
USCA1 Opinion

	




          March 30, 1993    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 91-1571                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     GLENN ALLEN,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Brown,* Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Perry O'Brian, by Appointment of the Court, for appellant.               _____________               F. Mark Terison, Assistant United States Attorney, with whom               _______________          Richard S. Cohen, United States Attorney, and James  L. McCarthy,          ________________                              __________________          Assistant United States Attorney, were on brief for appellee.                                 ____________________                                    March 30, 1993                                        ____________________          *   Of the  Fifth Circuit, sitting  by designation.   Judge Brown          (now  deceased)   heard  oral   argument  in  this   matter,  and          participated  in  the semble,  but  did  not  participate in  the          drafting or the issuance  of the panel's opinion.   The remaining          two panelists therefore issue this  opinion pursuant to 28 U.S.C.            46(d).                                 ____________________                                         -2-                    TORRUELLA, Circuit  Judge.   Appellant Glenn  Allen was                               ______________          convicted of conspiracy to  possess in excess of 10 grams of LSD,          possession  of  psilocybin   with  intent   to  distribute,   and          distribution  of  psilocybin,  in   violation  of  21  U.S.C.              841(a)(1) and  846, and 18  U.S.C.    2.  Appellant  alleges that          insufficient evidence existed to support his convictions and that          the government violated  his Fourth Amendment  rights.  Based  on          these  allegations, appellant requests  a new trial.   Because we          find that sufficient  evidence supported appellant's convictions,          and that  no Fourth Amendment violations occurred,  we affirm the          verdict.                                      BACKGROUND                                      BACKGROUND                                      __________                    Evidence of the  following appeared at trial.  A United          States  postal inspector, assigned  to investigate transportation          of  illicit drugs  through  the mail,  became  suspicious of  two          Express Mail package  receipts.  The  receipts were addressed  to          Kurt Humphrey  in Maine and  sent from two locations  on the west          coast of  the United States.   The sender's name  on each receipt          coincided with  a previously  investigated sender.   In addition,          the  originating  addresses were  false.    The postal  inspector          directed the appropriate postmaster in Maine to watch  for future          Express Mail packages  addressed to Kurt  Humphrey from the  west          coast.                    Such a  package arrived from Oregon on January 11, 1990          at 7:00 a.m.   The  postmaster alerted the  postal inspector  one          hour  later  when the  inspector  arrived  at  the New  Hampshire                                         -2-          office,  where he  was working  that day.   The  postal inspector          directed  the  postmaster to  hold  the  package pending  further          instruction.  Ordinarily,  the postmaster would have  immediately          notified  Humphrey that the package had arrived.  The package had          a guaranteed delivery time of 3:00 p.m. that day.                    At 10:00 a.m. in  New Hampshire, 7:00 a.m. on  the West          Coast,  the inspector  called the  appropriate Oregon  office and          learned that the  originating address and the sender's  name were          fictitious.   The inspector  then arranged  with the  Maine state          police for a trained dog to sniff the package for drugs.  The dog          was trained  to find marijuana,  cocaine, hashish, and  heroin in          all of their forms.                    When the  state police  arrived at  the post office  at          noon, the postmaster closed the  office for lunch.  He then  took          the  police officers to his  nearby house to  conduct the test in          privacy.   Four times, the police  hid the package in  the garage          and sent the  dog to  find it.   Each time, the  dog located  the          package and indicated the presence of drugs.                    The police presented an affidavit to a local magistrate          describing  the test and stating  that the package  had been sent          from a  fictitious  address.    The magistrate  issued  a  search          warrant  at  4:21  p.m.   When  the  police  officers opened  the          package,  they found  11,200  rations of  LSD  on 112  sheets  of          blotter paper.  The police then prepared a dummy package with two          sheets of blotter  paper in an  apparently unopened Express  Mail          envelope.   Meanwhile, sometime between 11:00 a.m. and 2:00 p.m.,                                         -3-          Humphrey  checked his  post office box,  found nothing,  and left          without inquiring about the package.                    The next day, Humphrey returned to the post  office and          received  the dummy package.  When Humphrey left the post office,          two  police officers followed  him.  They  ultimately stopped him          en-route to appellant's house.                    At trial, Humphrey described  appellant's participation          in the scheme,  alleging that appellant recruited him  to receive          packages  and  deliver  them to  appellant  for  a  fee of  fifty          dollars.  Humphrey also stated that appellant sold him $250 worth          of  psilocybin  mushrooms.   The  police  later found  psilocybin          mushrooms  in Humphrey's home and in a barn on appellant's family          property.                    In  addition, the police  found a money  order for $400          from James  Paoletti made out  to appellant in  appellant's home.          Paoletti testified  that the money order  represented payment for          LSD.                    Appellant moved to suppress the contents of the Express          mail package  unsuccessfully.  He also lost  motions for judgment          of acquittal.                                  APPELLANT'S CLAIMS                                  APPELLANT'S CLAIMS                                  __________________                    I.  Sufficiency of the evidence                    I.  