United States v. Echeverri

USCA1 Opinion January 5, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _________________________ No. 92-1426 UNITED STATES OF AMERICA, Appellee, v. MARCO A. ECHEVERRI, Defendant, Appellant. _________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Raymond J. Pettine, Senior U.S. District Judge] __________________________ _________________________ Before Selya, Circuit Judge, _____________ Bownes, Senior Circuit Judge, ____________________ and Stahl, Circuit Judge. _____________ _________________________ Edward C. Roy, with whom Roy & Cook was on brief, for _______________ ___________ appellant. Zechariah Chafee, Assistant United States Attorney, with _________________ whom Lincoln C. Almond, United States Attorney, was on brief, for _________________ the United States. _________________________ _________________________ SELYA, Circuit Judge. Defendant-appellant Marco A. SELYA, Circuit Judge. ______________ Echeverri asks us to overturn his conviction on two drug- trafficking charges. He alleges that the proof was insufficient to support the jury's verdict; that the government never properly authenticated a "drug ledger;" and that the court below erred in permitting an expert witness to testify concerning the import of the disputed document. Discerning no error, we affirm. I. BACKGROUND I. BACKGROUND We limn the facts in the light most favorable to the government, consistent with record support. See, e.g., United ___ ____ ______ States v. Maraj, 947 F.2d 520, 522 (1st Cir. 1991). ______ _____ Armed with a search warrant, a team of law enforcement officers including FBI Special Agent Frederick Ghio entered appellant's apartment in Pawtucket, Rhode Island. The living quarters consisted of a narrow bedroom, a multi-purpose room, and a bathroom, having a total combined area roughly equal to that of a one-car garage. When the agents arrived, Victor Gallego was leaving the bathroom and appellant was seated at a table in the multi-purpose room. Next to appellant, on the couch and in plain view, lay an earnings statement in his name. On the back of this statement was a handwritten column of numbers arrayed in the following fashion: [2000] 17000 [1000] 10000 [1000] _____ 34000 In the course of the ensuing search the agents found a tape-wrapped block of cocaine eighty-six percent pure and weighing about two pounds on the toilet lid. The tape had broken and the contraband was exposed. An electronic scale lay nearby. Gallego and Echeverri were charged with possession of cocaine with intent to distribute it, 21 U.S.C. 841(a)(1); 841(b)(1)(B), and with participating in a drug distribution conspiracy. 21 U.S.C. 846. Gallego pled guilty and Echeverri stood trial alone. Over his objection, the government introduced the earnings statement into evidence. The court allowed agent Ghio to testify that, in his opinion, the reverse side of the statement comprised a drug ledger (the individual figures corresponding to per-ounce prices for various cocaine sales in the Rhode Island market). Ghio further testified that it was common for cocaine dealers to keep their accounts in such fashion; that the going price for cocaine was $35,000 to $40,000 per kilogram; that the total shown on the earnings statement, if interpreted to mean "dollars" and added correctly,1 corresponded ____________________ 1The column of figures, added correctly, totalled 37,000, not 34,000. We consider this mathematical mishap unimportant. [3] in rough proportion to the gross sales price of the aggregate cocaine on hand; and that the quantity of narcotics seized was inconsistent with personal use. The jury convicted Echeverri on both counts. This appeal ensued. II. SUFFICIENCY OF THE EVIDENCE II. SUFFICIENCY OF THE EVIDENCE Appellant labors to convince us that the judgment below rests on too fragile an evidentiary foundation. We are not persuaded. A. Standard of Review. A. Standard of Review. ___________________ The standard of review applicable to sufficiency-of- the-evidence challenges is settled. An appellate court must examine the evidence in the light most flattering to the prosecution, indulging all reasonable inferences in its favor and then determining whether a rational jury could find guilt beyond a reasonable doubt. See, e.g., Maraj, 947 F.2d at 522-23; United ___ ____ _____ ______ States v. Boylan, 898 F.2d 230, 243 (1st Cir.), cert. denied, 111 ______ ______ _____ ______ S.Ct. 139 (1990). In making this determination, the court must credit both direct and circumstantial evidence and it must do so without evaluating the relative weight of different pieces of proof or venturing credibility judgments. To uphold a conviction, the court need not believe that no verdict other than a guilty verdict could sensibly be reached, but must only satisfy itself that the guilty verdict finds support in "a plausible rendition of