United States v. Piper

United States Court of Appeals
For the First Circuit

No. 01-2500

UNITED STATES OF AMERICA,

Appellee,

v.

STANLEY M. PIPER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Selya, Lynch and Howard,

Circuit Judges.

Edward S. MacColl, with whom Thompson, Bull, Furey, Bass &
MacColl, LLC, P.A., was on brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney
(Appellate Chief), with whom Paula D. Silsby, United States
Attorney, was on brief, for appellee.

July 26, 2002
 SELYA, Circuit Judge. Following his conviction for both

distributing cocaine and conspiring to engage in distribution,

defendant-appellant Stanley M. Piper challenges the district

court's admission of certain tape-recorded conversations between an

alleged coconspirator, Anthony Stilkey, and various third parties.

The court admitted these statements under Evidence Rule

801(d)(2)(E) (the so-called coconspirator hearsay exception).

After careful consideration, we conclude that one of these

conversations did not involve statements made in furtherance of the

conspiracy (and, therefore, should have been excluded).

Nevertheless, the erroneous admission of those statements does not

warrant reversal, and the appellant's challenge to the sufficiency

of the evidence is hopeless. Consequently, we reject Piper's

appeal.

I. BACKGROUND

We present a balanced account of the background facts,

gleaned from the trial transcript. Stilkey and the appellant

worked together at Bath Iron Works in Bath, Maine. The activities

with which we are concerned began on April 8, 1999, when Stilkey

met with a man known only as Rodney. Unbeknownst to Stilkey,

Rodney was an informant for the Drug Enforcement Administration

(DEA), which had equipped him with a body wire and organized a

surveillance team to monitor his movements.

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 The April 8 meeting took place at the Bath post office.

During the meeting, Stilkey agreed to sell Rodney two "eight balls"

of cocaine (roughly 3.5 grams apiece) for $500. After receiving

the funds, Stilkey proceeded directly to the appellant's apartment.

He handed over the money in exchange for two glassine baggies

containing powdered cocaine. Stilkey removed some of the cocaine

for his own use and delivered the remainder to Rodney at the post

office.

Subsequently, Rodney told Stilkey that an acquaintance,

Uri Shafir, wanted to purchase half an ounce of cocaine. Rodney

arranged for Stilkey and Shafir to meet at the same post office on

April 13, 1999. The surveillance team was alerted. Shafir (an

undercover DEA agent) gave Stilkey a $500 "deposit." The two men

then exchanged telephone numbers and agreed upon a pager code to

signal that the drugs were ready for delivery. Stilkey repaired to

the appellant's apartment and gave him the money. Upon leaving,

Stilkey walked over to the appellant's automobile and placed

something inside the glove compartment. The appellant emerged from

his apartment, spoke briefly to Stilkey, and drove away.

Later that afternoon, Stilkey paged Shafir and arranged

to meet him near Stilkey's place of abode. Shafir proceeded to

this location and parked in a neighbor's driveway. Stilkey and his

wife, Jennifer, testified that the appellant already was inside the

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house at that moment.1 The appellant handed a bag of cocaine to

Stilkey, who walked to Shafir's vehicle, showed him the drugs, and

informed him that they would cost "an extra hundred." Shafir

questioned both the quantity and the quality of the contraband. In

response, Stilkey offered to get his source's scales to verify the

weight.

In an effort to ease this impasse, Stilkey reentered his

home and told the appellant that the customer "wanted to try [the

drugs] first." The appellant balked at this suggestion. Stilkey

then carried a set of scales outside, weighed the drugs in front of

Shafir, and swapped the cocaine for an additional payment of $900.

When Stilkey returned, he handed the money to the appellant.

A third, and final, episode took place on April 20, 1999.

Shafir arranged with Stilkey to purchase a half-ounce of cocaine

for $1,000. He drove to Stilkey's house and consummated the

transaction there. Stilkey testified that the appellant furnished

the cocaine and ultimately received the proceeds. At around the

same time, the appellant left for Florida. Stilkey immediately

tried to interest Shafir in purchasing drugs derived from a new

source (one Paul Mounts) and the focus of the investigation

shifted.

