
USCA1 Opinion

	




          January 5, 1993   UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-1426                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 MARCO A. ECHEVERRI,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                              _________________________               Edward  C.  Roy, with  whom  Roy &  Cook  was on  brief, for               _______________              ___________          appellant.               Zechariah  Chafee, Assistant  United  States Attorney,  with               _________________          whom Lincoln C. Almond, United States Attorney, was on brief, for               _________________          the United States.                              _________________________                              _________________________                    SELYA, Circuit  Judge.   Defendant-appellant  Marco  A.                    SELYA, Circuit  Judge.                           ______________          Echeverri  asks  us  to  overturn  his  conviction  on two  drug-          trafficking charges.   He alleges that the proof was insufficient          to support the jury's verdict; that the government never properly          authenticated  a "drug ledger;" and that the court below erred in          permitting an expert witness to testify  concerning the import of          the disputed document.  Discerning no error, we affirm.          I.  BACKGROUND          I.  BACKGROUND                    We  limn the facts in  the light most  favorable to the          government, consistent  with record  support.  See,  e.g., United                                                         ___   ____  ______          States v. Maraj, 947 F.2d 520, 522 (1st Cir. 1991).          ______    _____                    Armed with a  search warrant, a team of law enforcement          officers  including FBI  Special  Agent  Frederick  Ghio  entered          appellant's  apartment in  Pawtucket, Rhode  Island.   The living          quarters consisted of a narrow bedroom, a multi-purpose room, and          a bathroom, having a total combined area roughly equal to that of          a  one-car garage.  When  the agents arrived,  Victor Gallego was          leaving the bathroom  and appellant was seated at a  table in the          multi-purpose room.  Next to appellant, on the couch and in plain          view, lay an earnings statement in his name.  On the back of this          statement  was a  handwritten column  of numbers  arrayed  in the          following fashion:                                          2                     1000                     2000                    17000                     1000                    10000                     4000                     1000                     1000                    _____                    34000                    In  the course of the ensuing search the agents found a          tape-wrapped  block  of cocaine     eighty-six  percent pure  and          weighing about  two pounds    on the  toilet lid.   The tape  had          broken and the contraband  was exposed.  An electronic  scale lay          nearby.                     Gallego  and Echeverri were  charged with possession of          cocaine with  intent to distribute  it, 21  U.S.C.     841(a)(1);          841(b)(1)(B), and  with  participating  in  a  drug  distribution          conspiracy.  21 U.S.C.   846.  Gallego  pled guilty and Echeverri          stood trial alone.  Over his objection, the government introduced          the earnings statement  into evidence.   The court allowed  agent          Ghio to  testify that, in  his opinion, the  reverse side  of the          statement  comprised  a  drug  ledger  (the   individual  figures          corresponding to  per-ounce prices  for various cocaine  sales in          the Rhode Island  market).   Ghio further testified  that it  was          common  for  cocaine  dealers  to  keep  their  accounts in  such          fashion;  that the going price for cocaine was $35,000 to $40,000          per  kilogram; that the total shown on the earnings statement, if          interpreted to mean "dollars" and  added correctly,1 corresponded                                        ____________________               1The column  of figures, added  correctly, totalled  37,000,          not 34,000.  We consider this mathematical mishap unimportant.                                          3          in rough proportion  to the  gross sales price  of the  aggregate          cocaine  on hand; and that  the quantity of  narcotics seized was          inconsistent with personal use.                    The  jury convicted  Echeverri  on both  counts.   This          appeal ensued.          II.  SUFFICIENCY OF THE EVIDENCE          II.  SUFFICIENCY OF THE EVIDENCE                    Appellant labors to convince us that the judgment below          rests  on  too fragile  an evidentiary  foundation.   We  are not          persuaded.                               A.  Standard of Review.                               A.  Standard of Review.                                   ___________________                    The  standard of  review applicable  to sufficiency-of-          the-evidence  challenges is  settled.   An  appellate court  must          examine  the  evidence  in  the  light  most  flattering  to  the          prosecution, indulging all reasonable inferences in its favor and          then determining  whether a rational jury could find guilt beyond          a reasonable doubt.  