
USCA1 Opinion

	




          January 20, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-1772                                    UNITED STATES,                                      Appellee,                                          v.                                   GEORGE A. MORAN,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            James L. Sultan with  whom Margaret H. Carter  and Rankin & Sultan            _______________            __________________      _______________        were on brief for appellant.            George  W. Vien,  Assistant United  States Attorney,  with whom A.            _______________                                                 __        John  Pappalardo,  United  States  Attorney,  and  Heidi  E.  Brieger,        ________________                                   __________________        Assistant United States Attorney, were on brief for appellee.                                   ____________________                                 ____________________                 BOUDIN, Circuit Judge.   Appellant George  Moran and two                         _____________            co-defendants  were convicted by a jury, after a joint trial,            of  various  drug  offenses.    Moran  was  found  guilty  of            conspiring  to distribute  cocaine and  was acquitted  on two            other counts charging him with specific acts of distribution.            All of  the defendants have  appealed, but  the evidence  and            issues  relating to  Moran differ  from those  concerning the            other  defendants  and   we  decide   his  case   separately.            Concluding  that  the  evidence  was  sufficient  to  sustain            Moran's  conviction  for  conspiracy  and  finding  no  other            errors, we affirm.                 The  procedural  history  can  be briefly  stated.    On            August 9, 1990, Moran  and a number  of others were  indicted            under 21  U.S.C.   846  for conspiring to  distribute cocaine            and,  in  other  counts pertaining  to  one  or  more of  the            defendants, with  distribution and  related crimes.   The co-            conspirators   charged  in  the   umbrella  conspiracy  count            included Moran,  the alleged  ringleader  Hobart Willis,  and            others.    Before  trial,  Willis and  three  others  pleaded            guilty.   Moran  and  two  other  defendants  were  tried  in            February  1991 and  convicted on  one or  more counts.   This            appeal followed.                                          I.                 Moran's central  argument on  appeal is the  often made,            but rarely successful, claim that the evidence was inadequate                                         -2-                                         -2-            to  support the verdict against  him.  In  appraising such an            argument, we  "assess the  sufficiency of the  evidence as  a            whole, including all reasonable inferences, in the light most            favorable to  the verdict . .  . ."  United  States v. Lopez,                                                 ______________    _____            944 F.2d  33, 39 (1st Cir. 1991).  So viewed, we ask "whether            a  rational trier  of  fact could  have  found the  defendant            guilty beyond a reasonable  doubt."  Id.  In  general, issues                                                 __            of credibility are  resolved in  favor of the  verdict.   Id.                                                                      __            "The  evidence   .  . .  need  not exclude  every  reasonable            hypothesis of  innocence; that is, the  factfinder may decide            among reasonable interpretations of the evidence."  Id.                                                                __                 In  this  case Moran  was  tried  on the  charge,  among            others, that he conspired  with Willis and his co-defendants.            The  "essence" of  conspiracy  is an  agreement  to commit  a                                                  _________            crime, Ianelli v. United  States, 420 U. S. 770,  777 (1975),                   _______    ______________            here,  an agreement  between Moran  and others  to distribute            drugs.   Such an agreement  may, of course,  be inferred from            other evidence  including a course of conduct.  United States                                                            _____________            v. Concemi, 957  F.2d 942,  950 (1st Cir.  1992).  More  than               _______            that,  while  the term  "agreement"  is  customarily used  in            defining  conspiracy   and  is  properly  employed   in  jury            instructions, the agreement of  the defendant with others may            be  implicit in  a working  relationship between  the parties            that has never been articulated but nevertheless amounts to a            joint criminal enterprise.                                         -3-                                         -3-                 In this case, taking the evidence  most favorably to the            government, the jury could  have found from direct testimony,            telephone  recordings  and  other  evidence  that  Willis was            engaged  in  a  drug  distribution  conspiracy  with  various            persons during 1988.   