U.S. v. Batista-Polanco, BATISTA-POLANC

• Decision Date: 03 October 1990
• Docket Number: BATISTA-POLANC,D,No. 89-2197,89-2197
• Citation: 927 F.2d 14
• Parties: 32 Fed. R. Evid. Serv. 661 UNITED STATES of America, Appellee, v. Johnny Rafaelefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 14

927 F.2d 14

32 Fed. R. Evid. Serv. 661

UNITED STATES of America, Appellee, v. Johnny Rafael BATISTA-POLANCO, Defendant, Appellant.

No. 89-2197.

United States Court of Appeals, First Circuit.

Heard Oct. 3, 1990.

Decided Feb. 28, 1991.

David N. Cicilline, Providence, R.I., for defendant, appellant.

Margaret E. Curran, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., was on brief, Providence, R.I., for appellee.

Before CAMPBELL, and CYR, Circuit Judges, and TIMBERS, ^* Senior Circuit Judge.

CYR, Circuit Judge.

Johnny Rafael Batista-Polanco appeals his convictions and sentences for possessing and conspiring to possess one hundred or more grams of heroin for distribution in violation of 21 U.S.C. Secs. 841(a)(1) & (b)(1)(B) and 846. We affirm.

FACTS

Appellant and six codefendants were indicted by a federal grand jury on evidence obtained during the execution of a search warrant at an apartment in Providence, Rhode Island. ¹ Acting on information from a confidential informant that heroin was being packaged at the Providence apartment, the police maintained surveillance throughout the early morning hours of April 26. The search party forcibly entered the apartment at approximately 10:30 a.m. and immediately encountered a large kitchen table laden with over fifteen hundred packets filled with heroin, an assortment of heroin milling and packaging paraphernalia, and some bulk heroin. Five chairs and a makeshift seat were arranged around the kitchen table; jackets and sweaters were draped on some of the chairs. More than seventeen hundred packets of heroin were found in a bag on the kitchen floor; another three thousand packets were discovered elsewhere in the apartment. Six men were found inside the apartment, including appellant Batista-Polanco who was in the living room with his cousin.

After the six men were arrested, and assembled in the living room, their Miranda rights were explained in Spanish. After all arrestees acknowledged an understanding of their rights, DEA Special At the bench trial, appellant testified that his presence in the apartment was entirely innocent and that he had been waiting there merely to borrow his cousin's car. Although appellant admitted awareness that heroin was being packaged in the kitchen, he denied knowing or speaking with anyone at the kitchen table, other than his cousin, and he claimed that he neither sat in the kitchen nor assisted with the heroin operation in any way. Appellant claimed simply to have left his sweater on his cousin's chair when he went into the living room to wait. He testified that he had been in the apartment only forty-five minutes by the time the police arrived. The government rebutted appellant's testimony with the testimony of the officer who had maintained constant surveillance outside the apartment between 8:15 and 10:30 a.m. on April 26. The officer testified that the appellant did not enter the apartment during the surveillance.

                Agent Baggs asked if anyone wished to make a statement;  none of the arrestees either responded in the affirmative or requested an attorney.  As appellant was being escorted from the apartment, through the kitchen, one of the detectives who was escorting him indicated to Agent Baggs that he thought appellant wanted his sweater.  Baggs immediately asked the appellant in Spanish either "where is [the sweater]?" or "where were you sitting?"    Appellant indicated that a sweater on one of the chairs beside the kitchen table belonged to him, and Agent Baggs gave him the sweater
                

The district court characterized Batista-Polanco's testimony as "incredible" and found him guilty on both counts. At sentencing, the court increased appellant's base offense level by two points, on the ground that appellant had testified falsely as to the length of time he remained in the apartment. The court rejected the contention that appellant was a "minor participant" and sentenced him to two concurrent prison terms of eighty months, followed by concurrent five year terms of supervised release.

Batista-Polanco challenges his convictions and sentences on the following grounds: the insufficiency of the evidence; the withholding of the identity of the confidential informant; the inadmissibility of the statement concerning the sweater; and, finally, the allegedly unlawful two-point increase of appellant's base offense level for obstruction of justice and the refusal to decrease appellant's base offense as a "minor participant."

