USCA1 Opinion

January 20, 1993

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 91-1772
UNITED STATES,
Appellee,
v.
GEORGE A. MORAN,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________
James L. Sultan with

whom Margaret H. Carter

and Rankin & Sul

_______________
__________________
____________
were on brief for appellant.
George W. Vien, Assistant United States Attorney, with whom
_______________
John Pappalardo, United States Attorney, and Heidi E. Brieg
________________
________________
Assistant United States Attorney, were on brief for appellee.
____________________
____________________

BOUDIN, Circuit Judge.

_____________
co-defendants
of

various

conspiring

Appellant George

Moran and two

were convicted by a jury, after a joint trial,

drug

offenses.

to distribute

Moran

cocaine and

was

found

guilty

was acquitted

of

on two

other counts charging him with specific acts of distribution.

All of

the defendants have

issues

relating to

other

defendants

Concluding
Moran's

that

Moran differ
and

the

conviction

appealed, but

we

for

from those

decide

evidence

the evidence

was

conspiracy

his

concerning the

case

sufficient
and

and

finding

separately.
to

sustain
no

other

errors, we affirm.
The

procedural

history

August 9, 1990, Moran

under 21

U.S.C.

and,

other

in

846

included Moran,
others.

in

the

the alleged

Before

trial,

guilty.

Moran

and

February

1991 and

two

to

convicted on

indicted

or

more of

related crimes.
umbrella

Willis and

the

The co-

conspiracy

count

Hobart Willis,

three

defendants
one or

On

distribute cocaine

one

ringleader

other

stated.

of others were

for conspiring to

distribution and

charged

be briefly

and a number

counts pertaining

defendants, with
conspirators

can

others
were

and

pleaded
tried

more counts.

in
This

appeal followed.
I.
Moran's central

argument on

appeal is the

often made,

but rarely successful, claim that the evidence was inadequate

-2-2-

to

support the verdict against

argument, we

"assess the

him.

In

appraising such an

sufficiency of the

evidence as

whole, including all reasonable inferences, in the light most

favorable to
944 F.2d
a

the verdict . .

. ."

33, 39 (1st Cir. 1991).

rational trier

of

resolved in

"The

. .

hypothesis of

have

doubt."

of credibility are
evidence

So viewed, we ask "whether

fact could

guilty beyond a reasonable

United States v. Lopez,

______________
_____

need

found the

Id.
__

In

general, issues

favor of the
not exclude

innocence; that is, the

verdict.

every

this

case Moran

others, that he conspired

The

"essence" of

was

factfinder may decide

tried

on the

drugs.

is an

other evidence

agreement
_________

while

defining

may, of course,

F.2d 942,

the term

conspiracy

950 (1st Cir.

"agreement"
and

is

instructions, the agreement of

be

and others

to commit

implicit in

a working

is

properly

777 (1975),
to distribute

be inferred from

including a course of conduct.

v. Concemi, 957
_______
that,

between Moran

Such an agreement

among

with Willis and his co-defendants.

conspiracy

an agreement

Id.
__

charge,

crime, Ianelli v. United States, 420 U. S. 770,

_______
______________
here,

Id.
__

reasonable

among reasonable interpretations of the evidence."

In

defendant

United States
_____________

1992).

More

customarily used
employed

in

than
in
jury

the defendant with others may

relationship between

the parties

that has never been articulated but nevertheless amounts to a

joint criminal enterprise.

-3-3-

In this case, taking the evidence

most favorably to the

government, the jury could

have found from direct testimony,

telephone

other

engaged

recordings
in

drug

and

distribution

persons during 1988.

came almost
to

trial

with

that

conspiracy

the

testimony

other

government
himself.

proceedings,
in

order

and
to

against him

Administration.

freighted with

criminal record, admissions that he procured

in

various

Callahan, who cooperated

Drug Enforcement
came

Willis was

with

As to Moran, the evidence

entirely from one Paul

some extent

Callahan's

evidence

his

long

false testimony

his

incentive

to

favor

the

secure

favorable

treatment

for

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

had no further contact with him until

Moran in 1981

but

June or July 1988 when

he had a friend give Moran his beeper number.

Callahan

then

met

with Moran and sought to purchase

substantial
"fat man"
Moran

amount.

was

Callahan to

dealing

meeting, Moran told

too high

Moran replied that he would contact the

(understood by

said he

cocaine from him in a

at the

be Willis)
time.

