
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2122                                    UNITED STATES,                                      Appellee,                                          v.                                     NOEL FEMIA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Kirsten M.  Lacovara, with  whom James  E. Carroll  and Peabody  &            ____________________             _________________      __________        Arnold were on brief for appellant.        ______            Heidi  E. Brieger,  Assistant United  States Attorney,  with  whom            _________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                    June 16, 1995                                 ____________________                      BOWNES, Senior Circuit Judge.   Defendant-appellant                      BOWNES, Senior Circuit Judge.                              ____________________            Noel  Femia appeals from  a jury conviction  of conspiring to            possess with  intent to distribute quantities  of cocaine, in            violation of 21 U.S.C.   841(a)(1).  Defendant forwards  four            issues  on appeal  which  we consider  seriatim.   We  affirm            defendant's conviction.            1.  The  Alleged Violation of  the Jencks Act  - 18 U.S.C.               1.  The  Alleged Violation of  the Jencks Act  - 18 U.S.C.                   _________________________________________________________            3500            3500            ____                      The factual basis for  this issue is the accidental            destruction  of certain tape recordings by a DEA agent.  This            is the  second time we  have been  called upon to  decide the            legal consequences of the destruction of the tape recordings.            Some historical exegesis is necessary, most of which is taken            from  our prior opinion, United  States v. Femia,  9 F.3d 990                                     ______________    _____            (1st Cir. 1993) ("Femia I").                               _____                      An  indictment  against defendant  and  eight other            alleged co-conspirators  was filed  in the district  court on            October 3, 1986.  Femia was not arrested until July 16, 1992.            The facts relevant to  the tape recordings can  be summarized            as follows.                      Cristopher LaPlante  was the bookkeeper and  one of            the  founding  members of  a  large-scale  cocaine operation,            known as Triple X.  The DEA started investigating Triple X in            1985.  LaPlante entered into a plea bargain with the DEA.  As            part of  the plea  agreement, LaPlante covertly  made twenty-                                         -2-                                          2            four  tape  recordings  of  conversations  he  had  with  co-            conspirators or  customers of Triple X.  The DEA set up three            files for three of the alleged co-conspirators, Perea, Stone,            and  Femia.  The LaPlante tapes were physically stored in the            Perea  file,  which was  cross-referenced  to  the other  two            files.                        Trial of Femia's  alleged co-conspirators was  held            in 1987.  At this  time Femia was still at large.   The eight            defendants were  convicted either  by trial or  guilty pleas.            Subsequent to those convictions, a DEA agent,  newly-assigned            to the case,  authorized the destruction of all  the LaPlante            tapes contained in the Perea file.                      After his  arrest and  arraignment, Femia  moved to            suppress the testimony of LaPlante, a key government witness,            on  the ground that the destruction of the tapes violated his            constitutional right  to due process as  annunciated in Brady                                                                    _____            v.  Maryland, 373 U.S. 83 (1963).  The district court granted                ________            Femia's  motion to  suppress.   The government appealed.   We            reversed the district  court, finding that  there was no  due            process violation  because the  tapes were "not  destroyed in            bad faith."  Femia  I, 9 F.3d  at 994.   We also pointed  out                         _____            that  the  district  court  had  made  no  bad  faith finding            relative to the destruction of the tapes.  Id. at 996.  After                                                       ___            remand,  the case  was  tried.   The district  court rejected                                         -3-                                          3            Femia's  claim  that  the  destruction  of the  tapes  was  a            violation of the Jencks Act.                      We start our analysis of  this issue by quoting the            district  court's written rejection of defendant's Jencks Act            claim:                              Defendant also contends that                           judgment  of  acquittal  as  to                           Count 1  is appropriate because                           the  government   violated  the                           Jencks Act, 18  U.S.C.    3500.                           He  bases  this  claim  on  the                           government's   destruction   of                           tape recordings made by its key                           witness,  Cristopher  LaPlante,                           and     allegedly    containing                           statements amounting  to Jencks                           material.     The   Jencks  Act                           provides  that  a court  shall,                           upon defendant's request, order                           the   government   to   produce                           statements made  by its witness                           which  relate to  the witness's                           testimony.    18 U.S.C.    3500                           (1970).  Such statements may be                           used  solely   for  impeachment                           purposes.    Palermo v.  