U.S. v. Rivera Rodriguez, 86-1057

• Decision Date: 30 December 1986
• Docket Number: No. 86-1057,86-1057
• Citation: 808 F.2d 886
• Parties: 22 Fed. R. Evid. Serv. 344 UNITED STATES of America, Appellee, v. Francisco RIVERA RODRIGUEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 886

808 F.2d 886

22 Fed. R. Evid. Serv. 344

UNITED STATES of America, Appellee, v. Francisco RIVERA RODRIGUEZ, Defendant, Appellant.

No. 86-1057.

United States Court of Appeals, First Circuit.

Submitted Sept. 12, 1986.

Decided Dec. 30, 1986.

Carlos R. Noriega, Hato Rey, P.R., on brief, for defendant, appellant.

Antonio R. Bazan, Asst. U.S. Atty., and Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., on brief, for appellee.

Before BOWNES and TORRUELLA, Circuit Judges, and CARTER, ^* District Judge.

TORRUELLA, Circuit Judge.

This appeal arises from the conviction of appellant Francisco Rivera Rodriguez in the United States District Court for the District of Puerto Rico for the importation of cocaine and the possession with intent to distribute cocaine. See 21 U.S.C. Sec. 952(a), 841(a)(1) and 18 U.S.C. Sec. 2. Appellant challenges his conviction on three grounds. We find that none of these grounds warrants reversal and thus affirm the district court.

I

Appellant's first claim is that the trial court erred in admitting drug paraphernalia seized during his arrest. The trial court admitted the drug paraphernalia under Rule 404(b) of the Federal Rules of Evidence, which allows admission of evidence of other crimes or wrongful conduct to prove "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."

Appellant was arrested at his home and the automobile suspected to have been used during the commission of one of his offenses was seized. The trunk was opened and objects claimed by appellant's wife to belong to her personally were given to her. A large plastic trash bag was removed, and although appellant's wife claimed it, the bag was opened. Inside was a sifter-grinder and a spoon, both with traces of cocaine, and several small glassine envelopes.

A trial court may admit evidence under Rule 404(b) if (1) the evidence has some "special" probative value and (2) if this probative value outweighs any possible prejudice. United States v. Medina, 761 F.2d 12, 15 (1st Cir.1985). The evidence here has such probative value. The sifter-grinder and spoon were offered to show defendant's knowledge; the traces of cocaine found on the spoon and the sifter-grinder were offered to show the identity of the drug; and the glassine envelopes, to show the absence of mistake or accident (i.e., that appellant was distributing cocaine in these envelopes after he had adulterated it). The balancing decision is left to the discretion of the district court. Id. The appellant alleges that the admission of the sifter-grinder had the prejudicial effect of raising the animosity of the jurors against the defendant; however, in light of the clear probative value of the evidence, we do not believe the district court abused its discretion.

The appellant further argues that the testimony regarding the uses of the sifter-grinder should not have been permitted. The witness, who had been properly established as an expert, testified that the sifter-grinder is an instrument that can be used to adulterate cocaine. Federal Rule of Evidence 702 permits expert testimony which will assist the trier of fact to understand the evidence. See Fed.R.Evid. 702, Advisory Committee Notes. "There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute." Id. (quoting Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 418 (1952)). In the instant case, it is doubtful that the jurors could have determined, without the aid of the expert witness, that the sifter-grinder is an instrument that can be used to adulterate cocaine. We do not consider this information to be within the common knowledge of jurors and thus, an appropriate explanation by an expert is preferable to jury speculation. Once the district court decided to admit the sifter-grinder into evidence the explanation reasonably and necessarily followed.

II

Appellant claims, second, that there was insufficient evidence presented at trial. Appellant Rivera was charged with the importation of cocaine and the possession with intent to distribute cocaine in two separate indictments involving both counts. Those indictments were later joined for trial and appellant was convicted by a jury of all counts in both indictments. The first indictment concerned the events of January 7, 1985 and the second indictment concerned those of January 14, 1985. Appellant contests the sufficiency of the evidence in regards to the January 14 indictment.

