United States v. Berthoff

• Court: Court of Appeals for the First Circuit
• Decided: November 29, 1995
• Docket: 94-1714
• Status: Published

Opinion

USCA1 Opinion

November 29, 1995     [NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                                     
                                 ____________________



        No. 94-1714



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                FREDERIC W. BERTHOFF,



                                Defendant, Appellant.



                                                     
                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________


____________________



                                Selya, Circuit Judge,
                                       _____________



                            Coffin, Senior Circuit Judge,
                                    ____________________



                               and Cyr, Circuit Judge.
                                        _____________



                                                     
                                 ____________________


Michael C. Andrews, with whom Brian J. McMenimen was on brief for
             __________________            __________________

        appellant. 

             William C.  Brown, Attorney,  Appellate  Division, Department  of
             _________________

        Justice, with whom  Donald K.  Stern, United States  Attorney, was  on
                            ________________

        brief for appellee.



CYR,  Circuit  Judge.    Along  with  five  associates,
                    CYR,  Circuit  Judge.
                          ______________



          appellant Frederic  W. Berthoff was indicted  on seventeen felony



          charges.   Following a jury trial, he was convicted of conspiring



          to possess marijuana  and hashish with  intent to distribute,  21



          U.S.C.    841, 846  (Count 1), possessing hashish with  intent to



          distribute,  id.   841 (Count 2), and money laundering, 18 U.S.C.
                       ___



            1956(a)  (Counts 7-14).  We affirm the district court judgment.


I
                                          I



                                     BACKGROUND1
                                     BACKGROUND
                                     __________



                    On several  occasions between  1984 and 1986,  Berthoff



          enlisted Brad Welch, Stephen Marble and Albert Mello to transport



          marijuana  and its proceeds from Florida and Arizona to Massachu-



          setts.   Berthoff himself went  along on at  least one trip.   In



          addition, between 1984 and 1991 Berthoff sold large quantities of



          marijuana  to or  through Welch,  Mello, Thomas  Cimeno, and  Wes



          Schifone. 
                    



                    During the  1986-87 period, Berthoff expanded the scope



          of  his illegal drug operation by arranging to finance and import



          4,000  pounds of  hashish from  Portugal for distribution  in the
                            _______



          United  States.   Some of  the hashish  was stored  at Berthoff's



          Massachusetts residence.   It was sold  both within Massachusetts



          and  elsewhere.  In 1988,  Scott Holland, a  coconspirator in the



          hashish  importation, was arrested on unrelated criminal charges.



                              
          ____________________



               1We relate the evidence  in the light most favorable  to the

          verdicts.   United States v.  Tuesta-Toro, 29 F.3d  771, 773 (1st
                      _____________     ___________

          Cir. 1994), cert. denied, 115 S. Ct. 947 (1995). 
                      _____ ______



                                          2



Shortly  thereafter,  Berthoff  reassured another  coconspirator,



          Cimeno, that  Holland would not  inform on them  because Berthoff



          was  selling Holland's  share  of the  hashish,  and holding  the



          proceeds for Holland. 



                    In  November  1988,  Berthoff  and  Mello  traveled  to



          Zurich, Switzerland,  where they opened a bank account and depos-



          ited $90,000 in drug proceeds.  Upon his return to Massachusetts,



          Berthoff wrote the Swiss bank and authorized a $75,000 withdrawal



          and wire transfer  to Mello  in Massachusetts.   After Mello  re-



          ceived the transfer, he drove to Key West, Florida, and deposited



          the proceeds  in a  bank account  previously established  for the



          purpose.  The funds  eventually were transferred by Mello  into a



          corporate  bank  account  controlled  by Berthoff.    On  another



          occasion,  Berthoff  made  a  $100,000  interest-free  loan  from



          illegal drug  proceeds to Cimeno, insisting that Cimeno repay the



          loan  with checks identifying the  payments as returns  on a real



          estate investment.