United                                        __________________                           States,   360  U.S.   343,  349                           ______                           (1959).   Defendant  speculates                           that  the  tapes  revealed  the                           identities of  large scale drug                           suppliers,  thereby  containing                           statements      related      to                           LaPlante's testimony.   Because                           the  tapes   were  destroyed  I                           cannot  review  them  and  thus                           assess whether they fall within                           the purview of the  Jencks Act.                           The  record does  not, however,                           require   me    to   make   the                           "dubious"       inquiry      of                           "reconstruct[ing]  a  [tape] no                           longer in  existence using 'the                           very  witness  whose  testimony                           the    defendant    seeks    to                           impeach.'"    United States  v.                                         _________________                                         -4-                                          4                           Carrasco,  537  F.2d  372,  377                           ________                           (9th Cir. 1976) (quoting United                                                    ______                           States  v.  Johnson,  521  F.2d                           ___________________                           1318,  1320  (9th Cir.  1975)).                           Here,  the affidavits  of Agent                           Reilly  and  Detective  Kinder,                           which  stated that  the missing                           tapes     "contained    general                           conversations  that   were  not                           specifically  relevant  to  the                           Triple     X    investigation,"                           support  the  ruling  at  trial                           that the missing tapes were not                           "Jencks   Act  materials   with                           respect  to  the matters  about                           which  the  government inquired                           on direct . . . ."              (Footnote omitted.)                      We review the district  court's ruling for abuse of            discretion.    United  States  v. Augenblick,  393  U.S.  348                           ______________     __________            (1969).  Augenblick involved,  inter alia, missing tapes that                     __________            _____ ____            were,  without doubt, covered by  the Jencks Act.   The Court            held that  the ruling by the law  officer and Board of Review            that the tapes  need not be produced under the Jencks Act was            not  an abuse  of discretion.   Id.  at 355.   In  Palermo v.                                            ___                _______            United States, 360 U.S.  343 (1959), the Court held  that the            _____________            final  decision as  to  production of  Jencks Act  statements            "must rest  . . . within the good sense and experience of the            district judge  . . . ."   Id. at  353.  In United  States v.                                       ___              ______________            Foley,  871 F.2d  235,  239 (1st  Cir.  1989), we  found  not            _____            clearly erroneous the district court's ruling  that so-called            "302's" were not statements covered by the Jencks Act.                      The pertinent parts of the Jencks Act provide:                                         -5-                                          5                              After  a  witness called  by                           the United States has testified                           on   direct  examination,   the                           court shall, on  motion of  the                           defendant,  order   the  United                           States to produce any statement                           (as hereinafter defined) of the                           witness  in  the possession  of                           the United States which relates                           to  the  subject  matter as  to                           which    the     witness    has                           testified.     If   the  entire                           contents of  any such statement                           relate to the subject matter of                           the  testimony of  the witness,                           the  court shall order it to be                           delivered   directly   to   the                           defendant  for his  examination                           and use.            18 U.S.C.   3500(b).                              The  term   "statement",  as                           used  in subsections  (b), (c),                           and  (d)  of  this  section  in                           relation to  any witness called                           by the United States, means--                              . . . .                              a  stenographic, mechanical,                           electrical, or other recording,                           or  a   transcription  thereof,                           which   is   a    substantially                           verbatim  recital  of  an  oral                           statement made  by said witness                           and  recorded contemporaneously                           with  the  making of  such oral                           statement;            18 U.S.C.   3500(e)(2).                      There is nothing in  the record indicating that any            of the  destroyed tapes  contained statements related  to the            subject  matter of LaPlante's testimony.   