
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1372                                    UNITED STATES,                                      Appellee,                                          v.                                     JACK CIOCCA,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                     Coffin and Campbell, Senior Circuit Judges.                                          _____________________                                _____________________               John C. McBride, with whom McBride  & Keefe was on brief for               _______________            ________________          appellant.               F. Mark Terison, Assistant United States Attorney, with whom               _______________          Jay  P.  McCloskey,  United  States  Attorney,  and  Jonathan  R.          __________________                                   ____________          Chapman,  Assistant United  States  Attorney, were  on brief  for          _______          appellee.                                 ____________________                                  February 24, 1997                                 ____________________                    TORRUELLA, Chief  Judge.  On June 8,  1995, a complaint                    TORRUELLA, Chief  Judge.                               ____________          was filed against Defendant-Appellant  Jack Ciocca ("Ciocca") and          Harold  Nelson ("Nelson"),  who is  not a  party to  this appeal,          charging both with  conspiracy to distribute, and to possess with          intent  to distribute, cocaine in  violation of 18  U.S.C.   846,          and  distribution and  possession  with intent  to distribute  in          violation of 18 U.S.C.    841(a)(1) and (b)(1)(A).  After  a jury          found  Ciocca guilty on both counts, the district court sentenced          him  to imprisonment for a term of 188 months, supervised release          for  a term of eight  years, and a  fine of $70,000.   Ciocca now          appeals his conviction on three grounds.   He claims that (1) the          district court erred in refusing to admit the psychiatric records          of prosecution  witness  Kevin  Caporino  ("Caporino");  (2)  the          evidence was insufficient to support a conspiracy conviction; and          (3) the  district court erred in admitting tapes of conversations          involving Ciocca and Caporino.                                      BACKGROUND                                      BACKGROUND                    We  present the  facts the  jury reasonably  could have          found, in the light most favorable to the verdict.  United States                                                              _____________          v.  Josleyn,  99 F.3d  1182,  1185 n.1  (1st  Cir. 1996).   Kevin              _______          Caporino  met  Ciocca  in  1981  when  Ciocca  entered the  Maine          restaurant in which Caporino was working.  At that first meeting,          Caporino gave Ciocca some cocaine for personal use.  Ciocca later          stopped  back at  the restaurant  and told  Caporino that  he was          involved  in a cocaine trafficking  business.  Within  a month of          that initial  meeting, Caporino  then met Ciocca  in Connecticut.                                         -2-          At the Connecticut meeting,  Ciocca gave Caporino an eighth  of a          kilogram  of cocaine,  which  Caporino tried  to  sell in  Maine.          Caporino continued  to sell cocaine  for Ciocca until  1983, when          Caporino  was involved in an  automobile accident.  This accident          caused  Caporino to suffer  amnesia and led  to extensive therapy          intended to recover his memory.                    In  the spring  of  1994, Ciocca  and Nelson  contacted          Caporino  and requested that he serve as a courier between Ciocca          in Connecticut and Nelson in Maine.  Caporino agreed.  During the          1980s,  Caporino  had  served   Ciocca  in  a  similar  capacity,          transporting  cocaine between  Connecticut  and Maine  up to  ten          times.   Caporino's role was to retrieve money from Nelson, drive          the money to Ciocca  in Connecticut, wait for Ciocca to count the          money,  then  transport  a  kilogram  of  cocaine  from  Ciocca's          residence back to Nelson.  For his role, Caporino was paid $2,000          by Nelson for  each delivery,  although sometimes he  was paid  a          pound of marijuana in lieu of the $2,000.  Caporino made six such          trips prior to his arrest in May 1995.                    In late April  or early May  1995, Caporino received  a          kilogram of  cocaine from Ciocca and delivered  it to Nelson.  At          this point, Nelson  gave him an ounce of cocaine for repayment of          money owed to  Caporino.   Caporino in  turn gave  this ounce  to          undercover  Agent  Scott Durst,  of  the  Maine Drug  Enforcement          Agency.   Upon this transaction, Caporino was arrested and agreed          to cooperate with law enforcement personnel.  On May 11, Caporino          was paid $250 for further debts owed him by Nelson.                                         -3-                    On May 3, 1995, Ciocca participated in a controlled buy          with  Agent   Durst,  using  Caporino   as  a  conduit   for  the          transactions.    The  buy  was  arranged  by  means   of  several          electronically monitored telephone  conversations between  Ciocca          and  Caporino, during which  Ciocca told  Caporino that  he would          bring three  and a half ounces  of cocaine to a  meeting place in          Boston.   Prior to the  controlled buy, Caporino  was searched by          agents  of the  U.S.  Drug  Enforcement  Agency.    The  buy  was          monitored  by  means  of  an electronic  wire  and  a  micro-tape          recorder placed on Caporino.  Caporino, accompanied by Durst, met          Ciocca outside the Boston Gardens.  Ciocca and Caporino entered a          nearby restaurant  and proceeded to  the restroom.   Caporino and          Ciocca were in  the restroom  for three to  four minutes,  during          which  time Caporino gave  Ciocca $3,000,  which he  had received          from  Durst and  which Ciocca  counted out in  the restroom.   In          exchange,  Ciocca  gave  Caporino  three  and a  half  ounces  of          cocaine.    After the  buy, Caporino  gave  the cocaine  to Agent          Durst.   Caporino and Durst then returned to a nearby DEA office,          where Caporino was searched again.                    Between  May  11  and   June  7,  Caporino  engaged  in          telephone  and in-person  conversations with  Ciocca  and Nelson,          trying  to determine when the next delivery between the two would          occur.  On June 7, Nelson informed Caporino that he had the money          for the  buy and had  spoken with Ciocca,  who had a  kilogram of          cocaine ready for purchase.   That day, Nelson met  with Caporino          in  Maine and transferred  to him an  envelope containing $5,500.                                         -4-          The  two made  arrangements for  the transfer  of the  cocaine to          Nelson upon  Caporino's return from  Connecticut.  Both  prior to          and after this meeting, Caporino and his car were searched.                    Caporino then travelled with Agent Durst to Connecticut          to pick up  the kilogram of cocaine from Ciocca.   Caporino's car          broke down along the way and the DEA supplied a truck to complete          the trip.   Approximately ten minutes  away from Ciocca's  house,          the agents  transferred Caporino to  the truck.   At the  time of          this transfer,  Caporino was  searched.  Agent  Durst accompanied          Caporino  in the  truck until  they were  near Ciocca's  home, at          which point Durst joined the other law enforcement agents.                    After being ushered into  the house by Ciocca, Caporino          waited   while  Ciocca   finished  cooking  with   his  daughter.          Thereafter, Ciocca and Caporino went  to the master bathroom  and          closed the  door.  Ciocca put  on thin black gloves  and began to          count  the  money  Caporino  had  brought from  Nelson.    Ciocca          retrieved a kilogram of cocaine from a closet in the bathroom and          gave it  to Caporino.  The  two proceeded down the  stairs to the          cellar,  from which Caporino left  the house.   During this time,          law enforcement agents were stationed on the street near Ciocca's          mailbox, monitoring the wire transmissions from inside the house.          Upon  meeting up  with the  drug enforcement  agents in  a nearby          parking lot, Caporino turned over to the agents a brown paper bag          containing a rectangular package  of cocaine.  Both Caporino  and          the truck were again searched.                                         -5-                    During  the  early  morning  of June  8,  Nelson  paged          Caporino to  transfer the cocaine.  The two arranged to meet at a          restaurant  in Portland, Maine.   From there,  the two  went to a          commuter  parking lot, where Caporino  claimed his car had broken          down.  Nelson retrieved the kilogram of cocaine from the trunk of          Caporino's car, after which drug enforcement agents arrested him.                    Later that  day, a search warrant  executed at Ciocca's          home turned  up several  firearms, including one  located in  the          master bathroom closet and  three firearms in an attache  case in          the  bottom of that closet.  Finally, another firearm was located          in a  bureau in the master  bedroom.  The agents  also seized the          $5,500  that Nelson had transferred to  Caporino the previous day          from the medicine cabinet of Ciocca's master bathroom.                                      DISCUSSION                                      DISCUSSION                    I.   Denial  of  defendant's  request   for  Caporino's                    I.   