As to Moran, the evidence  against him            came almost  entirely from one Paul  Callahan, who cooperated            to  some extent  with  the  Drug Enforcement  Administration.            Callahan's  trial  testimony  came  freighted with  his  long            criminal record, admissions that he procured  false testimony            in  other  proceedings,  and   his  incentive  to  favor  the            government   in  order  to  secure  favorable  treatment  for            himself.  Nevertheless, his testimony was not incredible, was            corroborated on  certain limited points, and  was essentially            uncontradicted.  Thus the jury was entitled to accept some or            all of Callahan's testimony.                   According to Callahan,  he first met  Moran in 1981  but            had no further contact with him until  June or July 1988 when            he had a friend give Moran his beeper number.  Callahan  then            met  with Moran and sought to purchase  cocaine from him in a            substantial  amount.  Moran replied that he would contact the            "fat man"  (understood by  Callahan to  be Willis)  with whom            Moran  said he  was  dealing  at the  time.    At their  next            meeting, Moran told  Callahan that the fat  man's prices were            too high  but that Moran had another source in the North End.            Moran also said  that he was  going to try  to get a  cheaper                                         -4-                                         -4-            price from "Mary," a  friend of the fat man  later identified            by Callahan  as  a member  of  Willis' ring.    Subsequently,            Callahan and Moran met again and Callahan purchased 500 grams            of cocaine from Moran, after testing it for purity.                 Some  weeks  later,  Callahan again  contacted  Moran, a            further   meeting  ensued,   and   Moran  told   Callahan--in            Callahan's words--that  he (Moran)  was "still looking  in to            ingratiate with the  fat guy."   At the  next meeting,  Moran            offered  a package of what Callahan took to be cocaine; Moran            explained that it came from the fat guy.  The  contents had a            diesel  smell and Callahan rejected the package on the ground            that  his own customers would not  accept it.  Moran left and            then returned several hours later with a kilo of cocaine from            an unidentified source.  Callahan  tested the new package and            purchased a half kilo.                 The  final evidence relating  directly to Moran involved            two telephone calls between him and Callahan in October 1988.            The first call was not tape recorded.  According to Callahan,            Moran  complained during  the call  that federal  agents were            scrutinizing  him.   On cross-examination  Callahan indicated            that  Moran also said during  the call, "I  saw the Pillsbury            Boy  a few  days ago, but  that was  just to  say hi. . . . I            don't have nothing to do with those guys."  Callahan told the            jury that the Pillsbury Boy was Willis.                                         -5-                                         -5-                 The second  conversation occurred  a week later,  it was            tape  recorded with  DEA  assistance, and  the recording  was            offered at trial.   In this conversation  Moran, referring to            his  prior questioning  by federal agents,  said that  it had            occurred  because the agents had seen him with "fatso" two or            three times.  Callahan said he had heard that the fat guy was            being  scrutinized  by  law   enforcement  agents  and  Moran            replied, "Oh, my God.   Unbelievable.  I already told him and            his  first lieutenant,  I  says, I  think  somebody made  you            expendable."     At  trial  Callahan   identified  the  first            lieutenant   as   Mary.     Callahan   concluded  the   taped            conversation by asking Moran, "Can  we do some business?" and            Moran  essentially agreed  (although no  evidence of  further            transactions between them was offered).                 This, omitting  a few intervening  conversations between            Moran and Callahan that add nothing pertinent, is the gist of            the  evidence against Moran.   The  jury, after  hearing this            evidence and evidence of Willis' ring, acquitted Moran of the            two distribution counts  based on the  sales to Callahan  but            convicted  him of conspiracy.  The reason for the discrepancy            is  unclear.  Possibly the jury hesitated to rely solely upon            Callahan to prove the sales, but thought that the tape of the            second  conversation  confirmed  Moran's   relationship  with            Willis regarding drug distribution.  But the discrepancy does            not matter.   The question presented  now is whether,  having                                         -6-                                         -6-            heard the evidence, including  nuances and intimations that a            cold record cannot capture, a rational jury could find beyond            a reasonable doubt that Moran was guilty of conspiracy.                 No court lightly overturns a jury verdict on the  ground            that  the jury  lacked  sufficient evidence,  for the  jury's            central role and competence is to weigh the evidence and find            the facts.   