[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
No. 95-1437
UNITED STATES OF AMERICA,
Appellee,
v.
KENNETH SCHIAVO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Circuit Judge,
Coffin, Senior Circuit Judge,
and Cummings,* Circuit Judge.
Ronald Kovner with whom Paul F. Markham was on brief for
appellant.
Dina Michael Chaitowitz, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
appellee.
August 19, 1996
*Of the Seventh Circuit, sitting by designation.
COFFIN, Senior Circuit Judge. Defendant Kenneth Schiavo
appeals his conviction for conspiring to possess, and possessing,
cocaine with intent to distribute in violation of 21 U.S.C.
841(a)(1) & 846. After careful consideration, we affirm.
I. BACKGROUND
We briefly sketch the facts underlying this case, as the
jury might have found them, saving detail for our analysis of
specific claims. Defendant Schiavo was involved in a cocaine
distribution scheme with Howard Winter and Gennaro Farina that
operated in Massachusetts for an extended period of time in the
early 1990s. Winter was the target of a joint investigation into
drug trafficking conducted during this time by the Drug
Enforcement Agency (DEA) and the Massachusetts State Police.
With assistance from a confidential informant (CI), the law
enforcement agencies developed extensive evidence through direct
and electronic surveillance.
The CI, who had been a regular customer of Winter's before
going to work for the government in April 1991, reported that in
the spring of 1990 Winter had disclosed to him that "Kenny . . .
was the supplier" of the cocaine that the CI had been purchasing.
From May to November 1991, the CI engaged in five controlled buys
through Winter. A pattern emerged from these transactions:
after Winter discussed a potential sale with the CI, he called or
met Schiavo, and then reported pertinent information back to the
CI.
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The final transaction provided the most direct link between
Schiavo and the conspiracy. On November 4, 1991, the CI gave
Winter a New Balance bag containing $9,000 in identifiable bills
as partial payment for cocaine delivered November 1. Soon
thereafter, Winter and Schiavo met at a restaurant in Chelsea.
Schiavo was followed from there and, in accordance with a
prearranged plan, stopped by Trooper Thomas Duffy. Duffy
approached Schiavo, observed a bulge in his jacket, frisked him
for weapons and discovered the New Balance bag. The officer
seized the money in the bag and additional cash carried by
Schiavo -- a total of $12,500 -- but did not arrest him.
In January 1992, a grand jury returned a multiple count
indictment against Schiavo, Winter and Farina, charging
participation in a drug conspiracy from May 1991 to January 5,
1992, and five substantive counts of possessing and distributing
cocaine. Schiavo was charged on three of the substantive counts.
Following his arrest, he successfully moved to suppress the bag
of money.1
On September 1, 1994, shortly before trial was scheduled to
begin, Schiavo was charged in a superseding indictment that
pushed the conspiracy's start date back eighteen months to
December 1989 and added two substantive counts. Schiavo filed a
motion to dismiss the superseding indictment, which was denied.
The trial eventually began on November 14, 1994. The jury
1 The suppression was affirmed by this court. 29 F.3d 6
(1st Cir. 1994).
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returned guilty verdicts on the conspiracy charge and the three
substantive counts originally charged.
Schiavo raises six issues on appeal: (1) a double jeopardy
violation; (2) improper admission of testimony about the stop and
frisk on November 4, 1992; (3) insufficient evidence that he
participated in a conspiracy spanning the term charged in the
superseding indictment; (4) improper admission of the CI's
reported statement from Winter that Schiavo was the cocaine
supplier; (5) prosecutorial vindictiveness; and (6) a violation
of the Speedy Trial Act. We discuss each in turn.
II. DISCUSSION
A. Double Jeopardy
Pursuant to 21 U.S.C. 881(a)(6), the DEA obtained civil
forfeiture of $5,090 of Schiavo's money.2 Schiavo claims that
his criminal conviction following this forfeiture constitutes a
second punishment for a single offense, and thus violates the
constitutional proscription of double jeopardy. This argument
was firmly rejected by United States v. Ursery, 116 S. Ct. 2135,
2149 (1996), where the Supreme Court held, inter alia, that an in
rem civil forfeiture under 881(a)(6) is "neither 'punishment'
nor criminal for purposes of the Double Jeopardy Clause."
B. Testimony Relating to the Stop and Frisk
2 The DEA instituted separate forfeiture proceedings
against the $3500 of non-governmental money seized on November 4,
1991 and the $1590 seized from Schiavo at the time of his arrest
on March 5, 1993.
