July 1, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2196
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH ARGENCOURT,
a/k/a JOE BLACK,
Defendant, Appellant.
No. 92-2197
UNITED STATES OF AMERICA,
Appellee,
v.
RODNEY J. ANDREONI,
Defendant, Appellant.
ERRATA SHEET
The opinion of this Court issued on June 23, 1993, is amended as
follows:
On page 9, line 3: change "elicted" to "elicited"
On page 12, n. 6, line 5: change "coversation" to "conversation"
One page 16, line 3: insert "provide" after "to" and replace the
comma after "of" to follow "providing"
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2196
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH ARGENCOURT,
a/k/a JOE BLACK,
Defendant, Appellant.
No. 92-2197
UNITED STATES OF AMERICA,
Appellee,
v.
RODNEY J. ANDREONI,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
Before
Boudin, Circuit Judge,
Coffin and Oakes,* Senior Circuit Judges.
*Of the Second Circuit, sitting by designation.
Edward C. Roy with whom H. Robert Beecher was on brief for
appellant Joseph Argencourt.
James A. Ruggiero for appellant Rodney J. Andreoni.
Margaret E. Curran, Assistant U.S. Attorney, with whom James H.
Leavey, Assistant U.S. Attorney, and Lincoln C. Almond, United States
Attorney, were on brief for appellee.
June 23, 1993
COFFIN, Senior Circuit Judge. Defendants Rodney Andreoni
and Joseph Argencourt were charged in a two-count indictment
alleging their involvement in a cocaine distribution scheme.
Both men were convicted on Count 1, which charged a conspiracy to
distribute more than 500 grams of cocaine. Only Andreoni was
convicted on Count 2, which charged an attempt to distribute the
same quantity of the drug. Each appeals his conviction on
various grounds. We affirm.
I.
We shall begin with a brief description of the facts, as the
jury could have found them, adding more detail in later sections
as necessary to explain our conclusions.
The events underlying this case began in early 1991, when
the Federal Bureau of Investigation (FBI) initiated an undercover
operation to probe insurance fraud in Rhode Island and
Massachusetts. Andreoni was one of the targets of the
investigation. An undercover FBI agent, Gary Brotan, and an FBI
informant, Mark Vermyea, met some 60 times with Andreoni over a
period of approximately one year. During one of their
discussions, Brotan raised the topic of cocaine. Andreoni said
that he could provide substantial quantities of the drug.
In the course of several recorded conversations between
March 28, 1991, and August 5, 1991, Andreoni described one of his
sources as an individual from Pawtucket, Rhode Island, named "Joe
Black," which is an alias used by Argencourt. On August 26,
Andreoni, Argencourt, Brotan and Vermyea attended a meeting at a
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restaurant in Seekonk, Massachusetts. The conversation, which
was recorded, began with introductions, followed immediately by
Andreoni's statement to Argencourt, "Tell him what the . . .
prices are right now." Argencourt responded without pause,
"Twenty eight." Supp. App. at 33. It is undisputed that this
price referred to a kilogram of cocaine.
The discussion at the meeting also touched on Argencourt's
cautious approach to drug dealing. Argencourt reported that he
previously had left drug trafficking "because of all the heat."
Supp. App. at 36. He said that he had been set up by an
informant who was wearing a wire, and he had not insisted that
Brotan and Vermyea be checked for wires only because Andreoni
said they could be trusted. Id. at 36-38. Argencourt said he
would kill anyone who "cops out" on him, and noted that he had
shot the informant who had worn the wire. Id. at 38.
The four men discussed the proposed cocaine transaction, and
eventually the deal was set for the upcoming Friday, August 30.
Id. at 53-55. Although no location was specified then, Andreoni
and Argencourt arranged in a phone conversation Thursday evening
to meet at 9:30 a.m. on Taunton Avenue in East Providence. Id.
at 65. Brotan, Vermyea and Andreoni met Friday morning at the
designated time and place, but Argencourt never appeared. An FBI
agent conducting surveillance reported seeing Argencourt's car,
however, near the appointed location, at about 10 a.m. Tr. Vol.
I at 104-06. The agent, who identified the car by its license
plate number, did not get a look at the driver. A few minutes
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later, the agent saw the car parked a short distance away, but he
was unable to see if anyone was inside.
