January 20, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 91-1772
UNITED STATES,
Appellee,
v.
GEORGE A. MORAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
James L. Sultan with whom Margaret H. Carter and Rankin & Sultan
were on brief for appellant. George W. Vien, Assistant United States Attorney, with whom A.
John Pappalardo, United States Attorney, and Heidi E. Brieger,
Assistant United States Attorney, were on brief for appellee.
BOUDIN, Circuit Judge. Appellant George Moran and two
co-defendants were convicted by a jury, after a joint trial,
of various drug offenses. Moran was found guilty of
conspiring to distribute cocaine and was acquitted on two
other counts charging him with specific acts of distribution.
All of the defendants have appealed, but the evidence and
issues relating to Moran differ from those concerning the
other defendants and we decide his case separately.
Concluding that the evidence was sufficient to sustain
Moran's conviction for conspiracy and finding no other
errors, we affirm.
The procedural history can be briefly stated. On
August 9, 1990, Moran and a number of others were indicted
under 21 U.S.C. 846 for conspiring to distribute cocaine
and, in other counts pertaining to one or more of the
defendants, with distribution and related crimes. The co-
conspirators charged in the umbrella conspiracy count
included Moran, the alleged ringleader Hobart Willis, and
others. Before trial, Willis and three others pleaded
guilty. Moran and two other defendants were tried in
February 1991 and convicted on one or more counts. This
appeal followed.
I.
Moran's central argument on appeal is the often made,
but rarely successful, claim that the evidence was inadequate
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to support the verdict against him. In appraising such an
argument, we "assess the sufficiency of the evidence as a
whole, including all reasonable inferences, in the light most
favorable to the verdict . . . ." United States v. Lopez,
944 F.2d 33, 39 (1st Cir. 1991). So viewed, we ask "whether
a rational trier of fact could have found the defendant
guilty beyond a reasonable doubt." Id. In general, issues
of credibility are resolved in favor of the verdict. Id.
"The evidence . . . need not exclude every reasonable
hypothesis of innocence; that is, the factfinder may decide
among reasonable interpretations of the evidence." Id.
In this case Moran was tried on the charge, among
others, that he conspired with Willis and his co-defendants.
The "essence" of conspiracy is an agreement to commit a
crime, Ianelli v. United States, 420 U. S. 770, 777 (1975),
here, an agreement between Moran and others to distribute
drugs. Such an agreement may, of course, be inferred from
other evidence including a course of conduct. United States
v. Concemi, 957 F.2d 942, 950 (1st Cir. 1992). More than
that, while the term "agreement" is customarily used in
defining conspiracy and is properly employed in jury
instructions, the agreement of the defendant with others may
be implicit in a working relationship between the parties
that has never been articulated but nevertheless amounts to a
joint criminal enterprise.
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In this case, taking the evidence most favorably to the
government, the jury could have found from direct testimony,
telephone recordings and other evidence that Willis was
engaged in a drug distribution conspiracy with various
persons during 1988. As to Moran, the evidence against him
came almost entirely from one Paul Callahan, who cooperated
to some extent with the Drug Enforcement Administration.
Callahan's trial testimony came freighted with his long
criminal record, admissions that he procured false testimony
in other proceedings, and his incentive to favor the
government in order to secure favorable treatment for
himself. Nevertheless, his testimony was not incredible, was
corroborated on certain limited points, and was essentially
uncontradicted. Thus the jury was entitled to accept some or
all of Callahan's testimony.
According to Callahan, he first met Moran in 1981 but
had no further contact with him until June or July 1988 when
he had a friend give Moran his beeper number. Callahan then
met with Moran and sought to purchase cocaine from him in a
substantial amount. Moran replied that he would contact the
"fat man" (understood by Callahan to be Willis) with whom
Moran said he was dealing at the time. At their next
meeting, Moran told Callahan that the fat man's prices were
too high but that Moran had another source in the North End.
