Petition — Corricelli v. United States

83-312

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ANTHONY CORRICELLI,

PETITIONER

V.

UNITED STATES OF AMERICA,

RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

Thomas C. Troy

Troy, Tommasino,

Anderson & Reill,, P.C.

One Longfellow Place

Boston, MA 02114

Tel.: (617) 720-1800

we

QUESTIONS PRESENTED

I. Whether the jury was allowed to

convict the petitioner upon proof of a

conspiracy other than the one referred

to in the indictment?

II. Whether the refusal to instruct

the jury that incarceration may consti-

tute withdrawal from a conspiracy im-

permissibly invaded the function of the

jury?

III. Whether it was plain error to

exclude hospital records which contained

prior inconsistent statements of the

Court's witness concerning his fear of

the petitioner?

= oF Oo FB P&P

TABLE OF CONTENTS

Opinion Below

Jurisdiction

Statement

Statutes and Rules Relied on

Argument

I. The jury was allowed to con-

vict the petitioner upon proof

of a conspiracy other than the

one referred to in the indict-

ment.

II. The refusal to instruct the

jury that incarceration may con-

stitute withdrawal from a con-

spiracy impermissibly invaded the

function of the jury.

III. It was plain error to ex-

clude hospital records which con-

tained prior inconsistent state-

ments of the Court's witness con-

cerning his fear of the peti-

tioner.

Conclusion

Appendix

N wo 0 WN

14

19

25

26

= oe

TABLE OF AUTHORITIES

A. CASES

Eaton v. Tulsa, 415 U.S. 697, 94 S. Ct.

1 : L. Ed. 2d 693 (1974)

McGunnigal v. U.S., 151 F. 2d 162, 164

(Ist Cir., 1945)

U.S. v. Agueci, 310 F. 2d 817, 839

(2d Cir., 1962)

U.S. v. Butler, 494 F. 2d 1246, 1255

t r. 1974)

U.S. v. Edwards, 696 F. 2d 1277, 1281-82

(lith Cir., 1980)

U.S. v. Panebianco, 543 F. 2d 447, 453

(2d Cir., 1976)

A a A Spuriite. +e F, 2d 1323, 1341

(2d Cir., 1974

U.S. v. Tranunti, 513 F. 2d 1087, 1107

(2d Cir., 1975)

B. RULES

Federal Rule of Evidence 608 (6)

Federal Rule of Evidence 613(b)

Federal Rule of Criminal Procedure 52(b)

C. TREATISES

Federal Jury Practice and Instructions,

DeVitt and Blackmar (West, 1977)

12

12

14

12

20

14

12

12

20

20

23

23

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ANTHONY CORRICELLI,

PETITIONER

V.

UNITED STATES OF AMERICA,

RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

OPINION BELOW

The Court of Appeals issued an unpublished

opinion (81-1897) on July 29, 1983 (Pet App.

Fe & 4B

JURISDICTION

The jurisdiction of this Court is in-

voked pursuant to 28 U.S.C. 1254 (1).

STATEMENT

After a jury trial in the United States

District Court for the District of New

Hampshire, the petitioner, Anthony Corricelli,

was convicted of One count of conspiracy to

manufacture cocaine in violation of 21 U.S.C.

Sec. 841(9)(1) and 846. The petitioner was

sentenced to five (5) years imprisonmert. The

Court of Appeals upheld the conviction on July

29, 1983.

1. The trial evidence was summarized

in the opinion of the Court of Appeals (Pet

App. p. 22-26). The evidence suggested that

the defendant approached William Collibee, a

pharmacist, in early 1979 and discussed the

possibility of manufacturing cocaine. Later

in 1979 Arthur Griffin, the owner of a furniture

refinishing business, joined with the petitioner

and Collibee in an attempt to order certain

adja

chemicals which were cocaine precursors. (Id.

at p.22).

The drug supply company notified the Drug

Enforcement Agency which monitored the delivery

of the precursor. Collibee and Corricelli

then attempted unsuccessfully to synthesize

cocaine. After that failure, Collibee was

jailed in Maine on unrelated charges.

In the spring of 1980, after Collibee

was in jail, the petitioner met Billings, a

New Hampshire school teacher. Corricelli gave

the chemicals to Billings since he had no use

for them at that time (Tr. Vol. VI, pp. 1076-

77). Billings then ordered certain chemical

analysis tests and ordered another precursor

chemical which brought him to the attention of

the DEA (Pet. App. p. 24). Billings' phone

records showed several calls to Corricelli

during this period (Pet. App. p.25).

oles

Collibee testified that after Billings

was confronted by the FBI Corricelli called

him twice; once to suggest he, Collibee, hire

an attorney and once stating that he and

Collibee had purchased the chemicals for the

purpose of stripping furniture (Pet. App. p.25).

