USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

____________________

No. 94-2122

UNITED STATES,

Appellee,

v.

NOEL FEMIA,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

Kirsten M. Lacovara, with

____________________

whom James E. Carroll

_________________

and Peabody
_______

Arnold were on brief for appellant.

______
Heidi E. Brieger,
_________________

Assistant United

States Attorney,

with

Donald K. Stern, United States Attorney, was on brief for appellee.

_______________

____________________

June 16, 1995

____________________

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
____________________

Noel

Femia appeals from

possess with

a jury conviction

intent to distribute quantities

violation of 21 U.S.C.

issues

Defendant-appellant

on appeal

which

841(a)(1).

of conspiring to

of cocaine, in

Defendant forwards

we consider

seriatim.

We

four

affirm

defendant's conviction.

1.
1.

The Alleged Violation of the Jencks Act - 18 U.S.C.

The Alleged Violation of the Jencks Act - 18 U.S.C.
_________________________________________________________

3500
3500
____

The factual basis for

destruction

is the

this issue is the accidental

of certain tape recordings by a DEA agent.

second time we

have been

called upon to

This

decide the

legal consequences of the destruction of the tape recordings.

Some historical exegesis is necessary, most of which is taken

from

our prior opinion, United States v. Femia,

______________
_____

9 F.3d 990

(1st Cir. 1993) ("Femia I").

_____

An

indictment

alleged co-conspirators

October 3, 1986.

against defendant

was filed

and

eight other

in the district

court on

Femia was not arrested until July 16, 1992.

The facts relevant to

the tape recordings can

be summarized

as follows.

Cristopher LaPlante

the

founding

members of

known as Triple X.

1985.

part of

was the bookkeeper and

large-scale

one of

cocaine operation,

The DEA started investigating Triple X in

LaPlante entered into a plea bargain with the DEA.

the plea

agreement, LaPlante covertly

As

made twenty-

-22

four

tape

recordings

conspirators or

of

conversations

customers of Triple X.

he

had

with

co-

The DEA set up three

files for three of the alleged co-conspirators, Perea, Stone,

and

Perea

Femia.

file,

The LaPlante tapes were physically stored in the

which was

cross-referenced

to

the other

two

files.

Trial of Femia's

in 1987.

At this

defendants were

alleged co-conspirators was

time Femia was still at large.

convicted either

by trial or

Subsequent to those convictions, a DEA agent,

to the case,

authorized the destruction of all

held

The eight

guilty pleas.

newly-assigned

the LaPlante

tapes contained in the Perea file.

After his

arrest and

arraignment, Femia

moved to

suppress the testimony of LaPlante, a key government witness,

on

the ground that the destruction of the tapes violated his

constitutional right

v.

to due process as

Maryland, 373 U.S. 83 (1963).

________

Femia's

motion to

suppress.

annunciated in Brady
_____

The district court granted

The government appealed.

We

reversed the district

process violation

bad faith."

that

the

Femia
_____

district

court, finding that

because the

I, 9 F.3d

court

tapes were "not

at 994.

had

made

no

the case

was

tried.

-33

bad

out

faith finding

Id. at 996.
___

The district

due

destroyed in

We also pointed

relative to the destruction of the tapes.

remand,

there was no

After

court rejected

Femia's

claim

that

the

destruction

of the

tapes

was

violation of the Jencks Act.

We start our analysis of

district

this issue by quoting the

court's written rejection of defendant's Jencks Act

claim:

Defendant also contends that

judgment

of

Count 1
the

acquittal

to

is appropriate because

government

Jencks Act, 18
He

as

bases

violated
U.S.C.

this

government's

claim

the
3500.

on

the

destruction

of

tape recordings made by its key

witness,
and

Cristopher
allegedly

statements amounting

LaPlante,
containing
to Jencks

material.

The

provides

that

Jencks

a court

Act

shall,

upon defendant's request, order

the

government

to

statements made
which

by its witness

relate to

testimony.
(1970).
used

the witness's

18 U.S.C.

for

purposes.

impeachment

Palermo v. United
__________________

States,
______

360

(1959).

