Taal v. Hannaford Brothers

• Court: Court of Appeals for the First Circuit
• Decided: November 8, 2006
• Docket: 06-1632
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 06-1362

UNITED STATES OF AMERICA,

Appellee,

v.

EDWARD PORTALLA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker, Senior U.S. District Judge]

Before

Boudin, Chief Circuit Judge,

Cyr, Senior Circuit Judge,

and Howard, Circuit Judge.

James H. Budreau, for appellant. Thomas M. Gannon, Attorney, Department of Justice, with whom, Michael J. Sullivan, United States Attorney, Michael Pelgro, and Glenn A. MacKinlay, Assistant United States Attorneys, were on brief for appellee.

July 31, 2007 CYR, Senior Circuit Judge. Edward Portalla challenges

his conviction on one count of conspiring to distribute cocaine, 21

U.S.C. § 846, and two counts of money laundering, 18 U.S.C. § 1956,

contending that the government adduced insufficient evidence. We

affirm.

I

BACKGROUND

Between January 2001 and November 2002, Raphael Tejada,

a cooperating witness for the United States Drug Enforcement Agency

(DEA), made a series of controlled cocaine purchases from Salvatore

(“Rudy”) and Anthony (“Tony”) Carrillo (“the Carrillos”), as well

as their confederate underlings. The Carrillos utilized cell

phones and pagers purchased from Portalla’s cell phone store to

facilitate the drug sales, many of which occurred at the Carrillos’

residences or from their vehicles. In order to thwart police

detection of the Carrillos’ drug activities, Portalla arranged that

the Carrillos purchase the phones under fake names, and advised

them to discard and replace the phones (or the phones’ SIM – or

“security identity module” – cards) every month, prior to the end

of the first billing cycle. Portalla referred to these as

“throwaway phones”.1

1 In June 2002, Portalla also sold a series of throwaway phones to Rick Adams. Adams met Tony Carrillo during his visits to Portalla’s store, where the three men openly discussed the Carrillos’ drug business. Portalla acted as the “middleman” when Tony Carrillo decided to sell his Chelsea cell phone store to

-2- Morever, Portalla provided other services to the

Carrillos. For example, he had kept the books for a pool hall

operated by the Carrillos, which was a center of their drug

trafficking activities. On several occasions, Portalla also

provided the Carrillos and their drug confederates with documents,

such as W-2 forms, which falsely stated that they were employed by

his company Wakefield Communications. The false documents enabled

the drug conspirators to purchase expensive houses and luxury

automobiles, from which they conducted their drug trafficking

activities.

In November 2002, Jill Parker, a confederate of the

Carrillos, told Tejada that he could obtain cell phones from

Portalla at Wakefield Communications, and provided Tejada with a

signed note to give to Portalla, which read: “Sent over.” In

January 2003, the DEA dispatched Tejada, equipped with a concealed

recording device, to the Portalla store to purchase cell phones.

When Tejada told Portalla that he had been referred by Jill Parker,

Portalla immediately asserted that Tejada would need to purchase

“throwaway” phones issued in fake names. Tejada told Portalla that

he would come back another time to buy the phones. A week later,

Tejada returned to the Portalla store, accompanied by undercover

DEA agent Joao Monteiro posing as a drug dealer in need of cell

Adams, and Portalla advised Adams how to provide throwaway phones to his customers.

-3- phones. During a recorded conversation, Portalla again described

the advantages of throwaway phones, particularly their capacity to

confound law enforcement detection. Portalla informed Monteiro

that he had provided similar services to the Carrillos. On January

21 and 30, Monteiro purchased four cell phones from Portalla, under

false names, for $600.

In February 2003, DEA agents arrested the Carrillos and

their drug confederates, and seized cell phones and pagers

purchased from Portalla. The agents arrested Portalla, then

searched his store, where they seized documents related to the

sales of cell phones to the Carrillos and Monteiro, as well as the

false employment documents Portalla had provided to the Carrillos

and their confederates to enable their purchases of houses and

automobiles.

