
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1708                                    UNITED STATES,                                      Appellee,                                          v.                                    MARIA VALERIO,                                Defendant, Appellant.                                  __________________        No. 94-1709                                    UNITED STATES,                                      Appellee,                                          v.                                    DOMINGO BAEZ,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            William T. Murphy for appellant Maria Valerio.            _________________            Ernest J. Barone for appellant Domingo Baez.            ________________            Lawrence D.  Gaynor, Assistant United  States Attorney, with  whom            ___________________        Sheldon Whitehouse, United States Attorney, was on brief for appellee.        __________________                                 ____________________                                  February 27, 1995                                 ____________________                      BOWNES, Senior Circuit Judge.  Following a five-day                      BOWNES, Senior Circuit Judge.                              ____________________            jury  trial,  defendants-appellants  Domingo  Baez  and Maria            Valerio were  convicted of possession of  cocaine with intent            to  distribute and  conspiracy  to commit  the same  offense.            Baez  also  was  convicted  of  being  an  illegal  alien  in            possession of  a firearm.   Baez challenges  his convictions,            asserting that he was deprived of a fair trial because of (1)            the  district court's failure to hold an in camera hearing to                                                     __ ______            determine the truthfulness of a search warrant affidavit; and            (2)  a  duplicitous count  in his  indictment.   Valerio also            challenges  her convictions, contending that the evidence was            insufficient to  support them.   After carefully  reading the            record  and considering  the  parties'  arguments, we  affirm            Baez's convictions and reverse Valerio's.                                          I.                                          I.                                          __            A.  Background Facts            A.  Background Facts            ____________________                      Because this case involves a challenge to  criminal            convictions,  we interpret  the  evidence in  the light  most            amenable to the government.   See United States v.  Ortiz, 23                                          ___ _____________     _____            F.3d 21, 23 (1st Cir. 1994).                      Prior to July 21, 1993, Providence Police Detective            Stanley Nadrowski, pursuant to an on-going investigation, led            a  police  team  that  conducted  several   surveillances  of            apartment buildings  at 165 Peace  Street, Providence,  Rhode            Island, and 49  Marden Street, Cranston,  Rhode Island.   The                                         -3-                                          3            team  also  surveilled a  gray  Chevrolet  with Rhode  Island            license plate YC-243, which was seen at both addresses.                      At approximately 7:00 p.m. on July 21, 1993, in the            course of one of  these surveillances, Nadrowski noticed Baez            leave 165 Peace  Street, enter the gray  Chevrolet, and drive            off.  Nadrowski and several other members of the surveillance            team  followed Baez to 49  Marden Street, which  they saw him            enter.  Subsequently, the  police officers observed Baez exit            the building and drive onto Route 10.  They followed him into            Providence, where he turned onto Westminster Street.  At this            point, the police  stopped him.  Baez got out  of his vehicle            and dropped a plastic bag containing 13.9 grams of cocaine to            the ground.  The police  then arrested him.  In  Baez's right            front  pants  pocket,  the  officers  found  a  set  of  keys            containing keys  to 165 Peace  Street and  49 Marden  Street.            One of the keys was labeled "49 Marden Street #7."                      At  the  time  of  Baez's arrest,  the  police  had            already  obtained  a search  warrant  for  165 Peace  Street.            After  his  arrest, the  police also  obtained a  warrant for            Apartment 7 at 49  Marden Street.  The Marden  Street warrant            was executed first, and  the search of those premises  led to            the  discovery of 515.6 grams of cocaine, along with a Tanita            scale  of the type used to  weigh narcotics.  The cocaine was            found in a Brillo box underneath a nightstand in the bedroom;            on top of an adjoining bureau was a picture of Baez.                                         -4-                                          4                      After the  search of  49 Marden Street,  the police            executed  the  search  warrant  for  the  first  floor  right            apartment  at  165 Peace  Street.   Valerio  and a  baby were            present in the apartment at the time the search was executed.            