U.S. v. Paiva

• Decision Date: 04 April 1989
• Docket Number: No. 88-2041,88-2041
• Citation: 892 F.2d 148
• Parties: 29 Fed. R. Evid. Serv. 789 UNITED STATES of America, Appellee, v. James Earl PAIVA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 148

892 F.2d 148

29 Fed. R. Evid. Serv. 789

UNITED STATES of America, Appellee, v. James Earl PAIVA, Defendant, Appellant.

No. 88-2041.

United States Court of Appeals First Circuit.

Heard April 4, 1989.

Decided Dec. 21, 1989.

James R. Bushell, Portland, Me., for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Augusta, Me., and Joseph H. Groff, III, Asst. U.S. Atty., Portland, Me., were on brief for the U.S.

Before BREYER and SELYA, Circuit Judges, and CAFFREY, ^* Senior District Judge.

CAFFREY, Senior District Judge.

Appellant-defendant James Earle Paiva appeals from judgments of conviction on three counts of a six count Indictment entered in the United States District Court for the District of Maine. Count I of the Indictment charged Paiva, pursuant to 21 U.S.C. § 846, with conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A). Count II charged Paiva with aiding and abetting certain named individuals in distributing quantities of cocaine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A). Counts III, IV and V charged Paiva with willfully attempting to evade the payment of income taxes and filing false income tax returns for the years 1982, 1983 and 1984 in violation of 26 U.S.C. § 7201. Count VI alleged that Paiva conspired with certain named individuals to defraud the United States by impeding and impairing the functions of the Internal Revenue Service ("IRS") on the computation and collection of income taxes in violation of 18 U.S.C. § 371.

On May 24, 1988, on defendant's motion and with the consent of the government, the court transferred Counts III, IV and V to the United States District Court for the District of Massachusetts. ¹ On August 3, 1988, trial on Counts I, II and VI began in the United States District Court for the District of Maine before Honorable Jose A. Fuste, sitting by designation, and a jury. On August 5, 1988, the jury found Paiva guilty on all three charges. Paiva now appeals the judgments of conviction on Counts I, II and VI.

On appeal, Paiva assigns several errors to the district court. First, Paiva argues that the district court committed prejudicial error in denying appellant-defendant's motion for a bill of particulars, pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. Second, Paiva asserts that the district court erred in admitting lay opinion testimony identifying a substance found among Paiva's personal effects. Third, Paiva argues that the district court erred in failing to strike the testimony of a government witness, Detective Pike, identifying a substance found in a co-conspirator's apartment. Further, Paiva contends that the court committed reversible error when it explained this witness's testimony to the jury while denying the motion to strike. Last, Paiva contends that the evidence was insufficient to support his convictions on all three counts of the Indictment. Upon consideration, we find that the appellant-defendant's contentions are without merit and that the evidence supports his convictions. We therefore affirm Paiva's convictions on all three counts.

I.

In essence, this case involves a conspiracy to distribute cocaine beginning sometime in 1982 and continuing until sometime in 1984. At trial, various individuals involved in these drug transactions, including co-conspirators, testified against appellant-defendant Paiva. One such witness, William McGrane, unnamed in the indictment, testified under a cooperation agreement with the government. According to his testimony, McGrane first met Paiva through a bookie for whom Paiva was a money courier. McGrane testified that he began using cocaine in 1981 or 1982 and soon needed to sell cocaine to support his habit. According to his testimony, McGrane approached Paiva for information about where to obtain cocaine. Paiva brought McGrane to Portland, Maine where he introduced McGrane to Robert Anderson, an alleged drug dealer and the alleged central figure in all these drug transactions. McGrane testified, over a hearsay objection, ² that he and Anderson discussed in the presence of Paiva amounts and prices of cocaine and the use of pay telephones and other means for conducting a drug business. As McGrane stated, Paiva later reviewed the meeting with him to assure that he understood everything, particularly regarding the security measures. McGrane testified that he then began purchasing cocaine from Anderson in amounts ranging from quarter-ounces to four ounces at a rate of $2,200 to $2,300 per ounce. For the first two or three transactions, McGrane testified, Paiva picked up the cocaine from Anderson in Maine and delivered it to McGrane at which time McGrane gave Paiva the money. Except for one transaction, McGrane stated, he bought all his cocaine from Anderson until 1984 when Anderson eventually introduced McGrane to Mark Needelman as an alternative source of cocaine.

