USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 94-2122
UNITED STATES,
Appellee,
v.
NOEL FEMIA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Kirsten M. Lacovara, with whom James E. Carroll and Peabody &
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Arnold were on brief for appellant.
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Heidi E. Brieger, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for appellee.
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June 16, 1995
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BOWNES, Senior Circuit Judge. Defendant-appellant
BOWNES, Senior Circuit Judge.
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Noel Femia appeals from a jury conviction of conspiring to
possess with intent to distribute quantities of cocaine, in
violation of 21 U.S.C. 841(a)(1). Defendant forwards four
issues on appeal which we consider seriatim. We affirm
defendant's conviction.
1. The Alleged Violation of the Jencks Act - 18 U.S.C.
1. The Alleged Violation of the Jencks Act - 18 U.S.C.
_________________________________________________________
3500
3500
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The factual basis for this issue is the accidental
destruction of certain tape recordings by a DEA agent. This
is the second time we have been called upon to decide the
legal consequences of the destruction of the tape recordings.
Some historical exegesis is necessary, most of which is taken
from our prior opinion, United States v. Femia, 9 F.3d 990
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(1st Cir. 1993) ("Femia I").
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An indictment against defendant and eight other
alleged co-conspirators was filed in the district court on
October 3, 1986. Femia was not arrested until July 16, 1992.
The facts relevant to the tape recordings can be summarized
as follows.
Cristopher LaPlante was the bookkeeper and one of
the founding members of a large-scale cocaine operation,
known as Triple X. The DEA started investigating Triple X in
1985. LaPlante entered into a plea bargain with the DEA. As
part of the plea agreement, LaPlante covertly made twenty-
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four tape recordings of conversations he had with co-
conspirators or customers of Triple X. The DEA set up three
files for three of the alleged co-conspirators, Perea, Stone,
and Femia. The LaPlante tapes were physically stored in the
Perea file, which was cross-referenced to the other two
files.
Trial of Femia's alleged co-conspirators was held
in 1987. At this time Femia was still at large. The eight
defendants were convicted either by trial or guilty pleas.
Subsequent to those convictions, a DEA agent, newly-assigned
to the case, authorized the destruction of all the LaPlante
tapes contained in the Perea file.
After his arrest and arraignment, Femia moved to
suppress the testimony of LaPlante, a key government witness,
on the ground that the destruction of the tapes violated his
constitutional right to due process as annunciated in Brady
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v. Maryland, 373 U.S. 83 (1963). The district court granted
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Femia's motion to suppress. The government appealed. We
reversed the district court, finding that there was no due
process violation because the tapes were "not destroyed in
bad faith." Femia I, 9 F.3d at 994. We also pointed out
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that the district court had made no bad faith finding
relative to the destruction of the tapes. Id. at 996. After
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remand, the case was tried. The district court rejected
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Femia's claim that the destruction of the tapes was a
violation of the Jencks Act.
We start our analysis of this issue by quoting the
district court's written rejection of defendant's Jencks Act
claim:
Defendant also contends that
judgment of acquittal as to
Count 1 is appropriate because
the government violated the
Jencks Act, 18 U.S.C. 3500.
He bases this claim on the
government's destruction of
tape recordings made by its key
witness, Cristopher LaPlante,
and allegedly containing
statements amounting to Jencks
material. The Jencks Act
provides that a court shall,
upon defendant's request, order
the government to produce
statements made by its witness
which relate to the witness's
testimony. 18 U.S.C. 3500
(1970). Such statements may be
used solely for impeachment
purposes. Palermo v. United
__________________
States, 360 U.S. 343, 349
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(1959). Defendant speculates
that the tapes revealed the
identities of large scale drug
suppliers, thereby containing
statements related to
LaPlante's testimony. Because
the tapes were destroyed I
cannot review them and thus
assess whether they fall within
the purview of the Jencks Act.
The record does not, however,
require me to make the
"dubious" inquiry of
"reconstruct[ing] a [tape] no
longer in existence using 'the
very witness whose testimony
the defendant seeks to
impeach.'" United States v.
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Carrasco, 537 F.2d 372, 377
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(9th Cir. 1976) (quoting United
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States v. Johnson, 521 F.2d
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1318, 1320 (9th Cir. 1975)).
Here, the affidavits of Agent
Reilly and Detective Kinder,
which stated that the missing
tapes "contained general
conversations that were not
specifically relevant to the
Triple X investigation,"
support the ruling at trial
that the missing tapes were not
"Jencks Act materials with
respect to the matters about
which the government inquired
on direct . . . ."