On the other hand,            the missing tape  observation we made in Femia I  is a strong                                                     _____                                         -6-                                          6            indication  that  the  tapes   did  not  contain  Jencks  Act            statements:                           The    evidence   before    the                           district court  showed that any                           missing  evidence--whether  one                           considers   allegedly   missing                           fragments  of   the  tapes  for                           which  copies  exist  or  those                           tapes which no longer  exist in                           any   form--did   not   possess                           exculpatory    value   apparent                                                  ________                           before      law     enforcement                           ______                           destroyed  the  tapes.    Agent                           Reilly  and  Detective   Kinder                           provided   affidavits   stating                           that   the    destroyed   tapes                           contained   no   references  to                           Femia,   his   code  names   or                           numbers.    Agent  Reilly  also                           explained    that    any   tape                           containing references  to Femia                           would have been transcribed.            Femia I, 9 F.2d at 995.            _____                      In light of  the facts and  the applicable law,  we            rule that  the district  court neither abused  its discretion            nor clearly erred in finding and  ruling as it did.  We think            its decision was clearly correct.            2.  Whether the Supplemental Jury Instruction on Conspiracy            2.  Whether the Supplemental Jury Instruction on Conspiracy                _______________________________________________________                Was Reversible Error                Was Reversible Error                ____________________                      The  only  way  to  understand  this  issue  is  to            replicate what  happened.   After deliberating  for sometime,            the jury submitted two  written questions to the judge.   She            responded as follows:                              Members of the jury,  let me                           respond to your note, do it one                           at  a time, and so I will state                                         -7-                                          7                           for   the   record,   for   Mr.                           Laughlin, each question.                             Question 1 is:   Restate  the                           charges.                              I interpret that to mean the                           accusations against  Mr. Femia.                           I assume that's what you meant,                           that you didn't wish me to give                           you  the instructions  all over                           again.                              There   are   two  sets   of                           charges.  Count  1 accuses  the                           defendant  of   having  been  a                           member   of  a   conspiracy  to                           distribute  cocaine.     That's                           Count 1.                              There are two -- there's one                           entirely   separate   set    of                           charges, Counts  22 through 45,                           that  accuse  the defendant  of                           having  possessed  on  specific                           dates,   specific  amounts   of                           cocaine  with   the  intent  to                           distribute that cocaine.                              That's  the  second  set  of                           charges.                              Now,  let me  go back  for a                           moment and explain again to you                           each of these.                              With respect to Count 1, the                           conspiracy      charge,     the                           government has to prove, first,                           that  there  was  an  agreement                           between two or more people, not                           necessarily  Mr.  Femia,  could                           have   been   anybody.      The                           indictment  names some  people,                           but any two people,  that there                           was  an  agreement between  any                           two   people    to   distribute                           cocaine.     That's  the  first                           thing it has to prove.                                         -8-                                          8                              The second thing  it has  to                           prove is that Mr. Femia at some                           point,  while  this  agreement,                           this    conspiracy    was    in                           existence, willfully,  that is,                           with an intent  to violate  the                           law,  became  a member  of that                           conspiracy.    That's what  the                           government has to prove.                      The second question was:                           In  Count 1, is paragraph 1 the                               _______                 ___                           summation  of  charges  against                           _________                           Mr. Femia, or  is paragraph  2b                           (Count 1) part of the summation                                                 _________                           of   charges   or   simply   an                           explanation   of   charges   in                           ___________                           Counts 22-45.  Specifically--is                           the   defendant  charged   with                           conspiracy     to    distribute                           cocaine   or   conspiracy    to                           distribute   the  specific   47                           kilograms  named  in  paragraph                           2b.  (Id.)                                 ___                      The judge answered the question thus:                              Now you  also inquired about                           Paragraph   2B   [b]  in   this                           indictment.    The   conspiracy                           charge  sets  out, in  general,                           what  the  conspiracy  was  all                           about.   It  then  goes  on  in                           Paragraph  2  to  describe,  in                           general, the  role that various                           of  the  defendants  played  in                           this conspiracy.   And then  it                           goes on in Paragraph 3  and its                           various sub parts  to say  what                           the purpose of this, the object                           of this conspiracy was.  And it                           kind of goes  on and on and  on                           about that.                              In  Paragraph  2B  [b],  the                           government says what it -- what                           it says Mr. Femia  did.  But in                           your   deliberating   on   your                           verdict and deciding this case,                                         -9-                                          9                           you  should   base,  base  your                           verdict   not   on   what   the                           indictment says, but on  all of                           the  evidence.   Taking  all of                           the   evidence,  you   need  to                           decide what Mr. Femia did, what                           Mr.   Femia   knew,  what   the                           circumstances were.                              And  then  based  on all  of                           that, all the  evidence in  the                           case,  what the  witnesses told                           you,  what  the  exhibits  tell                           you, did he willfully  become a                           member of the conspiracy?   And                           specifically did the government                           prove  and  convince  you  that                           beyond a  reasonable doubt that                           he -- there was  this agreement                           and that he willfully  became a                           member of the conspiracy.                      The first paragraph of  Count One of the indictment            charged nine named persons including Femia:                           defendants      herein,     did                           knowingly   and   intentionally                           combine,  conspire, confederate                           and  agree   with  each  other,                           . . . and with other persons to                           commit  an offense  against the                           United   States,    namely   to                           possess    with    intent    to                           distribute, and  to distribute,                           quantities   of    cocaine,   a                           Schedule II narcotic controlled                           substance,   in  violation   of                           Title  21, United  States Code,                           Section 841(a)(1).                      Paragraph 2b of Count One of the indictment states:                              b.    Defendant  Noel  Femia                           also supplied  large quantities                           of cocaine to  Triple X.   From                           July   1984   to  April   1985,                           defendant Noel Femia caused the                           delivery    of    approximately                           forty-seven     kilograms    of                                         -10-                                          10                           cocaine,  having  an  aggregate                           wholesale  value of  nearly two                           million dollars, to Triple X on                           consignment.          Following                           delivery, this cocaine was sold                           and distributed  by members and                           associates of Triple X.                      By now  it is axiomatic "that  a single instruction            to a jury may not be judged in artificial isolation, but must            be  viewed in the  context of the  overall charge."   Cupp v.                                                                  ____            Naughten, 414 U.S. 141, 146-47 (1973).  In this connection we            ________            note that defendant did not object to the original conspiracy            charge which was, of course, more extensive and detailed than            the   supplemental  one,  but  basically  conveyed  the  same            message.                      It is  difficult for  us to understand  exactly the            basis  for  defendant's  contention  that   the  supplemental            instruction  was  erroneous.    It  might  be  inferred  from            defendant's brief  that he  is arguing  that the jury  should            have  been instructed that in  order to convict  Femia on the            conspiracy count,  the government had to prove the overt acts            alleged in paragraph 2b.   At the sidebar colloquy  after the            supplemental instructions were given, the judge asked defense            counsel:   "What  do  you want  me  to tell  them?"   Counsel            replied:                           MR.  CARROLL:   This is  what I                           want you to say, Judge.  I want                           you  to  say that  Paragraph 2B                           [b] is what the  government has                           accused  Mr.  Femia  of  doing.                           That's what they said he did in                                         -11-                                          11                           this  conspiracy, that  was his                           role in the conspiracy, and the                           government must  prove beyond a                           reasonable  doubt that  is what                           he did.            The judge quite correctly pointed out:  "No.  