U.S. v. Vargas

• Decision Date: 02 April 1991
• Docket Number: No. 90-1916,90-1916
• Citation: 945 F.2d 426
• Parties: UNITED STATES of America, Appellee, v. Ramiro VARGAS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 426

945 F.2d 426

UNITED STATES of America, Appellee, v. Ramiro VARGAS, Defendant, Appellant.

No. 90-1916.

United States Court of Appeals First Circuit.

Heard April 2, 1991.

Decided Sept. 25, 1991.

Francis R. Williams, Providence, R.I., for appellant.

Margaret E. Curran, Asst. U.S. Atty., Providence, R.I., with whom Craig N. Moore, Asst. U.S. Atty. and Lincoln C. Almond, U.S. Atty., were on brief, for appellee.

Before BREYER, Chief Judge, and TORRUELLA and CYR, Circuit Judges.

CYR, Circuit Judge.

Ramiro Vargas disputes the sufficiency of the evidence supporting his felony convictions for possessing and conspiring to possess cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. We affirm.

I FACTS

On April 28, 1989, Rhode Island State Police executed a search warrant at 48 Brayton Avenue in Providence. When the police entered the apartment, appellant Ramiro Vargas was playing cards in the kitchen with alleged coconspirator Juan Restrepo and a female companion. The search disclosed approximately one kilogram of cocaine concealed with Restrepo's passport behind a wooden baseboard in a bedroom. In the only other bedroom, the police found records of cocaine transactions on top of a bureau, and $2400 in cash in a jacket pocket. In open view in the kitchen, the police found a small brown notebook ledger which the jury could have concluded contained records of cocaine dealings.

At trial, the jury was presented with four important pieces of physical evidence tending to indicate that the apartment at 48 Brayton Avenue had been under appellant's exclusive tenancy and occupancy for several weeks prior to the search: (i) an April 1989 rent receipt in appellant's name, (ii) a public utility business record, bearing appellant's signature, requesting electrical service to appellant as the sole occupant of the apartment at 48 Brayton Avenue, (iii) a Rhode Island Personal Identification Card bearing appellant's signature and reflecting appellant's address as 48 Brayton Avenue, and (iv) a State of Rhode Island Motor Vehicle Division instruction permit, issued April 24, 1989, bearing appellant's signature, and reflecting appellant's address as 48 Brayton Avenue.

Notwithstanding the contrary evidence, appellant testified that he was not in control of the apartment. He stated that he had come to the United States from his native Colombia in March of 1989, and had gone to live with his brother, Rodrigo Vargas, at 48 Brayton Avenue. He explained that he had no proper identification with which to secure employment, since he had entered the United States illegally. He testified that in order to obtain a driver's license to present to prospective employers, he needed proof of residence; therefore he had Rodrigo obtain a rent receipt in appellant's name and requested the electric company to put electrical service in his own name, even though he was not renting the apartment. Appellant further explained that he had no control over who was allowed in the apartment and that he had not invited Juan Restrepo or his female companion to visit on the day of the raid.

The landlord contradicted appellant's testimony. He testified that he rented the apartment to appellant in April 1989 after the previous tenant, Rodrigo Vargas, told the landlord that he was leaving and that appellant would be taking over the apartment. ¹

Notwithstanding appellant's testimony, the jury found him guilty as charged on both counts and the district court denied his motion for judgment of acquittal.

II DISCUSSION

On a challenge to the sufficiency of the evidence, we accord considerable deference to the challenged verdict. Without weighing witness credibility, United States v. Sanchez, 917 F.2d 607, 610 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991) (citations omitted), "[w]e 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." United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.1991).