Moran also said that he was going to try to get a cheaper
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price from "Mary," a friend of the fat man later identified
by Callahan as a member of Willis' ring. Subsequently,
Callahan and Moran met again and Callahan purchased 500 grams
of cocaine from Moran, after testing it for purity.
Some weeks later, Callahan again contacted Moran, a
further meeting ensued, and Moran told Callahan--in
Callahan's words--that he (Moran) was "still looking in to
ingratiate with the fat guy." At the next meeting, Moran
offered a package of what Callahan took to be cocaine; Moran
explained that it came from the fat guy. The contents had a
diesel smell and Callahan rejected the package on the ground
that his own customers would not accept it. Moran left and
then returned several hours later with a kilo of cocaine from
an unidentified source. Callahan tested the new package and
purchased a half kilo.
The final evidence relating directly to Moran involved
two telephone calls between him and Callahan in October 1988.
The first call was not tape recorded. According to Callahan,
Moran complained during the call that federal agents were
scrutinizing him. On cross-examination Callahan indicated
that Moran also said during the call, "I saw the Pillsbury
Boy a few days ago, but that was just to say hi. . . . I
don't have nothing to do with those guys." Callahan told the
jury that the Pillsbury Boy was Willis.
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The second conversation occurred a week later, it was
tape recorded with DEA assistance, and the recording was
offered at trial. In this conversation Moran, referring to
his prior questioning by federal agents, said that it had
occurred because the agents had seen him with "fatso" two or
three times. Callahan said he had heard that the fat guy was
being scrutinized by law enforcement agents and Moran
replied, "Oh, my God. Unbelievable. I already told him and
his first lieutenant, I says, I think somebody made you
expendable." At trial Callahan identified the first
lieutenant as Mary. Callahan concluded the taped
conversation by asking Moran, "Can we do some business?" and
Moran essentially agreed (although no evidence of further
transactions between them was offered).
This, omitting a few intervening conversations between
Moran and Callahan that add nothing pertinent, is the gist of
the evidence against Moran. The jury, after hearing this
evidence and evidence of Willis' ring, acquitted Moran of the
two distribution counts based on the sales to Callahan but
convicted him of conspiracy. The reason for the discrepancy
is unclear. Possibly the jury hesitated to rely solely upon
Callahan to prove the sales, but thought that the tape of the
second conversation confirmed Moran's relationship with
Willis regarding drug distribution. But the discrepancy does
not matter. The question presented now is whether, having
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heard the evidence, including nuances and intimations that a
cold record cannot capture, a rational jury could find beyond
a reasonable doubt that Moran was guilty of conspiracy.
No court lightly overturns a jury verdict on the ground
that the jury lacked sufficient evidence, for the jury's
central role and competence is to weigh the evidence and find
the facts. Yet the issue here, or at least the aspect we
find troubling, actually poses the "legal" question whether
the conduct the jury could reasonably have found to have
occurred amounts to a conspiracy under the statute. In our
view, the jury here had no rational basis to infer, as it
often may in conspiracy cases, that the defendant was
effectively an employee or a formal "share partner" in the
ring. The most that the jury could find without sheer
speculation was that the relationship was what was portrayed
on the surface. At this point we are driven back to first
principles to determine whether this relationship amounted to
a criminal conspiracy.
Our starting point is the legal definition of conspiracy
as an agreement by the defendant with another person or
persons to commit the crime in question. Ianelli, 420 U.S.
at 777; United States v. Glenn, 828 F.2d 855, 857 (1st Cir.
1987). The evidence in this case, taken most favorably to
the government, shows that Willis agreed to supply Moran a
package which Moran represented to be cocaine, which Moran
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tendered to Callahan, and which Callahan then rejected as
tainted with a diesel smell. This connection between Moran
and Willis is bolstered, or so the jury could have found, by
Moran's prior use of Willis as a source of supply, by Moran's
unsuccessful initial effort to buy drugs from Willis for
Callahan, by Moran's desire to ingratiate himself with
Willis, by Moran's encounters with Willis and Mary and by
Moran's knowledge that Willis was under federal scrutiny. On
appeal, the government argues that the evidence surely
demonstrates a conspiracy either as charged (with Willis and
others) or, at the very least, between Moran and Willis.
