USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2470
UNITED STATES OF AMERICA,
Appellee,
v.
TEMISTOCLES PAULINO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Selya, Cyr and Stahl, Circuit Judges.
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Scott A. Lutes for appellant.
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Margaret E. Curran, Assistant United States Attorney, with
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whom Edwin J. Gale, United States Attorney, and Gerard B.
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Sullivan, Assistant United States Attorney, were on brief, for
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the United States.
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January 5, 1994
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SELYA, Circuit Judge. Defendant-appellant Temistocles
SELYA, Circuit Judge.
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Paulino asks us to set aside his conviction and direct his
acquittal, or, in the alternative, order a new trial. Having
reviewed the record, we decline to disturb the judgment below.
I
I
This case finds its genesis in an undercover
investigation of narcotics trafficking conducted by the
Providence, Rhode Island police department. The investigation
focused on an apartment building at 70 Peace Street. In due
course, the police began paying special attention to apartment
706. On several occasions in late May and early June of 1992,
they observed appellant in and around the apartment.
After intensive surveillance, an informant, acting
under police auspices, entered apartment 706 during early June
and made a controlled purchase of cocaine from the principal
suspect, Moreno, inside the apartment. While the transaction was
in progress detectives observed Paulino peering from a window.
The officers subsequently obtained a search warrant and executed
it on June 11, 1992. They discovered appellant in the kitchen
and a stranger, Junior Rodriguez, taking a shower.1 The man
known as "Moreno" was elsewhere when the police arrived, and his
whereabouts remain a mystery.
Although the tiny apartment contained little more than
a kitchen, bathroom, and bedroom, it nevertheless disclosed
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1Prior to June 11, 1992, the date when the police discovered
him completing his ablutions, Rodriguez had never before been
seen in or around 70 Peace St.
2
bountiful evidence of drug trafficking activities. Detectives
found an assortment of drugs in the bedroom, namely, three
plastic bags containing 64.02 grams of cocaine in the aggregate,
and a fourth bag containing a "speedball" (a mixture of cocaine
and heroin) weighing 11.79 grams. The search party found the
speedball perched on a small coffee table, inside a five-pound
bag of rice; on a piece of foil next to the rice rested a rock of
cocaine weighing 95.11 grams. The rock showed signs of having
recently been "cooked".
The search uncovered more than the narcotics cache.
From atop the coffee table, the police confiscated a collection
of drug paraphernalia, including a digital scale, three sifters,
a playing card, packaging materials, three separate kinds of
cutting agents, and a small notebook that appeared to be a drug
ledger. On a chair next to the table, under a shirt, within easy
reaching distance of the drugs, officers spotted a loaded
revolver.2 On appellant's person, officers found a key to the
apartment's front door. No other key to the apartment was
located.
II
II
Based primarily on this evidence, a federal grand jury
returned a three-count indictment against appellant. Count one
charged him with possession of cocaine, intending to distribute
it, in violation of 21 U.S.C. 841(a)(1) & (b)(1)(C) (1988 &
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2We temporarily exclude from the inventory of unveiled items
the receipt for a Postal Service money order, discussed infra
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Part III.
3
Supp. IV 1992). Count two charged him with possessing heroin,
intending to distribute it, in violation of the same statutory
provisions. Count three charged him with possession of a firearm
during and in relation to drug trafficking, in violation of 18
U.S.C. 924(c) (1988 & Supp. IV 1992). A jury found appellant
guilty across the board. On December 10, 1992, the court
sentenced him to concurrent 37-month terms of imprisonment on the
two narcotics counts and a consecutive 60-month prison term on
count three. This appeal ensued.
III
III
Appellant's most touted assignment of error relates to
a so-called "customer's receipt" for a Postal Service money order
discovered on a kitchen shelf. The receipt bore appellant's name
(although his given name, "Temistocles," was spelled with two
surplus letters, viz, "Temistomecles"), listed his address as "70
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Peace #706 Prov. RI 02907," and purported to corroborate payment
to "Tower Management" in an amount of $280. In the "used for"
space, someone had written "May rent."
At trial, the prosecution offered the receipt to prove
the truth of the matter asserted therein: that appellant had
paid the apartment rent for May 1992 a period when the
apartment was used as a drug distribution outlet. The proffer
was unaccompanied by testimony from the landlord, from Tower
Management, from the postal service, or, for that matter, from
any person other than a member of the search party. The lower
court nonetheless admitted the receipt into evidence over
4
appellant's timely objection and the prosecutor used it to good
effect.
In this court, as below, appellant assigns error. He
cites both the lack of an appropriate foundation and the hoary
prohibition against hearsay evidence. We examine these
assertions in turn.
