Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals For the First Circuit

No. 01-2439

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT CAREY, A/K/A "POPS,"

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, United States District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Bownes, Senior Circuit Judge.

Thea A. Stewart for appellant. John A. Wortmann, Jr., Assistant United States Attorney, with whom Michael Sullivan, United States Attorney, was on brief for appellee.

February 14, 2003 BOWNES, Senior Circuit Judge. Defendant-Appellant Robert

Carey ("Carey") appeals from his conviction and subsequent

sentencing in the United States District Court for the District of

Massachusetts. Count One charged Carey along with Chamond

Henderson ("Henderson") and Kimberly Powers ("Powers") with

conspiring to possess with intent to distribute more than 50 grams

of crack cocaine in violation of

Carey,

Henderson, and Powers were also charged in Count Five with

possessing crack cocaine with intent to distribute it and with

distribution in violation of

(a)(1) and

.

Carey and Henderson were tried jointly. Both were

convicted and appealed separately. Henderson's appeal is also

before us, and is the subject of a separate opinion. See United

States v. Henderson, No. 01-2392. Powers entered into a plea

bargain with the government and testified at the trial.

I. THE EVIDENCE

In October 1998, the Drug Enforcement Administration

("DEA") began an investigation into crack cocaine trafficking in

Worcester, Massachusetts. Special Agents Timothy Anderson and

Robert Guerard of the DEA used Joseph Mozynski ("Mozynski"), a

1 Grams and ounces are used interchangeably throughout this opinion. It should be noted that one ounce equals 28.35 grams. See United States Sentencing Commission, Guidelines Manual, § 2D1.1, comments. (n.11) (Nov. 2002).

-2- known crack cocaine user, to serve as a cooperating witness.

Mozynski made four purchases of significant quantities of crack

cocaine during the investigation. The DEA wired Mozynski with a

concealed monitoring device that enabled agents to tape record the

drug transactions. The first of these drug transactions occurred

at Carey's house on 6 Denny Street. The subsequent transactions

originated at Carey's house but were completed at various locations

within a two-block radius.

During the first transaction, on October 19, 1998,

Mozynski purchased 23.7 grams of crack cocaine from co-defendant

Henderson at Carey's house. Prior to October 19, Carey told

Mozynski that all he needed was "24 hours notice to get the deal

done." Mozynski and Carey agreed that Mozynski would pay $1,200

for 25 grams of crack cocaine, with Carey getting $200 for

facilitating the deal, and that Mozynski would pick up the crack

cocaine at Carey's residence. On October 19, Mozynski entered

Carey's house and met with Carey, co-defendant Powers, and a woman

named Lynn Cappulett. Carey paged Henderson after Mozynski showed

Powers the $1,200. When Henderson called, Carey answered and

handed the phone to Powers. Powers told Henderson that Mozynski

was there with the money, and then informed Mozynski that Henderson

would arrive within five minutes. Henderson called one minute

later, and Carey again answered the phone and gave it to Powers.

Carey also told Mozynski that he wanted his $200 for setting up the

-3- deal. Shortly thereafter, Henderson arrived at Carey's residence.

Henderson, Mozynski, and Powers went into a bedroom where Henderson

gave Mozynski 23.7 grams of crack cocaine in exchange for $1,200.

Henderson and Mozynski discussed doing larger deals in the future,

and Henderson told Mozynski to contact him through Powers. Carey

later became angry because he did not get the $200 he expected to

receive from the drug deal. Carey told Powers that he was upset

because he had been cut out of the deal and lost money as a result.

On October 27, 1998, Mozynski met Powers at Carey's

residence. Carey told Powers "I don't want nobody around here,"

and "[i]ts got nothing to do with me and you know it." Mozysnki

and Powers left Carey's house and successfully conducted a drug

transaction with Henderson in the basement of Henderson's apartment

building. On November 3, 1998, Mozysnki again met Powers at

Carey's house, but left to conclude a drug transaction with

Henderson in the basement of his apartment.2

On November 16, 1988, Mozynski met with Carey and Powers

at Carey's house. Thereafter, Powers and Mozynski left the house

and conducted another drug transaction with Henderson at a

different location, except this time Henderson sold them wax. Once

the agents realized that Henderson had sold wax rather than crack

cocaine, they directed Mozynski to contact Henderson. Mozynski

2 For a more detailed account of the October 27, and November 3, 1998, transactions, see Henderson, No. 01-2392.

-4- unsuccessfully attempted to contact Henderson and Powers, and then

called Carey. Carey agreed to call Henderson to "find out what

happened." After waiting to get a response by phone, the agents

instructed Mozynski to go to Carey's residence in order to talk to

Carey directly.

