USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1372
UNITED STATES,
Appellee,
v.
JACK CIOCCA,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Coffin and Campbell, Senior Circuit Judges. _____________________
_____________________
John C. McBride, with whom McBride & Keefe was on brief for _______________ ________________
appellant.
F. Mark Terison, Assistant United States Attorney, with whom _______________
Jay P. McCloskey, United States Attorney, and Jonathan R. __________________ ____________
Chapman, Assistant United States Attorney, were on brief for _______
appellee.
____________________
February 24, 1997
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TORRUELLA, Chief Judge. On June 8, 1995, a complaint TORRUELLA, Chief Judge. ____________
was filed against Defendant-Appellant Jack Ciocca ("Ciocca") and
Harold Nelson ("Nelson"), who is not a party to this appeal,
charging both with conspiracy to distribute, and to possess with
intent to distribute, cocaine in violation of 18 U.S.C. 846,
and distribution and possession with intent to distribute in
violation of 18 U.S.C. 841(a)(1) and (b)(1)(A). After a jury
found Ciocca guilty on both counts, the district court sentenced
him to imprisonment for a term of 188 months, supervised release
for a term of eight years, and a fine of $70,000. Ciocca now
appeals his conviction on three grounds. He claims that (1) the
district court erred in refusing to admit the psychiatric records
of prosecution witness Kevin Caporino ("Caporino"); (2) the
evidence was insufficient to support a conspiracy conviction; and
(3) the district court erred in admitting tapes of conversations
involving Ciocca and Caporino.
BACKGROUND BACKGROUND
We present the facts the jury reasonably could have
found, in the light most favorable to the verdict. United States _____________
v. Josleyn, 99 F.3d 1182, 1185 n.1 (1st Cir. 1996). Kevin _______
Caporino met Ciocca in 1981 when Ciocca entered the Maine
restaurant in which Caporino was working. At that first meeting,
Caporino gave Ciocca some cocaine for personal use. Ciocca later
stopped back at the restaurant and told Caporino that he was
involved in a cocaine trafficking business. Within a month of
that initial meeting, Caporino then met Ciocca in Connecticut.
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At the Connecticut meeting, Ciocca gave Caporino an eighth of a
kilogram of cocaine, which Caporino tried to sell in Maine.
Caporino continued to sell cocaine for Ciocca until 1983, when
Caporino was involved in an automobile accident. This accident
caused Caporino to suffer amnesia and led to extensive therapy
intended to recover his memory.
In the spring of 1994, Ciocca and Nelson contacted
Caporino and requested that he serve as a courier between Ciocca
in Connecticut and Nelson in Maine. Caporino agreed. During the
1980s, Caporino had served Ciocca in a similar capacity,
transporting cocaine between Connecticut and Maine up to ten
times. Caporino's role was to retrieve money from Nelson, drive
the money to Ciocca in Connecticut, wait for Ciocca to count the
money, then transport a kilogram of cocaine from Ciocca's
residence back to Nelson. For his role, Caporino was paid $2,000
by Nelson for each delivery, although sometimes he was paid a
pound of marijuana in lieu of the $2,000. Caporino made six such
trips prior to his arrest in May 1995.
In late April or early May 1995, Caporino received a
kilogram of cocaine from Ciocca and delivered it to Nelson. At
this point, Nelson gave him an ounce of cocaine for repayment of
money owed to Caporino. Caporino in turn gave this ounce to
undercover Agent Scott Durst, of the Maine Drug Enforcement
Agency. Upon this transaction, Caporino was arrested and agreed
to cooperate with law enforcement personnel. On May 11, Caporino
was paid $250 for further debts owed him by Nelson.
