748 F.2d 8: United States of America, Appellee, v. Aristedes Drougas, Defendant, Appellant.united States of America, Appellee, v. Michael A. Karahalis, Defendant, Appellant.united States of America, Appellee, v. Arnold W. Ellis, Jr., Defendant, Appellant.united States of America, Appellee, v. Alfonso Defeo, Defendant, Appellant.united States of America, Appellee, v. Salvatore Alba, Defendant, Appellant
United States Court of Appeals, First Circuit. - 748 F.2d 8
Argued Sept. 7, 1984.Decided Nov. 7, 1984
Michael C. Bourbeau, Los Angeles, Cal., with whom Mark S. Bourbeau, Boston, Mass., was on brief, for defendant, appellant Arnold Ellis, Jr.
William Doyle, Boston, Mass., with whom Thomas Troy, Boston, Mass., was on brief, for defendants, appellants Aristedes Drougas and Michael Karahalis.
Ellen K. Wade, Boston, Mass., for defendant, appellant Salvatore Alba.
Harvey Rowe, Salem, Mass., for defendant, appellant Alfonso Defeo.
Janis M. Berry, Sp. Atty., U.S. Dept. of Justice, Boston, Mass., with whom William F. Weld, U.S. Atty., and Jeremiah T. O'Sullivan, Sp. Atty., Boston, Mass., were on brief for appellee.
Before BOWNES and BREYER, Circuit Judges, and SELYA,* District Judge.
BOWNES, Circuit Judge.
Defendants Aristedes Drougas, Michael Aristotle Karahalis, Arnold Ellis, Jr., Alfonso DeFeo, and Salvatore Alba appeal their convictions on charges of conspiracy to import marijuana in violation of 21 U.S.C. Sec. 963, conspiracy to possess with intent to distribute in violation of 21 U.S.C. Sec. 846, importation of marijuana in violation of 21 U.S.C. Sec. 963, and possession with intent to distribute in violation of 21 U.S.C. Sec. 841.1 On appeal defendants assert numerous challenges including: (1) the evidence was insufficient to convict them of the crimes alleged in the indictment; (2) prejudicial pretrial publicity prevented defendants from receiving a fair trial; (3) the trial court's failure to sever defendants resulted in an inability to effectively present antagonistic defenses; (4) the government failed to make timely disclosure of exculpatory evidence; (5) the identification of defendant Ellis was the product of an impermissibly suggestive pretrial identification procedure; (6) the government charts summarizing telephone traffic among various defendants' houses and places of business should not have been admitted into evidence; (7) anonymous drafts of conspiracy profit distributions should have been excluded; (8) there was insufficient evidence of the conspiracy to admit hearsay statements by defendants against their alleged coconspirators; and (9) various jury instructions were improper or inadequate. After considering each of the claims, we affirm the convictions of all defendants.
This case involves the northern network of an allegedly large-scale interconnected series of drug smuggling operations, sometimes referred to as the "Grouper" conspiracies. In February 1982 the government indicted twelve conspirators for allegedly planning and executing the smuggle of two boatloads of marijuana into Gloucester, Massachusetts, in or about June and in November of 1977.2 Defendants Drougas and Karahalis and several unindicted coconspirators allegedly organized and supervised the importations and controlled the distribution of profits. Defendant Ellis, a Massachusetts State Trooper, allegedly provided "protection" to the operation by monitoring police activities, periodically supplied weapons to conspirators, and drove a camper filled with marijuana from the Boston area to New York for further distribution. Defendant Alba allegedly supplied the fishing boat used to bring the marijuana from a "mother ship" to shore and acted as ship captain in the first smuggle. Defendant DeFeo was alleged to have contributed his place of business, Service Salvage Pool, an automobile salvage garage and warehouse in Middleton, Massachusetts, to store the marijuana and to have accompanied Trooper Ellis to New York in the camper. Although the salvage garage was used to store the marijuana from both the first and second smuggles, there was testimony that DeFeo refused to participate in the second smuggle and was out of town when it transpired. He was convicted of conspiracy in the first smuggle but was acquitted of the substantive counts relating to the second importation in November.
Defendants contend that the evidence was insufficient to show beyond a reasonable doubt that the substance involved was marijuana, that there was no evidence showing the intent to agree that is required for conspiracy, and the evidence did not show an ongoing conspiracy as alleged in the indictment. In reviewing the sufficiency of the evidence, we consider the evidence as a whole, taken in the light most favorable to the government, together with all legitimate inferences to be drawn therefrom, to determine whether a rational trier of fact could have found each defendant guilty beyond a reasonable doubt. United States v. Patterson, 644 F.2d 890, 893 (1st Cir.1981).