See, e.g., Maraj, 947 F.2d at 522-23; United                               ___  ____  _____                      ______          States v. Boylan, 898 F.2d 230, 243 (1st Cir.), cert. denied, 111          ______    ______                                _____ ______          S.Ct. 139 (1990).   In making this determination, the  court must          credit both direct and  circumstantial evidence   and it  must do          so without evaluating the relative  weight of different pieces of          proof  or   venturing  credibility   judgments.    To   uphold  a          conviction, the court need not believe that no verdict other than          a guilty verdict could sensibly be reached, but must only satisfy          itself that  the guilty  verdict finds  support  in "a  plausible          rendition of the record."  United States v.  Ortiz, 966 F.2d 707,                                     _____________     _____          711 (1st Cir. 1992),  petition for cert. filed (U.S.  October 19,                                ________ ___ _____ _____                                          4          1992) (No. 92-6552).                      B.  Possession with Intent to Distribute.                      B.  Possession with Intent to Distribute.                          _____________________________________                    In challenging  his conviction on  the specific-offense          count, appellant questions whether the evidence is copious enough          to  sustain a finding that  he knowingly possessed  cocaine.  The          government, he says, proved no more than his "mere presence" at a          site where drugs were found.                     The  "mere presence" defense has become, at one and the          same time,  both the  last  haven of  the innocent  and the  last          refuge  of  the  scoundrel.    Although  courts  have  found   it          applicable in  certain situations,  United States v.  Barnes, 890                                              _____________     ______          F.2d  545, 549 (1st Cir. 1989)  (collecting cases), cert. denied,                                                              _____ ______          494  U.S.  1019  (1990), the  mere  presence  defense  is not  so          ubiquitous as to envelop every drug-trafficking case in which the          government  lacks direct  evidence of  a defendant's  complicity.          The defendant's presence at a place where contraband is found may          or may not  be purely coincidental.  The  attendant circumstances          tell the tale    and  the culpability of  a defendant's  presence          hinges upon whether the circumstances fairly imply  participatory          involvement.    In other  words,  a  defendant's "mere  presence"          argument will fail in situations where the "mere" is lacking.                      This is such  a situation.   There is  far more to  the          prosecution's case against Echeverri  than his corporeal presence          in the apartment.  A rational jury, drawing reasonable inferences          from proven facts, could certainly have concluded that this was a          case of culpable presence as opposed to mere presence, see Ortiz,                                                                 ___ _____                                          5          966 F.2d at 712, and that appellant was in knowing possession  of          the contraband at the time of the raid.  We explain briefly.                    Both constructive  possession and guilty  knowledge may          be  inferred from a defendant's dominion and control over an area          where narcotics are  found.  See, e.g., Barnes, 890  F.2d at 549.                                       ___  ____  ______          In this  instance, there is considerable evidence of dominion and          control.  Appellant  concedes that the  apartment was his  abode.          His  rent receipts,  passport,  and other  personal effects  were          strewn about  the premises.  As the  lessee of the apartment, and          the one who  called it  home, appellant was  hardly powerless  to          determine who and what could come inside.2                    Moreover, the  entire apartment consisted  of a  small,          cramped space.  The  cocaine was in plain view, resting openly on          the  dwelling's  only  toilet.   Tools  of  the  drug trade  were          conspicuously  displayed.     Echeverri  himself  was  physically          present, seated within four feet of  the contraband.  All in all,          the  totality of  the circumstances  suffices  to support  both a          finding  of  constructive  possession  and a  finding  of  guilty          knowledge.  See, e.g., United States v. Gonzalez-Torres, ___ F.2d                      ___  ____  _____________    _______________          ___, ___  [No. 91-2140, slip op. at 2-6]; Ortiz, 966 F.2d at 713-                                                    _____          14;  United  States v.  Desmarais, 938  F.2d  347, 352  (1st Cir.               ______________     _________          1991); United  States v.  Batista-Polanco, 927  F.2d 14, 19  (1st                 ______________     _______________          Cir. 1991); Barnes, 890 F.2d at 549-51; see also United States v.                      ______                      ___ ____ _____________                                        ____________________               2The  fact  that  appellant,  as the  sole  rent  payer  and          resident  of the dwelling, had the exclusive right to control the          comings and goings there is one of several important distinctions          between this case and  United States v. Ocampo, 964  F.2d 80 (1st                                 _____________    ______          Cir. 1992), much bruited by appellant.                                          6          Calle-Cardenas, 837 F.2d  30, 32 (1st  Cir.) (where apartment  in          ______________          which   defendant   was   found   contained   his   clothes   and          identification   cards,   he  had   dominion  and   control  over          apartment), cert. denied,  485 U.S. 1024 (1988); United States v.                      _____ ______                         _____________          Lochan, 674  F.2d  960, 965-66  (1st  Cir. 1982)  (defendant  had          ______          dominion  and control over area behind back seat of automobile he          was driving and,  therefore, over hashish  stowed in that  area).                    The evidence  was also  ample to sustain  a finding  of          scienter.  We have  repeatedly held, and today reaffirm,  that an          intent  to distribute  drugs  can legitimately  be inferred  from          factors such as quantity and purity.  See, e.g., United States v.                                                ___  ____  _____________          Ocampo-Guarin, 968  F.2d 1406,  1410 (1st Cir.  1992) (collecting          _____________          cases); Batista-Polanco, 927 F.2d at 18-19.  Such factors prevail                  _______________          here.  Furthermore, agent Ghio's  testimony adds strength to  the          relevant evidentiary predicate.                      We  will not paint the  lily.  Because  we require only          that  a jury's verdict be supportable, not that it be inevitable,          see  Boylan,  898  F.2d  at   243,  we  must  affirm  appellant's          ___  ______          conviction for possession with intent to distribute.                                   C.  Conspiracy.                                   C.  Conspiracy.                                       ___________                    Appellant's  challenge  to  his  conspiracy  conviction          fares  no  better.   To  support  a  conspiracy  conviction,  the          prosecution  must prove  certain  things not  required under  the          specific-offense  count.    It must  show,  inter  alia,  that an                                                      _____  ____          agreement  or  working  relationship  existed,  that  it  had  an          unlawful  purpose,  and  that   the  defendant  was  a  voluntary                                          7          participant in it.  See United States v. David, 940 F.2d 722, 735                              ___ _____________    _____          (1st Cir. 1991),  cert. denied,  112 S.Ct. 605,  908, 1298,  2301                            _____ ______          (1992);  United States  v. Rivera-Santiago,  872 F.2d  1073, 1079                   _____________     _______________          (1st Cir.), cert.  denied, 492  U.S. 910 (1989).   The  agreement                      _____  ______          itself "need  not be express, but  may consist of no  more than a          tacit understanding."  United  States v. Glover, 814 F.2d  15, 16                                 ______________    ______          (1st Cir.  1987) (citations and quotation  marks omitted); accord                                                                     ______          United  States v.  Paiva,  892 F.2d  148,  161 (1st  Cir.  1989).          ______________     _____          Moreover, the  proof of a defendant's  conspiratorial involvement          may consist of indirect evidence, including reasonable inferences          drawn from attendant  circumstances.  See, e.g.,  David, 940 F.2d                                                ___  ____   _____          at  735;  Glover,  814 F.2d  at  16-17.   In  the  last analysis,                    ______          criminal  juries are  not expected  to ignore  what  is perfectly          obvious.  See United States  v. Ingraham, 832 F.2d 229, 240  (1st                    ___ _____________     ________          Cir. 1987), cert. denied, 486 U.S. 1009 (1988).                       _____ ______                    In  this  case,  there was  evidence  that,  in a  tiny          apartment, within feet of  the sole tenant, law officers  found a          commercially  exploitable  quantity  of  high-purity  cocaine,  a          measuring scale of the sort frequently used by narcotics  dealers          to ply their trade, and a drug ledger (written on the back of the          tenant's pay stub).   Exiting from the room where the cocaine lay          open  and exposed  was  another man  (Victor  Gallego).   A  jury          viewing this evidence could reasonably conclude that  the two men          had agreed to disobey the law and distribute cocaine.  Cf., e.g.,                                                                 ___  ____          Ortiz,  966  F.2d at  712 (criminals  "rarely seek  to perpetrate          _____          felonies   before  larger-than-necessary   audiences");  Batista-                                                                   ________                                          8          Polanco, 927 F.2d  at 18-19 (similar);  United States v.  