2. On appeal the petitioner alieged that

the case, as proved by the Government, was in

variance with the case as indicted since the

evidence suggested two possible conspiracies,

one in Massachusetts and one in New Hampshire

and the indictment alleged one on-going con-

spiracy. The Appeals Court held that any

variance was not prejudicial and that there

was sufficient evidence to link Billings to the

petitioner (Pet. App. p.26-28).

The Court held that the trial court's

refusal to specifically instruct that the in-

carceration of Collibee could constitute his

withdrawal of the conspiracy was immaterial

ain

(Pet. App. p.28-29). The Court also held that

the trial court's refusal to exclude certain

hospital records which impeached Collibee was

not error since they constituted extrinsic

evidence on a matter of impeachment and were

too ambiguous and collaterial as prior in-

consistent statements. (Pet. App. p.32-33).

Federal

Federal

= 3

STATUTES AND RULES RELIED ON

Rule of Evidence 608(6)

(b) Specific instances of con-

duct. Specific instances of the

conduct of a witness, for the

purpose of attacking or support-

ing his credibility, other than

conviction of crime as provided

in rule 609, may not be proved

by extrinsic evidence. They may,

however, in the discretion of the

court, if probative of truthful-

ness or untruthfulness, be inquired

into on cross-examination of the

witness (1) concerning his char-

acter for truthfulness or untruth-

fulness, or (2) concerning the

character for truthfulness or un-

truthfulness of another witness

as to which character the witness

being cross-examined has testified.

The giving of testimony, whether

by an accused or by any other wit-

ness, does not operate as a waiver

of his privilege against self-

incrimination when examined with

respect to matters which relate

only to credibility.

Rule of Evidence 613(b)

(bo) Extrinsic evidence of prior

inconsistent statement of witness.

Extrinsic evidence of a prior in-

consistent statement by a witness

Federal

afin

is not admissible unless the

witness is afforded an oppor-

tunity to explain or deny the

same and the opposite party is

afforded an opportunity to in-

terrogate him thereon, or the

interests of justice otherwise

require. This provision does

Lot apply to admissions of a

party-opponent as defined in

rule 801(d)(2).

Rule of Criminal Procedure 52(b)

(b) Plain Error. Plain errors

or defects affecting substantial

rights may be noticed although

they were not brought to the at-

tention of the court.

nin

ARGUMENT

I. THE JURY WAS ALLOWED TO CONVICT

THE PETITIONER UPON PROOF OF A

CONSPIRACY OTHER THAN THE ONE

REFERRED TO IN THE INDICTMENT.

The jury instructions allowed the

jury to convict the defendant on the basis

of a separate Massachusetts conspiracy

even if it found that the New Hampshire

conspiracy was unfounded.

The Petitioner was charged with one

count of conspiracy. He allegedly con-

spired with Collibee, Billings and

Griffin to manufacture cocaine in New

Hampshire. The Petitioner at trial

claimed that one conspiracy had existed

in Massachusetts; and that it terminated

when Griffin, the supplier of drugs,

lost interest and Collibee, the chemist

for the conspiracy, went to jail. The

«i6-

Petitioner claimed that a second and un-

related nexus was then formed between

the Petitioner and Billings in New

Hampshire. The Appeals Court noted in

its decision that "The evidence might

be construed to establish one conspiracy

between defendant, Collibee and Griffin,

and another between defendant and

Billings." (Pet. App. at p.26-27).

The Appeals Court noted that since the

Peti loner had been part of both groups

he was not prejudiced. This analysis

misses the thrust of the Petitioner's

claim.

The jury instructions would reason-

ably lead a jury to believe that they

could convict even if they agreed with

the Defendant that one completed con-

spiracy took place in Massachusetts

nite

and that all of the activity in New

Hampshire was innocent.

The Judge instructed that

"Although the indictment charges

a single conspiracy, it would

be possible for you to find

separate conspirators, one in-

volving the Defendant Anthony

Corricelli and the unindicted

co-conspirators William Collibee

and Edward Griffin, and the

other involving the defendants

Corricelli and Billings whether

there was one conspiracy or

two conspiracies or no con-

Spiracy at all is a fact for

you to determine in accordance

with these instructions."

