United States v. Fisher

United States Court of Appeals
For the First Circuit

No. 92-2380
No. 91-1330

UNITED STATES,

Appellee,

v.

MICHAEL FISHER,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Boudin, Circuit Judge,

Campbell, Senior Circuit Judge,

and Stahl, Circuit Judge.

Anthony M. Traini for appellant.

A. Clayton Spencer, Assistant United States Attorney, with whom

A. John Pappalardo, United States Attorney, was on brief for appellee.

August 17, 1993

STAHL, Circuit Judge. In this appeal, defendant-

appellant Michael Fisher challenges his convictions for

attempting and conspiring to possess with intent to

distribute cocaine in violation of 21 U.S.C. 846.1 After

careful consideration of defendant's arguments, we affirm.

I.

BACKGROUND

In mid-1989, the United States Drug Enforcement

Agency ("DEA"), initiated a "reverse sting" in which it

planned to sell narcotics to Ali Osseiran, a known narcotics

trafficker. In June 1989, Joseph Khoury, a paid DEA

informant, met with Osseiran at his place of business,

Absolute Diamonds in Boston. At that time, Osseiran

expressed interest in participating in a large drug

transaction. Khoury then introduced Osseiran to Aziz Malik,

another DEA informant, whom Khoury portrayed as a significant

drug dealer.

On October 31, 1989, Malik offered to involve

Osseiran in a future heroin transaction on the condition that

Osseiran provide one million dollars in financing. Shortly

thereafter, on November 3, 1989, Osseiran told Malik that he

1. 21 U.S.C. 846 provides:

Any person who attempts or conspires to commit
any [controlled substance] offense . . . shall be
subject to the same penalties as those prescribed
for the offense, the commission of which was the
object of the attempt or conspiracy.

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was interested in purchasing 25 kilograms of heroin and that

he already had two buyers interested in five kilograms of

heroin each. He also told Malik that his buyers would

require a sample of the heroin. At one point, Osseiran

accidentally let slip that a sample would be going to a

person named "Mike" in East Boston.

On November 20, 1989, in accordance with Osseiran's

instructions, Malik delivered to Rashid Haloui, Osseiran's

employee, a two-gram sample of heroin, which was divided in

half. Haloui, in accordance with Osseiran's instructions,

then drove to East Boston and delivered one portion of the

sample to defendant Michael Fisher. Later that evening,

Malik called Osseiran to see if the buyers had approved of

the samples. Osseiran told him that the buyers liked the

samples and that the money would be forthcoming.

In the ensuing weeks, Malik and Osseiran had

several meetings during which they discussed arrangements for

the delivery of the entire amount of heroin.

Contemporaneously, Osseiran informed Malik that he was having

difficulty obtaining the up-front money. He also advised

Malik that if the drugs were cocaine rather than heroin, he

could put the deal together more easily. Osseiran reiterated

that he had two buyers for five kilograms of heroin each, but

that he was not sure what to do with the rest of the drugs.

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During a meeting in mid-December, Malik agreed to

exchange ten kilograms of the previously agreed upon heroin

for seventy kilograms of cocaine. Because the original

twenty-five kilogram deal had been subsequently reduced to

twenty kilograms, a total of ten kilograms of heroin and

seventy kilograms of cocaine were now to be delivered to

Osseiran.

On December 26, Osseiran informed Malik that he was

prepared to consummate the deal. It was agreed that the

delivery would be concluded within the next couple of days.

On December 28, Osseiran and Malik made arrangements for the

delivery to take place the next day.

On the morning of December 29, Fisher visited

Absolute Diamonds and conferred with Osseiran for a short

time. Later that afternoon, Malik met with Osseiran at

Absolute Diamonds, and received from him a shopping bag

containing money and what appeared to be diamonds.2 While

at the store, Malik made a phone call ordering the delivery

of the drugs.

As instructed by Osseiran, Haloui went to the Logan

Airport Hilton to make the pick-up. At Logan, Malik's

2. The parties had previously agreed that because Osseiran
had not been able to raise the full amount of money agreed
upon, diamonds from the jewelry store would act as collateral
until full payment was made. As it turned out, the stones in
the shopping bag were imitation gems made from cubic
zirconia.