Nadrowski  searched the  only bedroom  in the  apartment, and            found men's and women's clothing, two pairs of Baez's shorts,            photo  albums  containing pictures  of  Baez  and Valerio,  a            woman's   flowered  purse,  identification   cards  and  rent            receipts in Valerio's name, a child's health records to which            Valerio's name was affixed, and a bassinet.  He and the other            officers also found  73.24 grams of cocaine and  an operable,            unloaded .357 handgun.  Most of the cocaine was  found in the            lining  under the  seat cushion of  a chair next  to the bed;            14.83  grams of it, however, were found inside a baby's shoe,            which  was on  a bedroom  shelf.   The  gun was  next to  the            cocaine  in  the chair  lining.   At  the conclusion  of this            search, Valerio was arrested.                      At  trial,  the   landlord  of  165   Peace  Street            testified that Baez had rented the  apartment in April, 1993,            and  that Baez had requested that the rent receipts be issued            in the name of Maria Valerio.  The receipts bearing Valerio's            name were  introduced with a cautionary  instruction from the            court that they could be considered in connection with Baez's            case,  but not Valerio's.  The landlord testified that he saw            Baez two  or three times between  April, 1993 and the  day of                                         -5-                                          5            the arrest.  He also testified that he had never seen Valerio            before   the  night  of  her  arrest.    This  testimony  was            consistent with Baez's testimony that Valerio was not a long-            term  occupant of  the apartment, but  had been  visiting him            from New York for the two or three days prior to her arrest.            B.  Proceedings Below            B.  Proceedings Below            _____________________                      On  November   9,  1993,  Baez  and   Valerio  were            arraigned on a superseding,  three-count indictment.  Count I            charged them  with conspiracy to distribute  and possess with            the intent to distribute cocaine, in violation of 21 U.S.C.              846; Count  II charged  them with the  underlying offense  of            possession of cocaine with intent to distribute, in violation            of 21 U.S.C.    841(a)(1); Count III charged them  with being            illegal aliens in possession of a firearm, in violation of 18            U.S.C.   922(g)(5).                      The  defendants moved to  suppress the  cocaine and            firearm that were the  subject of the superseding indictment.            The  district court  denied the  motion.   Subsequently, Baez            renewed his suppression request,  alleging for the first time            that  the  affidavits  submitted  in support  of  the  search            warrants   were  false.   He accordingly  requested a  Franks                                                                   ______            hearing.  See Franks v. Delaware, 438 U.S. 154, 171-72 (1978)                      ___ ______    ________            (summarizing showing a defendant must  make to be entitled to            a  hearing on  the  adequacy of  a  warrant affidavit).    On            January 28, 1994, the  court granted the motion for  a Franks                                                                   ______                                         -6-                                          6            hearing  and held a portion of it.   On February 3, 1994, the            court  concluded  the hearing  and  denied  Baez's motion  to            suppress.  At that same time,  the court stated on the record            that it had been a mistake to grant Baez a  Franks hearing in                                                        ______            the first place.                      On February 16, 1994, trial began.  Prior to trial,            the  government moved to dismiss  Count III of the indictment            against  Valerio.  The district court granted the motion.  On            March 1, 1994, the jury found Baez guilty on all three counts            of  the indictment and found  Valerio guilty on  Counts I and            II.  On  June 17, 1994, the district court  sentenced Baez to            121 months in  prison, five years of  supervised release, and            $150  in special  assessments.    That  same day,  the  court            sentenced  Valerio to  13  months in  prison,  five years  of            supervised  release, and  $100 in  special assessments.   The            court  also ordered the  defendants presented for deportation            as a  condition  of their  supervised release.   This  appeal            followed.                                         II.                                         II.                                         ___                                    Baez's Appeal                                    Baez's Appeal                                    _____________                      Baez  makes two  arguments  on appeal.   