(Footnote omitted.)
We review the district court's ruling for abuse of
discretion. United States v. Augenblick, 393 U.S. 348
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(1969). Augenblick involved, inter alia, missing tapes that
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were, without doubt, covered by the Jencks Act. The Court
held that the ruling by the law officer and Board of Review
that the tapes need not be produced under the Jencks Act was
not an abuse of discretion. Id. at 355. In Palermo v.
___ _______
United States, 360 U.S. 343 (1959), the Court held that the
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final decision as to production of Jencks Act statements
"must rest . . . within the good sense and experience of the
district judge . . . ." Id. at 353. In United States v.
___ ______________
Foley, 871 F.2d 235, 239 (1st Cir. 1989), we found not
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clearly erroneous the district court's ruling that so-called
"302's" were not statements covered by the Jencks Act.
The pertinent parts of the Jencks Act provide:
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After a witness called by
the United States has testified
on direct examination, the
court shall, on motion of the
defendant, order the United
States to produce any statement
(as hereinafter defined) of the
witness in the possession of
the United States which relates
to the subject matter as to
which the witness has
testified. If the entire
contents of any such statement
relate to the subject matter of
the testimony of the witness,
the court shall order it to be
delivered directly to the
defendant for his examination
and use.
18 U.S.C. 3500(b).
The term "statement", as
used in subsections (b), (c),
and (d) of this section in
relation to any witness called
by the United States, means--
. . . .
a stenographic, mechanical,
electrical, or other recording,
or a transcription thereof,
which is a substantially
verbatim recital of an oral
statement made by said witness
and recorded contemporaneously
with the making of such oral
statement;
18 U.S.C. 3500(e)(2).
There is nothing in the record indicating that any
of the destroyed tapes contained statements related to the
subject matter of LaPlante's testimony. On the other hand,
the missing tape observation we made in Femia I is a strong
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indication that the tapes did not contain Jencks Act
statements:
The evidence before the
district court showed that any
missing evidence--whether one
considers allegedly missing
fragments of the tapes for
which copies exist or those
tapes which no longer exist in
any form--did not possess
exculpatory value apparent
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before law enforcement
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destroyed the tapes. Agent
Reilly and Detective Kinder
provided affidavits stating
that the destroyed tapes
contained no references to
Femia, his code names or
numbers. Agent Reilly also
explained that any tape
containing references to Femia
would have been transcribed.
Femia I, 9 F.2d at 995.
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In light of the facts and the applicable law, we
rule that the district court neither abused its discretion
nor clearly erred in finding and ruling as it did. We think
its decision was clearly correct.
2. Whether the Supplemental Jury Instruction on Conspiracy
2. Whether the Supplemental Jury Instruction on Conspiracy
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Was Reversible Error
Was Reversible Error
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The only way to understand this issue is to
replicate what happened. After deliberating for sometime,
the jury submitted two written questions to the judge. She
responded as follows:
Members of the jury, let me
respond to your note, do it one
at a time, and so I will state
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for the record, for Mr.
Laughlin, each question.
Question 1 is: Restate the
charges.
I interpret that to mean the
accusations against Mr. Femia.
I assume that's what you meant,
that you didn't wish me to give
you the instructions all over
again.
There are two sets of
charges. Count 1 accuses the
defendant of having been a
member of a conspiracy to
distribute cocaine. That's
Count 1.
There are two -- there's one
entirely separate set of
charges, Counts 22 through 45,
that accuse the defendant of
having possessed on specific
dates, specific amounts of
cocaine with the intent to
distribute that cocaine.
That's the second set of
charges.
Now, let me go back for a
moment and explain again to you
each of these.
With respect to Count 1, the
conspiracy charge, the
government has to prove, first,
that there was an agreement
between two or more people, not
necessarily Mr. Femia, could
have been anybody. The
indictment names some people,
but any two people, that there
was an agreement between any
two people to distribute
cocaine. That's the first
thing it has to prove.
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The second thing it has to
prove is that Mr. Femia at some
point, while this agreement,
this conspiracy was in
existence, willfully, that is,
with an intent to violate the
law, became a member of that
conspiracy. That's what the
government has to prove.
The second question was:
In Count 1, is paragraph 1 the
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summation of charges against
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Mr. Femia, or is paragraph 2b
(Count 1) part of the summation
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of charges or simply an
explanation of charges in
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Counts 22-45. Specifically--is
the defendant charged with
conspiracy to distribute
cocaine or conspiracy to
distribute the specific 47
kilograms named in paragraph
2b. (Id.)