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On Schiavo's original motion to suppress, the court ruled
that Duffy's search reached its constitutional limit at the
completion of the initial pat frisk, which confirmed that Schiavo
was not carrying any weapons. Accordingly, the court suppressed
all items seized after this point, in particular, the bag of
currency.
At trial, Duffy recounted his stop-and-frisk encounter with
Schiavo.
Q. And did you approach Mr. Schiavo?
A. Yes, I did.
Q. And did you notice anything upon approaching Mr. Schiavo
after you pulled him over?
A. I did.
Q. What did you observe?
A. I noticed the large bulge in his left breast area.
Q. After you noticed this bulge, what did you do?
A. I did an initial pat frisk of that area and I asked if
that was all him.
Q. And how did Mr. Schiavo respond when you pat frisked him
and asked him if it was all him?
A. He responded "Mostly."
Q. Did you make any other comments concerning the bulge in
his jacket at that point in time?
A. Yes.
Q. What did you say?
A. I asked him more than once if he had a weapon.
Q. Did you ask him anything else?
A. As I was touching that area of his chest, I asked him
what it was.
He replied, "It's a bag."
I said, "It's an awful big bulge for a bag."
He responded, "It's big."
Schiavo complains that it was error to allow any testimony
regarding the stop, especially testimony that related to the
suppressed bag of currency. For a number of reasons, we
disagree.
Most significantly, Schiavo's motion to suppress referenced
only "items seized," not statements made. This distinction was
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confirmed at the suppression hearing, where Schiavo's counsel
made clear that defendant's statements were not at issue.3 On
November 14, 1994, the first day of trial, Schiavo filed a motion
in limine requesting exclusion of "any evidence concerning the
'serialized' currency," but it was not until November 21, 1994,
that Schiavo filed a motion to suppress any and all statements
made by him on November 4, 1991. The court properly denied the
motion as untimely, see Fed. R. Crim. P. 12(b)(3), and without
merit, but nonetheless suppressed statements made after the
illegal seizure of the bag of currency.
We think the court's reasoning, that the completion of the
pat frisk separated admissible from inadmissible statements, is
unassailable. The frisk antedated the unconstitutional conduct;
accordingly, information derived during it cannot be considered
fruit of the poisonous tree. See United States v. Crews, 445
U.S. 463, 470-71 (1980). Moreover, the court's assessment of
where the pat frisk ended was cautious and to the defendant's
benefit. The statement "It's big" fell well within its span.
Schiavo alternatively seeks exclusion of the statements
based on the absence of Miranda warnings. This contention was
not raised in any manner below and is waived.4
3 The Court: So, in other words, there is no motion to
suppress any statements that may or may not be made,
we're just concerned with suppression of the money?
Schiavo's Counsel: Correct, your Honor.
4 In any event, the statements were made during a lawful
stop and frisk under Terry v. Ohio, 392 U.S. 1 (1968). See 29
F.3d at 9. Schiavo was not in custody at the time, and,
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C. Claims Based on Length of the Conspiracy
Schiavo contends that the government's evidence failed to
link him to a conspiracy lasting from December 1989 to January
1992. He therefore argues that the jury's guilty verdict on the
conspiracy charge must be vacated and that the coconspirator
statement made in 1990 was improperly admitted. We think it
helpful to set forth in detail the evidence presented at trial
relevant to the conspiracy charge before analyzing his claims of
error.
The 1990 Transactions
The CI detailed seven transactions that took place between
January and November 1990, before his involvement with the
government. The CI arranged these deals through Winter, who
then, usually accompanied by Farina, delivered the cocaine,
though the drugs were once delivered by Farina and another time
by Winter's son. Without exception, the CI received the cocaine
on credit, paying Winter within a few days.
The CI learned of Schiavo's participation during the fifth
transaction, which occurred in May or June of 1990. On that
occasion, according to his testimony, the CI drove with Winter to
the Assembly Mall parking lot in Somerville, Massachusetts.
Schiavo arrived soon thereafter and parked nearby. Winter
approached Schiavo, received a bag from him, returned and handed
the bag to the CI. The bag contained one kilogram of cocaine.
therefore, Miranda warnings were not warranted. See United
States v. Quinn, 815 F.2d 153, 160-61 (1st Cir. 1987).
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The CI testified that he then inquired into the deliverer's
identity: "I asked Howie who this gentleman was and he said it
was Kenny and that he was the supplier for the products."
