United States v. Francisco Rivera Rodriguez , 808 F.2d 886 ( 1986 )

TORRUELLA, Circuit Judge.

This appeal arises from the conviction of appellant Francisco Rivera Rodriguez in the United States District Court for the District of Puerto Rico for the importation of cocaine and the possession with intent to distribute cocaine. See 21 U.S.C. § 952(a), 841(a)(1) and 18 U.S.C. § 2. Appellant challenges his conviction on three grounds. We find that none of these grounds warrants reversal and thus affirm the district court.

I

Appellant’s first claim is that the trial court erred in admitting drug paraphernalia seized during his arrest. The trial court admitted the drug paraphernalia under Rule 404(b) of the Federal Rules of Evidence, which allows admission of evidence of other crimes or wrongful conduct to prove “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”

Appellant was arrested at his home and the automobile suspected to have been used during the commission of one of his offenses was seized. The trunk was opened and objects claimed by appellant’s wife to belong to her personally were given to her. A large plastic trash bag was removed, and although appellant’s wife claimed it, the bag was opened. Inside was a sifter-grinder and a spoon, both with traces of cocaine, and several small glassine envelopes.

A trial court may admit evidence under Rule 404(b) if (1) the evidence has some “special” probative value and (2) if this probative value outweighs any possible prejudice. United States v. Medina, 761 F.2d 12, 15 (1st Cir.1985). The evidence here has such probative value. The sifter-grinder and spoon were offered to show defendant’s knowledge; the traces of cocaine found on the spoon and the sifter-grinder were offered to show the identity of the drug; and the glassine envelopes, to show the absence of mistake or accident (i.e., that appellant was distributing cocaine in these envelopes after he had adulterated it). The balancing decision is left to the discretion of the district court. Id. The appellant alleges that the admission of the sifter-grinder had the prejudicial effect of raising the animosity of the jurors against the defendant; however, in light of the clear probative value of the evidence, we do not believe the district court abused its discretion.

The appellant further argues that the testimony regarding the uses of the sifter-grinder should not have been permitted. The witness, who had been properly established as an expert, testified that the sifter-grinder is an instrument that can be used to adulterate cocaine. Federal Rule of Evidence 702 permits expert testimony which will assist the trier of fact to understand the evidence. See Fed.R.Evid. 702, Advisory Committee Notes. “There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.” Id. (quoting Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 418 (1952)). In the instant case, it is doubtful that the jurors could have determined, without the aid of the expert witness, that the sifter-grinder is an instrument that can be used to adulterate cocaine. We do not consider this information to be within the common knowledge of jurors and thus, an appropriate explanation by an expert is preferable to jury speculation. Once the district court decided to admit the sifter-grinder into evidence, the explanation reasonably and necessarily followed.

II

Appellant claims, second, that there was insufficient evidence presented at trial. Appellant Rivera was charged with the importation of cocaine and the possession with intent to distribute cocaine in two separate indictments involving both counts. Those indictments were later joined for trial and appellant was convicted by a jury of all counts in both indictments. The first indictment concerned the events of January 7, 1985 and the second indictment concerned those of January 14, 1985. Appellant contests the sufficiency of the evidence in regards to the January 14 indictment.

On appeal, evidence is sufficient if a reasonable person could fairly find the defendant guilty beyond a reasonable doubt, viewing the evidence in the light most favorable to the government. U.S. v. Gibson, 675 F.2d 825, 829 (6th Cir.1982). The standard of review that applies to a refusal to direct a verdict in favor of a defendant is well established. A verdict should be directed only where the evidence could lead reasonable men to but one conclusion. This determination is to be made without evaluating the credibility of the witness or considering the weight of the evidence. Harrington v. United States, 504 F.2d 1306, 1311 (1st Cir.1974).