Callahan that the fat

with whom

At their

next

man's prices were

but that Moran had another source in the North End.

Moran also said

that he was

going to try

to get a

cheaper

-4-4-

price from "Mary," a

by Callahan

as

friend of the fat man

a member

of

later identified

Willis' ring.

Subsequently,

Callahan and Moran met again and Callahan purchased 500 grams
of cocaine from Moran, after testing it for purity.
Some
further

weeks

later,

meeting

ensued,

Callahan's words--that
ingratiate with the
offered

Callahan again
and

Moran

he (Moran)

fat guy."

told

Moran, a

Callahan--in

was "still looking

At the

next meeting,

in to
Moran

a package of what Callahan took to be cocaine; Moran

explained that it came from the fat guy.

diesel

contacted

The

contents had a

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

final evidence relating

directly to Moran involved

purchased a half kilo.

The

two telephone calls between him and Callahan in October 1988.

The first call was not tape recorded.
Moran

complained during

scrutinizing
that
Boy

him.

the call

that federal

On cross-examination

Moran also said during

a few

According to Callahan,

days ago, but

Callahan indicated

the call, "I

that was

saw the Pillsbury

just to

don't have nothing to do with those guys."

agents were

say hi. . . . I
Callahan told the

jury that the Pillsbury Boy was Willis.

-5-5-

The second
tape

conversation occurred

recorded with

offered at trial.

DEA

a week later,

assistance, and

In this conversation

it was

the recording

was

Moran, referring to

his

prior questioning

occurred

it had

Callahan said he had heard that the fat guy was

scrutinized

by

law

enforcement

replied, "Oh, my God.

Unbelievable.

his

first lieutenant,

expendable."
lieutenant

At
as

says, I

trial

Mary.

essentially agreed

agents

and

Moran

I already told him and

think

somebody made

Callahan

identified

Callahan

concluded

conversation by asking Moran, "Can

Moran

said that

because the agents had seen him with "fatso" two or

three times.
being

by federal agents,

the

you
first

the

taped

we do some business?" and

(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
convicted
is

based on the

him of conspiracy.

unclear.

sales to Callahan

but

The reason for the discrepancy

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

Willis regarding drug distribution.

not matter.

The question presented

-6-6-

relationship

with

But the discrepancy does

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
that

the jury

lacked

sufficient evidence,

ground

for the

jury's

central role and competence is to weigh the evidence and find

the facts.

Yet the issue

find troubling, actually

the conduct

the jury

occurred amounts to a
view, the
often

may

could reasonably

The

surface.

cases,

found to

that the

At this

jury

have
In our

basis to infer,

that

or a formal

speculation was that the

on the

no rational

conspiracy

most

have

the

we

whether

conspiracy under the statute.

effectively an employee
ring.

least the aspect

poses the "legal" question

jury here had

in

here, or at

as it

defendant

was

"share partner" in

the

could find

without

sheer

relationship was what was portrayed

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

persons to commit the

defendant

with another

crime in question.

Ianelli,
_______

at 777; United States v. Glenn, 828 F.2d 855,

______________
_____

person

or

420 U.S.

857 (1st Cir.

1987).

The evidence in

the government,
package which

this case, taken

shows that Willis

Moran represented

most favorably to

agreed to supply

Moran a

to be cocaine,

which Moran

Callahan then

rejected as

-7-7-

tendered

to Callahan,

tainted with a

and which

diesel smell.

This connection

and Willis is bolstered, or so

between Moran

the jury could have found, by

Moran's prior use of Willis as a source of supply, by Moran's

unsuccessful
Callahan,

initial effort

by

Willis, by

Moran's

to

desire

buy drugs
to

ingratiate

with
by

Moran's knowledge that Willis was under federal scrutiny.

On

the

government

with Willis

himself

for

and Mary and

appeal,

Moran's encounters

from Willis

argues

demonstrates a conspiracy either

that

the

evidence

surely

as charged (with Willis and

others) or, at the very least, between Moran and Willis.

An
relating
agreement

agreement surely
to drugs.
by Willis

existed between

But if
to sell

the

Willis

evidence showed

drugs to

Moran, it

and Moran
only

an

would not

necessarily

show

distribution.

them

to

be

co-conspirators

There is substantial law,

this circuit, that a single drug sale

make

buyer and

DeLutis,
_______

722

cases). This

seller
F.2d

"rule" in

906 (1st

drug

including cases in

does not automatically

co-conspirators.

902,

in

Cir.