Mozynski went to Carey's residence three separate times

to speak with Carey. Thereafter, Carey tried to arrange the

delivery of crack cocaine from Henderson. Carey called Henderson

on the phone so that Mozynski and Henderson could further discuss

Henderson's delivery of the crack cocaine to Agent Guerard. Carey

even provided Mozynski with Henderson's pager number, which

Mozynski subsequently gave to Agent Guerard. Agent Guerard paged

Henderson, who returned the page and promised to deliver one ounce

of crack cocaine on the following day, and two-and-one-half ounces

on the day after that. On November 17, 1998, Mozynski arranged

with Henderson, through Powers, to receive the one ounce of crack

cocaine promised by Henderson to Agent Guerard. Mozynski met

Powers on Goulding Street in Worcester, two blocks away from

Henderson's apartment building. Henderson gave a package

containing 19.68 grams of crack cocaine to Powers and Powers then

gave the crack cocaine to Mozynski.

Additional evidence relevant to Carey included testimony

at trial by Powers that she saw Carey sell crack cocaine "hundreds

of times" and that his supplier was Henderson. Powers said that

-5- she saw Carey purchase crack cocaine from Henderson at least one

hundred times, and that Carey either used the crack cocaine himself

or resold it to his own customers. Powers further testified that

both she and Carey sold crack cocaine out of Carey's residence.

There was other evidence of Carey's drug sales. Mozynski

testified that he purchased crack cocaine from Carey on a separate

occasion in early October 1998. A recorded conversation between

Carey and Mozynski at Carey's house included a statement by a third

person asking Carey for $20 worth of crack cocaine. At the time of

Carey's arrest, agents seized quantities of crack cocaine and more

than $1,000 cash from Carey's house.

II. THE ISSUES

A. Sufficiency of the Evidence

1. Testimony of Powers and Mozynski

Carey argues that the government's evidence was

insufficient to support the jury verdict against him for conspiracy

to distribute crack cocaine and for aiding and abetting the

distribution of crack cocaine. In considering Carey's sufficiency

claims, we must "view the evidence, together with all reasonable

inferences that may be drawn therefrom, in the light most favorable

to the government" and consider whether a rational fact finder

could have found guilt beyond a reasonable doubt. United States v.

Loder,

(1st Cir. 1994) (internal quotations

-6- omitted). We review "the totality of the evidence, both direct and

circumstantial." United States v. Czubinski,

(1st Cir. 1997). All issues of credibility must be resolved in

favor of the verdict. United States v. Nueva,

(1st Cir. 1992).

To prove conspiracy in a criminal case, the government

must demonstrate beyond a reasonable doubt that an agreement

existed to commit the underlying substantive offense, that the

defendant knew of the agreement, and that he opted to join the

conspiracy with the intention that the substantive offense be

committed. See United States v. Barnes,

(1st

Cir. 2001). To convict Carey of the conspiracy charge, the

government had to prove beyond a reasonable doubt that Carey

intended to agree and intended that crack cocaine be possessed and

distributed. See United States v. Cruz,

(1st

Cir. 1992). "The agreement may be express or tacit and may be

proved by direct or circumstantial evidence." United States v.

Sepulveda,

(1st Cir. 1993).

Carey argues that there was no reliable evidence showing

any agreement on his part to enter into a conspiracy to distribute

crack cocaine. Specifically, he contends that the testimony of

Powers and Mozynski was "inherently unreliable," and failed to

establish his participation in the conspiracy. We disagree.

-7- This circuit has held that "[u]ncorroborated testimony of

a cooperating accomplice may sustain a conviction so long as that

testimony is not facially incredible." United States v. Torres-

Galindo,

(1st Cir. 2000). The testimony of

Powers and Mozynski was not only corroborated and credible, but

also established Carey's participation in the conspiracy. Each

witness' testimony about Carey's involvement in the drug deals was

corroborated by the fact that the first deal took place at Carey's

house; the fact that crack cocaine and cash were found in Carey's

home at the time of his arrest; and the fact that Carey made

incriminating statements which were recorded throughout the

investigation. In addition, while Powers and Mozynski had

questionable backgrounds that called their credibility into

question, those issues were aired before the jury throughout the

trial. The jury also was instructed that it was to assess the

credibility of the witnesses in reaching a verdict of guilt beyond

a reasonable doubt.

Powers' and Mozynski's testimony further demonstrated

Carey's participation in the conspiracy. Their testimony showed

that Carey initiated the drug relationship between Mozynski and the

other members of the conspiracy. Carey agreed to sell Mozynski

crack cocaine that he would be getting from Henderson prior to

being cut out of the deal. Powers' testimony further demonstrated

that Carey distributed crack cocaine from his house throughout the

-8- period of the conspiracy, and that he made more than one hundred

crack cocaine purchases from Henderson. Mozynski additionally

testified that he had purchased crack cocaine from Carey the week

before the first charged sale. Given the sufficiency of Powers'

and Mozynski's testimony, a rational trier of fact could find guilt

beyond a reasonable doubt.

