U.S. v. Sepulveda

Decision Date15 June 1993
Docket Number92-1367,92-1369,92-1366,92-1574,92-1364,Nos. 92-1362,92-1371,92-1373,s. 92-1362
Citation15 F.3d 1161
Parties38 Fed. R. Evid. Serv. 1297 UNITED STATES of America, Appellee, v. David SEPULVEDA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Edgar SEPULVEDA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Edward W. WELCH, Jr., Defendant, Appellant. UNITED STATES of America, Appellee, v. Arline S. WELCH, Defendant, Appellant. UNITED STATES of America, Appellee, v. Kevin CULLINANE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Cheryl T. JOHNSON, Defendant, Appellant. UNITED STATES of America, Appellee, v. Richard F. LABRIE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Tony ROOD, Defendant, Appellant. UNITED STATES of America, Appellee, v. William D. WALLACE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Ernest F. LANGLOIS, Defendant, Appellant. to 92-1375, 92-1573 and 92-1629. . Heard
CourtU.S. Court of Appeals — First Circuit

Page 1171

David H. Bownes, with whom David H. Bownes, P.C. was on brief, for defendant David Sepulveda.

Julia M. Nye, with whom McKean, Mattson and Latici, P.A. was on brief, for defendant Edgar Sepulveda.

Stephen A. Cherry, with whom Wright & Cherry was on brief, for defendant Edward W. Welch, Jr.

Kevin M. Fitzgerald, with whom Peabody & Brown was on brief, for defendant Arline S. Welch.

Michael J. Ryan, with whom King and Ryan was on brief, for defendant Kevin Cullinane.

Robert P. Woodward for defendant Cheryl T. Johnson.

Mark H. Campbell for defendant Richard Labrie.

Paul J. Garrity on brief for defendant Tony Rood.

Matthew J. Lahey, with whom Murphy, McLaughlin, Hemeon & Lahey, P.A. was on brief, for defendant William D. Wallace.

Julie L. Lesher, with whom Murphy, McLaughlin, Hemeon & Lahey, P.A. was on brief, for defendant Ernest F. Langlois.

John P. Rab for defendant Christopher Driesse (appellant in consolidated appeal).

Paul J. Haley, with whom Scott L. Hood was on brief, for defendant Shane Welch (appellant in consolidated appeal).

Kevin M. Fitzgerald, Kevin M. Leach, McLane, Graf, Raulerson & Middleton, Peabody & Brown and David H. Bownes on omnibus briefs for all appellants.

Terry L. Ollila, Special Assistant United States Attorney, with whom Peter E. Papps, United States Attorney, and Jeffrey S. Cahill, Special Assistant United States Attorney, were on brief, for appellee.

Page 1172

Before SELYA, CYR and BOUDIN, Circuit Judges.

SELYA, Circuit Judge.

These appeals, arising out of the drug-trafficking convictions of a dozen New Hampshire residents, suggest that while two New Hampshire men might once have been a match for Satan, see Stephen Vincent Benet, The Devil and Daniel Webster (1937), times have changed. The tale follows.

I. BACKGROUND

During a two-month trial in the district court, the government mined a golconda of evidence. Because it would serve no useful purpose to recount the occasionally ponderous record in book and verse, we offer instead an overview of the evidence, taken in the light most compatible with the guilty verdicts. See United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1005, 122 L.Ed.2d 154 (1993). Further facts will be added as we discuss specific issues.

For almost six years, David Sepulveda conducted an increasingly sophisticated cocaine distribution business in and around Manchester, New Hampshire. Initially, Sepulveda purchased cocaine from a vendor in Nashua, New Hampshire, and transported it to Manchester himself. Over time, Sepulveda expanded his operation, increasing the volume of cocaine and engaging others to handle tasks such as pickup, delivery, and street-level sales.

As his enterprise grew more ambitious, Sepulveda began purchasing cocaine from a source in Lawrence, Massachusetts. Faced with the need to retain control while insulating himself from the prying eyes of law enforcement personnel, Sepulveda's journeys to Lawrence became an elaborate ritual in which he would scrupulously avoid carrying drugs or travelling in the same car with the cocaine that he purchased. On these provisioning trips, Sepulveda was usually accompanied by his brother, Edgar, and a "runner," that is, an individual who would actually transport the cocaine from Lawrence to Manchester. 1 Frequently, one of Sepulveda's distributors or a user in a particular hurry to obtain fresh supplies would join the troupe.

Once the cocaine arrived in Manchester, Sepulveda and his associates packaged it in street-level quantities and distributed it to a series of individuals for resale and personal use. The buyers included, among others, defendants Edward W. Welch, Jr., Arline S. Welch, Shane Welch, Kevin Cullinane, Christopher Driesse, Cheryl T. Johnson, Richard E. Labrie, Tony Rood, and William D. Wallace. David Sepulveda made a practice of directing persons who inquired about purchasing small amounts of cocaine to these same individuals.