the record." United States v. Ortiz, 966 F.2d 707, _____________ _____ 711 (1st Cir. 1992), petition for cert. filed (U.S. October 19, ________ ___ _____ _____ [4] 1992) (No. 92-6552). B. Possession with Intent to Distribute. B. Possession with Intent to Distribute. _____________________________________ In challenging his conviction on the specific-offense count, appellant questions whether the evidence is copious enough to sustain a finding that he knowingly possessed cocaine. The government, he says, proved no more than his "mere presence" at a site where drugs were found. The "mere presence" defense has become, at one and the same time, both the last haven of the innocent and the last refuge of the scoundrel. Although courts have found it applicable in certain situations, United States v. Barnes, 890 _____________ ______ F.2d 545, 549 (1st Cir. 1989) (collecting cases), cert. denied, _____ ______ 494 U.S. 1019 (1990), the mere presence defense is not so ubiquitous as to envelop every drug-trafficking case in which the government lacks direct evidence of a defendant's complicity. The defendant's presence at a place where contraband is found may or may not be purely coincidental. The attendant circumstances tell the tale and the culpability of a defendant's presence hinges upon whether the circumstances fairly imply participatory involvement. In other words, a defendant's "mere presence" argument will fail in situations where the "mere" is lacking. This is such a situation. There is far more to the prosecution's case against Echeverri than his corporeal presence in the apartment. A rational jury, drawing reasonable inferences from proven facts, could certainly have concluded that this was a case of culpable presence as opposed to mere presence, see Ortiz, ___ _____ [5] 966 F.2d at 712, and that appellant was in knowing possession of the contraband at the time of the raid. We explain briefly. Both constructive possession and guilty knowledge may be inferred from a defendant's dominion and control over an area where narcotics are found. See, e.g., Barnes, 890 F.2d at 549. ___ ____ ______ In this instance, there is considerable evidence of dominion and control. Appellant concedes that the apartment was his abode. His rent receipts, passport, and other personal effects were strewn about the premises. As the lessee of the apartment, and the one who called it home, appellant was hardly powerless to determine who and what could come inside.2 Moreover, the entire apartment consisted of a small, cramped space. The cocaine was in plain view, resting openly on the dwelling's only toilet. Tools of the drug trade were conspicuously displayed. Echeverri himself was physically present, seated within four feet of the contraband. All in all, the totality of the circumstances suffices to support both a finding of constructive possession and a finding of guilty knowledge. See, e.g., United States v. Gonzalez-Torres, ___ F.2d ___ ____ _____________ _______________ ___, ___ [No. 91-2140, slip op. at 2-6]; Ortiz, 966 F.2d at 713_____ 14; United States v. Desmarais, 938 F.2d 347, 352 (1st Cir. ______________ _________ 1991); United States v. Batista-Polanco, 927 F.2d 14, 19 (1st ______________ _______________ Cir. 1991); Barnes, 890 F.2d at 549-51; see also United States v. ______ ___ ____ _____________ ____________________ 2The fact that appellant, as the sole rent payer and resident of the dwelling, had the exclusive right to control the comings and goings there is one of several important distinctions between this case and United States v. Ocampo, 964 F.2d 80 (1st _____________ ______ Cir. 1992), much bruited by appellant. [6] Calle-Cardenas, 837 F.2d 30, 32 (1st Cir.) (where apartment in ______________ which defendant was found contained his clothes and identification cards, he had dominion and control over apartment), cert. denied, 485 U.S. 1024 (1988); United States v. _____ ______ _____________ Lochan, 674 F.2d 960, 965-66 (1st Cir. 1982) (defendant had ______ dominion and control over area behind back seat of automobile he was driving and, therefore, over hashish stowed in that area). The evidence was also ample to sustain a finding of scienter. We have repeatedly held, and today reaffirm, that an intent to distribute drugs can legitimately be inferred from factors such as quantity and purity. See, e.g., United States v. ___ ____ _____________ Ocampo-Guarin, 968 F.2d 1406, 1410 (1st Cir. 1992) (collecting _____________ cases); Batista-Polanco, 927 F.2d at 18-19. Such factors prevail _______________ here. Furthermore, agent Ghio's testimony adds strength to the relevant evidentiary predicate. We will not paint the lily. Because we require only that a jury's verdict be supportable, not that it be inevitable, see Boylan, 898 F.2d at 243, we must affirm appellant's ___ ______ conviction for possession with intent to