Denial  of  defendant's  request   for  Caporino's                         medical and psychiatric records                         medical and psychiatric records                    Ciocca first argues that  the district court erred when          it denied his request for discovery of, and failed to admit  into          evidence, Caporino's  medical and psychiatric records  related to          his  1983  accident.    Ciocca  contends  that  the  records  are          exculpatory  evidence  to which  he  is entitled  under  Brady v.                                                                   _____          Maryland, 373 U.S. 83  (1963).  Such evidence is  discoverable by          ________          the  defendant  where  it "is  material  either  to  guilt or  to          punishment."  Brady, 373 U.S. at 87.                        _____                    In order to succeed on a Brady claim, "a defendant must                                             _____          show that the withheld 'evidence was exculpatory, as  measured by          its materiality.'"   United States v. Watson,  76 F.3d 4,  7 (1st                               _____________    ______                                         -6-          Cir.)  (quoting United  States v.  Hemmer, 729  F.2d 10,  14 (1st                          ______________     ______          Cir.), cert.  denied, 467  U.S. 1218  (1984)), cert.  denied, ___                 _____________                           _____________          U.S. ___, 116 S. Ct. 1889 (1996).  "Information is 'material' 'if          there is  a reasonable  probability that,  had the evidence  been          disclosed to the defense, the result of the proceeding would have          been different.'"  United States v. Blais, 98 F.3d  647, 651 (1st                             _____________    _____          Cir.  1996)  (quoting  United  States  v. Bagley,  473  U.S.  667                                 ______________     ______          (1985)).   "Where,  as here,  the defendant  has made  a pretrial          request  for   specific  exculpatory  information,   reversal  is          required if nondisclosure 'might have affected the outcome of the          trial.'"  United  States v. Devin,  918 F.2d  280, 289 (1st  Cir.                    ______________    _____          1990).                    After carefully reviewing  each of the  sealed records,          we find that non-disclosure could  not have affected the  outcome          of the trial.   Disclosure of these medical records,  in light of          defense   counsel's   unhindered  cross-examination   of  several          government witnesses on this issue, could not have altered either          the jury's  conviction or the sentencing  court's disposition and          is therefore not  material.   Nothing in the  records could  have          bolstered  defense counsel's  cross-examination of Caporino.   We          thus find no  error in  the district court's  denial of  Ciocca's          motion for access to Caporino's psychiatric records.                    Ciocca emphasizes  that the district court's  denial of          his disclosure request prejudiced his ability to impeach Caporino          on   cross-examination,   and   thus   violated   his  right   to          confrontation  guaranteed by  the  Sixth Amendment.   "The  Sixth                                         -7-          Amendment  guarantees criminal defendants an adequate opportunity          to cross-examine adverse witnesses."   United States v. Butt, 955                                                 _____________    ____          F.2d  77,  86 (1st  Cir. 1992).    While a  witness's psychiatric          records  may  sometimes  be  an appropriate  subject  for  cross-          examination, the right to cross-examination is not absolute.  Id.                                                                        ___          "Once the defendant has been afforded a reasonable opportunity to          question  a witness'  veracity  and motivation,  the trial  judge          enjoys  broad discretion in  determining the scope  and extent of          cross-examination."  Id. (internal quotations omitted).                               ___                    As Caporino was the government's primary witness, we do          not doubt that challenging  Caporino's credibility was crucial to          Ciocca's defense.   We find,  however, that  Ciocca's ability  to          impeach Caporino did not  suffer because of, and that  Ciocca was          not prejudiced by, the district court's denial of access to these          records.   Defense  counsel  engaged in  a  thorough and  probing          cross-examination of Caporino, as  well as of Agent Durst  of the          Maine Drug  Enforcement Agency  and Agent John  Bryfonski of  the          U.S. Drug Enforcement Agency,  regarding the extent of Caporino's          memory loss after  his accident.   Ciocca brought out  Caporino's          statements  that  he  was a  "walking  zombie,"  that  he had  to          "reconstruct  his brain" after the accident,  that just after the          accident, and  perhaps for  years thereafter, Caporino  could not          remember  anything  that occurred  prior  to  the accident,  that          Caporino was hospitalized for amnesia after the accident, that he          "forgot my whole life," that Caporino had to "build a new brain,"          and  that Caporino's brain had  "gone the wrong  way."  