That's  not the            law."                        The Supreme Court unanimously held in United States                                                            _____________            v. Shabani, 115 S. Ct. 382, 383 (1994), that 21  U.S.C.   848               _______            does not require the government  to prove that a  conspirator            committed  an overt act in furtherance of the conspiracy.  We            do  not think that United  States v. Sepulveda,  15 F.3d 1161                               ______________    _________            (1st Cir. 1993), cert. denied, 114  S. Ct. 2714 (1994), is of                             _____ ______            any help to defendant.  In Sepulveda we held:                                       _________                              Here,     the     challenged                           convictions  center   around  a                           charge of conspiracy to possess                           and  distribute  cocaine.    To                           prove a  drug conspiracy charge                           under  21  U.S.C.     846,  the                           government  is obliged  to show                           beyond a  reasonable doubt that                           a conspiracy existed and that a                           particular defendant agreed  to                           participate in it, intending to                           commit      the      underlying                           substantive    offense   (here,                           possession   of  cocaine   with                           intent to distribute, 21 U.S.C.                             841(a)(1).            Id.  at  1173  (citations  omitted).1    That  was  what  the            ___                                            ____________________            1.  Since Sepulveda,  we have  clarified that the  "intent to                      _________            commit the underlying substantive offense" conspiracy element            is  properly  construed  as  an  "intent  to  effectuate  the            commission  of the  substantive offense."   United  States v.                                                        ______________            Piper, 35 F.3d 611, 615 (1st Cir. 1994), cert. denied, 115 S.            _____                                    _____ ______            Ct. 1118 (1995).                                         -12-                                          12            supplemental  instructions  charged   here.    And  even   if            Sepulveda can be read otherwise, it is trumped by Shabani.            _________                                         _______                      We find no error in the supplemental instructions.            3.  Was the Evidence on the Conspiracy Count Sufficient            3.  Was the Evidence on the Conspiracy Count Sufficient                ___________________________________________________                for Conviction?                for Conviction?                _______________                      In  reviewing the record  to determine  whether the            evidence was sufficient to convict, we assess the evidence in            the light most favorable to the government.                              The         well-established                           standard     for     evaluating                           sufficiency claims  requires us                           to  review  the  evidence as  a                           whole, including all reasonable                           inferences from  that evidence,                           in the light most  favorable to                           the  government.    If,  in  so                           doing, we find that  a rational                           trier of fact could  find guilt                           beyond  a reasonable  doubt, we                           have  no  option but  to affirm                           the jury's verdict.  We may not                           weigh  the  evidence,  and  all                           credibility  questions must  be                           resolved   in   favor  of   the                           verdict.            United States v.  Argencourt, 996 F.2d  1300, 1303 (1st  Cir.            _____________     __________            1993)  (citations  omitted), cert.  denied,  114  S. Ct.  731                                         _____  ______            (1994).  See also United States v. De La Cruz, 996 F.2d 1307,                     ___ ____ _____________    __________            1311  (1st Cir.), cert. denied, 114 S. Ct. 356 (1993); United                              _____ ______                         ______            States  v. Innamorati, 996  F.2d 456,  469 (1st  Cir.), cert.            ______     __________                                   _____            denied, 114 S. Ct. 409 (1993).            ______                                            ____________________                                                     -13-                                          13                      Applying this focus to  the record we summarize the            evidence.  Cristopher (Cris)  LaPlante, the chief witness for            the prosecution,  testified that  he, Alan Stone,  and Edward            Intinarelli  pooled their resources and shared their contacts            to form a drug cartel in  1984 for the purpose of  purchasing            and selling cocaine and  marijuana.  The cartel was  known as            "Triple X" or "XXX."  Defendant was a drug supplier for Stone            and  Intinarelli.    LaPlante  met with  defendant  "numerous            times" to  further Triple  X's business.   LaPlante explained            that those who  did business  with Triple X  were given  code            names and numbers.   Defendant's  code name was  Max and  his            code number was 86.  After a raid on Intinarelli's house, the            code  numbers were changed in January of 1985 "to protect the            identities  of  the  suppliers  and  the  customers  and  the            employees."  Defendant's new code number was 898.   Defendant            was contacted  through  Fem's  Gas Station  on  Route  35  in            Framingham, Massachusetts,  which he owned.   