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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