After the other three had waited for a while, Andreoni, at
the urging of Brotan and Vermyea, telephoned Argencourt's office
to find out why he was late. Andreoni first reported back that
he had spoken to Argencourt's secretary, who told him that
Argencourt had not returned from a 9:30 appointment. Supp. App.
at 71. After continuing to wait a substantial period of time,
the three men called off the deal and left.
Andreoni, Brotan and Vermyea met again on September 9, at
which time Andreoni suggested an alternative way of getting
cocaine. Id. at 82-83. Another meeting was held October 8.
Andreoni told the government agents that no one was selling
cocaine because they were nervous. Id. at 84-86. He also
reported that Argencourt would not return his phone calls.
The two defendants were arrested in early 1992 and charged
with conspiring to distribute the one kilogram of cocaine that
had been the focus of the August 26 meeting and August 30
rendezvous. No cocaine ever was seized.
II.
Both defendants claim that the evidence was insufficient to
support their conspiracy convictions. They claim that the
conversation during the August 26 meeting, although focused on a
possible cocaine deal, was vague and noncommittal and failed to
demonstrate the intent necessary to form an agreement to
distribute the charged amount of cocaine. See United States v.
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O'Campo, 973 F.2d 1015, 1019 (1st Cir. 1992) (describing elements
of conspiracy).
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. See, e.g., United States v. Tejeda,
974 F.2d 210, 212 (1st Cir. 1992). 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. Id.
We may not weigh the evidence, and all credibility questions must
be resolved in favor of the verdict. United States v. Ortiz, 966
F.2d 707, 711 (1st Cir. 1992).
While we recognize that this case is unusual in that the
government recovered no cocaine from these defendants nor any
other physical evidence of drug dealing, we believe the tape-
recorded conversations and other circumstances were sufficiently
telling to support the jury's determination. Beginning in March
1991, Andreoni repeatedly assured Brotan and Vermyea that he
could arrange to purchase cocaine for them, and he mentioned
Argencourt as one of two possible suppliers. Argencourt appeared
at the August 26 meeting with Andreoni, and, without hesitation,
stated the price for a kilogram of cocaine. A jury easily could
find that the defendants came to the meeting intending to
consummate a deal with the two government agents.
The fact that the final details -- the time and location of
the transaction -- were not set until after the meeting does not
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undermine the jury's conclusion that a conspiracy was formed.
See, e.g., United States v. Iennaco, 893 F.2d 394, 398 (D.C. Cir.
1990) ("There need not be a specific agreement as to price,
quantity, and time, place and manner of delivery.") Indeed, the
evidence permitted the jury to find that Andreoni and Argencourt
consulted and agreed upon those details during a conversation the
evening before the scheduled August 30 deal. See Supp. App. at
65, 72. The jury also reasonably could have found that the
admittedly cautious Argencourt arrived at the scene of the
planned transaction at the designated time but decided against
making the delivery because he detected something amiss.
This case is unlike Iennaco, heavily relied upon by
Argencourt, where the court reversed a conspiracy conviction
because it found only "various unaccepted offers and much
tentative talk," 893 F.2d at 398. The defendants here discussed
with the interested purchasers a specific one-kilogram, $28,000
cocaine deal that was to take place on a particular day.
Subsequent actions and statements by the two defendants confirmed
-- or so the jury could have found -- that deal. We consequently
find no basis for disturbing the jury's verdict on the conspiracy
count.1
III.
1 For the same reasons, we affirm the district court's denial of
Argencourt's motion for new trial. See United States v.
Rothrock, 806 F.2d 318, 321-22 (1st Cir. 1986) (disposition of
new trial motion will not be disturbed on appeal "unless the
court abused its discretion or misapplied the law").
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Andreoni also challenges the sufficiency of the evidence
supporting his conviction on Count 2 for attempt to distribute
cocaine. To prove attempt, the government must establish both an
intent to commit the substantive offense and a "`substantial step
towards its commission,'" United States v. Chapdelaine, No. 92-
1358, slip op. at 10 (1st Cir. March 25, 1993) (quoting United
States v. Figueroa, 976 F.2d 1446, 1459 (1st Cir. 1992)). This
step must be "`more than mere preparation'" but "`less than the
last act necessary before the actual commission of the
substantive crime,'" Chapdelaine, slip op. at 10 (quoting United
States v. Manley, 632 F.2d 978, 987 (2d Cir. 1980)).
