United States v. Maggiolo

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4802
RICHARD MAGGIOLO, a/k/a Richard
Kevelier,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Terrence W. Boyle, Chief District Judge.
(CR-96-62-BO)
Submitted: July 7, 1998
Decided: July 20, 1998
Before WILLIAMS and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
James M. Ayers, II, New Bern, North Carolina, for Appellant. Janice
McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Yvonne V. Watford-McKinney, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Richard Maggiolo was convicted by jury of conspiracy to possess
with intent to distribute cocaine base in violation of 21 U.S.C. § 846(1994). Maggiolo alleges that the Government produced insufficient
evidence to convict him of the offense. Finding no error, we affirm.
Maggiolo was indicted with many other individuals in a far-
reaching cocaine conspiracy. Daniel Marte was the leader of the large
scale organization that distributed narcotics from Marte's apartment
and pizzeria in New York City to dealers in New York City, Hender-
son, North Carolina, and Ohio. Marte employed Maggiolo as well as
numerous individuals to staff his large enterprise.
At trial, Maggiolo denied any involvement in the conspiracy. He
claimed to have acted only as a caretaker for Marte, who was para-
lyzed. Maggiolo testified that he would bathe and dress Marte and
occasionally drive him places. Although Maggiolo did not have any
physical therapy training, he stated that he would provide therapy to
Marte, including massages.
Maggiolo testified that he worked for Marte for only three to four
months. Maggiolo claims that toward the end of his employment,
Marte asked him to go to Henderson, North Carolina, and pick up a
contract for the sale of the pizzeria. Maggiolo testified that he flew
to Henderson on one airline, checked into a hotel, received an enve-
lope from an anonymous person, and returned to New York City
using a different airline. He stated that when he gave the envelope to
Marte, he saw that it had cash in it. Marte handed Maggiolo one hun-
dred dollars for making the trip. A few days later, Maggiolo discov-
ered a shoe bag full of money in Marte's closet. He testified that he
became scared after that and left Marte's employment that day and
did not continue to take care of Marte.
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The Government presented evidence that Maggiolo's involvement
with Marte and his conspiracy was much more extensive than Mag-
giolo admitted. The Government presented the testimony of Daniel
Marte, Carlos Villalona, and Rafael Reyes, all charged and convicted
co-conspirators of Maggiolo, and Charles Thompson, a postal inspec-
tor who began investigating the case in North Carolina. At the time
of their testimony in Maggiolo's trial, Marte had already been tried
and convicted and Villalona and Reyes had pled guilty.
The testimony of the co-conspirators revealed that Maggiolo had
extensive involvement in the conspiracy. Marte testified that he taught
Maggiolo how to cook crack cocaine and that, although he was not
sure of the exact amount Maggiolo cooked for him, he estimated that
it was at least "many kilo[gram]s." (JA 30). Marte also testified that
Maggiolo would count money from distribution proceeds for him.
Finally, Marte testified that Maggiolo volunteered to travel by plane
to Henderson, North Carolina, for him in mid-1993. He testified that
Maggiolo flew to Henderson to meet a distributor and give him 250
grams of cocaine base to sell. Marte stated that Maggiolo returned
with $14,000 to $15,000 of proceeds from the sale.
Carlos Villalona testified to his own involvement in the conspiracy
and that of Maggiolo. He testified that twice each week, over a six to
seven month period, he would deliver proceeds from sales of cocaine
in either North Carolina or Ohio to Maggiolo and/or two or three
other individuals. Each time the amount was approximately $250,000.
Rafael Reyes testified that he saw Maggiolo count over $300,000 at
one time.
Maggiolo argues that the testimony of his three co-conspirators
was not sufficient to convict of the conspiracy count. He alleges that
their testimony is uncorroborated and uncertain concerning dates and
amounts. He also alleges that their testimony is not credible because
they hoped for reductions in their sentences for their cooperation in
his prosecution. A co-conspirator's uncorroborated testimony is
admissible and sufficient upon which to base a conviction. See United
States v. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993). Further, the
credibility of witnesses is a jury determination, and will not be dis-
turbed on appeal. See United States v. Saunders , 886 F.2d 56, 60 (4th
Cir. 1989); Pigford v. United States, 518 F.2d 831, 836 (4th Cir.
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1975). The Assistant United States Attorney elicited testimony as to
why the witnesses were testifying and what they hoped to receive in
return. Maggiolo's counsel also inquired into the reasons for their tes-
timony. Accordingly, we will not disturb the jury's credibility find-
ings.
Maggiolo alleges that the Government presented insufficient evi-
dence at trial to convict him of the conspiracy charge. We honor the
rule that a jury verdict "``must be sustained if there is substantial evi-
dence, taking the view most favorable to the Government, to support
it.'" See United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)
(quoting Glasser v. United States, 315 U.S. 60, 80 (1942)), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No.
96-6868). After reviewing the evidence presented by the Government
and Maggiolo at trial, we conclude that the jury had sufficient evi-
dence to support the conviction.
Maggiolo also states in his brief that it is inequitable for his co-
conspirators to receive lesser sentences than he did. However, the dis-
trict court is not required to consider the sentence of a co-defendant.
See United States v. Foutz, 865 F.2d 617, 621 (4th Cir. 1989). Thus,
Maggiolo's disparate sentence claim is meritless.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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