USCA1 Opinion
May 2, 1994
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1867
UNITED STATES,
Appellee,
v.
JEFFREY FORD,
Defendant, Appellant.
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ERRATA SHEET
Please make the following correction in the opinion in
the above case released on April 28, 1994:
Page 2, line 1: Insert the following before the first
sentence:
PETTINE, Senior District Judge.
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UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1867
UNITED STATES,
Appellee,
v.
JEFFREY FORD,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Pettine,* Senior District Judge.
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David P. Hoose, by Appointment of the Court, with whom Katz,
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Sasson and Hoose was on brief for appellant.
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Kevin O'Regan, Assistant United States Attorney, with whom Donald
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K. Stern, United States Attorney, was on brief for appellee.
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April 28, 1994
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*Of the District of Rhode Island, sitting by designation.
PETTINE, Senior District Judge. Defendant Dr.
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Jeffrey M. Ford was charged under a four count indictment
for violations of the drug laws. He was convicted on all
counts and sentenced to fifty-one months imprisonment and
three years of supervised release. Dr. Ford raises three
issues on appeal: the district court erred in denying a
motion to suppress evidence seized during a warrantless
search; the district court erred in admitting into evidence
a book entitled Secrets of Methamphetamine Manufacture; and
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there is insufficient evidence to support a conviction for
possession of cocaine with intent to distribute. For the
reasons stated below, we reject Dr. Ford's arguments and
affirm the district court.
I.
The relevant facts are as follows. In March 1991,
the Postmaster of the South Hadley Post Office in
Massachusetts notified Postal Inspector Terrence Loftus that
on several occasions Dr. Ford had purchased postal money
orders and sent them via Express Mail to an address in
Arizona. After a few days, Ford would receive an Express
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Mail package from a person named R. Cunningham with a
fictitious California return address. Inspector Loftus
asked to be informed of the next such occurrence.
On July 22, 1991, the postmaster informed
Inspector Loftus that Dr. Ford purchased additional money
orders and sent them to the address in Arizona. On July 23,
1991, an Express Mail package arrived for Dr. Ford from R.
Cunningham at the Los Angeles address. Inspector Loftus
removed the package from the mail stream and had it examined
by a trained narcotics detection dog. The dog alerted to
the package, indicating the presence of narcotics. On July
24, 1991, Inspector Loftus obtained a search warrant to
inspect the contents of the Express Mail package. The
contents field tested positive for methamphetamine.
Subsequent laboratory tests disclosed that the substance was
27.59 grams of 80% pure cocaine.
The package was returned to the mail stream to be
delivered to Dr. Ford. Postal Inspectors and the South
Hadley police department then placed the post office and Dr.
Ford's home under surveillance. In the meantime, Dr. Ford
arrived, picked up the package and then returned home.
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After he entered his house with the package, Sergeant David
Strychars and Postal Inspector Fred Gray, who were
surveilling the premises, knocked on Dr. Ford's door
announcing that they were from the water department and
convinced Dr. Ford to exit his home.1 As the district
court found, "[o]nce defendant exited the premises, assisted
by Strychars' hand on his shoulder, the law enforcement
officers informed him that he was under arrest and
handcuffed him." Aplt.'s App. at 16.
The testimony of law enforcement
officers and of the defendant diverge
significantly as to what happened next.
According to the law enforcement
officers, who testified consistently
with one another, Ford was first given
his Miranda rights. Loftus then asked
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Ford whether Ford would give consent to
a search of his house, informing Ford
that the search would take place in any
case after the officers obtained a
warrant. Ford refused permission to
search the premises.
Id. at 17 (citations omitted). Subsequently, Inspector
___
Loftus explained to Dr. Ford that he would be brought to
Springfield to be arraigned before a federal Magistrate
Judge ("Magistrate") and that bail would be set. Dr. Ford
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1 Dr. Ford contends that Sergeant Strychars and Inspector
Gray immediately announced themselves as police officers.
This discrepancy is immaterial for the purposes of this
appeal.
