United States v. Foreste ( 2018 )

17-1800
United States v. Foreste
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 24th day of September, two thousand eighteen.
PRESENT:
JOHN M. WALKER, JR.,
DENNIS JACOBS,
ROSEMARY S. POOLER,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
-v.- 17-1800
MICHAEL J. FORESTE, AKA BEAST,
Defendant-Appellant.
__________________________________
FOR DEFENDANT-APPELLANT: Peter F. Langrock, Langrock
Sperry & Wool, LLP, Middlebury,
VT.
FOR APPELLEE: Gregory L. Waples (with Eugenia
A.P. Cowles, on the brief),
Assistant United States
Attorneys, for Christina E.
Nolan, United States Attorney
for the District of Vermont,
Burlington, VT.
Appeal from a judgment of the United States District
Court for the District of Vermont (Sessions, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is
AFFIRMED.
Michael J. Foreste appeals from a judgment of
conviction entered against him by the United States
District Court for the District of Vermont (Sessions, J.).
On October 13, 2016, a jury convicted Foreste on one count
of conspiring to distribute oxycodone in violation of
21 U.S.C. § 846; seven counts of distribution of oxycodone
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C);
and two counts of money laundering in violation of
18 U.S.C. § 1956(a)(1)(A)(i). Foreste was sentenced on May
22, 2017 to 110 months’ imprisonment and three-years’
supervised release. He challenges the sufficiency of the
evidence supporting each count of conviction. He also
argues that the Government violated a May 2013 plea
agreement by charging him with conspiracy. We assume the
parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.
1. We review a sufficiency challenge de novo. United
States v. Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010).
A criminal conviction must be affirmed if “any rational
trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979). We “review all of the evidence
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presented at trial in the light most favorable to the
government, crediting every inference that the jury might
have drawn in favor of the government.” United States v.
Walker, 191 F.3d 326, 333 (2d Cir. 1999) (internal
quotation marks omitted).
We conclude that the jury was presented with sufficient
evidence from which it could have rationally found that
Foreste was a member of a drug distribution conspiracy and
committed the substantive counts of drug distribution and
money laundering.
As to the conspiracy to distribute oxycodone, Foreste
argues that his only participation was as a buyer/seller.
The “typical buy-sell scenario” involves “a casual sale
of small quantities of drugs,” which, without more, cannot
establish a conspiracy to distribute because there is no
separate criminal object. United States v. Medina, 944 F.2d
60, 65 (2d Cir. 1991). However, where “there is advanced
planning among the alleged co-conspirators to deal in
wholesale quantities of drugs obviously not intended for
personal use,” then “the participants in the transaction
may be presumed to know that they are part of a broader
conspiracy.” Id. at 65–66. Additional circumstances that
support an inference of conspiracy include “prolonged
cooperation between the parties, a level of mutual trust,
standardized dealings, [and] sales on credit.” United
States v. Hawkins, 547 F.3d 66, 71 (2d Cir. 2008) (internal
quotation marks).
The Government presented sufficient evidence from which
a rational juror could have found that Foreste participated
in the conspiracy, and not merely as a buyer/seller.
Foreste purchased oxycodone pills from his supplier, Andre
Clarke, on a monthly basis over the period 2008 through
2014, and in wholesale quantities typically between 150 and
240 pills. Foreste then sold these pills to his own
customers in Vermont, in quantities typically ranging from
30 to 100 pills. At least one of Foreste’s customers re-
sold the drugs bought from Foreste. Foreste sometimes
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purchased the pills from Clarke on credit and also sold
pills to his own customers on credit. This is sufficient
evidence from which the jury could reasonably have found
that Foreste was not merely a buyer/seller but knowingly
participated in a conspiracy to distribute oxycodone in
Vermont.
As to the substantive counts of drug distribution,
Foreste argues that there is insufficient evidence to
sustain the jury’s finding that he distributed drugs on the
specific dates identified in each of the counts of
conviction.1 Foreste cites testimony by his girlfriend,
Suten Outar, that Foreste sometimes sent packages to his
customers in Vermont that did not contain any oxycodone
pills. Foreste argues that there was therefore
insufficient evidence from which the jury could reasonably
have found beyond a reasonable doubt that the packages sent
on the dates for which he was indicted for distribution
actually contained oxycodone.
