
USCA1 Opinion

	




          May 2, 1994                              UNITED STATES COURT OF APPEALS                                   FOR THE FIRST CIRCUIT                                   ____________________               No. 93-1867                                      UNITED STATES,                                         Appellee,                                            v.                                       JEFFREY FORD,                                   Defendant, Appellant.                                   _____________________                                       ERRATA SHEET                    Please make the following  correction in the opinion in               the above case released on April 28, 1994:               Page  2,  line 1:   Insert  the  following before  the first               sentence:                              PETTINE, Senior District Judge.                                       _____________________                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST  CIRCUIT                                 ____________________        No. 93-1867                                    UNITED STATES,                                      Appellee,                                          v.                                    JEFFREY FORD,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                         and Pettine,* Senior District Judge.                                       _____________________                                 ____________________            David  P. Hoose,  by Appointment  of  the  Court, with  whom Katz,            _______________                                              _____        Sasson and Hoose was on brief for appellant.        ________________            Kevin O'Regan, Assistant United States Attorney, with whom  Donald            _____________                                               ______        K. Stern, United States Attorney, was on brief for appellee.        ________                                 ____________________                                    April 28, 1994                                 ____________________        _____________________        *Of the District of Rhode Island, sitting by designation.                       PETTINE, Senior District Judge.  Defendant Dr.                                ______________________             Jeffrey M. Ford was charged under a four count indictment             for violations of the drug laws.  He was convicted on all             counts and sentenced to fifty-one months imprisonment and             three years of supervised release.  Dr. Ford raises three             issues on appeal:  the district court erred in denying a             motion to suppress evidence seized during a warrantless             search; the district court erred in admitting into evidence             a book entitled Secrets of Methamphetamine Manufacture; and                             ______________________________________             there is insufficient evidence to support a conviction for             possession of cocaine with intent to distribute.  For the             reasons stated below, we reject Dr. Ford's arguments and             affirm the district court.                                          I.                       The relevant facts are as follows.  In March 1991,             the Postmaster of the South Hadley Post Office in             Massachusetts notified Postal Inspector Terrence Loftus that             on several occasions Dr. Ford had purchased postal money             orders and sent them via Express Mail to an address in             Arizona.  After a few days, Ford would receive an Express                                         -2-                                          2             Mail package from a person named R. Cunningham with a             fictitious California return address.  Inspector Loftus             asked to be informed of the next such occurrence.                       On July 22, 1991, the postmaster informed             Inspector Loftus that Dr. Ford purchased additional money             orders and sent them to the address in Arizona.  On July 23,             1991, an Express Mail package arrived for Dr. Ford from R.             Cunningham at the Los Angeles address.  Inspector Loftus             removed the package from the mail stream and had it examined             by a trained narcotics detection dog.  The dog alerted to             the package, indicating the presence of narcotics.  On July             24, 1991, Inspector Loftus obtained a search warrant to             inspect the contents of the Express Mail package.  The             contents field tested positive for methamphetamine.              Subsequent laboratory tests disclosed that the substance was             27.59 grams of 80% pure cocaine.                       The package was returned to the mail stream to be             delivered to Dr. Ford.  Postal Inspectors and the South             Hadley police department then placed the post office and Dr.             Ford's home under surveillance.  In the meantime, Dr. Ford             arrived, picked up the package and then returned home.                                          -3-                                          3             After he entered his house with the package, Sergeant David             Strychars and Postal Inspector Fred Gray, who were             surveilling the premises, knocked on Dr. Ford's door             announcing that they were from the water department and             convinced Dr. Ford to exit his home.1  As the district             court found, "[o]nce defendant exited the premises, assisted             by Strychars' hand on his shoulder, the law enforcement             officers informed him that he was under arrest and             handcuffed him." Aplt.'s App. at 16.                         The testimony of law enforcement                       officers and of the defendant diverge                       significantly as to what happened next.                        According to the law enforcement                       officers, who testified consistently                       with one another, Ford was first given                       his Miranda rights.  Loftus then asked                           _______                       Ford whether Ford would give consent to                       a search of his house, informing Ford                       that the search would take place in any                       case after the officers obtained a                       warrant.  Ford refused permission to                       search the premises.             Id. at 17 (citations omitted).  Subsequently, Inspector             ___             Loftus explained to Dr. Ford that he would be brought to             Springfield to be arraigned before a federal Magistrate             Judge ("Magistrate") and that bail would be set.  Dr. Ford                                              ____________________             1   Dr. Ford contends that Sergeant  Strychars and Inspector             Gray  immediately announced  themselves as  police officers.             