U.S. v. Piva, 87-1871

• Decision Date: 06 June 1988
• Docket Number: No. 87-1871,87-1871
• Citation: 27 Fed.R.Evid.Serv. 1101,870 F.2d 753
• Parties: 27 Fed. R. Evid. Serv. 1101 UNITED STATES of America, Appellee, v. Joseph PIVA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 753

870 F.2d 753

27 Fed. R. Evid. Serv. 1101

UNITED STATES of America, Appellee, v. Joseph PIVA, Defendant, Appellant.

No. 87-1871.

United States Court of Appeals First Circuit.

Heard June 6, 1988.

Decided March 21, 1989.

Elizabeth A. Lunt with whom Norman S. Zalkind, by appointment of the Court, and Zalkind, Sheketoff, Homan, Rodriguez & Lunt, Boston, Mass., were on brief, for defendant, appellant.

R.J. Cinquegrana, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN and SELYA, Circuit Judges, and ACOSTA, ^* District Judge.

ACOSTA, District Judge.

Joseph Piva ("appellant") appeals from his conviction of conspiracy to distribute more than one thousand pounds of marijuana. He argues that the trial court erred (1) in instructing the jury on the defense of withdrawal from the conspiracy and (2) in allowing a state police officer to repeat statements made to him by one of appellant's co-conspirators, Anthony Pacheco ("Pacheco"), who subsequently became a government informant. Because we find no reversible error, we affirm.

THE FACTS

Between late December 1982 and early January 1983, a group led by Peter, Paul and Maurice "Buzzy" Dionne was making arrangements to import a large quantity of marijuana into this country. The basic plan was to use a fishing boat to rendezvous on the high seas with a drug-laden mother ship, the JUAN XXIII.

The scheme did not succeed because the vessel was spotted by a United States Coast Guard patrol aircraft whereupon it dumped its cargo overboard. The following day, January 6, 1983, personnel from the Coast Guard Cutter CHILULA boarded and seized the JUAN XXIII and arrested its crew.

Some of the intended drug importers sailed to meet the JUAN XXIII in the fishing boat WANDERER. This vessel, which was also spotted by a Coast Guard patrol aircraft on January 5, 1983, returned to port after dumping overboard equipment and supplies it was taking to the JUAN XXIII.

The WANDERER conspirators were not identified until 1985 when the disgruntled co-conspirator, Pacheco, became a government informant in order to avenge himself for a slight unrelated to this case. Pacheco, a motorcycle gang member with a long criminal history who had acted as security chief for the failed drug operation, contacted Massachusetts State Police Trooper Joseph Costa ("Trooper Costa") in March of 1985 and "told all."

Pacheco's testimony revealed that appellant's part in this conspiracy consisted of (1) procuring a dock to off-load the marijuana Appellant was tried separately from the other conspirators and eventually all were convicted.

onto land; (2) showing the dock facility to the person (Pacheco) who was to be in charge of "security" during the off-loading operation; and (3) attempting to procure and to captain the intended fishing vessel, which he did not do because the price of the vessel he tried to purchase was too high.

The record reflects the following immunized testimony by Pacheco during appellant's separate trial:

1. In December 1982, Pacheco attended a meeting at Buzzy Dionne's house where Buzzy told Peter Dionne, in appellant's presence, that he had paid appellant ten thousand dollars for a dock.

2. During another meeting four or five days later, Peter Dionne gave Pacheco a bag containing one hundred thousand dollars in cash, and asked Pacheco to hold it for him.

3. One or two days later, Pacheco returned the money to Peter Dionne who gave it to appellant.

4. During another meeting at Buzzy Dionne's house, Peter Dionne told Pacheco that appellant would receive between twenty and fifty thousand dollars and would keep the off-load boat in return for his services.

5. Appellant also took Pacheco to a dock which he said was a good off-load area. He showed Pacheco the guard shack from which he could act as a look out, and added that once a truck was backed up to the dock, no one could see what was happening inside.

6. During another meeting, Peter Dionne asked Pacheco to "beat up" appellant because he had only returned $75,000 of the $100,000 he had been given after being unable to buy a boat. ¹ (Pacheco did not carry out the assault and he did not see appellant again in the context of the conspiracy.) During this meeting, Peter Dionne stated that he and a cousin would obtain another off-load boat. Appellant was not involved in this part of the operation.

7. Pacheco became a government informant to get back at some of his co-conspirators, but did not include appellant among the targets of his revenge.

