U.S. v. Gobbi

• Decision Date: 28 December 2006
• Docket Number: No. 06-1643.,06-1643.
• Parties: UNITED STATES of America, Appellee, v. Anthony GOBBI, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

471 F.3d 302

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

No. 06-1643.

United States Court of Appeals, First Circuit.

Heard November 7, 2006.

Decided December 28, 2006.

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Judith H. Mizner, Assistant Federal Defender, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Robert Clark Corrente, United States Attorney, James H. Leavey and Adi Goldstein, Assistant United States Attorneys, were on brief, for appellee.

Before BOUDIN, Chief Judge, SELYA and LYNCH, Circuit Judges.

SELYA, Circuit Judge.

In a split decision, a jury acquitted defendant-appellant Anthony Gobbi on three counts of a five-count indictment but convicted him of conspiracy and one substantive drug-trafficking charge. On appeal, Gobbi mounts a three-pronged attack, challenging (i) the sufficiency of the evidence underpinning one of the two counts of conviction; (ii) an evidentiary ruling; and (iii) two sentencing enhancements. Concluding, as we do, that Gobbi's arguments are devoid of merit, we affirm the judgment below.

I. BACKGROUND

This case grows out of a reverse sting operation conceived by the Federal Bureau of Investigation (FBI). We rehearse the relevant facts in the light most hospitable to the jury's verdict on the counts of conviction, consistent with record support. See United States v. Maldonado-García, 446 F.3d 227, 229 (1st Cir.2006).

On June 29, 2000, an FBI agent, Michael McGowan, posing as a wealthy businessman, met with Robert Nardolillo (a suspected underworld figure). McGowan said that his business partner ("Manny") wanted to enter the New England drug trade and could supply Nardolillo with copious amounts of drugs. Nardolillo expressed interest and acknowledged that he could handle two to three kilograms of cocaine per week, and possibly more. The men agreed to meet again so that McGowan could introduce his apocryphal partner to Nardolillo.

That fall, Nardolillo and Gobbi traveled to Ft. Lauderdale, Florida. They met McGowan there on September 28. After McGowan explained that "Manny" was unavoidably detained, Gobbi left. McGowan and Nardolillo nonetheless proceeded to discuss the planned venture.

Thereafter, McGowan and Nardolillo spoke regularly by telephone about the prospects of doing business together. Nardolillo instructed McGowan to contact him through his associates (including Gobbi), and Gobbi in fact acted as an intermediary for sixteen of the seventeen contacts between McGowan and Nardolillo in January of 2001.

On January 15, 2001, Nardolillo and Gobbi finally came face to face with "Manny" (in reality, another undercover FBI agent). This meeting took place at Centerfolds, a Providence strip club. Following the initial introduction, Nardolillo spoke privately with "Manny" for about an hour.

On January 22, McGowan approached Nardolillo about a possible drug-protection detail. The idea was that Nardolillo and his crew would guard a cache of cocaine temporarily located in Rhode Island en route to distribution throughout New England. Nardolillo readily agreed. McGowan and Nardolillo settled on remuneration at the rate of $500 per kilogram for the protective detail. On March 15, Nardolillo assured McGowan that "I'll put my guys there, don't worry. There'll be somebody there to watch [Manny's] stuff all the time." Switching to a different topic, McGowan informed Nardolillo that "Manny" did not yet have five kilograms of cocaine that Nardolillo had expressed interest in buying for his own distribution network.

On April 1, McGowan, Nardolillo, and Gobbi met at a funeral. Because law enforcement officers were surveilling the scene, Gobbi escorted McGowan into an office so that he (McGowan) could confer privately with Nardolillo about the particulars of the drug-protection detail. Later that month, Nardolillo told McGowan that he would assign "two guys" to the drug-protection detail; that both would be well-rested; that the man directly guarding the drug cache would be prepared to kill if necessary; and that he (Nardolillo) would divide the agreed payment between the two operatives. McGowan informed Nardolillo that "Manny" wanted a gun displayed for a show of force, but that it was not to be fired.

The drug-protection detail was scheduled for April 30. According to Clifford Falla, Gobbi recruited him for this job. On the assigned date, Gobbi and Falla met with Nardolillo at Centerfolds. Nardolillo told the pair that he had arranged for a drug-protection detail at a local hotel and that Falla was to guard the drugs. In Gobbi's presence, Nardolillo gave Falla a nine-millimeter pistol and directed him to display it while on guard. Nardolillo explained that Gobbi would lead Falla to the hotel and wait outside.

