United States v. Paulino

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5961
MANUEL FREDDY PAULINO,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-95-158-AW)
Argued: November 1, 1996
Decided: November 20, 1996
Before WILKINSON, Chief Judge, and RUSSELL and WIDENER,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Stanley E. Baritz, Anthony James Pagano, Rockville,
Maryland, for Appellant. David Ira Salem, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Lynne A.
Battaglia, United States Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Manuel Freddy Paulino was convicted of possession with intent to
distribute cocaine, and possession of ammunition in or affecting inter-
state commerce by a known felon, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 922(g)(1). Paulino appeals his convic-
tions on two grounds -- that the prosecution failed to turn over excul-
patory Brady material to the defense, and that the district court
erroneously allowed ATF agent Tom Love to testify as an expert on
the issue of ammunition in interstate commerce. Finding no merit in
the contentions, we affirm the judgment of the district court.
I.
Paulino was ordered to leave the country after being convicted in
1989 of possession of cocaine with intent to distribute. While con-
ducting an extensive investigation of his brother, Aslan, federal
agents discovered that Paulino had remained in the country in viola-
tion of the deportation order. The agents arrested Paulino on March
29, 1995 as he arrived in his car outside 1826 Metzerott Road #102.
After his arrest, Paulino signed consent forms allowing the agents
to search his car and apartment #102, which he identified as his apart-
ment and for which he provided an entrance key. In a bedroom which
Paulino identified as his own, agents found a tally sheet, numerous
documents both accurate and fake, and drug paraphernalia, such as a
digital scale. In the closet of Paulino's bedroom, agents found a safe
which they opened with a key and combination supplied by Paulino.
Inside were another scale, rubber bands, baggies, boric acid (a narcot-
ics cutting agent), and identification bearing Manuel Paulino's name.
Also in the closet, agents found several bags of cocaine (totaling
approximately 70 grams), a bottle of Inositol (a narcotics cutting
agent), and a loaded ammunition clip. One of the bags of cocaine bore
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Paulino's fingerprints. The apartment also contained a lease signed by
Aslan and two others.
After a three day trial in September 1995, a jury found Paulino
guilty of both possession of cocaine with intent to distribute and pos-
session of ammunition by a known felon. Paulino was sentenced to
51 months in prison.
II.
A.
Paulino first challenges the prosecutor's failure to turn over excul-
patory evidence that Paulino believes exists in government files. See
Brady v. Maryland, 373 U.S. 83 (1963). He argues that since the gov-
ernment was investigating Aslan, it should have had documents which
would show that Aslan, not Paulino, controlled apartment #102 at
1826 Metzerott Road, and was therefore in constructive possession of
the drugs and ammunition. As evidence of the existence of such docu-
ments, Paulino points to a memorandum written by an investigating
officer which stated that "[Assistant U.S. Attorney] Skalla did not feel
that probable cause existed to believe SUBJECT Manuel Freddy
Paulino resided at 1826 Metzerott Road #102." Skalla must have had
reasons for her doubts, argues Paulino, and those reasons must have
been based on some affidavit or other document that the government
is now refusing to release.
The United States conducted an inquiry into its files in response to
Paulino's request for Brady information and found nothing beyond
what it had already produced. The government told the trial court that
the document that Paulino insisted he should get did not exist. AUSA
Skalla recalled no information to "negate" Paulino's residence at 1826
Metzerott Road. She simply did not have enough evidence to satisfy
her that probable cause existed to issue a search warrant. Similarly,
Art Jacobson, the affiant for the search warrants, told the government
that no such negative information existed, and that Skalla had just
asked him to "develop" his evidence further before applying for a
search warrant for apartment #102. The government thus insists that
no Brady material exists, and Paulino has offered nothing beyond
speculation in response. Mere speculation that Brady material exists
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does not justify fishing expeditions in government files. United States
v. Crowell, 586 F.2d 1020, 1029 (4th Cir. 1978); see also United
States v. Morris, 957 F.2d 1391, 1402-03 (7th Cir. 1992). The trial
court did not abuse its discretion in disallowing such a search.
Some of the documents which were released to Paulino contained
redacted material which pertained to another criminal investigation.
Paulino, speculating that some of the redacted passages might contain
exculpatory material, continues to insist that he should have had
access to the unredacted documents. The trial court reviewed the doc-
uments in camera, and concluded that the redacted passages had "ab-
solutely no bearing on Mr. Paulino." The court stated that "clearly,
after having reviewed the entire file here, that it just is nothing, under
any stretch of the imagination, that can be characterized as exculpa-
tory . . . . I think you're fishing and reaching for straws. It's not there
. . . ." We see no basis for overturning this conclusion.
Finally, Paulino fails to sustain his burden of showing that any doc-
uments the government might have produced would have been both
exculpatory and material, that is, that"there is a reasonable probabil-
ity that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different." United States v. Bagley,
473 U.S. 667, 682, 685 (1985); see Brady v. Maryland, 373 U.S. 83(1963). Even if the government had possessed documents showing
that Aslan also used apartment #102, overwhelming evidence at trial
established that Paulino controlled the contraband. Paulino was
observed at 1826 Metzerott Road prior to his arrest, he had a key to
the premises with him, he identified a room inside as his own, per-
sonal papers of his were found in the room, he supplied a key and
combination to the safe, and one of the bags of cocaine in the closet
had his fingerprints on it.
B.
Paulino also alleges that the district court erred in allowing govern-
ment firearms expert Tom Love to testify concerning the place of
manufacture of the ammunition found in Paulino's closet. Agent
Love's testimony was introduced to show that the ammunition had
previously travelled in interstate commerce, in order to fulfill the "in-
terstate nexus" of the ammunition possession charge. 18 U.S.C.
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§ 922(g). Paulino argues that Agent Love's testimony was inadmissi-
ble under Federal Rules of Evidence 702, 703, and 705 because it was
pure speculation, because it was not based on information reasonably
relied on by experts in the field, and because Agent Love's experience
was minimal.
The trial court did not abuse its discretion by admitting Agent Love
as an expert. Persinger v. Norfolk & Western Ry. Co., 920 F.2d 1185,
1187 (4th Cir. 1990). It was established at trial that Love was an ATF
agent who had extensive training in firearms, had handled "thousands
of firearms and thousands of rounds of ammunition," had participated
in arrests of "several hundred persons," and had previously testified
in court regarding the interstate nexus of firearms after having
received specialized training on the subject. As to the basis of Agent
Love's testimony in this case, Love had personally examined the
ammunition, had observed that the bullets had "WCC" on their bot-
toms, and had determined that the ammunition had been manufac-
tured in 1990 in Illinois by Western Cartridge Company. He further
testified that there was no major ammunition manufacturer in Mary-
land (where Paulino resided), and no smaller manufacturer that used
the stamp "WCC." Love also contacted a Western Cartridge Company
representative to confirm his conclusions.
Many of Paulino's criticisms of Agent Love go to the weight, not
the admissibility, of his testimony. For example, such facts as the
number of years Love had been an agent, or the number of days of
training he had received are issues to be weighed by the jury. Paulino
offered nothing to contradict Agent Love's testimony, but instead
simply asserted that it was inadmissible and insufficient to establish
the interstate nexus. However, the jury weighed the evidence and
Agent Love's credibility and found the interstate nexus to have been
sufficiently established. Paulino failed at trial to raise a reasonable
doubt in the minds of the jurors about Love's credibility, and we
decline to endorse his efforts to reverse the jury's conclusion by find-
ing Agent Love's testimony inadmissible.
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III.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED
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