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The judge answered the question thus:
Now you also inquired about
Paragraph 2B [b] in this
indictment. The conspiracy
charge sets out, in general,
what the conspiracy was all
about. It then goes on in
Paragraph 2 to describe, in
general, the role that various
of the defendants played in
this conspiracy. And then it
goes on in Paragraph 3 and its
various sub parts to say what
the purpose of this, the object
of this conspiracy was. And it
kind of goes on and on and on
about that.
In Paragraph 2B [b], the
government says what it -- what
it says Mr. Femia did. But in
your deliberating on your
verdict and deciding this case,
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you should base, base your
verdict not on what the
indictment says, but on all of
the evidence. Taking all of
the evidence, you need to
decide what Mr. Femia did, what
Mr. Femia knew, what the
circumstances were.
And then based on all of
that, all the evidence in the
case, what the witnesses told
you, what the exhibits tell
you, did he willfully become a
member of the conspiracy? And
specifically did the government
prove and convince you that
beyond a reasonable doubt that
he -- there was this agreement
and that he willfully became a
member of the conspiracy.
The first paragraph of Count One of the indictment
charged nine named persons including Femia:
defendants herein, did
knowingly and intentionally
combine, conspire, confederate
and agree with each other,
. . . and with other persons to
commit an offense against the
United States, namely to
possess with intent to
distribute, and to distribute,
quantities of cocaine, a
Schedule II narcotic controlled
substance, in violation of
Title 21, United States Code,
Section 841(a)(1).
Paragraph 2b of Count One of the indictment states:
b. Defendant Noel Femia
also supplied large quantities
of cocaine to Triple X. From
July 1984 to April 1985,
defendant Noel Femia caused the
delivery of approximately
forty-seven kilograms of
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cocaine, having an aggregate
wholesale value of nearly two
million dollars, to Triple X on
consignment. Following
delivery, this cocaine was sold
and distributed by members and
associates of Triple X.
By now it is axiomatic "that a single instruction
to a jury may not be judged in artificial isolation, but must
be viewed in the context of the overall charge." Cupp v.
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Naughten, 414 U.S. 141, 146-47 (1973). In this connection we
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note that defendant did not object to the original conspiracy
charge which was, of course, more extensive and detailed than
the supplemental one, but basically conveyed the same
message.
It is difficult for us to understand exactly the
basis for defendant's contention that the supplemental
instruction was erroneous. It might be inferred from
defendant's brief that he is arguing that the jury should
have been instructed that in order to convict Femia on the
conspiracy count, the government had to prove the overt acts
alleged in paragraph 2b. At the sidebar colloquy after the
supplemental instructions were given, the judge asked defense
counsel: "What do you want me to tell them?" Counsel
replied:
MR. CARROLL: This is what I
want you to say, Judge. I want
you to say that Paragraph 2B
[b] is what the government has
accused Mr. Femia of doing.
That's what they said he did in
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this conspiracy, that was his
role in the conspiracy, and the
government must prove beyond a
reasonable doubt that is what
he did.
The judge quite correctly pointed out: "No. That's not the
law."
The Supreme Court unanimously held in United States
_____________
v. Shabani, 115 S. Ct. 382, 383 (1994), that 21 U.S.C. 848
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does not require the government to prove that a conspirator
committed an overt act in furtherance of the conspiracy. We
do not think that United States v. Sepulveda, 15 F.3d 1161
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(1st Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994), is of
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any help to defendant. In Sepulveda we held:
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Here, the challenged
convictions center around a
charge of conspiracy to possess
and distribute cocaine. To
prove a drug conspiracy charge
under 21 U.S.C. 846, the
government is obliged to show
beyond a reasonable doubt that
a conspiracy existed and that a
particular defendant agreed to
participate in it, intending to
commit the underlying
substantive offense (here,
possession of cocaine with
intent to distribute, 21 U.S.C.
841(a)(1).
Id. at 1173 (citations omitted).1 That was what the
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1. Since Sepulveda, we have clarified that the "intent to
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commit the underlying substantive offense" conspiracy element
is properly construed as an "intent to effectuate the
commission of the substantive offense." United States v.
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Piper, 35 F.3d 611, 615 (1st Cir. 1994), cert. denied, 115 S.
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Ct. 1118 (1995).
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supplemental instructions charged here. And even if
Sepulveda can be read otherwise, it is trumped by Shabani.
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We find no error in the supplemental instructions.