Sufficiency of the evidence                    "The standard  of review for sufficiency  challenges is          whether the total evidence,  taken in the light most  amicable to          the   prosecution,  together   with  all   reasonable  inferences          favorable to it,  would allow a rational fact-finder  to conclude                                         -4-          beyond  a reasonable  doubt  that  the  defendant was  guilty  as          charged."  United States v. Maraj, 947 F.2d 520, 522-23 (1st Cir.                     _____________    _____          1991).   Viewing  the record  in this  light, we  find sufficient          evidence for appellant's conviction on all three counts.                    First,  through testimony  from Paoletti  and Humphrey,          the government presented sufficient  evidence for a rational jury          to conclude that appellant  conspired to possess LSD  with intent          to  distribute it.  The following evidence was admitted at trial.          Paoletti  sent appellant  a  $400 money  order  to buy  LSD  that          appellant would obtain from the West Coast.  (Transcript of Trial          Proceedings at 145).  After procuring an Express Mail shipment of          LSD from the West Coast, appellant would pay Humphrey to retrieve          the  package from the post  office and deliver  it to appellant's          home.   Id. at 20.  Pursuant to a search warrant, police officers                  __          searched the  package, discovered  LSD, and  replaced  it with  a          dummy package.  Humphrey retrieved the  package, and the officers          arrested him on the way to appellant's home.  Id. at 20-21.  From                                                        __          this evidence,  a rational  jury could  find appellant  guilty of          conspiracy to possess LSD beyond a reasonable doubt.                    Second,   sufficient  evidence   supported  appellant's          conviction for distribution of psilocybin.  To prove this charge,          it  was enough to show that the  defendant had the "power and the          intention to cause the transfer . . . either directly or  through          another person . . . ."  United States v. Acevedo, 842 F.2d  502,                                   _____________    _______          507  (1st Cir. 1988).  Humphrey testified that (1) when appellant          was  in Europe in November 1989, he phoned Humphrey, and Humphrey                                         -5-          asked him if he  could get some psilocybin, (Transcript  of Trial          Proceedings at 34); (2) appellant offered him the psilocybin that          was  in the barn  at appellant's home,  id. at  35; (3) appellant                                                  __          agreed  to sell  a quarter  pound of  psilocybin for  $250, which          Humphrey would pay when appellant returned from  Europe, id.; (4)                                                                   __          Humphrey took the psilocybin from the barn, id. at 35-36; and (5)                                                      __          when appellant returned,  Humphrey offered him  a gun as  partial          payment, which  appellant took, saying he'd  try it to see  if he          wanted  it, id. at 39.   The government  also introduced evidence                      __          that the police confiscated psilocybin from Humphrey, id. at  37,                                                                __          and from the  barn on appellant's property,  id. at 90-91.   From                                                       __          this evidence, a rational jury could conclude that  appellant had          the power and intent to cause the transfer of psilocybin.                    Finally,   sufficient   evidence  existed   to  support          appellant's conviction  for possession with intent  to distribute          psilocybin.   In order to  prove this crime,  the government must          establish  that the  defendant  had, possession  of a  controlled          substance, knowledge of that  possession, and the specific intent          to  distribute  it.    21  U.S.C.     841(a)(1).     Constructive          possession will  support a conviction  and can be  established by          circumstantial  evidence  such  as  a  defendant's  ownership  or          control  over the  premises in  which the  contraband  is hidden.          Acevedo, 842  F.2d  at 507.    Appellant argues  that  he had  no          _______          ownership or control over  the psilocybin because his family  had          access to the barn where it was stored,  and because he exercised          no exclusive or mutual control over the part of the barn in which                                         -6-          the  mushrooms were  found.   Humphrey  testified, however,  that          appellant  ordered  the  psilocybin  and  hid  it  in  the  barn,          (Transcript of Trial  Proceedings at  28), and that  on the  same          day, appellant showed him  psilocybin mushrooms that he had  in a          duffel bag,  id. at 28.  From this evidence, the jury could infer                       __          that appellant owned or controlled the psilocybin in the barn.                    Appellant attacks the  credibility of the  government's          witnesses  for  all three  charges.   He  complains that  part of          Paoletti's testimony  conflicted with a prior  made statement and          that Humphrey  offered solely  conclusory assertions.   These are          suitable  arguments  for  the   jury,  and  appellant  had  ample          opportunity  to present  them at  trial.   As  the jury  chose to          reject them, we must do the same.  United States  v. Angiulo, 897                                             _____________     _______          F.2d 1169,  1197  (1st Cir.)  (reviewing court  must resolve  all          credibility determinations  in favor  of verdict),  cert. denied,                                                              ____________          498 U.S. 845 (1990).                    II.  Fourth Amendment Issues                    II.  Fourth Amendment Issues                    Appellant next argues that  the district court erred in          denying his motion to suppress the  LSD found in the Express Mail          package.  Specifically, appellant contends that the detention and          subsequent search  of the  package violated his  Fourth Amendment          right  against unreasonable  search and  seizure because  (1) the          detention  was  not  based  on  a  reasonable suspicion  that  it          contained contraband; and (2)  it was unreasonable.1  See  United                                                                ___  ______                                        ____________________          1   In his brief, appellant also  argued that the police officers          lacked probable cause to search the package because the dogs were          not  trained to  sniff  LSD.    