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On May 3, 1995, Ciocca participated in a controlled buy
with Agent Durst, using Caporino as a conduit for the
transactions. The buy was arranged by means of several
electronically monitored telephone conversations between Ciocca
and Caporino, during which Ciocca told Caporino that he would
bring three and a half ounces of cocaine to a meeting place in
Boston. Prior to the controlled buy, Caporino was searched by
agents of the U.S. Drug Enforcement Agency. The buy was
monitored by means of an electronic wire and a micro-tape
recorder placed on Caporino. Caporino, accompanied by Durst, met
Ciocca outside the Boston Gardens. Ciocca and Caporino entered a
nearby restaurant and proceeded to the restroom. Caporino and
Ciocca were in the restroom for three to four minutes, during
which time Caporino gave Ciocca $3,000, which he had received
from Durst and which Ciocca counted out in the restroom. In
exchange, Ciocca gave Caporino three and a half ounces of
cocaine. After the buy, Caporino gave the cocaine to Agent
Durst. Caporino and Durst then returned to a nearby DEA office,
where Caporino was searched again.
Between May 11 and June 7, Caporino engaged in
telephone and in-person conversations with Ciocca and Nelson,
trying to determine when the next delivery between the two would
occur. On June 7, Nelson informed Caporino that he had the money
for the buy and had spoken with Ciocca, who had a kilogram of
cocaine ready for purchase. That day, Nelson met with Caporino
in Maine and transferred to him an envelope containing $5,500.
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The two made arrangements for the transfer of the cocaine to
Nelson upon Caporino's return from Connecticut. Both prior to
and after this meeting, Caporino and his car were searched.
Caporino then travelled with Agent Durst to Connecticut
to pick up the kilogram of cocaine from Ciocca. Caporino's car
broke down along the way and the DEA supplied a truck to complete
the trip. Approximately ten minutes away from Ciocca's house,
the agents transferred Caporino to the truck. At the time of
this transfer, Caporino was searched. Agent Durst accompanied
Caporino in the truck until they were near Ciocca's home, at
which point Durst joined the other law enforcement agents.
After being ushered into the house by Ciocca, Caporino
waited while Ciocca finished cooking with his daughter.
Thereafter, Ciocca and Caporino went to the master bathroom and
closed the door. Ciocca put on thin black gloves and began to
count the money Caporino had brought from Nelson. Ciocca
retrieved a kilogram of cocaine from a closet in the bathroom and
gave it to Caporino. The two proceeded down the stairs to the
cellar, from which Caporino left the house. During this time,
law enforcement agents were stationed on the street near Ciocca's
mailbox, monitoring the wire transmissions from inside the house.
Upon meeting up with the drug enforcement agents in a nearby
parking lot, Caporino turned over to the agents a brown paper bag
containing a rectangular package of cocaine. Both Caporino and
the truck were again searched.
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During the early morning of June 8, Nelson paged
Caporino to transfer the cocaine. The two arranged to meet at a
restaurant in Portland, Maine. From there, the two went to a
commuter parking lot, where Caporino claimed his car had broken
down. Nelson retrieved the kilogram of cocaine from the trunk of
Caporino's car, after which drug enforcement agents arrested him.
Later that day, a search warrant executed at Ciocca's
home turned up several firearms, including one located in the
master bathroom closet and three firearms in an attache case in
the bottom of that closet. Finally, another firearm was located
in a bureau in the master bedroom. The agents also seized the
$5,500 that Nelson had transferred to Caporino the previous day
from the medicine cabinet of Ciocca's master bathroom.
DISCUSSION DISCUSSION
I. Denial of defendant's request for Caporino's I. Denial of defendant's request for Caporino's
medical and psychiatric records medical and psychiatric records
Ciocca first argues that the district court erred when
it denied his request for discovery of, and failed to admit into
evidence, Caporino's medical and psychiatric records related to
his 1983 accident. Ciocca contends that the records are
exculpatory evidence to which he is entitled under Brady v. _____
Maryland, 373 U.S. 83 (1963). Such evidence is discoverable by ________
the defendant where it "is material either to guilt or to
punishment." Brady, 373 U.S. at 87. _____
In order to succeed on a Brady claim, "a defendant must _____
show that the withheld 'evidence was exculpatory, as measured by
its materiality.'" United States v. Watson, 76 F.3d 4, 7 (1st _____________ ______
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Cir.) (quoting United States v. Hemmer, 729 F.2d 10, 14 (1st ______________ ______
Cir.), cert. denied, 467 U.S. 1218 (1984)), cert. denied, ___ _____________ _____________
U.S. ___, 116 S. Ct. 1889 (1996). "Information is 'material' 'if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.'" United States v. Blais, 98 F.3d 647, 651 (1st _____________ _____
Cir. 1996) (quoting United States v. Bagley, 473 U.S. 667 ______________ ______
(1985)). "Where, as here, the defendant has made a pretrial
request for specific exculpatory information, reversal is
required if nondisclosure 'might have affected the outcome of the
trial.'" United States v. Devin, 918 F.2d 280, 289 (1st Cir. ______________ _____
1990).