Defendant  told            LaPlante  that  he  intended to  use  the  proceeds  from the            cocaine sales to build a housing development on a large tract            of land he owned and then retire.  LaPlante saw entries about            defendant in a  notebook, used by Intinarelli  to record drug            transactions.                      Phillip Moore  was an  employee of  Triple X.   His            duties  consisted of  holding the  cocaine ("sitting  on it")            prior to sale,  breaking it up  into small saleable  amounts,                                         -14-                                          14            and  delivering it to customers.   He was paid $1,000 a week.            Moore introduced defendant to Stone in the spring of 1984; he            told  Stone that  defendant  could supply  him with  cocaine.            Moore  testified about  three cocaine  transactions involving            defendant.  All three followed the same format.  Moore parked            his car  unlocked in  a parking  lot.  He  then went  into an            adjacent bar.  Defendant subsequently joined him and they had            a  drink together.  Within a short time, defendant would tell            Moore that he should leave.   Moore would then leave the  bar            and get  into his car.   Each time  this scenario was  played            out, there was  a package of cocaine wrapped in  duct tape on            the back seat of the car.  Moore took the cocaine back to the            "safe"  house where  he weighed  and tested  it.   Moore then            "sat"  on the  cocaine  until he  received instructions  from            Stone.  He then broke it up into small amounts  and delivered            it to customers.                        Christine  Lenhard  testified  under  a   grant  of            absolute immunity.  She worked for Triple X as a "mule";  she            delivered cocaine to purchasers and picked up the money.  She            was  paid $1,000 a  week by Triple  X.   She was romantically            involved with defendant.  The Triple X partners that she knew            personally  were  LaPlante  and  Intinarelli.   Lenhard  knew            defendant's  code name  and  number.   She  knew, based  upon            observations  and  her  work  for Triple  X,  that  defendant            supplied the cartel with cocaine.                                         -15-                                          15                      Donna Dinallo-Beane also testified under a grant of            absolute immunity.  She lived with LaPlante during Triple X's            operations and, like Lenhard,  was employed by Triple X  as a            "mule."    She  knew  beyond doubt  that  defendant  supplied            cocaine to Triple X.                      Based   upon  the   evidence  and   the  reasonable            inferences  to  be  drawn  from  it,  we  find  that  it  was            sufficient  to   sustain   defendant's  conviction   on   the            conspiracy count.            4.  The Refusal of the District Court to Grant a Judgment of            4.  The Refusal of the District Court to Grant a Judgment of                ________________________________________________________                Acquittal on Counts 22-24 of the Indictment or to Dismiss                Acquittal on Counts 22-24 of the Indictment or to Dismiss                _________________________________________________________                These Counts with Prejudice.                These Counts with Prejudice.                ____________________________                      This rather unique issue requires some explanation.            The indictment charges as follows:                           COUNTS    TWENTY-TWO    THROUGH                           _______________________________                           FORTY-FIVE:  (21 USC  841(A)(1)                           __________                           -  Possession  of Cocaine  with                           Intent  to Dist.;  18 USC   2 -                           Aiding & Abetting)                           The Grand  Jury further charges                           that:                           1.    On  or  about  the  dates                           listed   below,   at   Ashland,                           Concord,  Framingham,  Gardner,                           Holliston,  Hopkinton,  Hudson,                           Marlborough,  Milford,  Natick,                           Northboro, Upton  and elsewhere                           in     the      District     of                           Massachusetts,                                2.   NOEL FEMIA a/k/a                                "ABDULE"  a/k/a "MAX"                                a/k/a "#86"                                  [and others]                           defendants  herein,  acting  in                           concert  and in  furtherance of                                         -16-                                          16                           the  conspiracy  described   in                           Count  One,  did knowingly  and                           intentionally    possess   with                           intent  to distribute,  and did                           distribute,    the    following                           quantities   of    cocaine,   a                           Schedule II narcotic controlled                           substance.                      Then follows a three-column list.  The first column            is  entitled "Count" and under it are listed in chronological            order the  words  "Twenty-Two"  through  "Forty-Five."    The            second  column is  headed "DATE"  and opposite  each numbered            count  are  specific  dates  starting with  "July  24,  1984"            opposite  "Twenty-Two"  and  ending  with  "March  22,  1985"            opposite "Forty-Five."  The third column is entitled "Amount"            "(approximate").   Listed in  this column to  correspond with            the  count and  date  columns are  amounts  in kilograms  and            grams.   Defendant was  charged in Counts  Twenty-Two through            Forty-Five  with  possessing  with intent  to  distribute and            distributing specific amounts of cocaine on specific dates.                      