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United States v. Bedini

United States Court of Appeals, First Circuit

June 26, 2017

UNITED STATES OF AMERICA, Appellee,
v.
TONY BEDINI, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee,
v.
ISKENDER KAPLLANI, Defendant, Appellant.

         APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]

          Jonathan A. Cox, with whom Felicia H. Ellsworth and Wilmer, Cutler, Pickering, Hale, and Dorr LLP were on brief, for appellant Bedini.

          Daniel J. Cloherty, with whom Collora LLP was on brief, for appellant Kapllani.

          William A. Glaser, Attorney, Appellate Section, Criminal Division, United States Department of Justice, with whom Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, Carmen M. Ortiz, United States Attorney, and Christopher J. Pohl, Assistant United States Attorney, were on brief, for appellee.

          Before Barron, Circuit Judge, Souter, Associate Justice, [*] and Selya, Circuit Judge.

          BARRON, Circuit Judge.

         These consolidated appeals involve a number of challenges that Tony Bedini and Iskender Kapllani bring to their convictions and sentences for conspiracy to distribute cocaine under 21 U.S.C. § 846. Together, Bedini and Kapllani contend, among other things, that their convictions cannot stand due to the unfair prejudice that they suffered from being charged with participating in a single drug conspiracy but then jointly tried based on evidence that at most sufficed to show their participation in what were actually two separate drug conspiracies. Because we reject this challenge to their convictions, along with the other challenges that Bedini and Kapllani each bring to both their convictions and their sentences, we affirm the judgments below.

         I.

         In 2012, Bedini and Kapllani were charged in the United States District Court for the District of Massachusetts with conspiracy to distribute and to possess with intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. § 846. Six other codefendants were also charged in that indictment for the same crime, in consequence of their alleged participation in the same conspiracy. The six other codefendants -- Elton Ceku, Igli Leka, Armand Mara, Bryant Mendoza, Carlos Manuel Tejeda, and Arben Teta -- all pleaded guilty. Bedini and Kapllani did not. And, following an eight-day, joint jury trial in the District of Massachusetts, they were both convicted under § 846.

         Bedini was sentenced to a term of imprisonment of 135 months, to be followed by a three-year term of supervised release. Kapllani was sentenced to a term of imprisonment of 188 months, to be followed by a five-year term of supervised release. Bedini and Kapllani each then appealed their conviction and sentence, and we consolidated their cases on appeal.

         II.

         Bedini and Kapllani each make the same primary challenge to their convictions, and it concerns the sufficiency of the evidence. Bedini and Kapllani contend that, notwithstanding the characterization of the drug conspiracy charged in the indictment as a single one that stretched from Boston to the West Coast, the evidence at trial sufficed to support, at most, a finding of two distinct drug conspiracies, with Bedini a participant in one, Kapllani a participant in the other, and neither a participant in both.

         The first of the supposedly distinct drug conspiracies, which we will call the Boston-based one, "involv[ed] the various individuals who were affiliated with the Arbri Café in Roslindale, " a Boston neighborhood. This group included Kapllani as well as the following of his co-defendants: Ceku, Leka, Mendoza, and Tejeda. The second of the supposedly distinct drug conspiracies, which we will call the West Coast-based one, operated out of California and Las Vegas and involved Bedini and the remaining two co-defendants, Mara and Teta.

         Bedini and Kapllani further contend that they were unfairly prejudiced by the claimed variance from the indictment's charging of a single conspiracy to what turned out to be the proof at trial of, at most, the two separate, and geographically disparate, drug conspiracies just described. The claimed prejudice rests on a theory of evidentiary spillover, which gives rise to the concern about "the transference of guilt to an individual defendant involved in one conspiracy from evidence incriminating defendants in a conspiracy in which the particular defendant was not involved." United States v. Sutherland, 929 F.2d 765, 773 (1st Cir. 1991) (citation omitted).

         This evidentiary-spillover-based challenge cannot succeed, however, if its premise is mistaken. And so we start --and, as it turns out, end -- by addressing the threshold issue of whether the evidence at trial sufficed to support a finding of the single conspiracy charged in the indictment.

