Taal v. Hannaford Brothers ( 2006 )

United States Court of Appeals
For the First Circuit
No. 06-1362
UNITED STATES OF AMERICA,
Appellee,
v.
EDWARD PORTALLA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, Senior U.S. District Judge]
Before
Boudin, Chief Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
James H. Budreau, for appellant.
Thomas M. Gannon, Attorney, Department of Justice, with whom,
Michael J. Sullivan, United States Attorney, Michael Pelgro, and
Glenn A. MacKinlay, Assistant United States Attorneys, were on
brief for appellee.
July 31, 2007
CYR, Senior Circuit Judge. Edward Portalla challenges
his conviction on one count of conspiring to distribute cocaine, 21
U.S.C. § 846, and two counts of money laundering, 18 U.S.C. § 1956,
contending that the government adduced insufficient evidence. We
affirm.
I
BACKGROUND
Between January 2001 and November 2002, Raphael Tejada,
a cooperating witness for the United States Drug Enforcement Agency
(DEA), made a series of controlled cocaine purchases from Salvatore
(“Rudy”) and Anthony (“Tony”) Carrillo (“the Carrillos”), as well
as their confederate underlings. The Carrillos utilized cell
phones and pagers purchased from Portalla’s cell phone store to
facilitate the drug sales, many of which occurred at the Carrillos’
residences or from their vehicles. In order to thwart police
detection of the Carrillos’ drug activities, Portalla arranged that
the Carrillos purchase the phones under fake names, and advised
them to discard and replace the phones (or the phones’ SIM – or
“security identity module” – cards) every month, prior to the end
of the first billing cycle. Portalla referred to these as
“throwaway phones”.1
1
In June 2002, Portalla also sold a series of throwaway phones
to Rick Adams. Adams met Tony Carrillo during his visits to
Portalla’s store, where the three men openly discussed the
Carrillos’ drug business. Portalla acted as the “middleman” when
Tony Carrillo decided to sell his Chelsea cell phone store to
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Morever, Portalla provided other services to the
Carrillos. For example, he had kept the books for a pool hall
operated by the Carrillos, which was a center of their drug
trafficking activities. On several occasions, Portalla also
provided the Carrillos and their drug confederates with documents,
such as W-2 forms, which falsely stated that they were employed by
his company Wakefield Communications. The false documents enabled
the drug conspirators to purchase expensive houses and luxury
automobiles, from which they conducted their drug trafficking
activities.
In November 2002, Jill Parker, a confederate of the
Carrillos, told Tejada that he could obtain cell phones from
Portalla at Wakefield Communications, and provided Tejada with a
signed note to give to Portalla, which read: “Sent over.” In
January 2003, the DEA dispatched Tejada, equipped with a concealed
recording device, to the Portalla store to purchase cell phones.
When Tejada told Portalla that he had been referred by Jill Parker,
Portalla immediately asserted that Tejada would need to purchase
“throwaway” phones issued in fake names. Tejada told Portalla that
he would come back another time to buy the phones. A week later,
Tejada returned to the Portalla store, accompanied by undercover
DEA agent Joao Monteiro posing as a drug dealer in need of cell
Adams, and Portalla advised Adams how to provide throwaway phones
to his customers.
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phones. During a recorded conversation, Portalla again described
the advantages of throwaway phones, particularly their capacity to
confound law enforcement detection. Portalla informed Monteiro
that he had provided similar services to the Carrillos. On January
21 and 30, Monteiro purchased four cell phones from Portalla, under
false names, for $600.
In February 2003, DEA agents arrested the Carrillos and
their drug confederates, and seized cell phones and pagers
purchased from Portalla. The agents arrested Portalla, then
searched his store, where they seized documents related to the
sales of cell phones to the Carrillos and Monteiro, as well as the
false employment documents Portalla had provided to the Carrillos
and their confederates to enable their purchases of houses and
automobiles.
Portalla was indicted on one count of conspiring to
distribute cocaine, 21 U.S.C. § 846, and ten counts of money
laundering, 18 U.S.C. § 1956. The jury found Portalla guilty on
the conspiracy count, as well as two money laundering counts. In
due course, the district court imposed a 120-month prison term.
Portalla now appeals from the judgment of conviction.
II
DISCUSSION
A. The Conspiracy Count
Portalla first contends that the government adduced
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insufficient evidence to support the Count 1 conviction for
conspiring to distribute cocaine. See 21 U.S.C. § 846. We review
sufficiency-of-the-evidence challenges de novo, viewing all
evidence, credibility determinations, and reasonable inferences
therefrom in the light most favorable to the verdict, in order to
determine whether the jury rationally could have found that the
government established each element of the charged offense beyond
a reasonable doubt. United States v. Ossai, 485 F.3d 25, 30 (1st
Cir. 2007).
In order to establish the crime of conspiracy, the
government must prove the existence of a conspiracy, the
defendant's knowledge of the conspiracy, and the defendant's
knowing and voluntary participation in the conspiracy. United
States v. Ortiz, 447 F.3d 28, 32 (1st Cir. 2007). The third
“participation” element, the only one Portalla challenges on
appeal, requires that the government establish Portalla’s intention
to join the conspiracy and to effectuate the objects of the
conspiracy. United States v. Lizardo, 445 F.3d 73, 81 (1st Cir.),
cert. denied, 127 S. Ct. 524 (2006). The intention to conspire
need not be express, but may be shown by circumstantial evidence.