Defendant

the

U.S.

tapes

identities of
suppliers,

343,

speculates

revealed

thereby

the

containing

related

LaPlante's testimony.
tapes

cannot

349

large scale drug

statements

the

3500

Such statements may be

solely

that

produce

were

review

to
Because

destroyed

them

and

thus

assess whether they fall within

the purview of the
The

record does

require
"dubious"

me

not, however,
to

make

inquiry

"reconstruct[ing]
longer in

Jencks Act.

the
of

[tape] no

existence using 'the

very
the

witness

whose

defendant

impeach.'"

testimony
seeks

to

United States v.
_________________

-44

Carrasco,
________

537

F.2d

372,

377

(9th Cir. 1976) (quoting United

______
States v. Johnson,
___________________
1318,

1320

(9th Cir.

Here,

the affidavits

521

F.2d

1975)).
of Agent

Reilly
which

and

Detective

stated that

tapes

the missing

"contained

conversations

that

specifically
Triple
support

Kinder,

general
were

not

to

the

relevant

investigation,"

the

ruling

at

trial

that the missing tapes were not

"Jencks
respect
which

Act
to
the

materials

with

the matters

about

government inquired

on direct . . . ."

(Footnote omitted.)

We review the district

discretion.

(1969).

were,

United States
______________

Augenblick involved,
__________

v. Augenblick,
__________

the ruling by the law

that the tapes

393

U.S.

348

inter alia, missing tapes that

_____ ____

without doubt, covered by

held that

court's ruling for abuse of

the Jencks Act.

The Court

officer and Board of Review

need not be produced under the Jencks Act was

not

an abuse

of discretion.

United States, 360 U.S.

_____________

final

decision as

"must rest

at 355.

In

343 (1959), the Court held

production of

Jencks Act

Palermo v.
_______

that the

statements

. . . within the good sense and experience of the

district judge

Foley,
_____

to

Id.
___

871 F.2d

. . . ."

235,

Id. at
___

239 (1st

353.

Cir.

In United States v.
______________

1989), we

clearly erroneous the district court's ruling

found

that so-called

"302's" were not statements covered by the Jencks Act.

The pertinent parts of the Jencks Act provide:

-55

not

After

witness called

by

the United States has testified

on

direct

examination,

court shall, on
defendant,

the

motion of

order

the

the

United

States to produce any statement

(as hereinafter defined) of the
witness

in

the possession

of

the United States which relates

to

the

which

subject
the

testified.
contents of

matter as
witness

If

the

to
has

entire

any such statement

relate to the subject matter of

the

testimony of

the witness,

the

court shall order it to be

delivered

directly

defendant

for his

to

the

examination

and use.

18 U.S.C.

3500(b).

The
used

term

"statement",

in subsections

and

(d)

of

relation to

this

as

(b), (c),
section

in

any witness called

by the United States, means--

. . . .

stenographic, mechanical,

electrical, or other recording,

or

transcription

which

is

verbatim

and
with

of

an

oral

by said witness

recorded contemporaneously
the

statement;

18 U.S.C.

substantially

recital

statement made

thereof,

3500(e)(2).

making of

such oral

There is nothing in

of the

subject

destroyed tapes

the record indicating that any

contained statements related

matter of LaPlante's testimony.

the missing tape

to the

On the other hand,

observation we made in Femia I

_____

is a strong

-66

indication

that

the

tapes

did

not

contain

Jencks

Act

statements:

The

evidence

district court
missing

showed that any

allegedly

fragments

of

copies

the

tapes

exist

or

form--did

exculpatory

destroyed
Reilly

the

and

provided
that

not

law

apparent
________
enforcement

tapes.

Agent

Detective

Kinder

the

Femia,

stating

destroyed
no

his

those

possess

affidavits

contained

for

exist in

value

before
______

one

missing

tapes which no longer

any

the

evidence--whether

considers

which

before

tapes

references
code

to

names

or

numbers.

Agent

Reilly

also

explained

that

any

tape

containing references

to Femia

would have been transcribed.

Femia I, 9 F.2d at 995.

_____

In light of

rule that

the facts and

the district

the applicable law,

court neither abused

nor clearly erred in finding and

we

its discretion

ruling as it did.

We think

its decision was clearly correct.

2.
2.

Whether the Supplemental Jury Instruction on Conspiracy

Whether the Supplemental Jury Instruction on Conspiracy
_______________________________________________________
Was Reversible Error
Was Reversible Error
____________________

The

replicate what

only

way

to

happened.

the jury submitted two

understand

this

After deliberating

Members of the jury,

let me

respond to your note, do it one

a time, and so I will state

is

to

for sometime,

written questions to the judge.

responded as follows:

at

issue

She

-77

for

the

record,

for

Mr.