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The CI's Cessation of Activities
In November 1990, Winter advised the CI not to use
telephones because of "a 3T investigation."5 Upon hearing this,
the CI terminated his business with Winter. The conspirators'
awareness of the DEA investigation was further demonstrated by a
phone conversation intercepted on November 22, in which Schiavo's
son indicated to a friend that the police were listening. Later
that same day, Schiavo and Winter met briefly on a street corner
in Medford.
The CI could not provide information about the period
between November 1990 and May 1991. Nonetheless, NYNEX phone
records established that a number of calls were placed between
the residences of Schiavo and Winter during this time.6
The 1991 Transactions
The 1991 controlled transactions were documented by personal
and electronic surveillance. The CI reinitiated contact with
Winter on May 20, 1991, and met with him the next day. On May
22, Winter and Farina delivered one kilogram of cocaine to the
5 According to a DEA agent, 3T refers to electronic
surveillance authorized pursuant to Title III of the Omnibus
Crime Control and Safe Streets Act, 18 U.S.C. 2510-2522. From
November to early December 1990, the government had wiretapped
one telephone of Winter's and two telephones of Schiavo's.
6 The phone records entered as exhibits at trial were not
included in the appellate record. We accept the representations
of the government at closing argument and in its brief as to what
these records reflect about the number and timing of specific
calls. The defendant's closing argument and brief indicate that
there is no dispute as to the contents of these exhibits.
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CI; on June 13, 1991, they delivered two.7 In each case, payment
was rendered the following day. At significant points during
each deal -- on May 22, near the time that the CI called Winter
to arrange for payment; on June 12, following the CI's order for
two kilograms; and on June 14, following the CI's payment to
Winter -- calls were placed from Winter's home to Schiavo's.
On the morning of August 1, the CI picked up Winter and
ordered two kilograms of cocaine. After stopping to make a phone
call, Winter informed the CI that, "He's gonna meet me." They
proceeded to a Caldor's parking lot in Brighton, where Schiavo
soon arrived. After meeting briefly with Schiavo, Winter
returned to the car and told the CI, that "[We're] gonna meet him
at 12 o'clock." Schiavo returned to Somerville, and parked his
car near Farina's. At approximately 12:00 p.m., Farina delivered
one kilogram of cocaine to the CI.
On August 2, the CI paid Winter and asked about the other
kilogram of cocaine. Winter responded "let me call him up," and
then placed a call to Schiavo's home. He then advised the CI
that "he's still trying to -- to get that other one," and that
"if he can get it out there, whatever time, I'll just give you
the time and that kid8 will be there." The next day, Farina
delivered a kilogram of cocaine to the CI. The CI paid Winter
7 These transactions served as the basis for the two counts
of the superseding indictment for which Schiavo was found not
guilty.
8 Earlier in the conversation, Winter had referred to "that
kid Gerry" -- i.e., Farina.
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for this cocaine on August 8. On August 9, Winter met with
Schiavo for several minutes in the parking lot of the Sheraton
Tara hotel in Framingham.
On October 31, the CI, while driving with Winter, ordered
another kilogram of cocaine. Winter placed a phone call to
Schiavo's residence and arranged to meet him at a Dunkin Donuts.
Winter and Schiavo met briefly, and Winter informed the CI that
he could pick up the kilogram later in the day. Due to a
misunderstanding -- the CI apparently went to the wrong location
-- the cocaine was not delivered until the following morning,
when Winter brought it to the CI's home.
As discussed above, the CI gave Winter $9,000 in a bag on
November 4. A short time later, Winter and Schiavo arrived
separately at the Chandlery Restaurant in Chelsea. Upon
departing and being stopped and frisked by Trooper Duffy, Schiavo
stated that he was carrying a big bag. On November 6, the CI
paid Winter the balance owed on the one kilogram.
1. The Conspiracy Verdict
Schiavo contends that the evidence failed to establish the
single conspiracy charged, and suggests that, at best, only
multiple conspiracies were proved. We review the jury's
determination for evidentiary sufficiency, United States v.
Wihbey, 75 F.3d 761, 774 (1st Cir. 1996), and affirm if a
rational jury could have found guilt beyond a reasonable doubt.
United States v. Taylor, 54 F.3d 967, 974 (1st Cir. 1995).
