U.S. v. Moran

• Decision Date: 16 September 1992
• Docket Number: No. 91-1772,91-1772
• Citation: 984 F.2d 1299
• Parties: UNITED STATES, Appellee, v. George A. MORAN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1299

984 F.2d 1299

UNITED STATES, Appellee, v. George A. MORAN, Defendant, Appellant.

No. 91-1772.

United States Court of Appeals First Circuit.

Heard Sept. 16, 1992.

Decided Jan. 20, 1993.

James L. Sultan with whom Margaret H. Carter and Rankin & Sultan, Boston, MA, were on brief for defendant, appellant.

George W. Vien, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., and Heidi E. Brieger, Asst. U.S. Atty., Boston, MA, were on brief for appellee.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

Appellant George Moran and two co-defendants were convicted by a jury, after a joint trial, of various drug offenses. Moran was found guilty of conspiring to distribute cocaine and was acquitted on two other counts charging him with specific acts of distribution. All of the defendants have appealed, but the evidence and issues relating to Moran differ from those concerning the other defendants and we decide his case separately. Concluding that the evidence was sufficient to sustain Moran's conviction for conspiracy and finding no other errors, we affirm.

The procedural history can be briefly stated. On August 9, 1990, Moran and a number of others were indicted under 21 U.S.C. § 846 for conspiring to distribute cocaine and, in other counts pertaining to one or more of the defendants, with distribution and related crimes. The co-conspirators charged in the umbrella conspiracy count included Moran, the alleged ringleader Hobart Willis, and others. Before trial, Willis and three others pleaded guilty. Moran and two other defendants were tried in February 1991 and convicted on one or more counts. This appeal followed.

I.

Moran's central argument on appeal is the often made, but rarely successful, claim that the evidence was inadequate to support the verdict against him. In appraising such an argument, we "assess the sufficiency of the evidence as a whole, including all reasonable inferences, in the light most favorable to the verdict...." United States v. Lopez, 944 F.2d 33, 39 (1st Cir.1991). So viewed, we ask "whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." Id. In general, issues of credibility are resolved in favor of the verdict. Id. "The evidence ... need not exclude every reasonable hypothesis of innocence; that is, the factfinder may decide among reasonable interpretations of the evidence." Id.

In this case Moran was tried on the charge, among others, that he conspired with Willis and his co-defendants. The "essence" of conspiracy is an agreement to commit a crime, Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975), here, an agreement between Moran and others to distribute drugs. Such an agreement may, of course, be inferred from other evidence including a course of conduct. United States v. Concemi, 957 F.2d 942, 950 (1st Cir.1992). More than that, while the term "agreement" is customarily used in defining conspiracy and is properly employed in jury instructions, the agreement of the defendant with others may be implicit in a working relationship between the parties that has never been articulated but nevertheless amounts to a joint criminal enterprise.

In this case, taking the evidence most favorably to the government, the jury could have found from direct testimony telephone recordings and other evidence that Willis was engaged in a drug distribution conspiracy with various persons during 1988. As to Moran, the evidence against him came almost entirely from one Paul Callahan, who cooperated to some extent with the Drug Enforcement Administration. Callahan's trial testimony came freighted with his long criminal record, admissions that he procured false testimony in other proceedings, and his incentive to favor the government in order to secure favorable treatment for himself. Nevertheless, his testimony was not incredible, was corroborated on certain limited points, and was essentially uncontradicted. Thus the jury was entitled to accept some or all of Callahan's testimony.

According to Callahan, he first met Moran in 1981 but had no further contact with him until June or July 1988 when he had a friend give Moran his beeper number. Callahan then met with Moran and sought to purchase cocaine from him in a substantial amount. Moran replied that he would contact the "fat man" (understood by Callahan to be Willis) with whom Moran said he was dealing at the time. At their next meeting, Moran told Callahan that the fat man's prices were too high but that Moran had another source in the North End. Moran also said that he was going to try to get a cheaper price from "Mary," a friend of the fat man later identified by Callahan as a member of Willis' ring. Subsequently, Callahan and Moran met again and Callahan purchased 500 grams of cocaine from Moran, after testing it for purity.