II
                                          II



                                      DISCUSSION
                                      DISCUSSION
                                      __________



          A.   Count 1
          A.   Count 1
               _______



                    Count I  charged  Berthoff and  five codefendants  with



          conspiring  to  possess  and  distribute  marijuana  and  hashish



          between  1984 and  1991.  Berthoff  contends that  the government



          improperly charged a single ongoing  drug-distribution conspiracy



          which encompassed all the  alleged marijuana and hashish transac-



          tions, and  that it  did so  because all  but  the 1987  hashish-
                                               ___  ___



                                          3



related conduct would have been time-barred had separate conspir-



          acies  been charged.  Thus,  he asserts, a  single conspiracy was
                                                      ______



          alleged in  order to fortify  the government's weak  case against



          Berthoff relating to the hashish by enabling otherwise inadmissi-



          ble "prior  bad acts" evidence  (i.e., pre-1988 marijuana-related
                                                 ________ _________________



          conduct) to  be introduced at  trial.  See Fed.  R. Evid. 404(b).
          _______                                ___



          Finally, as Berthoff sees it, the government's evidence rational-



          ly  could support  only an  inference that  he had  engaged in  a



          series of isolated buy-sell arrangements (viz., multiple conspir-
          ______



          acies), see United States  v. Townsend, 924 F.2d 1385,  1394 (7th
                  ___ _____________     ________



          Cir. 1991), and thus the evidence worked a material variance from



          the single conspiracy charged in the indictment.  



                    The existence, vel  non, of a  single conspiracy is  an
                                   ___  ___



          issue of fact.  See United States v. Oreto, 37 F.3d 739, 747 (1st
                          ___ _____________    _____



          Cir. 1994),  cert. denied,  115 S.  Ct.  1161 (1995).   Thus,  an
                       _____ ______



          appellant  is faced with "a  `heavy burden' to  show the evidence



          precludes  the findings made by  the jury."   Id. (citation omit-
                                                        ___



          ted).   Viewing the evidence and all fair inferences therefrom in



          the light most favorable to the government, a guilty verdict will



          not  be disturbed unless no  rational jury could  have found that



          each  element of the offense was  established beyond a reasonable



          doubt.   See United States v. Tuesta  Toro, 29 F.3d 771, 776 (1st
                   ___ _____________    ____________



          Cir. 1994), cert. denied, 115 S. Ct. 947 (1995).  
                      _____ ______



                    We  find  that the  variance  claim  fails because  the



          government  adduced  sufficient evidence  at  trial  to enable  a



          rational inference that there was a single conspiracy, as alleged


4



in  the indictment.  See, e.g., United States v. Bello-Perez, 977
                               ___  ____  _____________    ___________



          F.2d 664, 667-68  (1st Cir.  1992) ("pursuant to  their tacit  or



          express agreement, [the conspirators] knowingly and intentionally



          'directed their  efforts towards  the accomplishment of  a common



          goal or overall plan' to  commit the substantive offense  charged



          in the indictment.") (citation omitted).  The overarching goal of



          Berthoff's constantly expanding  operation was drug  trafficking,



          whether in marijuana or hashish.  The government established that



          there  was a significant overlap  in the timing  of the marijuana



          and hashish operations, as well as consistent methods of  operat-



          ing, participants,  and locations.   See, e.g., United  States v.
                                               ___  ____  ______________



          David,  940 F.2d  722,  734 (1st  Cir.  1991) (outlining  factors
          _____



          distinguishing single conspiracies  from multiple  conspiracies),



          cert.  denied, 504 U.S. 955 (1992).  For example, though Berthoff
          _____  ______



          maintains that he "hired"  Welch, Marble, and Mello to  make only



          one-time trips from Florida to Massachusetts  prior to 1986, with
          ________



          no  contemporaneous expectation or plan to "hire" them for subse-



          quent  jobs, the jury could have found otherwise based on Mello's



          testimony  alone.   Mello  testified,  in  pertinent part:    "Q.



          [defense  counsel]: You did that trip [to Florida], you got paid,



          and that was a closed chapter  as far as that trip was concerned,



          right? . . . So you had no idea whether or not you would be asked



          to make another trip a month later, did you?  A. [Mello]: I had a



          pretty good  idea I'd be asked."   We conclude that  there was no



          variance.  



                    Berthoff next  contends that the  district court should


5



have  instructed the  jury that  it could  not convict  unless it



          found a single conspiracy.   Since Berthoff asserted no contempo-



          raneous  objection, see Fed.  R. Crim. P. 30,  we review only for
                              ___



          plain error.  See United States v. Olano, 113 S.  Ct. 1770, 1776-
                        ___ _____________    _____



          77  (1993) ("plain  error" is  error that  is both  "obvious" and



          "seriously affects the  fairness, integrity or  public reputation



          of  the judicial  proceedings").   There was  no error,  plain or



          otherwise.   A  refusal to  give  a particular  jury  instruction



          cannot be challenged  successfully on appeal if  the charge given



          by  the court  substantially covered the  requested matter.   See
                                                                        ___