1
Shafir added that, while he was waiting, he noticed the
appellant's car parked in close proximity to the Stilkey residence.

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 On December 19, 2000, a federal grand jury indicted the

appellant on charges that he had distributed cocaine on April 13,

1999, and had conspired with Stilkey to distribute cocaine during

that month. See 21 U.S.C. §§ 841(a)(1), 846. The appellant

protested his innocence and the case went to trial. After Stilkey

testified about the three transactions described above, the

district court, over objection, made a closely reasoned

Petrozziello finding, see United States v. Petrozziello, 548 F.2d

20, 23 (1st Cir. 1977), and admitted into evidence seven secretly

recorded conversations that had taken place between Stilkey and

various third parties.2 Shafir, Jennifer Stilkey, a forensic

chemist, and two members of the police surveillance team also

testified for the government. The defense predicated its case

almost entirely on the testimony of the appellant’s girlfriend, who

testified that she and the appellant attended "drug parties" with

the Stilkeys, and painted a picture of all four as recreational

users of cocaine. The jury found the appellant guilty on both

counts and the court sentenced him to a 27-month incarcerative

term. This timely appeal followed.

II. COCONSPIRATOR STATEMENTS

The central question in this appeal is whether the trial

court erred in admitting into evidence any or all of the seven

taped conversations. We turn first to that issue.

2
An appendix to this opinion indexes the seven conversations.

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 Hearsay evidence ordinarily is inadmissible in criminal

trials. Like most general rules, however, that rule is subject to

certain exceptions. One such exception allows an out-of-court

statement made "by a coconspirator of a party during the course and

in furtherance of the conspiracy" to be offered into evidence

against that party. Fed. R. Evid. 801(d)(2)(E). To invoke this

exception, "[t]he proponent of the statement bears the burden of

establishing, 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. Bradshaw, 281 F.3d 278, 283 (1st

Cir. 2002) (citation and internal quotation marks omitted),

petition for cert. filed (June 25, 2002) (No. 02-5015). The first

half of this two-part requirement demands the introduction of

extrinsic evidence; coconspirator statements are not deemed self-

elucidating, and to ensure admissibility the proponent must present

other evidence sufficient to delineate the conspiracy and

corroborate the declarant's and the defendant's roles in it. See

United States v. Sepulveda, 15 F.3d 1161, 1181-82 (1st Cir. 1993);

see also Fed. R. Evid. 801(d)(2)(E) (providing that the contents of

the proffered hearsay statement, standing alone, are insufficient

"to establish . . . the existence of the conspiracy and the

participation therein of the declarant and the party against whom

the statement is offered").

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 The appellant contends that the district court committed

a global error in administering Rule 801(d)(2)(E) because it

permitted the introduction of the tape-recorded conversations even

though the government had failed to adduce sufficient foundational

evidence to establish the existence of a conspiracy in which both

he and Stilkey were participants. His backup position is that two

particular conversations — one that occurred on April 8 and another

that occurred on April 22 — were inadmissible on narrower grounds.

We consider these contentions sequentially.

A. Foundational Evidence.

We give short shrift to the claim that the government

failed to adduce sufficient evidence to demonstrate the existence

of a conspiracy involving Stilkey and the appellant. This

foundational requirement is satisfied as long as the government

proffers sufficient evidence to establish, by a preponderance of

the evidence, the existence of a conspiracy embracing both the

declarant and the defendant. Sepulveda, 15 F.3d at 1180;

Petrozziello, 548 F.2d at 23. The trial court acts as the

gatekeeper; it bears the responsibility for resolving the question

of whether evidence proffered under Rule 801(d)(2)(E) satisfies

these criteria. See Fed. R. Evid. 104(a) (explaining that

"[p]reliminary questions concerning . . . the admissibility of

evidence shall be determined by the court"); see also Earle v.

Benoit, 850 F.2d 836, 840-41 (1st Cir. 1988).

