U.S. v. Argencourt

• Citation: 996 F.2d 1300
• Decision Date: 06 May 1993
• Docket Number: Nos. 92-2196,92-2197,s. 92-2196
• Parties: 37 Fed. R. Evid. Serv. 1240 UNITED STATES of America, Appellee, v. Joseph ARGENCOURT, a/k/a Joe Black, Defendant, Appellant. UNITED STATES of America, Appellee, v. Rodney J. ANDREONI, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1300

996 F.2d 1300

37 Fed. R. Evid. Serv. 1240

UNITED STATES of America, Appellee, v. Joseph ARGENCOURT, a/k/a Joe Black, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Rodney J. ANDREONI, Defendant, Appellant.

Nos. 92-2196, 92-2197.

United States Court of Appeals First Circuit.

Heard May 6, 1993.

Decided June 23, 1993.

Edward C. Roy, East Greenwich, with whom H. Robert Beecher, Providence, RI, was on brief, for defendant, appellant Joseph Argencourt.

James A. Ruggiero, Providence, RI, for defendant, appellant Rodney J. Andreoni.

Margaret E. Curran, Asst. U.S. Atty., with whom James H. Leavey, Asst. U.S. Atty., and Lincoln C. Almond, U.S. Atty., Providence, RI, were on brief, for appellee.

Before BOUDIN, Circuit Judge, COFFIN and OAKES, ^* Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

Defendants Rodney Andreoni and Joseph Argencourt were charged in a two-count indictment alleging their involvement in a cocaine distribution scheme. Both men were convicted on Count 1, which charged a conspiracy to distribute more than 500 grams of cocaine. Only Andreoni was convicted on Count 2, which charged an attempt to distribute the same quantity of the drug. Each appeals his conviction on various grounds. We affirm.

I.

We shall begin with a brief description of the facts, as the jury could have found them, adding more detail in later sections as necessary to explain our conclusions.

The events underlying this case began in early 1991, when the Federal Bureau of Investigation (FBI) initiated an undercover operation to probe insurance fraud in Rhode Island and Massachusetts. Andreoni was one of the targets of the investigation. An undercover FBI agent, Gary Brotan, and an FBI informant, Mark Vermyea, met some 60 times with Andreoni over a period of approximately one year. During one of their discussions, Brotan raised the topic of cocaine. Andreoni said that he could provide substantial quantities of the drug.

In the course of several recorded conversations between March 28, 1991, and August 5, 1991, Andreoni described one of his sources as an individual from Pawtucket, Rhode Island, named "Joe Black," which is an alias used by Argencourt. On August 26, Andreoni, Argencourt, Brotan and Vermyea attended a meeting at a restaurant in Seekonk, Massachusetts. The conversation, which was recorded, began with introductions, followed immediately by Andreoni's statement to Argencourt, "Tell him what the ... prices are right now." Argencourt responded without pause, "Twenty eight." Supp.App. at 33. It is undisputed that this price referred to a kilogram of cocaine.

The discussion at the meeting also touched on Argencourt's cautious approach to drug dealing. Argencourt reported that he previously had left drug trafficking "because of all the heat." Supp.App. at 36. He said that he had been set up by an informant who was wearing a wire, and he had not insisted that Brotan and Vermyea be checked for wires only because Andreoni said they could be trusted. Id. at 36-38. Argencourt said he would kill anyone who "cops out" on him, and noted that he had shot the informant who had worn the wire. Id. at 38.

The four men discussed the proposed cocaine transaction, and eventually the deal was set for the upcoming Friday, August 30. Id. at 53-55. Although no location was specified then, Andreoni and Argencourt arranged in a phone conversation Thursday evening to meet at 9:30 a.m. on Taunton Avenue in East Providence. Id. at 65. Brotan, Vermyea and Andreoni met Friday morning at the designated time and place, but Argencourt never appeared. An FBI agent conducting surveillance reported seeing Argencourt's car, however, near the appointed location, at about 10 a.m. Tr. Vol. I at 104-06. The agent, who identified the car by its license plate number, did not get a look at the driver. A few minutes later, the agent saw the car parked a short distance away, but he was unable to see if anyone was inside.

After the other three had waited for a while, Andreoni, at the urging of Brotan and Vermyea, telephoned Argencourt's office to find out why he was late. Andreoni first reported back that he had spoken to Argencourt's secretary, who told him that Argencourt had not returned from a 9:30 appointment. Supp.App. at 71. After continuing to wait a substantial period of time, the three men called off the deal and left.