(Tr. Yoil. VII p.1337)

This instruction allows conviction

upon proof of a Massachusetts conspiracy

despite the fact that such a conspiracy

was not charged in the indictment.

It is black letter law that an in-

dictment must be proved as charged.

-12-

Eaton v. Tulsa, 415 U.S. 697, 698-

699, 94 S. Ct. 1228, 39 L. Ed. 2d

693 (1974) (Per Curriam); U.S. v.

Butler, 494 F. 2d 1246, 1255 (10th

Cir. 1974).

In particular, the Petitioner is

entitled to an instruction that he

Should be acquitted if the Court does

not prove the conspiracy it has charged.

McGunnigal v. U.S., 151 F. 2d 162,

164 (lst Cir., 1945) cert. denied, 326

U.S. 776 (1945); U.S. v. Sperling, 506

F, 2d 1323, 1341 (2d Cir., 1974); U.S.

v. Tramunti, 513 F. 2d 1087, 1107 (2d

Cir., 1975) cert. denied 423 U.S. 832

(1975).

The Appeals Court by focusing on

the issue of whether or not the

nie

Petitioner was in fact a part of the

Massachusetts conspiracy (Pet. Appl.

p.27) glosses over the possibility

that, as the Petitioner claimed, he

was part of a Massachusetts conspiracy

which fell short of production of cocaine

and his activities in New Hampshire

were innocent. The potential for jury

misunderstanding is highlighted by the

jury question during deliberations which

dealt with whether defendants could

be found to be part of different numbers

of conspiracies (Tr. Vol. p. 1342,

1343).

me, Ye

II. THE REFUSAL TO INSTRUCT THE

JURY THAT INCARCERATION

MAY CONSTITUTE WITHDRAWAL

FROM A CONSPIRACY IMPER-

MISSIBLY INVADED THE FUNCTION

OF THE JURY.

Incarceration of a co-conspirator

can constitute withdrawal from a con-

Spiracy, e.g., U.S. v. Panebianco, 543

F. 2d 447, 453 (2d Cir., 1976), cert.

denied 429 U.S. 1103 (1977); U.S. v.

Agueci, 310 F. 2d 817, 839 (2d Cir.,

1962) cert. denied, 372 U.S. 959

(1963). The Government seems to con-

cede that this legal position is cor-

rect. (Brief for Appellee, pages

20-23).

The trial judge in this case flatly

refused to give an instruction on the

effect of incarceration in a conspiracy

case. He explained that "(i)f I put

you in the clink and you can't operate

that's not a form of withdrawal as far

as I'm concerned", (Tr. Vol. VII, p.

my

1339). This refusal to instruct was

error which prejudiced the Petitioner.

The Appeals Court did not hold

that the trial court's instructions

were correct. It denied relief on

the grounds that the defendant was not

prejudiced even if the instruction was

incorrect. (Pet. App. p. 29). The

Court reasoned that since there had been

one on-going conspiracy with the

Defendant in the middle, the withdrawal

of one co-conspirator would have no

effect. This reasoning ignores the

court's earlier discussion under the

variance issue as to the possibility

that the jury could have found two

conspiracies. (Pet. App. p. 26). One

reasonable interpretation of the evi-

dence was that the Defendant's dealings

wife

with Billings in New Hampshire were in-

nocent. (Trial Transcript pgs. 939-

85) and that by the summer of 1980

Griffin had already withdrawn from

any Massachusetts conspiracy, (either

on the theory that he was not a knowing

participant) (Tr. Vol. 1, pp. 188,

94), or that he withdrew (Tr. Vol. 1,

pp. 203-204). If the jury had adopted

that view of the evidence, as it was

entitled to, the only possible theory

for conviction was that Collibee had

not withdrawn and that the conspiracy

existed between the Defendant and

Collibee.

The failure to instruct on the ef-

fect of incarceration upon Collibee's

role as a co-conspirator was to remove

at%

a central factual issue from the jury's

consideration.

The Court also noted the Peti-

tioner's failure to request an in-

struction or object to the Court's

instruction. Initially this is not a

Situation in which the faiiure to ob-

ject precluded the possibility of

correcting the problem at the trial

level. The co-defendant did object

and the Court refused to correct the

situation. (Tr. Vol. VII, p. 1339).

This is a case of plain error which

the District Court should have cor-

rected despite a failure to specific-

ally object. Fed. R. Crim. Proc.

52(6).

