U.S. v. Fisher

• Citation: 3 F.3d 456
• Decision Date: 03 March 1993
• Docket Number: Nos. 92-2380 and 91-1330,s. 92-2380 and 91-1330
• Parties: UNITED STATES, Appellee, v. Michael FISHER, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 456

3 F.3d 456

UNITED STATES, Appellee, v. Michael FISHER, Defendant, Appellant.

Nos. 92-2380 and 91-1330.

United States Court of Appeals First Circuit.

Heard March 3, 1993.

Decided Aug. 17, 1993.

Anthony M. Traini, Providence, RI, for defendant, appellant.

A. Clayton Spencer, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., Boston, MA, was on brief, for appellee.

Before BOUDIN, Circuit Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

In this appeal, defendant-appellant Michael Fisher challenges his convictions for attempting and conspiring to possess with intent to

                distribute cocaine in violation of 21 U.S.C. Sec. 846. 1  After careful consideration of defendant's arguments, we affirm
                

I. BACKGROUND

In mid-1989, the United States Drug Enforcement Agency ("DEA"), initiated a "reverse sting" in which it planned to sell narcotics to Ali Osseiran, a known narcotics trafficker. In June 1989, Joseph Khoury, a paid DEA informant, met with Osseiran at his place of business, Absolute Diamonds in Boston. At that time, Osseiran expressed interest in participating in a large drug transaction. Khoury then introduced Osseiran to Aziz Malik, another DEA informant, whom Khoury portrayed as a significant drug dealer.

On October 31, 1989, Malik offered to involve Osseiran in a future heroin transaction on the condition that Osseiran provide one million dollars in financing. Shortly thereafter, on November 3, 1989, Osseiran told Malik that he was interested in purchasing 25 kilograms of heroin and that he already had two buyers interested in five kilograms of heroin each. He also told Malik that his buyers would require a sample of the heroin. At one point, Osseiran accidentally let slip that a sample would be going to a person named "Mike" in East Boston.

On November 20, 1989, in accordance with Osseiran's instructions, Malik delivered to Rashid Haloui, Osseiran's employee, a two-gram sample of heroin, which was divided in half. Haloui, in accordance with Osseiran's instructions, then drove to East Boston and delivered one portion of the sample to defendant Michael Fisher. Later that evening, Malik called Osseiran to see if the buyers had approved of the samples. Osseiran told him that the buyers liked the samples and that the money would be forthcoming.

In the ensuing weeks, Malik and Osseiran had several meetings during which they discussed arrangements for the delivery of the entire amount of heroin. Contemporaneously, Osseiran informed Malik that he was having difficulty obtaining the up-front money. He also advised Malik that if the drugs were cocaine rather than heroin, he could put the deal together more easily. Osseiran reiterated that he had two buyers for five kilograms of heroin each, but that he was not sure what to do with the rest of the drugs.

During a meeting in mid-December, Malik agreed to exchange ten kilograms of the previously agreed upon heroin for seventy kilograms of cocaine. Because the original twenty-five kilogram deal had been subsequently reduced to twenty kilograms, a total of ten kilograms of heroin and seventy kilograms of cocaine were now to be delivered to Osseiran.

On December 26, Osseiran informed Malik that he was prepared to consummate the deal. It was agreed that the delivery would be concluded within the next couple of days. On December 28, Osseiran and Malik made arrangements for the delivery to take place the next day.

On the morning of December 29, Fisher visited Absolute Diamonds and conferred with Osseiran for a short time. Later that afternoon, Malik met with Osseiran at Absolute Diamonds, and received from him a shopping bag containing money and what appeared to be diamonds. ² While at the store, Malik made a phone call ordering the delivery of the drugs.

As instructed by Osseiran, Haloui went to the Logan Airport Hilton to make the pick-up. At Logan, Malik's courier, who actually was another DEA informant, Tauquir Islam, gave Haloui a bag purporting to contain 15 After his arrest, Haloui told the DEA agents that Osseiran had instructed him to deliver the bag to Fisher at Fisher's liquor store in East Boston. Haloui agreed to assist the government by participating in a controlled delivery of the drugs to Fisher. Haloui and Islam then went to Fisher's store. When they arrived, Fisher met them outside the store and refused delivery of the drugs. ⁴ Fisher then motioned Haloui inside the store and privately told Haloui that he was aware that Osseiran had been arrested and that Islam was a "cop." Fisher was arrested on the evening of December 29, 1989.

                kilos of cocaine. 3  Immediately thereafter, Haloui was arrested.  At or around the same time, Osseiran was arrested at Absolute Diamonds
                

On January 26, 1990, Fisher, Osseiran, and Haloui were charged in a four count indictment. Counts I and II charged Osseiran and Haloui with attempt (Count I) and conspiracy (Count II) to possess with intent to distribute more than five kilograms of cocaine and more than one kilogram of heroin. Counts III and IV charged Fisher with attempt (Count III) and conspiracy (Count IV) to possess with intent to distribute more than five kilograms of cocaine.