On appeal, evidence is sufficient if a reasonable person could fairly find the defendant guilty beyond a reasonable doubt, viewing the evidence in the light most favorable to the government. U.S. v. Gibson, 675 F.2d 825, 829 (6th Cir.1982). The standard of review that applies to a refusal to direct a verdict in favor of a defendant is well established. A verdict should be directed only where the evidence could lead reasonable men to but one conclusion. This determination is to be made without evaluating the credibility of the witness or considering the weight of the evidence. Harrington v. United States, 504 F.2d 1306, 1311 (1st Cir.1974).

The evidence produced at trial consisted primarily of the testimony of Ms. Magda Castillo. Prior to her arrest, Magda had been employed as a waitress aboard the ship M/V VICTORIA for over a year. She was acquainted casually with another crewmember, Domingo Mendez-Lopez. On January 3, while the ship was docked in Venezuela, Magda encountered Mendez at the Avila Restaurant. He introduced her to his friends and asked her to carry a package back on board. After she did this, Mendez revealed that the package, wrapped in Christmas paper, contained two kilograms of cocaine. He convinced her to help him while his usual cohort, another crewmember, was on vacation. On January 7, the ship arrived in Puerto Rico and Magda brought the package to Don Ricardo's Restaurant, where Mendez was waiting. The appellant arrived and Magda met him for the first time. The three then proceeded in the appellant's brown Volvo to his place of business, where he dropped off the cocaine. They then drove to another spot where appellant unsuccessfully attempted to obtain payment for the cocaine. Magda was subsequently dropped off at the ship, and Mendez and the appellant continued on. That same night, Magda returned to Don Ricardo's Restaurant and again met the appellant. They went out to his car and he gave her a large sum of money which she brought back to the ship and delivered to Mendez. These are the facts of the first completed transaction which comprise the first indictment.

The facts of the second indictment began when the M/V VICTORIA returned to Venezuela. Nuris, the wife of one of Mendez' friends, Johnny, whom Magda had met at the Avila Restaurant the previous week, came to pick up the money and carry it off the ship. Magda had lunch at the Avila Restaurant with Mendez, Johnny and Nuris. Mendez gave Magda another package identical in appearance to the last one, which she again carried on board. Nuris gave Magda a napkin with her name, address and phone number written on it; this name and phone number corresponded to that found in an address and telephone book seized from appellant. The ship proceeded to Puerto Rico and on the morning of the 14th, a crewmember of the M/V VICTORIA disembarked and noticed Mendez and the appellant conversing on the dock leaning on a car which fits the description of appellant's brown Volvo. The crewmember returned a while later and saw Mendez and the appellant still talking. This crewmember made a photo identification of the appellant, as well as an in-court identification. That same morning, about an hour later, Mendez asked Magda when she would bring the package to Don Ricardo's Restaurant. Magda said that she could not because she had to be on the ship for an inspection. After much argument, she agreed to bring the package to Mendez at a cafeteria located on the dock. While going through customs, the cocaine was detected and Magda admitted that it belonged to Mendez. They were both arrested.

Other testimony against appellant included that of the DEA agent, who stated that as a result of his conversation with Magda after her arrest he began an investigation of the appellant who "was supposed to be the recipient of the two kilos of cocaine that was seized off the boat on January 14 and also the recipient of approximately two kilos of cocaine on January 7, 1985." An address and telephone book seized from Mendez contained the appellant's home and business phone number. Two months later, the appellant was arrested.

The Government may prove its case through the use of circumstantial evidence so long as the total evidence, including reasonable inferences, is sufficient to warrant a jury to conclude that the defendant is guilty beyond a reasonable doubt. United States v. Mehtala, 578 F.2d 6, 10 (1st Cir.1978). The issue here is whether there is evidence to support a jury finding that appellant was guilty at least as an aider and abettor of Mendez and Magda in the aborted delivery on January 14. To prove aiding and abetting, the government must show that appellant associated himself with the venture, that he participated in it as something that he wished to bring about, and that he sought by his actions to make the venture succeed. Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949).

There is direct testimony inculpating the appellant in regards to the January 7 indictment. The same pattern begins all over again, starting with the giving of a large sum of money to Magda to take on board, which the jury could interpret was to be taken to Venezuela to purchase the January 14 load, then...