First,  he            contends  that  the district  court  erred  in declining  his            request, made  at the  conclusion of  the Franks  hearing, to                                                      ______            conduct  an in camera proceeding at which the court would ask                        __ ______            the  search warrant  affiant submitted questions  designed to                                         -7-                                          7            impeach the  affiant's credibility.   Second, he  claims that            Count II of  the superseding indictment was duplicitous.   It            is Baez's  position that  the error  regarding the  in camera                                                                __ ______            hearing  requires  that  we  set  aside  all  three  of   his            convictions, and that the duplicitous count in the indictment            requires  that we  set  aside his  possession and  conspiracy            convictions.  The  arguments are without merit.            A.  The Requested In Camera Hearing            A.  The Requested In Camera Hearing            ___________________________________                      The   affidavits  submitted   in  support   of  the            applications for warrants to search 49  Marden Street and 165            Peace Street stated, inter  alia, that the affiant, Detective                                 _____  ____            Nadrowski,  had  received  information  from  a  confidential            informant  that a Hispanic male  (who turned out  to be Baez)            was  distributing  cocaine  out  of  the  first  floor  right            apartment at  165 Peace Street.   The affidavits  also stated            that   this   same  confidential   informant,   under  police            supervision,  had made  two  recent controlled  purchases  of            cocaine in  Baez's gray Chevrolet at  a prearranged location.            In moving for a Franks hearing,  Baez challenged the veracity                            ______            of  these statements, submitting as proof an affidavit of his            own which swore  that he had never sold drugs  to anyone at a            prearranged  location.    The  sum and  substance  of  Baez's            position  was that Nadrowski  had fabricated the confidential            informant's existence.                                         -8-                                          8                      Calling  Baez's  showing  "marginal," the  district            court nonetheless ruled that Baez's affidavit was substantial            enough to warrant a Franks hearing.   See Franks, 438 U.S. at                                ______            ___ ______            155-56 (defendant  is entitled to Franks hearing  if s/he can                                              ______            make a "substantial preliminary showing" that (1) a statement            in a warrant affidavit  was knowingly or intentionally false,            or  made with reckless disregard  for the truth;  and (2) the            falsehood was  necessary to  the finding of  probable cause);            see  also United States v.  Hadfield, 918 F.2d  987, 992 (1st            ___  ____ _____________     ________            Cir.  1990), cert.  denied, 500  U.S. 936  (1991).   Baez and                         _____  ______            Nadrowski testified  at the  hearing, and both  gave accounts            entirely  consistent   with  their  affidavits.    Baez  also            provided testimony elaborating on the reason for his entering            49 Marden  Street prior to  his arrest.1   He stated  that he            had gone to  the building (for  the third time  that day)  in            order  to  retrieve a  telephone  bill  for  the  renters  of            Apartment  7,  who were  out  of town  and had  asked  him to            retrieve and to  safeguard the bill.  He  also stated that he            did not know when they would return.                      Recognizing that  he had not carried  his burden of            proving  that   the  warrant  affidavits  were   infected  by            falsehoods,  Baez asked,  at the  conclusion of  the hearing,                                            ____________________            1.  The affidavit submitted in  support of the request  for a            warrant  to search Apartment 7 at 49 Marden Street noted that            Baez had entered the building just prior to his arrest.                                         -9-                                          9            that the  district court further examine  Nadrowski in camera                                                                __ ______            regarding the  identity of  the confidential informant.   The            district  court  denied this  request,  stating  that such  a            hearing was  not necessary.    The court  then denied  Baez's            motion to  suppress the evidence seized  during the execution            of the search  warrants.  In so  doing, the court found  that            Nadrowski  had been a credible witness and that Baez had been            less credible (particularly with regard to the reason for his            presence at 49 Marden Street just prior to his arrest).                      It  is settled  that  "`a district  court need  not            conduct  an in  camera hearing  whenever  the identity  of an                        __  ______            informant is requested.'"  