United States v. Paulino

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

No. 92-2470

UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                 TEMISTOCLES PAULINO,

                                Defendant, Appellant.

                              _________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                     [Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________

                              _________________________

Before

                        Selya, Cyr and Stahl, Circuit Judges.
                                              ______________

                              _________________________

Scott A. Lutes for appellant.
               ______________
               Margaret E.  Curran, Assistant United States  Attorney, with
               ___________________
          whom  Edwin  J. Gale,  United  States  Attorney,  and  Gerard  B.
                ______________                                   __________
          Sullivan,  Assistant United States  Attorney, were on  brief, for
          ________
          the United States.

_________________________

                                   January 5, 1994

                              _________________________

SELYA, Circuit Judge.   Defendant-appellant Temistocles
                    SELYA, Circuit Judge.
                           _____________

          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
                              
          ____________________

               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 &
                              
          ____________________

               2We temporarily exclude from the inventory of unveiled items
          the receipt  for a  Postal Service  money order,  discussed infra
                                                                      _____
          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
                           ___

          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
                                                                  ___  ____

          United States  v. Arboleda,  929 F.2d 858,  869 (1st  Cir. 1991).
          _____________     ________

          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,
                                ___

          a   document's  "[a]ppearance,   contents,  substance,   internal

          patterns,  or   other  distinctive   characteristics,  taken   in

          conjunction  with  circumstances,"  can,  in cumulation,  provide

____________________

               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,
                           ___ ____ ______________    ______

          947 (1st Cir. 1989).  

                    In  respect  to matters  of  authentication,  the trial

          court serves a gatekeeping function.  See generally Fed. R. Evid.
                                                ___ _________

          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);
          ___ ______________    ____

          United States v. Williams, 809 F.2d 75, 89 (1st Cir. 1986), cert.
          _____________    ________                                   _____

          denied,  481 U.S.  1030 (1987);  see also  Fed. R.  Evid. 104(e).
          ______                           ___ ____

          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.
                                                       ___ _____________

          McMahon, 938 F.2d  1501, 1508 (1st Cir. 1991);  Ladd, 885 F.2d at
          _______                                         ____

          956;  United States v. Masse, 816 F.2d  805, 813 (1st Cir. 1987);
                _____________    _____

          Williams, 809 F.2d at 89-90.
          ________

                    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
                      ___  _____

          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;
                                              ___ ______

          see also Fed.  R. Evid 901(b)(4).  Here,  the document's contents
          ___ ____

          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
                              
          ____________________

               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
                     ___ _____________    ________

          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.
                                                     ___  _____________

          Nivica, 887  F.2d 1110, 1127  (1st Cir. 1989), cert.  denied, 494
          ______                                         _____  ______

          U.S. 1005 (1990); cf. Polyplastics, Inc. v. Transconex, Inc., 827
                            ___ __________________    ________________

          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

8

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.,
                                                                 ___  ____

          United States v. Ospina, 739  F.2d 448, 451 (9th Cir.) (involving
          _____________    ______

          a receipt for  a hotel room),  cert. denied, 469 U.S.  887 (1984)
                                         _____ ______

          and 471 U.S. 1126 (1985); United States v. Marino, 658 F.2d 1120,
          ___                       _____________    ______

          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
          ______

          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
                                                    ___ __________     ____

          of Lebanon, 957  F.2d 913, 918 (1st Cir.  1992); United States v.
          __________                                       _____________

          Abreu,  952 F.2d 1458, 1467 (1st Cir.),  cert. denied, 112 S. Ct.
          _____                                    _____ ______

          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
                                                                 ___ ______

          States v.  Echeverri, 982 F.2d  675, 677 (1st Cir.  1993); United
          ______     _________                                       ______

          States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied,
          ______    _____                                     _____ ______

          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.
                   ___  _________                   _____

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
                                        ___   _____________     ______

          F.2d  545, 549  (1st  Cir.  1989), cert.  denied,  494 U.S.  1019
                                             _____  ______

          (1990); see  also 21 U.S.C.    841(a)(1) & (b)(1)(C).   Appellant
                  ___  ____

          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
                              
          ____________________

               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
                                  ___  _________                     ______
          States v. Rivera-Santiago, 872 F.2d  1073, 1079 (1st Cir.), cert.
          ______    _______________                                   _____
          denied, 492 U.S. 910 (1989).
          ______

                                          11

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
                                   ___ _____________    _________

          ___, ___ (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
                             _____

          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.
                            ___ _________

                    In Ortiz, we  concluded that evidence of  a defendant's
                       _____

          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
                      ___ _____

          "[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
          ___                                _________

          comparisons  with the  case at bar    we also  held that culpable

          presence could be  found.  See Echeverri,  982 F.2d at 678.   Our
                                     ___ _________

          ruling there revolved  around the defendant's proximity  to drugs

          and drug paraphernalia which were strewn about an apartment.  See
                                                                        ___

12

id.   The  facts  of  this case  are  roughly analogous  to,  but
          ___

          somewhat  more   inculpatory  than,   the  facts   in  Echeverri.
                                                                 _________

          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;
                                   ___  ____  _________

          United  States v.  Batista-Polanco,  927 F.2d  14,  18 (1st  Cir.
          ______________     _______________

          1991);  United States  v. Glover,  814 F.2d  15, 16-17  (1st Cir.
                  _____________     ______

          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),
                   _____________    ________

          cert. denied, 111  S. Ct. 2062 (1991), a  section 924(c)(1) case,
          _____ ______
                              
          ____________________

               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.

                                          13

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,
                            ___          ___  ____ _____    ______________

          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.
                              ________

                    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
                                                            ___  _____

          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
                                    _____________     ___________

          976, 983 (1st Cir. 1992) (collecting cases), cert. denied, 113 S.
                                                       _____ ______

          Ct.  2935 (1993).   And  the  jury also  could conclude,  without

14

discernible difficulty, that appellant knew  of the gun, the drug

          trafficking,  and the obvious relationship between  the two.  See
                                                                        ___

          generally  Echeverri, 982 F.2d at 679 (reaffirming that "criminal
          _________  _________

          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.
          ________

15