Seven packages were sent on or near the dates alleged
in the indictment. Outar testified that the label on each
was in her handwriting or in Foreste’s. All seven packages
were sent via Express Mail, and Outar testified that
Foreste used regular mail for the decoy packages that
contained no oxycodone and sent the packages containing
oxycodone overnight via Express Mail. Six of the seven
packages also bore fake sender information. Bank records
showed that large cash deposits were made into Foreste’s
account in Vermont within two weeks of the date each of the
packages were sent. Based on this evidence, a rational
juror could have inferred beyond a reasonable doubt that
the packages sent by Foreste on each of those dates
contained oxycodone.
1 The Fourth Superseding Indictment charged Foreste with
eight counts of drug distribution, with each count
corresponding to a specific date or range of dates. App’x
59-65.
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As to the money laundering counts, Foreste argues that
there was insufficient evidence to sustain the jury’s
finding that the funds deposited into Foreste’s account on
November 18, 2013 and January 30, 2014 were the proceeds of
drug sales.
For the period in which these deposits were made,
Foreste had no job, and reported no income to the I.R.S.
Clarke testified that Foreste sometimes got paid by his
oxycodone customers in Vermont through bank deposits.
Dennis Hackney, one of Foreste’s oxycodone customers in
Vermont, was directed by Foreste via text message to
deposit money into Foreste’s account, and Hackney was seen
on a surveillance video making a deposit into an account at
Foreste’s Vermont bank on January 30, 2014. Foreste also
instructed Hackney via text message to make a deposit into
his account in the days before the November 18, 2013
deposit. This is sufficient evidence from which a rational
juror could find that the money deposited in Foreste’s
account was the proceeds from sales of oxycodone.
2. Foreste argues his prosecution for conspiracy was
foreclosed by a plea agreement entered into in May 2013,
which resolved a prior charge for possession with intent to
distribute oxycodone.
“We review interpretations of plea agreements de novo
and in accordance with principles of contract law.” United
States v. Riera, 298 F.3d 128, 133 (2d Cir. 2002). “To
determine whether a plea agreement has been breached, we
look to the reasonable understanding of the parties as to
the terms of the agreement.” Id.
The plea agreement at issue states, in relevant part:
The United States agrees that in the event
that MICHAEL FORESTE fully and completely abides
by all conditions of this agreement, the United
States will:
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a. not prosecute him in the District of
Vermont for any other criminal offenses known
to the United States as of the date it signs
this plea agreement, committed by him in the
District of Vermont relative to his possession
with the intent to distribute oxycodone.
Gov’t App’x 3-4.
Foreste asserts that the Government knew that he
participated in a conspiracy to distribute oxycodone prior
to the date it signed the plea agreement, and therefore it
was barred from prosecuting him for that conspiracy in this
case.
The Government was not bound by its promise not to
prosecute Foreste because Foreste breached the provision of
the plea agreement that barred Foreste from committing
crimes:
If the United States determines, in its sole
discretion, that MICHAEL FORESTE has committed any
offense after the date of this agreement, has
violated any condition of release, or has provided
any intentionally false information to Probation,
the obligations of the United States in this
agreement will be void. The United States will
have the right to recommend that the Court impose
any sentence authorized by law and will have the
right to prosecute him for any other offenses he
may have committed in the District of Vermont.
Gov’t App’x 4. In 2016, Foreste was charged by a grand
jury with criminal acts that occurred after the May 2013
plea agreement, including distribution of oxycodone in
2014, and money laundering in November 2013 and January
2014--and he was convicted by a jury of some of these
counts. Foreste’s breach of the plea agreement relieved
the Government of its obligation not to prosecute him, even
for acts of which they already had knowledge. See United
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States v. Gregory, 245 F.3d 160, 164 (2d Cir. 2001) (“The
Government’s determination that [the defendant] had
committed a crime and thus breached the cooperation
agreement was not premised on bad faith, invidiousness,
dishonesty, or unconstitutional considerations [and] [t]he
Government was thus justified in voiding [the defendant’s]
cooperation agreement.” (internal quotation marks and
citations omitted)).
We have considered the defendant’s remaining arguments
and find them to be without merit. For the foregoing
reasons, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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