distribute. C. Conspiracy. C. Conspiracy. ___________ Appellant's challenge to his conspiracy conviction fares no better. To support a conspiracy conviction, the prosecution must prove certain things not required under the specific-offense count. It must show, inter alia, that an _____ ____ agreement or working relationship existed, that it had an unlawful purpose, and that the defendant was a voluntary [7] participant in it. See United States v. David, 940 F.2d 722, 735 ___ _____________ _____ (1st Cir. 1991), cert. denied, 112 S.Ct. 605, 908, 1298, 2301 _____ ______ (1992); United States v. Rivera-Santiago, 872 F.2d 1073, 1079 _____________ _______________ (1st Cir.), cert. denied, 492 U.S. 910 (1989). The agreement _____ ______ itself "need not be express, but may consist of no more than a tacit understanding." United States v. Glover, 814 F.2d 15, 16 ______________ ______ (1st Cir. 1987) (citations and quotation marks omitted); accord ______ United States v. Paiva, 892 F.2d 148, 161 (1st Cir. 1989). ______________ _____ Moreover, the proof of a defendant's conspiratorial involvement may consist of indirect evidence, including reasonable inferences drawn from attendant circumstances. See, e.g., David, 940 F.2d ___ ____ _____ at 735; Glover, 814 F.2d at 16-17. In the last analysis, ______ criminal juries are not expected to ignore what is perfectly obvious. See United States v. Ingraham, 832 F.2d 229, 240 (1st ___ _____________ ________ Cir. 1987), cert. denied, 486 U.S. 1009 (1988). _____ ______ In this case, there was evidence that, in a tiny apartment, within feet of the sole tenant, law officers found a commercially exploitable quantity of high-purity cocaine, a measuring scale of the sort frequently used by narcotics dealers to ply their trade, and a drug ledger (written on the back of the tenant's pay stub). Exiting from the room where the cocaine lay open and exposed was another man (Victor Gallego). A jury viewing this evidence could reasonably conclude that the two men had agreed to disobey the law and distribute cocaine. Cf., e.g., ___ ____ Ortiz, 966 F.2d at 712 (criminals "rarely seek to perpetrate _____ felonies before larger-than-necessary audiences"); Batista________ [8] Polanco, 927 F.2d at 18-19 (similar); United States v. Cuevas_______ _____________ _______ Esquivel, 905 F.2d 510, 515 (1st Cir.) (similar), cert. denied, ________ _____ ______ 111 S.Ct. 208 (1990). III. OTHER ASSIGNMENTS OF ERROR III. OTHER ASSIGNMENTS OF ERROR We consider appellant's assignments of mid-trial error in the ensemble. A. Authentication. A. Authentication. _______________ Appellant complains that the government failed to authenticate the so-called drug ledger as required by Fed. R. Evid. 901, and that, consequently, the district court erred in admitting it into evidence.3 We review the trial court's rulings concerning authentication of documents only for mistake of law or abuse of discretion. See Ortiz, 966 F.2d at 716; ___ _____ United States v. Ladd, 885 F.2d 954, 956 (1st Cir. 1989). _____________ ____ When the authenticity of a document is challenged, the court must determine whether there is sufficient threshold proof that the document is what its proponent claims it to be. See ___ ____________________ 3The rule provides in pertinent part: The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Fed. R. Evid. 901 (a). [9] Ortiz, 966 F.2d at 716. The Federal Rules of Evidence adopt a _____ flexible approach to this question. Indeed, the applicable rule suggests that the "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances," can confirm a document's authenticity. Fed. R. Evid. 901(b)(4). In this instance, the government claimed that the earnings statement doubled as a drug ledger. The district court admitted the evidence on that basis. We discern no error. The earnings statement was clearly identified with Echeverri it was, after all, a recapitulation of his wages, reposing in his apartment. Federal agents discovered the document lying on a couch within feet of a sizable, easily visible package of cocaine. The column of handwritten figures on the paper totalled 37,000 the approximate dollar value of the discovered cocaine in the local market. Finally, an agent familiar with the drug trade testified on voir dire that he believed the document was a drug ledger and gave persuasive reasons in support of that conclusion. No more was exigible. To be sure, the government presented no direct proof that Echeverri authored the jottings on the earnings statement. But, such proof was not a prerequisite to admissibility in the circumstances at bar. On the record before us, the government sufficiently connected the document to the conspiracy and to the appellant, even though it did not conclusively prove the author's identity. Cf., e.g., United States v. Natale, 526 F.2d 1160, ___ ____ ______________ ______ [10] 1173 (2d