Eventually, David Sepulveda's reach exceeded his grasp. A federal grand jury indicted him, along with others, for drug trafficking; and, after trial, a petit jury convicted twelve persons, viz., the Sepulveda brothers, the three Welches, Cullinane, Driesse, Johnson, Labrie, Rood, Wallace, and Langlois, on a charge of conspiracy to possess and distribute cocaine. See 21 U.S.C. Sec. 846 (1988). The jury also convicted David Sepulveda on a charge of engaging in a continuing criminal enterprise. See 21 U.S.C. Sec. 848 (1988). Twenty-six appeals ensued.

It is no exaggeration to say that the defendants, represented by able counsel, managed to cultivate a profusion of variegated grounds for appeal from the peat of the protracted trial. Because of the sheer bulk and complexity of the proceedings, we issued a special briefing order and then heard oral argument on all twenty-six appeals. We decide today twelve appeals taken by ten defendants (collectively, "the appellants"). 2 After sifting

Page 1173

what grains we can locate from the considerable chaff, we conclude that the appellants enjoyed a fair, substantially error-free trial, and that their convictions must stand. In two instances, however, we vacate particular sentences and remand for further proceedings.

II. SUFFICIENCY OF THE EVIDENCE

Four appellants claim that the evidence is insufficient, as a matter of law, to support their convictions. 3 Because insufficiency claims are commonplace in criminal appeals, the standard of appellate oversight lends itself to rote recitation. Following a guilty verdict, a reviewing court must scrutinize the record, eschewing credibility judgments and drawing all reasonable inferences in favor of the verdict, to ascertain if a rational jury could have found that the government proved each element of the crime beyond a reasonable doubt. See United States v. Echeverri, 982 F.2d 675, 677 (1st Cir.1993); Ortiz, 966 F.2d at 711; United States v. David, 940 F.2d 722, 730 (1st Cir.1991) (collecting cases), cert. denied, --- U.S. ----, 112 S.Ct. 2301, 119 L.Ed.2d 224 (1992). To sustain a conviction, the court need not conclude that only a guilty verdict appropriately could be reached; it is enough that the finding of guilt draws its essence from a plausible reading of the record. See Echeverri, 982 F.2d at 677; Ortiz, 966 F.2d at 711.

Here, the challenged convictions center around a charge of conspiracy to possess and distribute cocaine. To prove a drug conspiracy charge under 21 U.S.C. Sec. 846, the government is obliged to show beyond a reasonable doubt that a conspiracy existed and that a particular defendant agreed to participate in it, intending to commit the underlying substantive offense (here, possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1)). See David, 940 F.2d at 735; United States v. Sanchez, 917 F.2d 607, 610 (1st Cir.1990), cert. denied, 499 U.S. 977, 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991); United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989). There are no particular formalities that attend this showing: the agreement may be express or tacit and may be proved by direct or circumstantial evidence. See Echeverri, 982 F.2d at 679; Rivera-Santiago, 872 F.2d at 1079. Moreover, in a criminal conspiracy, culpability may be constant though responsibilities are divided; the government does not need to show as a precursor to a finding of guilt that a given defendant took part in all aspects of the conspiracy. See United States v. Benevides, 985 F.2d 629, 633 (1st Cir.1993); United States v. Cruz, 981 F.2d 613, 617 (1st Cir.1992). Using these guideposts, we find that the quantum of evidence presented against each of the four challengers suffices.

A. Arline Welch.

Four witnesses provided the bulk of the evidence regarding Arline Welch's role in the conspiracy. Kurt Coriaty testified that he had purchased cocaine from her both in her home and in his, particularly after her husband, Edward Welch, was imprisoned. Coriaty's partner, Kenneth Milne, stated that Arline Welch gave him cocaine at her home and was present when he purchased cocaine from Edward Welch at the Welch residence. While mere presence is not sufficient to ground criminal charges, a defendant's presence at the point of a drug sale, taken in the light of attendant circumstances, can constitute strong evidence of complicity. See Ortiz, 966 F.2d at 711-12.

The jury also heard Norberto Perez explain that Arline Welch accompanied David Sepulveda on three buying expeditions to Lawrence, Massachusetts. Perez testified that, in expressing anxiety, she made manifest her awareness of the trips' purpose, voicing statements like: "Let's hurry up and get this cocaine so we can get out of here." Furthermore, Randall Vetrone testified that

Page 1174

Arline Welch was present in Edgar Sepulveda's...

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