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USCA1 Opinion
November 29, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1714
UNITED STATES OF AMERICA,
Appellee,
v.
FREDERIC W. BERTHOFF,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge] ___________________
____________________
Selya, Circuit Judge, _____________
Coffin, Senior Circuit Judge, ____________________
and Cyr, Circuit Judge. _____________
____________________
Michael C. Andrews, with whom Brian J. McMenimen was on brief for __________________ __________________
appellant.
William C. Brown, Attorney, Appellate Division, Department of _________________
Justice, with whom Donald K. Stern, United States Attorney, was on ________________
brief for appellee.
CYR, Circuit Judge. Along with five associates, CYR, Circuit Judge. ______________
appellant Frederic W. Berthoff was indicted on seventeen felony
charges. Following a jury trial, he was convicted of conspiring
to possess marijuana and hashish with intent to distribute, 21
U.S.C. 841, 846 (Count 1), possessing hashish with intent to
distribute, id. 841 (Count 2), and money laundering, 18 U.S.C. ___
1956(a) (Counts 7-14). We affirm the district court judgment.
I I
BACKGROUND1 BACKGROUND __________
On several occasions between 1984 and 1986, Berthoff
enlisted Brad Welch, Stephen Marble and Albert Mello to transport
marijuana and its proceeds from Florida and Arizona to Massachu-
setts. Berthoff himself went along on at least one trip. In
addition, between 1984 and 1991 Berthoff sold large quantities of
marijuana to or through Welch, Mello, Thomas Cimeno, and Wes
Schifone.
During the 1986-87 period, Berthoff expanded the scope
of his illegal drug operation by arranging to finance and import
4,000 pounds of hashish from Portugal for distribution in the _______
United States. Some of the hashish was stored at Berthoff's
Massachusetts residence. It was sold both within Massachusetts
and elsewhere. In 1988, Scott Holland, a coconspirator in the
hashish importation, was arrested on unrelated criminal charges.
____________________
1We relate the evidence in the light most favorable to the
verdicts. United States v. Tuesta-Toro, 29 F.3d 771, 773 (1st _____________ ___________
Cir. 1994), cert. denied, 115 S. Ct. 947 (1995). _____ ______
2
Shortly thereafter, Berthoff reassured another coconspirator,
Cimeno, that Holland would not inform on them because Berthoff
was selling Holland's share of the hashish, and holding the
proceeds for Holland.
In November 1988, Berthoff and Mello traveled to
Zurich, Switzerland, where they opened a bank account and depos-
ited $90,000 in drug proceeds. Upon his return to Massachusetts,
Berthoff wrote the Swiss bank and authorized a $75,000 withdrawal
and wire transfer to Mello in Massachusetts. After Mello re-
ceived the transfer, he drove to Key West, Florida, and deposited
the proceeds in a bank account previously established for the
purpose. The funds eventually were transferred by Mello into a
corporate bank account controlled by Berthoff. On another
occasion, Berthoff made a $100,000 interest-free loan from
illegal drug proceeds to Cimeno, insisting that Cimeno repay the
loan with checks identifying the payments as returns on a real
estate investment.
II II
DISCUSSION DISCUSSION __________
A. Count 1 A. Count 1 _______
Count I charged Berthoff and five codefendants with
conspiring to possess and distribute marijuana and hashish
between 1984 and 1991. Berthoff contends that the government
improperly charged a single ongoing drug-distribution conspiracy
which encompassed all the alleged marijuana and hashish transac-
tions, and that it did so because all but the 1987 hashish- ___ ___
3
related conduct would have been time-barred had separate conspir-
acies been charged. Thus, he asserts, a single conspiracy was ______
alleged in order to fortify the government's weak case against
Berthoff relating to the hashish by enabling otherwise inadmissi-
ble "prior bad acts" evidence (i.e., pre-1988 marijuana-related ________ _________________
conduct) to be introduced at trial. See Fed. R. Evid. 404(b). _______ ___
Finally, as Berthoff sees it, the government's evidence rational-
ly could support only an inference that he had engaged in a
series of isolated buy-sell arrangements (viz., multiple conspir- ______
acies), see United States v. Townsend, 924 F.2d 1385, 1394 (7th ___ _____________ ________
Cir. 1991), and thus the evidence worked a material variance from
the single conspiracy charged in the indictment.