At  oral  argument,  however,  he                                         -7-          States v.  La  France, 879  F.2d  1, 4  (1st  Cir. 1989)  (police          ______     __________          entitled to delay delivery if delay is based reasonable suspicion          and is reasonably executed).  We find, however, that a reasonable          view of the  record evidence supports the district court's denial          of the motion.  See United States v. Masse, 816 F.2d 805, 809 n.4                          ___ _____________    _____          (1st Cir. 1987) (citing United States v. Veillette, 778 F.2d 899,                                  _____________    _________          902  (1st  Cir. 1985)  (appellate  court  should uphold  district          court's  denial  of motion  to  suppress  if  reasonable view  of          evidence supports it).                    The  court properly  found  that  reasonable  suspicion          supported the  package's delayed  delivery.  The  record evidence          shows that  the postal inspector  has seven  years of  experience          investigating drug  transportation  through  the  mail,  and  has          investigated between  200 and 300 cases  involving drug transport          through  Express Mail.    (Transcript of  Hearing on  Defendant's          Motion to Suppress Evidence at 12-13).  He grew suspicious of the          package for several reasons.   Individuals rarely receive Express          Mail packages, and Humphrey  received three in five months.   Id.                                                                        __                                        ____________________          abandoned that argument and conceded that the disputed time frame          consisted  of that  between the  arrival of  the package  and the          sniff test.             We note that  the test  did in fact  generate probable  cause.          Probable  cause  is judged  upon  the  information known  to  the          authorities and presented at the time the warrant issues.  United                                                                     ______          States  v.   Johnston,  784  F.2d  416,  420   (1st  Cir.  1986).          ______       ________          Information  available to  the magistrate  at this  time revealed          that a  trained dog had alerted  to the presence of  drugs in the          package four times.  This information gave rise to probable cause          to  suspect that  the  package contained  contraband.   That  the          package  later turned out to  contain LSD, which  the dog was not          trained to find, is irrelevant.                                         -8-          at  55.   Also,  the inspector  knew  that Humphrey  had received          suspicious mailings  from the West Coast in the past.  Id. at 15.                                                                 __          The labels were suspicious because the return addresses differed,          but  the handwriting, in his observation, appeared the same.  Id.                                                                        __          Also,  one of  the  senders  had the  same  name  as someone  who          previously  mailed an Express Mail package containing psilocybin.          Id.   From  this  evidence, the  district  court found  that  the          __          inspector  had   reasonable  suspicion  to  detain   the  package          initially.  When the inspector  learned that the sender's address          was  fictitious, additional  suspicion developed,  justifying the          further delay that it took to arrange for the dog sniff test.                    In  addition   to  having  reasonable   suspicion,  the          officials did not unreasonably delay delivery of the package.  To          determine  the  reasonableness  of   the  delay,  we  review  the          diligence of  the investigators, the length of detention, and the          information conveyed  to the suspect.   La France, 879 F.2d  at 7                                                  _________          (citing United States v. Place, 462 U.S. 696, 709-10 (1983)).                  _____________    _____                    In  the present case,  the law  enforcement authorities          acted  diligently.  The delay  lasted only as  long as necessary.          The postmaster promptly contacted  the postal inspector to obtain          further  information, and  the  postal  inspector  then  promptly          verified the  addresses, waiting only for  the appropriate office          to open.  Id. at  26-27.  When the inspector determined  that the                    __          addresses did not  exist, he  arranged for and  executed the  dog          test.  (Transcript of  Hearing on Defendant's Motion  to Suppress          Evidence   at  26-29).    No  evidence  suggested  that  the  law                                         -9-          enforcement officials could have acted more swiftly.                    Furthermore, the dog was located at a distance from the          postmaster's home, id. at 91-92; yet, within five hours after the                             __          postmaster notified  the inspector  about the package,  the sniff          test was complete.  Indeed,  sufficient probable cause to  search          the package  developed two  hours before the  guaranteed delivery          time,  and thus  before  appellant had  a significant  possessory          interest.   See  La  France, 879  F.2d  at 7  (before  guaranteed                      ___  __________          delivery  time,   only  possessory  interest   is  contract-based          expectancy  that  package  would  be  delivered  on  time).   The          district court judge properly found the delay reasonable.                    Finally, appellant received no misinformation regarding          his package.    Indeed,  he never  inquired  about  the  package.          Accordingly,  we  find  that  the record  evidence  supports  the          district court's denial of the motion to suppress.                                      CONCLUSION                                      CONCLUSION                                      __________                    Because   sufficient  evidence   supported  appellant's          conviction, and  appellant's  Fourth Amendment  rights  were  not          violated, we affirm appellant's conviction.                    Affirmed.                    ________                                         -10-
