U.S. v. Cox, s. 84-1173

• Decision Date: 16 January 1985
• Docket Number: Nos. 84-1173,s. 84-1173
• Citation: 752 F.2d 741
• Parties: UNITED STATES of America, Appellee, v. Dorothy COX, Defendant, Appellant. UNITED STATES of America, Appellee, v. Anthony MARRA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Mary PERKINS, Defendant, Appellant. to 84-1175.
• Court: U.S. Court of Appeals — First Circuit

Page 741

752 F.2d 741

UNITED STATES of America, Appellee, v. Dorothy COX, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Anthony MARRA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Mary PERKINS, Defendant, Appellant.

Nos. 84-1173 to 84-1175.

United States Court of Appeals First Circuit.

Argued Oct. 5, 1984.

Decided Jan. 16, 1985.

Alfred Paul Farese, Everett, Mass., with whom Michael F. Natola, Everett, Mass., was on brief for defendant, appellant Dorothy Cox.

Anthony M. Arena, Boston, Mass., for defendant, appellant Anthony Marra.

Ellen Wade, Boston, Mass., by appointment of the Court, for defendant, appellant Mary Perkins.

Joseph F. Savage, Jr., Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief for appellee.

Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and WEIGEL, ^* Senior District Judge.

BREYER, Circuit Judge.

A jury convicted appellants Dorothy Cox, Mary Perkins, and Anthony Marra of possessing cocaine with an intent to distribute it. 21 U.S.C. Sec. 841(a)(1); 18 U.S.C. Sec. 2. It also convicted Cox and Marra of being part of a related conspiracy (which allegedly included Candis White, who was tried separately). 21 U.S.C. Sec. 846. Cox, Perkins, and Marra challenge their convictions on several grounds. We find that none of these grounds warrants reversal, and we affirm the convictions.

A

After reading through the record in this case, we find that the evidence presented at trial, viewed in a light appropriately favorable to the government, United States v. Patterson, 644 F.2d 890, 893 (1st Cir.1981), is sufficient to show at least the following:

1. Mike Engle, a government informant, arranged a meeting between Mary Perkins and Drug Enforcement Agency ("DEA") agent John Fencer, at which Perkins was to sell Fencer a half ounce of cocaine. The meeting took place May 12, 1983. Fencer drove to the meeting point in Cambridge. Perkins got into Fencer's car and said they should wait until the cocaine arrived. Fencer and Perkins discussed a possible future purchase of a pound of cocaine, which Perkins said she could arrange for $33,000. Perkins said that her source was a mother and daughter working together, and that the daughter would arrive shortly with the half ounce. A few minutes later Candis White drove up in an AMC Hornet and parked behind Fencer's car. Perkins left Fencer's car, went to White's, and then returned with a half ounce of cocaine. Fencer paid her $1,200 and drove off.

2. On June 22, 1983, Engle spoke to Dorothy Cox, Candis White's mother. He told her that he and a friend (Fencer) had been buying from Mary Perkins, and that his friend wanted to deal directly with Cox. Cox and Engle arranged for Fencer to buy one ounce of cocaine from Cox for $2,500 but to keep the purchase a secret from Perkins.

3. Fencer and Engle met Cox at the Meadow Glen Mall parking lot on June 24, 1983. Cox got into Fencer's car. Fencer gave her $2,500. Cox took the money and got into an AMC Hornet where Candis White was waiting. Cox returned to Fencer's car and gave him a package of cocaine. She also gave Engle a small packet of cocaine with the word "present" written on it. Cox quoted Fencer a price of $60,000 for a kilogram of cocaine. She gave him a piece of paper with the phone number of her 'beeper' service on it.

4. On June 30, 1983, Fencer called the 'beeper' number. Cox returned the call. They arranged for purchase of another ounce of cocaine, to take place at Meadow Glen Mall. When Fencer arrived at the Mall, White brought him the cocaine. She said that she and her mother were working hard at the cocaine business. And, she mentioned that her mother was usually more careful about dealing with new customers than she had been with Fencer.

5. On August 31, 1983, Fencer spoke to Cox several times on the phone and arranged to buy one kilogram of cocaine, to be transferred at Meadow Glen Mall later that day. A DEA agent, watching Cox, noticed that she went to Malden Pattern Works, which was Marra's place of business. She spent about 45 minutes there. She then went to her apartment and from there to Meadow Glen Mall.