An agreement surely existed between Willis and Moran
relating to drugs. But if the evidence showed only an
agreement by Willis to sell drugs to Moran, it would not
necessarily show them to be co-conspirators in drug
distribution. There is substantial law, including cases in
this circuit, that a single drug sale does not automatically
make buyer and seller co-conspirators. United States v.
DeLutis, 722 F.2d 902, 906 (1st Cir. 1983) (collecting
cases). This "rule" in varying forms prevails or has been
intermittently adopted in a number of circuits, including the
Second, Fifth, Sixth, Seventh and Eighth. E.g., United
States v. Douglas, 818 F.2d 1317, 1321 (7th Cir. 1987) ("a
mere buyer-seller relationship, without more, is
inadequate").
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Surprisingly the reason for excluding such buyer-seller
cases from the definition of conspiracy is not wholly clear,
and some explanation is needed since even an unplanned sale
involves an agreement between seller and buyer and the
offense of drug distribution (at least by the seller). Some
have thought it to follow from the so-called Wharton rule,
now much reduced in force by Iannelli v. United States, 420
U.S. 770 (1975), that a crime legally requiring a plurality
of actors (e.g., dueling) should not have a conspiracy charge
superimposed upon it. Other courts have felt that a single
purchase and sale do not involve the union of two
participants in a manner that increases either the likelihood
that the individual crime will be committed or that the two
will extend their joint endeavor to new crimes. The latter
explanation has force in the case of an unplanned spot sale
with no agreement beyond that inherent in the sale. It makes
less sense where the agreement is to make a sale at a future
point, an agreement that does increase the likelihood that
the crime will be committed. Yet even in the latter case,
the transaction may seem to some to lack the quality of
jointness--the hallmark of conspiracy--in the sense that
seller and buyer are not part of the same criminal
enterprise.
This may seem a fine point but it is one that goes to
the root of conspiracy law: conspiracy is treated as a
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separate crime because of the jointness of the endeavor. A
multiplicity of actors united to accomplish the same crime is
deemed to present a special set of dangers, either that the
criminal end will be achieved, Callanan v. United States, 364
U.S. 587, 593 (1961), or that the conspiracy will carry over
to new crimes, United States v. Rabinowich, 238 U.S. 78, 88
(1915), or both. See 2 W. LaFave & A. Scott, Substantive
Criminal Law 6.4(c) (1986) (summarizing the rationale). It
is these dangers stemming from jointness that justify early
intervention to stem conspiracies even before they rise to
the level of attempts and to impose a separate punishment on
the conspirators even if they fail to achieve their ends.
This special set of dangers is present if two individuals
agree that one of them will sell cocaine and the other will
assist; it is arguably not present if one merely sells the
same cocaine to another without prearrangement and with no
idea of or interest in its intended use. In the latter case,
both may be guilty--one of distribution and the other of
possession--but without more they are not conspirators.
Glenn, 828 F.2d at 858.
At some point the relationships converge. A pattern of
sales for resale between the same persons, together with
details supplying a context for the relationship, might well
support a finding of conspiracy. Id. at 857-58. Even a
single sale for resale, embroidered with evidence suggesting
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a joint undertaking between buyer and seller, could suffice.
United States v. Carbone, 798 F.2d 21, 27 (1st Cir. 1986).
Common knowledge, interdependence, shared purpose and the
other ingredients of a conspiracy are matters of degree.
Almost everything in such a case depends upon the context and
the details. The evaluation of the facts is entrusted
largely to the jury.