The evidence described in the preceding section adequately
establishes Andreoni's intent to commit the substantive crime.
We think it beyond debate that he also engaged in the substantial
step necessary to corroborate his intent. After arranging the
meeting at the restaurant on August 26, Andreoni nailed down the
details of the transaction in a conversation with Argencourt and
communicated the information to Brotan and Vermyea. Andreoni
hooked up with the two government agents at the appointed time,
and waited for a substantial period with them for Argencourt's
arrival. He called Argencourt's office in an effort to find out
about the delay. The jury reasonably could have found that
Andreoni had taken the transaction to the brink of completion,
and that it failed to occur only because of Argencourt's last-
minute caution. This certainly was enough to establish an
attempt.
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IV.
Argencourt challenges the district court's denial of his
mid-trial motion for severance, which was based on the
introduction of evidence of other crimes committed by Andreoni.
The evidence at issue concerned Andreoni's solicitation of arson.
Andreoni's lawyer initially elicited testimony about arson from
Agent Brotan in an effort to develop the defense theory that
Andreoni had pretended to comply with Brotan and Vermyea's plans
because he feared they would harm or kill his family. Through
his cross-examination, the lawyer established that Brotan and
Vermyea had portrayed themselves as dangerous individuals willing
to commit violent acts, and that Vermyea had told Andreoni that
burning buildings was his specialty. Tr. Vol. I at 79, 89-90.
On redirect, the prosecutor asked Brotan about the arson
discussions he had had with Andreoni. Brotan testified that
Andreoni had suggested that Brotan and Vermyea might be hired to
burn both a Providence restaurant belonging to Andreoni's brother
and the house of an attorney whose wife had been awarded the home
in a divorce settlement. According to Brotan, Andreoni had
indicated that it did not matter if the wife was in the house at
the time it was burned.
Argencourt's severance motion was premised entirely on this
arson testimony. See Tr. Vol. I at 162.2 The court's decision
to deny the motion is reversible only upon a strong showing of
2 The trial also included testimony about other criminal conduct
by Andreoni, see Section V infra, but the severance motion made
reference only to the arson activity.
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prejudice, demonstrating a manifest abuse of discretion that
denied the defendant a fair trial. See United States v. Olivo-
Infante, 938 F.2d 1406, 1409 (1st Cir. 1991); United States v.
Boylan, 898 F.2d 230, 246 (1st Cir. 1990).
Argencourt has not met this standard. As an initial matter,
his attorney failed to object to Brotan's testimony when it was
given. This fact was noted by the district court, see Tr. Vol. I
at 162, and, in our view, suggests that the evidence had less-
than-monumental significance to Argencourt's case. More
importantly, the lawyer did cross-examine Brotan at some length
for the purpose of establishing that Argencourt was not involved
in Andreoni's other criminal activities, including arson, and the
agent's testimony unequivocally excluded Argencourt from those
crimes. See Tr. Vol. I at 101-02. The record thus provides no
basis for a finding of prejudice. Consquently, we affirm the
district court's denial of Argencourt's severance motion.
V.
Andreoni claims that the district court erred by allowing
into evidence testimony concerning his efforts to obtain firearms
for Brotan and Vermyea. We think it apparent that the testimony
had a reasonable connection with issues in the case and, given
its relevance, the district court's weighing of the value of the
evidence against its prejudicial effect fell within the trial
judge's discretion. See United States v. Spinosa, 982 F.2d 620,
628 (1st Cir. 1992) (admission of prior bad acts evidence is
reviewed only for abuse of discretion).
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It is well established that, under Fed. R. Evid. 404(b),
evidence of prior bad acts is not admissible to show bad
character or propensity to commit a crime, but may be admitted
when it has some "special," non-character based relevance.3
United States v. Arias-Montoya, 967 F.2d 708, 709 (1st Cir.