3. Was the Evidence on the Conspiracy Count Sufficient
3. Was the Evidence on the Conspiracy Count Sufficient
___________________________________________________
for Conviction?
for Conviction?
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In reviewing the record to determine whether the
evidence was sufficient to convict, we assess the evidence in
the light most favorable to the government.
The well-established
standard for evaluating
sufficiency claims requires us
to review the evidence as a
whole, including all reasonable
inferences from that evidence,
in the light most favorable to
the government. If, in so
doing, we find that a rational
trier of fact could find guilt
beyond a reasonable doubt, we
have no option but to affirm
the jury's verdict. We may not
weigh the evidence, and all
credibility questions must be
resolved in favor of the
verdict.
United States v. Argencourt, 996 F.2d 1300, 1303 (1st Cir.
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1993) (citations omitted), cert. denied, 114 S. Ct. 731
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(1994). See also United States v. De La Cruz, 996 F.2d 1307,
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1311 (1st Cir.), cert. denied, 114 S. Ct. 356 (1993); United
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States v. Innamorati, 996 F.2d 456, 469 (1st Cir.), cert.
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denied, 114 S. Ct. 409 (1993).
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Applying this focus to the record we summarize the
evidence. Cristopher (Cris) LaPlante, the chief witness for
the prosecution, testified that he, Alan Stone, and Edward
Intinarelli pooled their resources and shared their contacts
to form a drug cartel in 1984 for the purpose of purchasing
and selling cocaine and marijuana. The cartel was known as
"Triple X" or "XXX." Defendant was a drug supplier for Stone
and Intinarelli. LaPlante met with defendant "numerous
times" to further Triple X's business. LaPlante explained
that those who did business with Triple X were given code
names and numbers. Defendant's code name was Max and his
code number was 86. After a raid on Intinarelli's house, the
code numbers were changed in January of 1985 "to protect the
identities of the suppliers and the customers and the
employees." Defendant's new code number was 898. Defendant
was contacted through Fem's Gas Station on Route 35 in
Framingham, Massachusetts, which he owned. Defendant told
LaPlante that he intended to use the proceeds from the
cocaine sales to build a housing development on a large tract
of land he owned and then retire. LaPlante saw entries about
defendant in a notebook, used by Intinarelli to record drug
transactions.
Phillip Moore was an employee of Triple X. His
duties consisted of holding the cocaine ("sitting on it")
prior to sale, breaking it up into small saleable amounts,
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and delivering it to customers. He was paid $1,000 a week.
Moore introduced defendant to Stone in the spring of 1984; he
told Stone that defendant could supply him with cocaine.
Moore testified about three cocaine transactions involving
defendant. All three followed the same format. Moore parked
his car unlocked in a parking lot. He then went into an
adjacent bar. Defendant subsequently joined him and they had
a drink together. Within a short time, defendant would tell
Moore that he should leave. Moore would then leave the bar
and get into his car. Each time this scenario was played
out, there was a package of cocaine wrapped in duct tape on
the back seat of the car. Moore took the cocaine back to the
"safe" house where he weighed and tested it. Moore then
"sat" on the cocaine until he received instructions from
Stone. He then broke it up into small amounts and delivered
it to customers.
Christine Lenhard testified under a grant of
absolute immunity. She worked for Triple X as a "mule"; she
delivered cocaine to purchasers and picked up the money. She
was paid $1,000 a week by Triple X. She was romantically
involved with defendant. The Triple X partners that she knew
personally were LaPlante and Intinarelli. Lenhard knew
defendant's code name and number. She knew, based upon
observations and her work for Triple X, that defendant
supplied the cartel with cocaine.
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Donna Dinallo-Beane also testified under a grant of
absolute immunity. She lived with LaPlante during Triple X's
operations and, like Lenhard, was employed by Triple X as a
"mule." She knew beyond doubt that defendant supplied
cocaine to Triple X.
Based upon the evidence and the reasonable
inferences to be drawn from it, we find that it was
sufficient to sustain defendant's conviction on the
conspiracy count.
4. The Refusal of the District Court to Grant a Judgment of
4. The Refusal of the District Court to Grant a Judgment of
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Acquittal on Counts 22-24 of the Indictment or to Dismiss
Acquittal on Counts 22-24 of the Indictment or to Dismiss
_________________________________________________________
These Counts with Prejudice.
These Counts with Prejudice.
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This rather unique issue requires some explanation.