          United  States v.  Boylan, 898  F.2d 230,  244 (1st  Cir.), cert.
          ______________     ______                                   _____



          denied, 498 U.S. 849  (1990).  Here,  the district court gave  an
          ______



          adequate instruction.2  



          B.   Count 2
          B.   Count 2
               _______



                    Count 2  charged that Berthoff possessed  hashish, with



          intent to distribute.   The jury was misinstructed that  "you may



          not convict any of these people of this charge  unless the infer-



          ence that you draw  convinces you beyond a reasonable  doubt that



          the  person  accused  intended  to distribute  the  marijuana  or
                                                         ___  _________  __



          hashish or cause its distribution."  Although the district court,



                              
          ____________________



               2The final charge informed the jury as follows:  "Now, where

          persons join  together to further  one common unlawful  design or

          purpose,  a single conspiracy exists.  By way of contrast, multi-

          ple conspiracies  exist when  there are separate  unlawful agree-

          ments to  achieve distinct purposes.   Proof of  several separate

          and independent  conspiracies is  not proof  of a  single overall

          conspiracy charged in  the indictment unless,  of course, one  of

          the separate  conspiracies proved happens  to be the  single con-

          spiracy described in the indictment."  See Oreto, 37 F.3d at 747.
                                                 ___ _____


6



on five other occasions in its final charge, correctly instructed



          on  the evidentiary  showing required  to convict  under Count  2



          (viz., that conviction could not be based on Berthoff's post-1987



          possession  of  marijuana  only),  Berthoff  contends  that  this
                          _________  ____



          inadvertence constituted a constructive amendment of the  indict-



          ment.  See, e.g., United States v. Vavlitis, 9 F.3d 206, 210 (1st
                 ___  ____  _____________    ________



          Cir. 1993).   Since there  was no  contemporaneous objection,  we



          review for plain error.  Olano, 113 S. Ct. at 1776.3  
                                   _____



                    Evaluating  the  jury  instructions  as  a  whole,  see
                                                                        ___



          Boylan, 898 F.2d at 244, we find no "possibility that the convic-
          ______



          tion [on Count 2]  rest[ed] upon an offense not  charged." United
                                                                     ______



          States  v. Dunn, 758 F.2d 30,  36 (1st Cir. 1985).   As the trial
          ______     ____



          court  instructed the  jury,  the only  evidence that  Berthoff's
                                            ____  ________



          codefendant Scott Holland may have been connected to the conspir-



          acy charged in  Count 1  was Berthoff's admission  to Cimeno,  in
                                                                         __



          1988, that he was holding Holland's share of the hashish and that
          ____



          he  would sell it and  hold the proceeds  for Holland's benefit.4
                                                                          4

                              
          ____________________



               3Berthoff incorrectly claims on appeal that the verdict form

          exacerbated  this instructional  error.  Quite the  contrary, the

          verdict  form  indicated  that  Count 2  charged  "possession  of

          marijuana  and hashish."    The conjunctive  phrasing could  only
          _________  ___

          heighten the government's  burden of  proof.   See, e.g.,  United
          ________                                       ___  ____   ______

          States  v. Cantrell, 999 F.2d  1290, 1292 (8th  Cir. 1993), cert.
          ______     ________                                         _____

          denied, 114  S. Ct. 885 (1994).  In all events, since the indict-
          ______

          ment went to the jury room during deliberations, and the district

          court  correctly instructed with respect to Count 2 on five other

          occasions, we discern no plain error.  



               4Berthoff argues that  it was  error to deny  his motion  to

          strike  the  testimony  of three  alleged  coconspirators (Mello,

          Cimeno and Schifone) who  testified against Berthoff at  trial in

          return  for  a government  promise  to  recommend a  "substantial

          assistance"  departure.  See U.S.S.G.   5K1.1.  We find no error.
                                   ___

          See United States  v. Dailey, 759 F.2d  192, 196 (1st  Cir. 1985)
          ___ _____________     ______



                                          7



Thus, the jury could not have convicted Holland on Count 1, as it



          did,  unless it found that Berthoff had made a truthful statement



          to  Cimeno in  1988 that  Berthoff then  possessed, and  was then



          distributing, Holland's share of the hashish, see supra p. 3, the
                                                        ___ _____



          identical predicate  finding needed for  Berthoff's conviction on



          Count 2.  