Finally, Carey asserts that Powers' and Mozynski's

testimony did not support a conviction for aiding and abetting in

the distribution of crack cocaine. See

(a);

. We observe, however, that the identical circumstantial

and credibility assessments which permitted the jury to determine

that Carey conspired with Henderson to possess crack cocaine for

distribution suffice as well to establish, beyond a reasonable

doubt, that Carey consciously sought to distribute the crack

cocaine. See United States v. Arias,

(1st Cir.

2001).

2. Tape Recordings

We also disagree with Carey's claim that the tape

recordings did not provide additional evidence in support of his

conviction. Although it is not clear from his brief, the gist of

Carey's argument appears to be that the tape recordings did not

constitute evidence against him because they were either inaudible,

or, in the alternative, actually exculpatory. Carey contends that

the tape recordings were "all somewhat inaudible" and "difficult to

-9- hear," yet in the same breath argues that they somehow show that

"the defendant did not want any part of the transactions."

In any event, we do not find the statements he allegedly

made on the recordings exculpatory. Carey believes those comments

-- "I don't want nobody around here" and "It's got nothing to do

with me and you know it" -- indicate that he had no desire to

participate in the conspiracy. Be that as it may, his reliance on

these remarks is misplaced because they do not constitute a legally

sufficient withdrawal from the conspiracy. Cf. United States v.

Juodakis,

(1st Cir. 1987) ("[T]o withdraw, a

conspirator must act affirmatively either to defeat or disavow the

purposes of the conspiracy"); United States v. Dunn,

(1st Cir. 1985) (mere disagreement with co-conspirators is

insufficient to constitute withdrawal from conspiracy). At best,

Carey's statements constituted some evidence from which the jury

could have found that he never joined the conspiracy in the first

instance. Carey argued as much to the jurors, and they ultimately

rejected this argument.

Carey also attacks the transcripts of the tape

recordings the government provided the jury at the trial. As he

would have it, the transcripts should have not been considered as

evidence to support a conviction because they were the government's

"interpretation" of the tapes. Carey overlooks the fact that even

if it mattered who "interpreted" the recordings, the transcripts

-10- are not evidence. See United States v. Richman,

(1st Cir. 1979). The district court, sensitive to this issue, gave

a cautionary instruction to the jury explaining that "if what you

hear on the tape itself is different from what shows up on the

transcript, it's the tape that's the evidence, not the

transcripts." Thus, we are satisfied that the transcripts were

properly utilized by the court.

3. Carey's Absence

Carey further argues that his absence during the drug

deals indicated that he did not participate in the conspiracy. The

record, however, supports a finding of the opposite. We have said

that "proof of direct participation in the sale of drugs is not

required to convict in a drug conspiracy case." United States v.

Marrero-Ortiz,

(1st Cir. 1998). Here, there was

sufficient evidence from which a rational juror could find that

Carey conspired with Henderson and Powers to distribute crack

cocaine: Carey had initially set up the October 19, 1998 deal and

had repeatedly demanded that he be paid for doing so; he first

contacted Henderson about the possibility of selling ounce

quantities of crack cocaine to Mozynski; he told Mozynski that "all

he needed was 24 hours notice to get the deal done"; he allowed his

house to be used for the October 19, 1998 deal; and he facilitated

the delivery of the crack cocaine on November 17 in order to avoid

-11- a dispute between Henderson and Mozynski over the fraudulent sale

of wax.

Carey's involvement in the distribution of crack cocaine

was also corroborated by the following evidence: the November 16,

1998, tape recording where a third party was heard asking Carey for

crack cocaine; the crack cocaine and cash found in his house at the

time of his arrest; the intimate knowledge he displayed of

Henderson's trafficking activities during his taped conversation

with Mozynski on November 16; the awareness he displayed of other

drug transactions throughout the investigation; and Powers'

testimony that she saw Carey buy crack cocaine from Henderson

hundreds of times and that Carey resold it to his own customers.

In sum, based on the record, we conclude that there was

sufficient evidence for a jury to find Carey guilty beyond a

reasonable doubt.

B. Co-Conspirators' Hearsay Declarations

Carey argues that the trial court erred by improperly

admitting co-conspirator statements into evidence because there was

no evidence of a conspiracy. The court reviews a trial court's

determination that statements were co-conspirator statements

admissible pursuant to Fed. R. Evid. 801(d)(2)(E) under the clear

error standard. See United States v. Marino,

(1st

Cir. 2002). A statement offered against a party is not hearsay if

it is "a statement by a co-conspirator of a party during the course

-12- and in furtherance of the conspiracy." Fed. R. Evid. 801(d)(2)(E).

