832 F.2d 1299 (1st Cir. 1987), 87-1080, United States v. Hoffman

Docket Nº:87-1080.
Citation:832 F.2d 1299
Party Name:UNITED STATES of America, Appellee, v. Barry HOFFMAN, Defendant, Appellant.
Case Date:November 06, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 1299

832 F.2d 1299 (1st Cir. 1987)

UNITED STATES of America, Appellee,

v.

Barry HOFFMAN, Defendant, Appellant.

No. 87-1080.

United States Court of Appeals, First Circuit

November 6, 1987

Heard Sept. 9, 1987.

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Constance L. Rudnick, Boston, Mass., with whom Richard A. Gargiulo, David M. Kozlow and Gargiulo & McMenimen, Boston, Mass., were on brief, defendant, for appellant.

Deborah A. Ramirez, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., Acting U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, Chief Judge, GARTH, [*] Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

During the summer of 1985, the federal Drug Enforcement Administration (DEA) came to believe that a Boston-area liquor dealer, Joseph Gassiraro, was involved in the distribution of cocaine. The DEA sought and obtained a court order allowing electronic surveillance on three telephones used by Gassiraro, two at his place of business (the Orient Liquor Mart) and the third at his home. Intelligence gained from the continuing investigation (including the monitoring of the three telephones) led the DEA to seek similar access to a pair of coin-operated payphones located near the Orient Liquor Mart. After wiretaps had been placed on these instruments, the government overheard what seemed to be a suspicious and ongoing dialogue between Gassiraro and the defendant-appellant, Barry Hoffman. Not surprisingly, the investigation was expanded to bring Hoffman within its scope.

A federal grand jury eventually returned a twenty-one count indictment against Gassiraro, Hoffman, and others. The centerpiece of the indictment was a charge of conspiracy to possess cocaine with the intent to distribute the drug in violation of 21 U.S.C. Secs. 841(a)(1), 846. The named defendants were accused of an assortment of related crimes. Most of them (Gassiraro included) pled guilty to one or more of the charges. Hoffman, however--as was his right--stood trial on the conspiracy count and on four counts of unlawful use of the telephones to facilitate the distribution of

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narcotics. See 21 U.S.C. Sec. 843(b). 1 The jury found Hoffman guilty on all five of these charges. Following the imposition of sentence, he prosecuted this appeal. We find Hoffman's plea for reversal unavailing and affirm his conviction on all counts.

We see no benefit to be derived from an exegetic narration of the sordid facts of the criminal enterprise, as reflected by the trial record. Rather, we shall refer to factual material in our ensuing discussion only to the extent necessary to place the issues on appeal into proper perspective. Nor is there need to dwell overlong on self-evident truths; notwithstanding that we have considered the wide array of points which appellant raises, only three of them require any discussion. We simply note in passing that we have reviewed--and rejected--the remainder.

I. PROSECUTORIAL INTERFERENCE WITH SIXTH AMENDMENT RIGHTS

At trial, the government presented evidence tending to prove that Hoffman, acting as a cocaine wholesaler, supplied Gassiraro (a dealer) with drugs on at least three occasions. One of those occasions formed the backdrop against which the charge of prosecutorial interference with Hoffman's right to present witnesses in his own defense matured. We examine the critical facts.

On July 24, 1985, Hoffman and Gassiraro spoke in code on tapped telephone lines. The government's translation indicated that, during the course of this conversation, Gassiraro ordered a quantity of cocaine and agreed to prepay by delivering money to Hoffman in Florida. Once his palm had been crossed with silver, appellant would arrange for the cocaine to materialize in Boston. The next morning, Gassiraro flew to Florida. He was met at the airport by Hoffman. Later that day, Gassiraro boarded a flight home. He was greeted at Boston's Logan Airport by Thais Gassiraro, his adult daughter. Soon after father and daughter left the airport, DEA agents stopped the car in which they were riding. A consensual search of the vehicle revealed half an ounce of high quality cocaine. Gassiraro claimed that the contraband did not belong to him; he said it had been "planted" in order to incriminate him. The government, on the other hand, contended that the package was a sample furnished to Gassiraro by Hoffman. From aught that appears of record, Thais had nothing to say--then or thereafter--as to the source of the discovered cocaine.