This  discrepancy is  immaterial  for the  purposes of  this             appeal.                                         -4-                                          4             then made several inquiries: he inquired about his dog (who             was in the house); asked if he could change his clothes;             whether he needed to bring money with him; and if he could             go inside and use the bathroom.  Dr. Ford was told that he             could exchange his clothes and use the bathroom but that he             could not go back in the house by himself.  Inspector Loftus             told Dr. Ford that the officers "would have to satisfy             themselves that there was no one else on the premises who             might pose a threat to them."  Aplt.'s App. at 18.                            Dr. Ford, Inspector Loftus and three other law             enforcement personnel then proceeded to enter the house with             the defendant, who posed no objection.  Beginning with the             ground floor, the officers performed a sweep of each floor             to ensure that no one else was present.  On the second             floor, the officers noticed the package Dr. Ford had             received that day.  "On an unmade bed in a bedroom on the             middle level of Dr. Ford's three level home, the agents             found the package of cocaine, which had been opened, a plate             with a sifter and knife and a Penthouse magazine."  Aplt.'s             Br. at 5-6.  The group proceeded to the third level so that                                         -5-                                          5             Dr. Ford could change his clothes.2  When the agents             reached the top floor, several doors were closed.  Inspector             Loftus told Dr. Ford that the agents were going to open the             doors to make sure that no one else was present.  Dr. Ford             then responded "I wish you wouldn't."  Tr., vol. III at 55.              The agents opened the doors and were able to see marijuana             growing in two of the rooms.  Dr. Ford asked how much money             he should bring for bail and indicated he had substantial             amounts of cash on hand.  Inspector Loftus inquired as to             the amount and Dr. Ford produced $13,000 from a wicker             basket.  The agents confiscated the cash.                       Dr. Ford contends that it was the agents, not             himself, who initiated the re-entry into the house; that the             conversations concerning bail, his dog and changing clothes             took place inside the house and that Inspector Loftus             prompted the discussion about the money.  "Loftus . . .             stated that if Ford showed him where the money was             immediately, Loftus would count the money in front of Ford             and give him a receipt for the full amount.  The             implication, according to Ford, was that the money would not                                              ____________________             2   When Dr. Ford was  arrested, he was wearing  a tee shirt             and shorts, and was barefoot.                                         -6-                                          6             be accounted for properly if he did not turn it over before             he was taken to Springfield."  Aplt.'s App. at 21.  We note             that the district court, when confronted with contradictory             versions of the relevant facts, accepted the version set             forth by the government witnesses.  "[T]he Court either             rejects defendant's conflicting account of the events for             lack of credibility, or else concludes, in specific             instances, that certain discrepancies are immaterial for             purposes of defendant's suppression motions."  Aplt.'s App.             at 21.                       Dr. Ford was brought to the Magistrate in             Springfield and Inspector Loftus obtained a search warrant             for the house.  When the search warrant was executed the             agents seized the marijuana plants, packaged marijuana, a             scale, a pistol, items used to cultivate marijuana and             several postal receipts for Express Mail packages from Dr.             Ford to his contact in Arizona.                                                             II.                                         -7-                                          7                       Prior to trial, Dr. Ford filed a motion to             suppress the evidence uncovered during the search of his             house: the marijuana plants, packaged marijuana, a scale, a             pistol and various items used to grow and care for the             marijuana.  He contends that the search was unlawful.  The             government argued below that the search was a lawful             "protective sweep" of the house.  After a hearing on the             motion, the district court did not decide whether the search             was a lawful protective sweep.  Instead, the court             determined that the evidence was admissible under an             exception to the warrant requirement known as the             "inevitable discovery" rule.                        Because the agents in the first instance entered             Dr. Ford's home without a warrant, we must determine whether             the evidence seized must be suppressed or whether the             evidence  is admissible under an exception to the warrant             requirement.  We feel compelled to note that had the agents             obtained a warrant, this exercise would be unnecessary.  As             this is not the case, we must turn to the task at hand.                          The inevitable discovery rule, adopted by the             Supreme Court in Nix v. Williams, 467 U.S. 431 (1984),                              ___    ________                                         -8-                                          8             provides for the admissibility of evidence discovered during             a warrantless search if the evidence would have been             inevitably discovered through independent legal means.  "If             the prosecution can establish by a preponderance of the             evidence that the information ultimately or inevitably would             have been discovered by lawful means . . . then . . . the             evidence should be received."  Id. at 444.  The prosecution                                            ___             may not rely on speculation but rather must meet this burden             of proof based on "demonstrated historical facts capable of             ready verification or impeachment."  Id. at 444 n.5.                                                     ___                       In United States v. Silvestri, 787 F.2d 736 (1st                          _____________    _________             Cir. 1986), cert. denied, 487 U.S. 1233 (1988), this court                         _____ ______             established the analytical framework for the inevitable             discovery rule.  