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 Here, the government brought forth a cornucopia of

extrinsic evidence (e.g., Stilkey's testimony about his

relationship with the appellant, Jennifer Stilkey's corroborative

testimony, Shafir's testimony, and the testimony of two surveilling

detectives) from which a factfinder could conclude, more likely

than not, that a conspiracy existed between Stilkey and the

appellant to purvey cocaine. Thus, we reject the claim that the

government failed to satisfy this foundational requirement.

B. The April 8 Conversation.

This brings us to the April 8 conversation. The

appellant points out that this tape captured a conversation between

Stilkey and Rodney (the government's informant). From this, he

argues that statements made to a government informant cannot be

admitted under the coconspirator hearsay exception because the

informant, by definition, cannot be deemed to be a coconspirator.

This argument is decisively refuted by a long line of

cases. See, e.g., United States v. Singleton, 125 F.3d 1097, 1107

(7th Cir. 1997); United States v. Flores-Rivera, 56 F.3d 319, 330

(1st Cir. 1995); United States v. Formanczyk, 949 F.2d 526, 531

(1st Cir. 1991). The black-letter principle is that statements

made in the course of a discussion between a coconspirator and a

third party who is a stranger to the conspiracy are admissible

under Rule 801(d)(2)(E), provided that they meet the Rule's

foundational requirements. That is true regardless of whether the

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third party is a tipster, an informant, an undercover officer, or

a mere acquaintance. It follows inexorably that the district court

did not err in admitting the statements made on April 8 even though

one of the participants in the conversation (Rodney) was an

informer rather than a coconspirator.

C. The April 22 Conversation.

The appellant's argument against the admissibility of the

April 22 conversation is multifaceted. First, he posits that even

if the evidence supported a finding that he and Stilkey were

coconspirators, that conspiracy terminated no later than April 20,

1999 (and that, therefore, Stilkey's statements on April 22 could

not have been uttered during the course of the conspiracy). To

support this position, the appellant notes that (1) Stilkey

testified at trial that he never sold drugs procured from the

appellant at any time after April 20, and (2) Stilkey told Shafir

on April 22 that he was no longer using the appellant as his

supplier. Despite these facts, the appellant's argument lacks

force.

"Where a conspiracy contemplates a continuity of purpose

and a continued performance of acts, it is presumed to exist until

there has been an affirmative showing that it has terminated."

United States v. Elwell, 984 F.2d 1289, 1293 (1st Cir. 1993)

(citation omitted). That principle is apposite here: given that

the charged conspiracy included three separate drug sales spanning

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a thirteen-day period, it was plausible for the court to presume

that the conspiracy continued to exist beyond the date of the last

reported sale. This is particularly true in view of the fact that

the record contains no affirmative showing of a withdrawal on or

before April 22.

We have made manifest that in order to withdraw from a

conspiracy, "a conspirator must act affirmatively either to defeat

or disavow the purposes of the conspiracy." United States v.

Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987) (per curiam).

Typically, that requires "either . . . a full confession to

authorities or a communication by the accused to his co-

conspirators that he has abandoned the enterprise and its goals."

Id. Judged against this strict standard, neither Stilkey's trial

testimony nor his statements during the April 22 conversation

constitutes an affirmative showing that the conspiracy ended

coincident with the consummation of the April 20 sale. After all,

"[m]ere cessation of activity in furtherance of the conspiracy does

not constitute withdrawal" from a conspiracy. Id. (citation

omitted).

We need not belabor the obvious. We review the district

court's fact-based findings under Rule 801(d)(2)(E) only for clear

error. Sepulveda, 15 F.3d at 1180. Here, the court's

determination that the government adduced adequate evidence of a

conspiracy between Stilkey and the appellant, lasting at least

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through April 22, was not clearly erroneous. Accordingly, we

reject this facet of the appellant's assignment of error.

Relatedly, the appellant claims that Stilkey's April 22

statements were not made in furtherance of the charged conspiracy.