Here neither the Government, nor

the Appeals Court disputes that the

==

requested instructions would have been

appropriate. The argument that the

Petitioner was not prejudiced is based

upon a clear misperception of the

evidence.

-19-

III. THE COURT ERRED IN EXCLUDING

THE HOSPITAL RECORD WHICH

REVEALED THE PRIOR INCON-

SISTENT STATEMENT OF COLLIBEE

CONCERNING HIS FEAR OF THE

DEFENDANT.

The Court's theory of prosection

was that the Petitioner was a master-

mind who manipulated and coerced others

into cooperating with him in a drug

manufacturing scheme. As part of that

theory, the Court offered the direct

testimony of Collibee that he entered

a hospital in Maine solely because of

his fear of the Defendant. Collibee

insisted that fear was the reason for

his admission to the hospital and

specifically denied that it was due to

his drug problem. (Tr. Vol. III p.

316).

-20-

At the close of the Government's

case, the Defendant offered the hospital

record which was replete with reference

to Collibee's drug problem and included

the notation that "'the patient says

he took Quaalude today and realized

that his drug habit and his pressures

were escalating." (Pet. App. p. 31).

The Court refused to allow its introduc-

tion on the theory that Federal Rules of

Evidence 608 (6) does not allow the

admission of extrinsic evidence of

specific misconduct for purposes of

attacking credibility.

It was plain error U.S. v. Edwards,

696 F. 2d 1277, 1281-82 (llth Cir.,

1980) for the Court not to have allowed

this evidence, pursuant to Federal

Rules of Evidence 613(b), since it was

site

extrinsic evidence of a prior incon-

sistent statement. The Appeals Court

admitted in its opinion that "the hos-

pital records could be interpreted to

contradict, at least partially,

Collibee's stated reason for entering

the hospital..." (Pet. App. p. 48)

but ruled that the exclusion of the

records was not plain error because

of their "tangential relevancy and in-

herent ambiguity.'' (Pet. App. p.33).

The records are not ambiguous.

Collibee claimed he went to the hospital

solely because of his fear of the

Defendant. The records indicate that

his stated reason at the time of ad-

mission was, at least in part, his drug

problem. This was a classic prior

inconsistent statement.

«fin

The Appeals Court claimed that

this statement was of tangential rele-

vancy since its only purpose was to dis-

pute the Petitioner's role in the con-

spiracy. This is too narrow a view of

the evidence. An essential question

f-. the jury was Collibee's motivation

in first cooperating with the Peti-

tioner and later cooperating with the

Court. Collibee's explanation that his

cooperation with the Petitioner was

due to the fear of the Petitioner

because he was the "king pin" in the

conspiracy, essential to its theory

that after Collibee withdrew the con-

spiracy went on captained by the

Petitioner. If the jury were allowed

to consider the possibility that

Collibee deliberately lied about his

fear of the Petitioner, it might well

=-33-

have been lead to doubt Collibee's

credibility generally.

It has long been held that a prior

inconsistent statement may help im-

peach a witness for more than the par-

ticular issue it deals with. For

instance, the long approved jury charge

on the weight that should be given to

prior inconsistent statements aptly

summarizes the use to which such state-

ments can be put.

"If a witness is shown knowingly

to have testified falsely con-

cerning any material matter, you

have a right to distrust such

witness' testimony in other par-

ticulars; and you may reject all

the testimony of that witness or

give it such credibility as you

may think it deserves.”

Sec. 17.08 Federal Jury

Practice and Instructions,

DeVitt and Blackmar (1977)

-24-

The Appeals Court in its decision

that the defendant was not prejudiced

limited its consideration to the par-

ticular issue of whether or not Collibee

went to the hospital because of fear

of the Defendant. This prior incon-

sistent statement could have far broader

impact if the jury doubted Collibee's

credibility generally because of this

inconsistency.

In this case, a statement which

went to the heart of the Court's theory

of prosecution was excluded. This ex-

clusion amounts to clear error.

-25-

CONCLUSION

For these reasons the Writ of

Certiorari to the United States Court

of Appeals for the First Circuit should

be granted.

Respectfully submitted,

Thomas C. Troy

Troy, Tommasino,

Anderson & Reilly, P.C.

One Longfellow Place

Boston, MA 02114

Tel.: (617) 720-1800

APPENDIX

-26-

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NO. 81-1897

INITED STATES OF AMERICA,

Appellee,

w.

ANTHONY CORRICELLI,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT

COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

/Hon. Shane Devine, U.S. District Judge/

Before

Campbell, Chief Judge,

Bownes, Circuit Judge,

and Re,* Chief Judge.

