U.S. v. Garcia

• Decision Date: 02 November 1992
• Docket Number: 92-1428,Nos. 92-1427,s. 92-1427
• Citation: 983 F.2d 1160
• Parties: 38 Fed. R. Evid. Serv. 27 UNITED STATES, Appellee, v. Jose A. GARCIA, Defendant, Appellant. UNITED STATES, Appellee, v. Pablo H. GARCIA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1160

983 F.2d 1160

38 Fed. R. Evid. Serv. 27

UNITED STATES, Appellee, v. Jose A. GARCIA, Defendant, Appellant.

UNITED STATES, Appellee, v. Pablo H. GARCIA, Defendant, Appellant.

Nos. 92-1427, 92-1428.

United States Court of Appeals First Circuit.

Heard Nov. 2, 1992.

Decided Feb. 4, 1993.

John M. Cicilline, Providence, RI, for defendant-appellant Jose A. Garcia.

Francis J. Gillan, III, Attleboro, MA, for defendant-appellant Pablo H. Garcia.

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

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and SELYA, Circuit Judge.

BOWNES, Senior Circuit Judge.

Defendants Pablo Garcia and Jose Garcia (no relation) were tried jointly and convicted by a jury in federal district court for possession of cocaine with intent to distribute, in violation of Title 21 U.S.C. § 841(a)(1), and conspiracy to possess cocaine with intent to distribute, in violation of Title 21 U.S.C. § 846. On appeal, defendants-appellants both argue: (1) that the evidence was insufficient to support the convictions; (2) that the district judge erred in vacating the magistrate's order compelling the attendance of the government's confidential informant at a suppression hearing; and (3) that the district judge erred in failing to suppress certain evidence. In addition, defendant Pablo Garcia argues that the district judge erred in admitting evidence of his prior arrest pursuant to Fed.R.Evid. 404(b). We affirm.

I. Background

On February 6, 1991, the Providence police executed a search warrant for narcotics and related items in the second floor apartment of a three-story tenement building at 93-95 Gallatin Street. The search warrant had been obtained pursuant to information the police received to the effect that drug trafficking was being conducted in the apartment. The police had confirmed the information by conducting a "controlled buy." In executing the warrant, the police announced their presence, waited approximately ten seconds, and receiving no response, proceeded forcibly to enter the apartment. Upon their entry, the police found the two defendants and a woman holding a child in the front room of the apartment. The woman, Altagracia Lopez, shared the front room of the apartment with Oscar Quinones, who was not present at the time of the defendants' arrest.

Defendants were made to lie on the floor while the police initiated a search of the apartment. INS Special Agent Bernstein testified that he gave defendants Miranda warnings in Spanish. In the closet of the back bedroom, the police found approximately ten and one-half ounces (295 grams) of suspected cocaine in one of several opaque plastic bags on the closet's floor. The substance later tested positive as cocaine, and was valued between $13,650 and $16,800. Also in the closet were articles of clothing and scattered papers, including a bill of sale and a car registration in the name of Pablo Garcia registered to the address of 93-95 Gallatin Street. Under a mattress in the front room, the police discovered a passport for Pablo Garcia and a number of notebooks with figures and names that a DEA agent testified were records of narcotics dealing. In the box spring under the mattress, the police found $1,308 in cash. Finally, on the kitchen counter, police discovered plastic ziploc bags that had been cut, and a candle and a strainer. At trial, DEA agents testified that these were packaging materials for cocaine distribution.

The police took Pablo and Jose separately into the room where the cocaine had been found, and asked each of them to identify a piece of clothing that belonged to them. Pablo picked out a shirt and jacket (later revealed to be a woman's jacket). Jose picked out a shirt. Also in that room were two mattresses, one of which was propped against the wall. The closet in the back bedroom was the only closet in the apartment.

Both defendants took the stand at trial and testified in their own defense. While admitting that they both slept in the room in which the cocaine was found, they denied knowing that there was cocaine in the closet. Both also denied knowing of the presence of the other drug paraphernalia in the apartment or of any drug trafficking operation.

Defendants presented different explanations for their presence in the apartment. Jose Garcia testified that he had lived in the back room at 93-95 Gallatin Street since the previous August or September. He said that he had been in Santo Domingo from December 23, 1990 until January 23, 1991, and that he had spent a few days in New York before returning to Providence. He returned to find that Pablo Garcia, whom he had never met, was staying in the room he rented. He testified that he had been trying to move from the apartment when the arrest took place, and that he already had moved many of his belongings to a friend's home.