The existence, vel non, of a single conspiracy is an ___ ___
issue of fact. See United States v. Oreto, 37 F.3d 739, 747 (1st ___ _____________ _____
Cir. 1994), cert. denied, 115 S. Ct. 1161 (1995). Thus, an _____ ______
appellant is faced with "a ``heavy burden' to show the evidence
precludes the findings made by the jury." Id. (citation omit- ___
ted). Viewing the evidence and all fair inferences therefrom in
the light most favorable to the government, a guilty verdict will
not be disturbed unless no rational jury could have found that
each element of the offense was established beyond a reasonable
doubt. See United States v. Tuesta Toro, 29 F.3d 771, 776 (1st ___ _____________ ____________
Cir. 1994), cert. denied, 115 S. Ct. 947 (1995). _____ ______
We find that the variance claim fails because the
government adduced sufficient evidence at trial to enable a
rational inference that there was a single conspiracy, as alleged
4
in the indictment. See, e.g., United States v. Bello-Perez, 977 ___ ____ _____________ ___________
F.2d 664, 667-68 (1st Cir. 1992) ("pursuant to their tacit or
express agreement, [the conspirators] knowingly and intentionally
'directed their efforts towards the accomplishment of a common
goal or overall plan' to commit the substantive offense charged
in the indictment.") (citation omitted). The overarching goal of
Berthoff's constantly expanding operation was drug trafficking,
whether in marijuana or hashish. The government established that
there was a significant overlap in the timing of the marijuana
and hashish operations, as well as consistent methods of operat-
ing, participants, and locations. See, e.g., United States v. ___ ____ ______________
David, 940 F.2d 722, 734 (1st Cir. 1991) (outlining factors _____
distinguishing single conspiracies from multiple conspiracies),
cert. denied, 504 U.S. 955 (1992). For example, though Berthoff _____ ______
maintains that he "hired" Welch, Marble, and Mello to make only
one-time trips from Florida to Massachusetts prior to 1986, with ________
no contemporaneous expectation or plan to "hire" them for subse-
quent jobs, the jury could have found otherwise based on Mello's
testimony alone. Mello testified, in pertinent part: "Q.
[defense counsel]: You did that trip [to Florida], you got paid,
and that was a closed chapter as far as that trip was concerned,
right? . . . So you had no idea whether or not you would be asked
to make another trip a month later, did you? A. [Mello]: I had a
pretty good idea I'd be asked." We conclude that there was no
variance.
Berthoff next contends that the district court should
5
have instructed the jury that it could not convict unless it
found a single conspiracy. Since Berthoff asserted no contempo-
raneous objection, see Fed. R. Crim. P. 30, we review only for ___
plain error. See United States v. Olano, 113 S. Ct. 1770, 1776- ___ _____________ _____
77 (1993) ("plain error" is error that is both "obvious" and
"seriously affects the fairness, integrity or public reputation
of the judicial proceedings"). There was no error, plain or
otherwise. A refusal to give a particular jury instruction
cannot be challenged successfully on appeal if the charge given
by the court substantially covered the requested matter. See ___
United States v. Boylan, 898 F.2d 230, 244 (1st Cir.), cert. ______________ ______ _____
denied, 498 U.S. 849 (1990). Here, the district court gave an ______
adequate instruction.2
B. Count 2 B. Count 2 _______
Count 2 charged that Berthoff possessed hashish, with
intent to distribute. The jury was misinstructed that "you may
not convict any of these people of this charge unless the infer-
ence that you draw convinces you beyond a reasonable doubt that
the person accused intended to distribute the marijuana or ___ _________ __
hashish or cause its distribution." Although the district court,
____________________
2The final charge informed the jury as follows: "Now, where
persons join together to further one common unlawful design or
purpose, a single conspiracy exists. By way of contrast, multi-
ple conspiracies exist when there are separate unlawful agree-
ments to achieve distinct purposes. Proof of several separate
and independent conspiracies is not proof of a single overall
conspiracy charged in the indictment unless, of course, one of
the separate conspiracies proved happens to be the single con-
spiracy described in the indictment." See Oreto, 37 F.3d at 747. ___ _____
6
on five other occasions in its final charge, correctly instructed
on the evidentiary showing required to convict under Count 2
(viz., that conviction could not be based on Berthoff's post-1987
possession of marijuana only), Berthoff contends that this _________ ____
inadvertence constituted a constructive amendment of the indict-
ment. See, e.g., United States v. Vavlitis, 9 F.3d 206, 210 (1st ___ ____ _____________ ________
Cir. 1993). Since there was no contemporaneous objection, we
review for plain error. Olano, 113 S. Ct. at 1776.3 _____
Evaluating the jury instructions as a whole, see ___
Boylan, 898 F.2d at 244, we find no "possibility that the convic- ______
tion [on Count 2] rest[ed] upon an offense not charged." United ______
States v. Dunn, 758 F.2d 30, 36 (1st Cir. 1985). As the trial ______ ____
court instructed the jury, the only evidence that Berthoff's ____ ________
codefendant Scott Holland may have been connected to the conspir-
acy charged in Count 1 was Berthoff's admission to Cimeno, in __
1988, that he was holding Holland's share of the hashish and that ____
he would sell it and hold the proceeds for Holland's benefit.4 4
____________________
3Berthoff incorrectly claims on appeal that the verdict form
exacerbated this instructional error. Quite the contrary, the
verdict form indicated that Count 2 charged "possession of
marijuana and hashish." The conjunctive phrasing could only _________ ___
heighten the government's burden of proof. See, e.g., United ________ ___ ____ ______
States v. Cantrell, 999 F.2d 1290, 1292 (8th Cir. 1993), cert. ______ ________ _____
denied, 114 S. Ct. 885 (1994). In all events, since the indict- ______
ment went to the jury room during deliberations, and the district
court correctly instructed with respect to Count 2 on five other
occasions, we discern no plain error.