In Silvestri, police officers unlawfully                                 _________             searched a residence and discovered large quantities of             drugs in the garage.  Two other officers, who were not             involved in the unlawful search, prepared the search warrant             affidavit and application without any knowledge of the             illegal search.  Upon issuance of the warrant, the premises             were lawfully searched and the evidence seized.  The             defendant moved to suppress the evidence.  The district             court denied the motion, holding the evidence to be                                         -9-                                          9             admissible under the inevitable discovery rule.  On appeal,             this court affirmed the district court after considering             three questions.  "[A]re the legal means truly independent;             are both the use of the legal means and the discovery by             that means truly inevitable; and does the application of the             inevitable discovery exception either provide an incentive             for police misconduct or significantly weaken fourth             amendment protection?"  Id. at 744.                                       ___                       In Silvestri, the defendant argued that, in order                          _________             to be truly independent, the legal means (i.e. the search             warrant) must be underway at the time of the discovery; in             other words, the warrant process must be ongoing at the time             of the alleged police misconduct or illegal search.  The             defendant cited for support a Fifth Circuit decision which             held that "the legal process of discovery be ongoing at the             time of the illegal discovery in order for the inevitable             discovery exception to be applicable."  Id. at 742                                                     ___             (discussing United States v. Cherry, 759 F.2d 1196 (5th Cir.                         _____________    ______             1985)).  See also United States v. Satterfield, 743 F.2d 827                      ________ _____________    ___________             (11th Cir. 1984), cert. denied, 471 U.S. 1117 (1985)                               _____ ______             (adopting similar rule); United States v. Romero, 692 F.2d                                      _____________    ______                                         -10-                                          10             699 (10th Cir. 1982) (same).  This court declined to adopt             such a strict approach.                         Rather than setting up an inflexable                       [sic] "ongoing" test such as the Fifth                       Circuit's, we suggest that the analysis                       focus on the questions of independence                       and inevitability and remain flexible                       enough to handle the many different fact                       patterns which will be presented. . . .                        In cases where a warrant is obtained,                       however, the active pursuit requirement                       is too rigid.  On the other hand, a                       requirement that probable cause be                       present prior to the illegal search                       ensures both independence and                       inevitability for the prewarrant search                       situation.             Id. at 746.  Under this flexible standard, independence and             ___             inevitability remain the cornerstones of the analysis.  The             specific facts of each case will determine the requirements             necessary to prove independence and inevitability.                        The district court applied the teachings of Nix                                                                   ___             and Silvestri and held that the inevitable discovery rule                 _________             applied.                       [T]he search warrant, the legal means of                       search, even if filtered of any                       reference to marijuana and the large                       sums of money, was wholly independent of                       the arguably improper protective sweep,                       and the discovery of the physical                       evidence at issue was certainly                       inevitable.  In addition, the Court                       concludes that application of the                                         -11-                                          11                       inevitable discovery doctrine to the                       facts of this case would not                       significantly dilute constitutional                       protections or provide a carrot for                       police misconduct.              Aplt.'s App. at 30.               A. The Decision To Seek A Warrant             _________________________________                       Dr. Ford attacks the district court's holdings             under each of the three Silvestri questions.  First, he                                     _________             argues that the search warrant was not sufficiently             independent of the warrantless entry into his home.  He             argues that while Silvestri held that the warrant process                               _________             did not have to be ongoing, "it is implicit that Silvestri                                                              _________             establishes as at least a minimum requirement, the decision                                                                ________             to seek a warrant [must] be made prior to the time that the             illegal search took place and that the decision in no way be             influenced or accelerated by information gained from the             illegal search."  Aplt.'s Br. at 10.3                           Before we address Dr. Ford's arguments, we must             bear in mind the appropriate standard of review.  "The                                              ____________________             3         The government does not dispute Dr. Ford's reading             of  Silvestri but  rather  argues that  there is  sufficient                 _________             evidence showing a decision was made prior to the search.                                         -12-                                          12             standard of review of an appeal from a denial of a motion to             suppress is that the decision will be upheld if any             reasonable view of the evidence supports the trial court's             decision."  United States v. McLaughlin, 957 F.2d 12, 16                         _____________    __________             (1st Cir. 1992).  