The evidence produced at trial consisted primarily of the testimony of Ms. Magda Castillo. Prior to her arrest, Magda had been employed as a waitress aboard the ship M/V VICTORIA for over a year. She was acquainted casually with another crew-member, Domingo Méndez-López. On January 3, while the ship was docked in Venezuela, Magda encountered Méndez at the Avila Restaurant. He introduced her to his friends and asked her to carry a package back on board. After she did this, Méndez revealed that the package, wrapped in Christmas paper, contained two kilograms of cocaine. He convinced her to help him while his usual cohort, another crewmember, was on vacation. On January 7, the ship arrived in Puerto Rico and Magda brought the package to Don Ricardo's Restaurant, where Méndez was waiting. The appellant arrived and Magda met him for the first time. The three then proceeded in the appellant’s brown Volvo to his place of business, where he dropped off the cocaine. They then drove to another spot where appellant unsuccessfully attempted to obtain payment for the cocaine. Magda was subsequently dropped off at the ship, and Méndez and the appellant continued on. That same night, Magda returned to Don Ricardo’s Restaurant and again met the appellant. They went out to his car and he gave her a large sum of money which she brought back to the ship and delivered to Méndez. These are the facts of the first completed transaction which comprise the first indictment.

The facts of the second indictment began when the M/V VICTORIA returned to Venezuela. Nuris, the wife of one of Méndez’ friends, Johnny, whom Magda had met at the Avila Restaurant the previous week, came to pick up the money and carry it off the ship. Magda had lunch at the Avila Restaurant with Méndez, Johnny and Nuris. Méndez gave Magda another package identical in appearance to the last one, which she again carried on board. Nuris gave Magda a napkin with her name, address and phone number written on it; this name and phone number corresponded to that found in an address and telephone book seized from appellant. The ship proceeded to Puerto Rico and on the morning of the 14th, a crewmember of the M/V VICTORIA disembarked and noticed Méndez and the appellant conversing on the dock leaning on a car which fits the description of appellant’s brown Volvo. The crewmember returned a while later and saw Méndez and the appellant still talking. This crewmember made a photo identification of the appellant, as well as an in-court identification. That same morning, about an hour later, Méndez asked Magda when she would bring the package to Don Ricardo’s Restaurant. Magda said that she could not because she had to be on the ship for an inspection. After much argument, she agreed to bring the package to Méndez at a cafeteria located on the dock. While going through customs, the cocaine was detected and Magda admitted that it belonged to Méndez. They were both arrested.

Other testimony against appellant included that of the DEA agent, who stated that as a result of his conversation with Magda after her arrest he began an investigation of the appellant who “was supposed to be the recipient of the two kilos of cocaine that was seized off the boat on January 14 and also the recipient of approximately two kilos of cocaine on January 7, 1985.” An address and telephone book seized from Méndez contained the appellant’s home and business phone number. Two months later, the appellant was arrested.

The Government may prove its case through the use of circumstantial evidence so long as the total evidence, including reasonable inferences, is sufficient to warrant a jury to conclude that the defendant is guilty beyond a reasonable doubt. United States v. Mehtala, 578 F.2d 6, 10 (1st Cir.1978). The issue here is whether there is evidence to support a jury finding that appellant was guilty at least as an aider and abettor of Méndez and Magda in the aborted delivery on January 14. To prove aiding and abetting, the government must show that appellant associated himself with the venture, that he participated in it as something that he wished to bring about, and that he sought by his actions to make the venture succeed. Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949).

There is direct testimony inculpating the appellant in regards to the January 7 indictment. The same pattern begins all over again, starting with the giving of a large sum of money to Magda to take on board, which the jury could interpret was to be taken to Venezuela to purchase the January 14 load, then the visit to the Avila Restaurant in Venezuela with Nuris and Johnny, the identical packages, proceeding to Puerto Rico, and then a request to disembark and again bring the package to Don Ricardo’s Restaurant. In the light of this uncontroverted evidence, appellant’s presence on the dock on the morning of January 14 cannot be seen as a mere coincidence. Appellant was an active participant in an on-going venture. Crucial to affirming his conviction, is the rule that the government need not exclude every reasonable hypothesis of innocence, provided the record as a whole supports a conclusion of guilt beyond a reasonable doubt. See, e.g., United States v. Smith, 680 F.2d 255, 259 (1st Cir.1982); United States v. Gabriner, 571 F.2d 48, 50 (1st Cir.1978); Dirring v. United States, 328 F.2d 512, 515 (1st Cir.1964).