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The controlled nature of the 1991 deals, conducted under
extensive surveillance, yielded substantial evidence of Schiavo's
involvement in the cocaine conspiracy. For example, Winter
consistently called, or arranged to meet, Schiavo whenever the CI
ordered or paid for cocaine. This indicated that Schiavo played
a major role in the operation. Moreover, the jury could
reasonably infer, based on Schiavo's comments to Trooper Duffy,
that the bag on his person was the bag of money delivered by the
CI to Winter. Notwithstanding Schiavo's protestations,
there was significant evidence that this conspiracy commenced
many months earlier. First, the particulars of the 1991
transactions were consistent with the 1990 ones: the CI ordered
cocaine from Winter, received it from Winter and/or Farina, and
paid Winter for it within a few days. Both series of
transactions involved the same people, contemplated the same
ends, and used the same means to reach those ends, all of which
signify one continuous conspiracy. See United States v. David,
940 F.2d 722, 734 (1st Cir. 1991). Even more compelling, the CI
observed Schiavo deliver cocaine to Winter in the spring of 1990,
at which time Winter identified Schiavo as the supplier of the
drugs.9
Schiavo's essential argument is that there was a lapse of
six months in which the government failed to identify a
substantive transaction. We do not think that a lapse of time
9 We explain the admissibility of this statement in the
next section.
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per se transforms a single conspiracy into multiple conspiracies.
See United States v. Williamson, 53 F.3d 1500, 1513 & n.6 (10th
Cir. 1995) (citing cases from other circuits); United States v.
Maldanado-Rivera, 922 F.2d 934, 963 (2d Cir. 1990). There is no
indication whatsoever that Schiavo withdrew from the conspiracy.
Indeed, phone records indicate that Schiavo and Winter regularly
communicated during the supposed period of inactivity. Moreover,
based on the events in November 1990 -- Winter's comment to the
CI, Schiavo's son's intercepted conversation, and the meeting
between Winter and Schiavo -- it is reasonable to infer that
Schiavo and Winter were well aware of the increased federal
surveillance, and resolved to be more cautious in their
activities.
In short, the fact that there is no direct evidence of
cocaine transactions from late November 1990 to late May 1991
does not negate the evidence of a continuing conspiracy.
Accordingly, we find the evidence sufficient to support the
verdict.10
2. Admission of Winter's Statement
Schiavo complains of the court's admission of Winter's 1990
statement identifying him as "the supplier." The court allowed
the remark as a statement made by a coconspirator under Fed. R.
10 Because the evidence supports the single conspiracy
charged in the indictment, we need not address the issues of
variance and prejudice that are common components of multiple
conspiracy claims. See Wihbey, 75 F.3d at 774.
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Evid. 801(d)(2)(E).11 Schiavo contends that there was no
evidence that Schiavo and Winter were coconspirators at the time.
The court, based on a preponderance of the evidence, reached the
opposite conclusion. We review its factual findings for clear
error. United States v. Sepulveda, 15 F.3d 1161, 1180 (1st Cir.
1993).
The law in this area is well settled. "To invoke the
[801(d)(2)(E)] exception, a party who wants to introduce a
particular statement must show by a preponderance of the evidence
that a conspiracy embracing both the declarant and the defendant
existed, and that the declarant uttered the statement during and
in furtherance of the conspiracy." United States v. Flores-
Rivera, 56 F.3d 319, 329 (1st Cir. 1995) (internal quotation
marks and citations omitted). This determination is the province
of the court. United States v. Petrozziello, 548 F.2d 20, 23
(1st Cir. 1977).
During a conference near the end of trial, the court made
explicit findings under Petrozziello, stating
I have to make that finding at the close of all the
testimony[] -- that Mr. Winter and Mr. Schiavo and Mr.
Farina were members of the conspiracy at the time the
statements were made and that the statements were made
during the course of and in furtherance of the
conspiracy. I do find that by a preponderance.12
11 Rule 801(d)(2)(E) provides that "a statement by a
coconspirator of a party during the course and in furtherance of
the conspiracy" is not hearsay.
12 We note that the judge's interpretation of the law was
more favorable to Schiavo than required: a defendant is subject
to proof of the comments of coconspirators made prior to his
involvement in the conspiracy. United States v. Masse, 816 F.2d
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Schiavo argues that there is no extrinsic evidence tying him
to a conspiracy in 1990. See Sepulveda, 15 F.3d 1161, 1182 (1st
Cir. 1993). Our earlier discussion of evidentiary sufficiency
disposes of this assertion. Given the relevant standard of proof
-- more likely than not -- the evidence, absent Winter's
statement, easily supports the court's finding that the statement
was made during the course of a conspiracy involving Winter,
Schiavo and Farina.
Nor can its finding that the statement was made in
furtherance of the conspiracy be attacked. A statement furthers
a conspiracy if it "tends to advance the objects of the
conspiracy as opposed to thwarting its purpose." United States
v. Masse, 816 F.2d 805, 811 (1st Cir. 1987) (internal quotation
marks and citation omitted). Here, the identification of Schiavo
to the CI, then a key participant in the drug distribution chain,
clearly tended to further the goals of the conspiracy. See id.