A
A
The logical starting point for consideration of
appellant's first asseveration is Fed. R. Evid. 901(a). The rule
reminds us that documentary exhibits must be authentic and that
"[t]he 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); see also
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United States v. Arboleda, 929 F.2d 858, 869 (1st Cir. 1991).
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Under the Evidence Rules, authentication can be accomplished
without the direct testimony of either a custodian or a
percipient witness.3 See Fed. R. Evid. 903. Thus, for example,
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a document's "[a]ppearance, contents, substance, internal
patterns, or other distinctive characteristics, taken in
conjunction with circumstances," can, in cumulation, provide
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3Notwithstanding this possibility, prudent parties will
usually take advantage of direct testimony, especially when it is
readily available. In this case, for example, the government
jeopardized the entire prosecution by not attempting to
authenticate the receipt in better fashion. We should not have
to remind experienced prosecutors that, as Benjamin Franklin
observed more than two centuries ago, for want of a nail the
rider will sometimes be lost.
5
sufficient indicia of reliability to authenticate it. Fed. R.
Evid. 901(b)(4); see also United States v. Newton, 891 F.2d 944,
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947 (1st Cir. 1989).
In respect to matters of authentication, the trial
court serves a gatekeeping function. See generally Fed. R. Evid.
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104(a) (discussing handling of preliminary questions of
admissibility). If the court discerns enough support in the
record to warrant a reasonable person in determining that the
evidence is what it purports to be, then Rule 901(a) is satisfied
and the weight to be given to the evidence is left to the jury.
See United States v. Ladd, 885 F.2d 954, 956 (1st Cir. 1989);
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United States v. Williams, 809 F.2d 75, 89 (1st Cir. 1986), cert.
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denied, 481 U.S. 1030 (1987); see also Fed. R. Evid. 104(e).
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Because rulings of this stripe involve the exercise of the
district court's sound discretion, we review them only for
mistake of law or abuse of that discretion. See United States v.
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McMahon, 938 F.2d 1501, 1508 (1st Cir. 1991); Ladd, 885 F.2d at
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956; United States v. Masse, 816 F.2d 805, 813 (1st Cir. 1987);
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Williams, 809 F.2d at 89-90.
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In this instance, the trial court addressed the issue
of authenticity and concluded that the receipt's contents and the
attendant circumstances warranted a finding of authenticity. We
believe that this determination is supportable. The document was
of a type likely to be saved only by a rent-payer (or, perhaps,
by a landlord). It was found, neatly stored, in a small,
seemingly uninhabited apartment. Although no one was in
6
residence, appellant had been in the apartment, on and off, for
at least two weeks prior to the searchers' discovery of the
document, and, importantly, he had been seen there in May, that
is, during the rental period covered by the receipt. To clinch
matters, appellant had been in the apartment on the day of the
earlier sale; he was there at the time of the raid; and he alone
possessed a latchkey. The judge plausibly could infer from those
facts that appellant had somehow acquired a right of occupancy
in, and a degree of dominion over, the apartment.
The physical setting in which the document surfaced is
equally telling. The apartment harbored a large-scale narcotics
operation. Drugs, drug paraphernalia, and tools of the trade
were strewn about in plain view. The circumstances supported an
inference that appellant was part and parcel of the ongoing
activities, see infra Part IV; and, further, that payment in a
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hard-to-trace manner, such as payment by money order, was
compatible with the nature of the illicit enterprise.
Lastly, the content of a disputed document may itself
furnish indicia of authenticity. See Newton, 891 F.2d at 947;
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see also Fed. R. Evid 901(b)(4). Here, the document's contents
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buttress a finding that it is an authentic rent receipt, issued
to Paulino. The document bears appellant's name.4 It lists the
correct apartment number. And, it refers to a time frame within
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4Appellant makes much of the fact that his first name was
misspelled. We do not think that this circumstance possesses
decretory significance. It is altogether unsurprising that a
payee would spell a payor's rather unusual name incorrectly in
scribbling a receipt.
7
which the drug distribution center was in operation.
Taking the totality of the circumstances into account,
and giving due deference to the wide radius of the trial court's
discretion in such matters, we cannot say that the court erred in
ruling that, at least presumptively, the document is what it
purports to be: a receipt evidencing appellant's payment of rent
with respect to apartment 706.
B
B
Authenticity and admissibility, though often closely
related, are separate inquiries. The mere fact that a document
is authentic does not necessarily mean that it is admissible in
evidence. See United States v. De Jongh, 937 F.2d 1, 5 n.7 (1st
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Cir. 1991). We turn, then, to the question of admissibility.
In overruling appellant's hearsay objection, the
district court did not specifically identify a hearsay exclusion
or exception that removed the barrier to introduction of the
evidence. While this lack of specificity complicates the
appellate chore, it does not require reversal of the lower
court's ruling. If evidence is admissible for the truth of the
matter asserted under some cognizable theory, the district
court's failure to articulate that theory will not prevent an
appellate court from relying upon it. See United States v.