The determination of whether an out-of-court statement furthers a

conspiracy to such an extent as to justify admissibility under Rule

801(d)(2)(E) is a preliminary question of fact that must be

resolved by the trial judge. Bourjaily v. United States, 483 U.S.

171, 175 (1987); Earle, 850 F.2d at 840-41. In making that

determination, the judge applies a preponderance-of-the-evidence

test. Petrozziello, 548 F.2d at 23.

The "in furtherance" question defies mechanical

solutions: there is no precise formula for determining whether a

coconspirator statement advances a conspiracy. Generally speaking,

however, a coconspirator's statement is considered to be in

furtherance of the conspiracy as long as it tends to promote one or

more of the objects of the conspiracy. United States v. Fahey, 769

F.2d 829, 839 (1st Cir. 1985). To be deemed "in furtherance," a

statement "need not be necessary or even important to the

conspiracy, or even made to a co-conspirator, as long as it can be

said to advance the goals of the conspiracy in some way." United

States v. Martinez-Medina, 279 F.3d 105, 117 (1st Cir.), cert.

denied, 122 S. Ct. 2608 (2002). In other words, the connection

need not be inexorable.

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 Even so, the proponent of the out-of-court statement

(typically, the government) is not entitled to a free pass. A

judicial determination that a coconspirator's statement tended to

further the conspiracy must be supported by some plausible basis in

the record. United States v. McKeeve, 131 F.3d 1, 12 (1st Cir.

1997). To that extent, the "in furtherance" requirement represents

a real limitation on the admissibility of coconspirator statements.

See Garlington v. O'Leary, 879 F.2d 277, 283 (7th Cir. 1989);

Fahey, 769 F.2d at 838-39.

Against this backdrop, the district court's determination

that the April 22 statements were "in furtherance" of the charged

conspiracy does not pass muster. At the start of that

conversation, Stilkey mentioned to Shafir that his drug source was

in Florida because "he had burned too many [expletive deleted]

people." Stilkey added that he had told his source about Shafir's

dissatisfaction with the quality of the cocaine delivered in the

April 20 transaction. Next, Shafir inquired about the availability

of an alternate source of supply and how he might be able to tap

into that source. In the course of the ensuing discussion, Stilkey

commented that a particular individual had been "burned by

Stanley." When Shafir expressed curiosity about "Stanley," Stilkey

identified "Stanley" as the source of the cocaine that he

previously had sold to Shafir. From that point forward, the

conversation dealt mainly with the possibility of an alternate

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source (although Stilkey interspersed several derogatory comments

both about his original supplier — "Stanley" — and about

"Stanley's" wares). The government contends that the ubiquitous

"Stanley," repeatedly mentioned by Stilkey, was the appellant

(Stanley Piper), and Stilkey confirmed that fact during his trial

testimony.

A reasoned assessment as to how (if at all) this

conversation related to the charged conspiracy requires us to

review the dimensions of that conspiracy. Although the indictment

alleged that the appellant had conspired with Stilkey and other

persons "known and unknown" to the grand jury, the government

offered no proof at trial that the charged conspiracy extended

beyond Stilkey and the appellant. And although the rigors of Rule

801(d)(2)(E) may be satisfied by showing that both the declarant

and the defendant belonged to some conspiracy other than the

substantive conspiracy charged in the indictment, see United States

v. Lara, 181 F.3d 183, 196 (1st Cir. 1999), the government has

chosen to argue in this case that the Rule 801(d)(2)(E) conspiracy

was functionally equivalent to the charged conspiracy and that the

tape-recorded statements were admissible solely by reason of the

charged conspiracy (rather than some uncharged conspiracy involving

both Stilkey and the appellant).3

3
The government makes a vague allusion to a broader conspiracy
involving Stilkey, the appellant, and the new supplier (Mounts)
proposed by Stilkey to Shafir. The fly in the ointment, however,

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 The charged conspiracy involved Stilkey's agreement to

distribute drugs supplied by the appellant. That configuration

defeats the government's "in furtherance" argument. Stilkey's

April 22 conversation with Shafir is most accurately characterized

as an attempt to persuade Shafir to purchase drugs from a source

other than the appellant. Thus, Stilkey's statements on that date

were antithetic to the central object of the charged conspiracy.