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then made several inquiries: he inquired about his dog (who
was in the house); asked if he could change his clothes;
whether he needed to bring money with him; and if he could
go inside and use the bathroom. Dr. Ford was told that he
could exchange his clothes and use the bathroom but that he
could not go back in the house by himself. Inspector Loftus
told Dr. Ford that the officers "would have to satisfy
themselves that there was no one else on the premises who
might pose a threat to them." Aplt.'s App. at 18.
Dr. Ford, Inspector Loftus and three other law
enforcement personnel then proceeded to enter the house with
the defendant, who posed no objection. Beginning with the
ground floor, the officers performed a sweep of each floor
to ensure that no one else was present. On the second
floor, the officers noticed the package Dr. Ford had
received that day. "On an unmade bed in a bedroom on the
middle level of Dr. Ford's three level home, the agents
found the package of cocaine, which had been opened, a plate
with a sifter and knife and a Penthouse magazine." Aplt.'s
Br. at 5-6. The group proceeded to the third level so that
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Dr. Ford could change his clothes.2 When the agents
reached the top floor, several doors were closed. Inspector
Loftus told Dr. Ford that the agents were going to open the
doors to make sure that no one else was present. Dr. Ford
then responded "I wish you wouldn't." Tr., vol. III at 55.
The agents opened the doors and were able to see marijuana
growing in two of the rooms. Dr. Ford asked how much money
he should bring for bail and indicated he had substantial
amounts of cash on hand. Inspector Loftus inquired as to
the amount and Dr. Ford produced $13,000 from a wicker
basket. The agents confiscated the cash.
Dr. Ford contends that it was the agents, not
himself, who initiated the re-entry into the house; that the
conversations concerning bail, his dog and changing clothes
took place inside the house and that Inspector Loftus
prompted the discussion about the money. "Loftus . . .
stated that if Ford showed him where the money was
immediately, Loftus would count the money in front of Ford
and give him a receipt for the full amount. The
implication, according to Ford, was that the money would not
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2 When Dr. Ford was arrested, he was wearing a tee shirt
and shorts, and was barefoot.
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be accounted for properly if he did not turn it over before
he was taken to Springfield." Aplt.'s App. at 21. We note
that the district court, when confronted with contradictory
versions of the relevant facts, accepted the version set
forth by the government witnesses. "[T]he Court either
rejects defendant's conflicting account of the events for
lack of credibility, or else concludes, in specific
instances, that certain discrepancies are immaterial for
purposes of defendant's suppression motions." Aplt.'s App.
at 21.
Dr. Ford was brought to the Magistrate in
Springfield and Inspector Loftus obtained a search warrant
for the house. When the search warrant was executed the
agents seized the marijuana plants, packaged marijuana, a
scale, a pistol, items used to cultivate marijuana and
several postal receipts for Express Mail packages from Dr.
Ford to his contact in Arizona.
II.
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Prior to trial, Dr. Ford filed a motion to
suppress the evidence uncovered during the search of his
house: the marijuana plants, packaged marijuana, a scale, a
pistol and various items used to grow and care for the
marijuana. He contends that the search was unlawful. The
government argued below that the search was a lawful
"protective sweep" of the house. After a hearing on the
motion, the district court did not decide whether the search
was a lawful protective sweep. Instead, the court
determined that the evidence was admissible under an
exception to the warrant requirement known as the
"inevitable discovery" rule.
Because the agents in the first instance entered
Dr. Ford's home without a warrant, we must determine whether
the evidence seized must be suppressed or whether the
evidence is admissible under an exception to the warrant
requirement. We feel compelled to note that had the agents
obtained a warrant, this exercise would be unnecessary. As
this is not the case, we must turn to the task at hand.
The inevitable discovery rule, adopted by the
Supreme Court in Nix v. Williams, 467 U.S. 431 (1984),
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provides for the admissibility of evidence discovered during
a warrantless search if the evidence would have been
inevitably discovered through independent legal means. "If
the prosecution can establish by a preponderance of the
evidence that the information ultimately or inevitably would
have been discovered by lawful means . . . then . . . the
evidence should be received." Id. at 444. The prosecution
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may not rely on speculation but rather must meet this burden
of proof based on "demonstrated historical facts capable of
ready verification or impeachment." Id. at 444 n.5.