In this case, taking a practical rather than a formal
view of the matter, we believe that the jury was entitled to
conclude that the arrangement amounted to a conspiratorial
agreement between Willis and Moran for the distribution of
drugs. Based on testimony that the jury was entitled to
credit, Moran (according to Callahan) admitted that he was
dealing with Willis, an admission suggesting that Willis had
supplied Moran with drugs in the past. Moran then turned to
Willis as his first choice of supplier in seeking to fill
Callahan's first order. Although Willis' price was too high
for this first transaction, for the second one Moran--after
expressing his desire to bolster his relationship ("to
ingratiate with the fat guy")--again turned to Willis. This
time Moran did acquire from Willis a resale sized quantity,
even though Callahan then rejected the shipment. This
picture of a continuing sale-for-resale relationship, even if
Willis was not the exclusive supplier, was reinforced by
Moran's other contacts with Willis and knowledge of his law-
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enforcement jeopardy. See United States v. Anello, 765 F.2d
253, 261 (1st Cir.), cert. denied, 474 U.S. 996 (1985).
We think that a realistic appraisal of Moran's and
Willis' relationship would permit a jury to find that it
amounts to an implicit agreement and comprehends the
continuing supply by one to the other of drugs for resale to
customers. See United States v. Geer, 923 F.2d 892, 895 (1st
Cir. 1991). Even though Moran was not an employee nor did
Willis and Moran formally divide the profits, in this case a
jury could conclude that both Willis and Moran had an ongoing
stake in the success of Moran's own sales of the drugs Moran
acquired from Willis. See Glenn, 828 F.2d at 857-58. From
those sales Moran could profit directly and Willis indirectly
through the maintenance of the drug distribution channel
crucial for a drug network. See generally Direct Sales Co.
v. United States, 319 U. S. 703, 717 (1943). Such an
arrangement, we think, is not only an agreement within the
ordinary conspiracy-law ambit but is one that unites two
participants in seeking to accomplish the crime of
distribution and involves both of the dangers of
conspiracy--increased likelihood of success and extension to
other crimes--to which the cases advert. We think that the
pragmatic approach of Direct Sales in defining conspiracy
foreshadows the result in this case and, given Congress'
intent to stamp out drug transactions, it certainly did not
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mean to narrow the conspiracy concept when it enacted 21
U.S.C. 846, the statute involved in this case.
We leave for another day the lesser variations on the
same theme. Obviously a single sale in resale sized
quantities presents one problem and an advance agreement to
make a single sale involves another. Where one draws the
line is more a matter of discerning congressional policy and
intent than an exercise in logic, and the case-by-case
approach is for the present the wisest course. As for the
classic single sale--for personal use, without
prearrangement, and with nothing more--the precedent in this
circuit as well as others treats it as not involving a
conspiracy. In such cases the jointness element is clearly
at a minimum, if it exists at all. Where nothing more is
involved, we reaffirm existing authority that such a case is
not a conspiracy.
II.
Moran's remaining arguments are less formidable than his
attack on the sufficiency of the evidence. Moran first
argues that even if the evidence was adequate to prove a
conspiracy between Willis and Moran, it was not sufficient to
prove Moran to be a member of the larger conspiracy charged
in the indictment. This variance, he argues, prejudiced him
by associating him with more powerful and extensive evidence
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against other defendants. We agree that there was probably a
variance but find that it was not prejudicial.
The indictment charged a single drug distribution
conspiracy, naming as co-conspirators Willis, Moran, six
other named defendants, and "other persons both known and
unknown to the Grand Jury . . . " At trial much of the
evidence related to the two other defendants who pleaded not
guilty and to Willis and his relations with defendants other
than Moran. The references of Mary to one side, nothing
linked Moran to any of the ring members other than Willis or
any of the transactions charged elsewhere in the indictment
other than Moran's own sales to Callahan.
On this record, it is true that the evidence pointing to
a Willis-Moran conspiracy is far stronger than evidence of
conspiracy between Moran and the Willis ring as a whole. A
very serious problem would be presented if the jury had held
Moran liable for other substantive crimes committed by the
ring. Compare Glenn. The situation is different where the
government charges a defendant with a crime (here, conspiracy
to distribute) but the facts proven at trial vary somewhat
from those charged in the indictment. In that case, it is
settled law that a conviction for the crime charged will be
affirmed unless the variance as to the facts is shown to have
prejudiced the defendant. Berger v. United States, 295 U.S.
