U.S. v. McCarthy
| Decision Date | 05 March 1992 |
| Docket Number | No. 91-1617,91-1617 |
| Citation | 961 F.2d 972 |
| Parties | 35 Fed. R. Evid. Serv. 478 UNITED STATES, Appellee, v. William E. McCARTHY, Jr., Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
James B. Krasnoo, for defendant, appellant.
Jeffrey A. Locke, Asst. U.S. Atty., with whom Geoffrey E. Hobart, Asst. U.S. Atty., and Wayne A. Budd, U.S. Atty., were on brief for appellee.
Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and WEIS, * Circuit Judge.
This is a criminal appeal. After a jury trial Defendant William E. McCarthy, Jr., was convicted on two counts, conspiracy to possess with intent to distribute five kilograms of cocaine and aiding and abetting possession with intent to distribute more than 500 grams of cocaine. Defendant was sentenced to 300 months imprisonment, 120 months supervised release, and a special assessment of $100. Defendant appeals his conviction and sentence. We affirm.
The case arose out of a FBI drug investigation. Special Agent Gary Brotan, posing as a cocaine trafficker, engaged in a series of conversations with James D'Avella between August 8th and 17th, 1989, relating to the purchase of cocaine. D'Avella was acting as a cocaine broker--that is, as a representative of others in the sale or purchase of cocaine. Agent Brotan sought to buy five kilograms of cocaine from D'Avella.
During the initial conversations D'Avella stated that he had access to five kilograms but that he would not release them all at once. D'Avella instead offered to arrange a sale of two kilograms. Agent Brotan refused the deal, stating that the buyer he represented did not wish to risk exposure for such a small amount. On August 16th D'Avella contacted Agent Brotan and set up a meeting at the Celebrity Lounge in Chelsea, Massachusetts to meet Agent Brotan and his buyer.
Agent Brotan went to the Celebrity Lounge with Special Agent Thomas Daly. Daly was to pose as a New York drug trafficker who was using Agent Brotan to find a new cocaine supplier. Agent Daly remained outside in the car while Agent Brotan went inside to meet D'Avella. At the meeting D'Avella stated that his supplier was coming from New Hampshire with five kilograms of cocaine. During the meeting D'Avella called an associate and handed the phone to Agent Brotan, identifying the associate as "Billy." Agent Brotan later identified the associate as defendant William McCarthy. McCarthy set up a meeting the next day at the Celebrity Lounge.
The next morning, August 17, 1989, Agents Brotan and Daly returned to the lounge and met with D'Avella and McCarthy. McCarthy stated he did not have the cocaine with him. He also said that he did not want to complete the transaction for five kilograms at the lounge because it was a "hot area" for law enforcement. The four agreed to meet at the parking lot at the Northgate Shopping Center in Revere, Massachusetts.
Upon the agents' arrival at the Northgate Shopping Center, McCarthy and D'Avella met them. McCarthy informed the agents that he did not have the cocaine and that the transaction would occur in the parking lot at the Woburn Mall, and that one of his associates would bring the cocaine in the back of a catering truck.
At the Woburn Mall McCarthy attempted to call his courier. After he was unable to do so he invited Agent Daly to go inside the mall to a restaurant while Agent Brotan and D'Avella waited outside. While in the restaurant McCarthy and Agent Daly discussed the drug trade including general plans for future deals. They then returned to the parking lot.
Shortly after McCarthy and Agent Daly returned to the parking lot two cars arrived, parking near where McCarthy, Agent Daly, and Agent Brotan were standing. The first was a 1980 Cadillac driven by Russell Cortese, while the second was a black Nissan driven by Edward Travalini. Upon seeing Cortese, McCarthy commented that he had not arrived in his truck. Agent Daly and Travalini entered Daly's car. Travalini then opened an athletic bag containing a kilogram of cocaine. Agent Daly asked where the other four kilograms were. Travalini replied that they wouldn't be available until the next day.