After carefully reviewing each of the sealed records,
we find that non-disclosure could not have affected the outcome
of the trial. Disclosure of these medical records, in light of
defense counsel's unhindered cross-examination of several
government witnesses on this issue, could not have altered either
the jury's conviction or the sentencing court's disposition and
is therefore not material. Nothing in the records could have
bolstered defense counsel's cross-examination of Caporino. We
thus find no error in the district court's denial of Ciocca's
motion for access to Caporino's psychiatric records.
Ciocca emphasizes that the district court's denial of
his disclosure request prejudiced his ability to impeach Caporino
on cross-examination, and thus violated his right to
confrontation guaranteed by the Sixth Amendment. "The Sixth
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Amendment guarantees criminal defendants an adequate opportunity
to cross-examine adverse witnesses." United States v. Butt, 955 _____________ ____
F.2d 77, 86 (1st Cir. 1992). While a witness's psychiatric
records may sometimes be an appropriate subject for cross-
examination, the right to cross-examination is not absolute. Id. ___
"Once the defendant has been afforded a reasonable opportunity to
question a witness' veracity and motivation, the trial judge
enjoys broad discretion in determining the scope and extent of
cross-examination." Id. (internal quotations omitted). ___
As Caporino was the government's primary witness, we do
not doubt that challenging Caporino's credibility was crucial to
Ciocca's defense. We find, however, that Ciocca's ability to
impeach Caporino did not suffer because of, and that Ciocca was
not prejudiced by, the district court's denial of access to these
records. Defense counsel engaged in a thorough and probing
cross-examination of Caporino, as well as of Agent Durst of the
Maine Drug Enforcement Agency and Agent John Bryfonski of the
U.S. Drug Enforcement Agency, regarding the extent of Caporino's
memory loss after his accident. Ciocca brought out Caporino's
statements that he was a "walking zombie," that he had to
"reconstruct his brain" after the accident, that just after the
accident, and perhaps for years thereafter, Caporino could not
remember anything that occurred prior to the accident, that
Caporino was hospitalized for amnesia after the accident, that he
"forgot my whole life," that Caporino had to "build a new brain,"
and that Caporino's brain had "gone the wrong way." The above
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testimony demonstrates that Ciocca was able to place before the
jury ample evidence regarding Caporino's ability to remember the
events that transpired prior to and after his accident. That the
jury chose to credit Caporino's testimony, even after Ciocca's
thorough cross-examination, is within its province as factfinder.
United States v. DiSanto, 86 F.3d 1238, 1246 (1st Cir. 1996). On _____________ _______
review, we defer to all jury determinations of credibility. See ___
United States v. Smith, 101 F.3d 202, 215 (1st Cir. 1996). _____________ _____
Thus, having found that the sealed records were not
material to Ciocca's guilt or punishment and that Ciocca was not
prejudiced by this lack of access to the sealed records, we
conclude that the district court properly denied access to the
records as Brady material. _____
II. Sufficiency of the evidence II. Sufficiency of the evidence
Ciocca next claims that the district court erred in
denying his motion for judgment of acquittal. He contends that
no credible evidence established a conspiracy from the spring of
1994 to May 1995.1 He argues that there was no evidence, outside
that provided by Caporino, linking him to a conspiracy with
Nelson prior to May 1995. He acknowledges that there were
conversations between Caporino and Nelson and between Caporino
and Ciocca, but nothing linking the three in a conspiracy.
Ciocca is, in essence, challenging the sufficiency of
the evidence.