78 (1935); Fed. R. Crim P. 52(a)(variance not affecting
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substantial rights may be disregarded). Convictions are
often sustained under this principle where the indictment
alleges a single conspiracy but multiple conspiracies are
actually proved. E.g., United States v. Sutherland, 929
F.2d 765, 772 (1st Cir.), cert. denied, 112 S. Ct. 83 (1991).
In this case, Moran does not and could not claim that
the variance deprived him of notice of the charge adequate to
prepare a defense. Rather he contends that the disparity in
evidence--specifically, the array of witnesses and tape
recordings incriminating other defendants--created a
"spillover" effect that enhanced the narrower case against
him. See Sutherland, 929 F.2d at 772. The enhancement may
be assumed; motions for severance are routinely made in
conspiracy cases, partly to escape this taint. The question
is whether the impact threatened to deprive defendant of a
fair trial. We conclude that it did not.
Most of the evidence concerning Moran was distinctly
different from the evidence against others. It derived from
Callahan's testimony and concerned his transactions with
Moran. Similarly, Moran's relationship with Willis was based
upon Callahan's description buttressed by Moran's own tape
recorded statements. The distinct separation between this
evidence and evidence of other Willis-related activities
diminished the risk of jury confusion. Indeed, on these
facts the risk appears to have been minimal compared to the
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usual mass conspiracy case. Under these circumstances we do
not think the apparent variance even arguably threatened
Moran's right to a fair trial.
Finally, Moran argues that error inheres in a
supplementary instruction given to the jury during its
deliberations. Jury deliberations began on February 14,
1991, and the next day the jury sent in the following written
question, as described by the trial judge:
The indictment states, quote, David Elwell, Richard Morretto and George Moran, defendants, combined, conspired and agreed with each other -- underlined "with each other" -- and with other persons, both known and unknown to the grand jury, close quote. Does the statement mean these three -- and circled -- people conspired with each other -- and "with each other" is again underlined. Your instruction seems to be different from the indictment. Signed by the foreperson.
The judge then re-instructed the jury, reminding them that
"first, remember the indictment is only the charge, the
accusation. It is not evidence. It is not a statement of
the law. On the other hand, my instructions are a statement
of the law and are binding on you." The judge then repeated
his prior instructions on conspiracy (two or more persons,
agreement to commit crime charged, defendant's knowledge of
unlawful purpose and knowing joinder). Within the hour, the
jury returned its verdict, including the conspiracy
conviction of Moran.
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On appeal, Moran agrees that "[v]iewed in isolation, the
judge's instructions were unobjectionable," and this is
clearly so: the response to the jury's question was clear,
correct, and precisely answered the question posed. Moran
argues, however, that in context the instruction could have
led the jury to believe that it could disregard the
indictment entirely and convict the defendant of any
conspiracy it chose. There is a distinct possibility, says
Moran, that the jury convicted him of a conspiracy not
charged such as a conspiracy with Callahan or "a conspiracy
with Willis, different from that involving Moretto, Polito,
and Elwell."
Moran's counsel at trial did not object to the
supplementary instruction and any objection is therefore
waived absent a showing of serious prejudice. United States
v. Maraj, 947 F.2d 520, 525 (1st Cir. 1991). No such showing
has been made here. Further, we do not think that the
instruction invited the jury to disregard the charge in the
indictment; indeed, the supplementary instruction reminded
the jury that the agreement here charged was "to possess with
intent to distribute cocaine." As for the suggestion that
the jury convicted Moran for such a conspiracy with Willis,
rather than with Willis and others in his ring, this may well
be so. But as cases like Sutherland show, such an outcome is
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not conviction for a "different crime" than that charged but
is merely a permissible variance.
Affirmed.
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