Immediately after the conversation other FBI agents arrested McCarthy, D'Avella, Cortese, and Travalini. Subsequent to his arrest, Travalini signed a form consenting to the taping of a conversation between himself and Debra Medina. During the conversation Travalini explained that he had escaped arrest and had the money from the deal. He asked what he should do with the money. Medina replied that Travalini should bring the money to her husband Frankie at work. Agent Brotan and Travalini brought the money to Frankie's place of employment. James Colarusso, a co-worker of Travalini, came out to collect the money. At that point Colarusso and Frankie Medina were arrested. Debra Medina was also arrested.
After a jury trial, on June 11, 1990, McCarthy was convicted on two counts: (1) conspiracy to possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846; and (2) possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The court set sentencing for September 10, 1990. Defendant failed to appear at the sentencing hearing. The court continued the sentencing hearing until the next day. When defendant again failed to appear, the court revoked defendant's Order of Release and issued a warrant for his arrest. Federal agents subsequently arrested him on March 29, 1991.
At the sentencing hearing held April 3, 1991, the court determined the applicable base offense level to be 32, using five kilograms as the amount included in the offense. U.S.S.G. § 2D1.1(c)(6) & 2D1.4(a). Because of defendant's leadership role the court adjusted the base offense level upwards four levels. U.S.S.G. § 3B1.1. Finally, because defendant fled prior to sentencing the court adjusted the offense level upwards two levels as an obstruction of justice for a total offense level of 38. U.S.S.G. § 3C1.1. Finding a criminal history category of III, the court sentenced McCarthy to 300 months imprisonment, 120 months of supervised release, and a special assessment of $100.
Defendant raises seven issues on appeal: the court improperly excused two jurors for cause; the court improperly admitted into evidence conversations between others not shown to be part of the conspiracy of which defendant was a member; the court admitted into evidence a conversation without the proper foundation; the court improperly refused to submit to the jury the markings 1 on the package of cocaine admitted into evidence; the court improperly determined defendant's base offense level; the court improperly adjusted defendant's offense level upwards for his role in the offense; the court impermissibly adjusted defendant's offense level upwards for obstruction of justice.
Defendant claims that the trial court improperly excused two jurors for cause. One juror was dismissed after indicating that he favored the legalization of drugs. The other juror was excused after it was discovered that the prosecutor in the case had previously prosecuted the juror's brother. By dismissing the two jurors, defendant contends, the district court prejudiced his right to a fair trial.
During voir dire the court asked, "I want to ask if in light of the general nature of the case ... you know of any reason you could not serve as a completely fair and impartial juror in this case." In response to the court's question Ronald Perry approached the bench and explained that he favored the legalization of drugs. Perry also explained that in the past year he had "unpleasant experiences with the court" and that he was "bitter about having to be here."
At that point the court attempted to excuse the juror for cause. Defendant's counsel objected, stating that Perry was merely stating a philosophical point of view. The court then asked Perry:
What I want to ask you is, do you think you would be able to put those personal views aside, follow the instructions of the Court as to what the questions are that must be decided on the evidence in this case and decide those questions fairly and impartially on the evidence without being influenced by the views that you've expressed to me?
Perry responded: The court then excused Perry for cause.
Later during voir dire the court asked whether the jurors had any experience with the criminal justice system. In response juror Charles Trippe explained that his brother was a trial attorney who had tried several criminal cases. The prosecutor then explained at sidebar that he had tried Trippe's brother for a violation of the wiretapping statute. Defendant argued that there was no present showing of bias because the juror was unaware of the connection between his brother and the prosecutor. He further contended that no bias would occur if Trippe followed jury instructions not to discuss the case with anyone. The court excused the juror for cause.
District courts have broad discretion in the conducting of voir dire. Real v. Hogan, 828 F.2d 58, 62 (1st Cir.1987). We have stated, " 'There are few aspects of a jury trial where we would be less inclined to disturb a trial judge's exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empanelling of a jury.' " United States v. Gullion, 575 F.2d 26, 29 (1st Cir.1978) (quoting United States v. Ploof, 464 F.2d 116, 118 n. 4 (2d Cir.1972)). We find no such "clear abuse" here.
Defendant claims that the court improperly admitted several statements of co-conspirators including tape-recorded conversations...
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