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In United States v. Silvestri, 787 F.2d 736 (1st
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Cir. 1986), cert. denied, 487 U.S. 1233 (1988), this court
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established the analytical framework for the inevitable
discovery rule. In Silvestri, police officers unlawfully
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searched a residence and discovered large quantities of
drugs in the garage. Two other officers, who were not
involved in the unlawful search, prepared the search warrant
affidavit and application without any knowledge of the
illegal search. Upon issuance of the warrant, the premises
were lawfully searched and the evidence seized. The
defendant moved to suppress the evidence. The district
court denied the motion, holding the evidence to be
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admissible under the inevitable discovery rule. On appeal,
this court affirmed the district court after considering
three questions. "[A]re the legal means truly independent;
are both the use of the legal means and the discovery by
that means truly inevitable; and does the application of the
inevitable discovery exception either provide an incentive
for police misconduct or significantly weaken fourth
amendment protection?" Id. at 744.
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In Silvestri, the defendant argued that, in order
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to be truly independent, the legal means (i.e. the search
warrant) must be underway at the time of the discovery; in
other words, the warrant process must be ongoing at the time
of the alleged police misconduct or illegal search. The
defendant cited for support a Fifth Circuit decision which
held that "the legal process of discovery be ongoing at the
time of the illegal discovery in order for the inevitable
discovery exception to be applicable." Id. at 742
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(discussing United States v. Cherry, 759 F.2d 1196 (5th Cir.
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1985)). See also United States v. Satterfield, 743 F.2d 827
________ _____________ ___________
(11th Cir. 1984), cert. denied, 471 U.S. 1117 (1985)
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(adopting similar rule); United States v. Romero, 692 F.2d
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699 (10th Cir. 1982) (same). This court declined to adopt
such a strict approach.
Rather than setting up an inflexable
[sic] "ongoing" test such as the Fifth
Circuit's, we suggest that the analysis
focus on the questions of independence
and inevitability and remain flexible
enough to handle the many different fact
patterns which will be presented. . . .
In cases where a warrant is obtained,
however, the active pursuit requirement
is too rigid. On the other hand, a
requirement that probable cause be
present prior to the illegal search
ensures both independence and
inevitability for the prewarrant search
situation.
Id. at 746. Under this flexible standard, independence and
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inevitability remain the cornerstones of the analysis. The
specific facts of each case will determine the requirements
necessary to prove independence and inevitability.
The district court applied the teachings of Nix
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and Silvestri and held that the inevitable discovery rule
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applied.
[T]he search warrant, the legal means of
search, even if filtered of any
reference to marijuana and the large
sums of money, was wholly independent of
the arguably improper protective sweep,
and the discovery of the physical
evidence at issue was certainly
inevitable. In addition, the Court
concludes that application of the
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inevitable discovery doctrine to the
facts of this case would not
significantly dilute constitutional
protections or provide a carrot for
police misconduct.
Aplt.'s App. at 30.
A. The Decision To Seek A Warrant
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Dr. Ford attacks the district court's holdings
under each of the three Silvestri questions. First, he
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argues that the search warrant was not sufficiently
independent of the warrantless entry into his home. He
argues that while Silvestri held that the warrant process
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did not have to be ongoing, "it is implicit that Silvestri
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establishes as at least a minimum requirement, the decision
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to seek a warrant [must] be made prior to the time that the
illegal search took place and that the decision in no way be
influenced or accelerated by information gained from the
illegal search." Aplt.'s Br. at 10.3
Before we address Dr. Ford's arguments, we must
bear in mind the appropriate standard of review. "The
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3 The government does not dispute Dr. Ford's reading
of Silvestri but rather argues that there is sufficient
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evidence showing a decision was made prior to the search.
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standard of review of an appeal from a denial of a motion to
suppress is that the decision will be upheld if any
reasonable view of the evidence supports the trial court's
decision." United States v. McLaughlin, 957 F.2d 12, 16
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(1st Cir. 1992). We review de novo any questions of law
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which arise in the course of our analysis. United States v.
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Yoffe, 775 F.2d 447, 451 (1st Cir. 1985).