United States
_____________
1983)

varying forms prevails

v.

(collecting
or has

been

intermittently adopted in a number of circuits, including the

Second,

Fifth,

Sixth, Seventh

States
______

v. Douglas, 818 F.2d

_______

mere

buyer-seller

and

Eighth.

E.g.,
___

1317, 1321 (7th

relationship,

United
______

Cir. 1987) ("a

without

more,

is

inadequate").

-8-8-

Surprisingly
cases

the reason for excluding such buyer-seller

from the definition of conspiracy is not wholly clear,

and some explanation

involves
offense

an

is needed since even

agreement

between

seller and

an unplanned sale
buyer

and

of drug distribution (at least by the seller).

the
Some

have thought

it to follow

now much reduced in

from the so-called

Wharton rule,

force by Iannelli v. United States, 420

________
______________

U.S. 770 (1975), that a

crime legally requiring a

plurality

of actors (e.g., dueling) should not have a conspiracy charge

___
superimposed upon it.
purchase

and

sale

Other courts have felt that

do

not

involve

the

a single

union
_____

of

two

participants in a manner that increases either the likelihood

that the individual crime
will extend their joint

will be committed or that

endeavor to new crimes.

explanation has force in

The latter

the case of an unplanned

spot sale

with no agreement beyond that inherent in the sale.

less sense
point, an

agreement that

transaction

jointness--the
seller

It makes

where the agreement is to make a sale at a future

the crime will be

the

the two

and

does increase the

committed.
may seem

hallmark
buyer

are

Yet even

to some
of

to

likelihood that

in the latter
lack the

conspiracy--in the

not

part

of

the

case,

quality of
sense

same

that

criminal

enterprise.
This may
the

root

seem a fine point

of conspiracy

law:

-9-9-

but it is one
conspiracy

that goes to

is treated

as a

separate crime because of

_______

the jointness of the endeavor.

multiplicity of actors united to accomplish the same crime is

deemed to present a

special set of dangers, either

that the

criminal end will be achieved, Callanan v. United States, 364

________
_____________
U.S.

587, 593 (1961), or that the conspiracy will carry over

to new crimes, United States v. Rabinowich, 238 U.S.

______________
__________
(1915),

or both.

Criminal Law
____________
is these

Scott, Substantive
___________

dangers stemming from jointness

stem conspiracies

It

that justify early

even before they

rise to

level of attempts and to impose a separate punishment on

the conspirators
This

LaFave & A.

6.4(c) (1986) (summarizing the rationale).

intervention to
the

See 2 W.

78, 88

even if

special set

agree that one

assist;

they fail

of dangers is

present if

to another

present if one

be guilty--one

possession--but

without

Glenn, 828 F.2d at 858.

_____

the other will

merely sells the

without prearrangement and

idea of or interest in its intended use.

both may

their ends.

two individuals

of them will sell cocaine and

it is arguably not

same cocaine

to achieve

with no

In the latter case,

of distribution

and

the other

more

not

conspirators.

they

are

of

At some point the relationships

sales

for resale

between

the same

details supplying a context

support a
single

finding of

converge.

A pattern of

persons, together

with

for the relationship, might well

conspiracy.

Id. at 857-58.
__

Even

sale for resale, embroidered with evidence suggesting

-10-10-

a joint undertaking between

buyer and seller, could suffice.

United States v. Carbone, 798

______________
_______
Common
other

F.2d 21, 27

knowledge, interdependence,
ingredients of

shared

conspiracy are

(1st Cir. 1986).

purpose and

matters of

the

degree.

Almost everything in such a case depends upon the context and

the details.

The

evaluation

of the

facts

is

entrusted

largely to the jury.

In

this case, taking

a practical rather

than a formal

view of the matter, we believe that the

jury was entitled to

conclude that

to a

the arrangement amounted

agreement between

Willis and

Moran for the

conspiratorial
distribution of

drugs.

Based

on testimony

credit, Moran

(according to

dealing with Willis, an

that the

jury was

Callahan) admitted that

first choice

Callahan's first order.

for this

Moran then

of supplier in

was too high

second one Moran--after

his

relationship

("to

ingratiate

with the fat guy")--again turned to Willis.

This

even

though

bolster

fill

expressing

time Moran did

to

turned to

seeking to

Although Willis' price

first transaction, for the

desire

he was

admission suggesting that Willis had

supplied Moran with drugs in the past.

