U.S. v. Molinaro, s. 88-2119

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation877 F.2d 1341
Docket Number88-2131 and 88-2792,Nos. 88-2119,s. 88-2119
Parties28 Fed. R. Evid. Serv. 374 UNITED STATES of America, Plaintiff-Appellee, v. Richard MOLINARO, Linda Molinaro & Michael Molinaro, Defendants-Appellants.
Decision Date27 June 1989

Robert W. Pledl, Robert G. LeBell, Robert M. Courtney, Courtney, Pledl & Molter, S.C., Milwaukee, Wis., Thomas J. Royce, Kent R. Carlson, Chicago, Ill., for defendant-appellant.

R. Jeffrey Wagner, Eric J. Klumb, Joseph R. Wall, Asst. U.S. Attys., Milwaukee, Wis., for plaintiff-appellee.

Before BAUER, Chief Judge, CUDAHY, Circuit Judge, and GRANT, Senior District Judge. *

BAUER, Chief Judge.

Michael Molinaro and his son and daughter, Richard and Linda Molinaro, were each convicted following a jury trial of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846, and one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Each of the Molinaros challenges the validity of his or her conviction on a number of grounds. For the following reasons, the convictions are affirmed.

I.

On July 11, 1987, Kerry Raymond, a confidential informant for the United States Drug Enforcement Administration (DEA), was attempting to arrange a drug transaction at a Kenosha, Wisconsin bar. Linda Molinaro, a friend of Raymond's, overheard his efforts and offered to help him find some cocaine. She arranged a meeting between Raymond, herself and her brother Richard for July 14. At the meeting, Richard told Raymond he could get him two to three kilograms of cocaine at a cost of $24,000 to $25,000 per kilo within a week or two. On July 22, Raymond met with Linda and Richard's father, Michael Molinaro, who informed him that Richard's price quote had been too low and advised Raymond to make future contacts through Linda. Michael and Raymond then met again on July 23 and 29 to discuss the logistics of the transaction. Raymond also met briefly with Richard on August 1. Richard informed Raymond that the cocaine would be arriving in the area shortly and offered to sell him eight or nine ounces immediately. Raymond declined, opting to wait for the larger shipment.

On August 4, Richard informed Raymond that the cocaine had arrived. In a recorded telephone conversation, Richard and Raymond attempted to work out the details of the delivery. Richard agreed to meet Raymond later that night at a Kenosha bar but never appeared. Raymond then went to Linda's house, where Linda showed him three kilos of cocaine wrapped in plastic and kept in a Taco Bell bag. Raymond removed samples and marked the three packages of cocaine and the two agreed to meet the next day to make the exchange. Raymond then called Linda twice during the same night to further discuss the location and time of delivery. During those conversations, which were recorded and admitted into evidence, the two also discussed their dissatisfaction with the way that Richard was handling the deal. Linda assured Raymond that Richard would not be permitted to botch the transaction. Linda also described the history of her father's involvement in the conspiracy, explaining to Raymond that in the future he would only have to deal with Michael and her.

On the following day, Michael dropped his car off at Linda's house and left in her car. Linda then went in Michael's car to a Burger King parking lot to meet Raymond. In the parking lot, Raymond got into the car with Linda, who showed him the Taco Bell bag containing the three packages of cocaine he had marked the night before. Raymond then got out of the car, purportedly to get the money, and gave the prearranged arrest signal. When Linda attempted to drive off, one of the officers shot out the tires of her car and she was placed under arrest.

Michael Molinaro was arrested in the vicinity of Linda's house later the same day. A search of his wallet produced several slips of paper with incriminating evidence. One slip contained the name and two telephone numbers of the family's alleged Florida source of supply. Another slip contained the combination to a floor safe located in Richard's basement. Officers later searched Richard's house pursuant to a warrant and discovered various drug paraphernalia, drug packaging materials and a triple beam scale in the safe. Agents also found a bottle of inositol, a common cutting agent for cocaine, hidden in a basement closet. Richard surrendered to the authorities two days later. His fingerprints, as well as Linda's, were discovered on the Taco Bell bag containing the cocaine.

