
USCA1 Opinion

	




          June 9, 1994          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1811                                                UNITED STATES,                                      Appellee,                                          v.                                  ISIDRO RODRIGUEZ,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                 ___________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               John P. Rab and Rad & Neiman, on brief for appellant.               ___________     ____________               Paul M. Gagnon,  United States Attorney,  and Jean B.  Weld,               ______________                                _____________          Assistant United States Attorney, on brief for appellee.                                  __________________                                  __________________                 Per  Curiam.   Appellant  Isidro  Rodriguez  appeals his                 ___________            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                                         -2-            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                                         -3-            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                                         -4-            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            _____ ____            could indicate occupancy of the premises and thus were within            the scope of the warrant.  See United States v. Tabares,  951                                       ___ _____________    _______            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.                                                                 _____            Maryland,  373 U.S. 83 (1963), and  its progeny, was violated            ________            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                          __  ______            denying his discovery request.                 Brady   requires   the   government   to   disclose  any                 _____            exculpatory evidence which is "material either to guilt or to            punishment."   Brady, 373 U.S.  at 87.   Material evidence is                           _____                                         -5-            that which, if disclosed, "might have affected the outcome of            the trial."  United States v. Agurs, 427 U.S. 97, 104 (1976).                         _____________    _____            However,  "[a]  defendant's  right  to  discover  exculpatory            evidence does  not  include  the  unsupervised  authority  to            search through  the [government's]  files."  Pennsylvania  v.                                                         ____________            Ritchie, 480 U.S. 39, 59 (1987).   Nor does it entitle him to            _______            require a  trial  court  "to conduct  an  in  camera  fishing                                                      __  ______            expedition through the government's files."  United States v.                                                         _____________            Pou, 953 F.2d 363, 366-67 (8th Cir.), cert. denied, 112 S.Ct.            ___                                   ____  ______            1982 (1992); see also United States v. Navarro, 737 F.2d 625,                         ___ ____ _____________    _______            631 (7th  Cir.), cert.  denied, 469 U.S.  1020 (1984)  ("Mere                             ____   ______            speculation that a government file may contain Brady material                                                           _____            is  not  sufficient  to  require  a  remand  for  in   camera                                                              __   ______            inspection.").  Rather, "[t]o establish a violation of Brady,                                                                   _____            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.                                                       ______________            Brandon, 17 F.3d 409, 456 (1st Cir. 1994).  In addition,  the            _______            defendant must  show that  any evidence not  disclosed caused            him "undue prejudice."  United States v. Drougas, 748 F.2d 8,                                    _____________    _______            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.                                         -6-            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.                                                           _____                 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                                         -7-                 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-                                       ___  ___   _____________    ______            Santana, 964 F.2d 1262, 1269 (1st Cir. 1992).   In this case,            _______            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                                                       ___  ___    ______            States v. Paulino, 13 F.3d 20, 25 (1st Cir. 1994), we find no            ______    _______            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                                         -8-            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.                                                        ______________            Abreu, 952  F.2d 1458,  1466  (1st Cir.),  cert. denied,  112            _____                                      ____  ______            S.Ct.  1695  (1992);  see  also   Paulino,  13  F.3d  at  26.                                  ___  ____   _______            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                         _____________    _________            Cir.), cert. denied, 501 U.S. 1211 (1991).  In this case, the                   ____  ______            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            ___ _______            paraphernalia  in  apartment  over  which  defendant  had   a            significant  degree  of control);  Abreu,  952  F.2d at  1466                                               _____                                         -9-            (weapon,  cocaine, cocaine  packing and  distribution devices            found in apartment rented by defendant).                  Affirmed.  See 1st Cir. Loc. R. 27.1.                 ________   ___                                         -10-
