U.S. v. Boidi

• Decision Date: 03 June 2009
• Docket Number: No. 07-1527.,07-1527.
• Citation: 568 F.3d 24
• Parties: UNITED STATES of America, Appellee, v. Scott BOIDI, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

568 F.3d 24

UNITED STATES of America, Appellee, v. Scott BOIDI, Defendant, Appellant.

No. 07-1527.

United States Court of Appeals, First Circuit.

Heard April 6, 2009.

Decided June 3, 2009.

Robert L. Sheketoff with whom David R. Yannetti was on brief for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.

Before BOUDIN and LIPEZ, Circuit Judges, and Singal,^* District Judge.

BOUDIN, Circuit Judge.

A federal jury convicted Scott Boidi on six criminal charges relating to his embezzlement of union funds and drug conspiracy; he was sentenced to concurrent 84 month sentences on two of the counts— racketeering and conspiracy to possess with intent to distribute drugs—and lesser concurrent sentences on other counts. He now appeals, attacking the drug conspiracy conviction and (indirectly) two other convictions potentially dependant on the drug conspiracy conviction. He does not contest his conviction on three counts that charged only embezzlement.

The facts, focusing on the drug conspiracy charge, are taken from the trial. During the relevant period, approximately January 2000 through June 2002, Scott Boidi was the union business manager for Tunnel Workers Local 88 in Quincy—an elected position he had held since 1991— but some time in 2001 he developed a serious cocaine addiction. He began to steal union funds to feed his drug habit, taking dues money from the union and seeking unwarranted reimbursements to buy cocaine.

Boidi's wife twice expelled him from the house and, not long after the second eviction, Boidi took up with Lynne DeMita, a childhood acquaintance. In November 2001, Boidi moved into DeMita's home in Rockland, Massachusetts. According to DeMita, they were together as a couple living in various locations until roughly May or June 2002. At Boidi's trial, DeMita testified that during their time together, Boidi bought cocaine daily, sometimes two or three times per day.

DeMita claimed to have been present "99% of the time" when Boidi bought the drugs. The purchases took place at various locations, including the union hall, her home in Rockland, a Copeland Street apartment in Quincy, friends' homes, and hotels. DeMita said that, while she never paid for the cocaine, Boidi gave it to her all the time and that he also shared with other friends including Steve Zigliano, Michael "Mickey" Cochran, Eddie Silva, Tommy Bellotti, and his brother Alan.

There was other uneven testimony as to Boidi's sharing. Cochran confirmed that he had used cocaine with Boidi, but he said that their use had been infrequent and he was unsure whether Boidi had ever provided the cocaine. Thomas Brennan said that he had used cocaine with Boidi but that Boidi did not provide it. Dominic Mazzeo testified to having shared cocaine that Boidi brought to the union hall.

Boidi and DeMita's usual suppliers were Rafael "Ralph" Soto and his friend Hector Vega. Soto said that he sold to Boidi repeatedly over the course of three or four months. For the first month and a half Boidi would buy three grams three times per day but purchases then slowed as Boidi ran short of funds; the largest amount he ever purchased at one time was fifteen grams, or half an ounce, which he explained by saying that he took "care of his people that worked for him." Soto said that DeMita frequently was with Boidi during the purchases and that he had seen DeMita, Boidi, Belotti and Zigliano use the cocaine.

Vega, who sometimes worked as a runner for Soto, testified that he sold Boidi a minimum of three grams of cocaine per order, usually three to five days per week, one to three times per day over a period of three to four months. Vega said that Boidi was generally alone when he bought the cocaine, although he had once seen Boidi give some to another person. Vega also recalls conversations where he and Boidi discussed "stepping on" the cocaine (i.e., diluting it)—potentially for further distribution.

The sales eventually came to an end, and Boidi was committed at Bridgewater State Hospital from late March 2002 until mid-April 2002; he also received inpatient substance abuse treatment at Bournewood Hospital during most of June 2002, after which he received outpatient treatment. In July 2002 he took out a restraining order against DeMita, apparently claiming that she was harassing him. In due course, the embezzlement scheme unraveled and Boidi became the subject of extensive investigation.