Carol S. Epstein, with whom Epstein,

King & Isselbacher was on brief, for

appellant.

Robert J. Lynn, First Assistant U.S.

Attorney, with whom W. Stephen Thayer,

III, U.S. Attorney, was on brief,

July 29, 1983

-27<

BOWNES, Circuit Judge. Defendant-

appellant Anthony Corricelli appeals

a jury conviction of conspiracy to

manufacture cocaine in violation of 21

1 2

U.S.C. Sec. 841 (a) (1) and 846.

Corricelli's co-defendant and alleged

co-conspirator, Vana Billings, was also

convicted of the same offense, but has

not appealed.

1. Section 841(a)(1) provides:

(a) Except as

authorized by this subchapter, it shall

be unlawful for any person knowingly

or intentionally--

(1) to manufacture, distri-

bute, or dispense, or possess with in-

tent to manufacture, distribute, or

dispense, a controlled substance

2. Section 846 provides:

Any person who attempts or

conspires to commit any offense de-

fined in this subchapter is punishable

by imprisonment or fine or both which

may not exceed the maximum punishment

prescribed for the offense, the com-

mission of which was tne object of the

attempt or conspiracy.

-28-

The issues before us are as fol-

low: whether there was a fatal variance

between the indictment and the evidence;

whether the district court erred in

failing to instruct the jury properly

during the trial; whether the district

court erred in excluding certain hos-

pital records; and whether the jury

charge waS erroneous. We find no re-

versible errors.

The indictment charged Corricelli

and Billings with conspiring together

and with William Collibee and Edward

Griffin, two unindicted co-conspirators,

to manufacture cocaine by chemical

3

svnthesis.

3. The indictment states as fol-

lows: From on or about April 1, 1979

to on or about December 31, 1980, both

dates being approximate and inclusive,

in the District of New Hampshire and

elsewhere , ANTHONY CORRICELLI and DANA

BILLINGS, the defendants, did knowingly,

intentionally and unlawfully, combine,

conspire, confederate and agree......

-29-

We review the evidence, including

all reasonable inferences to be drawn

from it, in the light most favorable

to the government. United States v.

Gilberto Quejada-Zurique, No. 82-1764,

Slip op. at 5 (lst Cir. June 1, 1983);

United States v. Fortes, 619 F. 2d

108, 122 (1st Cir. 1980).

In early 1979 Corricelli ap-

proached Collibee, a pharmacist, and

asked him about the feasibility of manu-

facturing cocaine by chemical synthesis.

Collibee, a neophyte in chemistry,

thought this might be possible. He

did some research in the Boston Public

ee ae eee together and

with William Collibee and Edward Griffin,

named herein as co-conspirators but

unknown to the grand jury, to manufacture

a large quantity of cocaine, a Schedule

II controlled substance, in violation

of Title 21, United States Code, Section

841 (a) (1).

All in violation of Title 21,

United States Code, Section 846.

-30-

Library and found a German formula

for such a process. Collibee gave a

list of the chemicals required to

Corricelli. The other unindicted co-

conspirator, Arthur Griffin, owned

and operated a furniture refinishing

business called Barney's Stripping

and Refinishing. Corricelli promised

Griffin $5,000 when the cocai..e was

manufactured if the precursor chemicals

needed for the synthesizing process

could be ordered in Barney's name.

Griffin agreed and an order for the

chemicals on Collibee's list was sent

to the Aldrich Chemical Company,

Milwaukee, Wisconsin.

The suspicions of Aldrich's of-

ficials were aroused by the order be-

cause it consisted of precursor chemicals

that could be used to make cocaine,

x

and the United States Drug Enforcement

Agency (DEA) was promptly contacted.

The first portion of the order was

delivered to Barney's on September 11,

1979, and receipted for by Griffin;

Barney's was under surveillance by DEA

agents. When Corricelli picked up

the chemicals the agents followed him

to his house and saw him deposit the

chemicals there. Sometime later

Corricelli rented a house in Nahant,

Massachusetts, and all of the chemicals

and equipment purchased for the manu-

facture of cocaine were taken there.

This included the balance of the order

from Aldrich, which was delivered to

Barney's, as well as laboratory equip-

ment bought from Fisher Scientific

Company. Corricelli paid for all the

materials.