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We have carefully reviewed Silvestri and find no
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language to support Dr. Ford's argument. Indeed, Silvestri
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rejected a bright line rule in favor of a flexible analysis.
[In] [t]he situation where a warrant is
obtained after a warrantless search . .
. the requirement of active pursuit
could be viewed as ensuring the
independent inevitability of the police
decision to seek the search warrant,
i.e., to ensure that the evidence turned
up in the illegal search did not
influence this decision. As a
protection of the independence of the
warrant, however, this bright-line rule
goes too far.
Silvestri, 787 F.2d at 745. However, Silvestri did require
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"that probable cause be present prior to the illegal search
[to ensure] both independence and inevitability for the
prewarrant search situation." Id. at 746.
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The existence of independent probable cause to
search Dr. Ford's home is undisputed. Dr. Ford concedes
that "it is beyond argument that the agents had probable
cause to search Dr. Ford's residence after he returned with
the package from the Post Office." Aplt.'s Br. at 10. It
is also beyond dispute that the seized evidence would have
been (and was) discovered following the authorized search.
It is inevitable that the existence of probable cause would
find fruition in the issuance of a search warrant. This is
bolstered by the fact that there is evidence in the record,
relied upon by the district court, that a decision to seek a
warrant had been made prior to the warrantless entry.
"Loftus then asked Ford whether Ford would consent to a
search of his house, informing Ford that the search would
take place in any case after the officers obtained a
warrant." Aplt.'s App. at 17. Thus, we believe that a
reasonable view of the evidence supports the district
court's finding that the probable cause supporting the
search warrant was independent of the warrantless search and
that the evidence seized would have been discovered upon the
issuance of a warrant.
B. The Inclusion of Tainted Information
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Dr. Ford argues that the search warrant cannot be
considered independent because the search warrant affidavit
included observations made during the warrantless search of
the home. "The inclusion of tainted evidence in the
affidavit in support of the application for a search warrant
seriously undercuts the true independence of the warrant as
a valid subsequent legal means." Aplt.'s Br. at 16.
According to Dr. Ford, because the warrant contained such
tainted information, it is impossible to know with any
certainty whether the magistrate would have issued the
warrant in the absence of the tainted information. This
uncertainty, Dr. Ford contends, renders the search warrant
suspect and mandates against the application of the
inevitable discovery rule.
For support, Dr. Ford cites Murray v. United
______ ______
States, 487 U.S. 533 (1988). In Murray, the Supreme Court
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considered the "independence" of legal means under another
exception to the warrant requirement -- the independent
source doctrine.
The ultimate question, therefore, is
whether the search pursuant to warrant
was in fact a genuinely independent
source of the information and tangible
evidence at issue here. This would not
have been the case . . . if information
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obtained during that entry was presented
to the Magistrate and affected his
decision to issue the warrant.
Id. at 542. Contrary to Dr. Ford's contention, the Court
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did leave some room for speculation when making this
determination. "To determine whether the warrant was
independent of the illegal entry, one must ask whether it
would have been sought even if what actually happened had
not occurred." Id. at 542 n.3. Dr. Ford also cites Nix for
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the proposition that speculation may not play any role in a
determination under the inevitable discovery rule.
"[I]nevitable discovery involves no speculative elements but
focuses on demonstrated historical facts capable of ready
verification or impeachment and does not require a departure
from the usual burden of proof at suppression hearings."
Nix, 467 U.S. at 444 n.5.
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When reviewing affidavits containing "tainted"
evidence, courts regularly set aside the tainted information
and then determine if "there remains sufficient content in
the warrant affidavit to support a finding of probable
cause." Franks v. Delaware, 438 U.S. 154, 172 (1978). This
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court has applied the same analysis. "[The illegally
obtained information] should be set to one side (as the
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district court did) and the remaining content of the
affidavit examined to determine whether there was probable
cause to search, apart from the tainted averments." United
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States v. Veillette, 778 F.2d 899, 904 (1st Cir. 1985),
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cert. denied, 476 U.S. 1115 (1986).
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Here, the district court performed precisely this
analysis.
