Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals For the First Circuit
No. 01-2439
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT CAREY, A/K/A "POPS,"
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, United States District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Bownes, Senior Circuit Judge.
Thea A. Stewart for appellant. John A. Wortmann, Jr., Assistant United States Attorney, with whom Michael Sullivan, United States Attorney, was on brief for appellee.
February 14, 2003 BOWNES, Senior Circuit Judge. Defendant-Appellant Robert
Carey ("Carey") appeals from his conviction and subsequent
sentencing in the United States District Court for the District of
Massachusetts. Count One charged Carey along with Chamond
Henderson ("Henderson") and Kimberly Powers ("Powers") with
conspiring to possess with intent to distribute more than 50 grams
of crack cocaine in violation of 21 U.S.C. § 846.1 Carey,
Henderson, and Powers were also charged in Count Five with
possessing crack cocaine with intent to distribute it and with
distribution in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §
2.
Carey and Henderson were tried jointly. Both were
convicted and appealed separately. Henderson's appeal is also
before us, and is the subject of a separate opinion. See United
States v. Henderson, No. 01-2392. Powers entered into a plea
bargain with the government and testified at the trial.
I. THE EVIDENCE
In October 1998, the Drug Enforcement Administration
("DEA") began an investigation into crack cocaine trafficking in
Worcester, Massachusetts. Special Agents Timothy Anderson and
Robert Guerard of the DEA used Joseph Mozynski ("Mozynski"), a
1 Grams and ounces are used interchangeably throughout this opinion. It should be noted that one ounce equals 28.35 grams. See United States Sentencing Commission, Guidelines Manual, § 2D1.1, comments. (n.11) (Nov. 2002).
-2- known crack cocaine user, to serve as a cooperating witness.
Mozynski made four purchases of significant quantities of crack
cocaine during the investigation. The DEA wired Mozynski with a
concealed monitoring device that enabled agents to tape record the
drug transactions. The first of these drug transactions occurred
at Carey's house on 6 Denny Street. The subsequent transactions
originated at Carey's house but were completed at various locations
within a two-block radius.
During the first transaction, on October 19, 1998,
Mozynski purchased 23.7 grams of crack cocaine from co-defendant
Henderson at Carey's house. Prior to October 19, Carey told
Mozynski that all he needed was "24 hours notice to get the deal
done." Mozynski and Carey agreed that Mozynski would pay $1,200
for 25 grams of crack cocaine, with Carey getting $200 for
facilitating the deal, and that Mozynski would pick up the crack
cocaine at Carey's residence. On October 19, Mozynski entered
Carey's house and met with Carey, co-defendant Powers, and a woman
named Lynn Cappulett. Carey paged Henderson after Mozynski showed
Powers the $1,200. When Henderson called, Carey answered and
handed the phone to Powers. Powers told Henderson that Mozynski
was there with the money, and then informed Mozynski that Henderson
would arrive within five minutes. Henderson called one minute
later, and Carey again answered the phone and gave it to Powers.
Carey also told Mozynski that he wanted his $200 for setting up the
-3- deal. Shortly thereafter, Henderson arrived at Carey's residence.
Henderson, Mozynski, and Powers went into a bedroom where Henderson
gave Mozynski 23.7 grams of crack cocaine in exchange for $1,200.
Henderson and Mozynski discussed doing larger deals in the future,
and Henderson told Mozynski to contact him through Powers. Carey
later became angry because he did not get the $200 he expected to
receive from the drug deal. Carey told Powers that he was upset
because he had been cut out of the deal and lost money as a result.