At the Mall, Cox first showed Fencer a piece of paper on which were written Fencer's undercover phone number and his automobile registration number. Cox said that the phone number had been traced to the John F. Kennedy federal building in Boston and the car registration had been traced to the "We Try Harder Corp." in New York City. Fencer said that Cox's information was wrong. Cox then sold Fencer the cocaine. And Fencer immediately arrested Cox.

Fencer then went to Cox's and White's apartment where DEA agents had already arrested White. In the apartment the agents found and seized two kilograms of cocaine, two triple beam balance scales with cocaine residue, a substantial amount of drug paraphernalia, a cocaine price list, and a business card for Malden Pattern Works with Marra's name on it. While the agents were searching the apartment, Marra called three times within a thirty-minute period. Each time, he told the DEA agent who answered the phone that he wanted to speak to Cox or White about a matter that he described as "very important." The agent took his name and told him that he would give the message to Cox and White.

Fencer then returned to his office, where he phoned Malden Pattern Works and spoke to Marra. Fencer was aware that Cox had previously told him that she had an associate with facilities for testing cocaine; that she had said she stored two kilograms of cocaine at one place and one kilogram at another place; and that she had stopped at Malden Pattern Works earlier in the day. According to the transcript of this taped conversation, Fencer told Marra that he was just concluding a deal with Cox. Although Marra warned Fencer that "you just gotta be careful what you say on the [telephone]," they proceeded to discuss chemists, tests for purity, the fact that Cox handled all the wrapping of the merchandise, the fact that Marra "gave everything to her," and the fact that Marra had been in the "coke business" for "a little while." While this conversation was in progress, other DEA agents arrived at Malden Pattern Works and arrested Marra. During a subsequent search of Marra's premises, DEA agents found a triple beam balance scale with cocaine residue. They found a piece of paper with Fencer's undercover phone number, his automobile registration number, and the words "We Try Harder Corp.," all written in Marra's handwriting. They found several photographs of Marra and Cox together. Marra told them that he had been seeing Cox socially for "a number of years."

The government proved these facts (and others) through the testimony of Fencer and other agents, corroboration by DEA surveillance agents, various admissions by the defendants, and nineteen taped telephone conversations. Our examination of the record, containing this evidence, leads us to conclude that the evidence against Marra was sufficient to support his conviction; the evidence against Perkins was at least as strong, if not stronger; and the evidence against Cox was overwhelming.

B

1. The most important point that appellants raise on this appeal concerns the prosecutor's closing argument at trial. The prosecutor improperly called attention to the failure of some of the defendants to take the stand and testify at trial. The prosecutor told the jury the following:

Now, as you know, the defendants have no obligation to put on a defense at all.... And you are to draw no inference from that. I'm going to pose some questions to you, ladies and gentlemen of the jury, and they have no obligation to answer them. But I suggest that they're things you can consider when you go in the jury room to evaluate the evidence.

For example, how does Mary Perkins explain knowing that the people are reliable in the past and talking about the future? How does Mary Perkins explain Dorothy Cox's statements on Government Exhibit No. 3, the taped transaction? ... Does Marra's explanation of the telephone conversation make any sense? And how does he explain Dorothy Cox's statements about where she's getting the cocaine from?

Defense counsel immediately objected. The trial judge denied their motion for a mistrial, but he instructed the jury:

Members of the jury, I will instruct you very firmly that there is no burden on a defendant in a criminal case at any time. And any suggestion that might be interpreted in any way as a suggestion that any inference should be drawn by you by their failure ... to answer any question posed by the government is an improper argument.

The defendants now argue that the prosecutor's remarks constitute so serious a violation of the basic rule forbidding comment on failure to testify, Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965), that we should order a new trial despite the curative instruction.

In deciding whether a new trial is required--either because prosecutorial misconduct likely affected a trial's outcome or to deter such misconduct in the future--we consider "the severity of the misconduct, whether it was deliberate or accidental, the likely effect of the curative instruction, and the strength of the evidence against the appellants." United States v. Capone, 683 F.2d 582, 586 (1st Cir.1982); see also United States v. Maccini, 721 F.2d 840, 846 (1st Cir.1983). In this case, a balance of these factors indicates that a new trial is not necessary.

We recognize two factors that cut in favor of a new trial. First, the misconduct itself seems a fairly severe violation of the Griffin rule. While a jury might take the prosecutor's questions as referring only to the evidence the defense actually presented, it might also have taken them as pointing out that Mary Perkins had failed to explain certain things because she chose not to testify. Second, the prosecutor's remarks were, in a...