[A] valid warrant to search Ford's home
would have issued despite the
information obtained in the course of
the protective sweep . . . . If one
were to strike from the supporting
affidavit any and all references other
than those to the express mail package
in question and the events leading to
its arrival in defendant's dwelling, the
search warrant would have issued based
on probable cause.
Aplt.'s App. at 29. This finding cannot be seriously
doubted. We set forth a portion of the affidavit to
underscore this holding.
2. This morning I received a search
warrant for an Express Mail package
suspected of containing controlled
substances. . . .
3. The Express Mail package was addressed to Dr.
Jeff Ford, 90 Amherst Road, So. Hadley, MA 01075.
4. Upon executing the search warrant I
found approximately 30 grams of a
substance that field tested positive for
methamphetamine, a Schedule III
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controlled substance.
.
. .
6. At approximately 2:15 p.m. Ford
picked up the Express Mail package and
drove to his home at 90 Amherst Road,
South Hadley, Massachusetts (the
"Premises").
7. At approximately 2:45 p.m. Ford was
arrested by another U.S. Postal
Inspector at the Premises.
Rec., doc. 29, ex. B at 1. It requires no speculation to
determine that the excised affidavit supports a finding of
probable cause.4 We therefore reject Dr. Ford's second
attack on the independence of the warrant.5
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4 Dr. Ford argues that Franks and Veillette are
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inapplicable in an inevitable discovery context. Veillette
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was decided under the independent source doctrine which,
according to Dr. Ford, lacks the requirement of
inevitability. We note once again that the Silvestri
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analysis is a flexible one, turning on the particular facts
of each case. In closer cases, the requirement of
inevitability may mandate that the Magistrate not be
presented with any of the tainted information. However, in
such a clear case as this, we do not believe that the
inevitability of the issuance of the warrant can be
seriously questioned.
5 Dr. Ford also argues that the warrant should not
be considered independent because the agents who were
involved in the warrantless search were also the agents who
prepared the search warrant. Many courts have considered
the level of participation by agents not involved in the
original search. See Silvestri, 787 F.2d at 741-742; United
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States v. Merriweather, 777 F.2d 503 (9th Cir. 1985), cert.
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denied 475 U.S. 1098 (1986); United States v. Hidalgo, 747
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C. Incentive for Police Misconduct
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Finally, Dr. Ford argues that application of the
inevitable discovery rule in this case would weaken Fourth
Amendment protection and provide an incentive for police
misconduct. He points out that the agents did not attempt
to secure either a search or an arrest warrant prior to Dr.
Ford's receipt of the package. Further, because the agents
used a ruse (the water department story) to lure Dr. Ford
from his home, "it was surely not a surprise for the
defendant to have needs related to the inside of the home."
Aplt.'s Br. at 26. "The government should not be permitted
to be indifferent to the warrant requirement for twenty-four
hours and rely on a search warrant obtained after agents
have engaged in an entirely predictable and manufactured
'protective sweep,' as proof of inevitability." Id. at 27.
___
____________________
F. Supp. 818, 833 (D. Mass. 1990); Hunnewell v. United
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States, 738 F. Supp. 582, 584 (D. Maine), aff'd without
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opinion, 923 F.2d 839 (1st Cir. 1990). These cases
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demonstrate that the level of participation is one of the
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many factors to be considered when determining the
independence of the warrant. As we have previously stated,
the independence of the warrant in the present case is
firmly established. The overlap between the agents
searching the premises prior to the warrant and the agents
preparing the warrant does not alter our holding.
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Although we agree with Dr. Ford that a warrant
would have avoided this problem, we cannot agree that
applying the inevitable discovery doctrine in this situation
would provide an incentive for misconduct. We have found
only one case in which a court, after engaging in the
Silvestri analysis, refused to apply the inevitable
_________
discovery rule due to the incentive for police misconduct.
United States v. Rullo, 748 F. Supp. 36 (D. Mass. 1990). In
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Rullo, the police used excessive physical force to compel a
_____
suspect to disclose the location of a gun. The court held
that, although the gun would have been inevitability
discovered through a separate search, the incentive for
police misconduct was so great that the inevitable discovery
rule could not apply. The present case obviously does not
involve such blatant police misconduct.