Andreoni, Brotan and Vermyea met again on September 9, at which time Andreoni suggested an alternative way of getting cocaine. Id. at 82-83. Another meeting was held October 8. Andreoni told the government agents that no one was selling cocaine because they were nervous. Id. at 84-86. He also reported that Argencourt would not return his phone calls.

The two defendants were arrested in early 1992 and charged with conspiring to distribute the one kilogram of cocaine that had been the focus of the August 26 meeting and August 30 rendezvous. No cocaine ever was seized.

II.

Both defendants claim that the evidence was insufficient to support their conspiracy convictions. They claim that the conversation during the August 26 meeting, although focused on a possible cocaine deal, was vague and noncommittal and failed to demonstrate the intent necessary to form an agreement to distribute the charged amount of cocaine. See United States v. O'Campo, 973 F.2d 1015, 1019 (1st Cir.1992) (describing elements of conspiracy).

The well-established standard for evaluating sufficiency claims requires us to review the evidence as a whole, including all reasonable inferences from that evidence, in the light most favorable to the government. See, e.g., United States v. Tejeda, 974 F.2d 210, 212 (1st Cir.1992). If, in so doing, we find that a rational trier of fact could find guilt beyond a reasonable doubt, we have no option but to affirm the jury's verdict. Id. We may not weigh the evidence, and all credibility questions must be resolved in favor of the verdict. United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992).

While we recognize that this case is unusual in that the government recovered no cocaine from these defendants nor any other physical evidence of drug dealing, we believe the tape-recorded conversations and other circumstances were sufficiently telling to support the jury's determination. Beginning in March 1991, Andreoni repeatedly assured Brotan and Vermyea that he could arrange to purchase cocaine for them, and he mentioned Argencourt as one of two possible suppliers. Argencourt appeared at the August 26 meeting with Andreoni, and, without hesitation, stated the price for a kilogram of cocaine. A jury easily could find that the defendants came to the meeting intending to consummate a deal with the two government agents.

The fact that the final details--the time and location of the transaction--were not set until after the meeting does not undermine the jury's conclusion that a conspiracy was formed. See, e.g., United States v. Iennaco, 893 F.2d 394, 398 (D.C.Cir.1990) ("There need not be a specific agreement as to price, quantity, and time, place and manner of delivery.") Indeed, the evidence permitted the jury to find that Andreoni and Argencourt consulted and agreed upon those details during a conversation the evening before the scheduled August 30 deal. See Supp.App. at 65, 72. The jury also reasonably could have found that the admittedly cautious Argencourt arrived at the scene of the planned transaction at the designated time but decided against making the delivery because he detected something amiss.

This case is unlike Iennaco, heavily relied upon by Argencourt, where the court reversed a conspiracy conviction because it found only "various unaccepted offers and much tentative talk," 893 F.2d at 398. The defendants here discussed with the interested purchasers a specific one-kilogram, $28,000 cocaine deal that was to take place on a particular day. Subsequent actions and statements by the two defendants confirmed--or so the jury could have found--that deal. We consequently find no basis for disturbing the jury's verdict on the conspiracy count. ¹

III.

Andreoni also challenges the sufficiency of the evidence supporting his conviction on Count 2 for attempt to distribute cocaine. To prove attempt, the government must establish both an intent to commit the substantive offense and a " 'substantial step towards its commission,' " United States v. Chapdelaine, 989 F.2d 28, 33 (1st Cir.1993) (quoting United States v. Figueroa, 976 F.2d 1446, 1459 (1st Cir.1992)). This step must be " 'more than mere preparation' " but " 'less than the last act necessary before the actual commission of the substantive crime,' " Chapdelaine, 989 F.2d at 33 (quoting United States v. Manley, 632 F.2d 978, 987 (2d Cir.1980)).

The evidence described in the preceding section adequately establishes Andreoni's intent to commit the substantive crime. We think it beyond debate that he also engaged in the substantial step necessary to corroborate his intent. After arranging the meeting at the restaurant on August 26, Andreoni nailed down the details of the transaction in a conversation with Argencourt and communicated the information to Brotan and Vermyea. Andreoni hooked up with the two government agents at the appointed time, and waited for a substantial period with them for Argencourt's arrival. He called Argencourt's office in an effort to find out about the delay. The jury reasonably could have found that Andreoni had taken the transaction to the brink of completion, and that it failed to occur only because of Argencourt's last-minute caution. This certainly was enough to establish an attempt.

IV.

Argencourt challenges the district court's denial of his mid-trial motion for severance, which was based on the introduction of evidence of other crimes committed by Andreoni. The evidence at issue concerned Andreoni's solicitation of arson. Andreoni's lawyer initially elicited testimony about arson from Agent Brotan in an...