-32-

A laboratory was set up in the

Nahant house; Corricelli, Collibee,

and another person attempted unsuc-

cessfully to synthesize tne precursor

chemicals into cocaine. The failure

of the experiment made Corricelli

angry; he threatened physical harm to

Collibee and his unborn child and

told Collibee "it better work next time."

There was no next time for Collibee;

he went to jail in Maine on unrelated

charges. Corricelli asked Collibee

before he started his jail term for

more details on the synthetic production

of cocaine. Collibee was also told by

Corricelli that if he could not make

cocaine, he (Corricelli) would get some-

body else who could. Corricelli told

Griffin that Collibee "had screwed up"

=33-

and he was going to get another chemist.

Billings then appeared on the scene.

Corricelli met Billings in the early

spring of 1980. Billings was a high

school chemistry teacher. He was in-

terested in Karate and was introduced

to Corricelli who claimed to be profic-

ient in this skill. Sometime later

Corricelli turned over to Billings

the chemicals that remained after the

failed attempt at cocaine synthesis in

Nahant. Billings stored the chemicals

in the teacher's storage area at

Hopkinton High School where he taught

chemistry.

Billings' requested that the

instrumentation center at the University

of New Hampshire make a spectrographic

analysis of a sample chemical compound

to determine if a specific chemical

@934-

reaction had occurred. The tests done

on the sample furnished by Billings

proved inconclusive. Less than two

weeks after Billings learned of the test

results, he ordered ten kilograms of

the same compound from the Ventron

Corporation of Danvers, Massachusetts,

for which he paid $2,260. Ventron

recognized the chemical compound as a

cocaine precursor and, as Aldrich had

done, promptly notified the DEA.

A controlled delivery was arranged,

and the noose settled around Billings'

neck. His telephone toll records showed

a number of calls to Corricelli in

November and December of 1980. A DEA

investigation disclosed that the

storage area at the Hopkinton High

School contained all the chemicals

ordered from Aldrich and the equipment

-35-

purchased from Fisher Scientific by

Corricelli in 1979.

A short time after the DEA formally

confronted Billings, Corricelli called

Collibee and told him that he had given

the chemicals to someone from out-of-

State who had gotten into trouble

with them. He strongly suggested that

Collibee call a lawyer if he were

contacted by law enforcement officials.

After Collibee had been subpoenaed

to testify before the grand jury,

Corricelli called him again. He stated

that the only purpose he and Collibee

had in purchasing the chemicals was

to make a furniture stripper. Collibee

testified that he understood from

Corricelli's tone that this is what he

expected Collibee to tell the grand

jury. Collibee also testified that he

-36-

was afraid of Corricelli and was in-

timidated by him.

There was testimony by a government

chemist that the chemicals seized from

the storage area at the high school

were the key precursors needed for

the synthesis of cocaine and there

was no other explanation for this com-

Dination of chemicals.

Variance

The law on variance makes it

clear that it matters little in the

context of this case whether there

were two conspiracies or one. The

basic rule is that any variance is

immaterial where the allegation and

proof substantially correspond, or

where the variance was not of the

character which could mislead the

=-37-

defendant at trial or "not such as to

deprive the accused of his right to

be protected against another prosecu-

tion for the same offense." Berger v.

United States, 295 U.S. 78, 83 (1935);

United States v. Izzi, 613 F. 2d 1205,

1210 (lst Cir.), cert. denied, 446

U.S. 940 (1980). The evidence here

fell well within the parameters of the

indictment. The variance, if any,

could not have misled defendant at trial

and defendant's double jeopardy rights

would be clearly violated if he were

prosecuted again for a conspiracy to

manufacture cocaine with Billings

or Collibee or Griffin or any com-

bination thereof during this time frame.

If there were two conspiracies,

the defendant was the chief conspirator

in both. The evidence might be

-38-

construed to establish one conspiracy

between defendant, Collibee and Griffin

and another between defendant and

Billings. The jury could also have

supportably found an ongoing conspiracy

orchestrated by defendant with different

supporting players. In either case,

the evidence was more than sufficient

to convict. Therefore, even if there

was a variance, it was not prejudicial.

Defendant was not unfairly harmed by

having attributed to him the crimes of

a conspiracy of which he was not a

part. United States v. David E.

Thompson, Inc., 621 F. 2d 1147, 1152

(lst Cir. 1980).

Defendant appears to argue that

because he and Billings denied any

conspiracy, none was proved between

them. Although the evidence linking

-39-

defendant and Billings was circum-

Stantial, it was strong. The chemicals

and equipment that defendant had pur-

chased for Collibee's failed attempt to

Synthesize cocaine were given to

Billings. Defendant's remarks to

Collibee that if he could not make it

work that he (defendant) would get some-

one who could are a solid basis for the

inference that the person defendant

got was Billings.