Portalla was indicted on one count of conspiring to

distribute cocaine, 21 U.S.C. § 846, and ten counts of money

laundering, 18 U.S.C. § 1956. The jury found Portalla guilty on

the conspiracy count, as well as two money laundering counts. In

due course, the district court imposed a 120-month prison term.

Portalla now appeals from the judgment of conviction.

II

DISCUSSION

A. The Conspiracy Count

Portalla first contends that the government adduced

-4- insufficient evidence to support the Count 1 conviction for

conspiring to distribute cocaine. See 21 U.S.C. § 846. We review

sufficiency-of-the-evidence challenges de novo, viewing all

evidence, credibility determinations, and reasonable inferences

therefrom in the light most favorable to the verdict, in order to

determine whether the jury rationally could have found that the

government established each element of the charged offense beyond

a reasonable doubt. United States v. Ossai, 485 F.3d 25, 30 (1st

Cir. 2007).

In order to establish the crime of conspiracy, the

government must prove the existence of a conspiracy, the

defendant's knowledge of the conspiracy, and the defendant's

knowing and voluntary participation in the conspiracy. United

States v. Ortiz, 447 F.3d 28, 32 (1st Cir. 2007). The third

“participation” element, the only one Portalla challenges on

appeal, requires that the government establish Portalla’s intention

to join the conspiracy and to effectuate the objects of the

conspiracy. United States v. Lizardo, 445 F.3d 73, 81 (1st Cir.),

cert. denied, 127 S. Ct. 524 (2006). The intention to conspire

need not be express, but may be shown by circumstantial evidence.

Id.

Portalla contends that the circumstantial evidence

against him failed to support a reasonable inference that he

intended either to agree to the Carrillos’ drug conspiracy or to

-5- advance its illicit goals. Instead, he argues, the evidence

adduced demonstrated that he was “merely indifferent” or of

peripheral significance to the success or failure of the

conspiracy. These claims are meritless.

The appeal essentially rests on Portalla's faulty

assertions that, when viewed in isolation, particular items of

government evidence (e.g., the fact that Portalla had agreed to put

one phone in Tony Carrillo’s longtime girlfriend’s name, not in a

false name which would frustrate law enforcement discovery), was

insufficiently probative of Portalla's decision to participate in

the Carrillo conspiracy, or in the alternative, that the jury

improperly ignored or discounted other evidence (e.g., the Portalla

statements that he had advised the Carrillos to “go legit,” or “let

me stay far away. I don’t want nothing to do with [the drug

dealing]”) which would tend to demonstrate that he decided not to

become a conspirator. “[J]uries are not required to examine the

evidence in isolation, for individual pieces of evidence,

insufficient in themselves to prove a point, may in cumulation

prove it. The sum of an evidentiary presentation may well be

greater than its constituent parts.” United States v. Downs-Moses,

329 F.3d 253, 261 (1st Cir. 2003) (quoting Bourjaily v. United

States, 483 U.S. 171, 179-80 (1987)). So it is here.

The government adduced evidence that Portalla knowingly

facilitated the Carrillo conspiracy on several occasions by

-6- providing them with false employment credentials in order to enable

purchases of expensive residences and vehicles, which served the

Carrillos’ drug trafficking enterprise. Portalla’s false

information enabled the Carrillos to conceal the fact that the bulk

of their income derived from illegal drug trafficking. In November

2002, Jill Parker expressly referred Tejada to Portalla as one from

whom Tejada could acquire cell phones for use in drug trafficking,

advising Tejada to tell Portalla that Parker had sent him. When

Tejada contacted Portalla and mentioned Parker, Portalla readily

volunteered to supply Tejada with cell phones under a fake name,

and advised Tejada simply to use and discard the phones after a

month and acquire a new phone under yet another false name.