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courier, who actually was another DEA informant, Tauquir

Islam, gave Haloui a bag purporting to contain 15 kilos of

cocaine.3 Immediately thereafter, Haloui was arrested. At

oraround thesametime, Osseiranwasarrested atAbsoluteDiamonds.

After his arrest, Haloui told the DEA agents that

Osseiran had instructed him to deliver the bag to Fisher at

Fisher's liquor store in East Boston. Haloui agreed to

assist the government by participating in a controlled

delivery of the drugs to Fisher. Haloui and Islam then went

to Fisher's store. When they arrived, Fisher met them outside

the store and refused delivery of the drugs.4 Fisher then

motioned Haloui inside the store and privately told Haloui

that he was aware that Osseiran had been arrested and that

Islam was a "cop." Fisher was arrested on the evening of

December 29, 1989.

On January 26, 1990, Fisher, Osseiran, and Haloui

were charged in a four count indictment. Counts I and II

charged Osseiran and Haloui with attempt (Count I) and

conspiracy (Count II) to possess with intent to distribute

3. The bag actually contained flour.

4. Fisher, in an increasingly agitated state, had been
repeatedly calling Osseiran's jewelry store throughout the
afternoon and asking to speak with Osseiran, who was under
arrest. During the course of these telephone calls, Fisher
both identified himself by name to the DEA agent who had
remained in the store after the arrest and, when asked for
his telephone number so that Osseiran could return the call,
told the agent, "They know my number."

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more than five kilograms of cocaine and more than one

kilogram of heroin. Counts III and IV charged Fisher with

attempt (Count III) and conspiracy (Count IV) to possess with

intent to distribute more than five kilograms of cocaine.

Due to his post-arrest confessions and the

constitutional concerns raised thereby, Haloui was tried

separately. See Bruton v. United States, 391 U.S. 123, 137

(1968). On June 1, 1990, Haloui was acquitted and ordered to

remain in the jurisdiction as a material witness for the

upcoming trial of Osseiran and Fisher. On October 10, 1990,

the thirteenth day of Osseiran's and Fisher's trial, Osseiran

pleaded guilty.5 On October 16, 1991, the jury found Fisher

guilty on Counts III and IV. Subsequently, Fisher dismissed

his trial counsel and hired the attorney now representing him

on appeal. Fisher's new counsel promptly filed a variety of

motions attacking the verdict, each of which the district

court denied. Upon resolution of these motions, Fisher was

sentenced to two concurrent ten year prison terms.6

5. The government dismissed Counts I and II of the
indictment against Osseiran and allowed him to plead instead
to an information charging the same offenses but for an
unspecified quantity of drugs. The unspecified quantities in
the amended indictment allowed the trial judge to depart
downward below the ten year mandatory minimum. Osseiran was
then sentenced to three years of imprisonment.

6. This sentence constituted a downward departure from the
minimum 151 month term required by the United States
Sentencing Guidelines.

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On June 3, 1991, Fisher, claiming ineffective

assistance of trial counsel, filed a petition for habeas

corpus with the district court pursuant to 28 U.S.C.

2255.7 As the basis therefor, Fisher complained of trial

counsel's failure to raise seven separate issues. At the

same time, Fisher filed a motion in this court seeking a stay

of his previously-filed direct appeal. We granted the stay

pending the district court's resolution of the 2255

petition.

In a comprehensive memorandum and order dated July

16, 1992, the district court considered and rejected Fisher's

ineffective assistance arguments on all grounds asserted. See

United States v. Osseiran, 798 F. Supp. 861, 873-76 (D. Mass.

1992). First, the court determined that the motions Fisher

claimed should have been made would not have been granted.

Id. at 873-76. Relying on this determination, the court then

decided that Fisher had suffered no prejudice and that the

representation afforded him by trial counsel was not

constitutionally infirm. Id. at 876. However, the court

concluded its memorandum and order by holding that it lacked

the jurisdiction to deny formally Fisher's petition at that

time. Id. Subsequently, we ordered the court to enter

7. The petition was filed before Judge Young, who also
presided over Fisher's trial.

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judgment on the petition. In response, the court issued an

order denying it. This appeal followed.