Yet the issue  here, or at  least the aspect  we            find troubling, actually  poses the "legal" question  whether            the conduct  the jury  could reasonably  have  found to  have            occurred amounts to a  conspiracy under the statute.   In our            view, the  jury here had  no rational  basis to infer,  as it            often  may  in  conspiracy  cases,  that  the  defendant  was            effectively an employee  or a formal  "share partner" in  the            ring.   The  most  that the  jury  could find  without  sheer            speculation was that the  relationship was what was portrayed            on the  surface.  At this  point we are driven  back to first            principles to determine whether this relationship amounted to            a criminal conspiracy.                 Our starting point is the legal definition of conspiracy            as an  agreement  by the  defendant  with another  person  or            persons to commit the  crime in question.  Ianelli,  420 U.S.                                                       _______            at 777; United  States v. Glenn, 828 F.2d 855,  857 (1st Cir.                    ______________    _____            1987).   The evidence in  this case, taken  most favorably to            the government,  shows that Willis  agreed to supply  Moran a            package which  Moran represented  to be cocaine,  which Moran                                         -7-                                         -7-            tendered  to Callahan,  and which  Callahan then  rejected as            tainted with a  diesel smell.  This connection  between Moran            and Willis is bolstered, or so  the jury could have found, by            Moran's prior use of Willis as a source of supply, by Moran's            unsuccessful  initial effort  to  buy drugs  from Willis  for            Callahan,  by  Moran's  desire  to  ingratiate  himself  with            Willis, by  Moran's encounters  with Willis  and Mary and  by            Moran's knowledge that Willis was under federal scrutiny.  On            appeal,  the  government  argues  that  the  evidence  surely            demonstrates a conspiracy either  as charged (with Willis and            others) or, at the very least, between Moran and Willis.                 An  agreement surely  existed between  Willis  and Moran            relating  to drugs.    But if  the  evidence showed  only  an            agreement  by Willis  to sell  drugs to  Moran, it  would not            necessarily  show  them   to  be   co-conspirators  in   drug            distribution.   There is substantial law,  including cases in            this circuit, that a single drug sale  does not automatically            make  buyer and  seller  co-conspirators.   United States  v.                                                        _____________            DeLutis,  722  F.2d  902,  906 (1st  Cir.  1983)  (collecting            _______            cases). This  "rule" in  varying forms prevails  or has  been            intermittently adopted in a number of circuits, including the            Second,  Fifth,  Sixth, Seventh  and  Eighth.   E.g.,  United                                                            ___    ______            States  v. Douglas, 818 F.2d  1317, 1321 (7th  Cir. 1987) ("a            ______     _______            mere    buyer-seller    relationship,   without    more,   is            inadequate").                                           -8-                                         -8-                 Surprisingly  the reason for excluding such buyer-seller            cases  from the definition of conspiracy is not wholly clear,            and some explanation  is needed since even  an unplanned sale            involves  an  agreement  between  seller and  buyer  and  the            offense  of drug distribution (at least by the seller).  Some            have thought  it to follow  from the so-called  Wharton rule,            now much reduced in  force by Iannelli v. United  States, 420                                          ________    ______________            U.S. 770 (1975), that a  crime legally requiring a  plurality            of actors (e.g., dueling) should not have a conspiracy charge                       ___            superimposed upon it.   Other courts have felt that  a single            purchase   and  sale  do   not  involve  the   union  of  two                                                           _____            participants in a manner that increases either the likelihood            that the individual crime  will be committed or that  the two            will extend their joint  endeavor to new crimes.   The latter            explanation has force in  the case of an unplanned  spot sale            with no agreement beyond that inherent in the sale.  It makes            less sense  where the agreement is to make a sale at a future            point, an  agreement that  does increase the  likelihood that            the crime will be  committed.  Yet even  in the latter  case,            the  transaction  may seem  to some  to  lack the  quality of            jointness--the  hallmark  of  conspiracy--in the  sense  that            seller  and   buyer  are  not  part  of   the  same  criminal            enterprise.                     