USCA1 Opinion
June 9, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1811
UNITED STATES,
Appellee,
v.
ISIDRO RODRIGUEZ,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
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Before
Torruella, Cyr and Boudin,
Circuit Judges.
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John P. Rab and Rad & Neiman, on brief for appellant.
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Paul M. Gagnon, United States Attorney, and Jean B. Weld,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Appellant Isidro Rodriguez appeals his
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conviction on four counts of distributing cocaine, in
violation of 21 U.S.C. 841(a), and one count of using or
carrying a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. 924(c)(1). We
summarily affirm.
I
In September 1989, Detective Ronald Scaccia of the
Nashua Police Department, working in an undercover capacity,
made three hand-to-hand purchases of cocaine from an
individual known to him as "Isidro" at 4 1/2 Kendrick Street
in Nashua, New Hampshire. After further investigation, the
Nashua police obtained a search warrant for the third floor
apartment in which Isidro lived. The search discovered over
one half kilogram of cocaine and paraphernalia associated
with the sale of cocaine hidden in a trap door within the
apartment. A .25 caliber semi-automatic handgun, a fully
loaded magazine of .25 caliber ammunition, and an additional
box of ammunition were found in a strong box, approximately
six feet from the trap door. A receipt for the purchase of
the gun, listing Rodriguez as the purchaser and showing an
address of 4 1/2 Kendrick Street, was also found in the box.
Various identification documents in the name of Isidro
Rodriguez, including rent receipts for a room at 4 1/2
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Kendrick Street in the name of Isidro Rodriguez were found in
a dresser drawer. Rodriguez was not apprehended.
In December 1989, Rodriguez, along with five other
individuals, was indicted on one count of conspiracy to
distribute cocaine in violation of 21 U.S.C. 846. He was
also indicted on three counts of distributing cocaine, one
count of possession with intent to distribute cocaine, and
one count of possessing a handgun in furtherance of a drug
trafficking crime. An arrest warrant for Rodriguez was also
issued.
On April 14, 1992, the warrant was executed on an
individual, using the name of Ysidro Adames and residing in
Erie, Pennsylvania. Detective Scaccia positively identified
Adames as the person from whom he had purchased the drugs at
the Kendrick Street apartment. However, Adames' fingerprints
did not match those found in the search of the apartment and
he was released. Rodriguez was arrested in February 1993 in
Lawrence, Massachusetts. At the time Rodriguez was using the
name "Ysobel Gonzalez." Prior to trial, the government
dismissed all counts against the others who had been indicted
along with Rodriguez. It also dropped the conspiracy charge
against Rodriguez.
At trial, expert testimony was presented that Rodriguez'
fingerprints matched those found in the Kendrick Street
apartment. Rodriguez was also identified by Detective
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Scaccia and by Sergeant Gravel, who had assisted in the
investigation, as the individual who had been involved in the
September 1989 distribution of cocaine. Finally, the mother
of Rodriguez' children testified at trial that the appellant
was the man she had known previously as "Isidro Rodriguez"
and that he had lived at 4 1/2 Kendrick Street until
approximately October 1989. She also testified that she had
given him the handgun as a gift.
The jury found Rodriguez guilty on all counts. He was
sentenced to concurrent terms of sixty three months'
imprisonment on each of the four counts of distributing
cocaine and a mandatory, consecutive term of sixty months on
the weapon's charge.
Rodriguez raises three issues on appeal. First, he
asserts that the district court erred in denying his motion
to suppress certain evidence seized during the search of the
Kendrick Street apartment. Second, he argues that his right
to obtain exculpatory evidence from the prosecution was
violated by the magistrate judge's denial of his requests for
certain materials. Finally, he contends that the evidence
was insufficient to support his conviction.
II
Rodriguez asserts that certain "identification"
evidence, including a resident alien card, a passport, and an
automobile title, found in a dresser drawer during the search
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of the Kendrick Street apartment, should have been suppressed
on the ground that the items seized were beyond the scope of
the warrant. This contention, however, is belied by the
plain language of the warrant which authorizes a search for,
inter alia, "Records of Occupancy." The documents seized
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could indicate occupancy of the premises and thus were within
the scope of the warrant. See United States v. Tabares, 951
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F.2d 405, 408 (1st Cir. 1991) (finding photographs to be
within the warrant's instructions "to seize 'records' that
could indicate 'ownership, tenancy and/or control'" of the
described premises).
III
Rodriguez also alleges that his due process right to
obtain exculpatory evidence under the principles of Brady v.
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Maryland, 373 U.S. 83 (1963), and its progeny, was violated
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when the magistrate judge denied his motion for discovery of
(1) information regarding his alleged co-conspirators; and
(2) information related to the investigation, identification
and arrest of the person known as Ysidro Adames. Rodriguez
contends, that, at the very least, the court should have
conducted an in camera inspection of the material before
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denying his discovery request.
Brady requires the government to disclose any
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exculpatory evidence which is "material either to guilt or to
punishment." Brady, 373 U.S. at 87. Material evidence is
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that which, if disclosed, "might have affected the outcome of
the trial." United States v. Agurs, 427 U.S. 97, 104 (1976).