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1 He appears to concede that the evidence was sufficient to
establish a conspiracy during the time following Caporino's
decision to cooperate with the government.
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In assessing a challenge to the sufficiency
of the evidence, we "review the record to
determine whether the evidence and reasonable
inferences therefrom, taken as a whole and in
the light most favorable to the prosecution,
would allow a rational jury to determine
beyond a reasonable doubt that the defendants
were guilty as charged."
United States v. Sullivan, 85 F.3d 743, 747 (1st Cir. 1996) ______________ ________
(quoting United States v. Mena-Robles, 4 F.3d 1026, 1031 (1st ______________ ___________
Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1550 (1994)). ____________
"To uphold a conviction, the court need not believe that no
verdict other than a 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. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993) (quoting United _________ ______
States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied, ______ _____ ____________
506 U.S. 1063 (1993)).
In order to prove conspiracy, the government was
required to prove beyond a reasonable doubt that Ciocca "entered
an agreement to commit the substantive offense, and that [he] was
a voluntary participant in the conspiracy." United States v. ______________
And jar, 49 F.3d 16, 20 (1st Cir. 1995). In addition, the _______
government must prove both an intent to agree and an intent to
commit the substantive offense. Id. In considering the ___
evidence, "a 'common purpose and plan may be inferred from a
development and collocation of circumstance.'" Id. at 21 ___
(quoting United States v. S nchez, 917 F.2d 607, 610 (1st Cir. _____________ _______
1990) (citations and internal quotations omitted), cert. denied, ____________
499 U.S. 977 (1991)).
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In the Background section, supra, we recited the __________ _____
evidence in the light most favorable to the jury verdict. That
evidence indicates that, in the spring of 1994, Ciocca initiated
an understanding with Caporino that Caporino would serve as
courier in a drug trade between Ciocca in Connecticut and Nelson
in Maine. The jury could have found that Caporino engaged in at
least six transactions prior to May 1995 During each
transaction, Nelson contacted Caporino to let him know that the
money was ready to be transported to Ciocca. After Caporino
retrieved the money from Nelson, he drove it to Ciocca's house in
Connecticut, where Ciocca counted it. Ciocca would then turn
over a kilogram of cocaine to Caporino, who would transport the
kilogram of cocaine back to Nelson in Maine. We believe that the
jury could infer from the evidence as a whole that Nelson and
Ciocca entered into an agreement in the spring of 1994 to
transport cocaine between Connecticut and Maine, that they had an
intent to agree and an intent to distribute cocaine, and that the
agreement continued up to and including the point at which Ciocca
was arrested. See, e.g., And jar, 49 F.3d at 21 (noting that an ___ ____ _______
appellate court draws all credibility determinations in favor of
the verdict, even in instances where the conviction relies solely
on the uncorroborated testimony of a confidential informant, "so
long as the testimony is not incredible or insubstantial on its
face" (internal quotations omitted)); United States v. Cresta, ______________ ______
825 F.2d 538, 546 (1st Cir. 1987) (recognizing that there is no
federal requirement of corroboration of an informant's testimony
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provided the testimony is not "incredible or insubstantial on its
face" (internal quotations omitted)), cert. denied, 486 U.S. 1042 ____________
(1988); United States v. Davis, 623 F.2d 188, 195 (1st Cir. 1980) _____________ _____
(finding it "clear that a [conspiracy] conviction can rest on the
uncorroborated testimony of a co-defendant or accomplice"
(internal quotations omitted)). Because Caporino's testimony is
far from being incredible or insubstantial on its face, we find
no error in the district court's denial of Ciocca's motion for
judgment of acquittal.
III. Admission of the taped conversations between III. Admission of the taped conversations between
Ciocca and Caporino Ciocca and Caporino
During the trial, the government sought to introduce
into evidence approximately 27 audiotape recordings procured
through consensual recording. The audiotapes contained
conversations between Caporino and Ciocca and between Caporino
and Ciocca's co-conspirator Nelson. The district court
conditionally admitted the audiotapes, subject to a later ruling
under United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977). _____________ ____________
At the close of all the evidence, Ciocca renewed his objection to
"all the evidence that relates to the conspirator hearsay."