The above                                         -8-          testimony demonstrates  that Ciocca was able to  place before the          jury ample evidence regarding  Caporino's ability to remember the          events that transpired prior to and after his accident.  That the          jury chose  to credit  Caporino's testimony, even  after Ciocca's          thorough cross-examination, is within its province as factfinder.          United States v. DiSanto, 86 F.3d 1238, 1246 (1st Cir. 1996).  On          _____________    _______          review,  we defer to all jury determinations of credibility.  See                                                                        ___          United States v. Smith, 101 F.3d 202, 215 (1st Cir. 1996).          _____________    _____                    Thus,  having found  that the  sealed records  were not          material  to Ciocca's guilt or punishment and that Ciocca was not          prejudiced  by  this lack  of access  to  the sealed  records, we          conclude that  the district court  properly denied access  to the          records as Brady material.                     _____                    II.  Sufficiency of the evidence                    II.  Sufficiency of the evidence                    Ciocca  next claims  that the  district court  erred in          denying his motion for  judgment of acquittal.  He  contends that          no  credible evidence established a conspiracy from the spring of          1994 to May 1995.1  He argues that there was no evidence, outside          that  provided  by Caporino,  linking  him to  a  conspiracy with          Nelson  prior to  May  1995.   He  acknowledges that  there  were          conversations between  Caporino and  Nelson and between  Caporino          and Ciocca, but nothing linking the three in a conspiracy.                    Ciocca is,  in essence, challenging the  sufficiency of          the evidence.                                        ____________________          1   He  appears to concede  that the  evidence was  sufficient to          establish  a  conspiracy  during  the  time  following Caporino's          decision to cooperate with the government.                                         -9-                    In assessing a  challenge to the  sufficiency                    of  the evidence,  we  "review the  record to                    determine whether the evidence and reasonable                    inferences therefrom, taken as a whole and in                    the light most  favorable to the prosecution,                    would  allow  a  rational  jury  to determine                    beyond a reasonable doubt that the defendants                    were guilty as charged."          United  States  v. Sullivan,  85 F.3d  743,  747 (1st  Cir. 1996)          ______________     ________          (quoting United  States v.  Mena-Robles, 4  F.3d 1026,  1031 (1st                   ______________     ___________          Cir. 1993), cert. denied,  ___ U.S. ___, 114 S. Ct. 1550 (1994)).                      ____________          "To  uphold  a conviction,  the court  need  not believe  that no          verdict  other than a  guilty verdict could  sensibly be reached,          but  must  only  satisfy itself  that  the  guilty  verdict finds          support in 'a plausible rendition of the record.'"  United States                                                              _____________          v. Echeverri, 982 F.2d  675, 677 (1st Cir. 1993)  (quoting United             _________                                               ______          States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied,          ______    _____                                     ____________          506 U.S. 1063 (1993)).                    In  order  to  prove  conspiracy,  the  government  was          required to prove beyond a reasonable doubt that  Ciocca "entered          an agreement to commit the substantive offense, and that [he] was          a  voluntary participant in  the conspiracy."   United  States v.                                                          ______________          And jar, 49  F.3d  16, 20  (1st  Cir. 1995).   In  addition,  the          _______          government  must prove both an  intent to agree  and an intent to          commit  the  substantive  offense.    Id.    In  considering  the                                                ___          evidence,  "a 'common  purpose and  plan may  be inferred  from a          development  and  collocation  of  circumstance.'"    Id.  at  21                                                                ___          (quoting  United States v. S nchez,  917 F.2d 607,  610 (1st Cir.                    _____________    _______          1990) (citations and internal  quotations omitted), cert. denied,                                                              ____________          499 U.S. 977 (1991)).                                         -10-                    In  the  Background  section,  supra,  we  recited  the                             __________            _____          evidence  in the light most favorable to  the jury verdict.  That          evidence indicates that, in the spring of 1994,  Ciocca initiated          an  understanding  with Caporino  that  Caporino  would serve  as          courier  in a drug trade between Ciocca in Connecticut and Nelson          in Maine.  The jury could  have found that Caporino engaged in at          least  six  transactions   prior  to  May   1995    During   each          transaction, Nelson contacted  Caporino to let him know  that the          money  was ready  to be  transported to  Ciocca.   After Caporino          retrieved the money from Nelson, he drove it to Ciocca's house in          Connecticut, where  Ciocca counted  it.   Ciocca would  then turn          over a kilogram of  cocaine to Caporino, who would  transport the          kilogram of cocaine back to Nelson in Maine.  We believe that the          jury  could infer from  the evidence as  a whole  that Nelson and          Ciocca  entered  into  an agreement  in  the  spring  of 1994  to          transport cocaine between Connecticut and Maine, that they had an          intent to agree and an intent to distribute cocaine, and that the          agreement continued up to and including the point at which Ciocca          was arrested.  See, e.g., And jar, 49 F.3d at 21  (noting that an                         ___  ____  _______          appellate court draws all  credibility determinations in favor of          the verdict, even in instances where the conviction relies solely          on the uncorroborated testimony  of a confidential informant, "so          long as the testimony  is not incredible or insubstantial  on its          face" (internal quotations  omitted)); United  States v.  Cresta,                                                 ______________     ______          825 F.2d 538, 546 (1st  Cir. 1987) (recognizing that there is  no          federal requirement of corroboration of an informant's  testimony                                         -11-          provided the testimony is not "incredible or insubstantial on its          face" (internal quotations omitted)), cert. denied, 486 U.S. 1042                                                ____________          (1988); United States v. Davis, 623 F.2d 188, 195 (1st Cir. 1980)                  _____________    _____          (finding it "clear that a [conspiracy] conviction can rest on the          uncorroborated   testimony  of  a   co-defendant  or  accomplice"          (internal  quotations omitted)).  Because Caporino's testimony is          far from being incredible  or insubstantial on its face,  we find          no  error in the district  court's denial of  Ciocca's motion for          judgment of acquittal.                    III. Admission  of  the  taped   conversations  between                    III. Admission  of  the  taped   conversations  between                         Ciocca and Caporino                         Ciocca and Caporino                    During the  trial, the  government sought  to introduce          into  evidence  approximately  27  audiotape  recordings procured          through   consensual  recording.      The  audiotapes   contained          conversations  between Caporino and  Ciocca and  between Caporino          and  Ciocca's   co-conspirator  Nelson.     The  district   court          conditionally admitted the audiotapes,  subject to a later ruling          under United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977).                _____________    ____________          At the close of all the evidence, Ciocca renewed his objection to          "all  the  evidence that  relates  to  the conspirator  hearsay."          Trial Transcript, vol. 2, at 378.  The following colloquy ensued:                      THE COURT:  Let me see.  You say strike all                    the  evidence.  What evidence particularly do                    you wish to have stricken?                      MR. McBRIDE:  Any statements made by Nelson                    on the  one hand  that were intercepted  on a                    consensual monitoring device between Caporino                    and  Nelson, and  any statement  that existed                    between Caporino and  the defendant who [sic]                    in any way reflected a continuing--                                         -12-                      THE  COURT:    The   defendant's  statement                    intercepted by the wire would be an admission                    to [sic] the party.                      MR. McBRIDE:  I'm sorry, you are absolutely                    correct, I'm wrong.          Id. at 378-79.          ___                    On appeal, Ciocca argues that                    "certain tapes of  conversations were  played                    for the jury.  Defense counsel had a standing                    objection   to   the    admission   of    the                    conversations   as   hearsay.     