In fact, as the district court stated, "it is
dubious whether the police involved in this case behaved
improperly at all." Aplt.'s App. at 30. A police officer
has the right to remain with a suspect at all times.
Washington v. Chrisman, 455 U.S. 1, 6-7 (1982). In
__________ ________
Chrisman, a student was detained outside of his dormitory.
________
The student requested that he be allowed to return to his
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room to obtain identification. He was told that the police
officer would accompany him if he should return to his room.
The student consented. While standing in the doorway of the
room, the police officer saw, in plain view, marijuana seeds
and a pipe. The Court held that the police officer
"properly accompanied [the student] to his room, and that
his presence in the room was lawful." Id. at 7. See also
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United States v. Hidalgo, 747 F. Supp. 818 (D. Mass. 1990)
_____________ _______
(holding that there was no incentive for police misconduct
when the search of the premises took place out of a concern
for the safety of the police officers involved).
In light of these decisions, we do not believe
that applying the inevitable discovery doctrine in the
present case provides an incentive for police misconduct.
The police had the right to accompany Dr. Ford when he re-
entered the house. Further, the district court found that
the protective sweep was motivated by a concern of the
police officers to protect themselves. Aplt.'s App. at 18-
19. We therefore hold that a reasonable view of the
evidence supports the district court's application of the
inevitable discovery rule. The denial of the motion to
suppress is AFFIRMED.
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III.
Among the items discovered during the search of
Dr. Ford's house was a book entitled Secrets of
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Methamphetamine Manufacture. Prior to trial, Dr. Ford filed
___________________________
a motion in limine requesting the court to exclude the book
from evidence. The motion was denied after a brief sidebar
conference. The government offered the book into evidence.
Dr. Ford renewed his objections, arguing that the book was
irrelevant and prejudicial.
Rule 401 of the Federal Rules of Evidence defines
relevant evidence as "evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than would be without the evidence." Fed. R. Evid. 401.
Dr. Ford contends that the book does not meet the this
definition. "The title of the book makes this perfectly
clear. This trial had nothing whatsoever to do with
methamphetamine, let alone its manufacture." Aplt.'s Br. at
30. Further, Dr. Ford argues that any inferences which
could be drawn from the book would be solely related to the
manufacture of methamphetamine and "would still have no
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tendency to prove that Dr. Ford had an intent to distribute
the cocaine and marijuana found in his possession, which was
the sole contested issue at trial." Id.
___
We review evidentiary decisions under the abuse of
discretion standard. United States v. Nason, 9 F.3d 155,
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162 (1st Cir. 1993), cert. denied, 62 U.S.L.W. 3624 (1994).
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"The threshold for relevance is very low under [Rule 401]."
Id. The district court found that the book was a tool of
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the drug trafficking trade and therefore should be admitted
into evidence. Tr., vol. III at 5. We cannot say that the
district court abused its discretion in admitting the book.
As aptly stated by the government, the book "describes how
to create a sophisticated illicit drug operation. . . .
Viewed in conjunction with the High Times Magazine which
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Ford testified he read to develop his sophisticated
marijuana growing operation, this evidence tended to show
that Ford was a drug dealer as opposed to someone who merely
possessed drugs for his personal use." Aplee.'s Br. at 28.
Such evidence meets the "any tendency" test. We will not
disturb the Rule 401 ruling of the district court.
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After having determined that the book is relevant,
we must now consider whether the admission of the book is
overly prejudicial under Rule 403. Rule 403 states that
"[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury . . . " Fed. R. Evid. 403. Dr. Ford contends that the
book is overly prejudicial.
Since the book had nothing to do with
cocaine, marijuana or their
distribution, it surely caused the jury
to speculate about why it was an exhibit
in the case. The risk . . . is that the
jury would infer without other evidence
that possession of the book indicated an
interest in manufacturing drugs in
general and that the defendant's
possession of cocaine and marijuana in
question were somehow part of this
broader plan.
Aplt.'s Br. at 31. Dr. Ford argues that the evidence
presented a close case and that the book, "which suggested a
larger and more sinister involvement with narcotics than was
warranted by the evidence" tipped the scales against the
defendant. Id. at 33.