Cuevas-          _______                                 _____________     _______          Esquivel, 905 F.2d  510, 515 (1st Cir.)  (similar), cert. denied,          ________                                            _____ ______          111 S.Ct. 208 (1990).          III.  OTHER ASSIGNMENTS OF ERROR          III.  OTHER ASSIGNMENTS OF ERROR                    We consider appellant's  assignments of mid-trial error          in the ensemble.                                 A.  Authentication.                                 A.  Authentication.                                     _______________                    Appellant  complains  that  the  government  failed  to          authenticate  the so-called  drug ledger as  required by  Fed. R.          Evid. 901,  and that, consequently,  the district court  erred in          admitting  it into  evidence.3     We  review the  trial  court's          rulings concerning authentication  of documents only  for mistake          of  law or  abuse of  discretion.   See Ortiz,  966 F.2d  at 716;                                              ___ _____          United States v. Ladd, 885 F.2d 954, 956 (1st Cir. 1989).          _____________    ____                    When the authenticity of  a document is challenged, the          court must determine whether  there is sufficient threshold proof          that the  document is what  its proponent claims  it to be.   See                                                                        ___                                        ____________________               3The rule provides in pertinent part:                    The   requirement    of   authentication   or                    identification  as  a condition  precedent to                    admissibility   is   satisfied  by   evidence                    sufficient  to  support  a finding  that  the                    matter  in  question  is  what  its proponent                    claims.          Fed. R. Evid. 901 (a).                                          9          Ortiz, 966  F.2d at 716.   The Federal Rules of  Evidence adopt a          _____          flexible approach to this question.   Indeed, the applicable rule          suggests  that the  "[a]ppearance, contents,  substance, internal          patterns,   or  other   distinctive  characteristics,   taken  in          conjunction  with    circumstances,"  can  confirm  a  document's          authenticity.  Fed. R. Evid. 901(b)(4).                    In  this instance,  the  government  claimed  that  the          earnings  statement doubled as a drug ledger.  The district court          admitted the evidence  on that basis.  We discern  no error.  The          earnings  statement was  clearly identified  with Echeverri    it          was,  after all, a recapitulation  of his wages,  reposing in his          apartment.   Federal agents discovered  the document  lying on  a          couch  within  feet of  a  sizable,  easily  visible  package  of          cocaine.  The column of handwritten figures on the paper totalled          37,000   the approximate  dollar value of the discovered  cocaine          in the  local market.  Finally,  an agent familiar with  the drug          trade testified on voir dire that he believed the  document was a          drug  ledger  and gave  persuasive  reasons  in support  of  that          conclusion.  No more was exigible.                      To be  sure, the  government presented no  direct proof          that Echeverri  authored the jottings on  the earnings statement.          But,  such proof was not  a prerequisite to  admissibility in the          circumstances  at bar.  On  the record before  us, the government          sufficiently connected  the document to the conspiracy and to the          appellant, even though it did not conclusively prove the author's          identity.  Cf.,  e.g., United  States v. Natale,  526 F.2d  1160,                     ___   ____  ______________    ______                                          10          1173 (2d  Cir. 1975) (holding that,  for authentication, "[p]roof          of the  connection of an exhibit to the defendants may be made by          circumstantial, as well as  direct, evidence"), cert. denied, 425                                                          _____ ______          U.S.  950 (1976).  Whether  Echeverri, his coconspirator, or some          third person  was the one who actually put pen to paper and wrote          down the figures is of no moment.  Regardless,  the evidence that          identified the document as a drug ledger was the key to the issue          of  authentication.  See United  States v. Smith,  918 F.2d 1501,                               ___ ______________    _____          1510 (11th Cir. 1990),  cert. denied, 112 S.Ct. 151,  253 (1991);                                  _____ ______          United States v. Drougas, 748 F.2d 8, 26 (1st Cir. 1984).4          _____________    _______                                B.  Expert Testimony.                                B.  Expert Testimony.                                    _________________                    Appellant also  contends that the  district court erred          in allowing agent Ghio  to offer opinion evidence anent  the drug          ledger.  His contention is unavailing.                      We have consistently  recognized that academic training          is  not a  sine  qua  non  of  expert  knowledge  concerning  the                                        ____________________               4The cases  cited by appellant  in support of  his challenge          are  readily distinguishable.   