Trial Transcript, vol. 2, at 378. The following colloquy ensued:
THE COURT: Let me see. You say strike all
the evidence. What evidence particularly do
you wish to have stricken?
MR. McBRIDE: Any statements made by Nelson
on the one hand that were intercepted on a
consensual monitoring device between Caporino
and Nelson, and any statement that existed
between Caporino and the defendant who [sic]
in any way reflected a continuing--
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THE COURT: The defendant's statement
intercepted by the wire would be an admission
to [sic] the party.
MR. McBRIDE: I'm sorry, you are absolutely
correct, I'm wrong.
Id. at 378-79. ___
On appeal, Ciocca argues that
"certain tapes of conversations were played
for the jury. Defense counsel had a standing
objection to the admission of the
conversations as hearsay. The Court
overruled the objection, allowing the tapes
to come in under the co-conspirator statement
exception to the hearsay rule as provided
under Federal Rule of Evidence 801(d) (2)
(E). The Court erred because there was
insufficient evidence of a criminal
conspiracy between the defendant and
Caporino."
Appellant's Brief at 19. We first note that Ciocca has not
appealed the district court's admission of the tape recordings of
conversations between Caporino and Ciocca's co-conspirator,
Nelson. Because Ciocca has failed to appeal that ruling, the
admissibility of those recordings is not before us.
We next find that Ciocca has waived the argument that
the taped conversations between Caporino and him were
inadmissible. "A party waives a right when it makes an
intentional relinquishment or abandonment of it." United States _____________
v. Mitchell, 85 F.3d 800, 807 (1st Cir. 1996) (internal ________
quotations omitted). Forfeiture, of course, is different, in
that it occurs only "if a defendant merely fails to make a timely
assertion of that right." Id. "The distinction is a key one, ___
for '[m]ere forfeiture, as opposed to waiver, does not extinguish
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an "error" under Rule 52(b). . . .' In short, where there was a
forfeiture, we apply a plain error analysis; where there was
waiver, we do not." Id. (quoting United States v. Olano, 507 ___ _____________ _____
U.S. 725, 733-37 (1993)). Thus, Ciocca's acknowledgment at the
Petrozziello hearing of the correctness of the district court's ____________
ruling with regard to the taped conversations between Ciocca and
Caporino constitutes waiver, which extinguishes any error on
appeal. United States v. Olano, 507 U.S. 725, 733 (1993). Our _____________ _____
analysis ends here.2
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2 We point out that defense counsel's agreement with the
district court's ruling on these conversations was in fact
warranted and correct as a matter of law. Ciocca's statements in
these conversations constitute admissions against interest and
were properly admissible pursuant to Federal Rules of Evidence
801(d)(2)(A) and 804(b)(3). Additionally, the statements by
Caporino, in response, were properly admissible because a
"defendant, having made admissions, [cannot]
keep from the jury other segments of the
discussion reasonably required to place those
admissions in context. In this instance, the
other parts of the conversation were properly
admitted as 'reciprocal and integrated
utterances,' . . . to put [Ciocca's]
statements into perspective and make them
'intelligible to the jury and recognizable as
admissions.'"
United States v. McDowell, 918 F.2d 1004, 1007 (1st Cir. 1990) ______________ ________
(citations omitted).
Moreover, while some of Ciocca's statements made in the course
of the conversations may not have been admissions against
interest, his failure to object to such statements below forfeits
any argument he may have for the inadmissibility of non-admission
statements. Forfeiture of this argument triggers plain error
review. Mitchell, 85 F.3d at 807. Ciocca's brief does not even ________
indicate which statements may give rise to a plain error finding.
Thus, Ciocca has not carried his burden of showing plain error,
see United States v. Winter, 70 F.3d 655 (1st Cir. 1995) ___ _____________ ______
(appellant bears the burden of establishing plain error), cert. _____
denied, ___ U.S. ___, 116 S. Ct. 1366 (1996), and we find no such ______
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CONCLUSION CONCLUSION
Based on the foregoing considerations, we affirm the affirm
district court's rulings.
So ordered. __________
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error here.
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