The jury found defendant not guilty on Count Forty-            Five, but  did not return  any verdicts on  Counts Twenty-Two            through Forty-Four.   In effect, there was a hung  jury as to            these counts.   The  government moved that  Counts Twenty-Two            through Forty-Four be dismissed without prejudice.  Defendant                                            _______            objected and moved for  judgment of acquittal on the  counts,            or,  in   the  alternative,  that  they   be  dismissed  with                                                                     ____            prejudice.  A hearing  was held.  The district  court granted                                         -17-                                          17            the government's motion and  denied defendant's motions.  The            trial judge stated:                              Defendant's assertion  as to                           Counts   22   through   44   is                           similarly  unpersuasive.     He                           insists    that    since    the                           government  offered   the  same                           proof for Counts 22  through 44                           as for Count  45 --  LaPlante's                           testimony  and certain  ledgers                           he  maintained  --  it  was  an                           aberration  that  the jury  did                           not acquit him on  those counts                           as   well.      In  fact,   the                           government   did   not   simply                           duplicate the evidence for each                           count.   Although  LaPlante was                           the  key  witness  as   to  all                           substantive    charges,    each                           charge  reflected  a   separate                           transaction  and  corresponding                           entry  in  the  ledger and  the                           testimony    was,    in   fact,                           different as to each.   Matters                           of credibility are for the jury                           and   it   may   believe   some                           portions    of   a    witness's                           testimony     and    disbelieve                           others.     United   States  v.                                       ___________________                           Jackson, 778 F.2d 933,  942 (2d                           _______                           Cir.      1985)      (upholding                           instruction  that  "jurors  are                           not   required  to   reject  or                           accept any particular witness's                           testimony in toto.")  Since the                           evidence,   if  believed,   was                           sufficient      to      sustain                           convictions  as  to  Counts  22                           through    44,   judgment    of                           acquittal   is   inappropriate.                           See  Fed.  R.  Crim. P.  29(a).                           ___                           Defendant's renewed  motion for                           judgment   of    acquittal   is                           therefore denied.                              At the  sentencing hearing I                           allowed the government's motion                           to  dismiss  without  prejudice                                        _______  _________                                         -18-                                          18                           these  same counts  (Counts 22-                           44).  For the reasons outlined,                           defendant's  alternative motion                           to  dismiss  with prejudice  is                                        ____ _________                           also denied.                      The case  law holds squarely that  a defendant does            not have standing to  appeal a without-prejudice dismissal of            an indictment.  In Parr v. United  States, 351 U.S. 513, 516-                               ____    ______________            18  (1956), the  Court held  that a  defendant does  not have            standing to appeal the dismissal of an  indictment because he            is not legally aggrieved  by such action.  The  Court pointed            out the obvious:  "The testing of the effect of the dismissal            order  must  abide  petitioner's  trial, and  only  then,  if            convicted will he have been aggrieved."  Id. at 517.                                                     ___                      In United  States v.  Moller-Butcher, 723  F.2d 189                         ______________     ______________            (1st Cir. 1983), there  was an attempted appeal in  which the            defendant  there sought, as does the  defendant here, to have            an  indictment dismissed with prejudice.   Citing to Parr, we                                     ____                        ____            held  that "absent  extraordinary circumstances,  a defendant            has no  standing to appeal  the dismissal of  an indictment."            Id.  at 190.  See also United  States v. Holub, 944 F.2d 441,            ___           ___ ____ ______________    _____            442  (8th Cir. 1991); United  States v. Reale,  834 F.2d 281,                                  ______________    _____            282 (2d Cir. 1987); United States v. Day, 806 F.2d 1240, 1242                                _____________    ___            (5th Cir. 1986).  We see no extraordinary circumstances here.                      We  cannot help but  observe, however, that because            defendant has  been convicted  on the conspiracy  count there                                         -19-                                          19            seems  little reason  for keeping  the indictment  alive much            longer.                      The judgment below is Affirmed.                                            Affirmed.                                            _________                                         -20-                                          20