Id.Portalla contends that the circumstantial evidence
against him failed to support a reasonable inference that he
intended either to agree to the Carrillos’ drug conspiracy or to
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advance its illicit goals. Instead, he argues, the evidence
adduced demonstrated that he was “merely indifferent” or of
peripheral significance to the success or failure of the
conspiracy. These claims are meritless.
The appeal essentially rests on Portalla's faulty
assertions that, when viewed in isolation, particular items of
government evidence (e.g., the fact that Portalla had agreed to put
one phone in Tony Carrillo’s longtime girlfriend’s name, not in a
false name which would frustrate law enforcement discovery), was
insufficiently probative of Portalla's decision to participate in
the Carrillo conspiracy, or in the alternative, that the jury
improperly ignored or discounted other evidence (e.g., the Portalla
statements that he had advised the Carrillos to “go legit,” or “let
me stay far away. I don’t want nothing to do with [the drug
dealing]”) which would tend to demonstrate that he decided not to
become a conspirator. “[J]uries are not required to examine the
evidence in isolation, for individual pieces of evidence,
insufficient in themselves to prove a point, may in cumulation
prove it. The sum of an evidentiary presentation may well be
greater than its constituent parts.” United States v. Downs-Moses,
329 F.3d 253, 261 (1st Cir. 2003) (quoting Bourjaily v. United
States, 483 U.S. 171, 179-80 (1987)). So it is here.
The government adduced evidence that Portalla knowingly
facilitated the Carrillo conspiracy on several occasions by
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providing them with false employment credentials in order to enable
purchases of expensive residences and vehicles, which served the
Carrillos’ drug trafficking enterprise. Portalla’s false
information enabled the Carrillos to conceal the fact that the bulk
of their income derived from illegal drug trafficking. In November
2002, Jill Parker expressly referred Tejada to Portalla as one from
whom Tejada could acquire cell phones for use in drug trafficking,
advising Tejada to tell Portalla that Parker had sent him. When
Tejada contacted Portalla and mentioned Parker, Portalla readily
volunteered to supply Tejada with cell phones under a fake name,
and advised Tejada simply to use and discard the phones after a
month and acquire a new phone under yet another false name.
Subsequently, Portalla made similar statements and proposals to
Monteiro, noting that he frequently helped the Carrillos to utilize
fake names to frustrate law enforcement detection. “[W]e require
jurors neither ‘to divorce themselves from their common sense, nor
to abandon the dictates of mature experience.’” United States v.
Morillo, 158 F.3d 18, 22 (1st Cir. 1998) (citation omitted). The
cumulative evidentiary weight of these circumstances amply
supported a finding that Portalla knowingly and voluntarily decided
to participate in the Carrillos’ drug conspiracy and to effectuate
its goals.
The Portalla effort to circumvent the jury's common-sense
determination is utterly unpersuasive. Although neither Portalla’s
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mere association with the Carrillos nor his mere presence during
their drug conspiracy would suffice to establish knowing and
voluntary participation in the conspiracy, see Ortiz, 447 F.3d at
32, the mere fortuity that Portalla himself did not sell the drugs,
did not exercise a leadership position within the conspiracy, and
as the provider of “peripheral” services (viz., the provision of
cell phones designed to elude law enforcement detection) was
unaware of many details of the Carrillos’ drug business, would not
foreclose a reasonable jury from convicting him as a coconspirator.
See United States v. Rodriguez-Ortiz, 455 F.3d 18, 22-23 (1st Cir.
2006) (noting that each coconspirator need not know of nor have
contact with all other members, nor know all the details of the
conspiracy or participate in each act in furtherance of it), cert.
denied, 127 S. Ct. 1010 (2007); see also U.S. Sentencing Guidelines
Manual § 3B1.1 (providing for a sentencing enhancement for
defendant’s exercise of authority or control over coconspirators).
In addition to the sale of illicit drugs, another obvious
goal of the Carrillo conspiracy was the avoidance of police
detection. See United States v. Love, 336 F.3d 643, 645 (7th Cir.
2003) (“[D]rug dealers often conceal the ownership of their cell
phones.”). In this regard, the evidence supports a reasonable
inference that Portalla knew he was helping the Carrillos conceal
the ownership of the cell phones which were essential tools of
their drug trade. See, e.g., Rodriguez-Ortiz, 455 F.3d at 21-23
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(holding that defendant's procurement of cell phones for drug
coconspirators constituted sufficient evidence that defendant had
joined drug conspiracy).