Statements that are designed to frustrate rather than to further

the goals of a conspiracy are not admissible under the aegis of

Rule 801(d)(2)(E). See Martinez-Medina, 279 F.3d at 117.

This state of affairs distinguishes the April 22

conversation from the coconspirator statements held admissible in

United States v. Masse, 816 F.2d 805 (1st Cir. 1987). There, an

undercover agent, masquerading as a drug buyer, inquired about the

identity of an individual who had arrived on the scene in the same

vehicle as the seller. Id. at 810. The seller responded by

identifying the individual as "the source for the cocaine." Id.

We upheld the trial court's determination that the seller's

identification of his source tended to advance the goal of the

conspiracy because the declarant reasonably could have believed

that an unsatisfactory answer to his customer's question would

queer the deal. Id. at 811. Thus, identification of the source

is that the government did not adduce any extrinsic evidence
sufficient to establish that Mounts was a member of any such
conspiracy.

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furthered the ultimate object of the conspiracy — the consummation

of a cocaine sale. Id.

The instant case stands in stark contrast. Although

Stilkey's identification of "Stanley" as his former cocaine

supplier may have been calculated to develop rapport with Shafir

(and, thus, serve Stilkey's personal interest in retaining a

customer), it in no way advanced the goal of effecting cocaine

sales through the Stilkey/Piper conspiracy. So viewed, the

statements cannot plausibly be said to further the ends of that

conspiracy.4

The government has three more arrows in its quiver. In

ruling that Stilkey's April 22 statements were in furtherance of

the charged conspiracy, the able district judge noted that

statements following the completion of a conspiracy's business

"often serve a purpose of concealing or hindering the

[apprehension] of those involved," and, thus, may tend to aid the

conspiracy. Although this observation is sound, see, e.g., United

4
The appellant also argues, albeit perfunctorily, that
Stilkey's conversation with Rodney on April 8 did not further the
charged conspiracy (and, therefore, should not have been admitted
into evidence). Masse sets that argument to rest. The April 8
discussion paved the way for the first transaction: Stilkey's
remarks describing his source's idiosyncracies (e.g., his
insistence on cash, his trips to New Hampshire to buy drugs, his
difficulties in communicating with Dominican suppliers, and his
dissatisfaction with the quality of drugs obtained) were plainly
designed to allay Rodney's concerns and induce him to purchase
drugs derived from the appellant. As such, these secretly recorded
statements tended to advance the conspiratorial object of selling
cocaine supplied by the appellant. See Masse, 816 F.2d at 811.

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States v. Davis, 623 F.2d 188, 191-92 (1st Cir. 1980), it is

inapposite here. Stilkey's naming of "Stanley" as his original

supplier was the polar opposite of an attempt to conceal the

conspiracy between the two men.

The government's last two theories as to how Stilkey's

April 22 statements tended to further the charged conspiracy are

equally unpersuasive. The first of these revolves around Shafir's

comment that "we'll deal with Stanley you know later when he gets

[expletive deleted] back," and Stilkey's affirmative response. The

government asserts that a factfinder could infer from this exchange

that Stilkey expected the conspiracy to resume after the appellant

returned from Florida. This is wishful thinking: the overall

tenor of the April 22 conversation suggests that Stilkey was

expressing his desire to exact revenge on the appellant, not to

resuscitate a failed relationship. Seen in this light, the

government's interpretation of the isolated exchange quoted above

is plainly unreasonable.

Finally, the government argues that Stilkey's statements

furthered the conspiracy by imposing discipline upon an errant

coconspirator, i.e., that Stilkey diverted business away from the

appellant in order to punish him for cheating their customers by

supplying low-quality, short-weight drugs.