Floyd Jenkins, named in Count II of the Indictment as a cocaine distributor and Carl Morrill, named in Count I as a conspirator, both testified. Floyd Jenkins, who testified under a grant of immunity, began buying and selling cocaine to support his own cocaine habit. Jenkins testified that he bought this cocaine from Joseph Bilodeau, a supplier who obtained the cocaine from Robert Anderson and with whom Jenkins later formed a partnership.

Carl Morrill, who testified under a plea agreement, was also a drug trafficker. Morrill stated that he bought cocaine from two men, Truman Dongo and Richard Eifel. Morrill testified that he was present on a number of occasions when Eifel bought drugs from a man whom Morrill later learned was Anderson. On one occasion, according to the testimony of Jenkins and Morrill, after $34,600 of Morrill's money was allegedly stolen by Eifel, Morrill and Jenkins met with Anderson and another man. Jenkins identified this other man as Paiva; Morrill only remembered that the man's name was "Jimmy" or "Gerry." After Anderson and Paiva assured Morrill that they were not responsible for the theft, Morrill testified, he agreed with Anderson to continue buying cocaine on a cash basis.

According to the testimony of Jenkins, he was by this time, January 1983, partners with Bilodeau. He and Bilodeau agreed to supply Morrill with cocaine obtained from the same source, Robert Anderson. As Jenkins stated, during the first transaction Morrill gave $20,000 to $30,000 to Jenkins to pass to Bilodeau, who would then purchase the cocaine. This first time, however, Jenkins accompanied Bilodeau to Portsmouth, New Hampshire. Jenkins testified that upon arrival at Portsmouth circle, Bilodeau made a phone call after which Paiva arrived. According to Jenkins' testimony, Bilodeau and Paiva then went into a motel room, and Bilodeau returned with the cocaine. Bilodeau and Jenkins then returned to Maine where they distributed a portion of the cocaine to Morrill. Several transactions, following this pattern, ensued thereafter. During these subsequent transactions, however, Bilodeau went to Portsmouth, New Hampshire alone.

According to the testimony, the partnership between Bilodeau and Jenkins had dissolved by March of 1983. Also, Morrill had been arrested on cocaine charges. Nevertheless, as they both testified, Morrill continued to buy cocaine through Jenkins who approached Anderson directly. Jenkins testified that he and Anderson agreed that Paiva would continue to supply the cocaine at Portsmouth circle. Anderson gave Jenkins a telephone number for Paiva, Jenkins stated, at which he reached Paiva on several occasions. As Jenkins testified, he continued to buy cocaine from Paiva until he became dissatisfied and began buying from Truman Dongo. In the summer of 1983, Jenkins was kidnapped and shot, and Dongo was murdered. Thereafter, Jenkins began cooperating with the police and agreed to testify.

Mark Needelman, who was convicted and sentenced for cocaine trafficking, also testified at trial. Needelman's name appeared in Anderson's records. Needelman testified that he bought his cocaine from Anderson until 1982. When Anderson was arrested, however, Needelman stated that Anderson directed him to Paiva for cocaine until he was released. Needelman testified that he first met Paiva in New Hampshire to buy cocaine, but that subsequent purchases of cocaine, in amounts ranging from two to four ounces, were made in Massachusetts. In the fall of 1983, when Paiva was sentenced to jail on a gun charge, Needelman stated that he assumed Paiva's role as Anderson's subordinate and took over Paiva's accounts in the Portsmouth area. Each week while Paiva was in jail, Anderson directed Needelman to set aside $1,000 in a safety deposit box for Paiva; thus each week Anderson received $1,000, Needelman received $1,000, and Paiva received $1,000. In January 1984, Needelman was arrested while he was selling cocaine in exchange for $68,000. A telephone book seized in connection with that arrest contained Paiva's first name and several telephone numbers that Paiva and Anderson had given Needelman. Before his trial, Needelman fled with Anderson, using $138,000 that he and Anderson had hidden in the wall of an apartment. Tired of running for three years, Needelman entered into a cooperation agreement with the government and agreed to testify.

These four men, William McGrane, Floyd Jenkins, Carl Morrill and Mark Needelman, were the only persons involved in the drug transactions with Paiva who testified. Joseph Bilodeau was available at trial, but neither party called him. Robert Anderson, the apparent ring leader, remained a fugitive at the time of trial.

Two other witnesses, Christina Christo and Detective Kenneth Pike, also testified for the government at trial. Christina Christo, the daughter of Paiva's ex-wife, testified that she found a small bag containing a white powdery substance in Paiva's shoe. She...