The indictment charges as follows:
COUNTS TWENTY-TWO THROUGH
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FORTY-FIVE: (21 USC 841(A)(1)
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- Possession of Cocaine with
Intent to Dist.; 18 USC 2 -
Aiding & Abetting)
The Grand Jury further charges
that:
1. On or about the dates
listed below, at Ashland,
Concord, Framingham, Gardner,
Holliston, Hopkinton, Hudson,
Marlborough, Milford, Natick,
Northboro, Upton and elsewhere
in the District of
Massachusetts,
2. NOEL FEMIA a/k/a
"ABDULE" a/k/a "MAX"
a/k/a "#86"
[and others]
defendants herein, acting in
concert and in furtherance of
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the conspiracy described in
Count One, did knowingly and
intentionally possess with
intent to distribute, and did
distribute, the following
quantities of cocaine, a
Schedule II narcotic controlled
substance.
Then follows a three-column list. The first column
is entitled "Count" and under it are listed in chronological
order the words "Twenty-Two" through "Forty-Five." The
second column is headed "DATE" and opposite each numbered
count are specific dates starting with "July 24, 1984"
opposite "Twenty-Two" and ending with "March 22, 1985"
opposite "Forty-Five." The third column is entitled "Amount"
"(approximate"). Listed in this column to correspond with
the count and date columns are amounts in kilograms and
grams. Defendant was charged in Counts Twenty-Two through
Forty-Five with possessing with intent to distribute and
distributing specific amounts of cocaine on specific dates.
The jury found defendant not guilty on Count Forty-
Five, but did not return any verdicts on Counts Twenty-Two
through Forty-Four. In effect, there was a hung jury as to
these counts. The government moved that Counts Twenty-Two
through Forty-Four be dismissed without prejudice. Defendant
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objected and moved for judgment of acquittal on the counts,
or, in the alternative, that they be dismissed with
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prejudice. A hearing was held. The district court granted
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the government's motion and denied defendant's motions. The
trial judge stated:
Defendant's assertion as to
Counts 22 through 44 is
similarly unpersuasive. He
insists that since the
government offered the same
proof for Counts 22 through 44
as for Count 45 -- LaPlante's
testimony and certain ledgers
he maintained -- it was an
aberration that the jury did
not acquit him on those counts
as well. In fact, the
government did not simply
duplicate the evidence for each
count. Although LaPlante was
the key witness as to all
substantive charges, each
charge reflected a separate
transaction and corresponding
entry in the ledger and the
testimony was, in fact,
different as to each. Matters
of credibility are for the jury
and it may believe some
portions of a witness's
testimony and disbelieve
others. United States v.
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Jackson, 778 F.2d 933, 942 (2d
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Cir. 1985) (upholding
instruction that "jurors are
not required to reject or
accept any particular witness's
testimony in toto.") Since the
evidence, if believed, was
sufficient to sustain
convictions as to Counts 22
through 44, judgment of
acquittal is inappropriate.
See Fed. R. Crim. P. 29(a).
___
Defendant's renewed motion for
judgment of acquittal is
therefore denied.
At the sentencing hearing I
allowed the government's motion
to dismiss without prejudice
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these same counts (Counts 22-
44). For the reasons outlined,
defendant's alternative motion
to dismiss with prejudice is
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also denied.
The case law holds squarely that a defendant does
not have standing to appeal a without-prejudice dismissal of
an indictment. In Parr v. United States, 351 U.S. 513, 516-
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18 (1956), the Court held that a defendant does not have
standing to appeal the dismissal of an indictment because he
is not legally aggrieved by such action. The Court pointed
out the obvious: "The testing of the effect of the dismissal
order must abide petitioner's trial, and only then, if
convicted will he have been aggrieved." Id. at 517.
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In United States v. Moller-Butcher, 723 F.2d 189
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(1st Cir. 1983), there was an attempted appeal in which the
defendant there sought, as does the defendant here, to have
an indictment dismissed with prejudice. Citing to Parr, we
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held that "absent extraordinary circumstances, a defendant
has no standing to appeal the dismissal of an indictment."
Id. at 190. See also United States v. Holub, 944 F.2d 441,
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442 (8th Cir. 1991); United States v. Reale, 834 F.2d 281,
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282 (2d Cir. 1987); United States v. Day, 806 F.2d 1240, 1242
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(5th Cir. 1986). We see no extraordinary circumstances here.
We cannot help but observe, however, that because
defendant has been convicted on the conspiracy count there
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seems little reason for keeping the indictment alive much
longer.
The judgment below is Affirmed.
Affirmed.
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