Pablo Garcia testified that he lived in New York, but had come to Providence in February to stand trial for his arrest, in December 1990, for cocaine trafficking. The district judge had, before Pablo testified, admitted evidence of this prior arrest as probative of defendant's knowledge and intent to commit the offenses at issue. Pablo acknowledged that he was a friend of Oscar Quinones, but maintained that he did not know Jose Garcia, and that he had no real control over the room or the apartment because he was only temporarily residing there.

II. Sufficiency of the Evidence

Defendants both appeal the denial of their respective motions for judgment of acquittal. ¹ Both were convicted of possessing and conspiring to possess cocaine with the intent to distribute. Defendants assert that the prosecution failed to prove, beyond a reasonable doubt, both knowing possession of the cocaine and their participation in a conspiracy to possess cocaine.

The standards governing a challenge to the sufficiency of the evidence are familiar and oft-quoted The challenges to the sufficiency of the evidence and to the denial of the motion for judgments of acquittal raise a single issue. 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. We do not weigh witness credibility, but resolve all credibility issues in favor of the verdict. The evidence may be entirely circumstantial, and need not exclude every reasonable hypothesis of innocence; that is, the factfinder may decide among reasonable interpretations of the evidence.

United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.1991) (citations omitted). See also United States v. Lopez, 944 F.2d 33, 39 (1st Cir.1991).

A. Substantive Offense

The charge of possession with intent to distribute cocaine requires, in the context of this case, proof beyond a reasonable doubt that the cocaine found in the closet within the room shared by defendants was knowingly and intentionally possessed by them for purposes of distribution. See United States v. Vargas, 945 F.2d 426, 428 (1st Cir.1991). "Possession may be actual or constructive, sole or joint." United States v. Wight, 968 F.2d 1393, 1397 (1st Cir.1992); United States v. Vargas, 945 F.2d at 428. Constructive possession is proved when a person " 'knowingly has the power and intention at a given time to exercise dominion and control over an object, either directly or through others.' " United States v. Ocampo-Guarin, 968 F.2d 1406, 1409-10 (1st Cir.1992) (quoting United States v. Lamare, 711 F.2d 3, 5 (1st Cir.1983)). See also United States v. Vargas, 945 F.2d at 428 (constructive possession found where defendant was sole tenant and occupant of apartment immediately prior to police raid); United States v. Barnes, 890 F.2d 545, 549-50 (1st Cir.1989) (constructive possession found where defendant leased apartment that was jointly occupied with others), cert. denied, 494 U.S. 1019, 110 S.Ct. 1326, 108 L.Ed.2d 501 (1990); United States v. Calle-Cardenas, 837 F.2d 30, 32 (1st Cir.) (reasonable for jury to find defendant exercised dominion and control over area where contraband was found because three occupants were dressed similarly and all three names appeared on door at the time of the raid), cert. denied, 485 U.S. 1024, 108 S.Ct. 1582, 99 L.Ed.2d 897 (1988). The government may show constructive possession through the use of either direct or circumstantial evidence. Mere presence or association with another who possessed the contraband is, however, insufficient to establish constructive possession. United States v. Wight, 968 F.2d at 1397; United States v. Batista-Polanco, 927 F.2d at 18.

This case is very similar to United States v. Vargas, 945 F.2d 426, and the analysis flows accordingly. In Vargas, a search warrant was executed at defendant's apartment when defendant was playing cards in a kitchen with, among others, an alleged co-conspirator. The search uncovered: one kilogram of cocaine concealed behind a wooden baseboard in a bedroom with the co-conspirator's passport; drug ledgers on top of a bureau and $2,400 in a jacket pocket in the only other bedroom, and a narcotics notebook in open view in the kitchen. We affirmed both the possession and the conspiracy charges.

On the possession charge, we held that there was sufficient evidence from which the jury could have found that defendant enjoyed either exclusive or joint dominion and control of the apartment during the days preceding the police raid. We found that there was ample circumstantial evidence for a finding that the cocaine was intended for distribution: from the quantity it was reasonable to infer that the cocaine was not merely for personal consumption and such inference was buttressed by the large amount of cash and the drug records in open view. In language directly apposite to this case, we concluded that, "it would be...