The Molinaros were tried by a jury between March 21 and March 25, 1988. All three were found guilty of one count of conspiracy to distribute cocaine and one count of possession with intent to distribute. Michael and Linda were sentenced to five years incarceration on each count, the sentences to run concurrently. Richard received eight years on each count, also imposed concurrently. Each now appeals, alleging that numerous errors tainted their convictions.

II.
A.

Michael Molinaro's first argument on appeal is that the trial court erred in admitting into evidence tapes and transcripts of the conversations Raymond had with Richard and Linda on the night before the planned delivery. In one conversation, Richard and Raymond discussed the impending transaction, including Richard's hesitance to meet Raymond's connections at the time of delivery. Richard agreed to meet Raymond later that night at a Kenosha pub. In two later conversations, Raymond and Linda discussed the details of the pending transaction. The two also discussed at length the fact that Richard was gumming up the works; Raymond told Linda that he didn't trust Richard and Linda assured him repeatedly that both she and her father had agreed to wash their hands of Richard. She promised Raymond that Richard would have no further involvement in the deal at hand or in any future dealings with Raymond. Linda also described to Raymond how her father had become involved in the conspiracy in the first place, and how he had initially needed Richard in order to learn the ropes of the business. Since her father had gained some experience, however, Linda assured Raymond that Richard was out of the picture.

The trial court admitted all of the conversations between Raymond, Richard and Linda into evidence under the rule of evidence which provides that a statement is not hearsay if it is "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). Michael Molinaro alleges that the court erred in admitting those statements because they did not satisfy the requirement that the statements were made in furtherance of the conspiracy. 1 Instead, he argues that the statements were "idle chatter" or mere narrative of past events that did nothing to further the goals of the conspiracy.

We review a trial court's determination that certain statements serve to further conspiratorial ends under the "clearly erroneous" standard. United States v. Shoffner, 826 F.2d 619, 627 (7th Cir.1987), cert. denied, Stange v. United States, --- U.S. ----, 108 S.Ct. 356, 98 L.Ed.2d 381 (1987). If some reasonable basis exists for concluding that the statements at issue furthered the conspiracy, we will not disturb the trial court's ruling on that point. Id. at 628. Here, the conversation between Raymond and Richard showed an attempt by the two to iron out their differences of opinion regarding the method of delivery. With regard to the discussions between Raymond and Linda, the judge stated that he interpreted those conversations as indicating to Raymond precisely who among the Molinaros he could trust (and who he could not). This certainly appears to be a reasonable interpretation of those discussions; Raymond had indicated extreme displeasure with the way Richard was handling matters. Linda assured him that Richard was no longer in charge and explained the history of her father's involvement in order to convince Raymond that she and Michael were fully capable of handling matters without Richard. We have in the past held that conversations dealing "with such topics as selling [drugs], arranging delivery and payment, reassuring each other of trustworthiness, and discussing the current status of the conspiracy" were clearly made in furtherance of the conspiracy. United States v. Mealy, 851 F.2d 890, 901 (7th Cir.1988). In this case, Richard's conversation with Raymond was an attempt to iron out disputed details of the method of delivery and payment. Linda's reassurances to Raymond were, on the other hand, designed primarily to control the damage that Richard had apparently done to the conspiracy's working relationship by insisting on terms unacceptable to Raymond. Under the circumstances, we cannot conclude that the trial court erred in finding that all three conversations were made in furtherance of the conspiracy.

B.

Michael next argues that the trial court's admission of the drug paraphernalia found in Richard's safe served to impermissibly amend the indictment against him. The evidence admitted actually falls into two distinct categories. The first type of paraphernalia included a triple beam scale, folds for packaging small quantities of cocaine, and a bottle of inositol. According to Molinaro, the scale, folds, and inositol evidenced a street level distribution of cocaine whereas the conspiracy charged in count one of the indictment was limited to large scale distribution of three kilograms. In addition, other items found in the safe--a smoking pipe, a razor blade, a mirror and rolling papers--were also introduced into evidence over Michael Molinaro's objection. He argues that this paraphernalia related solely to Richard's personal narcotics use and therefore was not relevant to either charge.

Although Michael has chosen to frame a portion of this argument in terms of whether...

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