The jury could also supportably

infer that defendant had put up the

$2,260 for Billings' purchase of the

precursor chemical from Ventron.

Billings' yearly salary as a teacher

was $10,600; during this period he

borrowed $5,000 from his parents for a

down payment on a home. Defendant had

cheerfully bankrolled the purchase of

-40-

all the other materials. Billings'

less than affluent financial condition

and defendant's apparent willingness to

invest in the enterprise was evidence

from which the jury could find that the

money for the Ventron purchase came

from defendant.

In the final analysis, the evidence

shows a scheme for the manufacture of

cocaine which was originated by de-

fendant and in which he had the will-

ing assistance at different times of

Collibee, Griffin, and Billings.

The indictment was neither ambiguous

nor misleading and the evidence, which

corresponded to the indictment, was

more than sufficient for a conviction.

The Withdrawal Instruction

Defendant contends that the dis-

trict court's instructions on withdrawal

-41-

from a conspiracy were erroneous be-

cause of its refusal to charge that

the jury could consider Collibee's

imprisonment as evidence that he with-

drew from the conspiracy. We think

our prior discussion of the evidence

makes it clear that it was immaterial

on the question of defendant's guilt

whether or not Collibee withdrew from

the conspiracy when he went to jail.

By that time the conspiracy with de-

fendant as the king pin was already

established and functioning. The

only effect that a withdrawal by

Collibee could have had was on

Billings, who has not appealed, or on

Collibee himself and he was not indicted.

Moreover, defendant by failing to re-

quest an instruction on this point and

by not objecting to the court's

-42-

instruction has waived his right to

argue the issue on appeal. Fed. R.

Crim. P. 30.

The Trial Rulings

Defendant complains because the

court did not give limiting instructions

after DEA Agent Graffam testified

that Collibee, after his release from

jail, had told him that defendant had

contacted him (Collibee) and asked

him to arrange for a delivery of some

precursors that could be used to manu-

facture methamphetamine, commonly

known as "Speed."' Defendant is correct

in describing this as "hearsay testi-

mony of similar yet unrelated mis-

conduct that had not resulted in crim-

inal convictions or even indictments.”

Appellant's Brief at 27. Defendant

is dead wrong, however, in arguing

nie

that even though this testimony was

introduced by his own attorney, it should

have been sua sponte ruled inadmissible.

The task of a trial judge is difficult

enough without also saddling him with

the responsibility of rescuing a de-

fendant from the errors of his own

counsel. ‘Sometimes called the doc-

trine of invited error, the accepted

rule is that where the injection of

allegedly inadmissible evidence is at-

tributable directly to the action of

the defense, its introduction does not

constitute reversible error." United

States v. Taylor, 508 F. 2d 761,

763 (Sth Cir. 1975) (citations omitted).

Defendant's attempt to invoke the

plain error doctrine also fails. The

testimony by the DEA agent was not

the result of a single stupid question.

-44-

It was part of cross-examination

calculated to impeach Collibee's credi-

bility and to show that it was improbable

that defendant and Collibee were assoc-

iated together in June of 1980.

This may have been poor tactics and

helped strengthen the government's

case, but it was hardly plain error on

the part of the district judge not to

Sua sponte instruct the jury that it

4

should disregard the testimony. See

United States v. Esser, 520 F. 2d 213,

219 (7th Cir. 1975), cert. denied,

426 U.S. 947 (1976); United States vy.

Grooms, 454 F. 2d 1308, 1311 (7th Cir.),

cert. denied, 409 U.S. 858 (1972).

Another trial ruling that defendant

4. Billings' motion for a new

trial because of the testimony was

denied.

-45-

assigns as error was the district

court's refusal to allow the introduc-

tion of certain hospital records into

evidence. The framework in which this

issue was drawn is as follows.

Collibee testified that because of his

fear of defendant and as a way of

getting away from him, he had himself

admitted to the Maine Medical Center

aS a patient in the fall of 1979.

Collibee insisted on cross-examination

that drug usage had nothing to do

with his admission to the hospital;

that it was solely due to his desire

to get beyond the reach of defendant.

The admission sheet of the hospital

records states as follows: "William L.