The   Court                    overruled the objection,  allowing the  tapes                    to come in under the co-conspirator statement                    exception to  the  hearsay rule  as  provided                    under  Federal  Rule of  Evidence  801(d) (2)                    (E).   The  Court  erred  because  there  was                    insufficient    evidence   of    a   criminal                    conspiracy   between    the   defendant   and                    Caporino."          Appellant's  Brief at  19.   We first  note that  Ciocca  has not          appealed the district court's admission of the tape recordings of          conversations  between  Caporino  and   Ciocca's  co-conspirator,          Nelson.  Because  Ciocca has  failed to appeal  that ruling,  the          admissibility of those recordings is not before us.                    We next find  that Ciocca has waived  the argument that          the   taped  conversations   between   Caporino  and   him   were          inadmissible.    "A  party  waives  a  right  when  it  makes  an          intentional relinquishment or abandonment  of it."  United States                                                              _____________          v.  Mitchell,  85   F.3d  800,  807  (1st  Cir.  1996)  (internal              ________          quotations  omitted).   Forfeiture, of  course, is  different, in          that it occurs only "if a defendant merely fails to make a timely          assertion of  that right."  Id.   "The distinction is  a key one,                                      ___          for '[m]ere forfeiture, as opposed to waiver, does not extinguish                                         -13-          an "error" under Rule 52(b). . . .'  In short, where there  was a          forfeiture,  we apply  a plain  error analysis;  where there  was          waiver,  we do not."   Id. (quoting  United States  v. Olano, 507                                 ___           _____________     _____          U.S.  725, 733-37 (1993)).   Thus, Ciocca's acknowledgment at the          Petrozziello hearing  of the correctness of  the district court's          ____________          ruling with  regard to the taped conversations between Ciocca and          Caporino  constitutes  waiver,  which extinguishes  any  error on          appeal.  United States v.  Olano, 507 U.S. 725, 733 (1993).   Our                   _____________     _____          analysis ends here.2                                        ____________________          2    We  point out  that  defense  counsel's  agreement with  the          district  court's  ruling  on  these conversations  was  in  fact          warranted and correct as a matter of law.  Ciocca's statements in          these  conversations constitute  admissions against  interest and          were properly  admissible pursuant  to Federal Rules  of Evidence          801(d)(2)(A)  and  804(b)(3).   Additionally,  the statements  by          Caporino, in response, were properly admissible because a                    "defendant, having  made admissions, [cannot]                    keep  from the  jury  other  segments of  the                    discussion reasonably required to place those                    admissions in context.  In this instance, the                    other parts of the conversation were properly                    admitted   as   'reciprocal  and   integrated                    utterances,'   .  .   .  to   put  [Ciocca's]                    statements  into  perspective  and make  them                    'intelligible to the jury and recognizable as                    admissions.'"          United  States v. McDowell, 918  F.2d 1004, 1007  (1st Cir. 1990)          ______________    ________          (citations omitted).             Moreover, while some of Ciocca's statements made in the course          of  the  conversations  may  not  have  been  admissions  against          interest, his failure to object to such statements below forfeits          any argument he may have for the inadmissibility of non-admission          statements.   Forfeiture  of this  argument triggers  plain error          review.  Mitchell, 85 F.3d at  807.  Ciocca's brief does not even                   ________          indicate which statements may give rise to a plain error finding.          Thus, Ciocca has not  carried his burden of showing  plain error,          see  United States  v.  Winter,  70  F.3d  655  (1st  Cir.  1995)          ___  _____________      ______          (appellant bears  the burden of establishing  plain error), cert.                                                                      _____          denied, ___ U.S. ___, 116 S. Ct. 1366 (1996), and we find no such          ______                                         -14-                                      CONCLUSION                                      CONCLUSION                    Based on  the foregoing  considerations, we  affirm the                                                                 affirm          district court's rulings.                    So ordered.                    __________                                        ____________________          error here.                                         -15-