Between indictment and the time of trial, a gestation period of some nine months, the defendant took no meaningful steps to interview Thais Gassiraro or to lay the groundwork for her appearance as a trial witness. The record plainly indicates that, mid-trial, defendant's counsel entertained no thought of calling her. Yet, at the very end of the trial, perhaps grasping for straws in the face of overwhelming evidence of Hoffman's guilt, the defense decided to explore the subject further. And the prosecutor, an Assistant United States Attorney (AUSA), became apprised of this intention.

What happened next is admitted in part and disputed in part. We know that the AUSA placed a call to Henry Katz, Esquire.

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Katz was Joseph Gassiraro's attorney; the AUSA believed, mistakenly, that he also represented Joseph's daughter. There is substantial agreement that the prosecutor told Katz, in words or substance, that "if Miss Gassiraro testified that the cocaine found in her car on the 25th of July had been planted, ... the government would seek an indictment against [her] for perjury." The defendant alleges that an added threat was made, claiming that the AUSA admonished Katz to "[t]ell your client [Joseph Gassiraro] to tell his daughter [Thais Gassiraro] not to come in." 2 Katz, though he testified that he regarded what was said "not really [as a] threat of prosecution as much as ... an overreaction," brought the call to the attention of defense counsel. Hoffman moved for a mistrial, arguing that this overture had dampened his ability to produce Thais as a defense witness. The district court held an immediate hearing, listened to Katz's version of what had occurred, and denied the motion.

The defense, claiming to be unable to locate Thais, rested without presenting any testimony from her. (Parenthetically, it should be noted that, before the AUSA's call, the defense was equally in the dark as to Thais's whereabouts.) The jury found the defendant guilty. The district judge thereafter conducted a fuller hearing. Although he found the call to have been "careless" and "an extraordinarily foolish contact," he determined that the AUSA had engaged in no intentional misconduct. Based on the evidence, the judge felt unable to conclude "that there was a direct or even an indirect connection" between the disputed call and Thais Gassiraro's nonappearance at trial. Thus, in the court's view, there was no interference with any constitutionally protected right. And, notwithstanding that the court gave appellant the opportunity to reopen and to present evidence of causation--say, an affidavit from Thais--Hoffman neither expanded the record nor moved for reconsideration.

We start our analysis of this point by acknowledging that the sixth amendment's guarantee of compulsory process has pertinence in these precincts. In Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), the Court stated:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense.... This right is a fundamental element of due process of law.

Id. at 19, 87 S.Ct. at 1923. It is this right which appellant claims has been trammelled in his case. From his perspective, because he maintains that a violation of the right to present witnesses is per se reversible error, his conviction should be overturned without regard to matters such as causation or prejudice. Appellant's argument, however, misapprehends the nature of the inquiry into causation. Unless and until, as a threshold matter, it is determined that the sixth amendment was abridged, any question as to the appropriateness of harmless error analysis, see generally United States v. Argentine, 814 F.2d 783, 788-90 (1st Cir.1987), need not be posed. Causation--unlike prejudice--is an integral element of this threshold inquiry. It is an element which Hoffman falls well short of establishing on this record.

While Washington v. Texas shaped the broad contours of the right to compulsory process, and the later case of Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), held that the right might be transgressed by impermissible governmental interference with a witness's decision to testify, id. at 98, 93 S.Ct. at 353, its precise dimensions remained murky. The lens of inquiry was narrowed, however, in United States v. Valenzuela-Bernal, 458 U.S. 858,

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102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). 3 There, the Court stated that a bare negative was not enough; a defendant must exhibit "more than the mere absence of testimony" to establish a violation of the right to present witnesses. Id. at 867, 102 S.Ct. at 3446. There must be a plausible showing that the testimony was both material and favorable to the defense. Id. at 871, 102 S.Ct. at 3448. The Court strongly intimated that materiality and favorability, without more, would not suffice to establish a sixth amendment compulsory process defense; the contested act or omission must be attributable to the sovereign and must be causally related to the inability to present the evidence. Id. at 867, 102 S.Ct. at 3446. As we interpret the doctrine, an accused must, at a minimum, demonstrate some plausible nexus between the challenged governmental conduct and the absence of...

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