U.S. v. Richard

• Decision Date: 29 July 1991
• Docket Number: No. 90-1997,90-1997
• Citation: 943 F.2d 115
• Parties: UNITED STATES, Appellee, v. Ralph RICHARD, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 115

943 F.2d 115

UNITED STATES, Appellee, v. Ralph RICHARD, Defendant, Appellant.

No. 90-1997.

United States Court of Appeals First Circuit.

Heard July 29, 1991.

Decided Aug. 27, 1991.

Howard T. Owens, Jr., with whom Owens, Schine, Nicola & Donahue, Trumbull, Conn., were on brief, for appellant.

Wayne A. Budd, U.S. Atty., with whom Robert W. Iuliano, Asst. U.S. Atty., Boston, Mass., was on brief, for appellee.

Before TORRUELLA, Circuit Judge, and BOWNES and HILL, ^* Senior Circuit Judges.

BOWNES, Senior Circuit Judge.

Defendant-appellant Ralph Richard appeals his convictions for conspiracy to possess over 1,000 kilograms of marijuana with intent to distribute, in violation of 21 U.S.C. § 846; and possession with intent to distribute marijuana, distribution and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(6) and 18 U.S.C. § 2. On appeal the defendant claims that: (a) the evidence was insufficient to sustain the verdict on both counts; (b) the substantive count of the indictment should have been dismissed as outside the statute of limitations; and (c) his sentence of ten years was unconstitutionally disproportionate.

I. SUFFICIENCY OF THE EVIDENCE

The evidence at trial showed a massive marijuana distribution organization run by brothers Wayne, Ralph, Keith and Chris Maling from early 1973 into the mid-1980's. Hundreds of thousands of pounds of marijuana, imported from Mexico and Colombia, were distributed throughout the United States, yielding millions of dollars for the Maling brothers.

The evidence tying the defendant to the conspiracy included his own trial testimony. He admitted that he had been continually active in the Maling organization as a distributor, transporter and off-loader of marijuana, as well as an enforcer and collector, from 1973 to 1983. He claimed, however, that his activities ceased in 1983; this claim was the basis of his defense and underlies the sufficiency argument he now makes. Whereas the indictment charged him with acts occurring in 1984, ¹ his involvement, according to him, ended outside the applicable statute of limitations period, i.e. over five years before he was indicted in 1989. We therefore focus our attention on the evidence of the defendant's 1984 involvement in the conspiracy.

Linda Bishop testified that she and her husband sold marijuana for the Maling brothers in the early to mid-1970's and 1984, and that her husband had purchased the drug in thirty- to thirty-five-pound quantities from the defendant at least twice during the spring of 1984. According to Scott Arey and Robert McIntyre, two members of the Maling organization who participated in smuggling marijuana on several occasions from the Caribbean to North Carolina, the defendant assisted in off-loading bales of Colombian marijuana from two sailboats on the North Carolina coast in May 1984. Arey and McIntyre testified to details of the 1984 smuggle. Arey remembered the defendant's suggestion during the off-loading that they keep a few bales for themselves, and both witnesses described the temporary interruption of the operation by the arrival of a Coast Guard boat. Although Arey and McIntyre testified that the defendant had also assisted in off-loading marijuana in North Carolina in 1983, they specifically recalled the above events having occurred during the May 1984 operation.

The defendant's only dispute with this evidence at trial was his claim that the events described by Arey and McIntyre occurred in 1983 and involved three boats, not two. He did not contradict the testimony of Linda Bishop.

Three obstacles prevent the defendant's sufficiency challenge from succeeding. First, his claim rests on the proposition that the government's witnesses were not credible. But, as credibility is a determination to be made by the jury, United States v. Garcia, 905 F.2d 557, 560 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 522, 112 L.Ed.2d 533 (1990), we will not disturb the verdict on that basis. Second, he failed to move pursuant to Fed.R.Crim.P. 29 for a judgment of acquittal. In such circumstances we will not reverse on sufficiency grounds unless the "convictions were clearly and grossly unjust." United States v. Lopez, 709 F.2d 742, 746 (1st Cir.), cert. denied, 464 U.S. 861, 104 S.Ct. 187, 78 L.Ed.2d 166 (1983). The defendant asserts that Arey and McIntyre were not worthy of belief because they were testifying under grants of immunity and had previously testified that the 1984 smuggle occurred earlier. This information, however, was revealed to the jury. The convictions are not clearly and grossly unjust. Finally, at oral argument defendant's counsel all but conceded that his sufficiency claim was a question for the jury.