___
The government notes that after the book was admitted into
evidence, "it was never mentioned again by a witness or the
government as significant to the main issue in the case."
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Aplee.'s Br. at 31. Indeed, the government did not discuss
the relevance of the book in its closing argument.
Rule 403 "admissions of evidence are within the
sound discretion of the trial court. We will not disturb
such rulings absent an abuse of discretion. We will,
nevertheless, reverse a lower court's determination in
'exceptional circumstances.'" United States v. Rodriquez-
_____________ __________
Cortes, 949 F.2d 532, 540 (1st Cir. 1991). See also United
______ ___ ____ ______
States v. Green, 887 F.2d 25, 27 (1st Cir. 1989); United
______ _____ ______
States v. Griffin, 818 F.2d 97, 101-102 (1st Cir.), cert.
______ _______ _____
denied, 484 U.S. 844 (1987). While Dr. Ford argues that
______
exceptional circumstances are present in this case, he fails
to articulate what those circumstances are beyond the notion
that the admission of the book tipped the scales. However,
Rule 403 does not act to exclude any evidence which may be
prejudicial but rather evidence in which the prejudice
"substantially outweighs" the probative value. We cannot
say that the book, a tool of the drug trafficking trade as
the trial judge found, was so lacking in probative value as
to be excluded under Rule 403 nor that exceptional
circumstances exist which require the reversal of the
district court. Thus, the district court's admission of the
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book entitled Secrets of Methamphetamine Manufacture is
______________________________________
AFFIRMED.
IV.
Dr. Ford's final issue on appeal concerns count
two of the indictment alleging possession of cocaine with
intent to distribute. He contends that there is
insufficient evidence to support the conviction for this
count. "We review the evidence in the light most favorable
to the government, including all legitimate inferences to be
drawn therefrom, to determine whether a rational trier of
fact could have found defendant guilty beyond a reasonable
doubt." United States v. Montoya, 917 F.2d 680, 681 (1st
_____________ _______
Cir. 1990). "'The prosecution . . . need not exclude every
reasonable hypothesis of innocence so long as the total
evidence permits a conclusion of guilt beyond a reasonable
doubt.'" United States v. Almonte, 952 F.2d 20, 24 (1st
_____________ _______
Cir. 1991) (citations omitted), cert. denied, 112 S. Ct.
_____ ______
1776 (1992).
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The cocaine seized had a net weight of 27.59
grams, or just under one ounce. In United States v. Latham,
_____________ ______
874 F.2d 852, 863 (1st Cir. 1989), this court stated "that
an inference of intent to distribute is not warranted from
the possession of one ounce of cocaine." Dr. Ford contends
that in light of Latham, the government must look to other
______
evidence to prove that the cocaine was for distribution
rather than for personal use. Dr. Ford's reading of Latham
______
is immaterial since the government has offered other
evidence of an intent to distribute.
Dr. Ford points to numerous factors which support
his contention that the cocaine was for personal use.
When the agents entered Dr. Ford's home,
only moments after they had observed him
enter with the package of cocaine, they
found that the package had been opened
and placed on a bed with a plate, a
grinder and a Penthouse magazine. Agent
Loftus acknowledged that the grinder is
an instrument used to convert cocaine
that is often granular when purchased,
into a fine powder more suitable for
inhaling. A straw and a mirror, two
other objects commonly associated with
the consumption of cocaine was found.
In addition, small vials designed for
consumption of cocaine and containing
cocaine residue were recovered in the
house. Certainly the circumstances
under which the cocaine was recovered,
raise a strong suggestion that at least
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some of the cocaine was about to be
consumed by Dr. Ford.
Aplt.'s Br. at 35. Dr. Ford also argues that items commonly
used for narcotics distribution were absent from his home.