Collibee, 25 ys white CC: ‘I'm under

so much pressure that it feels like

I'm going to explode. I came here for

-46-

help.''' It then is noted inter alia:

"The pt. says he took a Quaalude today

and realized that his drug habit and

his pressures were escalating." The

hospital records, read as a whole, dis-

close that Collibee had a severe drug

addiction problem.

At the close of the government's

case defendant sought to introduce the

records on the question of Collibee's

credibility. The court excluded them

on the basis of Federal Rule of Evi-

dence 608 (b) which provides in per-

tinent part: "Specific instances of

the conduct of a witness for the pur-

pose of attacking or supporting his

credibility, other than conviction of

a crime as provided in rule GO9, may

not be proved by extrinsic evidence."

ah Ti

We do not think the district court

erred in excluding the evidence. The

admission sheet does not flatly con-

tradict Collibee's stated reason for

seeking admission to the hospital.

The pressure to which he referred

could have been applied by defendant.

The records do contain extrinsic evi-

dence of Collibee's prior use of

drugs and it is in this respect that

they are impeaching. Federal Rule of

Evidence 608 (b) was properly invoked.

Defendant now argues for the first

time that the hospital records should

have been admitted as a prior incon-

sistent statement, Fed. R. Evid 613(b),

or to show bias. Because neither of

these theories was advanced below we

review only for plain error and find

none.

-48-

Although the admission sheet of the

hospital records could be interpreted to

contradict, at least partially,

Collibee's stated reason for entering

the hospital, we do not think its ex-

ake amounts to reversible error.

The reason for Collibee's admission to

the hospital was relevant only on the

question of Collibee's fear of defendant

and defendant's dominance over him.

This in turn was only relevant to

defendant's role in the conspiracy

which, as far as Collibee was concerned,

had been established long before the

hospital admission. In fact, Collibee's

hospital admission ended his active

participation in the conspiracy. Be-

cause of its tangential relevancy and

inherent ambiguity, we do not think

defendant was prejudiced by the

-49-

exclusion of the hospital records.

The answer to the bias claim is

Simple; the records do not show any

bias.

The final trial ruling to which de-

fendant assigns error was the court's

failure to give limiting instructions

after Collibee testified that defendant

had threatened him and his unborn child

with physical harm. Defendant, however,

has forfeited his right to appeal on

this issue. No objection and request

for a limiting instruction was made

at the conclusion of the testimony.

Fed. &. Evid. 103(a) (1) and 105.

Nor were any limiting instructions in-

cluded in defendant's requests submitted

prior to the final jury charge and

no specific objection was made to the

omission from the charge of such an

instruction. Fed. R. Crim. P. 30.

-50-

The Refusal to Charge As Requested

Defendant requested and properly

objected to the failure of the district

court to instruct along the following

lines: ‘'(t)he mere fact that a witness

is employed by the Government of the

United States or the State of New

Hampshire or any other Governmental

Agency does not entitle that witnesses'

lSic/ testimony to any more weight or

credence than other witnesses /Sic/

not similarly employed.”

A reading of the charge as a whole

with special emphasis on the credibility

section convinces us that there was

no error in failing to give the requested

instruction or a reasonable fascimile

thereof. The court gave the standard

accomplice instruction as to Collibee

and Griffin. Its instruction on

credibility was as follows:

«$i—

It is for you alone as jurors to

judge the credibility of the wit-

nesses, that is, whether you

believe all, part or none of

their testimony as it has been

presented to you. This applies

to the exhibits in the case as

well as to any testimony.

In considering the testimony

of any witness, you may take into

consideration the demeanor and

appearance of the witness on the

Stand, how the witness answered

the questions propounded, his or

her knowledge of the facts and

the interest of the witness, if

any, in the final outcome of the

case. You may also consider

any demonstrated bias, prejudice

or hostility of the witness

toward either the Government or

either defendant in determining

the weight to be accorded the

testimony of that witness.

Certain of the witnesses have

been here allowed to testify as

experts because the Court has

found that they possess knowledge

which might be of assistance

to the jury in reaching its

verdict. However, the same tests

apply to the testimony of expert

witnesses as to any other witnesses

who have appeared before you.

-52-

We think this sufficed. Defendant

has pointed to no case, nor have we

been able to find one, holding that a

special instruction on the credibility

of Government witnesses might: be re-

quired in a case such as this. We note

that such an instruction is not in-

cluded in Devitt and Blackmar's treatise

on jury instructions. See LE. Devitt &

C. Blackman, Federal Jury Practice and

Instructions ch. 17 (1977 & Supp.

1983).

Affirmed.