US v. Demarco, Jr., (1st Cir. 1993)
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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,
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 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 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 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 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. 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. 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, 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, 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 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. 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 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. 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 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 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). 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,
Zannino, 895 F.2d at 17. For the same reason, we do not discuss Innamorati's brief and conclusory claim of improper variance. 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,
The DEA search warrants were executed in February 1988 and by March 1988 Innamorati was in prison on a state-court conviction. 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 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. * * * 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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This document cites
- U.S. Code - Title 18: Crimes and Criminal Procedure - 18 USC 924 - Sec. 924. Penalties
- U.S. Code - Title 18: Crimes and Criminal Procedure - 18 USC 3742 - Sec. 3742. Review of a sentence
- US Code - Title 21: Food and Drugs - 21 USC 853 - Sec. 853. Criminal forfeitures
- US Code - Title 21: Food and Drugs - 21 USC 848 - Sec. 848. Continuing criminal enterprise
- US Code - Title 21: Food and Drugs - 21 USC 846 - Sec. 846. Attempt and conspiracy
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