On appeal, Fisher seeks relief on five grounds:

(1) that evidence relating to a conspiracy to which he was

not a party and with which he was not charged was improperly

admitted against him; (2) that without evidence of the

conspiracy referred to in Count II of the indictment, there

was insufficient evidence to sustain his convictions; (3)

that, in violation of his constitutional rights, he suffered

a constructive amendment to and/or a prejudicial variance

from the indictment; (4) that he was harmed by ineffective

assistance of counsel; and (5) that his sentence was

excessive in light of the sentence given to Osseiran. After

determining the scope of the conspiracy, which is necessary

for resolving Fisher's first three arguments, we discuss each

in turn.

II.

DISCUSSION

A. Scope of the Conspiracy

As alluded to above, Fisher's first three arguments

depend necessarily upon our acceptance of the following

premise: that the trial court should not have found,8 and

8. The trial court implicitly made such a finding when, in
accordance with the dictates of United States v.

Petrozziello, 548 F.2d 20, 22-23 (1st Cir. 1977), it ruled

admissible as coconspirator statements made during the course
and in furtherance of the conspiracy, see Fed. R. Evid.

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correspondingly that the government should not have been

allowed to argue, that the heroin and cocaine conspiracy

alleged in Count II and the cocaine conspiracy alleged in

Count IV actually were components of one large conspiracy.9

Fisher's argument is not, however, based upon the evidence at

trial. Instead, it proceeds from the fact that the grand

jury charged only Osseiran and Haloui with the conspiracy

alleged in Count II, while charging only Fisher with the

conspiracy alleged in Count IV. In Fisher's view, the fact

that the indictment charged "different" conspiracies should

have precluded the government from pursuing a "one large

conspiracy" line of argument. Fisher's argument is without

merit.

Simply put, the fact that an indictment charges

conspiracy in separate counts does not mean that the

conspiracies charged necessarily must be separate and

distinct. We note that there is a complete absence of

801(d)(2)(E), all statements, including any relative to the
cocaine and heroin conspiracy alleged in Count II, made by
Osseiran. Later, in addressing Fisher's 2255 petition, the
court made this finding more explicit. See Osseiran, 798 F.

Supp. at 872-73.

9. Because Fisher's trial counsel did not object to this
line of argument at trial, we review only for plain error.
See United States v. Brennan, No. 92-1169, slip op. at 15

n.17 (1st Cir. June 3, 1993). To establish plain error,
Fisher must demonstrate that the error complained of is "so
compelling that he virtually is assured of succeeding in his
appeal, and that the error affected the fundamental fairness
and basic integrity of the proceedings in the lower court."
Id.

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authority supporting the novel proposition Fisher asserts,

and that pertinent case law suggests the very opposite. Cf.,

e.g., United States v. David, 940 F.2d 722, 734 (1st Cir.

1991) (acknowledging that separately charged conspiracies can

constitute a single offense for double jeopardy purposes),

cert. denied, 112 S. Ct. 2301 (1992); United States v. Hart,

933 F.2d 80, 85-86 (1st Cir. 1991) (same); United States v.

Gomez-Pabon, 911 F.2d 847, 860 (1st Cir. 1990) (same), cert.

denied, 498 U.S. 1074 (1991). The reason for this is clear:

the indictment is primarily used to provide notice of the

charge or charges to the person or persons indicted; it is

not a means of assessing proof. Thus, so long as it fairly

serves its purpose,10 we will not, employing 20/20

hindsight, view it as constricting the government in the

manner Fisher suggests.

Having determined that the Count II and Count IV

conspiracies were not, as a matter of law, separate and

distinct, we now merely must decide whether it was plainly

erroneous for the trial court to have concluded and

subsequently allowed the government to argue that these

counts alleged activities that were part of a single, larger

conspiracy. We previously have identified five factors to be

10. We note a defendant may always press arguments such as
constructive amendment and prejudicial variance, discussed
below, when, in his/her view, the indictment has not justly
fulfilled its functions.

