U.S. v. Bello-Perez

• Decision Date: 28 July 1992
• Docket Number: BELLO-PEREZ,No. 91-2232,91-2232
• Citation: 977 F.2d 664
• Parties: 36 Fed. R. Evid. Serv. 1130 UNITED STATES of America, Appellee, v. Andres Gabriel, a/k/a Garby, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 664

977 F.2d 664

36 Fed. R. Evid. Serv. 1130

UNITED STATES of America, Appellee, v. Andres Gabriel BELLO-PEREZ, a/k/a Garby, Defendant, Appellant.

No. 91-2232.

United States Court of Appeals First Circuit.

Heard July 28, 1992.

Decided Sept. 29, 1992.

Martin D. Harris with whom Damon M. D'Ambrosio, Joseph Dugan and Martin D. Harris, Ltd. were on brief for defendant, appellant.

Robert J. Veiga, Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S. Atty., and David A. Vicinanzo, Asst. U.S. Atty., were on brief for appellee.

Before CYR and BOUDIN, Circuit Judges, and HORNBY, ^* District Judge.

CYR, Circuit Judge.

Along with thirteen other defendants, appellant Andres Bello-Perez was charged with conspiring to distribute cocaine in violation of 21 U.S.C. § 846. Finding no error in the indictment, trial or sentence, we affirm.

I BACKGROUND

Viewing the evidence in the light most favorable to the government, see United States v. David, 940 F.2d 722, 732-33 (1st Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 605, 116 L.Ed.2d 628 (1991), and cert. denied, --- U.S. ----, 112 S.Ct. 908, 116 L.Ed.2d 809, and cert. denied, --- U.S. ----, 112 S.Ct. 1298, 117 L.Ed.2d 520 (1992), and cert. denied, --- U.S. ----, 112 S.Ct. 2301, 119 L.Ed.2d 224 (1992); United States v. Rivera-Santiago, 872 F.2d 1073, 1078-79 (1st Cir.1989), the jury could have found the following facts.

Beginning in the fall of 1987, New York-based Bello-Perez, with the aid of his girlfriend, Paula Beltran, supplied Peter Clark, first directly and then through a series of couriers, with large quantities of cocaine for resale through Clark's network of dealers in northeastern Massachusetts and coastal New Hampshire. By late 1987, Bello-Perez had become Clark's principal source, supplying on average one to one and one-half kilograms weekly.

One of Clark's lieutenants was Edward Murley, who assisted Clark by distributing cocaine supplied by Bello-Perez and by collecting payments from purchasers throughout Clark's distribution area. During the second half of 1988, Murley estimated that he came in direct contact with Bello-Perez at least seven times.

On December 7, 1988, Peter Clark was arrested with a kilogram of cocaine in his possession. The seizure of the cocaine left Clark owing Bello-Perez approximately $14,000, in part payment of which Murley delivered Bello-Perez $3,000 raised by Deborah Panneton, Clark's common-law wife. Murley himself owed Clark $2,000, which Bello-Perez instructed Murley to pay directly to him. Since Murley did not have the cash, he agreed to sell approximately four and one-half ounces of cocaine "fronted" to him by Bello-Perez. The net proceeds were applied against the Clark debt to Bello-Perez.

As the money raised from these sources was insufficient to compensate him for the cocaine seized from Clark, Bello-Perez, in the company of Beltran and a Dominican male named "Tony," drove north with Murley and began collecting Clark's drug debts directly from Clark's customers. Luke Bixby, one of Clark's helpers, was brought to Murley's house and taken into a bathroom by Bello-Perez and Beltran. Bixby emerged visibly shaken. While Tony stood nearby with an Uzi submachine gun, Bixby began placing telephone calls to Clark's customers, urging them to bring Bello-Perez the money they owed Clark. In further satisfaction of Clark's debt, Bello-Perez, accompanied by Tony (toting the Uzi), seized Clark's Trans Am automobile from another Clark confederate, and the next day, again at gunpoint, forced Panneton to relinquish title to the car.

In the weeks following Clark's arrest, Murley and other former Clark associates stepped forward to take over Clark's distribution network. Murley's first drug purchase from Bello-Perez followed Clark's arrest by only three weeks. Murley testified that, through couriers (including some who had dealt with Bello-Perez in behalf of Clark), he purchased approximately nine ounces of cocaine from Bello-Perez every two weeks. Beginning in March 1989, Bello-Perez (and occasionally Beltran) would visit Murley in New Hampshire every week or ten days, to collect drug payments and oversee Murley's drug distribution network. On occasion, Bello-Perez would deliver drugs directly to members of Murley's network to sell, bypassing Murley altogether.