United States v. Higgins, 995 F.2d                                       _____________    _______            1, 3 (1st  Cir. 1993)  (quoting United States  v. Fixen,  780                                            _____________     _____            F.2d  1434, 1439 (9th Cir.  1986)).  Instead,  it is entirely            within the discretion of the judge presented with the request            to decide  whether the  disclosure is  necessary in order  to            determine the  believability of the testifying  officer.  Id.                                                                      ___            And  there is,  of  course, a  presumption  of validity  with            respect  to the  affidavit  supporting  the  search  warrant.            Franks, 438 U.S. at 171.  Moreover, the factual findings made            ______            by a district court  in connection with a Franks  hearing are                                                      ______            reviewed only for clear error.  United States v. Barnett, 989                                            _____________    _______            F.2d 546, 556 (1st Cir.), cert. denied, 114 S. Ct. 148 (1993)                                      _____ ______            and 114 S. Ct. 149 (1993).            ___                                         -10-                                          10                      Here, we can perceive no abuse of discretion in the            trial  judge's  refusal  to  hold  the  requested  in  camera                                                               __  ______            hearing.   At the conclusion of the Franks hearing, the judge                                                ______            credited the testimony of Detective Nadrowski and discredited            that of Baez.  He also found that he had heard enough at that            point  to  satisfy  himself  that  there  was  no  basis  for            concluding that  Nadrowski's affidavits were false.   We have            carefully reviewed  the transcript of the  Franks hearing and                                                       ______            can discern no error, let alone clear error,  in any of these            rulings.  This ends the matter.                        Accordingly, we  reject  Baez's argument  that  the            court's failure to hold an in camera hearing after the Franks                                       __ ______                   ______            hearing requires reversal of his convictions.            B.  Duplicity in the Indictment            B.  Duplicity in the Indictment            _______________________________                      Baez's   second  argument,   that  Count   II  (the            possession   count)   of  the   superseding   indictment  was            duplicitous, requires little discussion.  Baez never objected            to  Count  II for  duplicity, or  any  other grounds,  in the            district court.  He accordingly has waived his argument.  See                                                                      ___            Fed. R. Crim.  P. 12(b)(2) (defenses and objections  based on            defects in the indictment  (other than that it fails  to show            jurisdiction  in the court or  to charge an  offense) must be            raised prior to trial); see also United States v. Sheehy, 541                                    ___ ____ _____________    ______            F.2d 123, 130 (1st Cir. 1976).                                         -11-                                          11                      Even  were  we  to   reach  the  merits  of  Baez's            duplicity  argument,  we would  reject  it  as  based upon  a            misapprehension of the concept  of duplicity.  Baez's problem            with Count  II does not lie  in the wording of  the count; it            lies  in the  fact  that the  evidence  underlying the  count            allegedly  could have  given  rise to  three separate  counts            charging  possession.   This is  not duplicity.   A  count is            duplicitous when it charges more than one offense in a single                                _______            count.  United States v. Huguenin, 950 F.2d  23, 25 (1st Cir.                    _____________    ________            1991) (per curiam).  Although other factors are involved, the                   ___ ______            prohibition against duplicitous indictments  arises primarily            out of a concern that the jury may find a defendant guilty on            a  count without  having reached a  unanimous verdict  on the            commission  of  any particular  offense.    See id.  at  26.2                                                        ___ ___            Obviously, this  only becomes  a problem when  the indictment            actually  charges two  or more  offenses in  a  single count.            Here,  Count II of  the indictment charged  only one offense:            "That  on or about  July 21, 1993,  in the District  of Rhode            Island, the  defendants, DOMINGO BAEZ and  MARIA VALERIO, did            knowingly, willfully and intentionally possess with intent to            distribute a  mixture and  substance containing  a detectable            amount of cocaine, a Schedule II Controlled Substance."   The                                            ____________________            2.  