At least one court of appeals has concluded that Rule

801(d)(2)(E)'s "in furtherance" requirement may be satisfied by

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statements that reasonably can be construed as imposing discipline

upon wayward coconspirators. See United States v. Simmons, 923

F.2d 934, 945 (2d Cir. 1991). But that holding rests, in material

part, on a finding that the statements were intended to warn other

members of the conspiracy of the ultimate consequences of falling

out of line. Id. Here, however, nothing in the record even

remotely hints that the appellant ever learned about Stilkey's

attempt to steer Shafir to a new supplier. In the absence of any

such evidence, the government's discipline-based theory cannot

succeed.

To say more on this point would be supererogatory. For

the reasons recounted above, we hold that the district court

clearly erred in finding that Stilkey's April 22 statements tended

to further the charged conspiracy. Accordingly, the statements

constituted inadmissible hearsay and should have been excluded.

D. Harmless Error.

We have concluded, to this point, that the April 22

conversation between Stilkey and Shafir was improvidently allowed

into evidence, but that no error attended the admission of the

conversations captured on the six other audiotapes. The question

thus becomes whether the erroneous admission of the April 22

conversation requires a new trial.

A non-constitutional evidentiary error is harmless (and,

therefore, does not require a new trial) so long as it is highly

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probable that the error did not influence the verdict.5 United

States v. Trenkler, 61 F.3d 45, 60 & n.22 (1st Cir. 1995); United

States v. Ladd, 885 F.2d 954, 957 (1st Cir. 1989). Under this

test, the government bears the burden of establishing harmlessness.

United States v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997).

Because the inquiry is fact-specific, each case must be treated

separately. As we have written:

There is no bright-line rule for divining when
particular errors that result in a jury's
exposure to improper evidence are (or are not)
harmless. Rather, a harmlessness
determination demands a panoramic, case-
specific inquiry considering, among other
things, the centrality of the tainted
material, its uniqueness, its prejudicial
impact, the uses to which it was put during
the trial, the relative strengths of the
parties' cases, and any telltales that furnish
clues to the likelihood that the error
affected the factfinder's resolution of a
material issue.

Sepulveda, 15 F.3d at 1182.

Here, the appellant asserts that Stilkey's April 22

statements go to the heart of the matter and that the government's

case, stripped of those statements, collapses like a ruined

5
To the extent that our decision in United States v. Awon, 135
F.3d 96, 101 (1st Cir. 1998), implies that a non-constitutional
evidentiary error must be shown to be harmless beyond a reasonable
doubt, it is not good law. The Awon court apparently embraced that
standard in reliance upon our decision in United States v. Lombard,
72 F.3d 170, 187 (1st Cir. 1995). But Lombard — unlike Awon and
unlike this case — involved a purported violation of the
Confrontation Clause (and, therefore, the alleged error had a
constitutional dimension). See id.

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soufflé. To highlight the importance of the erroneously admitted

evidence, he points to the final portion of the prosecutor's

closing argument. There, the prosecutor, referring to the fact

that the seven secretly recorded audiotapes were to be sent to the

jury along with a Panasonic tape recorder, stated:

The best witness in this case, ladies
and gentlemen of the jury, is Mr. Panasonic.

What I ask you to do, if you want to
get what this case is all about, if you want
to really find out what was going on back in
April of 1999, go back in the jury room during
your deliberations and pay attention to
everything you recall, everything you can that
you heard during the course of this trial,
harken to some particularity, listen closely
to Mr. Panasonic. And the answer is right in
front of you.

It is always dangerous to focus on rhetorical flourishes

at the expense of the big picture. Cf. Christoph Martin Wieland,

Musarion (1768) (reprinted in John Bartlett, Familiar Quotations,

380:4 (Emily Morison Beck, ed., 15th ed. 1980)) (warning against a

failure to "see the forest for the trees"). The appellant's

argument runs afoul of this precept. Notwithstanding the hyperbole

contained in the prosecutor's impassioned summation, the record

shows quite plainly that the statements made during the April 22

conversation were cumulative of other evidence. Accordingly, their

admission constituted harmless error. We explain briefly.