On October 27, 1998, Mozynski met Powers at Carey's
residence. Carey told Powers "I don't want nobody around here,"
and "[i]ts got nothing to do with me and you know it." Mozysnki
and Powers left Carey's house and successfully conducted a drug
transaction with Henderson in the basement of Henderson's apartment
building. On November 3, 1998, Mozysnki again met Powers at
Carey's house, but left to conclude a drug transaction with
Henderson in the basement of his apartment.2
On November 16, 1988, Mozynski met with Carey and Powers
at Carey's house. Thereafter, Powers and Mozynski left the house
and conducted another drug transaction with Henderson at a
different location, except this time Henderson sold them wax. Once
the agents realized that Henderson had sold wax rather than crack
cocaine, they directed Mozynski to contact Henderson. Mozynski
2 For a more detailed account of the October 27, and November 3, 1998, transactions, see Henderson, No. 01-2392.
-4- unsuccessfully attempted to contact Henderson and Powers, and then
called Carey. Carey agreed to call Henderson to "find out what
happened." After waiting to get a response by phone, the agents
instructed Mozynski to go to Carey's residence in order to talk to
Carey directly.
Mozynski went to Carey's residence three separate times
to speak with Carey. Thereafter, Carey tried to arrange the
delivery of crack cocaine from Henderson. Carey called Henderson
on the phone so that Mozynski and Henderson could further discuss
Henderson's delivery of the crack cocaine to Agent Guerard. Carey
even provided Mozynski with Henderson's pager number, which
Mozynski subsequently gave to Agent Guerard. Agent Guerard paged
Henderson, who returned the page and promised to deliver one ounce
of crack cocaine on the following day, and two-and-one-half ounces
on the day after that. On November 17, 1998, Mozynski arranged
with Henderson, through Powers, to receive the one ounce of crack
cocaine promised by Henderson to Agent Guerard. Mozynski met
Powers on Goulding Street in Worcester, two blocks away from
Henderson's apartment building. Henderson gave a package
containing 19.68 grams of crack cocaine to Powers and Powers then
gave the crack cocaine to Mozynski.
Additional evidence relevant to Carey included testimony
at trial by Powers that she saw Carey sell crack cocaine "hundreds
of times" and that his supplier was Henderson. Powers said that
-5- she saw Carey purchase crack cocaine from Henderson at least one
hundred times, and that Carey either used the crack cocaine himself
or resold it to his own customers. Powers further testified that
both she and Carey sold crack cocaine out of Carey's residence.
There was other evidence of Carey's drug sales. Mozynski
testified that he purchased crack cocaine from Carey on a separate
occasion in early October 1998. A recorded conversation between
Carey and Mozynski at Carey's house included a statement by a third
person asking Carey for $20 worth of crack cocaine. At the time of
Carey's arrest, agents seized quantities of crack cocaine and more
than $1,000 cash from Carey's house.
II. THE ISSUES
A. Sufficiency of the Evidence
1. Testimony of Powers and Mozynski
Carey argues that the government's evidence was
insufficient to support the jury verdict against him for conspiracy
to distribute crack cocaine and for aiding and abetting the
distribution of crack cocaine. In considering Carey's sufficiency
claims, we must "view the evidence, together with all reasonable
inferences that may be drawn therefrom, in the light most favorable
to the government" and consider whether a rational fact finder
could have found guilt beyond a reasonable doubt. United States v.
Loder, 23 F.3d 586, 589 (1st Cir. 1994) (internal quotations
-6- omitted). We review "the totality of the evidence, both direct and
circumstantial." United States v. Czubinski, 106 F.3d 1069, 1073
(1st Cir. 1997). All issues of credibility must be resolved in
favor of the verdict. United States v. Nueva, 979 F.2d. 880, 883
(1st Cir. 1992).
To prove conspiracy in a criminal case, the government
must demonstrate beyond a reasonable doubt that an agreement
existed to commit the underlying substantive offense, that the
defendant knew of the agreement, and that he opted to join the
conspiracy with the intention that the substantive offense be
committed. See United States v. Barnes, 244 F.3d 172, 175 (1st
Cir. 2001). To convict Carey of the conspiracy charge, the
government had to prove beyond a reasonable doubt that Carey
intended to agree and intended that crack cocaine be possessed and
distributed. See United States v. Cruz, 981 F.2d 613, 616 (1st
Cir. 1992). "The agreement may be express or tacit and may be
proved by direct or circumstantial evidence." United States v.
Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993).
Carey argues that there was no reliable evidence showing
any agreement on his part to enter into a conspiracy to distribute
crack cocaine. Specifically, he contends that the testimony of
Powers and Mozynski was "inherently unreliable," and failed to
establish his participation in the conspiracy. We disagree.
-7- This circuit has held that "[u]ncorroborated testimony of
a cooperating accomplice may sustain a conviction so long as that
testimony is not facially incredible." United States v. Torres-
Galindo, 206 F.3d 136, 139-40 (1st Cir. 2000). The testimony of
Powers and Mozynski was not only corroborated and credible, but
also established Carey's participation in the conspiracy. Each
witness' testimony about Carey's involvement in the drug deals was
corroborated by the fact that the first deal took place at Carey's
house; the fact that crack cocaine and cash were found in Carey's
home at the time of his arrest; and the fact that Carey made
incriminating statements which were recorded throughout the
investigation. In addition, while Powers and Mozynski had
questionable backgrounds that called their credibility into
question, those issues were aired before the jury throughout the
trial. The jury also was instructed that it was to assess the
credibility of the witnesses in reaching a verdict of guilt beyond
a reasonable doubt.
Powers' and Mozynski's testimony further demonstrated
Carey's participation in the conspiracy. Their testimony showed
that Carey initiated the drug relationship between Mozynski and the
other members of the conspiracy. Carey agreed to sell Mozynski
crack cocaine that he would be getting from Henderson prior to
being cut out of the deal. Powers' testimony further demonstrated
that Carey distributed crack cocaine from his house throughout the
-8- period of the conspiracy, and that he made more than one hundred
crack cocaine purchases from Henderson. Mozynski additionally
testified that he had purchased crack cocaine from Carey the week
before the first charged sale. Given the sufficiency of Powers'
and Mozynski's testimony, a rational trier of fact could find guilt
beyond a reasonable doubt.
Finally, Carey asserts that Powers' and Mozynski's
testimony did not support a conviction for aiding and abetting in
the distribution of crack cocaine. See 21 U.S.C. § 841(a); 18
U.S.C. § 2. We observe, however, that the identical circumstantial
and credibility assessments which permitted the jury to determine
that Carey conspired with Henderson to possess crack cocaine for
distribution suffice as well to establish, beyond a reasonable
doubt, that Carey consciously sought to distribute the crack
cocaine. See United States v. Arias, 238 F.3d 1, 5 (1st Cir.
2001).
2. Tape Recordings
We also disagree with Carey's claim that the tape
recordings did not provide additional evidence in support of his
conviction. Although it is not clear from his brief, the gist of
Carey's argument appears to be that the tape recordings did not
constitute evidence against him because they were either inaudible,
or, in the alternative, actually exculpatory. Carey contends that
the tape recordings were "all somewhat inaudible" and "difficult to
-9- hear," yet in the same breath argues that they somehow show that
"the defendant did not want any part of the transactions."
In any event, we do not find the statements he allegedly
made on the recordings exculpatory. Carey believes those comments
-- "I don't want nobody around here" and "It's got nothing to do
with me and you know it" -- indicate that he had no desire to
participate in the conspiracy. Be that as it may, his reliance on
these remarks is misplaced because they do not constitute a legally
sufficient withdrawal from the conspiracy. Cf. United States v.
Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987) ("[T]o withdraw, a
conspirator must act affirmatively either to defeat or disavow the
purposes of the conspiracy"); United States v. Dunn, 758 F.2d 30,
37-38 (1st Cir. 1985) (mere disagreement with co-conspirators is
insufficient to constitute withdrawal from conspiracy). At best,
Carey's statements constituted some evidence from which the jury
could have found that he never joined the conspiracy in the first
instance. Carey argued as much to the jurors, and they ultimately
rejected this argument.