Statements of co-conspirators are admissible under Rule

801(d)(2)(E) only if the trial court finds it "more likely than not

that the declarant and the defendant were members of a conspiracy

. . . and that the statement was in furtherance of the conspiracy."

United States v. Petrozziello,

(1st Cir. 1977).

District courts frequently allow co-conspirator statements to be

admitted provisionally, subject to the trial court's final

Petrozziello determination, which should be made "at the close of

all the evidence" and "out of the hearing of the jury." United

States v. Ciampaglia,

(1st Cir. 1980).

At the close of evidence during the trial, Carey argued

for the exclusion of the co-conspirators' hearsay statements,

reiterating his claim that the testimony of Mozynski and Powers was

inherently unreliable, and therefore should be excluded. As we

have already discussed, each witness testified that Carey was

involved in the distribution of crack cocaine and assisted in

setting up the first sale on October 19. This testimony was

corroborated by other evidence. In light of this evidence, the

district court properly admitted the co-conspirator statements.

C. The Prosecutor's Closing Argument

Carey relies exclusively on the identical, and ultimately

unavailing, claims raised by co-defendant Henderson alleging that

the government's closing argument improperly persuaded the jury to

-13- convict. We need not address these arguments here because we have

considered, and rejected, them in his co-defendant's companion

case. See Henderson, No. 01-2392.

D. The Amount of Crack Cocaine

We review factual findings by the sentencing court as to

drug quantity only for clear error. See Sepulveda,

. The sentencing court has broad discretion to determine what

information is "sufficiently dependable to be used in imposing

sentence." United States v. Tardiff,

(1st Cir.

1992). Because of the impact of quantity on the length of

sentence, the sentencing court must "err on the side of caution."

United States v. Sklar,

(1st Cir. 1990). But if

the record permits more than one plausible alternative, the

district court's choice between them cannot be deemed "clearly

erroneous." United States v. Diaz-Villafane,

(1st

Cir. 1989).

A defendant convicted of conspiracy to distribute

controlled substances is not automatically burdened with the total

weight of the drugs involved in the conspiracy. See Sepulveda,

. The defendant, instead, is responsible for all drugs

he personally handled or he anticipated handling, and for drugs

involved in additional acts that were reasonably foreseeable by the

defendant and were committed in furtherance of the conspiracy.

Hence, the touchstone for drug weight calculations is

-14- foreseeability. See United States v. Innamorati,

(1st Cir. 1993). Foreseeability is an inherently fact-bound

determination, and requires a sentencing court to make an

individualized inquiry into the details of the conspiracy known by

the defendant, including his understanding of the object of the

conspiracy and its foreseeable scope. See United States v.

O'Campo,

, 1026 n.11 (1st Cir. 1992).

Based on the presentence report ("PSR"), the district

court included the 19.68 grams from the November 17 transaction

(which forms the basis of Carey's substantive charge) and the 23.7

grams from the October 19, 1998 transaction (for which Carey was

not substantively charged) in its determination that Carey was

responsible for 43.38 grams of crack cocaine. Under the Sentencing

Guidelines, a defendant has a Base Offense Level of 30 when he his

responsible for "at least 35 grams but less than 50 Grams of

Cocaine Base." U.S.S.G. § 2D1.1 (c)

Carey attacks his sentence by first arguing that a

discrepancy exists between the jury's finding that he was

responsible for between 5 and 50 grams of crack cocaine and the

fact that he was charged only with the distribution of 19.68 grams

of crack cocaine for the transaction on November 17, 1998. We fail

to see any discrepancy.

Carey also claims that because he was substantively

charged for only one of the four transactions (the distribution of

-15- 19.68 grams on November 17), the district court should not have

used cocaine quantities from the October 19 transaction in

calculating his sentence. He further argues that the jury did not

find him guilty of the October 19 transaction. As we have done in

the past, we reject this argument. See United States v. Amirault,

(1st Cir. 2000) ("From the standpoint of due

process, a district court may properly consider uncharged conduct

at sentencing as long as that conduct either is admitted or

reliably proved by a preponderance of the evidence"); see generally

United States v. Batista,

(1st Cir.), cert.

denied,

(2001) (sentencing guidelines require

consideration of uncharged amounts of drugs "by including all

amounts that were part of the same course of conduct or common

scheme or plan as the offense of the conviction, whether or not the

defendant has been charged with those transactions"). As we have

already described, Carey was extensively involved in the October 19

transaction. Thus, drug quantities from that transaction were

reasonably foreseeable. See Innamorati,

.

Affirmed.

-16-