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Nivica, 887 F.2d 1110, 1127 (1st Cir. 1989), cert. denied, 494
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U.S. 1005 (1990); cf. Polyplastics, Inc. v. Transconex, Inc., 827
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F.2d 859, 860-61 (1st Cir. 1987) (explaining that an appellate
court is not wed to the trial court's reasoning, but is free to
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affirm a judgment on any independently sufficient ground made
manifest in the record).
In the present situation, we believe the receipt can be
classified as an adoptive admission, and, therefore, that it
eludes the hearsay bar. This analysis depends, of course, on
Fed. R. Evid. 801(d)(2)(B), which instructs courts that when the
evidence shows a party to have "manifested an adoption or belief
in [the] truth" of a statement made by another, the statement
loses its hearsay character and becomes admissible in evidence if
offered against the adopting party. In applying this doctrine,
courts frequently have construed possession of a written
statement as an adoption of what its contents reveal. See, e.g.,
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United States v. Ospina, 739 F.2d 448, 451 (9th Cir.) (involving
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a receipt for a hotel room), cert. denied, 469 U.S. 887 (1984)
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and 471 U.S. 1126 (1985); United States v. Marino, 658 F.2d 1120,
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1124-25 (6th Cir. 1981) (involving possession of airline
tickets).
We think that the correct approach, exemplified by
Ospina, is that "possession plus" can evidence adoption. Put
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another way, so long as the surrounding circumstances tie the
possessor and the document together in some meaningful way, the
possessor may be found to have adopted the writing and embraced
its contents. Over and above possession, the tie is very strong
here: appellant held the only known key to the apartment; he had
frequented the premises; the saved document bore his name; and he
was, at the very least, privy to the criminal enterprise.
9
Consequently, the record is sufficient to permit a finding that
appellant possessed and adopted, the receipt.
We need not wax longiloquent. The court of appeals
reviews a trial judge's admission of evidence over a hearsay
objection only for abuse of discretion. See DCPB, Inc. v. City
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of Lebanon, 957 F.2d 913, 918 (1st Cir. 1992); United States v.
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Abreu, 952 F.2d 1458, 1467 (1st Cir.), cert. denied, 112 S. Ct.
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1695 (1992). We are satisfied that, in this instance, Fed. R.
Evid. 801(d)(2)(B) authorized the admission of the receipt as
non-hearsay evidence against the appellant. The district court,
therefore, did not outstrip the bounds of its discretion.
IV
IV
Appellant's final assignment of error questions the
sufficiency of the evidence. Sufficiency challenges travel a
well defined course in criminal cases. Following a guilty
verdict, a reviewing court must scrutinize the record, drawing
all reasonable inferences in favor of the verdict, to ascertain
if a rational jury could have found that the government proved
each element of the crime beyond a reasonable doubt. See United
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States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993); United
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States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied,
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113 S. Ct. 1005 (1993). To sustain a conviction, a reviewing
court need not conclude that only a guilty verdict could
appropriately be reached; it is enough that the jury's
determination draws its essence from a plausible reading of the
record. See Echeverri, 982 F.2d at 677; Ortiz, 966 F.2d at 711.
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10
Using these guideposts, the quantum of evidence adduced here,
though largely circumstantial, is adequate to the task.5
Appellant's sufficiency challenge is a weak point,
easily dispatched. For discussion purposes, however, it must be
bifurcated to permit separate analysis of (a) the two drug
trafficking counts, and (b) the firearms count.
A
A
Appellant asserts that sheer happenstance placed him in
harm's way and questions whether there was enough evidence to
sustain a finding that he possessed cocaine and heroin, intending
to distribute them, as charged in counts one and two,
respectively. To convict on these charges, the government had
the burden of proving beyond a reasonable doubt that Paulino
knowingly and intentionally possessed the drugs, and did so with
intent to distribute them. See United States v. Barnes, 890
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F.2d 545, 549 (1st Cir. 1989), cert. denied, 494 U.S. 1019
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(1990); see also 21 U.S.C. 841(a)(1) & (b)(1)(C). Appellant
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suggests that a necessary ingredient guilty knowledge is
lacking here. To bolster this suggestion, he labors to convince
us that the evidence shows no more than his mere presence at the
apartment where the drugs were situated. He argues, therefore,
that the district court erred in denying his motion for judgment
of acquittal on both drug trafficking counts. We are not
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5In a criminal case, the government can satisfy its burden
of proof by either direct or circumstantial evidence, or by a
combination of both. See Echeverri, 982 F.2d at 677; United
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States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.), cert.
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denied, 492 U.S. 910 (1989).
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persuaded.