1992). In this case, a primary defense theory was that Andreoni,
throughout his relationship with the government agents, was
merely puffing, making wild and unfounded promises that he had no
ability or intention to fulfill. Andreoni wanted the jury to
believe that the proposed cocaine deal was no more than big talk
by an expert bragger.
Evidence that Andreoni did follow through on obtaining guns
for Brotan and Vermyea strikes at the heart of this theory and,
consequently, had significant probative value for a purpose other
than showing criminal propensity. See Figueroa, 976 F.2d at 1454
(other acts evidence admissible to corroborate matters
significant to the prosecution's case). Our caselaw establishes
that such evidence is admissible unless its value is
"substantially outweighed" by the risk of unfair prejudice,
confusion, or waste of time. See, e.g., Arias-Montoya, 967 F.2d
at 710; Fed. R. Evid. 403. No such imbalance occurred here.
Although the evidence certainly was prejudicial, nothing about it
3 Fed. R. Evid. 404(b) states that "[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . ."
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was unfairly so. See Spinosa, 982 F.2d at 628. The jury knew,
from other testimony, that Andreoni was involved in criminal
activities other than the alleged cocaine dealing. Moreover,
when the firearms evidence first was elicited from Brotan, the
district court gave a limiting instruction advising the jury that
it was admissible "only for the purpose of disclosing what
relationships were between the parties . . . ." See Tr. Vol. I
at 99.4 We therefore reject this claim of error.5
VI.
During deliberations, the jurors asked to rehear the tape
recording of the conversation that took place on August 26 among
the defendants and the two government agents. Argencourt argues
on appealthat thedistrict courterred inacceding to theirrequest.6
4 The firearms testimony was elicited twice during the trial,
first from Brotan during redirect examination by the prosecutor
and later from Andreoni when he testified as a defense witness
for Argencourt. When Brotan testified, Andreoni's counsel
objected to the evidence as irrelevant, and it was at that time
that the district court instructed the jury of the limited
appropriate use for the evidence. See Tr. Vol. I at 99. When
the testimony was elicited a second time, from Andreoni, the
attorney raised a specific 404(b) objection. In overruling that
objection, the trial judge noted Andreoni's defense that he was
"play acting." See Supp. App. at 114-15. There was no request
for a limiting instruction at that time, and none was given.
5 In light of our disposition, we do not address the government's
suggestion that Andreoni's 404(b) objection was untimely. Nor do
we consider Andreoni's cursory reference to the government's
failure to give pretrial notice of its intent to use the firearms
evidence. This issue was neither raised below nor briefed
meaningfully on appeal.
6 The tape recording for August 26 was introduced into evidence
in two parts. One cassette contained a recording of the two-
minute interval between the time the recorder was activated in
the parking lot of the restaurant and the beginning of the
conversation inside the restaurant. The other tape contained the
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We repeatedly have held that the decision to reread or
replay testimony during jury deliberations rests in the sound
discretion of the district court. See United States v. Akitoye,
923 F.2d 221, 226 (1st Cir. 1991) (citing cases). The factors to
be considered are "the reasonableness of the request, the ease or
difficulty in compliance, and what is likely to be gained or
lost." Id.
With these factors in mind, there is no doubt that the
district court acted well within its discretion. The jury's
request was specific and easy to accommodate. The conversation
the jury sought to revisit was the most significant piece of
evidence presented by the prosecution, particularly against
Argencourt, and providing the jury with a second chance to digest
it strikes us as fully appropriate. Indeed, the jurors' desire
for a repetition is likely to reflect an appropriate concern that
the conversation be evaluated as carefully as possible. We see
no likelihood that the jury gave it undue emphasis.
VII.
Both defendants argue that the district court erred in
calculating their offense levels based on one kilogram of
cocaine. Although they do not dispute that one kilogram was the
conversation. Both tapes had been played for the jury, and the
court ordered that both be replayed in response to the jury's
request during deliberations.
Although his brief is unclear, we believe Argencourt intends
on appeal to challenge the replaying of both tapes. Regardless,
we see no need to dwell on this ambiguity or to delve into the
issue of waiver, raised by the government, because we think it
manifest that the court acted properly. See infra.