Laughlin, each question.

Question 1 is:

Restate

the

charges.

I interpret that to mean the

accusations against

Mr. Femia.

I assume that's what you meant,

that you didn't wish me to give
you

the instructions

all over

again.

There

are

two

charges.

Count

defendant

of

member

of

of

1 accuses

the

having
a

distribute

sets

been

conspiracy

cocaine.

a
to

That's

Count 1.

There are two -- there's one

entirely

separate

charges, Counts
that

accuse

set

of

22 through 45,

the defendant

having

possessed

dates,

specific

cocaine

with

on

specific

amounts

the

of

of

intent

to

distribute that cocaine.

That's

the

second

set

of

charges.

Now,

let me

go back

for a

moment and explain again to you

each of these.

With respect to Count 1, the

conspiracy

charge,

the

government has to prove, first,

that

there

was

an

agreement

between two or more people, not

necessarily
have

been

indictment

Mr.

Femia,

anybody.

The

names some

people,

but any two people,

was
two

an

that there

agreement between

people

cocaine.

could

to
That's

distribute
the

thing it has to prove.

-88

any

first

The second thing

it has

to

prove is that Mr. Femia at some

point,

while

this

this

conspiracy

agreement,
was

existence, willfully,
with an intent
law,

became

that is,

to violate
a member

conspiracy.

in

the

of that

That's what

the

government has to prove.

The second question was:

In

Count 1, is paragraph 1 the

_______
___

summation
_________

of

charges

Mr. Femia, or

against

is paragraph

2b

(Count 1) part of the summation

_________
of

charges

explanation
___________

or
of

Counts 22-45.
the

cocaine
distribute

charges

in

charged
to

or

an

Specifically--is

defendant

conspiracy

simply

distribute

conspiracy
the

with

specific

to
47

kilograms
2b.

named

in

paragraph

(Id.)
___

The judge answered the question thus:

Now you

also inquired about

Paragraph

2B

indictment.
charge
what

The

sets
the

about.

It
2

out, in

to

this

conspiracy

then

general, the
the

in

general,

conspiracy

Paragraph

of

[b]

was

goes

all

on

in

describe,

in

role that various

defendants

this conspiracy.

played

in

And then

it

goes on in Paragraph 3
various sub parts

and its

to say

what

the purpose of this, the object

of this conspiracy was.
kind of goes

And it

on and on and

on

about that.

In

Paragraph

2B

[b],

the

government says what it -- what

it says Mr. Femia
your

deliberating

did.
on

But in
your

verdict and deciding this case,

-99

you

should

verdict

base,

base

your

on

what

the

not

indictment says, but on

all of

the

all of

the

evidence.

Taking

evidence,

you

need

to

decide what Mr. Femia did, what

Mr.

Femia

knew,

circumstances were.

what

the

And

then

based

that, all the

case,

what

of

evidence in

what the

you,

on all

the

witnesses told

the

exhibits

you, did he willfully

tell

become a

member of the conspiracy?

And

specifically did the government

prove

and

beyond a

convince

you

that

reasonable doubt that

he -- there was

this agreement

and that he willfully

became a

member of the conspiracy.

The first paragraph of

Count One of the indictment

charged nine named persons including Femia:

defendants
knowingly

and

combine,
and

herein,

did

intentionally

conspire, confederate

agree

with

each

other,

. . . and with other persons to

commit

an offense

United

States,

possess

with

distribute, and
quantities

of

against the
namely
intent

to
to

to distribute,
cocaine,

Schedule II narcotic controlled

substance,
Title

in

violation

21, United

of

States Code,

Section 841(a)(1).

Paragraph 2b of Count One of the indictment states:

b.

Defendant

Noel

Femia

also supplied

large quantities

of cocaine to

Triple X.

July

1984

to

April

From
1985,

defendant Noel Femia caused the

delivery
forty-seven

of

approximately
kilograms

-1010

of

cocaine,
wholesale

having

an

value of

aggregate
nearly two

million dollars, to Triple X on

consignment.

Following

delivery, this cocaine was sold

and distributed

by members and

associates of Triple X.

By now

it is axiomatic "that

a single instruction

to a jury may not be judged in artificial isolation, but must

be

viewed in the

context of the

overall charge."

Naughten, 414 U.S. 141, 146-47 (1973).