Cir. 1975) (holding that, for authentication, "[p]roof of the connection of an exhibit to the defendants may be made by circumstantial, as well as direct, evidence"), cert. denied, 425 _____ ______ U.S. 950 (1976). Whether Echeverri, his coconspirator, or some third person was the one who actually put pen to paper and wrote down the figures is of no moment. Regardless, the evidence that identified the document as a drug ledger was the key to the issue of authentication. See United States v. Smith, 918 F.2d 1501, ___ ______________ _____ 1510 (11th Cir. 1990), cert. denied, 112 S.Ct. 151, 253 (1991); _____ ______ United States v. Drougas, 748 F.2d 8, 26 (1st Cir. 1984).4 _____________ _______ B. Expert Testimony. B. Expert Testimony. _________________ Appellant also contends that the district court erred in allowing agent Ghio to offer opinion evidence anent the drug ledger. His contention is unavailing. We have consistently recognized that academic training is not a sine qua non of expert knowledge concerning the ____________________ 4The cases cited by appellant in support of his challenge are readily distinguishable. In both United States v. Mouzin, ______________ ______ 785 F.2d 682 (9th Cir.), cert. denied, 479 U.S. 985 (1986) and _____ ______ United States v. Ordonez, 737 F.2d 793 (9th Cir. 1983), the ______________ _______ government argued that intricately detailed writings were properly admitted into evidence to prove the truth of the matter asserted therein because the writings were coconspirators' statements or statements of a party opponent. In this context, the Ninth Circuit found error because there was no evidence of actual authorship and, therefore, no foundation for the admission of such statements. See Mouzin, 785 F.2d at 692; Ordonez, 737 ___ ______ _______ F.2d at 800-02; see also Fed. R. Evid. 801(d)(2). In contrast, ___ ____ there has been no suggestion in the instant case that the document was admitted to prove the truth of the matter asserted therein. Rather, the jottings on this sheet are more akin to physical evidence of the crime than to potential hearsay statements. See, e.g., United States v. Wilson, 532 F.2d 641, ___ ____ ______________ ______ 645-46 (8th Cir.), cert. denied, 429 U.S. 846 (1976). _____ ______ [11] practices of hard-core drug traffickers. See, e.g., United ___ ____ ______ States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987). Perhaps ______ _______ realizing the durability of this tenet, appellant does not question Ghio's qualifications to serve as an expert witness. He does, however, question the need for expert testimony. In deciding whether to admit or exclude opinion evidence, courts must assess whether the testimony will likely assist the jury in understanding the proof or ascertaining the facts. See Fed. R. Evid. 702. Because of its first-hand ___ acquaintance with the case, the trial court enjoys broad leeway in making this discretionary determination. The court of appeals will overturn a trial-level determination about the need for expert testimony only if a manifest abuse of the trial court's discretion is in prospect. See Ladd, 885 F.2d at 959; Hoffman, 832 F.2d at 1310. ___ ____ _______ Here, the central issue on count 2 was whether appellant was or was not a knowing and intentional participant in a cocaine conspiracy. Ghio's testimony was clearly relevant to that issue. Moreover, the testimony was undoubtedly helpful to the jury. Laymen, on average, are not familiar with the praxis of the cocaine community. See Ladd, 885 ___ ____ F.2d at 960. It follows that a trial court may allow a qualified expert to identify an otherwise inscrutable document as a drug ledger and explain its contents. See, e.g., United States v. ___ ____ _____________ Campino, 890 F.2d 588, 593 (2d Cir. 1989), cert. denied, 494 U.S. _______ _____ ______ [12] 1068, (1990); United States v. Diaz, 878 F.2d 608, 619 (2d Cir), _____________ ____ cert. denied, 493 U.S. 993 (1989); United States v. DeSoto, 885 _____ ______ _____________ ______ F.2d 354, 362 (7th Cir. 1989); see also United States v. Rubio___ ____ _____________ ______ Estrada, 857 F.2d 845 (1st Cir. 1988) (noting approvingly, albeit _______ without considering the issue raised by this appellant, that the jury had before it the expert testimony of a government witness who identified and explained a drug ledger). The lower court acted well within the encincture of its discretion in permitting the use of such evidence here.5 IV. CONCLUSION IV. CONCLUSION We need go no further. The government proved Echeverri's guilt beyond a reasonable doubt in a trial free from reversible error. The judgment below is therefore Affirmed. Affirmed. ________ ____________________ 5We note that the district court wisely instructed the jurors that agent Ghio's opinion testimony, like opinion testimony generally, was not binding upon them.