneau responsible for 316.52 grams of
cocaine and sentenced him to 33 months imprisonment, which
was at the bottom of the applicable range. The calculation
of 316 grams included approximately 250 grams of cocaine that
Boisoneau observed on one occasion while visiting the
Edgewater Hills safehouse. When Boisoneau saw this "hunk" of
cocaine he told Innamorati to put it away because it made him
nervous. Boisoneau argues that in light of his reaction to
the 250 grams of cocaine it was unreasonable for the court to
hold him accountable for that amount at sentencing.
The standard in computing the quantity of drugs is the
amount of cocaine that Boisoneau reasonably should have
foreseen to have been embraced by the conspiracy that he
entered. See O'Campo, 973 F.2d at 1026. The 250 grams of
cocaine that Boisoneau observed in Innamorati's safehouse is
reasonably included in determining the total amount of
cocaine that Boisoneau could have foreseen, regardless of
whether the amount made him nervous. If there were evidence
that Boisoneau effectively withdrew from the conspiracy after
he saw the "hunk" and realized the scope of Innamorati's
operation, this would be a different case, but there is no
evidence of any such withdrawal.
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* * *
In these ten appeals, somewhere between 50 and 100
points were raised by individual defendants, although there
is some overlap. We have addressed those that appeared
substantial and we have considered without discussion a
number of others that were plainly without merit, were raised
in a perfunctory fashion, or both. Because of the number of
claims, the defendants' briefs were reviewed again after the
opinion was prepared to make certain that no claim of error
was overlooked. The judgments are affirmed except that
the judgment of conviction of defendant Grady on Count 4 is
vacated and his case is remanded for resentencing.
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