U.S. v. Juodakis

• Citation: 834 F.2d 1099
• Decision Date: 10 December 1987
• Docket Number: No. 86-1624,86-1624
• Parties: UNITED STATES, Appellee, v. Aloyisius JUODAKIS, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1099

834 F.2d 1099

UNITED STATES, Appellee, v. Aloyisius JUODAKIS, Defendant, Appellant.

No. 86-1624.

United States Court of Appeals, First Circuit.

Submitted Oct. 9, 1987.

Decided Dec. 10, 1987.

Aloyisius Juodakis, on brief, pro se.

Sydney Hanlon, Sp. Asst. U.S. Atty., and Frank L. McNamara, Jr., Acting U.S. Atty., Boston, Mass., on brief for appellee.

Before COFFIN, BREYER and SELYA, Circuit Judges.

PER CURIAM.

Appellant was convicted of conspiracy to manufacture methaqualone. There was abundant evidence and, indeed, defendant admitted that he had at various times helped produce methaqualone. His major arguments on appeal, however, are that there was insufficient evidence of any overt act in furtherance of the charged conspiracy occurring within the five year limitations period prior to the indictment and that he withdrew from the conspiracy prior to the five year limitations period. He also challenges the jury instructions.

Defendant was indicted on November 25, 1985. We review the evidence with particular attention to events after November 25, 1980 to determine whether prosecution was barred by the statute of limitations, 18 U.S.C. Sec. 3282, or whether, instead, as the government contends, overt acts in furtherance of the conspiracy were performed after November 20, 1980 and defendant's association with it continued into the limitations period.

There was evidence of the following. According to the testimony (given under immunity) of Gerard Stackhouse, he and one Francis Foley discussed manufacturing drugs sometime in 1976. Thereafter, Stackhouse researched how to produce methaqualone, and in 1977 a facility was rented in Worcester, Massachusetts. Foley financed the operation and helped to renovate the place while Stackhouse, along with one Leonard Lewis, tried to produce methaqualone. Also present doing carpentry work was Tilman Lukas who, although originally unaware of any wrongdoing, guessed something illegal was afoot and was let in on the secret. After nine months to a year of effort, Stackhouse and Lewis succeeded in producing methaqualone powder. The next step was to turn the powder into tablets. Toward that end, in the spring of 1978, Foley and Stackhouse went to California where they met with Gene Wise and defendant. Defendant, according to his own testimony, had constructed a pill machine for his employer, Wise, and this machine was supplied to Foley and Stackhouse so that they could produce Quaaludes, the pill form of methaqualone. Stackhouse had trouble with the machine, so in May 1978 defendant went to Massachusetts. Defendant said he got the machine running and helped in other aspects of the Worcester methaqualone operation for about four months. Defendant became uncomfortable, however, because he felt operations were not sufficiently concealed and Foley was ordering chemicals too openly. Consequently, he said, he returned to California in September 1978. During the following twelve months, defendant came to Massachusetts on several errands for Wise, sometimes carrying money to Foley and pills back to Wise.

Meanwhile, the Worcester group had two mishaps. First, in late 1978, they lost their lease. Second, at around the same time, Stackhouse and others (but not Foley) were stopped on their return trip from New York after purchasing there the direct chemical precursors to methaqualone. The agents took the chemicals, but allowed Stackhouse to go. Stackhouse had no further association with Foley's enterprise after that.

After Stackhouse's departure, Foley moved the business to South Boston. In June 1979, a building at 377 West First Street, South Boston was acquired and renovations were begun.

Defendant next appeared on the scene in the summer of 1979. Defendant said he returned to Massachusetts at that time and rented an apartment in Hingham (starting September 1, 1979) in order to participate in a venture Foley and Wise were contemplating. The precise nature of the Foley-Wise venture was never decided upon, defendant said, but among the matters discussed was manufacturing the precursors to maethaqualone, an operation defendant thought would be perfectly legal. Defendant's job, he said, was to set up the South Boston space so that it could be used for any number of chemicals, a general purpose facility so to speak. Defendant connected a condenser, checked seals on reactor vessels, and tested equipment, but, he said, never manufactured anything. In December 1979, at a time when defendant was running tests on equipment and wondering what would happen next, Wise was lost at sea. The demise of Wise, whom defendant regarded as his protector, coupled with friction with Foley and defendant's feeling that he was in over his head with larger equipment than he had ever used before, convinced defendant to leave Massachusetts, he said. On January 15, 1980, he turned in the keys to his Hingham apartment and informed the rental manager he was leaving. The lease was formally terminated April 30, 1980, but the rental manager testified defendant was not in the apartment after January 15, 1980. Defendant said he never told Foley about being in over his head for he was afraid Foley would take it badly. Instead, he simply packed and left. After returning to California, defendant put his knowledge to use and made methaqualone himself. There is no contention that defendant's production of methaqualone in California was part of the conspiracy charged in the indictment.