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considered in determining whether two charged conspiracies

actually constitute the same offense: (1) the time during

which the activities occurred; (2) the persons involved; (3)

the places involved; (4) whether the same evidence was used

to prove the two conspiracies; and (5) whether the same

statutory provision was involved in both conspiracies. See

Gomez-Pabon, 911 F.2d at 860.11

Application of these five factors to the record

before us reveals that the district court, far from

committing plain error, made a supportable determination that

there was a single conspiracy. First, the indictment charges

that the activities referenced in Counts II and IV took place

during the same basic time period -- "[o]n or about December

29, 1989."12 Moreover, the evidence reveals no discernible

temporal gap between the activities related to Count II and

activities related to Count IV. In our view, such facts tend

to indicate that there was a single conspiracy which merely

shifted direction when Osseiran determined that he would not

11. As noted previously, the Gomez-Pabon appeal presented us

with the question of whether two separately charged
conspiracies constituted a single offense for double jeopardy
purposes. We see no reason, however, why these five factors
should not also be used to determine whether there was a
single conspiracy in the instant circumstances.

12. Of course, the setting forth, in approximate form, of
this date in the indictment does not preclude the admission
of evidence relating to events which occurred earlier. See

United States v. Bello-Perez, 977 F.2d 664, 669 n.4 (1st Cir.

1992).

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be able to move the heroin he had previously agreed to

purchase. Cf. David, 940 F.2d at 734 (distinguishing a

change in direction in a single conspiracy from the inception

of a conspiracy distinct from the original one). The strong

identity between the persons, places, and evidence13

involved in Counts II and IV only serves to reinforce this

perception. Finally, we note that the two counts involved

the same statutory provision.

Certainly, the argument that the conspiracies

alleged in Counts II and IV are separate and distinct is not

completely implausible. The plausibility of a theory in

conflict with the lower court's ruling, however, plays no

role in our review. Instead, we are limited to determining

whether the trial court plainly erred in finding that the

evidence revealed a single, overall conspiracy. See supra

note 9. Patently, it did not. Accordingly, we affirm this

finding.14

13. In particular, the evidence concerning Osseiran's
inability to move heroin and preference for cocaine is
relevant to both the conclusion of the phase of the
conspiracy alleged in Count II and the inception of the phase
of the conspiracy alleged in Count IV.

14. To the extend that United States v. Dunn, 758 F.2d 30,

36 & n.2 (st Cir. 1985), may be read as raising the question
of whether the government may charge part of an overall
conspiracy and introduce evidence of the rest of the
conspiracy to prove the conspiracy charged, it is clear that

the question should be answered in the affirmative. See

United States v. O'Campo, 973 F.2d 1015, 1023 n.5 (1st Cir.

1992).

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B. Admission of Count II Evidence, Sufficiency, and

Constructive Amendment/Prejudicial Variance

Having found no plain error in the determination

that Counts II and IV referred to activities that were part

of a single conspiracy, Fisher's first three arguments need

not detain us long. Fisher, relying exclusively upon his

"separate conspiracy" theory, first argues that the evidence

concerning the conspiracy alleged in Count II, which the

trial court admitted against Fisher, should have been

excluded as unfairly prejudicial under Fed. R. Evid. 403.15

We review the trial court's admission of this evidence only

for an abuse of discretion. See, e.g., United States v.

Spinosa, 982 F.2d 620, 629 (1st Cir. 1992).

Here, contrary to Fisher's perfunctory assertions,

the evidence at issue was directly relevant to and highly

probative of the overall conspiracy to which he was a

party.16 Moreover, we cannot discern any way in which it

may have tended to engender unfair prejudice. Accordingly,

15. Fed. R. Evid. 403 provides:

Although relevant, evidence may be excluded if
its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.

16. In so ruling, we are mindful that the government "need
not recite all of its evidence in the indictment, nor is it
limited at trial to the overt acts listed in the indictment."
United States v. Innamorati, No. 91-1896, slip op. at 34 (1st

Cir. June 17, 1993).

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we find that the district court did not abuse its discretion

in admitting this evidence against Fisher.17

Fisher similarly argues that, absent evidence

relating to the Count II conspiracy, there was insufficient

evidence to sustain his convictions on Counts III and IV.

