U.S. v. Tarvers, s. 85-1979

• Decision Date: 06 October 1987
• Docket Number: 85-1980 and 85-1981,Nos. 85-1979,s. 85-1979
• Citation: 833 F.2d 1068
• Parties: 24 Fed. R. Evid. Serv. 222 UNITED STATES of America, Appellee, v. Anthony Phillip TARVERS, Jr., Defendant, Appellant. UNITED STATES of America, Appellee, v. Richard J. BRENNER, Defendant, Appellant. UNITED STATES of America, Appellee, v. Terrence J. O'DUGGAN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1068

833 F.2d 1068

24 Fed. R. Evid. Serv. 222

UNITED STATES of America, Appellee, v. Anthony Phillip TARVERS, Jr., Defendant, Appellant.

UNITED STATES of America, Appellee, v. Richard J. BRENNER, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Terrence J. O'DUGGAN, Defendant, Appellant.

Nos. 85-1979, 85-1980 and 85-1981.

United States Court of Appeals First Circuit.

Heard Oct. 6, 1987.

Decided Nov. 24, 1987.

Michael A. Collora, Boston, Mass., with whom Michael L. Leshin and Hemenway & Barnes, Boston, Mass., were on brief, for appellant Terrence J. O'Duggan.

Joseph M. Flak, Boston, Mass., with whom Mark Blair Bigelow, Boston, Mass., was on brief, for appellant Anthony Phillip Tarvers, Jr.

William P. Homans, Jr., Boston, Mass., with whom Homans, Hamilton, Dahmen & Marshall, Boston, Mass., was on brief, for appellant Richard J. Brenner.

Kevin E. Sharkey, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., Acting U.S. Atty., Boston, Mass., was on brief, for appellee.

Before BOWNES, Circuit Judge, TIMBERS, ^* Senior Circuit Judge, and SELYA, Circuit Judge.

TIMBERS, Circuit Judge:

Appellants Anthony Phillip Tarvers, Jr. ("Tarvers"), Richard J. Brenner ("Brenner"), and Terrence J. O'Duggan ("O'Duggan") appeal from judgments of conviction entered December 3, 1985 in the District of Massachusetts, A. David Mazzone, District Judge. Following a three week jury trial, Tarvers was convicted, among other charges, of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848 (1982); conspiracy to possess cocaine and quaaludes with intent to distribute, in violation of 21 U.S.C. Sec. 846 (1982); and conspiracy to impede and obstruct the Internal Revenue Service ("IRS") in the performance of its duties, in violation of 18 U.S.C. Sec. 371 (1982) ("Count VII"). O'Duggan and Brenner also were convicted, as charged in Count VII, of conspiracy to impede and obstruct the IRS. In addition, Brenner was convicted of conspiracy to possess cocaine with intent to distribute and possessing cocaine with intent to distribute, in violation of 21 U.S.C. Secs. 846, 841(a)(1) (1982), and 18 U.S.C. Sec. 2 (1982).

We find that the two principal issues on appeal arise from: (1) Tarvers' claim that the court erred in instructing the jury that, to convict Tarvers of engaging in a continuing criminal enterprise, they need not agree on the identities of the five or more persons who worked under Tarvers' management; and (2) the claim of O'Duggan and Brenner that Count VII failed to state an offense with sufficient specificity, as well as O'Duggan's assertion that the government failed to prove this count with respect to him. Other subordinate issues are raised.

For the reasons set forth below, we affirm in part and reverse and remand in part.

I.

We summarize those facts believed necessary to an understanding of the issues raised on appeal. A somewhat detailed summary is appropriate because of the nature of the case and the long period of time involved. Viewing the evidence, as we must at this stage of the case, in the light most favorable to the government, there was evidence from which the jury could have found the following facts.

In essence, this case involves a long-term conspiracy to distribute cocaine. According to the co-conspirators who later testified against him, Tarvers began to deal in marijuana in January 1977. In the spring of that year, the IRS investigated Tarvers for failure to pay income taxes and ultimately levied on his bank account and other assets. Tarvers made several payments to the IRS but then moved from Massachusetts to Florida. In June 1977, Tarvers worked as a salesman for Richard Loring ("Loring"). He asked that Loring pay him only a nominal salary and give him an expensive car. Loring later testified that Tarvers had made this arrangement because "the IRS was on his back" and he wanted "to beat the system".

Tarvers' Introduction to Narcotics Trafficking

While in Florida, Tarvers began trafficking in cocaine on a regular basis. First he met Tom Henrie ("Henrie"), who later testified against him in exchange for immunity from prosecution. In January 1979, Tarvers told Henrie that he had been transporting marijuana from Florida to Cape Cod, and that he planned to switch to cocaine because its lesser volume made it less conspicuous. In the spring of 1979, Tarvers, Henrie and at least one other transported high quality cocaine from Florida to Cape Cod.