We review de novo any questions of law                                         __ ____             which arise in the course of our analysis.  United States v.                                                         _____________             Yoffe, 775 F.2d 447, 451 (1st Cir. 1985).               _____                       We have carefully reviewed Silvestri and find no                                                  _________             language to support Dr. Ford's argument.  Indeed, Silvestri                                                               _________             rejected a bright line rule in favor of a flexible analysis.                       [In] [t]he situation where a warrant is                       obtained after a warrantless search . .                       . the requirement of active pursuit                       could be viewed as ensuring the                       independent inevitability of the police                       decision to seek the search warrant,                       i.e., to ensure that the evidence turned                       up in the illegal search did not                       influence this decision.  As a                       protection of the independence of the                       warrant, however, this bright-line rule                       goes too far.             Silvestri, 787 F.2d at 745.  However, Silvestri did require             _________                             _________             "that probable cause be present prior to the illegal search             [to ensure] both independence and inevitability for the             prewarrant search situation."  Id. at 746.                                              ___                                         -13-                                          13                       The existence of independent probable cause to             search Dr. Ford's home is undisputed.  Dr. Ford concedes             that "it is beyond argument that the agents had probable             cause to search Dr. Ford's residence after he returned with             the package from the Post Office."  Aplt.'s Br. at 10.  It             is also beyond dispute that the seized evidence would have             been (and was) discovered following the authorized search.              It is inevitable that the existence of probable cause would             find fruition in the issuance of a search warrant.  This is             bolstered by the fact that there is evidence in the record,             relied upon by the district court, that a decision to seek a             warrant had been made prior to the warrantless entry.              "Loftus then asked Ford whether Ford would consent to a             search of his house, informing Ford that the search would             take place in any case after the officers obtained a             warrant."  Aplt.'s App. at 17.  Thus, we believe that a             reasonable view of the evidence supports the district             court's finding that the probable cause supporting the             search warrant was independent of the warrantless search and             that the evidence seized would have been discovered upon the             issuance of a warrant.             B. The Inclusion of Tainted Information             _______________________________________                                         -14-                                          14                       Dr. Ford argues that the search warrant cannot be             considered independent because the search warrant affidavit             included observations made during the warrantless search of             the home.  "The inclusion of tainted evidence in the             affidavit in support of the application for a search warrant             seriously undercuts the true independence of the warrant as             a valid subsequent legal means."  Aplt.'s Br. at 16.              According to Dr. Ford, because the warrant contained such             tainted information, it is impossible to know with any             certainty whether the magistrate would have issued the             warrant in the absence of the tainted information.  This             uncertainty, Dr. Ford contends, renders the search warrant             suspect and mandates against the application of the             inevitable discovery rule.                         For support, Dr. Ford cites Murray v. United                                                   ______    ______             States, 487 U.S. 533 (1988).   In Murray, the Supreme Court             ______                            ______             considered the "independence" of legal means under another             exception to the warrant requirement -- the independent             source doctrine.                         The ultimate question, therefore, is                       whether the search pursuant to warrant                       was in fact a genuinely independent                       source of the information and tangible                       evidence at issue here.  This would not                       have been the case . . . if information                                         -15-                                          15                       obtained during that entry was presented                       to the Magistrate and affected his                       decision to issue the warrant.             Id. at 542.  Contrary to Dr. Ford's contention, the Court             ___             did leave some room for speculation when making this             determination.  "To determine whether the warrant was             independent of the illegal entry, one must ask whether it             would have been sought even if what actually happened had             not occurred."  Id. at 542 n.3.  Dr. Ford also cites Nix for                             ___                                  ___             the proposition that speculation may not play any role in a             determination under the inevitable discovery rule.              "[I]nevitable discovery involves no speculative elements but             focuses on demonstrated historical facts capable of ready             verification or impeachment and does not require a departure             from the usual burden of proof at suppression hearings."              Nix, 467 U.S. at 444 n.5.               ___                       When reviewing affidavits containing "tainted"             evidence, courts regularly set aside the tainted information             and then determine if "there  remains sufficient content in             the warrant affidavit to support a finding of probable             cause."  Franks v. Delaware, 438 U.S. 154, 172 (1978).  This                      ______    ________             court has applied the same analysis.  "[The illegally             obtained information] should be set to one side (as the                                         -16-                                          16             district court did) and the remaining content of the             affidavit examined to determine whether there was probable             cause to search, apart from the tainted averments."   