In contrast to defendant's testimony that he left Boston in January 1980, never again to provide any aid to Foley's business, was the testimony of William Garstang. In early 1979, Garstang moved into the house defendant rented in California. Defendant, who shared the residence with Garstang, would be absent from California approximately two weeks out of every six, according to the latter. In the spring of 1980, defendant told Garstang that he was involved in a drug manufacturing operation in Boston or a suburb, that the operation was having difficulties (including management problems), and that he was making curative efforts to try to get the operation to run smoothly and get paid. Defendant's periodic absences from California did not cease until summer 1980, Garstang said, when defendant and Garstang began manufacturing their own methaqualone in California.

The gas records for the South Boston facility from September 1979 to June 12, 1980 were introduced into evidence. They show a peak usage in January 1980 ($309.70). Thereafter, the bills dropped ($171.95 February; $68.65 March; $57.97 April; $22.25 May), and service was terminated after June 12, 1980 for nonpayment.

There is no direct evidence of what, if anything, transpired at the South Boston site after January 1980 (when defendant says he left) through summer 1980 (when the gas was turned off and defendant's periodic trips east ceased) through November 25, 1980, the date five years prior to defendant's indictment. Robert Hanley, the building's previous owner who had a business next door, said he never saw a sign of life after the renovations.

We now come to events occurring within the limitations period. In late May 1981, Federal Drug Enforcement Administration (DEA) agents searched the South Boston premises. They found a dismantled laboratory. Some, but not all, of the chemicals needed to make methaqualone were present. Samples of residue found in various places along with dust and other sweepings from the floor were taken and analyzed. They were found to contain methaqualone and other chemicals from which methaqualone is produced. While the DEA chemist could not say when the lab had last been operative, he felt it indeed had been used to produce methaqualone in view of the methaqualone residue found on the floor and in drawers.

After the May 1981 search, the agent padlocked the door and put seals on the door and building indicating a search warrant had been executed. Thereafter, surveillance was conducted on three occasions. On July 28, 1981 and July 30, 1981, Foley was observed removing a glass condenser and other equipment from the premises.

Tilman Lukas (the carpenter at the Worcester operation to whom Stackhouse had eventually acknowledged that methaqualone was being produced) testified that in the summer of 1981, Foley called and asked if Lukas would store equipment for him. Not long thereafter, Foley made two or three trips to Lukas's business in Amherst, Massachusetts with glassware, mantels, chemical drums, drying ovens, rheostats, pipe fittings, and electrical and building equipment which Lukas stored for him.

With this evidentiary background, we turn to the indictment, the district court's rulings, and the arguments.

The indictment, returned November 25, 1985, charged that "[f]rom on or about June 7, 1979 [the date Daniel Shea, an alleged co-conspirator acquitted at trial, acquired the South Boston facility] until on or about July 30, 1981 [the date Foley was observed removing equipment] at Boston and Amherst and elsewhere," Foley, Shea, and defendant conspired to manufacture methaqualone. The acts upon which the government relies for its position that the conspiracy continued to exist within the limitations period--November 25, 1980 to November 25, 1985--are Foley's removal of equipment from the South Boston facility and transportation of it to Tilman Lukas's business in Amherst in the summer of 1981.

In denying defendant's motion for a judgment of acquittal, the district court had no hesitancy concluding withdrawal from the conspiracy had not been established as a matter of law, for withdrawal requires more affirmative action then just dropping out. The difficult question, the court stated, was whether the removal of the materials from the South Boston facility in July 1981 was an act in furtherance of the charged conspiracy. The court concluded that it was, stating as follows:

"The Worcester evidence I think is probative of the fact that this was...