For  example,  if Count  X  of  an indictment  charges  a            defendant  with  having committed  two offenses,  A and  B, a            conviction would  be possible even  if Jurors 1-6  found only            that the defendant committed offense A, and jurors 7-12 found            only that the defendant committed offense B.                                           -12-                                          12            question  whether the  actions to  which this  count referred            could  have been  charged as  separate crimes  is irrelevant.            _____            The count was not duplicitous.                        Accordingly, we reject  Baez's argument that  there            was a duplicitous count in his indictment.                                         III.                                         III.                                         ____                                   Valerio's Appeal                                   Valerio's Appeal                                   ________________                      Valerio's  sole  appellate  argument  is  that  the            evidence  adduced at trial was not sufficient for the jury to            have concluded  beyond a reasonable doubt  that she possessed            the cocaine with an intent to distribute it, aided or abetted            such a possession, or conspired  to commit such a possession.            After carefully  reviewing the record, we agree.   Central to            our  determination  is  a  belief that  the  jury  could  not            reasonably  have   found  that  Valerio  had   an  intent  to            distribute cocaine.                      We start by acknowledging the formidable showing  a            defendant  must  make  in order  to  prevail  on  a claim  of            insufficient   evidence.     In   conducting   a  sufficiency            assessment,  "we examine the record in a light most favorable            to the  government, drawing all reasonable  inferences in its            favor,  with  an eye  towards  whether the  proof  would have            allowed  a rational  jury  to determine  beyond a  reasonable            doubt that  the defendant was  guilty of the  crime charged."            Ortiz,  23 F.3d  at 24.   "In  this analysis,  no premium  is            _____                                         -13-                                          13            placed  upon  direct as  opposed to  circumstantial evidence;            both  types of  proof  can adequately  ground a  conviction."            United  States v. Ortiz, 966  F.2d 707, 710  (1st Cir. 1992),            ______________    _____            cert.  denied,  113  S.  Ct.  1005  (1993).    In  fact,  the            _____  ______            government's   proof  may  lay   entirely  in  circumstantial                                             ________            evidence.  United States v. Akinola, 985 F.2d 1105, 1109 (1st                       _____________    _______            Cir. 1993).                      That  having been said,  it must  be borne  in mind            that the proof must  still have been sufficient for  the jury            to  have found guilt beyond  a reasonable doubt.   See United                                 ______  _ __________ _____    ___ ______            States v.  Loder, 23 F.3d  586, 590  (1st Cir. 1994).   Thus,            ______     _____            although  the government  need not  exclude  every reasonable            hypothesis of  innocence in order to  sustain the conviction,            see Ortiz,  23 F.3d at  24, we  are loath to  stack inference            ___ _____            upon inference  in order to  uphold the  jury's verdict,  cf.                                                                      ___            Ingram v.  United States,  360 U.S.  672, 680 (1959)  (citing            ______     _____________            Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943)).            ________________    _____________                      In   order  to   secure  a  conviction   under  the            possession with  intent to  distribute count, the  government            had to prove beyond a reasonable doubt that Valerio knowingly            and intentionally  possessed the drugs,  and that she  did so                                                     ___ ____ ___  ___ __            with an intent to distribute them.  United States v. Paulino,            ____ __ ______ __ __________ ____   _____________    _______            13 F.3d 20, 25 (1st Cir. 1994).  Under  the conspiracy count,            the government  had to prove  beyond a reasonable  doubt that            Valerio  intended to  agree  and intended  to effectuate  the                                         -14-                                          14            commission  of  the  underlying  possession  with  intent  to            distribute  offense.  See United States v. Piper, 35 F.3d 611                                  ___ _____________    _____            (1st Cir.), petition for cert.  filed, ___ U.S.L.W. ___ (U.S.                        ________ ___ _____  _____            Nov.  14,  1994) (No.  94-6876).   For  Valerio to  have been            convicted under an aiding and abetting theory, the government            had  to   prove  that  (1)  Baez   committed  the  underlying            substantive crime; and (2) Valerio "associated [her]self with            the venture, participated in it as something  [s]he wished to            bring about, and sought by [her] actions to make it succeed."            