On cross-examination, Pacheco's testimony was impeached (1) when he was confronted with a statement to the federal Grand Jury that he had given the $100,000 to appellant in a meeting at a cafe; (2) when it was pointed out that Pacheco had not mentioned appellant in a 34-page statement given to law enforcement officers in June 1986; (3) with questions implying that agents of the Department of Labor might have suggested the names of certain docks to him; and (4) when it was brought out that he had been paid close to $20,000 by law enforcement agencies to ensure his cooperation and that he would receive additional funds in order to relocate his residence.

Trooper Costa was allowed to testify as to the following statements made to him by Pacheco.

1. During a conversation on April 16, 1985:

a) Pacheco told Trooper Costa that he wanted to become an informant because he wanted revenge on four of the co-conspirators. Trooper Costa knew the persons mentioned. Appellant was not among them.

2. During a February 1986 conversation Pacheco told Trooper Costa:

a) That he (Pacheco) attended meetings at Peter Dionne's house, with appellant present, during which the operation was discussed.

b) That Peter Dionne asked him (Pacheco) to hold $100,000.00 in cash which was to be used to buy a boat c) That he returned the money to Peter Dionne, who gave it to appellant who was to use it to buy the boat.

d) That he (Pacheco) was present when appellant returned some of the money after being unable to purchase a boat.

e) That appellant had twice taken him (Pacheco) to a fishing dock where appellant was working as a watchman. There, they observed the comings and goings of police and other passersby. Appellant also told Pacheco that should anyone be working late at the dock where he (appellant) was working, he would get the keys to two other docks which could be used to off-load the boat.

f) That the venture fell apart because the Coast Guard seized the mother ship.

Testimony of eight other witnesses and other evidence that appellant had worked at the target dock on or about the time of the conspiracy was also heard. There were also copies of checks totalling $75,000 issued to a lawyer acting on behalf of appellant on January 5, 1983 and cashed by appellant on January 6, 1983.

The jury returned a verdict of guilty.

THE CONSPIRACY INSTRUCTIONS

Appellant attacks the trial judge's instructions on conspiracy, which we must scrutinize in light of the entire charge to the jury. See, e.g., United States v. Glantz, 847 F.2d 1, 8-12 (1st Cir.1988).

The trial judge instructed the jury as follows on the subject of conspiracy:

* * * a person cannot withdraw from a conspiracy after the person knows that it has either failed or succeeded. Any withdrawal has to take place before the person either knows of failure or knows of success of the venture.

Trial Transcript, volume 4 at page 89 (hereinafter "T. [volume # ]:[page # ]"). Later, in response to a written question from the jury about withdrawal, the judge recalled the jurors to the courtroom and gave them the following instructions:

I told you the defendant has asserted, has claimed not only, he not only denies that he ever became a member of the conspiracy, but he also says that he withdrew from any relationship that the Government says was a conspiracy. And he says that he withdrew before he knew that the conspiracy had succeeded or failed, before he knew whether the object was attained or whether they were simply never going to get there.

With respect to the legal principles of withdrawal, once a person becomes a member of a conspiracy, that person is a member of that conspiracy unless he withdraws, and by withdrawing I mean, unless he takes some affirmative step to get out of it and he let[s] the other members of the conspiracy know that he's doing that, and he let[s] them know in such a way that they know he's doing that.

Do you understand so far?

Simply disagreeing with the conspiracy or becoming disinterested in the conspiracy or in any member of the conspiracy is not enough. In order to withdraw, a member of the conspiracy has to take active steps to remove himself from the conspiracy and to let the others know that he's doing that, the other[ ] members of the conspiracy.

Now, I told you that the Government has to prove beyond a reasonable doubt that there was a conspiracy and that the defendant willfully became a member of the conspiracy.

On the question of withdrawal, you only get to that if the defendant can point to some evidence, he doesn't have to offer any witnesses, he can rely on the evidence that the Government offered, but he has to point to some evidence that is before you that shows that he did take some active step to get out of the conspiracy.

Once he has done that, the Government has the burden again of proving beyond a reasonable doubt that he did not withdraw.

Do you understand that, do you understand the sequence? Yes?

So, I suggested to you that you should first consider whether there was a conspiracy; second, if you find there was It's a complicated sequence, do you understand it?

one, whether the defendant willfully became a member. And if you found that he willfully became a member, then look at the evidence and see whether the defendant has, in your minds, whether you agree with the defendant that there was some evidence that showed that he withdrew,...