________

Cupp v.
____

In this connection we

note that defendant did not object to the original conspiracy

charge which was, of course, more extensive and detailed than

the

supplemental

one,

but

basically

conveyed

the

same

message.

It is

basis

for

instruction

difficult for

defendant's

was

defendant's brief

have

contention

that

erroneous.

It

that he

is arguing

been instructed that in

conspiracy count,

us to understand

might

the

be

exactly the

supplemental

inferred

that the jury

order to convict

from

should

Femia on the

the government had to prove the overt acts

alleged in paragraph 2b.

At the sidebar colloquy

after the

supplemental instructions were given, the judge asked defense

counsel:

"What

do

you want

me

to tell

them?"

replied:

MR.

This is

what I

want you to say, Judge.

I want

you

CARROLL:

to

say that

[b] is what the

Paragraph 2B
government has

Counsel

accused

Mr.

Femia

of

doing.

That's what they said he did in

-1111

this

conspiracy, that

was his

role in the conspiracy, and the

government must
reasonable

prove beyond a

doubt that

is what

he did.

The judge quite correctly pointed out:

"No.

That's

not the

law."

The Supreme Court unanimously held in United States

_____________

v. Shabani, 115 S. Ct. 382, 383 (1994), that 21

_______

does not require the government

committed

do

to prove that a

U.S.C.

conspirator

an overt act in furtherance of the conspiracy.

not think that United States v. Sepulveda,

______________
_________

(1st Cir. 1993), cert. denied, 114

_____ ______

any help to defendant.

the

convictions

challenged

center

around

charge of conspiracy to possess

and

distribute

prove a
under

cocaine.

To

drug conspiracy charge

21

government
beyond a

We

15 F.3d 1161

S. Ct. 2714 (1994), is of

In Sepulveda we held:
_________

Here,

848

U.S.C.
is obliged

846,

the

to show

reasonable doubt that

a conspiracy existed and that a

particular defendant agreed

to

participate in it, intending to

commit

the

substantive
possession

underlying
offense

of

(here,

cocaine

with

intent to distribute, 21 U.S.C.

841(a)(1).

Id.
___

at

1173

(citations

omitted).1

That

was

what

the

____________________

1.

Since Sepulveda,
_________

we have

clarified that the

"intent to

commit the underlying substantive offense" conspiracy element

is

properly

commission

construed
of the

as

an

"intent

substantive offense."

to

effectuate

the

United States v.
______________

Piper, 35 F.3d 611, 615 (1st Cir. 1994), cert. denied, 115 S.
_____
_____ ______
Ct. 1118 (1995).

-1212

supplemental

instructions

charged

here.

And

even

if

Sepulveda can be read otherwise, it is trumped by Shabani.

_________
_______

We find no error in the supplemental instructions.

3.
3.

Was the Evidence on the Conspiracy Count Sufficient

Was the Evidence on the Conspiracy Count Sufficient
___________________________________________________
for Conviction?
for Conviction?
_______________

In

reviewing the record

to determine

whether the

evidence was sufficient to convict, we assess the evidence in

the light most favorable to the government.

The

well-established

standard

for

evaluating

sufficiency claims
to

review

the

requires us

evidence as

whole, including all reasonable

inferences from

that evidence,

in the light most

the

favorable to

government.

If,

in

so

doing, we find that

a rational

trier of fact could

find guilt

beyond
have

a reasonable

doubt, we

option but

to affirm

no

the jury's verdict.

weigh

the

evidence,

credibility
resolved

We may not
and

questions must
in

favor

of

all
be
the

verdict.

United States v.
_____________

1993)

(1994).

(citations

Argencourt, 996 F.2d

__________

omitted), cert.
_____

1300, 1303 (1st

denied,
______

114

S. Ct.

Cir.

731

See also United States v. De La Cruz, 996 F.2d 1307,

___ ____ _____________
__________

1311

States
______

(1st Cir.), cert. denied, 114 S. Ct. 356 (1993); United

_____ ______
______

v. Innamorati, 996
__________

F.2d 456,

denied, 114 S. Ct. 409 (1993).

______

____________________

-1313

469 (1st

Cir.), cert.
_____

Applying this focus to

evidence.

Cristopher (Cris)

the prosecution,

Intinarelli

he, Alan Stone,

and Edward

pooled their resources and shared their contacts

and selling cocaine and

"Triple X" or "XXX."

