US v. Demarco, Jr.
Case Date: 08/17/1993
Court: United States Court of Appeals
Docket No: 91-1896
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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 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. -14- -14- 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- -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- -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- -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 -18- -18- 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- -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- -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- -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- -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- -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- -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- -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- -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- -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- -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- -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, -30- -30- 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- -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 -32- -32- 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. -33- -33- 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 -34- -34- 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. Innamorat |