4Berthoff argues that it was error to deny his motion to
strike the testimony of three alleged coconspirators (Mello,
Cimeno and Schifone) who testified against Berthoff at trial in
return for a government promise to recommend a "substantial
assistance" departure. See U.S.S.G. 5K1.1. We find no error. ___
See United States v. Dailey, 759 F.2d 192, 196 (1st Cir. 1985) ___ _____________ ______
7
Thus, the jury could not have convicted Holland on Count 1, as it
did, unless it found that Berthoff had made a truthful statement
to Cimeno in 1988 that Berthoff then possessed, and was then
distributing, Holland's share of the hashish, see supra p. 3, the ___ _____
identical predicate finding needed for Berthoff's conviction on
Count 2.
C. Counts 7-14 C. Counts 7-14 ___________
Count 7 charged that "[o]n or about February 10,
1989,"5 Berthoff laundered drug proceeds "in Massachusetts and
in the Southern District of Florida" by transferring the Swiss
bank funds to Florida. Berthoff argues that the government
failed to adduce sufficient evidence to establish proper venue in
Massachusetts. See United States v. Georgacarakos, 988 F.2d 1289, ___ _____________ _____________
1293 (1st Cir. 1993) (government must prove venue by preponder-
ance of evidence). We do not agree.
____________________
(noting that where an accomplice testifies pursuant to a plea
agreement, "the 'established safeguards' are that the jury be
informed of the exact nature of the agreement, that defense
counsel be permitted to cross-examine the accomplice about the
agreement, and that the jury be specifically instructed to weigh
the accomplice's testimony with care"); see also United States v. ___ ____ _____________
Rullan-Rivera, 60 F.3d 16, 19 (1st Cir. 1995). _____________
5Berthoff also argues that the Swiss bank funds transfer
arrived in Massachusetts in December 1988, so that the reference
in the indictment that the offense occurred "[o]n or about
February 10, 1989" was fatally misleading. We have not
required "strict chronological specificity or accuracy" when "a
particular date is not a substantive element of the crime
charged." United States v. Morris, 700 F.2d 427, 429 (1st Cir.), _____________ ______
cert. denied, 461 U.S. 947 (1983). Having been charged with _____ ______
laundering funds from Switzerland, through Massachusetts and on
to Florida, Berthoff was in no sense "misinformed of the charges
against him," nor did the reference to an approximate time frame
"otherwise affect[] his substantial rights." United States v. ______________
Arcadipane, 41 F.3d 1, 7 (1st Cir. 1994). __________
8
Normally, venue is proper in any district wherein a
criminal offense was committed. See Fed. R. Crim. P. 18. Fur- ___
ther, "[e]xcept as otherwise expressly provided by enactment of
Congress, any offense against the United States begun in one
district and completed in another, or committed in more than one
district, may be inquired of and prosecuted in any district in __ ___ ________
which such offense was begun, continued, or completed." 18 _________
U.S.C. 3237(a) (emphasis added); see Georgacarakos, 988 F.2d at ___ _____________
1293. The statute further provides that "[a]ny offense involving
the use of mails, transportation in interstate or foreign com-
merce, or the importation of an object or person into the United
States is a continuing offense and, except as otherwise expressly __________ _______
provided by enactment of Congress, may be inquired of and prose-
cuted in any district from, through, or into which such commerce, __ ___ ________ _______
mail matter, or imported object or person moves." 18 U.S.C.
3237(a) (emphasis added). Thus, the actual transfer of the funds
from Switzerland to Mello's Massachusetts residence plainly
enabled the jury to find proper venue in Massachusetts.
Finally, the remaining money laundering charges
Counts 8-14 involved Berthoff's 1988 interest-free "loan" to
Cimeno. Berthoff contends that Cimeno's loan repayments were not
competent evidence of money laundering because Cimeno testified
that he used the loan proceeds to purchase land and construct a
duplex, and that he repaid Berthoff from the "legitimate" pro-
ceeds realized from the subsequent sale of the duplex, rather
than from "proceeds of unlawful activity." This claim is frivo-
9
lous. The jury supportably found that Berthoff arranged the so-
called Cimeno "loan" for the purpose of filtering the illegal
drug proceeds and altering their form so as to appear "legiti-
mate." See United States v. Isabel, 945 F.2d 1193, 1200-03 (1st ___ _____________ ______
Cir. 1991). This finding in no sense entailed a determination
that either the loan to Cimeno, or the acquisition and sale of
the duplex, transformed the illegal drug proceeds previously
deposited in the Swiss bank into proceeds from legitimate activi-
ties.
Affirmed. Affirmed. ________
10
Document Info
Docket Number： 94-1714
Filed Date： 11/29/1995
Precedential Status： Precedential
Modified Date： 3/3/2016