Loder, 23 F.3d at  590-91 (citations omitted).  It  is clear,            _____            therefore,  that both  of Valerio's  convictions must  be set            aside  if the jury could  not have found  beyond a reasonable            doubt that Valerio intended  that the cocaine be distributed.            No such finding was possible on this record.                      First, there was  no direct  evidence that  Valerio            participated in or helped  facilitate the distribution of any            cocaine.   Nor is there any direct evidence that she intended            that  the cocaine  be distributed.   Thus, the  government is            left to argue that proof of Valerio's distributive intent can            be found in  a type  of circumstantial evidence  of which  we            have  approved  on  several  occasions:    knowledge  of  the            quantity of  the drugs involved.   See  Ortiz, 23 F.3d  at 25                                               ___  _____            (intent to  distribute can be  inferred from the  quantity of            the controlled substance possessed) (citing United States  v.                                                        _____________            Echeverri,  982 F.2d  675, 678  (1st Cir.  1993)).   In other            _________                                         -15-                                          15            words,  the  government's  position  is   that,  because  the            quantity   of  drugs  found  in  165  Peace  Street  was  not            consistent  with  personal  consumption, the  jury  correctly            inferred a distributive intent on the part of Valerio.                        The problem  with this position is  that, even were            we to infer  that Valerio  was aware  of the  14.83 grams  of            cocaine  in  the  baby  shoe,3  the  evidence  at  trial  was            insufficient to prove that Valerio  knew of the existence  of            the  cocaine in the  chair lining.   This cocaine  was not in            plain  view,  and not  likely to  have  been discovered  by a            short-term occupant of  the bedroom.4  And without  a finding            that Valerio knew  about this cocaine, the  quantity of drugs            of which  Valerio was aware is not large enough to support an            inference of distributive intent.                                               ____________________            3.  The  reasonableness  of  such  an  inference,  which  the            government urges us  to draw because Valerio was  taking care            of  a baby  at the  time of  the search,  is open  to serious            question.  First,  it appears  that the cocaine  in the  baby            shoe  was not  in plain  view; that  is to  say, there  is no            suggestion that it was  sticking out of the shoe  and visible            to occupants  of  the bedroom  in which  it was  found.   And            second, the government did not attempt to prove at trial that            the  shoe belonged to Valerio's  baby.  When  these facts are            considered in conjunction with the fact that the evidence was            insufficient  to prove that Valerio was anything other than a            short-term  visitor to the apartment,  see infra at 16-17, we                                                   ___ _____            are  skeptical that  any factfinder  could conclude  beyond a            reasonable doubt that Valerio knew of the cocaine in the baby            shoe.               4.  The government  asserts that  "[a]lthough not exposed  to            plain view, the cocaine was readily accessible since one only            had to turn over the chair  to find it."  The issue, however,            is  not  accessibility;  it  is knowledge  of  the  cocaine's            existence.                                         -16-                                          16                      Of course, if it had been demonstrated that Valerio            was  a  long-term occupant  of  the  apartment  at 165  Peace            Street, it might be  reasonable to infer that she  knew about            all the drugs that were stored there.  The evidence  at trial            was insufficient, however, to prove beyond a reasonable doubt            that  Valerio  had  been  anything other  than  a  short-term            occupant of the apartment at 165 Peace Street at the time  of            her  arrest.  Although  the rent  receipts for  the apartment            were issued  in Valerio's name, the landlord of the apartment            testified  that this was done  at Baez's request;  and it was            for this reason  that the  court instructed the  jury not  to            consider  the  rent  receipts  in connection  with  the  case            against Valerio.  Furthermore, the landlord testified that he            lived at 165 Peace Street but had never seen Valerio prior to            her  arrest.   And,  of course,  Baez himself  testified that            Valerio had only been visiting for two or three days prior to            her arrest.  The jury  was free to disbelieve any and  all of            this  testimony; any inference of longer-term residence must,            however, have been predicated on an evidentiary basis.  There            was no such basis here.5                                            ____________________            5.  