Subsequently, Portalla made similar statements and proposals to

Monteiro, noting that he frequently helped the Carrillos to utilize

fake names to frustrate law enforcement detection. “[W]e require

jurors neither ‘to divorce themselves from their common sense, nor

to abandon the dictates of mature experience.’” United States v.

Morillo, 158 F.3d 18, 22 (1st Cir. 1998) (citation omitted). The

cumulative evidentiary weight of these circumstances amply

supported a finding that Portalla knowingly and voluntarily decided

to participate in the Carrillos’ drug conspiracy and to effectuate

its goals.

The Portalla effort to circumvent the jury's common-sense

determination is utterly unpersuasive. Although neither Portalla’s

-7- mere association with the Carrillos nor his mere presence during

their drug conspiracy would suffice to establish knowing and

voluntary participation in the conspiracy, see Ortiz, 447 F.3d at

32, the mere fortuity that Portalla himself did not sell the drugs,

did not exercise a leadership position within the conspiracy, and

as the provider of “peripheral” services (viz., the provision of

cell phones designed to elude law enforcement detection) was

unaware of many details of the Carrillos’ drug business, would not

foreclose a reasonable jury from convicting him as a coconspirator.

See United States v. Rodriguez-Ortiz, 455 F.3d 18, 22-23 (1st Cir.

2006) (noting that each coconspirator need not know of nor have

contact with all other members, nor know all the details of the

conspiracy or participate in each act in furtherance of it), cert.

denied, 127 S. Ct. 1010 (2007); see also U.S. Sentencing Guidelines

Manual § 3B1.1 (providing for a sentencing enhancement for

defendant’s exercise of authority or control over coconspirators).

In addition to the sale of illicit drugs, another obvious

goal of the Carrillo conspiracy was the avoidance of police

detection. See United States v. Love, 336 F.3d 643, 645 (7th Cir.

2003) (“[D]rug dealers often conceal the ownership of their cell

phones.”). In this regard, the evidence supports a reasonable

inference that Portalla knew he was helping the Carrillos conceal

the ownership of the cell phones which were essential tools of

their drug trade. See, e.g., Rodriguez-Ortiz, 455 F.3d at 21-23

-8- (holding that defendant's procurement of cell phones for drug

coconspirators constituted sufficient evidence that defendant had

joined drug conspiracy).

Portalla argues that the government simply proved that he

put one phone in the name of Tony Carrillo’s longtime girlfriend

(viz., not a fake name), notes that Carrillo once refused

Portalla’s offer to sell him a cell phone under a fake name, and

emphasizes that the police seized no physical evidence at his store

to establish that the phones he sold to the Carrillos and their

confederates were “throwaway” cell phones. However, these

assertions not only misrepresent the trial record but discount the

appellate standard of review. In his pre- and post-arrest

statements, Portalla admitted that he had supplied “throwaway” cell

phones to drug dealers, and provided the Carrillos and their

confederates with several cell phones, thus inviting the

reasonable, non-speculative inference that the several cell phones

Portalla sold to his coconspirators were also “throwaways.” See

Ossai, 485 F.3d at 30 (noting that all reasonable inferences from

the evidence are to be construed in favor of jury verdict).

Portalla further contends that he was “merely

indifferent” to the success of the Carrillo conspiracy because he

would have sold a “throwaway” cell phone to anyone, not only drug

dealers, and indeed he had done so on occasion to persons with poor

credit. See United States v. Benevides, 985 F.2d 629, 634 (1st

-9- Cir. 1993) (“A conspiracy conviction will not be sustained if the

government's evidence shows that a defendant ‘was indifferent to

the [conspiracy's] outcome altogether.’”) (citation omitted).

Whatever Portalla’s motives for particular phone sales to other

customers, however, the fact remains that Portalla sold cell phones

to the Carrillo conspirators for the express purpose of enabling

them to avoid police detection of their drug trafficking, and his

intent to foster the Carrillo conspiracy is corroborated by his

decision to provide the Carrillos and their confederates with

admittedly false employment credentials. See United States v.

