                  Not for Publication in West's Federal Reporter
                 Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

           United States Court of Appeals
                          For the First Circuit

No. 04-1029

                        UNITED STATES OF AMERICA,

                                   Appellee,

                                        v.

                                JEFFREY PINA,

                           Defendant, Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Patti B. Saris, U.S. District Judge]


                                     Before

                         Selya, Circuit Judge,
                      Hill,* Senior Circuit Judge,
                       and Lynch, Circuit Judge.


     Evan Slavit with whom Bodoff & Slavitt LLP was on brief, for
appellant.
     William H. Connolly, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellee.


                                July 15, 2005




*
    Of the Eleventh Circuit, sitting by designation.
             Per   Curiam:      Defendant-appellant          Jeffrey       T.    Pina

challenges his jury convictions for being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1), for possession of

cocaine base with intent to distribute it, in violation of 21

U.S.C. § 841(a)(1), and for possession of a firearm in furtherance

of    a   drug   trafficking      crime,    in   violation    of    18    U.S.C.     §

924(c)(1)(A).      Based upon the following, we affirm the judgment of

the district court.

                                           I.

             Although    Pina     raises    multiple   issues      on    appeal,    we

discuss only one:        did the district court abuse its discretion in

admitting the opinion testimony of the government’s drug expert

witness, Brockton Police Sergeant Kevin O’Connell?1                      See United

States v. Valle, 72 F.3d 210, 214 (1st Cir. 1995)(the trial court

has   discretion    to    admit    or   reject    expert     testimony     and     its

determination is reviewable only for an abuse of that discretion).2



                                        II.

             O’Connell testified that “the crack cocaine and other

items found” at the apartment, such as scales, packages of cash,


1
    All other issues are plainly meritless and, therefore, are
affirmed without discussion.
2
   Pina does not challenge O’Connell’s expert qualifications. Nor
does he challenge the admission into evidence under Fed. R. Evid.
702 by the district court of each of the specific items discussed
by O’Connell in his expert testimony.

                                        -2-
and Glad sandwich baggies, “were consistent with distribution.”

R2 at 75.3     Pina claims that O’Connell’s testimony was irrelevant

under Fed. R. Evid. 401, prejudicial and non-probative under Fed.

R. Evid. 403, and beyond the scope of Fed. R. Evid. 702.

              Pina contends that, as these items have many innocent

uses, their presence does not make his involvement with drug

trafficking more likely.         Therefore, because the presence of these

items    is   also    “not    inconsistent    with”      the   personal    use    or

possession     of    drugs,   this    testimony    is    neither    relevant     nor

probative to the jury.

              Pina claims that although such specific phraseology,

“consistent with” drug trafficking, has been examined many times by

this    circuit     in   general     terms,   it   has   never     been   squarely

addressed.     But see United States v. Ladd, 885 F.2d 954, 960 (1stt

Cir. 1989) (where drug expert’s opinion that drug packaging was

“consistent with” distribution was deemed probative and relevant as

to defendant’s intent).         Pina argues, however, that in this close

circumstantial case, the jury verdict would in all likelihood have

been different, had O’Connell’s expert testimony been excluded.




3
   Citations to the record are in the following format: R [volume
number] at [page number].

                                        -3-
                                   III.

          The government contends that the record reads differently

than Pina suggests.    We agree.

          Among   other    things,    O’Connell   testified   on   direct

examination in this manner:

          Q.   Based on the items that you’ve described

          previously as having seen, have you formed an

          opinion, with respect to the crack cocaine and

          the other items found, whether or not that

          crack cocaine is – and the other items is

          consistent with the intent to distribute crack

          cocaine?

          [Defense Counsel]:     Objection.

          THE COURT:      Sustained as to the form of the

          question.

          Q.   Have you formed an opinion with respect to

          those items as to whether it’s consistent with

          distribution versus personal possession?

          A.   I have.

          Q.   And, what is that opinion?

          A.   It is consistent with distribution.

R2 at 74-75.

          The original question posed by the government to the drug

expert was, based upon the drugs and other items seized from the


                                     -4-
apartment, “do you have an opinion as to whether or not these items

are consistent with an intent to distribute crack cocaine?”                      R2 at

74-75.     Objection was made by defense counsel.              R2 at 75.         That

objection was sustained by the district court.                Id.

            The    question     was   then     properly      rephrased      by    the

government to eliminate any reference or speculation as to the

defendant’s intent.       R2 at 75.     The drug expert was asked whether

or not he had formed an opinion with respect to whether or not

those items were “consistent with drug distribution versus personal

possession.”      Id.    He answered in the affirmative.            Id.    The drug

expert was then asked to give his opinion.             Id.   It was his opinion

that the items found in the apartment, (the crack cocaine [R2 at

65-69], the scales [R2 at 70-72], the baggies [R2 at 69-70] and the

packages    of    cash   [R2   at   72-74]),    were   consistent         with   drug

trafficking.      R2 at 75.

            It is clear from a reading of the entire record that

O’Connell did not testify that all the items, such as the scales,

were inconsistent with personal possession.               Nor did he offer an

opinion on Pina’s intent with respect to the crack cocaine.                        He

merely gave his opinion, based upon his training and experience,

that the drugs and collection of items found in Pina’s apartment

were, in the aggregate, consistent with the distribution of crack

cocaine as opposed to mere possession.           See Ladd, 885 F.2d at 960;

see also Valle, 72 F.3d at 216 (expert testimony is appropriate


                                       -5-
provided the expert is not offering his or her opinion on the

defendant’s specific intent but only laying out critical facts upon

which a jury can determine the defendant’s intent).

            O’Connell, after defense counsel’s sustained objection,

testified properly in accordance with the rules of evidence.   This

ends the case on appeal.

                                  IV.

            The judgment of the district court is affirmed.

AFFIRMED.




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