This court has recognized the difference between "mere
presence" and "culpable presence" in the context of drug
trafficking activities. See United States v. Sepulveda, ___ F.3d
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___, ___ (1st Cir. 1993) [No. 92-1362, slip op. at 8] ("While
mere presence is not sufficient to ground criminal charges, a
defendant's presence at the point of a drug sale, taken in the
light of attendant circumstances, can constitute strong evidence
of complicity."); Ortiz, 966 F.2d at 712 (holding that, while
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mere presence does not establish guilt, presence can establish
guilt under circumstances where it implies participation). Thus,
a reviewing court faced with a "mere presence" claim must
evaluate the attendant circumstances in order to determine the
quality of a particular defendant's presence at a location where
drugs are found. See Echeverri, 982 F.2d at 678.
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In Ortiz, we concluded that evidence of a defendant's
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participation in a dialogue between a buyer and a seller of
illicit drugs was enough to warrant a finding of more than mere
presence. See Ortiz, 966 F.2d at 712-13. We mentioned that
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"[j]urors can be assumed to know that criminals . . . rarely seek
to perpetrate felonies before larger-than-necessary audiences."
Id. at 712 (collecting cases). In Echeverri a case that evokes
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comparisons with the case at bar we also held that culpable
presence could be found. See Echeverri, 982 F.2d at 678. Our
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ruling there revolved around the defendant's proximity to drugs
and drug paraphernalia which were strewn about an apartment. See
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id. The facts of this case are roughly analogous to, but
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somewhat more inculpatory than, the facts in Echeverri.
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Specifically, based on the evidence of record here, a rational
factfinder plausibly could conclude that appellant had dominion
over apartment 706; that he actually or constructively possessed
the contraband located therein; that he intended the drugs for
distribution;6 that his participation in the enterprise was
knowing and willful; and that, accordingly, his presence during
the controlled buy, and at the time of the raid, was culpable
rather than innocent. See, e.g., Echeverri, 982 F.2d at 678;
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United States v. Batista-Polanco, 927 F.2d 14, 18 (1st Cir.
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1991); United States v. Glover, 814 F.2d 15, 16-17 (1st Cir.
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1987).
B
B
The final aspect of appellant's sufficiency challenge
relates to count three. This attack which boils down to a
claim that the evidence fails to show he "used" or "carried" the
firearm in connection with drug trafficking activities ignores
settled law in this circuit and elsewhere. Under the statute of
conviction, 18 U.S.C. 924(c), the emphasis is on a firearm's
availability for use, regardless of whether it is actually used.
Thus, in United States v. Hadfield, 918 F.2d 987 (1st Cir. 1990),
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cert. denied, 111 S. Ct. 2062 (1991), a section 924(c)(1) case,
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6The total cocaine seized, not including the speedball,
aggregated 159.13 grams. Expert testimony established that the
drugs were for distribution rather than personal use, and that
their value exceeded $6,000. On appeal, Paulino has not
challenged either the admission or the import of this testimony.
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we made it pellucid that, where a drug trafficker is not carrying
a gun on his person but has one nearby, the court's critical
concern should not be whether the weapon was "instantly
available" or "exclusively dedicated to the narcotics trade," but
whether it was "available for use" in connection with the
narcotics trade. Id. at 998; see also Smith v. United States,
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113 S. Ct. 2050, 2059 (1993) (explaining that a weapon meets the
statutory test if its presence, rather than being accidental or
coincidental, facilitates, or has the potential of facilitating,
the drug trafficking offense). We think the case at hand is
largely governed by Hadfield.
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Paulino was apprehended in an outwardly uninhabited
apartment that served or so the jury supportably could have
found as a place from which drugs were being sold. Drugs, drug
paraphernalia, and a loaded revolver were located in close
proximity to one another. Paulino had an apparent possessory
interest in, and a significant degree of control over, the
premises. On these facts, a reasonable factfinder certainly
could find the requisite facilitative nexus, that is, that the
gun was kept in the apartment to be "available for use" during
and in relation to the ongoing drug peddling. See Abreu, 952
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F.2d at 1466 ("Even though a weapon is never fired, if it is kept
nearby by a drug dealer, it is 'used' so as to satisfy the
statutory requirement."); United States v. Castro-Lara, 970 F.2d
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976, 983 (1st Cir. 1992) (collecting cases), cert. denied, 113 S.
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Ct. 2935 (1993). And the jury also could conclude, without
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discernible difficulty, that appellant knew of the gun, the drug
trafficking, and the obvious relationship between the two. See
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generally Echeverri, 982 F.2d at 679 (reaffirming that "criminal
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juries are not expected to ignore what is perfectly obvious").
No more is exigible.
V
V
We need go no further. Finding no error in the
admission of the rent receipt and no shortfall in the
government's overall proof of guilt, we remit appellant to his
just deserts.
Affirmed.
Affirmed.
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