Carey also attacks the transcripts of the tape
recordings the government provided the jury at the trial. As he
would have it, the transcripts should have not been considered as
evidence to support a conviction because they were the government's
"interpretation" of the tapes. Carey overlooks the fact that even
if it mattered who "interpreted" the recordings, the transcripts
-10- are not evidence. See United States v. Richman, 600 F.2d 286, 295
(1st Cir. 1979). The district court, sensitive to this issue, gave
a cautionary instruction to the jury explaining that "if what you
hear on the tape itself is different from what shows up on the
transcript, it's the tape that's the evidence, not the
transcripts." Thus, we are satisfied that the transcripts were
properly utilized by the court.
3. Carey's Absence
Carey further argues that his absence during the drug
deals indicated that he did not participate in the conspiracy. The
record, however, supports a finding of the opposite. We have said
that "proof of direct participation in the sale of drugs is not
required to convict in a drug conspiracy case." United States v.
Marrero-Ortiz, 160 F.3d 768, 773 (1st Cir. 1998). Here, there was
sufficient evidence from which a rational juror could find that
Carey conspired with Henderson and Powers to distribute crack
cocaine: Carey had initially set up the October 19, 1998 deal and
had repeatedly demanded that he be paid for doing so; he first
contacted Henderson about the possibility of selling ounce
quantities of crack cocaine to Mozynski; he told Mozynski that "all
he needed was 24 hours notice to get the deal done"; he allowed his
house to be used for the October 19, 1998 deal; and he facilitated
the delivery of the crack cocaine on November 17 in order to avoid
-11- a dispute between Henderson and Mozynski over the fraudulent sale
of wax.
Carey's involvement in the distribution of crack cocaine
was also corroborated by the following evidence: the November 16,
1998, tape recording where a third party was heard asking Carey for
crack cocaine; the crack cocaine and cash found in his house at the
time of his arrest; the intimate knowledge he displayed of
Henderson's trafficking activities during his taped conversation
with Mozynski on November 16; the awareness he displayed of other
drug transactions throughout the investigation; and Powers'
testimony that she saw Carey buy crack cocaine from Henderson
hundreds of times and that Carey resold it to his own customers.
In sum, based on the record, we conclude that there was
sufficient evidence for a jury to find Carey guilty beyond a
reasonable doubt.
B. Co-Conspirators' Hearsay Declarations
Carey argues that the trial court erred by improperly
admitting co-conspirator statements into evidence because there was
no evidence of a conspiracy. The court reviews a trial court's
determination that statements were co-conspirator statements
admissible pursuant to Fed. R. Evid. 801(d)(2)(E) under the clear
error standard. See United States v. Marino, 277 F.3d 11, 25 (1st
Cir. 2002). A statement offered against a party is not hearsay if
it is "a statement by a co-conspirator of a party during the course
-12- and in furtherance of the conspiracy." Fed. R. Evid. 801(d)(2)(E).
Statements of co-conspirators are admissible under Rule
801(d)(2)(E) only if the trial court finds it "more likely than not
that the declarant and the defendant were members of a conspiracy
. . . and that the statement was in furtherance of the conspiracy."
United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977).
District courts frequently allow co-conspirator statements to be
admitted provisionally, subject to the trial court's final
Petrozziello determination, which should be made "at the close of
all the evidence" and "out of the hearing of the jury." United
States v. Ciampaglia, 628 F.2d 632, 638 (1st Cir. 1980).
At the close of evidence during the trial, Carey argued
for the exclusion of the co-conspirators' hearsay statements,
reiterating his claim that the testimony of Mozynski and Powers was
inherently unreliable, and therefore should be excluded. As we
have already discussed, each witness testified that Carey was
involved in the distribution of crack cocaine and assisted in
setting up the first sale on October 19. This testimony was
corroborated by other evidence. In light of this evidence, the
district court properly admitted the co-conspirator statements.