Intinarelli.

times" to

LaPlante, the chief witness for

testified that

to form a drug cartel in

and

the record we summarize the

marijuana.

purchasing

The cartel was

known as

Defendant was a drug supplier for Stone

LaPlante

further Triple

that those who

1984 for the purpose of

met with

defendant

X's business.

did business

with Triple X

"numerous

LaPlante explained

were given

code name was

Max and

code

names and numbers.

Defendant's

his

code number was 86.

After a raid on Intinarelli's house, the

code

numbers were changed in January of 1985 "to protect the

identities

of

employees."

the

suppliers

the

customers

Defendant's new code number was 898.

was contacted

through

Fem's

Framingham, Massachusetts,

LaPlante

and

that

he

Gas Station

on

which he owned.

intended to

use

the

and

Defendant

Route

35

Defendant

proceeds

the

in

told

from the

cocaine sales to build a housing development on a large tract

of land he owned and then retire.

defendant in a

LaPlante saw entries about

notebook, used by Intinarelli

to record drug

transactions.

Phillip Moore

duties

consisted of

prior to sale,

was an

employee of

holding the

breaking it up

Triple X.

cocaine ("sitting

into small saleable

His

on it")

amounts,

-1414

and

delivering it to customers.

He was paid $1,000 a week.

Moore introduced defendant to Stone in the spring of 1984; he

told

Moore

Stone that

defendant

testified about

defendant.

could supply

three cocaine

him with

cocaine.

transactions involving

All three followed the same format.

Moore parked

his car

unlocked in

adjacent bar.

a parking

into his car.

out, there was

Stone.

this scenario was

a package of cocaine wrapped in

house where

on the

into an

Moore would then leave the

Each time

the back seat of the car.

"sat"

then went

Within a short time, defendant would tell

Moore that he should leave.

"safe"

He

Defendant subsequently joined him and they had

drink together.

and get

lot.

played

duct tape on

Moore took the cocaine back to the

he weighed

cocaine

bar

until he

and tested

it.

Moore then

received instructions

He then broke it up into small amounts

from

and delivered

it to customers.

Christine

absolute immunity.

Lenhard

testified

under

grant

of

She worked for Triple X as a "mule";

she

delivered cocaine to purchasers and picked up the money.

She

was

paid $1,000 a

week by Triple

involved with defendant.

personally

defendant's

observations

were

and

her

She was romantically

The Triple X partners that she knew

LaPlante

code name

X.

and

work

and

Intinarelli.

number.

She

for Triple

supplied the cartel with cocaine.

-1515

X,

Lenhard

knew

knew, based

upon

that

defendant

Donna Dinallo-Beane also testified under a grant of

absolute immunity.

She lived with LaPlante during Triple X's

operations and, like Lenhard,

"mule."

She

knew

was employed by Triple X

beyond doubt

that

defendant

as a

supplied

cocaine to Triple X.

Based

inferences

to

sufficient

to

upon

be

the

drawn

sustain

evidence

from

it,

defendant's

and

we

find

the

reasonable

that

conviction

it

on

was

the

conspiracy count.

4.
4.

The Refusal of the District Court to Grant a Judgment of

The Refusal of the District Court to Grant a Judgment of
________________________________________________________
Acquittal on Counts 22-24 of the Indictment or to Dismiss
Acquittal on Counts 22-24 of the Indictment or to Dismiss
_________________________________________________________
These Counts with Prejudice.
These Counts with Prejudice.
____________________________

This rather unique issue requires some explanation.

The indictment charges as follows:

COUNTS
TWENTY-TWO
THROUGH
_______________________________
FORTY-FIVE:
__________
-

(21 USC

Possession

Intent

841(A)(1)

of Cocaine

to Dist.;

18 USC

with
2 -

Aiding & Abetting)

The Grand

Jury further charges

that:

1.

On

listed

or

about

below,

Concord,

at

Framingham,

Holliston,

dates

Ashland,
Gardner,

Hopkinton,

Hudson,

Milford,

Natick,

Marlborough,

Northboro, Upton
in

the

the

and elsewhere
District

Massachusetts,

2.

NOEL FEMIA a/k/a

"ABDULE"

a/k/a "MAX"

a/k/a "#86"

of

[and others]
defendants
concert

herein,

and in

acting

in

furtherance of

-1616

the

conspiracy

Count

One,

described

in

did knowingly

and

intentionally
intent

possess

to distribute,

distribute,
quantities

the
of

with
and did

following
cocaine,

Schedule II narcotic controlled

substance.