At trial, the government sought to establish that the

appellant (1) distributed cocaine on April 13, and (2) conspired

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with Stilkey to traffic in drugs during April 1999. The

government's case was very strong. Stilkey's testimony made out

the essential elements. He testified that on three separate

occasions — April 8, 13, and 20 — he handed the appellant money,

received cocaine, and proceeded to effect a retail sale. He also

vouchsafed that these transactions were within the purview of a

drug-trafficking scheme hatched by the two men. This, then, was

the foundation of the government's case.

The government built on this foundation throughout the

trial, corroborating Stilkey's testimony in a myriad of ways. One

way was through the testimony of Shafir, who gave a detailed

account of his drug purchases on April 13 and April 20. Another

was through the testimony of Jennifer Stilkey, who testified that

the appellant was at the Stilkey residence on the afternoon of

April 13; that he balked when Stilkey mentioned that the

prospective customer (Shafir) wanted "to try [the cocaine] first";

and that, when Stilkey gave him the money that Shafir had paid, he

counted it. A third source of corroboration was the eye-witness

testimony of two detectives who functioned as members of the

surveillance team. These witnesses provided cogent circumstantial

evidence that Stilkey met with the appellant, as he had claimed, on

April 8 and April 13.

Last — but surely not least — the six properly admitted

audiotapes contained statements that not only bolstered Stilkey's

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trial testimony but also furnished independent evidence of the

appellant's guilt. To cite one example, Stilkey told Rodney on

April 8 that his supplier — "Stanley" — traveled to New Hampshire

to purchase drugs. The jury certainly could have credited

Stilkey's trial testimony that "Stanley" was Stanley Piper (the

appellant), especially since Jennifer Stilkey testified that the

appellant mentioned that he had purchased cocaine from a New

Hampshire supplier. To cite another example, Stilkey told Shafir

on April 13 that his source had agreed to show up at Stilkey's

house that evening at 6:00 p.m. When linked with the testimony of

several witnesses who placed the appellant at the Stilkeys' home

on April 13, this statement was highly probative.

It would serve no useful purpose to recount other

examples. The short of it is that the details related by Stilkey

about his source in the six properly admitted conversations were

internally consistent, jibed with the other evidence in the case,

and functioned to identify the appellant and place him at the

center of the charged conspiracy.

Against this backdrop, the statements made by Stilkey on

April 22 do not seem to add very much to the mix. The most damning

aspect of that conversation was Stilkey's clear identification of

"Stanley" as his original drug source — yet he had made the same

identification in the secretly recorded conversation of April 8,

and that identification was already before the jury. Moreover,

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Stilkey, from the witness stand, had made an unambiguous

identification of the appellant as his original supplier, and the

other evidence in the case tended to verify Stilkey's claim. In

the last analysis, then, the most powerful aspect of the April 22

conversation was merely cumulative of other identity-related

evidence adduced by the government. Cumulative evidence is

typically regarded as harmless, see, e.g., Sepulveda, 15 F.3d at

1182 (concluding that an erroneously admitted hearsay statement

identifying defendant as malefactor was harmless because it was

cumulative of other identity-related evidence); People of Terr. of

Guam v. Ignacio, 10 F.3d 608, 614 (9th Cir. 1993) (similar), and

there is no sound reason to doubt its harmlessness here.

Nor do we believe that the prosecutor's "Mr. Panasonic"

reference is a particular cause for concern. That soliloquy was

part and parcel of the government's rebuttal to the appellant's

closing argument, which strenuously attacked Stilkey's credibility.

By emphasizing the collective importance of the taped statements,

the government sought to rehabilitate its witness. For this

purpose, the six properly admitted tapes bore much of the load; the

April 22 conversation, in and of itself, was of no special import.

That ends this aspect of the matter. Given the

overwhelming evidence indicating that the appellant was Stilkey's

original supplier, we deem it highly unlikely that the improvident

admission of the April 22 conversation had a significant impact on

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the jury's evaluation of the evidence or contributed in any way to

the jury's verdict. It follows that the error was harmless.

