United States v. Ciocca

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1372

UNITED STATES,

Appellee,

v.

JACK CIOCCA,

Defendant - Appellant.

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

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.

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

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.

error here.

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