This may  seem a fine point  but it is one  that goes to            the  root  of conspiracy  law:   conspiracy  is treated  as a                                         -9-                                         -9-            separate crime because of  the jointness of the endeavor.   A                           _______            multiplicity of actors united to accomplish the same crime is            deemed to present a  special set of dangers, either  that the            criminal end will be achieved, Callanan v. United States, 364                                           ________    _____________            U.S.  587, 593 (1961), or that the conspiracy will carry over            to new crimes, United  States v. Rabinowich, 238 U.S.  78, 88                           ______________    __________            (1915),  or both.   See 2 W.  LaFave & A.  Scott, Substantive                                                              ___________            Criminal Law   6.4(c) (1986) (summarizing the rationale).  It            ____________            is these  dangers stemming from jointness  that justify early            intervention to  stem conspiracies  even before they  rise to            the  level of attempts and to impose a separate punishment on            the conspirators  even if  they fail  to achieve  their ends.            This  special set  of dangers is  present if  two individuals            agree that one  of them will sell cocaine and  the other will            assist;  it is arguably not  present if one  merely sells the            same cocaine  to another  without prearrangement and  with no            idea of or interest in its intended use.  In the latter case,            both may  be guilty--one  of distribution  and  the other  of            possession--but  without  more  they  are  not  conspirators.            Glenn, 828 F.2d at 858.            _____                 At some point the relationships  converge.  A pattern of            sales  for resale  between  the same  persons, together  with            details supplying a context  for the relationship, might well            support a  finding of  conspiracy.   Id. at 857-58.   Even  a                                                 __            single  sale for resale, embroidered with evidence suggesting                                         -10-                                         -10-            a joint undertaking between  buyer and seller, could suffice.            United  States v. Carbone, 798  F.2d 21, 27  (1st Cir. 1986).            ______________    _______            Common  knowledge, interdependence,  shared  purpose and  the            other  ingredients of  a  conspiracy are  matters of  degree.            Almost everything in such a case depends upon the context and            the details.    The  evaluation  of the  facts  is  entrusted            largely to the jury.                 In  this case, taking  a practical rather  than a formal            view of the matter, we believe that the  jury was entitled to            conclude that  the arrangement amounted  to a  conspiratorial            agreement between  Willis and  Moran for the  distribution of            drugs.   Based  on testimony  that the  jury was  entitled to            credit, Moran  (according to  Callahan) admitted that  he was            dealing with Willis, an  admission suggesting that Willis had            supplied Moran with drugs in the past.  Moran then  turned to            Willis as his  first choice  of supplier in  seeking to  fill            Callahan's first order.  Although Willis' price  was too high            for this  first transaction, for the  second one Moran--after            expressing  his  desire  to  bolster  his  relationship  ("to            ingratiate  with the fat guy")--again turned to Willis.  This            time Moran did  acquire from Willis a  resale sized quantity,            even  though  Callahan  then  rejected the  shipment.    This            picture of a continuing sale-for-resale relationship, even if            Willis  was not  the  exclusive supplier,  was reinforced  by            Moran's other contacts with  Willis and knowledge of his law-                                         -11-                                         -11-            enforcement jeopardy.  See United States  v. Anello, 765 F.2d                                   ___ _____________     ______            253, 261 (1st Cir.), cert. denied, 474 U.S. 996 (1985).                                 ____  ______                 We  think  that a  realistic  appraisal  of Moran's  and            Willis' relationship  would permit  a  jury to  find that  it            amounts  to  an  implicit   agreement  and  comprehends   the            continuing supply by one to the other  of drugs for resale to            customers.  See United States v. Geer, 923 F.2d 892, 895 (1st                        ___ _____________    ____            Cir. 1991).  Even  though Moran was not  an employee nor  did            Willis  and Moran formally divide the profits, in this case a            jury could conclude that both Willis and Moran had an ongoing            stake in the success of Moran's  own sales of the drugs Moran            acquired  from Willis.  See Glenn,  828 F.2d at 857-58.  From                                    ___ _____            those sales Moran could profit directly and Willis indirectly            through  the maintenance  of  the  drug distribution  channel            crucial for a drug  network.  