III. SUFFICIENCY OF THE EVIDENCE

The appellant's final argument is that the government

failed to adduce sufficient evidence of his guilt. From what we

already have written, see supra Part II(A) & (D), it is clear that

this argument is a non-starter. We therefore treat it in an

abbreviated fashion.

When, as now, a convicted defendant contests the

sufficiency of evidence adduced at trial, "we must take that

evidence in the light most favorable to the government and decide

whether that evidence, including all plausible inferences

extractable therefrom, enables a rational factfinder to conclude

beyond a reasonable doubt that the defendant committed the charged

crime." United States v. Barnes, 244 F.3d 172, 175 (1st Cir.)

(citation and internal quotation marks omitted), cert. denied, 122

S. Ct. 379 (2001). In conducting this analysis, we are cognizant

that the government may satisfy its burden of proof "by either

direct or circumstantial evidence, or by any combination thereof."

United States v. Gifford, 17 F.3d 462, 467 (1st Cir. 1994).

Moreover, an inquiring court is, for this purpose, constrained to

"resolve all credibility disputes in the verdict's favor." United

States v. Taylor, 54 F.3d 967, 974 (1st Cir. 1995). At the end of

the day, the court "need not believe that no verdict other than a

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guilty verdict could sensibly be reached, but must only satisfy

itself that the guilty verdict finds support in a plausible

rendition of the record." United States v. Gomez, 255 F.3d 31, 35

(1st Cir. 2001) (citations and internal quotation marks omitted).

These benchmarks are easily surpassed here. As said, the

government lodged two charges against the appellant. The first

charge required the government to establish beyond a reasonable

doubt that he knowingly and intentionally transferred cocaine from

himself to someone else on April 13, 1999. See 21 U.S.C. §

841(a)(1). The second charge required the government "to show

beyond a reasonable doubt that a conspiracy existed and that [the]

defendant agreed to participate in it, intending to commit the

underlying substantive offense." Sepulveda, 15 F.3d at 1173; see

also 21 U.S.C. §§ 841(a)(1), 846.

Stilkey's testimony, in and of itself, was sufficient to

establish these elements. Furthermore, that testimony was

corroborated in important respects by Jennifer Stilkey, Shafir, the

members of the surveillance team, and the six tape-recorded

conversations that were appropriately admitted into evidence.

To be sure, the appellant argues vehemently that,

notwithstanding this corroboration, Stilkey's testimony lacked

credibility. In the context of a sufficiency-of-the-evidence

challenge, however, such an argument is unavailing. Except in the

most singular of circumstances, trial courts are not empowered to

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make independent judgments about witness credibility in passing

upon sufficiency-of-the-evidence challenges. See United States v.

Franky-Ortiz, 230 F.3d 405, 407 (1st Cir. 2000); United States v.

Ortiz de Jesus, 230 F.3d 1, 6 (1st Cir. 2000); Lara, 181 F.3d at

204. There is no basis here for making an exception to this well-

settled rule.

IV. CONCLUSION

We need go no further. To recapitulate, we hold that the

district court appropriately admitted six of the seven disputed

audiotapes under Evidence Rule 801(d)(2)(E). Although the seventh

— the April 22 audiotape — did not further the charged conspiracy

and ought to have been excluded, we are fully persuaded that the

error in admitting that audiotape was benign. Moreover, the

properly admitted evidence preponderated in favor of, and was more

than adequate to support, the jury verdict.

Affirmed.

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 APPENDIX

This appendix delineates the seven tape-recorded conversations

introduced by the government at trial.

No. Date Participants Mode

1 April 8, 1999 Stilkey and Rodney face-to-face

2 April 13, 1999 Stilkey and Shafir face-to-face

3 April 13, 1999 Stilkey and Shafir face-to-face

4 April 15, 1999 Stilkey and Shafir telephone

5 April 20, 1999 Stilkey and Shafir telephone

6 April 20, 1999 Stilkey and Shafir telephone

7 April 22, 1999 Stilkey and Shafir telephone

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