For example, the search did not uncover any substance used
to dilute cocaine, small plastic bags, vials or three to
four inch squares of magazine paper. Further, no ledgers,
receipts or notebooks indicating narcotics transactions were
recovered. Dr. Ford argues that there are only three items
found in his home which arguably intimate an intent to
distribute: the gun, the scale and the $13,000 in cash. The
government argues that these three items, together with the
weight and purity of the cocaine, provide sufficient
evidence to support a conviction.6
This court has held that scales, firearms and
large amounts of cash are each probative of the intent to
distribute narcotics. "[W]e have long 'recognized that in
drug trafficking firearms have become "tools of the trade"
and thus are probative of the existence of a drug
____________________
6 Sergeant Kerle testified that an ounce of 80
percent pure cocaine could have been diluted and divided up
into 112 grams with a street value of $11,200. Tr., vol. I
at 36-37. He also testified as an expert that "this amount
of cocaine in that purity is consistent with [an] intent to
distribute it." Id. at 39.
___
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conspiracy.'" United States v. Walters, 904 F.2d 765, 796
_____________ _______
(1st Cir. 1990) (citing United States v. Green, 887 F.2d 25,
_____________ _____
27 (1st Cir. 1989)). Dr. Ford does not dispute this but
rather argues that the firearm has no tendency to prove that
Dr. Ford was intending to distribute the cocaine. According
to Dr. Ford, the weapon was found in a bedroom closet on a
different floor from which the cocaine was found. Further,
Dr. Ford was not armed when he picked up the package nor
when the agents approached his house.
There is other evidence in the record which
supports the government's contention that the gun was used
as a tool of the trade. The gun, a .357 Magnum, was kept in
the closet of the bedroom where Dr. Ford slept and on the
same floor as the $13,000 in cash and the marijuana. Tr.,
vol. III at 88. Two loaded "speed loaders" were also
located in the closet. Id. Finally, Dr. Ford
___
acknowledged that one of the reasons he had the gun was for
"personal protection" and that due to the marijuana and
cocaine in the house he could not call the police if someone
sought to break into his home. Tr., vol. II at 18-19.
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The government argues that the scale is further
evidence of the intent to distribute cocaine. Dr. Ford
conceded that he used the scale to weigh drugs. Tr., vol.
IV at 116. This court has acknowledged that a scale is one
of the tools of the trade for drug dealers, Montoya, 917
_______
F.2d at 682, and therefore may be considered as evidence
here.
Finally, the government argues that Dr. Ford could
not persuasively account for the $13,000 in cash. "Evidence
that the defendant possessed or controlled substantial sums
of money from unexplained sources is relevant in a
prosecution for drug trafficking." United States v.
_____________
Figueroa, 976 F.2d 1446, 1454 (1st Cir. 1992), cert. denied,
________ _____ ______
113 S. Ct. 1346 (1993). See also United States v. Newton,
___ ____ _____________ ______
891 F.2d 944, 948 (1st Cir. 1989); United States v. Ariza-
_____________ ______
Ibarra, 605 F.2d 1216, 1224-25 (1st Cir. 1979), cert.
______ _____
denied, 454 U.S. 895 (1981). Dr. Ford contends that he
______
sufficiently explained the source of a substantial portion
of the cash. Dr. Ford's sister testified that she loaned
him $7500. Tr., vol. IV at 49. Dr. Ford testified that he
borrowed $7500 from his sister and $7500 from his parents.
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30
Id. at 84. Dr. Ford also testified that he kept his assets
___
in cash rather than a bank account because "[he] left a lot
of institutions holding the bag financially. People were
looking for [him.] . . . So there were people that wanted
money from [him.]" Id. at 89.
___
The government notes that Dr. Ford testified that
he stopped making payments for his rent, his car lease and
his orthodontic practice yet he had $13,000 in cash on hand.
Further, "when faced with a listing of his known expenses
for the months prior to his arrest, Ford was unable to
reconcile those expenses with the amount of cash he had on
hand." Aplee.'s Br. at 36.
Each of these three pieces of evidence must be
considered in the light most favorable to the government.
Although Dr. Ford may have provided reasons for the
existence of the scale, the gun and the cash, the finder of
fact is free to reject his explanation. It is not the
province of this court to reweigh conflicting testimony or
to make credibility determinations. Based on our review of
the record, we hold that the government has presented
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sufficient evidence to support a conviction under count two.
The decision of the district court is AFFIRMED.
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