The claim that the government failed to prove that the substance involved was marijuana does not require detailed consideration. The smuggling ventures were not discovered until more than four years after their successful completion so that the government was not able to introduce any samples of the substance involved. Notwithstanding that the marijuana was gone, its existence could be proved by circumstantial evidence. United States v. Honneus, 508 F.2d 566, 576 (1st Cir.1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975). See also United States v. Sanchez, 722 F.2d 1501, 1506 (11th Cir.1984), cert. denied, --- U.S. ----, 104 S.Ct. 2396, 81 L.Ed.2d 353 (1984) (circumstantial evidence used to prove existence of cocaine). The government witnesses testified that the substance being off-loaded from the boats while they and the other members of the conspiracy watched or assisted was marijuana. The surreptitious behavior of the defendants and the compensation paid for their services corroborate the witnesses' testimony. We find the evidence more than sufficient for the jury to have found beyond a reasonable doubt that the substance involved was marijuana.
The gist of conspiracy is an agreement to disobey or to disregard the law. Two types of intent must be proven: intent to agree and intent to commit the substantive offense. United States v. Flaherty, 668 F.2d 566, 580 (1st Cir.1981). A conspiratorial agreement may be proven by circumstantial as well as direct evidence. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). "A common purpose and plan may be inferred from a development and a collocation of circumstances." Id.; United States v. Peters, 732 F.2d 1004, 1007 (1st Cir.1984). The government need not exclude every reasonable hypothesis inconsistent with guilt with respect to each piece of circumstantial evidence. Rather, "the question is merely whether the total evidence, including reasonable inferences, when put together is sufficient to warrant the jury to conclude that defendant is guilty beyond a reasonable doubt." Dirring v. United States, 328 F.2d 512, 515 (1st Cir.1964). See also Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137-38, 99 L.Ed. 150 (1954). The evidence of each defendant's participation from which intent and agreement can be inferred is as follows.
Drougas participated in organizational meetings prior to the first importation. During one of the meetings, he discussed the use of various off-load sites "up north" and problems involving the release of a Colombian hostage. Prior to the first smuggle, Drougas visited the storage warehouse where the marijuana was to be stored and viewed the fishing vessel to be used in the first off-load. Drougas also participated in viewing the dock where the off-loads were to take place and remarked to coconspirators that "next time" they should use fishing boxes so that "it" would look like fish. Drougas also participated in trying to retrieve a letter that was left on one of the off-load boats from the captain, Alba. During the period that the organizational meetings were held at Howard Johnson's in Danvers, Drougas was registered in various rooms there. Telephone records show that a number of calls were made to residences and places of business of other coconspirators from his rooms. Drougas also participated in organizational meetings related to the second November importation and arranged for the employment of the second off-load crew which included his nephew and brother-in-law.
Karahalis, too, participated in presmuggle organizational meetings and was registered at the Howard Johnson's in Danvers. After the first smuggle, Karahalis pressed the "kingpin" organizer from Florida for the distribution of proceeds. In November Karahalis, accompanied by the government witness, obtained a scale with which to weigh the marijuana from the second off-load and participated in the weighing. When the captain of the second fishing boat complained about the damage to his boat, he sought compensation from Karahalis.
Ellis participated in a presmuggle meeting at the Howard Johnson's in Danvers and was introduced to one of the conspirators who testified for the government as the man who would provide "protection" for the operation. Ellis went to the warehouse with Drougas to determine its suitability for the storage of marijuana. Ellis also provided several of the conspirators with guns that were carried during the importations, and was present at the scene of the off-loading. Ellis and defendant DeFeo drove a camper loaded with part of the June off-load to New York where they were met by two other conspirators.
A second government witness testified that Ellis had approached him sometime in July and inquired whether he would captain a fishing boat. Ellis showed the witness a shaving kit bulging with cash that Ellis said he had received for driving a camper filled with marijuana to New York. Placemats showing a tentative division of the spoils for the various conspirators involved in the November off-load were found in Ellis' apartment.
Alba was identified as the person who supplied and captained the fishing boat used to bring the marijuana from the mother ship to shore in the first smuggle. Alba attended post-importation meetings at the Howard Johnson's to discuss the return of a letter left on his boat during the importation and his demand for $90,000 to compensate him for the damage to the boat. Telephone records showed a long-distance call from the Danvers Howard Johnson's to Alba's house in Saugus, Massachusetts, during the time of the June off-load.
DeFeo owned Service Salvage Pool in Middleton, Massachusetts, where the marijuana was stored after the two importations. DeFeo was present with Ellis and Drougas when another conspirator was told that the warehouse was used as a "stash" facility. DeFeo was aboard the fishing boat during the first smuggle and assisted in the off-loading. When several bales broke open en route, he stuffed loose marijuana into his pockets. DeFeo also accompanied Ellis to New York in a marijuana filled camper.