United                                                                   ______             States v. Veillette, 778 F.2d 899, 904 (1st Cir. 1985),             ______    _________             cert. denied, 476 U.S. 1115 (1986).               _____ ______                       Here, the district court performed precisely this             analysis.                         [A] valid warrant to search Ford's home                       would have issued despite the                       information obtained in the course of                       the protective sweep . . . .  If one                       were to strike from the supporting                       affidavit any and all references other                       than those to the express mail package                       in question and the events leading to                       its arrival in defendant's dwelling, the                       search warrant would have issued based                       on probable cause.                             Aplt.'s App. at 29.  This finding cannot be seriously             doubted.  We set forth a portion of the affidavit to             underscore this holding.                       2.   This morning I received a search                       warrant for an Express Mail package                       suspected of containing controlled                       substances. . . .                       3.   The Express Mail package was addressed to Dr.             Jeff      Ford, 90 Amherst Road, So. Hadley, MA 01075.                       4.   Upon executing the search warrant I                       found approximately 30 grams of a                       substance that field tested positive for                       methamphetamine, a Schedule III                                         -17-                                          17                       controlled substance.                                                                                                                                                                                                                .                       . .                        6.   At approximately 2:15 p.m. Ford                       picked up the Express Mail package and                       drove to his home at 90 Amherst Road,                       South Hadley, Massachusetts (the                       "Premises").                        7.   At approximately 2:45 p.m. Ford was                       arrested by another U.S. Postal                       Inspector at the Premises.             Rec., doc. 29, ex. B at 1.  It requires no speculation to             determine that the excised affidavit supports a finding of             probable cause.4  We therefore reject Dr. Ford's second             attack on the independence of the warrant.5                                              ____________________             4         Dr.  Ford argues  that  Franks  and Veillette  are                                               ______      _________             inapplicable in an inevitable discovery context.   Veillette                                                                _________             was  decided under  the independent  source doctrine  which,             according  to   Dr.   Ford,   lacks   the   requirement   of             inevitability.    We  note  once again  that  the  Silvestri                                                                _________             analysis is a  flexible one, turning on the particular facts             of  each  case.    In   closer  cases,  the  requirement  of             inevitability  may  mandate  that   the  Magistrate  not  be             presented with any of the tainted information.  However,  in             such a  clear  case as  this,  we do  not believe  that  the             inevitability  of  the  issuance   of  the  warrant  can  be             seriously questioned.             5         Dr. Ford  also argues that the  warrant should not             be  considered  independent  because  the  agents  who  were             involved in the warrantless search  were also the agents who             prepared the  search warrant.   Many courts  have considered             the  level of  participation by agents  not involved  in the             original search.  See Silvestri, 787 F.2d at 741-742; United                               ___ _________                       ______             States v. Merriweather, 777 F.2d  503 (9th Cir. 1985), cert.             ______    ____________                                 _____             denied 475 U.S. 1098  (1986); United States v.  Hidalgo, 747             ______                        _____________     _______                                         -18-                                          18             C. Incentive for Police Misconduct             __________________________________                       Finally, Dr. Ford argues that application of the             inevitable discovery rule in this case would weaken Fourth             Amendment protection and provide an incentive for police             misconduct.  He points out that the agents did not attempt             to secure either a search or an arrest warrant prior to Dr.             Ford's receipt of the package.   Further, because the agents             used a ruse (the water department story) to lure Dr. Ford             from his home, "it was surely not a surprise for the             defendant to have needs related to the inside of the home."              Aplt.'s Br. at 26.  "The government should not be permitted             to be indifferent to the warrant requirement for twenty-four             hours and rely on a search warrant obtained after agents             have engaged in an entirely predictable and manufactured             'protective sweep,' as proof of inevitability."  Id. at 27.                                                               ___                                              ____________________             F.  Supp.  818, 833  (D.  Mass. 1990);  Hunnewell  v. United                                                     _________     ______             States,  738 F.  Supp.  582, 584  (D. Maine),  aff'd without             ______                                         _____________             opinion,  923  F.2d  839  (1st  Cir.  1990).    These  cases             _______             demonstrate that the  level of participation  is one of  the                                                              ___             many  factors   to  be  considered   when  determining   the             independence of the warrant.  As we  have previously stated,             the  independence  of the  warrant  in the  present  case is             firmly  established.     The  overlap  between  the   agents             searching the premises  prior to the warrant  and the agents             preparing the warrant does not alter our holding.                                          -19-                                          19                       Although we agree with Dr. Ford that a warrant             would have avoided this problem, we cannot agree that             applying the inevitable discovery doctrine in this situation             would provide an incentive for misconduct.  We have found             only one case in which a court, after engaging in the             Silvestri analysis, refused to apply the inevitable             _________             discovery rule due to the incentive for police misconduct.              United States v. Rullo, 748 F. Supp. 36 (D. Mass. 1990).  In             _____________    _____             Rullo, the police used excessive physical force to compel a             _____             suspect to disclose the location of a gun.  The court held             that, although the gun would have been inevitability             discovered through a separate search, the incentive for             police misconduct was so great that the inevitable discovery             rule could not apply.  The present case obviously does not             involve such blatant police misconduct.                       In fact, as the district court stated, "it is             dubious whether the police involved in this case behaved             improperly at all."  Aplt.'s App. at 30.  A police officer             has the right to remain with a suspect at all times.              Washington v. Chrisman, 455 U.S. 1, 6-7 (1982).  In             __________    ________             Chrisman, a student was detained outside of his dormitory.              ________             The student requested that he be allowed to return to his                                         -20-                                          20             room to obtain identification.  He was told that the police             officer would accompany him if he should return to his room.              The student consented.  While standing in the doorway of the             room, the police officer saw, in plain view, marijuana seeds             and a pipe.  The Court held that the police officer             "properly accompanied [the student] to his room, and that             his presence in the room was lawful."  Id. at 7.  See also                                                    ___        ___ ____             United States v. Hidalgo, 747 F. Supp. 818 (D. Mass. 1990)             _____________    _______             (holding that there was no incentive for police misconduct             when the search of the premises took place out of a concern             for the safety of the police officers involved).                       In light of these decisions, we do not believe             that applying the inevitable discovery doctrine in the             present case provides an incentive for police misconduct.              The police had the right to accompany Dr. Ford when he re-             entered the house.  Further, the district court found that             the protective sweep was motivated by a concern of the             police officers to protect themselves.  Aplt.'s App. at 18-             19.  We therefore hold that a reasonable view of the             evidence supports the district court's application of the             inevitable discovery rule.  The denial of the motion to             suppress is AFFIRMED.                                         -21-                                          21                                                             III.                       Among the items discovered during the search of             Dr. Ford's house was a book entitled Secrets of                                                  __________             Methamphetamine Manufacture.  Prior to trial, Dr. Ford filed             ___________________________             a motion in limine requesting the court to exclude the book             from evidence.  The motion was denied after a brief sidebar             conference.  The government offered the book into evidence.              Dr. Ford renewed his objections, arguing that the book was             irrelevant and prejudicial.                        Rule 401 of the Federal Rules of Evidence defines             relevant evidence as "evidence having any tendency to make             the existence of any fact that is of consequence to the             determination of the action more probable or less probable             than would be without the evidence."  Fed. R. Evid. 401.              Dr. Ford contends that the book does not meet the this             definition.  "The title of the book makes this perfectly             clear.  This trial had nothing whatsoever to do with             methamphetamine, let alone its manufacture."  Aplt.'s Br. at             30.  Further, Dr. Ford argues that any inferences which             could be drawn from the book would be solely related to the             manufacture of methamphetamine and "would still have no                                         -22-                                          22             tendency to prove that Dr. Ford had an intent to distribute             the cocaine and marijuana found in his possession, which was             the sole contested issue at trial."  Id.                                                    ___                       We review evidentiary decisions under the abuse of             discretion standard.  United States v. Nason, 9 F.3d 155,                                   _____________    _____             162 (1st Cir. 1993), cert. denied, 62 U.S.L.W. 3624 (1994).                                   _____ ______             "The threshold for relevance is very low under [Rule 401]."              Id.  The district court found that the book was a tool of             ___             the drug trafficking trade and therefore should be admitted             into evidence.  Tr., vol. III at 5.  We cannot say that the             district court abused its discretion in admitting the book.              As aptly stated by the government, the book "describes how             to create a sophisticated illicit drug operation. . . .             Viewed in conjunction with the High Times Magazine which                                            ___________________             Ford testified he read to develop his sophisticated             marijuana growing operation, this evidence tended to show             that Ford was a drug dealer as opposed to someone who merely             possessed drugs for his personal use."  Aplee.'s Br. at 28.              Such evidence meets the "any tendency" test.  We will not             disturb the Rule 401 ruling of the district court.                                         -23-                                          23                       After having determined that the book is relevant,             we must now consider whether the admission of the book is             overly prejudicial under Rule 403.  Rule 403 states that             "[a]lthough relevant, evidence may be excluded if its             probative value is substantially outweighed by the danger of             unfair prejudice, confusion of the issues, or misleading the             jury . . . "  Fed. R. Evid. 403.  