In United States v. Smith, this court stated, “if the evidence can be construed in various reasonable alternatives, the jury is entitled to freely choose from among them.” 680 F.2d at 259. See also United States v. Klein, 522 F.2d 296, 302 (1st Cir.1975). In Smith, the defendant, a crewmember, was arrested on board a vessel which was transferring large quantities of marihuana on to another vessel. The defendant asserted that his mere presence at the scene of the crime, with no evidence that he participated in the venture, was insufficient to support a conviction. This court looked at the length of the voyage, the very large quantity of marihuana, and the necessarily close relationship of the defendant with the cargo and crew, “taken together with the reasonable inferences that can be drawn therefrom,” to support the conviction for conspiracy and for aiding and abetting. Id. at 260-61. The defendant alleged that he was an innocent hitchhiker; this is obviously a reasonable hypothesis of innocence, but one which the jury chose to disbelieve. Similarly, in the instant case, the jury looked at the total evidence, the mode of operation, and defendant’s presence on the dock the day of delivery, and rejected the hypothesis that the defendant’s presence was merely coincidental. They instead reasonably inferred that the pattern was repeating itself, and that if all had gone as planned, the appellant would have been waiting at Don Ricardo's Restaurant to receive the narcotics.

In Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954), the Court stated:

Circumstantial evidence ... is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.

The jury in the instant case weighed the probabilities and determined that appellant was an aider and abettor. The jury fit together the pieces of the jigsaw puzzle and identified the subject even though some pieces were lacking. See Dirring v. United States, 328 F.2d 512, 515 (1st Cir.1964).

In United States v. Paone, 758 F.2d 774 (1st Cir.1985) this court held that there was sufficient evidence to convict the defendant as an aider and abettor on the basis of his mere presence during two drug deals. On one occasion the defendant was in the back seat of the car and on the other, he was following in the distance. There was no active participation by the defendant and there was certainly a reasonable hypothesis that the defendant was merely present and not a participant. The jury decided that his presence at both drug deals was not coincidental. The evidence in the instant case is even more convincing, with direct testimony against the defendant by a co-participant in regards to a prior deal, the inference of a set pattern, and the defendant’s presence at the dock on the morning of the delivery. We hold that there was sufficient evidence to support a jury finding that appellant was guilty at least as an aider and abettor.

Ill

Appellant claims, finally, that the court did not afford counsel the opportunity to cross-examine the government agent as to the presence of a second car at defendant’s residence at the time he was arrested. The government agent testified, on direct examination, that after arresting the defendant, an address and telephone book was seized from the pocket of his trousers. The agents then searched and seized defendant’s car, a Volvo, which fit the description given by the two eye-witnesses. On cross-examination, the agent testified that there was another car, besides the Volvo, parked at defendant’s residence, which the agents did not search. The agent had never seen the other car before and had no knowledge as to whether the defendant had been using the other car prior to his arrest. Defense counsel continued questioning the agent regarding the other car until the court advised him not to persist since the agent had never seen the car before. At a bench conference, counsel attempted to explain his rationale for continuing the line of questioning; the judge determined that the questioning had no reasonable basis and ordered counsel to move on.

Appellant now contends that the disallowed questions could have affected the agent’s credibility. Appellant was allegedly trying to establish, on cross examination, that the agents not only searched the Volvo, but the other car as well, and it was at that point that defendant’s address and telephone book was found, contrary to the agent’s testimony. Appellant offered no proof, at the trial level or on appeal, to substantiate his allegations.

The Sixth Amendment right of a criminal defendant “to be confronted with the witnesses against him” includes the right to impeach credibility through cross-examination. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974). Although the trial judge retains the traditional discretion to limit the scope of cross-examination, this limitation must be done “with the utmost caution and solicitude for the defendant’s Sixth Amendment rights.” United States v. Houghton, 554 F.2d 1219, 1225 (1st Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977). The question before us then is whether the trial court abused its discretion in limiting the cross-examination. Id. The test for abuse of discretion was set forth by this Court in United States v. Fortes, 619 F.2d 108, 118 (1st Cir.1980):

In reviewing the trial judge’s exercise of discretion, one factor to be considered is the extent to which the excluded question bears upon character traits that were otherwise sufficiently explored. The court need not permit unending excursions into each and every matter touching upon veracity if a reasonably complete picture has already been developed.

Based upon the record below, and defense counsel’s inability, at the bench conference or on appeal, to offer a valid explanation for the purpose of his questions, the trial judge did not abuse his discretion.

The judgment of the district court is affirmed.