United States v. Echeverri

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
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:
2
1000
2000
17000
1000
10000
4000
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
Appellant labors to convince us that the judgment below
rests on too fragile an evidentiary foundation. We are not
persuaded.
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.
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.
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
We consider appellant's assignments of mid-trial error
in the ensemble.
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.
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.
121068, (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
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.
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.
13