Dr. Ford contends that the             book is overly prejudicial.                           Since the book had nothing to do with                       cocaine, marijuana or their                       distribution, it surely caused the jury                       to speculate about why it was an exhibit                       in the case.  The risk . . . is that the                       jury would infer without other evidence                       that possession of the book indicated an                       interest in manufacturing drugs in                       general and that the defendant's                       possession of cocaine and marijuana in                       question were somehow part of this                       broader plan.             Aplt.'s Br. at 31.  Dr. Ford argues that the evidence             presented a close case and that the book, "which suggested a             larger and more sinister involvement with narcotics than was             warranted by the evidence" tipped the scales against the             defendant.  Id. at 33.                            ___             The government notes that after the book was admitted into             evidence, "it was never mentioned again by a witness or the             government as significant to the main issue in the case."                                          -24-                                          24             Aplee.'s Br. at 31.  Indeed, the government did not discuss             the relevance of the book in its closing argument.                          Rule 403 "admissions of evidence are within the             sound discretion of the trial court.  We will not disturb             such rulings absent an abuse of discretion.  We will,             nevertheless, reverse a lower court's determination in             'exceptional circumstances.'"  United States v. Rodriquez-                                            _____________    __________             Cortes, 949 F.2d 532, 540 (1st Cir. 1991).  See also United             ______                                      ___ ____ ______             States v. Green, 887 F.2d 25, 27 (1st Cir. 1989); United             ______    _____                                   ______             States v. Griffin, 818 F.2d 97, 101-102 (1st Cir.), cert.             ______    _______                                   _____             denied, 484 U.S. 844 (1987).  While Dr. Ford argues that             ______             exceptional circumstances are present in this case, he fails             to articulate what those circumstances are beyond the notion             that the admission of the book tipped the scales.  However,             Rule 403 does not act to exclude any evidence which may be             prejudicial but rather evidence in which the prejudice             "substantially outweighs" the probative value.  We cannot             say that the book, a tool of the drug trafficking trade as             the trial judge found, was so lacking in probative value as             to be excluded under Rule 403 nor that exceptional             circumstances exist which require the reversal of the             district court.  Thus, the district court's admission of the                                         -25-                                          25             book entitled Secrets of Methamphetamine Manufacture is                           ______________________________________             AFFIRMED.                                                                            IV.                       Dr. Ford's final issue on appeal concerns count             two of the indictment alleging possession of cocaine with             intent to distribute.  He contends that there is             insufficient evidence to support the conviction for this             count.  "We review the evidence in the light most favorable             to the government, including all legitimate inferences to be             drawn therefrom, to determine whether a rational trier of             fact could have found defendant guilty beyond a reasonable             doubt."  United States v. Montoya, 917 F.2d 680, 681 (1st                      _____________    _______             Cir. 1990).  "'The prosecution . . . need not exclude every             reasonable hypothesis of innocence so long as the total             evidence permits a conclusion of guilt beyond a reasonable             doubt.'"  United States v. Almonte, 952 F.2d 20, 24 (1st                       _____________    _______             Cir. 1991) (citations omitted), cert. denied, 112 S. Ct.                                             _____ ______             1776 (1992).                                         -26-                                          26                       The cocaine seized had a net weight of 27.59             grams, or just under one ounce.  In United States v. Latham,                                                 _____________    ______             874 F.2d 852, 863 (1st Cir. 1989), this court stated "that             an inference of intent to distribute is not warranted from             the possession of one ounce of cocaine."  Dr. Ford contends             that in light of Latham, the government must look to other                              ______             evidence to prove that the cocaine was for distribution             rather than for personal use.  Dr. Ford's reading of Latham                                                                  ______             is immaterial since the government has offered other             evidence of an intent to distribute.                         Dr. Ford points to numerous factors which support             his contention that the cocaine was for personal use.                         When the agents entered Dr. Ford's home,                       only moments after they had observed him                       enter with the package of cocaine, they                       found that the package had been opened                       and placed on a bed with a plate, a                       grinder and a Penthouse magazine.  Agent                       Loftus acknowledged that the grinder is                       an instrument used to convert cocaine                       that is often granular when purchased,                       into a fine powder more suitable for                       inhaling.  A straw and a mirror, two                       other objects commonly associated with                       the consumption of cocaine was found.                        In addition, small vials designed for                       consumption of cocaine and containing                       cocaine residue were recovered in the                       house.  Certainly the circumstances                       under which the cocaine was recovered,                       raise a strong suggestion that at least                                         -27-                                          27                       some of the cocaine was about to be                       consumed by Dr. Ford.             