A. Substantive Offense

The substantive offense of conviction required proof beyond a reasonable doubt that the cocaine discovered behind the bedroom baseboard was knowingly possessed by the appellant for purposes of distribution. See 21 U.S.C. § 841(a)(1). Possession may be actual or constructive, Batista-Polanco, 927 F.2d at 19; United States v. Martinez, 922 F.2d 914, 923 (1st Cir.1991); United States v. Barnes, 890 F.2d 545, 549 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1326, 108 L.Ed.2d 501 (1990), sole or joint, Batista-Polanco, 927 F.2d at 19 (citing Santiago v. United States, 889 F.2d 371, 376 (1st Cir.1989)); Barnes, 890 F.2d at 549 (citing United States v. Calle-Cardenas, 837 F.2d 30, 32 (1st Cir.), cert. denied, 485 U.S. 1024, 108 S.Ct. 1582, 99 L.Ed.2d 897 (1988)). An accused's "dominion and control over the area where the contraband [is located]," Martinez, 922 F.2d at 923-24; see also Barnes, 890 F.2d at 549, may be enough to demonstrate constructive possession of the contraband located there. Evidence sufficient to establish that the accused shared dominion and control of the premises ² can serve as a sufficient basis for inferring a knowing possession of contraband where the evidence indicates that the accused, either alone or jointly with one or more persons, intended to facilitate the possession. Id. (upholding jury finding of knowing possession of cocaine base found in container in bedroom of apartment leased by defendant, but jointly occupied with others); United States v. Lochan, 674 F.2d 960, 966 (1st Cir.1982) (reasonable to infer driver knowingly possessed cocaine secreted behind rear seat of automobile owned by passenger). A fortiori, evidence establishing that the accused alone controlled the premises where the contraband was discovered can support a reasonable inference that the accused knowingly possessed the contraband. Barnes, 890 F.2d at 549-50; United States v. Robinson, 857 F.2d 1006 (5th Cir.1988) (sole occupant of house was in constructive possession of drugs concealed therein). Cf. United States v. Maldonado, 849 F.2d 522 (11th Cir.1988) (jury was free to conclude that sole occupant of house was in constructive possession of hidden drugs, even though there was a visitor staying in the house at the time of arrest).

We first consider whether a rational juror could have found, beyond a reasonable doubt, that appellant had constructive possession of the cocaine secreted behind the bedroom baseboard. There was sufficient evidence from which the jury could have found that appellant had been the only tenant and occupant of the apartment for anywhere from eight days to several weeks prior to the raid. It could have been found that appellant enjoyed either exclusive or joint dominion and control of the entire apartment during either of these periods. See Barnes, 890 F.2d at 550. Cf. Lochan, 674 F.2d at 966 ("Drivers generally have dominion and control over the vehicles that they drive.") (passenger was owner of vehicle).

Second, there was ample circumstantial evidence that the cocaine discovered behind the baseboard was intended for distribution. The quantity of cocaine, one kilogram, was large enough to support a fair jury inference that it was not intended merely for personal consumption. See United States v. Geer, 923 F.2d 892, 895 (1st Cir.1991). The large amount of cash, and the drug records in open view, buttressed an inference of intent to distribute. See United States v. Desmarais, 938 F.2d 347, 352 (1st Cir.1991) (intent to distribute reasonably inferable from possession of controlled substance and related paraphernalia).

Third, it would be reasonable to infer that no non-occupant, other than a confidant of the tenant, would deposit a valuable cache of contraband in a bedroom of an unsuspecting tenant's apartment from which retrieval would be much more difficult at best, and the risk of discovery and loss far greater, than if a more accessible and closely controlled location were used or the secret were shared with the tenant. See United States v. Passos-Paternina, 918 F.2d 979, 985 (1st Cir.1990) ("We defer, within reason, to inferences formulated by the jury in the light of its collective understanding of human behavior in the circumstances revealed by the evidence."), cert. denied, --- U.S. ----, 111 S.Ct. 1637, 113 L.Ed.2d 732 and cert. denied --- U.S. ----, 111 S.Ct. 2809, 115 L.Ed.2d 981 (1991). Similarly, a rational juror reasonably could infer that only a tenant, an occupant of the premises, or a confidant, would have caused part of the bedroom baseboard to be converted into a removable panel. Finally, the jury was entitled to conclude that there were drug records in open view in a bedroom and in the kitchen and that the only tenant and occupant of the apartment knowingly possessed the $2400 in cash and the drug records found there. Thus, there was sufficient circumstantial evidence on which to base a reasonable inference that appellant, as the sole tenant and occupant, knowingly possessed the hidden cocaine for purposes of distribution. ³

B. Conspiracy

" 'A criminal conspiracy is a tacit or explicit agreement to perform an unlawful act' ...," Batista-Polanco, 927 F.2d at 19 (quoting United States v. Penagaricano-Soler, 911 F.2d 833, 840 (1st Cir.1990)), which can be established by direct or circumstantial evidence that the putative coconspirators agreed and intended to facilitate the aims of the alleged unlawful activity, Sanchez, 917 F.2d at 610. "Due to the clandestine nature of criminal conspiracies, the law recognizes that the...