The government  makes much of  the fact that  the bedroom            contained a flowered purse, identification cards for Valerio,            a child's  health care  record  to which  Valerio's name  was            affixed,  and photo  albums containing  pictures of  Baez and            Valerio,  arguing that "[t]hese are not the type of items one            would  expect to find if Valerio were merely a casual visitor            to the apartment."   We cannot  agree; in our view,  there is            nothing  at all unusual about  a mother of  a baby bringing a            purse, identification, and the baby's health records along on                                         -17-                                          17                      Before concluding, we  think it important to  point            out that the evidence  against Valerio in this case  was even            weaker than that  in other  cases in which  we have  reversed            convictions on sufficiency grounds.                        In United States  v. Ocampo, 964 F.2d  80 (1st Cir.                         _____________     ______            1992),  for   instance,  we   held  that  the   evidence  was            insufficient   to  support  the  defendant's  conviction  for            conspiracy to possess with intent to distribute  cocaine.  In            that  case,  the  evidence   showed,  inter  alia,  that  the                                                  _____  ____            defendant had lived  in the apartment  where the cocaine  had            been stored  for four to  six months,  and that she  had told            investigating officers  that five quart-sized cans of acetone            found in  the apartment  (evidence at trial  established that            acetone  is used to dilute  cocaine) were used  "to clean off            her fingernails."  Id. at 81-82.                               ___                      In  United States v. Hyson,  721 F.2d 856 (1st Cir.                          _____________    _____            1983),  we found  the  evidence insufficient  to support  one            defendant's  conviction for  conspiracy to distribute  and to            possess with  intent to distribute heroin, marijuana, hashish            and cocaine.   In  that case, the  evidence established  that                                            ____________________            a  multiple-day visit  to a  friend living  approximately two            hundred miles away.   And  even if we  assume that the  photo            albums were  Valerio's (which  we have  no basis  for doing),            there is nothing  in the  record indicating  that the  albums            were of such a  nature, or set  up in such  a way, that  they            were unlikely to  have been brought to Providence  by Valerio            on a short visit.                                          -18-                                          18            this defendant lived with a codefendant in an apartment where            hashish was stored and knew of its existence.  Id. at 862-63.                                                           ___                      And in  United States v.  Mehtala, 578 F.2d  6 (1st                              _____________     _______            Cir. 1978), we found the evidence insufficient to support the            defendant's  conviction  for   knowingly  and   intentionally            importing marijuana  into the United  States.  In  that case,            the evidence  established that the defendant,  a twenty-year-            old girl, had  spent nearly  four months at  sea in a  "close            relationship"  with the captain of a ship off whose stern was            floating approximately fifty pounds of marijuana.   Id. at 7-                                                                ___            10.       The evidence here may  well have been sufficient to            support a  finding that  Valerio possessed  cocaine.   It was            not,  however,  sufficient  to  support a  finding  that  she            intended that cocaine be distributed.  Because such a finding            was a  necessary element of  her offenses of  conviction, her            convictions cannot stand.                      Accordingly, we reverse Maria Valerio's convictions            for  possession  of cocaine  with  intent  to distribute  and            conspiracy to commit the same offense.                                         IV.                                         IV.                                         ___                      For the  reasons stated, we affirm  the convictions                                                  ______            of  defendant Domingo  Baez  and reverse  the convictions  of                                             _______            defendant Maria Valerio.6                                            ____________________            6.  Because  Baez  was  convicted  of  conspiring  both  with            Valerio  and with  "other persons  known  and unknown  to the                     ___            Grand Jury," our reversal  of Valerio's conspiracy conviction                                         -19-                                          19                                                                                             ____________________            does not require reversal of Baez's conspiracy conviction.                                          -20-                                          20