See generally Direct  Sales Co.                                          ___ _________ ________________            v.  United  States, 319  U.  S.  703, 717  (1943).   Such  an                ______________            arrangement,  we think, is  not only an  agreement within the            ordinary  conspiracy-law ambit  but  is one  that unites  two            participants   in  seeking   to  accomplish   the   crime  of            distribution   and   involves   both  of   the   dangers   of                                            ____            conspiracy--increased likelihood of  success and extension to            other crimes--to which the  cases advert.  We think  that the            pragmatic approach  of  Direct Sales  in defining  conspiracy                                    ____________            foreshadows  the result  in  this case  and, given  Congress'            intent  to stamp out drug  transactions, it certainly did not                                         -12-                                         -12-            mean  to  narrow the  conspiracy concept  when it  enacted 21            U.S.C.   846, the statute involved in this case.                 We leave  for another day  the lesser variations  on the            same  theme.    Obviously  a  single  sale  in  resale  sized            quantities presents  one problem and an  advance agreement to            make a single  sale involves  another.  Where  one draws  the            line is more  a matter of discerning congressional policy and            intent  than  an  exercise  in logic,  and  the  case-by-case            approach  is for the  present the wisest course.   As for the            classic    single    sale--for    personal    use,    without            prearrangement,  and with nothing more--the precedent in this            circuit  as well  as  others treats  it  as not  involving  a            conspiracy.   In such cases the jointness  element is clearly            at  a minimum, if  it exists at  all.  Where  nothing more is            involved, we reaffirm existing authority that such a  case is            not a conspiracy.                                         II.                 Moran's remaining arguments are less formidable than his            attack  on  the sufficiency  of  the evidence.    Moran first            argues  that even  if the  evidence was  adequate to  prove a            conspiracy between Willis and Moran, it was not sufficient to            prove Moran to be  a member of the larger  conspiracy charged            in the indictment.  This  variance, he argues, prejudiced him            by associating him with  more powerful and extensive evidence                                         -13-                                         -13-            against other defendants.  We agree that there was probably a            variance but find that it was not prejudicial.                 The  indictment  charged   a  single  drug  distribution            conspiracy,  naming as  co-conspirators  Willis,  Moran,  six            other  named defendants,  and "other  persons both  known and            unknown  to the  Grand Jury  . . .  "   At trial  much of the            evidence related to  the two other defendants who pleaded not            guilty and to Willis and his relations  with defendants other            than  Moran.   The references  of Mary  to one  side, nothing            linked  Moran to any of the ring members other than Willis or            any of  the transactions charged elsewhere  in the indictment            other than Moran's own sales to Callahan.                  On this record, it is true that the evidence pointing to            a Willis-Moran  conspiracy is  far stronger than  evidence of            conspiracy between  Moran and the Willis ring  as a whole.  A            very  serious problem would be presented if the jury had held            Moran liable  for other  substantive crimes committed  by the            ring.  Compare Glenn.   The situation is different  where the                   _______ _____            government charges a defendant with a crime (here, conspiracy            to  distribute) but the  facts proven at  trial vary somewhat            from  those charged in the  indictment.  In  that case, it is            settled law that a  conviction for the crime charged  will be            affirmed unless the variance as to the facts is shown to have            prejudiced the defendant.  Berger v. United States,  295 U.S.                                       ______    _____________            78  (1935);  Fed. R.  Crim  P.  52(a)(variance not  affecting                                         -14-                                         -14-            substantial  rights  may be  disregarded).    Convictions are            often sustained  under  this principle  where the  indictment            alleges  a single  conspiracy  but multiple  conspiracies are            actually  proved.    E.g., United  States v.  Sutherland, 929                                 ___   ______________     __________            F.2d 765, 772 (1st Cir.), cert. denied, 112 S. Ct. 83 (1991).                                      ____  ______                 In  this case, Moran does  not and could  not claim that            the variance deprived him of notice of the charge adequate to            prepare  a defense.  