On May 22, 1989, the Murley distribution chain was infiltrated by an undercover agent for the New Hampshire State Police, who arranged to purchase an ounce of cocaine from Murley for $1,000. The agent observed Paula Beltran in Murley's presence when the deal was negotiated; Murley ultimately gave Beltran the agent's $1,000 in satisfaction of a drug debt owed Bello-Perez. On November 2-3, 1989, the Murley chain was infiltrated again, this time by a former Clark confederate who had agreed to cooperate with the U.S. Drug Enforcement Administration. Murley agreed to sell the federal informant four and one-half ounces of cocaine for $4,200. Bello-Perez, who was present at the time of the transaction, again supplied the cocaine. On November 8 and 15, 1989, the same federal informant purchased nine ounces of cocaine from Murley, who once again obtained the cocaine from Bello-Perez. On November 6, 1990, following further investigation, Bello-Perez was arrested.

Count I of the indictment charged as follows:

Beginning at an unknown date but at the latest by August, 1988, and continuing thereafter up to and including January 17, 1991, in the District of New Hampshire and elsewhere, ANDRES GABRIEL BELLO-PEREZ [and thirteen co-defendants] ... did knowingly and intentionally combine, conspire and agree with each other and with others known and unknown to the Grand Jury, to possess with intent to distribute and to distribute quantities of cocaine, a Schedule II narcotic controlled substance, and marihuana, a Schedule I hallucinogenic controlled substance, in violation of Title 21, United States Code, Section 841(a)(1). ¹ (Emphasis added.)

Four days before trial, Bello-Perez' attorney was provided with approximately 1,000 documents, including several which implicated Bello-Perez in a conspiracy involving Peter Clark and dating from the late fall of 1988. On the day of trial, government counsel supplied defense counsel with additional statements indicating that Clark would testify and implicate Bello-Perez in cocaine sales during 1988 and extending through December 1989. Following the two and one-half week trial, during which Clark, Beltran, Murley and a number of other co-conspirators testified, Bello-Perez was convicted and sentenced to 360 months in prison. We turn to the numerous claims raised on appeal.

II DISCUSSION

A. Variance

The indictment does not mention Peter Clark by name. Rather, it alleges generally that Bello-Perez was involved in a conspiracy beginning at an "unknown" date, "at the latest by August 1988," names a number of alleged co-conspirators, and specifies various overt acts involving (most prominently) Edward Murley. Bello-Perez contends that the conspiracy which began in 1987, led by Peter Clark, was distinct from any conspiracy that existed after Clark's arrest in late 1988, with Edward Murley at its helm. Bello-Perez therefore argues that the indictment afforded insufficient notice of the government's intention to present evidence relating to the Clark conspiracy. Citing Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), Bello-Perez contends that his defense against what he regards as the separate and distinct "Murley conspiracy" was unfairly prejudiced by the evidence relating to the uncharged "Clark conspiracy." We reject the premise underlying his contention.

Whether the evidence adduced at trial established one or more conspiracies was a question of fact for the jury. See David, 940 F.2d at 732, 735; United States v. Drougas, 748 F.2d 8, 17 (1st Cir.1984). In order to find a single conspiracy, the jury need have found only that Clark, Murley and Bello-Perez, pursuant to their tacit or express agreement, knowingly and intentionally "directed their efforts towards the accomplishment of a common goal or overall plan" to commit the substantive offense charged in the indictment, i.e., possessing cocaine for distribution. Rivera-Santiago, 872 F.2d at 1079 (quoting Drougas, 748 F.2d at 17); United States v. Giry, 818 F.2d 120, 127 (1st Cir.), cert. denied, 484 U.S. 855, 108 S.Ct. 162, 98 L.Ed.2d 116 (1987). The jury was permitted to consider a wide range of factors, including "the nature, design, implementation, and logistics of the illegal activity; the participants' modus operandi; the relevant geography; and the scope of coconspirator involvement." United States v. Boylan, 898 F.2d 230, 241 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990); see also David, 940 F.2d at 734 ("no mechanical test"); Rivera-Santiago, 872 F.2d at 1079. It was not necessary for the jury to find that the alleged coconspirators joined the conspiracy at the same time, see United States v. Kelley, 849 F.2d 999, 1003 (6th Cir.), cert. denied, 488 U.S. 982, 109 S.Ct. 532, 102 L.Ed.2d 564 (1988) (single conspiracy can be found even where "the cast of characters changed over the course of the enterprise"), or shared the same knowledge, beyond the tacit understanding that their illicit agreement existed, see United States v. Sanchez, 917 F.2d 607, 610 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1625, 113 L.Ed.2d 722; Rivera-Santiago, 872 F.2d at 1079. Nor need the participants in the illicit scheme have known all their coconspirators, see Rivera-Santiago, 872 F.2d at 1079; Giry, 818 F.2d at 127; United States v. Moosey, 735 F.2d 633, 635-36 (1st Cir.1984), or have participated at the same time in the furtherance of their criminal venture, see United States v. Aponte-Suarez, 905 F.2d 483, 488 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 531, 112 L.Ed.2d 541 (1990), and cert. denied, --- U.S. ----, 111 S.Ct. 975, 112...