Also in the spring of 1979, Tarvers met Chris Schaefer ("Schaefer"), who, like Henrie, later testified against Tarvers. Schaefer introduced Tarvers to Kenny DiMartini ("DiMartini"). Tarvers was told by DiMartini that he and Schaefer could distribute cocaine for Tarvers in Louisiana. DiMartini showed Tarvers and Henrie a method for "cutting" or "rerocking" cocaine, a process which lessens the purity of the drug while increasing its volume. DiMartini's method failed because it produced cocaine of such low quality that it was difficult to sell.

Sometime before June 1979, Jeremiah Monroe ("Monroe") introduced Tarvers to Dirk Gregory Letares ("Letares") who began selling cocaine for Tarvers. Monroe was paid a commission by Tarvers for the introduction. Letares showed Tarvers a more successful method for rerocking cocaine. It is at this point that, according to the evidence, Brenner definitely became involved in the conspiracy, since it was at Brenner's apartment that Letares demonstrated his rerocking method. Moreover, Brenner suggested that Tarvers try to use leather handbag presses at Brenner's factory to rerock the cocaine. This experiment failed. Tarvers continued using Letares' method.

Between July 1979 and August 1980, witnesses observed Tarvers, along with Henrie and Schaefer and others, regularly bringing cocaine from Tarvers' home in Boca Raton, Florida to Cape Cod. Tarvers' supplier at this time for both cocaine and marijuana was John Tedesco.

O'Duggan's Involvement: The Camper, Loan and Credit Card

In November 1979, at Tarvers' request, Henrie drove a camper from Florida to Cape Cod. Henrie and Schaefer both testified that Tarvers had told them that the camper belonged to O'Duggan. Tarvers told Henrie that the camper had been used to transport marijuana; that someone named "Bunky" or "Bumpy" had stolen it at an earlier time in 1979, either in North or South Carolina; that Tarvers had told O'Duggan of the theft; and that the camper later had turned up in one of the Carolinas. O'Duggan reported the theft to the police on July 4, 1979 and said that it had been stolen in Massachusetts. Henrie initially was apprehensive about using the camper because it had been reported stolen and he "didn't know if the police were watching it or what." Nevertheless, after his conversation with Tarvers, Henrie picked up the camper at Tarvers' home in Florida.

At one point in 1979, Schaefer and Tarvers had accumulated $90,000. Schaefer suggested using this money to buy cocaine in volume. Tarvers demurred, explaining that he had borrowed money from O'Duggan to "get started in the cocaine business" and wanted to use the $90,000 in part to repay O'Duggan. Tarvers therefore bought only one kilogram and used the remaining money to repay the loan. Tarvers told Henrie that the amount he owed O'Duggan was $50,000. Schaefer was told by Tarvers that he had O'Duggan put him on O'Duggan's payroll for tax purposes. In addition, O'Duggan obtained an American Express Gold Card for Tarvers in early 1980. At about this time, O'Duggan revealed some knowledge of the conspiracy by asking Schaefer, as he was driving Schaefer to the airport, whether he "got nervous carrying drugs on the airplane."

In January 1980, Schaefer began selling quaaludes for Tarvers. On one occasion, Schaefer repaid Tarvers for the quaaludes at a dinner at which Brenner was present. Schaefer brought the money in a pillow case. Tarvers also sold quaaludes through Monroe who had introduced Tarvers to Letares in exchange for a commission on subsequent cocaine sales made by Letares for Tarvers. Tarvers instructed Monroe to send the proceeds of the quaaludes sales to the post office box address for Universal Cosmetics ("Universal"), a company Tarvers had organized sometime in late 1979 or early 1980. Universal was in the business of producing nail polish remover. In two years, however, it had sold only fifty cases of its product. Brenner rented the post office box for Universal.

Tarvers continued selling large amounts of cocaine through Letares until late in the summer of 1980. At the end of 1980, Letares and Monroe had a dispute with Tarvers over Monroe's commissions. After reaching a new agreement with Tarvers, Letares and Monroe continued selling Tarvers' cocaine, although in smaller amounts, until at least July or August 1981. During this period, Tarvers told Letares that Brenner was his "50/50" partner. When Tarvers went on vacation in the summer of 1981, he told Letares to get cocaine from Brenner in Tarvers' absence. Letares did so on several occasions. He paid Brenner directly for the cocaine.

Beginning in the fall of 1981, Tarvers began selling cocaine through John Bowes ("Bowes"). Tarvers told Bowes to speak to Brenner about obtaining cocaine whenever Tarvers was absent. On one occasion, Tarvers gave Bowes cocaine in Brenner's presence. Throughout 1982, Brenner delivered to Bowes parcels containing up to half a pound of cocaine and received payment from Bowes. Bowes also went to Brenner's home on Cape Cod to pick up cocaine or to make payments for it.

In 1980, Schaefer was arrested in Louisiana. He was found with substantial amounts of cocaine and marijuana on his person and documents showing his involvement in the conspiracy. These documents included business cards for Brenner and O'Duggan; a personal telephone book containing phone numbers for the three appellants; documents showing that he recently had bought dinner in New Orleans for Brenner and Tarvers; a luggage...