Some weeks later, Callahan again contacted Moran, a further meeting ensued, and Moran told Callahan--in Callahan's words--that he (Moran) was "still looking in to ingratiate with the fat guy." At the next meeting, Moran offered a package of what Callahan took to be cocaine; Moran explained that it came from the fat guy. The contents had a diesel smell and Callahan rejected the package on the ground that his own customers would not accept it. Moran left and then returned several hours later with a kilo of cocaine from an unidentified source. Callahan tested the new package and purchased a half kilo.

The final evidence relating directly to Moran involved two telephone calls between him and Callahan in October 1988. The first call was not tape recorded. According to Callahan, Moran complained during the call that federal agents were scrutinizing him. On cross-examination Callahan indicated that Moran also said during the call, "I saw the Pillsbury Boy a few days ago, but that was just to say hi.... I don't have nothing to do with those guys." Callahan told the jury that the Pillsbury Boy was Willis.

The second conversation occurred a week later, it was tape recorded with DEA assistance, and the recording was offered at trial. In this conversation Moran, referring to his prior questioning by federal agents, said that it had occurred because the agents had seen him with "fatso" two or three times. Callahan said he had heard that the fat guy was being scrutinized by law enforcement agents and Moran replied, "Oh, my God. Unbelievable. I already told him and his first lieutenant, I says, I think somebody made you expendable." At trial Callahan identified the first lieutenant as Mary. Callahan concluded the taped conversation by asking Moran, "Can we do some business?" and Moran essentially agreed (although no evidence of further transactions between them was offered).

This, omitting a few intervening conversations between Moran and Callahan that add nothing pertinent, is the gist of the evidence against Moran. The jury, after hearing this evidence and evidence of Willis' ring, acquitted Moran of the two distribution counts based on the sales to Callahan but convicted him of conspiracy. The reason for the discrepancy is unclear. Possibly the jury hesitated to rely solely upon Callahan to prove the sales, but thought that the tape of the second conversation confirmed Moran's relationship with Willis regarding drug distribution. But the discrepancy does not matter. The question presented now is whether, having heard the evidence, including nuances and intimations that a cold record cannot capture, a rational jury could find beyond a reasonable doubt that Moran was guilty of conspiracy.

No court lightly overturns a jury verdict on the ground that the jury lacked sufficient evidence, for the jury's central role and competence is to weigh the evidence and find the facts. Yet the issue here, or at least the aspect we find troubling, actually poses the "legal" question whether the conduct the jury could reasonably have found to have occurred amounts to a conspiracy under the statute. In our view, the jury here had no rational basis to infer, as it often may in conspiracy cases, that the defendant was effectively an employee or a formal "share partner" in the ring. The most that the jury could find without sheer speculation was that the relationship was what was portrayed on the surface. At this point we are driven back to first principles to determine whether this relationship amounted to a criminal conspiracy.

Our starting point is the legal definition of conspiracy as an agreement by the defendant with another person or persons to commit the crime in question. Iannelli, 420 U.S. at 777, 95 S.Ct. at 1289; United States v. Glenn, 828 F.2d 855, 857 (1st Cir.1987). The evidence in this case, taken most favorably to the government, shows that Willis agreed to supply Moran a package which Moran represented to be cocaine, which Moran tendered to Callahan, and which Callahan then rejected as tainted with a diesel smell. This connection between Moran and Willis is bolstered, or so the jury could have found, by Moran's prior use of Willis as a source of supply, by Moran's unsuccessful initial effort to buy drugs from Willis for Callahan, by Moran's desire to ingratiate himself with Willis, by Moran's encounters with Willis and Mary and by Moran's knowledge that Willis was under federal scrutiny. On appeal, the government argues that the evidence surely demonstrates a conspiracy either as charged (with Willis and others) or, at the very least, between Moran and Willis.

An agreement surely existed between Willis and Moran relating to drugs. But if the evidence showed only an agreement by Willis to sell drugs to Moran, it would not necessarily show them to be co-conspirators in drug distribution. There is substantial law, including cases in this circuit, that a single drug sale does not automatically make buyer and seller co-conspirators. United States v. DeLutis, 722 F.2d 902,...