Viewing the evidence in the light most favorable to the government, as we must, a rational jury could have found the defendant guilty if it credited the government's witnesses and disbelieved the defendant. This suffices to uphold the convictions.

II. THE INDICTMENT

The defendant was tried on a third superseding indictment ("the indictment") returned on September 21, 1989. Two counts in the indictment named the defendant--count one, alleging conspiracy to possess marijuana with intent to distribute; and count seven, possession with intent to distribute and distribution of marijuana and aiding and abetting the same, "[i]n or about January, 1984." See note 1, supra. Count seven had originally been charged in a superseding indictment returned on January 5, 1989 ("the original indictment"). On that date, at the government's request, the magistrate ordered the sealing of the original indictment pursuant to Fed.R.Crim.P. 6(e)(4). ² The indictment remained under seal until the arrest of one of the co-defendants on June 26, 1989.

The defendant moved to dismiss count seven of the September indictment on the ground that the criminal act charged was alleged to have occurred outside the five-year limitations period of 18 U.S.C. § 3282. ³ He argued that, although the return of an indictment ordinarily tolls the statute of limitations, the original January indictment had been improperly sealed and must be deemed returned when unsealed in June, which was outside the limitations period. As discussed in Part I, ante, the criminal activity alleged in count seven occurred in May 1984, within five years of the January 1989 indictment.

The district court found that the government's reasons for requesting that the indictment be sealed were legitimate, that the original indictment was properly sealed, and that the defendant had not demonstrated any actual prejudice suffered as a result of the sealing. United States v. Maling, 737 F.Supp. 684, 694-95 (D.Mass.1990).

On appeal the defendant reiterates his argument below that the original indictment was improperly sealed because (a) Fed.R.Crim.P. 6(e)(4) permits sealing only for the purpose of gaining custody over the defendant and the government knew the defendant's whereabouts; (b) the reasons given by the government in support of the request to seal were not the basis for the government's continuing to seal the indictment; and (c) the government had no legitimate basis for keeping the indictment sealed.

Unlike the defendant, we do not read Rule 6(e)(4) so narrowly as to forbid the sealing of an indictment for any reason other than taking a defendant into custody. We agree with the other courts that have considered the question that, in keeping with the practice in effect at the time Rule 6(e)(4) was adopted, a magistrate may grant the government's request to seal an indictment "for any legitimate prosecutorial objective or where the public interest otherwise requires it." United States v. Lakin, 875 F.2d 168, 170-71 (8th Cir.1989) (adopting Rule 6(e)(4) historical analysis and holding in United States v. Southland Corp., 760 F.2d 1366 (2d Cir.), cert. denied, 474 U.S. 825, 106 S.Ct. 82, 88 L.Ed.2d 67 (1985)). Accord United States v. Srulowitz, 819 F.2d 37, 40 (2d Cir.), cert. denied, 484 U.S. 853, 108 S.Ct. 156, 98 L.Ed.2d 111 (1987); United States v. Ramey, 791 F.2d 317, 321 (4th Cir.1986); United States v. Edwards, 777 F.2d 644, 648 (11th Cir.1985), cert. denied, 475 U.S. 1123, 106 S.Ct. 1644, 1645, 90 L.Ed.2d 189 (1986). "[S]uch [prosecutorial] need is not confined simply to the need to take the defendant into custody." United States v. Ramey, 791 F.2d at 321.

Here the government sought to have the indictment sealed, as the district court found, because of its fear that "several of the defendants might flee upon hearing of the indictment and one of the defendants, Ralph Richard, would receive excessive publicity which could jeopardize taking the others into custody." 737 F.Supp. at 694 (footnote omitted). The government had represented to the magistrate that defendant Richard was especially a target of media attention because of the previous massive publicity given to the defendant when he had been a suspect in Rhode Island in the murder of his baby. ⁴ 737 F.Supp. at 694 n. 11. The defendant does not dispute these findings.

The defendant does claim, however, that his whereabouts "were easily and immediately ascertainable," and that the indictment should have been promptly unsealed. He points to nothing in the record to support this naked assertion. To the contrary, the trial court found that the government was not able to locate the defendant and co-defendant Keith Maling "who were only arrested upon surrendering to authorities in early July 1989." 737 F.Supp. at 694 & n. 12. This finding is not clearly erroneous.

As for the defendant's claim that the indictment should be dismissed because the government's delay in unsealing it was unrelated to its original reasons for seeking an order to seal, he cites no authority for the implied proposition that the government must return to the magistrate as each new reason for continuing the sealing order arises. It is sufficient that, at a hearing on the defendant's ...