Obviously, however, our rejection of the premise that the

Count II conspiracy was separate and distinct from the Count

IV conspiracy and our concomitant ruling that the Count II

evidence was properly admitted against him is fatal to

Fisher's sufficiency claims. Accordingly, we reject

them.18

17. In arguing that the Count II evidence improperly was
admitted against him, Fisher also contends that Counts I and
II were improperly joined with Counts III and IV. Once
again, trial counsel's failure to raise this issue below
limits our review to one for plain error. Brennan, slip op.

at 15 n.17. Given our endorsement of the trial court's
finding that the activities alleged in the indictment were
part of a single, overall conspiracy, and given the absence
of any other constitutional problems, it is clear that all
counts were properly joined and that no plain error was
committed. Accordingly, Fisher's joinder argument also must
be rejected.

18. To the extent that Fisher is arguing that, even with the
admission of the Count II evidence, there was insufficient
evidence to sustain his convictions, his arguments are
meritless. In order to convict Fisher of attempting to
possess with intent to distribute cocaine, the government was
required to prove, by direct or circumstantial evidence and
beyond a reasonable doubt, that Fisher intended to commit the
aforementioned substantive offense and that he took a
substantial step toward its commission. See, e.g., United

States v. Figueroa, 976 F.2d 1446, 1459 (1st Cir. 1992),

cert. denied, 113 S. Ct. 1346 (1993). In order to convict him

of conspiring to possess with intent to distribute cocaine,
the government was required to prove, by direct or
circumstantial evidence and beyond a reasonable doubt, that

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Finally, Fisher contends that he suffered a

constructive amendment to and/or prejudicial variance from

the indictment. Once again, in making these arguments,

Fisher depends upon his theory that the Count II conspiracy

necessarily was separate and distinct from that charged in

Count IV. Given our rejection of this theory and affirmance

of the trial court's finding of one overall conspiracy,

however, it is readily apparent that no constructive

amendment or variance took place.

A constructive amendment "`occurs when the charging

terms of the indictment are altered, either literally or in

Fisher entered into an agreement with another to commit the
aforementioned substantive offense. See, e.g., Innamorati,

slip op. at 12.
Reviewing the evidence in a light most favorable to the
government and resolving all credibility issues in its favor,
see Brennan, slip op. at 3 n.2 (setting forth standard of

review governing appellate challenges to the sufficiency of
the evidence), we find that there was ample evidence to
support Fisher's convictions. In our view, Fisher's (1)
acceptance of the heroin sample in advance of the scheduled
heroin and cocaine delivery; (2) presence at Absolute
Diamonds on the morning of the scheduled cocaine delivery;
(3) repeated hectic phone calls to Osseiran at Absolute
Diamonds throughout that same afternoon; and (4) knowledge
that Islam was a "cop" and refusal to take the drugs for that
reason, when combined with the amount of the drugs to be
delivered and Malik's testimony that Osseiran had stated that
the heroin sample would be delivered to "Mike" in East
Boston, constitute a sufficient circumstantial evidentiary
basis for the jury to have concluded that Fisher both
intended to commit the possession offense charged and had
entered into an agreement with Osseiran to commit that same
offense. Moreover, we believe that Fisher's acceptance of
the heroin sample was a substantial step towards the
commission of the offense. Accordingly, having found record
evidence supporting each of the elements of the offenses of
conviction, we decline to disturb the jury's verdict.

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effect, by prosecution or court after the grand jury has last

passed upon them.'" Dunn, 758 F.2d at 35 (quoting Gaither v.

United States, 413 F.2d 1061, 1071-72 (D.C. Cir. 1969)). A

variance occurs when the charging terms remain unchanged but

when the facts proved at trial are different from those

alleged in the indictment. See United States v. Tormos-Vega,

959 F.2d 1103, 1115 (1st Cir.), cert. denied, 113 S. Ct. 191-

92 (1992); see also Hunter v. State of New Mexico, 916 F.2d

595, 598 (10th Cir. 1990), cert. denied, 111 S. Ct. 1693

(1991). A constructive amendment is considered prejudicial

per se and grounds for reversal of a conviction. Dunn, 758

F.2d at 35. Variance is grounds for reversal only if it

affected the defendant's "substantial rights" -- i.e., the

rights to "have sufficient knowledge of the charge against

him in order to prepare an effective defense and avoid

surprise at trial, and to prevent a second prosecution for

the same offense." Tormos-Vega, 959 F.2d at 1115. Variance

also protects against "prejudicial spillover" so that when a

defendant has multiple codefendants, "proof that one

defendant was involved in one conspiracy does not lead the

jury to believe that another defendant was involved in a

separate conspiracy." Id.