C. The Prosecutor's Closing Argument
Carey relies exclusively on the identical, and ultimately
unavailing, claims raised by co-defendant Henderson alleging that
the government's closing argument improperly persuaded the jury to
-13- convict. We need not address these arguments here because we have
considered, and rejected, them in his co-defendant's companion
case. See Henderson, No. 01-2392.
D. The Amount of Crack Cocaine
We review factual findings by the sentencing court as to
drug quantity only for clear error. See Sepulveda, 15 F.3d at
1196. The sentencing court has broad discretion to determine what
information is "sufficiently dependable to be used in imposing
sentence." United States v. Tardiff, 969 F.2d 1283, 1287 (1st Cir.
1992). Because of the impact of quantity on the length of
sentence, the sentencing court must "err on the side of caution."
United States v. Sklar, 920 F.2d 107, 113 (1st Cir. 1990). But if
the record permits more than one plausible alternative, the
district court's choice between them cannot be deemed "clearly
erroneous." United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st
Cir. 1989).
A defendant convicted of conspiracy to distribute
controlled substances is not automatically burdened with the total
weight of the drugs involved in the conspiracy. See Sepulveda, 15
F.3d at 1197. The defendant, instead, is responsible for all drugs
he personally handled or he anticipated handling, and for drugs
involved in additional acts that were reasonably foreseeable by the
defendant and were committed in furtherance of the conspiracy. Id.
Hence, the touchstone for drug weight calculations is
-14- foreseeability. See United States v. Innamorati, 996 F.2d 456,
488-89 (1st Cir. 1993). Foreseeability is an inherently fact-bound
determination, and requires a sentencing court to make an
individualized inquiry into the details of the conspiracy known by
the defendant, including his understanding of the object of the
conspiracy and its foreseeable scope. See United States v.
O'Campo, 973 F.2d 1015, 1026 n.11 (1st Cir. 1992).
Based on the presentence report ("PSR"), the district
court included the 19.68 grams from the November 17 transaction
(which forms the basis of Carey's substantive charge) and the 23.7
grams from the October 19, 1998 transaction (for which Carey was
not substantively charged) in its determination that Carey was
responsible for 43.38 grams of crack cocaine. Under the Sentencing
Guidelines, a defendant has a Base Offense Level of 30 when he his
responsible for "at least 35 grams but less than 50 Grams of
Cocaine Base." U.S.S.G. § 2D1.1 (c)
Carey attacks his sentence by first arguing that a
discrepancy exists between the jury's finding that he was
responsible for between 5 and 50 grams of crack cocaine and the
fact that he was charged only with the distribution of 19.68 grams
of crack cocaine for the transaction on November 17, 1998. We fail
to see any discrepancy.
Carey also claims that because he was substantively
charged for only one of the four transactions (the distribution of
-15- 19.68 grams on November 17), the district court should not have
used cocaine quantities from the October 19 transaction in
calculating his sentence. He further argues that the jury did not
find him guilty of the October 19 transaction. As we have done in
the past, we reject this argument. See United States v. Amirault,
224 F.3d 9, 15 (1st Cir. 2000) ("From the standpoint of due
process, a district court may properly consider uncharged conduct
at sentencing as long as that conduct either is admitted or
reliably proved by a preponderance of the evidence"); see generally
United States v. Batista, 239 F.3d 16, 21-22 (1st Cir.), cert.
denied, 534 U.S. 850 (2001) (sentencing guidelines require
consideration of uncharged amounts of drugs "by including all
amounts that were part of the same course of conduct or common
scheme or plan as the offense of the conviction, whether or not the
defendant has been charged with those transactions"). As we have
already described, Carey was extensively involved in the October 19
transaction. Thus, drug quantities from that transaction were
reasonably foreseeable. See Innamorati, 996 F.2d at 491.
Affirmed.
-16-