Willis as his

entitled to

acquire from Willis a

Callahan

then

his

resale sized quantity,

rejected the

shipment.

This

picture of a continuing sale-for-resale relationship, even if

Willis

was not

the

exclusive supplier,

Moran's other contacts with

was reinforced

by

Willis and knowledge of his law-

-11-11-

enforcement jeopardy.

See United States

___ _____________

v. Anello, 765 F.2d

______

253, 261 (1st Cir.), cert. denied, 474 U.S. 996 (1985).
____ ______
We

think

that a

realistic

appraisal

of Moran's

and

Willis' relationship
amounts

to

an

would permit

implicit

jury to

agreement

and

continuing supply by one to the other

customers.

comprehends

it
the

of drugs for resale to

See United States v. Geer, 923 F.2d 892, 895 (1st

___ _____________
____

Cir. 1991).
Willis

find that

Even

though Moran was not

an employee nor

did

and Moran formally divide the profits, in this case a

jury could conclude that both Willis and Moran had an ongoing
stake in the success of Moran's
acquired

from Willis.

own sales of the drugs Moran

See Glenn,
___ _____

828 F.2d at 857-58.

From

those sales Moran could profit directly and Willis indirectly

through

the maintenance

crucial for a drug

v.

of

network.

United States, 319

______________

arrangement,
ordinary

the

S.

in

distribution

and

703, 717

not only an

conspiracy-law ambit

participants

seeking

but

to

involves

pragmatic approach
foreshadows
intent

of

both
____

to stamp out drug

in

Such

an

agreement within the

is one

of

that unites
the
the

crime
dangers

two
of
of

success and extension to

cases advert.

Direct Sales
____________

the result

(1943).

accomplish

conspiracy--increased likelihood of
other crimes--to which the

channel

See generally Direct Sales Co.

___ _________ ________________

U.

we think, is

drug distribution

this case

We think

in defining
and, given

that the
conspiracy
Congress'

transactions, it certainly did not

-12-

-12-

mean

to

U.S.C.

narrow the

when it

enacted 21

846, the statute involved in this case.

We leave
same

conspiracy concept

for another day

theme.

Obviously

quantities presents
make a single

the lesser variations

single

sale

one problem and an

sale involves

another.

in

on the

resale

sized

advance agreement to
Where

one draws

the

line is more

a matter of discerning congressional policy and

intent

an

than

approach

is for the

classic

single

prearrangement,
circuit

as well

conspiracy.
at

exercise

in logic,

and

case-by-case

present the wisest course.

sale--for

personal

As for the

use,

without

and with nothing more--the precedent in this

as

others treats

it

as not

In such cases the jointness

a minimum, if

the

it exists at

all.

involving

element is clearly

Where

nothing more is

involved, we reaffirm existing authority that such a

case is

not a conspiracy.
II.
Moran's remaining arguments are less formidable than his
attack

on

the sufficiency

of

the evidence.

Moran first

argues

that even

if the

evidence was

adequate to

prove a

conspiracy between Willis and Moran, it was not sufficient to

prove Moran to be

a member of the larger

in the indictment.

This

conspiracy charged

variance, he argues, prejudiced him

by associating him with

more powerful and extensive evidence

-13-13-

against other defendants.

We agree that there was probably a

variance but find that it was not prejudicial.

The

indictment

conspiracy,
other

charged

naming as

named defendants,

unknown

to the

single

co-conspirators
and "other

Grand Jury

evidence related to

. . .

drug

distribution

Willis,

Moran,

persons both
"

At trial

six

known and
much of the

the two other defendants who pleaded not

guilty and to Willis and his relations

with defendants other

than

to one

Moran.

The references

of Mary

side, nothing

linked

Moran to any of the ring members other than Willis or

any of

the transactions charged elsewhere

other than Moran's own sales to Callahan.

in the indictment

On this record, it is true that the evidence pointing to

a Willis-Moran

conspiracy is

conspiracy between
very

far stronger than

Moran and the Willis ring

evidence of

as a whole.

serious problem would be presented if the jury had held

Moran liable
ring.

for other

Compare Glenn.
_______ _____

substantive crimes committed

The situation is different

by the

where the

government charges a defendant with a crime (here, conspiracy

to
from

distribute) but the

facts proven at

those charged in the

settled law that a

indictment.

trial vary somewhat

In

that case, it is

conviction for the crime charged

will be

affirmed unless the variance as to the facts is shown to have

prejudiced the defendant.
78

(1935);

Fed. R.