Aplt.'s Br. at 35.  Dr. Ford also argues that items commonly             used for narcotics distribution were absent from his home.              For example, the search did not uncover any substance used             to dilute cocaine, small plastic bags, vials or three to             four inch squares of magazine paper.  Further, no ledgers,             receipts or notebooks indicating narcotics transactions were             recovered.  Dr. Ford argues that there are only three items             found in his home which arguably intimate an intent to             distribute: the gun, the scale and the $13,000 in cash.  The             government argues that these three items, together with the             weight and purity of the cocaine, provide sufficient             evidence to support a conviction.6                        This court has held that scales, firearms and             large amounts of cash are each probative of the intent to             distribute narcotics.  "[W]e have long 'recognized that in             drug trafficking firearms have become "tools of the trade"             and thus are probative of the existence of a drug                                              ____________________             6         Sergeant  Kerle  testified  that  an  ounce  of 80             percent pure cocaine could have been diluted  and divided up             into 112 grams with a street value of $11,200.   Tr., vol. I             at 36-37.  He  also testified as an expert that "this amount             of  cocaine in that purity is consistent with [an] intent to             distribute it."  Id. at 39.                              ___                                         -28-                                          28             conspiracy.'"  United States v. Walters, 904 F.2d 765, 796                            _____________    _______             (1st Cir. 1990) (citing United States v. Green, 887 F.2d 25,                                     _____________    _____             27 (1st Cir. 1989)).      Dr. Ford does not dispute this but             rather argues that the firearm has no tendency to prove that             Dr. Ford was intending to distribute the cocaine.  According             to Dr. Ford, the weapon was found in a bedroom closet on a             different floor from which the cocaine was found.  Further,             Dr. Ford was not armed when he picked up the package nor             when the agents approached his house.                         There is other evidence in the record which             supports the government's contention that the gun was used             as a tool of the trade.  The gun, a .357 Magnum, was kept in             the closet of the bedroom where Dr. Ford slept and on the             same floor as the $13,000 in cash and the marijuana.  Tr.,             vol. III at 88.  Two loaded "speed loaders" were also             located in the closet.  Id.    Finally, Dr. Ford                                     ___             acknowledged that one of the reasons he had the gun was for             "personal protection" and that due to the marijuana and             cocaine in the house he could not call the police if someone             sought to break into his home.  Tr., vol. II at 18-19.                                         -29-                                          29                       The government argues that the scale is further             evidence of the intent to distribute cocaine.  Dr. Ford             conceded that he used the scale to weigh drugs.  Tr., vol.             IV at 116.  This court has acknowledged that a scale is one             of the tools of the trade for drug dealers,  Montoya, 917                                                          _______             F.2d at 682, and therefore may be considered as evidence             here.                       Finally, the government argues that Dr. Ford could             not persuasively account for the $13,000 in cash.  "Evidence             that the defendant possessed or controlled substantial sums             of money from unexplained sources is relevant in a             prosecution for drug trafficking."  United States v.                                                 _____________             Figueroa, 976 F.2d 1446, 1454 (1st Cir. 1992), cert. denied,             ________                                       _____ ______             113 S. Ct. 1346 (1993).  See also United States v. Newton,                                      ___ ____ _____________    ______             891 F.2d 944, 948 (1st Cir. 1989); United States v. Ariza-                                                _____________    ______             Ibarra, 605 F.2d 1216, 1224-25 (1st Cir. 1979), cert.             ______                                          _____             denied, 454 U.S. 895 (1981).  Dr. Ford contends that he             ______             sufficiently explained the source of a substantial portion             of the cash.  Dr. Ford's sister testified that she loaned             him $7500.  Tr., vol. IV at 49.  Dr. Ford testified that he             borrowed $7500 from his sister and $7500 from his parents.                                          -30-                                          30             Id. at 84.  Dr. Ford also testified that he kept his assets             ___             in cash rather than a bank account because "[he] left a lot             of institutions holding the bag financially.  People were             looking for [him.] . . . So there were people that wanted             money from [him.]"  Id. at 89.                                  ___                       The government notes that Dr. Ford testified that             he stopped making payments for his rent, his car lease and             his orthodontic practice yet he had $13,000 in cash on hand.              Further, "when faced with a listing of his known expenses             for the months prior to his arrest, Ford was unable to             reconcile those expenses with the amount of cash he had on             hand."  Aplee.'s Br. at 36.                        Each of these three pieces of evidence must be             considered in the light most favorable to the government.              Although Dr. Ford may have provided reasons for the             existence of the scale, the gun and the cash, the finder of             fact is free to reject his explanation.  It is not the             province of this court to reweigh conflicting testimony or             to make credibility determinations.  Based on our review of             the record, we hold that the government has presented                                         -31-                                          31             sufficient evidence to support a conviction under count two.                       The decision of the district court is AFFIRMED.                                         -32-                                          32
