U.S. v. Echeverri

• Citation: 982 F.2d 675
• Decision Date: 11 December 1992
• Docket Number: No. 92-1426,92-1426
• Parties: 37 Fed. R. Evid. Serv. 1041 UNITED STATES of America, Appellee, v. Marco A. ECHEVERRI, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 675

982 F.2d 675

37 Fed. R. Evid. Serv. 1041

UNITED STATES of America, Appellee, v. Marco A. ECHEVERRI, Defendant, Appellant.

No. 92-1426.

United States Court of Appeals, First Circuit.

Heard Dec. 11, 1992.

Decided Jan. 5, 1993.

Edward C. Roy, with whom Roy & Cook was on brief, for defendant, appellant.

Zechariah Chafee, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., was on brief, for the U.S.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

SELYA, Circuit Judge.

Defendant-appellant Marco A. 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

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:

                    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 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

Appellant labors to convince us that the judgment below rests on too fragile an evidentiary foundation. We are not persuaded.

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, 498 U.S. 849, 111 S.Ct. 139, 112 L.Ed.2d 106 (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, 1992) (No. 92-6552).

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, 110 S.Ct. 1326, 108 L.Ed.2d 501 (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, 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, 980 F.2d 788, 789-91; 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. 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, 108 S.Ct. 1582, 99 L.Ed.2d 897 (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.

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 participant in it. See United States v. David, 940 F.2d 722, 735 (1st Cir.1991), cert. denied, --- U.S. ----, ----, ----, ----, 112 S.Ct. 605, 908, 1298, 2301, 116 L.Ed.2d 628, 809, 117 L.Ed.2d 520, 119 L.Ed.2d 224 (1992); United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 576 (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, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988).

In this case, there was evidence that, in a tiny apartment, within feet of the sole tenant, law officers found a...