U.S. v. Gallo

• Decision Date: 06 February 1986
• Docket Number: No. 85-5133,85-5133
• Citation: 782 F.2d 1191
• Parties: 20 Fed. R. Evid. Serv. 334 UNITED STATES of America, Appellee, v. William Joseph GALLO, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1191

782 F.2d 1191

20 Fed. R. Evid. Serv. 334

UNITED STATES of America, Appellee, v. William Joseph GALLO, Appellant.

No. 85-5133.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 8, 1985.

Decided Feb. 6, 1986.

Jonathan E. Turak, Moundsville, W. Va. (Gold, Khourey & Turak, Moundsville, W. Va., on brief), for appellant.

Martin P. Sheehan, Wheeling, W. Va. (William A. Kolibash, U.S. Atty., David A. Jividen, Asst. U.S. Atty., Wheeling, W. Va., Beth Raies, Third Year Law Student, on brief), for appellee.

Before WINTER, Chief Judge, SPROUSE, Circuit Judge, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.

HARRISON L. WINTER, Chief Judge:

William Joseph Gallo was convicted of three charges of violating 18 U.S.C. Sec. 1952(a)(3) (Travel Act) and one charge of violating 21 U.S.C. Sec. 846 (conspiracy to possess cocaine with intent to distribute) with regard to a drug transaction on or about February 15, 1984, involving the sale of one-half ounce of cocaine to David Barrett, an undercover informant. Gallo received consecutive sentences on each conviction, and he appeals.

Before us, Gallo contends that the district court improperly admitted testimony of Ricky Ball concerning drug transactions between Gallo and Ball in 1980-81, that the evidence was legally insufficient to convict him of violations of the Travel Act and of the conspiracy count, and that the district court committed reversible error in failing to give an adequate instruction on the elements of the Travel Act. While we see no merit in the evidentiary contentions and hence affirm the judgment of conviction of conspiracy, we perceive reversible error in the failure adequately to instruct on the charges of violating the Travel Act. We affirm in part and reverse in part, granting a new trial on the Travel Act charges.

I.

David Barrett, the undercover informant, sought to obtain cocaine from Ricky Ball, who represented that he had a source. On February 14, 1984, Ball drove Barrett from Weirton, West Virginia, to Steubenville, Ohio, and introduced him to Gallo. Gallo said that the cocaine had not yet arrived, but he offered to drive them to one of his several sources to obtain the drug. Because of a previous commitment, Ball could not accept the offer, and Gallo accordingly promised to obtain the cocaine and call Ball to arrange delivery.

The next day, Gallo telephoned Ball to say that the transaction could proceed. Ball was unable to make the trip, but Barrett then traveled alone from West Virginia to Ohio, where he met Gallo and purchased one-half ounce of cocaine for $1,300.00. In making the sale, Gallo praised the quality of the cocaine and told Barrett that if he was satisfied, more cocaine was available. After the transaction, Gallo called Ball to inquire whether the cocaine was satisfactory and to indicate his willingness to supply more. At all times, Barrett wore a tape recorder and his telephone was tapped. All of his conversations with Ball and Gallo were recorded.

Shortly after the February 15, 1984 transactions, Gallo was arrested on an unrelated charge, so that no further transactions were carried on.

Count 1 of the indictment charged Gallo with aiding and abetting the February 14 travel from West Virginia to Ohio, and Counts 2 and 3 charged aiding and abetting Barrett's trip from West Virginia to Ohio, and return, respectively. Count 4 of the indictment charged Gallo with conspiring with persons known and unknown to possess cocaine with intent to distribute.

II.

Over Gallo's objection, the district court permitted Ball to testify about drug transactions in 1980-81 between Gallo and Ball. It was the government's theory that the evidence was offered to show (a) predisposition to distribute narcotics, rebutting a possible entrapment defense ¹ (b) scheme and intent under Fed. Evidence Rule 404(b), and (c) an on-going business scheme and enterprise to distribute narcotics.

We think that the evidence was admissible under Rule 404(b) to prove intent, scheme, opportunity, or a business enterprise. See United States v. Masters, 622 F.2d 83 (4 Cir.1980). We see no merit in Gallo's suggestion that the government's failure to specify one or more of these purposes in offering the evidence rendered it inadmissible by precluding the district court from balancing its probative value against the danger of undue prejudice to Gallo. The record reflects that, without mentioning Fed. Evidence Rule 403, the district court did undertake the requisite balancing. Once admitted, the evidence is deemed admissible on appeal if it is admissible under Rule 404(b) on any theory. See United States v. Green, 648 F.2d 587 (9 Cir.1981); United States v. Provenzano, 620 F.2d 985 (3 Cir.1980); United States v. Gocke, 507 F.2d 820 (8 Cir.1974), cert. denied, 420 U.S. 979, 95 S.Ct. 1407, 43 L.Ed.2d 660 (1975).

III.

To support a conviction under the Travel Act, 18 U.S.C. Sec. 1952, the government must prove three elements: (a) interstate travel; (b) intent to promote unlawful activity, i.e., a business enterprise; and, (c) performance or attempted performance of an unlawful act. See, e.g., United States v. Polowichak, 783 F.2d 410 (4 Cir. 1986). Gallo's contention regarding the legal sufficiency of the evidence to convict him of violating the Travel Act centers on the government's proof of specific intent to promote unlawful activity. Section 1952(b) defines "unlawful activity" to mean "any business enterprise involving ... narcotics or controlled substances (as defined in section 102(6) of the Controlled Substance Act) ... in violation of the laws ... of the United States ..."

As we later discuss, Gallo's Travel Act convictions must be set aside because the district court failed adequately to instruct the jury with regard to intent to promote unlawful activity. Nonetheless, we think that the evidence was legally sufficient to sustain the convictions had the jury been properly instructed and returned verdicts of guilty. ² The government's evidence showed more than an isolated, sporadic transaction. Cf. United States v. Corbin, 662 F.2d 1066 (4 Cir.1981). In addition to the testimony of Ball regarding drug transactions in 1980-81, the government introduced significant other evidence of an ongoing drug enterprise. Gallo was taped as identifying three sources of cocaine available to him in East Liverpool, Ohio, Wintersville, Ohio and the Ohio trailer park on Route 213. Gallo was also taped as telling Barrett to contact him if Barrett wanted more cocaine. Finally, Ball testified that, after the sale by Gallo to Barrett, Gallo telephoned Ball to say that if Barrett wanted more cocaine, Gallo would be able to get it for him. Manifestly, this evidence, if believed, amply demonstrated that the Gallo-Barrett transaction was not a sporadic sale, but rather part of a continuing enterprise.

We think also that the evidence was legally sufficient to permit the jury to find Gallo...