          C.   Counts 7-14
          C.   Counts 7-14
               ___________



                    Count  7  charged  that  "[o]n or  about  February  10,



          1989,"5 Berthoff  laundered drug  proceeds "in  Massachusetts and



          in the Southern  District of Florida"  by transferring the  Swiss



          bank  funds to  Florida.   Berthoff  argues  that the  government



          failed to adduce sufficient evidence to establish proper venue in



          Massachusetts. See United States v. Georgacarakos, 988 F.2d 1289,
                         ___ _____________    _____________



          1293 (1st Cir. 1993) (government  must prove venue by  preponder-



          ance of evidence).  We do not agree.  

                              
          ____________________



          (noting that  where an accomplice  testifies pursuant  to a  plea

          agreement,  "the 'established  safeguards' are  that the  jury be

          informed  of  the exact  nature  of the  agreement,  that defense

          counsel be  permitted to  cross-examine the accomplice  about the

          agreement, and that the jury be specifically  instructed to weigh

          the accomplice's testimony with care"); see also United States v.
                                                  ___ ____ _____________

          Rullan-Rivera, 60 F.3d 16, 19 (1st Cir. 1995). 
          _____________



               5Berthoff  also argues  that the  Swiss bank  funds transfer

          arrived in Massachusetts in December 1988, so that  the reference

          in the indictment     that  the offense occurred  "[o]n or  about

          February  10, 1989"      was fatally  misleading.   We  have  not

          required "strict  chronological specificity or  accuracy" when "a

          particular  date  is  not  a  substantive  element of  the  crime

          charged."  United States v. Morris, 700 F.2d 427, 429 (1st Cir.),
                     _____________    ______

          cert.  denied, 461  U.S. 947  (1983).   Having been  charged with
          _____  ______

          laundering funds from Switzerland,  through Massachusetts and  on

          to  Florida, Berthoff was in no sense "misinformed of the charges

          against  him," nor did the reference to an approximate time frame

          "otherwise affect[]  his substantial  rights."  United  States v.
                                                          ______________

          Arcadipane, 41 F.3d 1, 7 (1st Cir. 1994). 
          __________



                                          8



Normally,  venue is  proper in  any district  wherein a



          criminal offense was committed.  See Fed. R. Crim.  P. 18.   Fur-
                                           ___



          ther, "[e]xcept  as otherwise expressly provided  by enactment of



          Congress,  any offense  against the  United States  begun  in one



          district  and completed in another, or committed in more than one



          district,  may be inquired of  and prosecuted in  any district in
                                                        __  ___ ________



          which  such  offense was  begun,  continued, or  completed."   18
                                            _________



          U.S.C.   3237(a) (emphasis added); see Georgacarakos, 988 F.2d at
                                             ___ _____________



          1293.  The statute further provides that "[a]ny offense involving



          the use of  mails, transportation in  interstate or foreign  com-



          merce, or the importation of an object  or person into the United



          States is a continuing offense and, except as otherwise expressly
                      __________ _______



          provided  by enactment of Congress, may be inquired of and prose-



          cuted in any district from, through, or into which such commerce,
                __ ___ ________       _______



          mail  matter, or imported object  or person moves."   18 U.S.C.  



          3237(a) (emphasis added).  Thus, the actual transfer of the funds



          from  Switzerland  to  Mello's  Massachusetts  residence  plainly



          enabled the jury to find proper venue in Massachusetts. 



                    Finally,  the remaining  money  laundering  charges    



          Counts 8-14     involved Berthoff's 1988  interest-free "loan" to



          Cimeno.  Berthoff contends that Cimeno's loan repayments were not



          competent evidence  of money laundering because  Cimeno testified



          that he used  the loan proceeds to purchase  land and construct a



          duplex, and  that he repaid  Berthoff from the  "legitimate" pro-



          ceeds realized from  the subsequent  sale of  the duplex,  rather



          than  from "proceeds of unlawful activity."  This claim is frivo-


9



lous.   The jury supportably found that Berthoff arranged the so-



          called Cimeno  "loan" for  the purpose  of filtering  the illegal



          drug  proceeds and altering their  form so as  to appear "legiti-



          mate."   See United States v. Isabel, 945 F.2d 1193, 1200-03 (1st
                   ___ _____________    ______



          Cir.  1991).  This finding  in no sense  entailed a determination



          that either  the loan to  Cimeno, or the acquisition  and sale of



          the  duplex,  transformed  the illegal  drug  proceeds previously



          deposited in the Swiss bank into proceeds from legitimate activi-



          ties. 



                    Affirmed.
                    Affirmed.
                    ________


10