Portalla argues that the government simply proved that he
put one phone in the name of Tony Carrillo’s longtime girlfriend
(viz., not a fake name), notes that Carrillo once refused
Portalla’s offer to sell him a cell phone under a fake name, and
emphasizes that the police seized no physical evidence at his store
to establish that the phones he sold to the Carrillos and their
confederates were “throwaway” cell phones. However, these
assertions not only misrepresent the trial record but discount the
appellate standard of review. In his pre- and post-arrest
statements, Portalla admitted that he had supplied “throwaway” cell
phones to drug dealers, and provided the Carrillos and their
confederates with several cell phones, thus inviting the
reasonable, non-speculative inference that the several cell phones
Portalla sold to his coconspirators were also “throwaways.” See
Ossai, 485 F.3d at 30 (noting that all reasonable inferences from
the evidence are to be construed in favor of jury verdict).
Portalla further contends that he was “merely
indifferent” to the success of the Carrillo conspiracy because he
would have sold a “throwaway” cell phone to anyone, not only drug
dealers, and indeed he had done so on occasion to persons with poor
credit. See United States v. Benevides, 985 F.2d 629, 634 (1st
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Cir. 1993) (“A conspiracy conviction will not be sustained if the
government's evidence shows that a defendant ‘was indifferent to
the [conspiracy's] outcome altogether.’”) (citation omitted).
Whatever Portalla’s motives for particular phone sales to other
customers, however, the fact remains that Portalla sold cell phones
to the Carrillo conspirators for the express purpose of enabling
them to avoid police detection of their drug trafficking, and his
intent to foster the Carrillo conspiracy is corroborated by his
decision to provide the Carrillos and their confederates with
admittedly false employment credentials. See United States v.
Garcia-Torres, 280 F.3d 1, 4 (1st Cir. 2002) (noting that the
provider of even a “peripheral service” can be held liable as a
coconspirator where “he knew both that the drug conspiracy existed
and that the peripheral service being furnished was designed to
foster the conspiracy”).
Portalla points to evidence that arguably implies that he
affirmatively determined not to participate in the Carrillo
conspiracy, such as his statements that he had once advised the
Carrillos to “go legit,” or “let me stay far away. I don’t want
nothing to do with [the drug dealing].” First, whether Portalla
in fact made these statements to the Carrillos plainly constituted
a credibility determination for the jury. See United States v.
Edelkind, 467 F.3d 791, 793 (1st Cir. 2006), cert. denied, 127 S.
Ct. 1921 (2007). Second, neither statement is necessarily or
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inherently exonerative. The latter statement, for example, might
not connote Portalla’s desire to refrain from participation in the
drug conspiracy, but merely Portalla's desire that the Carrillos do
their utmost to conceal his participation in it. “‘Neither juries
nor judges are required to divorce themselves of common sense,’
where, as here, the appellant[s'] portrayal of himself as an
innocent bystander[] is ‘inherently unbelievable.’” United States
v. Cuevas-Esquival, 905 F.2d 510, 515 (1st Cir. 1990) (citations
omitted).
Finally, Portalla’s citation to cases such as United
States v. Aponte, 905 F.2d 491 (1st Cir. 1990), is unavailing. In
Aponte, for example, we found insufficient evidence to support a
conspiracy conviction where the defendant asked to join in the
conspiracy, but was refused, then introduced the conspirators to
another person who joined the conspiracy. Id. at 491. We
concluded that, despite defendant’s act of introducing another
potential coconspirator to the conspiracy, the conspirators’
refusal to allow defendant to participate in the conspiracy
necessarily rendered him “indifferent” because it prevented him
from having any stake in the conspiracy’s outcome. Id. By
contrast, here the government adduced evidence that Portalla was
eagerly accepted into the Carrillo conspiracy, and repeatedly
provided it with services essential to its success. We therefore
affirm Portalla’s conspiracy conviction pursuant to 21 U.S.C. §
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846.
B. The Money Laundering Counts
Portalla maintains that the government adduced
insufficient evidence to support his conviction under the two
money-laundering counts because Monteiro never told him that the
$600 that he used to purchase the four throwaway cell phones
constituted drug proceeds, nor was that sum of money sufficient to
infer any such an illegal provenance. See 18 U.S.C. § 1956(a)
(requiring that the government prove, inter alia, that the property
used in the money-laundering transaction be represented as drug
proceeds). We disagree.
The government need not establish that Monteiro expressly
stated that the $600 constituted drug proceeds, provided that the
totality of the circumstances, as revealed by all the evidence,
would lead a reasonable person to draw that conclusion. See United
States v. Castellini, 392 F.3d 35, 46 (1st Cir. 2004); United
States v. Kaufmann, 985 F.2d 884, 893 (7th Cir. 1993). Monteiro
presented himself to Portalla as a drug dealer, expressed his
interest in purchasing “throwaway” phones under false names,
boasted that he could afford courtside seats for the Celtics, and
expressly admitted to Portalla that he had considered laundering
money through the Carrillos’ pool hall. Under these circumstances,
the jury rationally could find that Portalla reasonably would have
inferred that Monteiro was plowing his illicit drug profits back
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into his drug business. Cf. id. at 893-94 (finding sufficient
evidence on “representation” element where car buyer stated he was
a drug dealer, and that he wanted to buy the car with cash, using
a false name). We accordingly affirm Portalla’s money-laundering
convictions pursuant to 18 U.S.C. § 1956(a).
Affirmed.
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