By a nine-count superceding indictment on September 21, 2005, Boidi was charged with racketeering (count 1), 18 U.S.C. § 1962(c) (2006), three counts of embezzlement of union assets (counts 2-4), 29 U.S.C. § 501(c) (2006); conspiracy to possess with intent to distribute 500 or more grams of cocaine (count 5), 21 U.S.C. §§ 846, 841(b)(1)(B)(ii)(II) (2006), and use of a communication facility to facilitate a drug crime (count 6), 21 U.S.C. § 843(b). The remaining three counts are not pertinent.¹

After a lengthy jury trial, Boidi was found guilty on the six counts just listed and given concurrent sentences of which the two longest were 84 months. Boidi now appeals, challenging only the district court's failure to give a requested lesser included offense instruction as to the drug conspiracy count; but he also argues that reversal on this conviction would bring down the RICO and communications facility convictions.

A "defendant may be found guilty of . . . an offense necessarily included in the offense charged," Fed.R.Crim.P. 31, and a defendant is entitled to such an instruction where (1) the lesser offense is "included" in the offense charged, United States v. Ferreira, 625 F.2d 1030, 1031 (1st Cir.1980), (2) a contested fact separates the two offenses, id., and (3) "the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit him of the greater." Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973).

Precedent says that we review de novo the decision whether to give a lesser included offense instruction. United States v. Flores, 968 F.2d 1366, 1367-68 (1st Cir.1992). That is clearly right as to whether a second crime is a lesser included offense; some circuits then give deference to the district court's judgment as to whether the jury could rationally find the defendant guilty of the lesser offense but acquit him of the greater. E.g., United States v. Upton, 512 F.3d 394, 402 (7th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 39, 172 L.Ed.2d 49 (2008). The district judge did not reach the latter issue here.

The government does not dispute that possession is a lesser included offense of possession with intent to distribute, e.g., Custis v. United States, 511 U.S. 485, 488, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994); United States v. Ciampa, 793 F.2d 19, 27 (1st Cir.1986), but says that conspiracy to commit each crime is distinguishable: it argues that an agreement to possess is a different agreement and not a lesser included version of an agreement to possess with intent to distribute. The two different agreements, it says, could easily turn on different evidence and involve different people.

The district court agreed that conspiracy to possess is not a lesser included offense of conspiracy to possess with intent to distribute, explaining that "it would be if we were talking about the substantive offenses" but that "the government is entitled to charge[,] at the risk of not being able to prove it, a particular agreement as a conspiracy charge." With more time to ponder the government's position than a trial judge fashioning an instruction in mid-trial, we take a different view.

The government's own position on the issue, although well argued here, has not been consistent. In at least one case, United States v. Moran, Nos. 90-5024, 90-5025, 1991 WL 125461, at *4 (4th Cir. Oct.24, 1991) (unpublished), the government took the position it urges here (and lost); in several others, it was content to concede the lesser conspiracy was included in the greater. E.g., United States v. White, 972 F.2d 590, 596 (5th Cir.1992) cert. denied, 507 U.S. 1007, 113 S.Ct. 1651, 123 L.Ed.2d 272 (1993).

In all events, courts that have confronted this or comparable issues have regularly concluded or assumed that a less serious conspiracy can be a lesser included offense of a similar but greater one. This is so both as to drug cases involving the same issue as our case² and as to cases (we list many in an addendum) involving other kinds of drug or non-drug conspiracies having an additional element separating a more serious one from a less serious one. This court has assumed the same in passing, United States v. Arroyo, 546 F.3d 54, 56 (1st Cir.2008), but has not formally decided the issue.

The initial question is an abstract and strictly legal one: whether, looking to the required elements of a pair of crimes, the two crimes coincide except that to commit the greater crime, an additional ingredient (or ingredients) is necessary. That requirement is satisfied here: a vertical "conspiracy to possess drugs with intent to distribute" can easily be said to be a "conspiracy to possess drugs" with one added element, namely, that the parties also had a shared aim that the possessed drugs then be distributed.

Of course, to justify the instruction in a particular case, there must—at a factual level—be some core of facts that is common to the scenario that the government sought to prove and the one that the defendant claims to show only a lesser included offense. If the government charges and seeks to prove a conspiracy to possess with intent to distribute heroin in New York in 2005 but the evidence arguably showed only a conspiracy to possess in San Francisco in 2007, this would call only for an instruction that the jury not convict if the government proves a conspiracy different than that charged. E.g., United States v. Candelaria-Silva...