Here, Fisher was charged, convicted, and sentenced

for attempting to possess with intent to distribute cocaine

and conspiring to possess with intent to distribute cocaine.

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The evidence admitted against him pertained directly to

these, and to no other, charges. The fact that the

government proved aspects of the conspiracy beyond those

recited in the indictment against Fisher -- i.e., those

relating to Count II -- simply does not constitute a

variance. See Innamorati, slip op. at 34-35 (finding no

variance when the government introduced at trial evidence and

overt acts relating to the charged conspiracy outside those

alleged in the indictment). Accordingly, we reject Fisher's

constructive amendment and prejudicial variance

arguments.19

C. Ineffective Assistance

Fisher's fourth argument is that he was victimized

by ineffective assistance of counsel at trial. In support of

this argument, Fisher advances three "failures" of trial

counsel: (1) trial counsel's failure to move for severance

on the basis of prejudicial joinder; (2) trial counsel's

19. We note that the issue of variance most often comes up
when the indictment charges one overall conspiracy but the
trial evidence reveals separate conspiracies and that a
particular defendant is a member of only some of those
conspiracies. See generally United States v. Glenn, 828 F.2d

857, 857-58 (1st Cir. 1987). In such instances, of course,
there is the possibility that a defendant can be prejudiced
by being convicted of a crime other than the one with which
s/he was charged. Id.

Here, however, Fisher was convicted of and sentenced for
a conspiracy smaller in scope and breadth than that for which

he may have, in fact, been culpable. Given this fact, his
protestations of prejudice are difficult to fathom.

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failure to move for a mistrial or, at least, to strike the

heroin evidence after Osseiran pleaded guilty; and (3) trial

counsel's failure to object when the prosecutor made

reference to the heroin evidence in her closing argument.

Yet again, our determination that the trial court's single

conspiracy finding was supportable renders Fisher's argument

unavailing.

In order to establish a Sixth Amendment violation

for ineffective assistance of counsel, a defendant must

demonstrate (1) that counsel fell below the applicable

standard for performance, defined by what the lawyer knew, or

should have known, at the time of his/her tactical choices;

and (2) that prejudice resulted. See United States v.

Natanel, 938 F.2d 302, 309 (1st Cir. 1991) (citing Strickland

v. Washington, 466 U.S. 668, 687 (1984)), cert. denied, 112

S. Ct. 986 (1992). Here, as the district court points out in

its thorough and well-reasoned memorandum responding to

Fisher's 2255 petition, because there was a single, overall

conspiracy, each of the aforementioned motions/objections

would have been denied/overruled. See Osseiran, 798 F. Supp.

at 873-76.20 Accordingly, Fisher suffered no prejudice

20. As noted earlier, see supra note 17, the fact that all

activities referenced in the indictment were part of a single
conspiracy requires a finding that the counts were properly
joined. And obviously, as stated above, the fact that the
heroin evidence was part of the same conspiracy for which
Fisher was convicted means that the evidence was both
properly admitted against him and, a priori, properly

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from trial counsel's failure to press these matters. And,

without a showing of prejudice, Fisher's ineffective

assistance claim cannot succeed.

D. Sentence Disparities

Fisher's fifth and final argument, that his

sentence was excessive in light of the amount of time given

to Osseiran, does not require extended discussion. In

sentencing Fisher, the trial court departed downward from the

applicable sentencing guidelines range. We have repeatedly

made clear that we "lack jurisdiction to review the `extent

of a downward departure merely because the defendant is

dissatisfied with the quantification of the court's

generosity.'" United States v. Gregorio, 956 F.2d 341, 345

n.5 (1st Cir. 1992) (quoting United States v. Pighetti, 898

F.2d 3, 4 (1st Cir. 1990)) (brackets and ellipsis omitted).

Accordingly, we do not have jurisdiction to entertain

Fisher's contention that he "was entitled to a greater

downward departure than he received[.]"

III.

CONCLUSION

Having rejected each of the arguments made on

appeal by Fisher, we affirm his convictions and sentence.

Affirmed.

referred to by the prosecutor in her closing argument.

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