Then follows a three-column list.

is

entitled "Count" and under it are listed in chronological

order the

second

count

words

"Twenty-Two"

column is

are

opposite

specific

"Twenty-Two"

"(approximate").

count and

grams.

with

dates

and

date

"Forty-Five."

and opposite

starting with

ending

with

The

each numbered

"July

24,

1984"

"March

22,

1985"

The third column is entitled "Amount"

Listed in

Defendant was

Forty-Five

through

headed "DATE"

opposite "Forty-Five."

the

The first column

this column to

columns are

amounts

charged in Counts

possessing

with intent

correspond with

in kilograms

and

Twenty-Two through

to

distribute and

distributing specific amounts of cocaine on specific dates.

The jury found defendant not guilty on Count Forty-

Five, but

did not return

through Forty-Four.

these counts.

The

any verdicts on

Counts Twenty-Two

In effect, there was a hung

government moved that

jury as to

Counts Twenty-Two

through Forty-Four be dismissed without prejudice.

_______

objected and moved for

or,

in

prejudice.

the

judgment of acquittal on the

alternative,

A hearing

that

was held.

-1717

they

be

The district

Defendant

counts,

dismissed

with
____

court granted

the government's motion and

denied defendant's motions.

trial judge stated:

Defendant's assertion
Counts

22

through

44

similarly

unpersuasive.

insists

that

government

as to

He

since

offered

is

the

the

same

proof for Counts 22

through 44

as for Count

LaPlante's

testimony
he

45 --

and certain

maintained

aberration

--

that

well.

government

was

the jury

not acquit him on

as

it

ledgers

In
did

an
did

those counts
fact,
not

the
simply

duplicate the evidence for each

count.

Although

LaPlante was

The

the

key

witness

substantive
charge

as

transaction
in

all

charges,

reflected

entry

to

and
the

testimony

each
separate

corresponding
ledger and

was,

in

different as to each.

the
fact,

Matters

of credibility are for the jury

and

it

may

portions

of

testimony

believe
a

witness's

and

others.

disbelieve

United
States v.
___________________

Jackson, 778 F.2d 933,

_______
Cir.

1985)

instruction
not

some

(upholding

that

required

942 (2d

"jurors

to

reject

are
or

accept any particular witness's

testimony in toto.")
evidence,

if

sufficient

acquittal
See
___

Fed.

believed,
to

convictions
through

Since the

as
44,
is
R.

to

was

sustain
Counts

judgment

22
of

inappropriate.
Crim. P.

Defendant's renewed

29(a).

motion for

judgment

of

acquittal

is

therefore denied.

At the

sentencing hearing I

allowed the government's motion

to

dismiss

without
_______

prejudice
_________

-1818

these
44).

same counts

(Counts 22-

For the reasons outlined,

defendant's

alternative motion

to

dismiss

with prejudice
____ _________

is

also denied.

The case

law holds squarely that

not have standing to

an indictment.

18

(1956), the

appeal a without-prejudice dismissal of

In Parr v. United States, 351 U.S. 513, 516____

______________

Court held

that a

defendant does

standing to appeal the dismissal of an

is not legally aggrieved

out the obvious:

order

must

a defendant does

abide

not have

indictment because he

by such action.

The

Court pointed

"The testing of the effect of the dismissal

petitioner's

trial, and

convicted will he have been aggrieved."

In United States v.
______________

(1st Cir. 1983), there

only

then,

if

Id. at 517.
___

Moller-Butcher, 723
______________

was an attempted appeal in

F.2d 189

which the

defendant

an

there sought, as does the

defendant here, to have

indictment dismissed with prejudice.

____

held

that "absent

has no

Citing to Parr, we
____

extraordinary circumstances,

standing to appeal

the dismissal of

Id.
___

at 190.

442

(8th Cir. 1991); United States v. Reale,

______________
_____

a defendant

an indictment."

See also United States v. Holub, 944 F.2d 441,

___ ____ ______________
_____

834 F.2d 281,

282 (2d Cir. 1987); United States v. Day, 806 F.2d 1240, 1242
_____________
___

(5th Cir. 1986).

We

defendant has

We see no extraordinary circumstances here.

cannot help but

been convicted

observe, however, that because

on the conspiracy

-1919

count there

seems

little reason

for keeping

the indictment

longer.

The judgment below is Affirmed.

Affirmed.
_________

alive much

-2020