
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