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amount negotiated,7 they claim that there was insufficient
evidence that they were capable of actually producing such a
large quantity of the drug. Under the Sentencing Guidelines,
they assert, the amount of drugs involved in an uncompleted
transaction may be considered only if the evidence shows the
defendants intended to produce, and were reasonably capable of
producing, that amount. See U.S.S.G. 2D1.1, comment. (n.12).8
This argument has some facial appeal because, as Andreoni
argues, "during the entire transaction, no drugs were seized, no
samples were given, no money exchanged for drugs and no
distribution of drugs was made." Brief at 27. Andreoni had no
history of drug dealing and Argencourt stated during the August
26 meeting that he had been out of the business for some time.
The claim fails upon closer scrutiny, however, because it
is, in essence, simply a reiteration of the sufficiency of the
evidence argument. Although the defendants claim that the one-
kilogram amount used by the district court is too high, they do
7 Andreoni explicitly acknowledges that one kilogram was "the
negotiated amount of drugs," see Brief at 26. Argencourt makes
no argument that the government or court misunderstood the amount
being discussed in the tape-recorded conversations.
8 The note states, in pertinent part:
[W]here the court finds that the defendant did not
intend to produce and was not reasonably capable of
producing the negotiated amount, the court shall
exclude from the guideline calculation the amount that
it finds the defendant did not intend to produce and
was not reasonably capable of producing.
Until November 1992, when the Guidelines were amended, this
statement appeared in 2D1.4, comment. (n.1).
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not say what amount the district court properly could have used
for calculating their offense levels. In our view, their
objection is really to the jury's finding of guilt, and to the
court's endorsement of it through sentencing.
This is not to say that a finding of guilt in a conspiracy
case, by itself, binds a court to the amount explicitly
negotiated by the defendants. A jury's supportable guilty
verdict may establish that the defendants intended to produce the
quantity at issue, which in turn is at least some evidence of a
capacity to produce it. It is not, however, conclusive.
Application note 12 permits the court to hold the defendants
responsible for a lesser quantity, notwithstanding their specific
negotiations, if the court is unpersuaded that the defendants
actually intended and could have provided the full amount.
The application note does not help defendants in this case
because the evidence suggests the capacity, as well as the
intent, to sell one kilogram of cocaine. The taped negotiations
demonstrated the defendants' knowledge about the drug trade and
revealed that Argencourt had significant past narcotics
experience. See Supp. App. at 33-36. Andreoni's efforts to
obtain firearms for the agents suggested real criminal-world
connections. In accepting the one-kilogram amount as a realistic
reflection of the defendants' culpability, the district court
relied specifically on the fact that Argencourt, at the time of
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this offense, was out on bail on state drug charges.9 That the
state charges involved significantly smaller amounts of cocaine
than the one kilogram does not undermine the crucial fact of
prior access to the drug. These circumstances taken together
amply support the district court's finding that defendants
intended to provide, and were capable of providing, the
negotiated amount of cocaine. See United States v. McCarthy, 961
F.2d 972, 978 (1st Cir. 1992) (sentencing court's determination
of drug amount reviewed only for clear error).10
Thus, this claim, like the others, is unavailing.
Affirmed.
9 According to Argencourt's presentence report, the incidents
underlying the state charges occurred in November 1990 when,
under surveillance by Pawtucket police, a confidential informant
made three purchases of cocaine from him. Two counts alleging
delivery of cocaine ultimately were dismissed, and he was
sentenced on a single count of possession of a controlled
substance.
10 The circuits have not been uniform in their treatment of
application note 12. A conflict exists over whether the
government bears the burden of showing intent and capacity, or
whether the defendant bears the burden of showing a lack of
intent and capacity, see United States v. Barnes, 1993 U.S. App.
LEXIS 11153, at *5-9 (9th Cir. May 17, 1993) (citing cases), and
some confusion exists over whether the court is required to
exclude a negotiated amount only where the defendant lacked both
the intent and the ability to complete the drug transaction, see
United States v. Brooks, 957 F.2d 1138, 1151 & n.11 (4th Cir.
1992). These issues were neither raised nor of significance
here. Even assuming the government had the burden, the evidence
was sufficient to support the district court's finding that
defendants intended and could produce the negotiated amount of
cocaine.
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