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However, "[a] defendant's right to discover exculpatory
evidence does not include the unsupervised authority to
search through the [government's] files." Pennsylvania v.
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Ritchie, 480 U.S. 39, 59 (1987). Nor does it entitle him to
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require a trial court "to conduct an in camera fishing
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expedition through the government's files." United States v.
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Pou, 953 F.2d 363, 366-67 (8th Cir.), cert. denied, 112 S.Ct.
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1982 (1992); see also United States v. Navarro, 737 F.2d 625,
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631 (7th Cir.), cert. denied, 469 U.S. 1020 (1984) ("Mere
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speculation that a government file may contain Brady material
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is not sufficient to require a remand for in camera
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inspection."). Rather, "[t]o establish a violation of Brady,
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a defendant must provide the court with some indication that
the materials to which he . . . needs access contain material
and potentially exculpatory evidence." United States v.
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Brandon, 17 F.3d 409, 456 (1st Cir. 1994). In addition, the
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defendant must show that any evidence not disclosed caused
him "undue prejudice." United States v. Drougas, 748 F.2d 8,
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23 (1st Cir. 1984).
Rodriguez was found guilty of distributing cocaine to
Detective Scaccia and of possessing a weapon in furtherance
of drug trafficking. According to the evidence presented at
trial, all these crimes were committed by Rodriguez alone.
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Since Rodriguez provided no indication that information
relating to the others who were indicted along with him was
in any way material to his guilt on these charges, and since
the conspiracy charge against Rodriguez had been dismissed
prior to trial, the denial of his request for discovery of
this material did not violate his rights under Brady.
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On the other hand, the evidence relating to the
identification of Ysidro Adames was clearly exculpatory.
However, the government provided Rodriguez with an official
Federal Bureau of Investigation [FBI] report relating to
Adames' arrest and with the transcript of the detention
hearings containing Detective Scaccia's misidentification
testimony. In addition, at trial, Rodriguez not only
thoroughly cross-examined Scaccia about the misidentification
but also called as a defense witness FBI Special Agent Kim
Kelly who testified as to the facts surrounding Adames'
identification and arrest. Rodriguez, therefore, was able to
present to the jury the exculpatory information surrounding
the misidentification of Adames. He has failed to show that
he suffered any prejudice from the court's denial of his
request for other information concerning the
misidentification.
IV
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Finally, Rodriguez contends that the evidence presented
at trial was insufficient to support his conviction on either
the drug distribution charges or that for weapon possession.
Rodriguez' sole challenge to the sufficiency of the
evidence for the drug distribution charges is his claim that
Detective Scaccia's misidentification of Adames as the man
from whom Scaccia purchased cocaine at the Kendrick Street
apartment created a reasonable doubt as to Scaccia's in-court
identification of Rodriguez as that person. However, the
assessment of Scaccia's in-court identification was within
the province of the jury. See, e.g., United States v. Arias-
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Santana, 964 F.2d 1262, 1269 (1st Cir. 1992). In this case,
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after having been presented with the relevant testimony as to
Scaccia's misidentification of Adames, the jury chose to
credit Scaccia's in-court identification. This determination
cannot be considered unreasonable, especially in light of the
other testimony and physical evidence corroborating Detective
Scaccia's account. Considering the evidence as a whole in
the light most favorable to the verdict, see, e.g., United
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States v. Paulino, 13 F.3d 20, 25 (1st Cir. 1994), we find no
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error in the jury verdict as to the drug distribution
charges.
We likewise find the evidence sufficient to uphold
Rodriguez' conviction on the weapon's charge. To obtain a
conviction under 18 U.S.C. 924(c), the government was
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required to prove, beyond a reasonable doubt, that Rodriguez
had the firearm "readily accessible for [his] use" in the
commission of a drug trafficking crime. United States v.
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Abreu, 952 F.2d 1458, 1466 (1st Cir.), cert. denied, 112
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S.Ct. 1695 (1992); see also Paulino, 13 F.3d at 26.
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Rodriguez contends that there was no evidence that the gun
found in the Kendrick Street apartment played any role in his
alleged distribution of cocaine.
According to the evidence presented at trial, an
automatic weapon, with a fully loaded magazine clip and extra
ammunition, was found in the same room as over five hundred
grams of cocaine and various drug paraphernalia. Also found
in the room were several documents supporting a reasonable
inference that Rodriguez had dominion and control over the
room and its contents. "[U]ltimately, whether or not the
gun[] helped appellant commit the drug crime is a matter for
a jury, applying common-sense theories of human nature and
causation." United States v. Wilkinson, 926 F.2d 22, 26 (1st
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Cir.), cert. denied, 501 U.S. 1211 (1991). In this case, the
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proximity of the weapon to drugs and paraphernalia, together
with the documentary evidence, supports a jury finding that
the gun was used by Rodriguez to facilitate drug trafficking.
See Paulino, 13 F.2d at 26 (weapon found near drugs and drug
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paraphernalia in apartment over which defendant had a
significant degree of control); Abreu, 952 F.2d at 1466
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(weapon, cocaine, cocaine packing and distribution devices
found in apartment rented by defendant).
Affirmed. See 1st Cir. Loc. R. 27.1.
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