During the course of the day, McGowan and Nardolillo met several times. At 2:00 p.m., McGowan told Nardolillo that a fifteen-kilogram shipment of cocaine was en route from Boston; that once the drugs arrived, two men working for "Manny" would measure, subdivide, and package the cocaine in the hotel room; and that another man working for "Manny" would team up with Nardolillo's man to stand guard inside the room. Nardolillo replied: "I trust my two people." He also remarked that he would have preferred to have "both my guys" in the room but that, given the arrangement devised by "Manny," Falla would be the one to stand guard.

Around 6:55 p.m., Nardolillo told McGowan that his two henchmen were on their way to Centerfolds for a last-minute briefing. After Nardolillo received a telephone call (later traced to Gobbi's cell phone), he informed McGowan that his henchmen were outside the club. Nardolillo proceeded to leave the building, presumably to convey his final instructions.

When Nardolillo finished, Falla (driving his own car) followed Gobbi (driving his own car) to a nearby Marriott hotel. In caravan fashion, Gobbi's nephew (Brian King) and another man (Christopher Chapman) followed Falla in a third vehicle. Once in the hotel parking lot, Gobbi gave Falla the keycard to the room and reminded him to display his gun. Falla, King, and Chapman entered the hotel, while Gobbi took up a position at a gas station across the street.

Once inside the room, Falla displayed his gun and then placed it in plain view on the bed. The undercover agents posing as drug packagers spent the next five hours measuring out seventeen kilograms of what appeared to be cocaine¹ and transporting containers out of the room. When one of the agents asked Falla about the black Cadillac sedan parked outside (a reference to Gobbi's automobile), Falla explained: "I basically work for the guy in the Cadillac and . . . him and I are under [Nardolillo]."

At some point during the evening, Nardolillo learned that Falla wanted to leave his post. Nardolillo instructed Gobbi to deny this request. He then told McGowan that "Tony" — which the jury reasonably could have found was a reference to Gobbi — wanted to discuss exactly what should be done about Falla.

Immediately thereafter, Gobbi repaired to Centerfolds and conferred with Nardolillo and McGowan outside the club. Nardolillo directed Gobbi to input a telephone number into his cell phone; this number, provided by McGowan, linked to one of the undercover agents who was toiling in the hotel room. Then, still using Gobbi's telephone, Nardolillo called the room and spoke with Falla. Gobbi thereafter placed four separate calls to the same number over the course of the evening.

The drug-protection detail concluded just after 1:00 a.m. on the morning of May 1. Falla called Gobbi, who instructed him to return to Centerfolds. Nardolillo debriefed Falla and Gobbi, and then forked over $1,500 (to be divided as they saw fit). Falla and Gobbi later hid the gun in a barn owned by Gobbi's girlfriend.

On the same day, McGowan paid Nardolillo $4,500 (somewhat less than the agreed $500 per kilogram). Nardolillo talked freely with McGowan about his arrangements for the prior evening's drug-protection detail. Pertinently, he mentioned that Gobbi's role was to keep an eye on things from outside the hotel, while Falla's role was to stand guard inside the room. Nardolillo described Gobbi as "one of my right-hand" men and recounted how Gobbi had responded when it appeared that Falla might abandon his post. Nardolillo also said that he would pass along the evening's profits to his crew (Gobbi, Falla, King, and Chapman).

A second, somewhat similar drug-protection detail took place on August 22. On this occasion, Gobbi once again recruited Falla; Nardolillo once again gave Falla a handgun in Gobbi's presence. The detail was to take place at the Crowne Plaza hotel in Warwick, Rhode Island. On the assigned date, McGowan handed a keycard for the designated room to Nardolillo, who gave it to Gobbi and instructed him to proceed with Falla to the hotel.

What followed was substantially similar to what had transpired on April 30, except that Gobbi did not remain at the site but rather, called Falla several times during the course of the detail. When the job was completed, Gobbi picked up Falla and drove to Centerfolds. With Gobbi nearby, McGowan paid $3,300 to Nardolillo. Nardolillo, in turn, paid $750 apiece to Gobbi and Falla, who then stashed the gun in the same barn.

In due season, a federal grand jury returned a five-count indictment charging Nardolillo, Gobbi, and Falla with conspiracy to distribute and possess cocaine with intent to distribute (count 1), two counts of attempted possession of cocaine with intent to distribute (counts 2 and 4), and two counts of possession of a firearm in furtherance of a drug-trafficking crime (counts 3 and 5). See 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. §§ 2, 924(c). Both of Gobbi's codefendants eventually entered guilty pleas to multiple counts, but Gobbi stalwartly maintained his innocence.

During the trial, the government called several witnesses, including...