Due to his post-arrest confessions and the constitutional concerns raised thereby, Haloui was tried separately. See Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968). On June 1, 1990, Haloui was acquitted and ordered to remain in the jurisdiction as a material witness for the upcoming trial of Osseiran and Fisher. On October 10, 1990, the thirteenth day of Osseiran's and Fisher's trial, Osseiran pleaded guilty. ⁵ On October 16, 1991, the jury found Fisher guilty on Counts III and IV. Subsequently, Fisher dismissed his trial counsel and hired the attorney now representing him on appeal. Fisher's new counsel promptly filed a variety of motions attacking the verdict, each of which the district court denied. Upon resolution of these motions, Fisher was sentenced to two concurrent ten year prison terms. ⁶

On June 3, 1991, Fisher, claiming ineffective assistance of trial counsel, filed a petition for habeas corpus with the district court pursuant to 28 U.S.C. Sec. 2255. ⁷ As the basis therefor, Fisher complained of trial counsel's failure to raise seven separate issues. At the same time, Fisher filed a motion in this court seeking a stay of his previously-filed direct appeal. We granted the stay pending the district court's resolution of the Sec. 2255 petition.

In a comprehensive memorandum and order dated July 16, 1992, the district court considered and rejected Fisher's ineffective assistance arguments on all grounds asserted. See United States v. Osseiran, 798 F.Supp. 861, 873-76 (D.Mass.1992). First, the court determined that the motions Fisher claimed should have been made would not have been granted. Id. at 873-76. Relying on this determination, the court then decided that Fisher had suffered no prejudice and that the representation afforded him by trial counsel was not constitutionally infirm. Id. at 876. However, the court concluded its memorandum and order by holding that it lacked the jurisdiction to deny formally Fisher's petition at that time. Id. Subsequently, we ordered the court to enter judgment on On appeal, Fisher seeks relief on five grounds: (1) that evidence relating to a conspiracy to which he was not a party and with which he was not charged was improperly admitted against him; (2) that without evidence of the conspiracy referred to in Count II of the indictment, there was insufficient evidence to sustain his convictions; (3) that, in violation of his constitutional rights, he suffered a constructive amendment to and/or a prejudicial variance from the indictment; (4) that he was harmed by ineffective assistance of counsel; and (5) that his sentence was excessive in light of the sentence given to Osseiran. After determining the scope of the conspiracy, which is necessary for resolving Fisher's first three arguments, we discuss each in turn.

the petition. In response, the court issued an order denying it. This appeal followed.

II. DISCUSSION

A. Scope of the Conspiracy

As alluded to above, Fisher's first three arguments depend necessarily upon our acceptance of the following premise: that the trial court should not have found, ⁸ and correspondingly that the government should not have been allowed to argue, that the heroin and cocaine conspiracy alleged in Count II and the cocaine conspiracy alleged in Count IV actually were components of one large conspiracy. ⁹ Fisher's argument is not, however, based upon the evidence at trial. Instead, it proceeds from the fact that the grand jury charged only Osseiran and Haloui with the conspiracy alleged in Count II, while charging only Fisher with the conspiracy alleged in Count IV. In Fisher's view, the fact that the indictment charged "different" conspiracies should have precluded the government from pursuing a "one large conspiracy" line of argument. Fisher's argument is without merit.

Simply put, the fact that an indictment charges conspiracy in separate counts does not mean that the conspiracies charged necessarily must be separate and distinct. We note that there is a complete absence of authority supporting the novel proposition Fisher asserts, and that pertinent case law suggests the very opposite. Cf., e.g., United States v. David, 940 F.2d 722, 734 (1st Cir.1991) (acknowledging that separately charged conspiracies can constitute a single offense for double jeopardy purposes), cert. denied, --- U.S. ----, 112 S.Ct. 2301, 119 L.Ed.2d 224 (1992); United States v. Hart, 933 F.2d 80, 85-86 (1st Cir.1991) (same); United States v. Gomez-Pabon, 911 F.2d 847, 860 (1st Cir.1990) (same), cert. denied, 498 U.S. 1074, 111 S.Ct. 801, 112 L.Ed.2d 862 (1991). The reason for this is clear: the indictment is primarily used to provide notice of the charge or charges to the person or persons...