United States v. Femia

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 94-2122

UNITED STATES,

Appellee,

v.

NOEL FEMIA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Kirsten M. Lacovara, with whom James E. Carroll and Peabody &

Arnold were on brief for appellant.

Heidi E. Brieger, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellee.

June 16, 1995

BOWNES, Senior Circuit Judge. Defendant-appellant
BOWNES, Senior Circuit Judge.

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

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

(1st Cir. 1993) ("Femia I").

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

v. Maryland, 373 U.S. 83 (1963). The district court granted

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

that the district court had made no bad faith finding

relative to the destruction of the tapes. Id. at 996. After

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

(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

(9th Cir. 1976) (quoting United

States v. Johnson, 521 F.2d

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

(1969). Augenblick involved, inter alia, missing tapes that

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

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

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

before law enforcement

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.

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

Was Reversible Error
Was Reversible Error

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

summation of charges against

Mr. Femia, or is paragraph 2b
(Count 1) part of the summation

of charges or simply an
explanation of charges in

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.)

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.

Naughten, 414 U.S. 141, 146-47 (1973). In this connection we

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

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

(1st Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994), is of

any help to defendant. In Sepulveda we held:

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

1. Since Sepulveda, we have clarified that the "intent to

commit the underlying substantive offense" conspiracy element
is properly construed as an "intent to effectuate the
commission of the substantive offense." United States v.

Piper, 35 F.3d 611, 615 (1st Cir. 1994), cert. denied, 115 S.

Ct. 1118 (1995).

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supplemental instructions charged here. And even if

Sepulveda can be read otherwise, it is trumped by Shabani.

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?

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.

1993) (citations omitted), cert. denied, 114 S. Ct. 731

(1994). See also United States v. De La Cruz, 996 F.2d 1307,

1311 (1st Cir.), cert. denied, 114 S. Ct. 356 (1993); United

States v. Innamorati, 996 F.2d 456, 469 (1st Cir.), cert.

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

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.

This rather unique issue requires some explanation.

The indictment charges as follows:

COUNTS TWENTY-TWO THROUGH

FORTY-FIVE: (21 USC 841(A)(1)

- 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

objected and moved for judgment of acquittal on the counts,

or, in the alternative, that they be dismissed with

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.

Jackson, 778 F.2d 933, 942 (2d

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

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-

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.

In United States v. Moller-Butcher, 723 F.2d 189

(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

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,

442 (8th Cir. 1991); United States v. Reale, 834 F.2d 281,

282 (2d Cir. 1987); United States v. Day, 806 F.2d 1240, 1242

(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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