         "The question whether a given body of evidence is indicative of a single conspiracy, multiple conspiracies, or no conspiracy at all is ordinarily a matter of fact; a jury's determination in that regard is subject to review only for evidentiary sufficiency." United States v. Wihbey, 75 F.3d 761, 774 (1st Cir. 1996) (citing United States v. David, 940 F.2d 722, 732 (1st Cir. 1991)). "Although conflicting inferences may arise, so long as the evidence is adequate to permit a reasonable trier of fact to have found a single conspiracy beyond a reasonable doubt, the jury's finding will not be disturbed on appeal." United States v. Mangual-Santiago, 562 F.3d 411, 421 (1st Cir. 2009).

         "Because each Defendant moved for a judgment of acquittal at the close of evidence, we review their sufficiency claims de novo." United States v. Dellosantos, 649 F.3d 109, 115 (1st Cir. 2011). In evaluating the evidence to determine whether the evidence suffices to show a single conspiracy, we look to the totality of the evidence. Id. at 117. We have found three factors to be helpful in guiding this inquiry: "(1) the existence of a common goal [among the participants], (2) interdependence among participants, and (3) overlap among the participants." Id. (citation omitted). We consider what the record shows regarding each of these factors in turn, mindful that "none of [the three factors], standing alone, i[s] necessarily determinative." See United States v. Sanchez-Badillo, 540 F.3d 24, 29 (1st Cir. 2008).

         A.

         We have repeatedly held that "selling cocaine for profit" or "furthering the distribution of cocaine" may constitute a common goal among individuals who have been charged with participating in a single drug conspiracy. Mangual-Santiago, 562 F.3d at 421 (citation omitted). Moreover, there was evidence in the record here to support a finding that, in 2010 and 2011, the West Coast-based operation repeatedly sold wholesale quantities of cocaine to participants in the Boston-based operation with the understanding that the cocaine would then be re-sold. And we have held that an inference of a common goal to profit from drug sales is supportable where, as here, the drugs are repeatedly bought by one party from another in "wholesale quantities obviously purchased for further sale." United States v. Ortiz-Islas, 829 F.3d 19, 25 (1st Cir. 2016).

         Bedini and Kapllani nevertheless contend that the evidence supports at most the conclusion that the relationship between the Boston- and West Coast-based operations was -- though longstanding and repetitive -- merely an arm's-length buyer-seller relationship, albeit one between a wholesaler and a retailer. And Bedini and Kapllani further contend that, in consequence, the two operations cannot be said to have shared a common goal, even if each operation independently did seek to profit from the sale of cocaine. See United States v. Brown, 726 F.3d 993, 1001 (7th Cir. 2013) (explaining that "buyer-seller relationships . . . do not qualify as conspiracies, " because "[p]eople in a buyer-seller relationship have not agreed to advance further distribution of drugs, " whereas "people in conspiracies have" (emphasis omitted)).

         But, we have recently found that "more than a mere buyer-seller relationship" existed when a party sold wholesale quantities of cocaine and "was even willing to front cocaine, " on "the understanding that [the buyer] would pay in the course of a subsequent transaction." Ortiz-Islas, 829 F.3d at 25-26. Fronting wholesale quantities of cocaine in this manner was, we explained, "an act of trust that assumed an ongoing enterprise with a standing objective." Id. at 25.

         Here, the record supportably shows that fronting occurred, albeit infrequently. Specifically, there is evidence in the record that on at least two occasions the West Coast-based operation sold substantial quantities of cocaine to the Boston-based operation on credit, rather than for payment at the time of sale. In one such instance, Bedini and Mara, operating out of the West Coast, accepted a small payment from Kapllani, operating out of Boston, in exchange for Kapllani receiving one kilogram of cocaine. Kapllani promised to pay the balance of the cost for the kilogram of cocaine one week later. In another instance, Bedini gave Kapllani one kilogram of cocaine in return for Kapllani's promise to make the payment an hour later. And, in addition, the evidence supportably shows that Kapllani trusted the West Coast-based operation enough to, on one occasion, prepay for cocaine, with a $50, 000 prepayment given to Teta (who transported cocaine for Bedini and Mara).

         Bedini contends that our analysis in Ortiz-Islas "depended not only on the defendant's fronting of large quantities of cocaine to a buyer, but also on the conspirators' extensive mutual reliance on another party to facilitate transactions and provide protection." And Kapllani argues that the "few instances where some level of credit may have been provided are insufficient to establish a single conspiracy." In further support of this contention, Bedini and Kapllani emphasize aspects of the record that they contend support the conclusion that "the California defendants were indifferent to the profitability of the operation in the Arbri CafĂ©, " "had little interest in what the Massachusetts ...


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