DISCUSSION

Sufficiency of the Evidence

The challenges to the sufficiency of the evidence and to the denial of the motion for judgments of acquittal raise a single issue. See United States v. St. Michaels Credit Union, 880 F.2d 579, 584 (1st Cir.1989); United States v. McNatt, 813 F.2d 499, 502 (1st Cir.1987). We assess the sufficiency of the evidence as a whole, including all reasonable inferences, in the light most favorable to the verdict, with a view to whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See United States v. Passos-Paternina, 918 F.2d 979, 983 (1st Cir.1990) (sufficiency of evidence); United States v. Sanchez, 917 F.2d 607, 610 (1st Cir.1990) (same); United States v. Smith, 680 F.2d 255, 259 (1st Cir.1982) (motion for judgment of acquittal), cert. denied, 459 U.S. 1110, 103 S.Ct. 738, 74 L.Ed.2d 960 (1983). We do not weigh witness credibility, but resolve all credibility issues in favor of the verdict. Passos-Paternina, 918 F.2d at 983; Sanchez, 917 F.2d at 610; McNatt, 813 F.2d at 502. The evidence may be entirely circumstantial, United States v. Boylan, 898 F.2d 230, 242 (1st Cir.1990); United States v. Mount, 896 F.2d 612, 615 (1st Cir.1990), and need not exclude every reasonable hypothesis of innocence, United States v. Laboy, 909 F.2d 581, 588 (1st Cir.1990); Mount, 896 F.2d at 615; that is, the factfinder may decide among reasonable interpretations of the evidence, Laboy, 909 F.2d at 588; United States v. Blair, 886 F.2d 477, 478 (1st Cir.1989). "Mere Presence"

Appellant neither denies being at the apartment while the large scale heroin packaging operation was in process nor disputes the existence of a conspiracy among the other persons present, insisting instead that evidence of "mere presence" is insufficient to support the conviction, see, e.g., United States v. Mehtala, 578 F.2d 6, 9 (1st Cir.1978), and that these verdicts are the product of "speculation and conjecture" and guilt by association. We do not agree.

The circumstantial evidence raises reasonable inferences sufficient to refute the claim of mere presence at the crime scene. Appellant admitted that he remained for at least forty-five minutes ² in an apartment conspicuously strewn with evidence of a large-scale heroin packaging operation. In these circumstances we cannot accept the hypothesis that participants in a distribution scheme would permit a noncontributing interloper to remain for an extended period of time in a small apartment while their conspicuous criminal conduct continued unabated. "[S]uch is not normally the conduct that one would expect of conspirators engaged in conduct which by its nature is kept secret from outsiders." Smith, 680 F.2d at 260. "Neither juries nor judges are required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of their experience as to the natural inclinations of human beings." Id.; see also United States v. Staten, 581 F.2d 878, 885 (D.C.Cir.1978) (presence in small apartment replete with indicia of ongoing drug-distribution enterprise in open view "could rationally have been viewed as a privilege reserved exclusively for participants"). As we frequently recognize, the factfinder may fairly infer, as did the district court in the present case, that it runs counter to human experience to suppose that criminal conspirators would welcome innocent nonparticipants as witnesses to their crimes. See United States v. Passos-Paternina, 918 F.2d at 985 ("understanding of human behavior" may ground reasonable inference from circumstantial evidence). United States v. Pacheco, 794 F.2d 7, 11 (1st Cir.1986) (such criminal conduct "by its nature is kept secret from outsiders...."); see also United States v. Cuevas-Esquivel, 905 F.2d 510, 515 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 208, 112 L.Ed.2d 169 (1990). Compare Mehtala, 578 F.2d at 9; United States v. Francomano, 554 F.2d 483, 487 (1st Cir.1977).

The inference that Batista-Polanco was a participant in the heroin packaging operation was strongly supported as well by reasonable implication from the fact that the kitchen table at which the heroin was packaged was surrounded by six seats--one a makeshift seat consisting of an overturned bucket with a cushion. It is difficult to resist the reflexive inference that the sixth seat was devised to enable all six men, including appellant, to sit at the kitchen table and to participate in the heroin packaging. ³ Finally, the district court's well-supported finding that appellant gave materially false testimony concerning the duration of his stay in the apartment provided a basis for discrediting other exculpatory testimony given by Batista-Polanco in his own defense. See, e.g., United States v. Jimenez-Perez, 869 F.2d 9, 11 (1st Cir.1989); United States v. Quejada-Zurique, 708 F.2d 857, 861 (1st Cir.), cert. denied, 464 U.S. 855, 104 S.Ct. 173, 78 L.Ed.2d 156 (1983).

Although wholly circumstantial, the evidence was sufficient to support appellant's conviction on each count.

As to the substantive offense, the government was required to prove that appellant possessed one hundred or more grams of heroin, with intent to distribute. Appellant does not dispute that the sheer scale of the heroin packaging operation was sufficient to support a reasonable inference that the heroin was intended for distribution, but he contends that...