In both United  States v. Mouzin,                                                  ______________    ______          785 F.2d  682 (9th Cir.), cert.  denied, 479 U.S. 985  (1986) and                                    _____  ______          United  States  v. Ordonez,  737 F.2d  793  (9th Cir.  1983), the          ______________     _______          government   argued  that  intricately   detailed  writings  were          properly  admitted into evidence to prove the truth of the matter          asserted  therein because    the  writings  were  coconspirators'          statements or statements of  a party opponent.  In  this context,          the  Ninth Circuit found error  because there was  no evidence of          actual authorship and, therefore, no foundation for the admission          of such statements.   See Mouzin, 785  F.2d at 692; Ordonez,  737                                ___ ______                    _______          F.2d at 800-02; see also  Fed. R. Evid. 801(d)(2).   In contrast,                          ___ ____          there  has  been  no suggestion  in  the  instant  case that  the          document was admitted to  prove the truth of the  matter asserted          therein.   Rather, the  jottings on this  sheet are  more akin to          physical  evidence  of  the   crime  than  to  potential  hearsay          statements.   See, e.g., United  States v. Wilson,  532 F.2d 641,                        ___  ____  ______________    ______          645-46 (8th Cir.), cert. denied, 429 U.S. 846 (1976).                               _____ ______                                          11          practices  of  hard-core drug  traffickers.    See, e.g.,  United                                                         ___  ____   ______          States v. Hoffman, 832  F.2d 1299, 1310 (1st Cir. 1987).  Perhaps          ______    _______          realizing  the  durability  of  this tenet,  appellant  does  not          question Ghio's qualifications to serve as an expert witness.  He          does, however, question the need for expert testimony.                    In   deciding  whether  to  admit  or  exclude  opinion          evidence, courts  must assess  whether the testimony  will likely          assist  the jury in  understanding the proof  or ascertaining the          facts.    See Fed.  R.  Evid. 702.    Because  of its  first-hand                    ___          acquaintance with  the case, the trial court  enjoys broad leeway          in making this discretionary determination.  The court of appeals          will overturn a           trial-level determination  about the  need  for expert  testimony          only  if a manifest  abuse of the trial  court's discretion is in          prospect.  See Ladd, 885 F.2d  at 959; Hoffman, 832 F.2d at 1310.                     ___ ____                    _______                    Here,  the  central  issue   on  count  2  was  whether          appellant   was     or  was  not     a  knowing  and  intentional          participant  in  a  cocaine  conspiracy.   Ghio's  testimony  was          clearly  relevant to  that issue.   Moreover,  the testimony  was          undoubtedly helpful to  the jury.   Laymen, on  average, are  not          familiar with the praxis of the cocaine community.  See Ladd, 885                                                              ___ ____          F.2d at 960.  It follows that a trial court may allow a qualified          expert to  identify an otherwise  inscrutable document as  a drug          ledger and explain  its contents.   See, e.g.,  United States  v.                                              ___  ____   _____________          Campino, 890 F.2d 588, 593 (2d Cir. 1989), cert. denied, 494 U.S.          _______                                    _____ ______                                          12          1068, (1990); United States v. Diaz, 878 F.2d 608, 619 (2d  Cir),                        _____________    ____          cert. denied, 493 U.S.  993 (1989); United States v.  DeSoto, 885          _____ ______                        _____________     ______          F.2d 354, 362 (7th Cir.  1989); see also United States v.  Rubio-                                          ___ ____ _____________     ______          Estrada, 857 F.2d 845 (1st Cir. 1988) (noting approvingly, albeit          _______          without considering the issue raised by this  appellant, that the          jury had before it  the expert testimony of a  government witness          who identified and  explained a  drug ledger).   The lower  court          acted  well within the encincture of its discretion in permitting          the use of such evidence here.5                IV.  CONCLUSION          IV.  CONCLUSION                    We  need   go  no  further.     The  government  proved          Echeverri's  guilt beyond a reasonable doubt in a trial free from          reversible           error.  The judgment below is therefore          Affirmed.          Affirmed.          ________                                        ____________________               5We  note  that the  district  court  wisely instructed  the          jurors  that   agent  Ghio's  opinion   testimony,  like  opinion          testimony generally, was not binding upon them.                                          13