Crim

Berger v. United States,

______
_____________
P.

52(a)(variance not

295 U.S.
affecting

-14-14-

substantial

rights

often sustained
alleges

a single

may be

under

disregarded).

this principle

conspiracy

Convictions are

where the

but multiple

indictment

conspiracies are

actually

proved.

E.g., United States v.

___
______________

Sutherland, 929
__________

F.2d 765, 772 (1st Cir.), cert. denied, 112 S. Ct. 83 (1991).
____ ______
In

this case, Moran does

not and could

not claim that

the variance deprived him of notice of the charge adequate to

prepare

a defense.

Rather he contends that the disparity in

evidence--specifically,

the

recordings

incriminating

"spillover"

effect that

him.
be

array
other

motions for

at 772.

severance

the impact threatened

fair trial.
Most

Moran.

tape

are

case against

The enhancement may

routinely made

this taint.

in

The question

to deprive defendant

of a

We conclude that it did not.

of the

different from
Callahan's

and

defendants--created

conspiracy cases, partly to escape

is whether

witnesses

enhanced the narrower

See Sutherland, 929 F.2d

___ __________
assumed;

of

evidence

concerning Moran

the evidence against others.

testimony and

concerned

his

was distinctly
It derived from

transactions

with

Similarly, Moran's relationship with Willis was based

upon Callahan's

description buttressed

recorded statements.
evidence
diminished

and

The distinct

evidence

the risk

facts the risk appears

of

of

other

by Moran's

separation between

this

Willis-related activities

jury confusion.

Indeed,

to have been minimal compared

-15-15-

own tape

on these
to the

usual mass conspiracy case.

not think

the

Under

apparent variance

these circumstances we do
even

arguably

threatened

Moran's right to a fair trial.

Finally,
supplementary

Moran

argues

instruction

deliberations.

Jury

that

given

error
to

deliberations

the

inheres
jury

began

in

during

its

on February

14,

1991, and the next day the jury sent in the following written
question, as described by the trial judge:
The indictment states, quote, David
Elwell,
Richard Morretto
and George
Moran, defendants, combined, conspired
and agreed with each other -- underlined
"with each other" -- and with other
persons, both known and unknown to the
grand jury, close
quote.
Does the
statement
mean
these three
-- and
circled -- people conspired with each
other -- and "with each other" is again
underlined. Your instruction seems to be
different from the indictment. Signed by
the foreperson.
The judge
"first,

then re-instructed
remember

the jury, reminding

the indictment

is

only

them that

the charge,

accusation.

It is not evidence.

the law.

the other hand, my instructions are a statement

of the

On

law and are binding on you."

his prior

instructions on

It is not

the

a statement of

The judge then repeated

conspiracy (two or

more persons,

agreement to commit

crime charged, defendant's knowledge

unlawful purpose and knowing joinder).

jury

returned

its

verdict,

of

Within the hour, the

including

the

conspiracy

conviction of Moran.

-16-16-

On appeal, Moran agrees that "[v]iewed in isolation, the

judge's

instructions

clearly so:

the response to

correct, and

the

jury

indictment

to

believe

entirely

that

the

charged such as a

and
There

and

the jury's question

that

is

was clear,
Moran

instruction could have

it

convict

could
the

disregard

defendant

of

is a distinct possibility,

jury convicted

him

of

from that involving

the
any
says

conspiracy not

conspiracy with Callahan or

with Willis, different

this

the question posed.

that in context the

conspiracy it chose.
Moran,

unobjectionable,"

precisely answered

argues, however,
led

were

"a conspiracy

Moretto, Polito,

and Elwell."
Moran's
supplementary

counsel

at

instruction

trial
and

did
any

not

object

objection

to

the

is therefore

waived absent a showing of serious prejudice.

United States
_____________

v. Maraj, 947 F.2d 520, 525 (1st Cir. 1991).

_____

No such showing

has

think

been

made here.

Further, we

instruction invited the jury

indictment;

indeed,

do not

that the

to disregard the charge in

the supplementary

the

instruction reminded

the jury that the agreement here charged was "to possess with
intent to
the jury

distribute cocaine."

As for the

convicted Moran for such a

suggestion that

conspiracy with Willis,

rather than with Willis and others in his ring, this may well
be so.

But as cases like Sutherland show, such an outcome is

__________

-17-17-

not conviction for a "different crime"

is merely a permissible variance.
Affirmed.
________

than that charged but

-18-18-