Winter's statement was properly admissible.
D. Prosecutorial Vindictiveness
On September 19, 1994, Schiavo filed a pretrial motion to
dismiss the superseding indictment asserting, inter alia, that
the indictment was procured as a result of an abuse of the grand
jury process. In particular, he alleged that the government
convened the grand jury to shore up its weak case, violating the
spirit of United States v. Doe, 455 F.2d 1270 (1st Cir. 1972).
After an evidentiary hearing, the motion was denied. Schiavo
805, 811 (1st Cir. 1987).
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abandons the grand jury theory on appeal, in favor of an
alternative claim that the superseding indictment was a product
of vindictive prosecution. As this claim was not advanced below,
we review for plain error. United States v. Santiago, 83 F.3d
20, 25 (1st Cir. 1996); United States v. Whaley, 830 F.2d 1469,
1476-77 (7th Cir. 1987) (vindictive prosecution claim).
A defendant may show vindictive prosecution by 1) producing
evidence of actual vindictiveness sufficient to show a due
process violation or 2) demonstrating that the circumstances show
there is a sufficient "likelihood of vindictiveness" to warrant a
presumption of vindictiveness. United States v. Marrapese, 826
F.2d 145, 147 (1st Cir. 1987). Schiavo does not attempt to prove
actual vindictiveness, but insists that the following facts give
rise to the requisite presumption: 1) the superseding indictment
was returned soon after the government lost its appeal on the
suppression of the currency, 2) the indictment was not based on
the discovery of new evidence, and 3) the government expected
Schiavo to plead. Even assuming that a presumption of
vindictiveness could arise from pretrial conduct -- a scenario
that is questionable in light of United States v. Goodwin, 457
U.S. 368, 381 (1982) ("There is good reason to be cautious before
adopting an inflexible presumption of prosecutorial
vindictiveness in a pretrial setting.") -- these facts are
deficient as a matter of law. The filing of a pretrial motion,
regardless of its successful outcome, and the failure of plea
negotiations are routine events unlikely to provoke a prosecutor
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to "seek to penalize and deter." See id. Schiavo falls far
short of demonstrating a "likelihood of vindictiveness," and
necessarily fails to establish plain error.
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E. Speedy Trial
Schiavo claims a violation of the Speedy Trial Act, 18
U.S.C. 3161-74. Under the Act, trial must commence within 70
nonexcludable days following defendant's appearance before a
judicial officer of the court. Id. 3161(c)(1). On Schiavo's
motion, the court determined that 578 of the 616 days between
Schiavo's initial court appearance on March 8, 1993, and the
start of his trial on November 14, 1994, were excludable, leaving
38 nonexcludable days to go on the speedy trial clock.13
Schiavo alleges that the court erred by excluding time
attributable to 1) his motion for pretrial release, 2) his motion
to reconsider pretrial release, 3) his motion for return of
property, and 4) a one week continuance. We review the court's
factual findings for clear error and its legal rulings de novo.
United States v. Rodriguez, 63 F.3d 1159, 1162 (1st Cir. 1995).
The Act excludes "delay resulting from any pretrial motion,
from the filing of the motion through the conclusion of the
hearing on, or other prompt disposition of, such motion." 18
U.S.C. 3161(h)(1)(F). We think that "any pretrial motion"
easily encompasses pretrial motions relating to pretrial release
or detention, and have previously held as much. See United
States v. Noone, 913 F.2d 20, 27 (1st Cir. 1990) (pretrial
detention). See also United States v. Lattany, 982 F.2d 866, 872
13 This figure actually represented nonexcludable days that
had already passed. There were, in fact, 32 days to go on the
speedy trial clock.
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n.6 (3d Cir. 1992); United States v. Wirsing, 867 F.2d 1227,
1230-31 (9th Cir. 1989). We add that the court, in accordance
with 18 U.S.C. 3161(h)(1)(J), properly allowed only 30 days
exclusion after these motions were under advisement. See
Rodriguez, 63 F.3d at 1163.
The motion for return of property was a collateral matter
subsumed in the pretrial motions for release. It did not
separately account for any time excluded, and so is
inconsequential to Schiavo's claim. We need not address the
continuance, which accounted for six excludable days. Even if
exclusion were erroneous, there would still remain 26
nonexcludable days on the speedy trial clock.
III. CONCLUSION
Having found no merit to Schiavo's claims, the judgment is
Affirmed.
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