Garcia-Torres, 280 F.3d 1, 4 (1st Cir. 2002) (noting that the

provider of even a “peripheral service” can be held liable as a

coconspirator where “he knew both that the drug conspiracy existed

and that the peripheral service being furnished was designed to

foster the conspiracy”).

Portalla points to evidence that arguably implies that he

affirmatively determined not to participate in the Carrillo

conspiracy, such as his statements that he had once advised the

Carrillos to “go legit,” or “let me stay far away. I don’t want

nothing to do with [the drug dealing].” First, whether Portalla

in fact made these statements to the Carrillos plainly constituted

a credibility determination for the jury. See United States v.

Edelkind, 467 F.3d 791, 793 (1st Cir. 2006), cert. denied, 127 S.

Ct. 1921 (2007). Second, neither statement is necessarily or

-10- inherently exonerative. The latter statement, for example, might

not connote Portalla’s desire to refrain from participation in the

drug conspiracy, but merely Portalla's desire that the Carrillos do

their utmost to conceal his participation in it. “‘Neither juries

nor judges are required to divorce themselves of common sense,’

where, as here, the appellant[s'] portrayal of himself as an

innocent bystander[] is ‘inherently unbelievable.’” United States

v. Cuevas-Esquival, 905 F.2d 510, 515 (1st Cir. 1990) (citations

omitted).

Finally, Portalla’s citation to cases such as United

States v. Aponte, 905 F.2d 491 (1st Cir. 1990), is unavailing. In

Aponte, for example, we found insufficient evidence to support a

conspiracy conviction where the defendant asked to join in the

conspiracy, but was refused, then introduced the conspirators to

another person who joined the conspiracy. Id. at 491. We

concluded that, despite defendant’s act of introducing another

potential coconspirator to the conspiracy, the conspirators’

refusal to allow defendant to participate in the conspiracy

necessarily rendered him “indifferent” because it prevented him

from having any stake in the conspiracy’s outcome. Id. By

contrast, here the government adduced evidence that Portalla was

eagerly accepted into the Carrillo conspiracy, and repeatedly

provided it with services essential to its success. We therefore

affirm Portalla’s conspiracy conviction pursuant to 21 U.S.C. §

-11- 846.

B. The Money Laundering Counts

Portalla maintains that the government adduced

insufficient evidence to support his conviction under the two

money-laundering counts because Monteiro never told him that the

$600 that he used to purchase the four throwaway cell phones

constituted drug proceeds, nor was that sum of money sufficient to

infer any such an illegal provenance. See 18 U.S.C. § 1956(a)

(requiring that the government prove, inter alia, that the property

used in the money-laundering transaction be represented as drug

proceeds). We disagree.

The government need not establish that Monteiro expressly

stated that the $600 constituted drug proceeds, provided that the

totality of the circumstances, as revealed by all the evidence,

would lead a reasonable person to draw that conclusion. See United

States v. Castellini, 392 F.3d 35, 46 (1st Cir. 2004); United

States v. Kaufmann, 985 F.2d 884, 893 (7th Cir. 1993). Monteiro

presented himself to Portalla as a drug dealer, expressed his

interest in purchasing “throwaway” phones under false names,

boasted that he could afford courtside seats for the Celtics, and

expressly admitted to Portalla that he had considered laundering

money through the Carrillos’ pool hall. Under these circumstances,

the jury rationally could find that Portalla reasonably would have

inferred that Monteiro was plowing his illicit drug profits back

-12- into his drug business. Cf. id. at 893-94 (finding sufficient

evidence on “representation” element where car buyer stated he was

a drug dealer, and that he wanted to buy the car with cash, using

a false name). We accordingly affirm Portalla’s money-laundering

convictions pursuant to 18 U.S.C. § 1956(a).

Affirmed.

-13-