Rather he contends that the disparity in            evidence--specifically,  the  array  of  witnesses  and  tape            recordings   incriminating    other   defendants--created   a            "spillover"  effect that  enhanced the narrower  case against            him.   See Sutherland, 929 F.2d  at 772.  The enhancement may                   ___ __________            be  assumed;  motions for  severance  are  routinely made  in            conspiracy cases, partly to escape  this taint.  The question            is whether  the impact threatened  to deprive defendant  of a            fair trial.  We conclude that it did not.                 Most  of the  evidence  concerning Moran  was distinctly            different from  the evidence against others.  It derived from            Callahan's  testimony and  concerned  his  transactions  with            Moran.  Similarly, Moran's relationship with Willis was based            upon Callahan's  description buttressed  by Moran's  own tape            recorded statements.   The distinct  separation between  this            evidence  and  evidence  of  other  Willis-related activities            diminished  the risk  of  jury confusion.   Indeed,  on these            facts the risk appears  to have been minimal compared  to the                                         -15-                                         -15-            usual mass conspiracy case.  Under  these circumstances we do            not think  the  apparent variance  even  arguably  threatened            Moran's right to a fair trial.                 Finally,  Moran   argues  that   error   inheres  in   a            supplementary  instruction  given  to  the  jury  during  its            deliberations.   Jury  deliberations  began  on February  14,            1991, and the next day the jury sent in the following written            question, as described by the trial judge:                         The  indictment  states, quote,  David                      Elwell,   Richard  Morretto   and  George                      Moran,  defendants,  combined,  conspired                      and agreed with  each other -- underlined                      "with  each  other"  --  and  with  other                      persons,  both known  and unknown  to the                      grand  jury,  close   quote.    Does  the                      statement   mean   these  three   --  and                      circled --  people  conspired  with  each                      other --  and "with each  other" is again                      underlined.  Your instruction seems to be                      different from the indictment.  Signed by                      the foreperson.            The judge  then re-instructed  the jury, reminding  them that            "first,  remember  the indictment  is  only  the charge,  the            accusation.   It is not evidence.   It is not  a statement of            the law.  On  the other hand, my instructions are a statement            of the  law and are binding on you."  The judge then repeated            his prior  instructions on  conspiracy (two or  more persons,            agreement to commit  crime charged, defendant's knowledge  of            unlawful purpose and knowing joinder).   Within the hour, the            jury   returned  its   verdict,   including  the   conspiracy            conviction of Moran.                                         -16-                                         -16-                 On appeal, Moran agrees that "[v]iewed in isolation, the            judge's  instructions  were  unobjectionable,"  and  this  is            clearly so:  the response to  the jury's question  was clear,            correct, and  precisely answered  the question posed.   Moran            argues, however,  that in context the  instruction could have            led  the  jury  to  believe  that  it  could   disregard  the            indictment  entirely   and  convict  the  defendant   of  any            conspiracy it chose.  There  is a distinct possibility,  says            Moran,  that  the  jury convicted  him  of  a  conspiracy not            charged such as a  conspiracy with Callahan or  "a conspiracy            with Willis, different  from that involving  Moretto, Polito,            and Elwell."                 Moran's  counsel   at  trial  did  not   object  to  the            supplementary  instruction  and  any  objection  is therefore            waived absent a showing of serious prejudice.   United States                                                            _____________            v. Maraj, 947 F.2d 520, 525 (1st Cir. 1991).  No such showing               _____            has  been  made here.    Further, we  do not  think  that the            instruction invited the jury  to disregard the charge in  the            indictment;  indeed,  the supplementary  instruction reminded            the jury that the agreement here charged was "to possess with            intent to  distribute cocaine."   As for the  suggestion that            the jury  convicted Moran for such a  conspiracy with Willis,            rather than with Willis and others in his ring, this may well            be so.  But as cases like Sutherland show, such an outcome is                                      __________                                         -17-                                         -17-            not conviction for a "different crime"  than that charged but            is merely a permissible variance.                 Affirmed.                  ________                                         -18-                                         -18-
