March 30, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-1571
UNITED STATES OF AMERICA,
Appellee,
v.
GLENN ALLEN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Circuit Judge,
Brown,* Senior Circuit Judge,
and Stahl, Circuit Judge.
Perry O'Brian, by Appointment of the Court, for appellant.
F. Mark Terison, Assistant United States Attorney, with whom
Richard S. Cohen, United States Attorney, and James L. McCarthy,
Assistant United States Attorney, were on brief for appellee.
March 30, 1993
* Of the Fifth Circuit, sitting by designation. Judge Brown
(now deceased) heard oral argument in this matter, and
participated in the semble, but did not participate in the
drafting or the issuance of the panel's opinion. The remaining
two panelists therefore issue this opinion pursuant to 28 U.S.C.
46(d).
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TORRUELLA, Circuit Judge. Appellant Glenn Allen was
convicted of conspiracy to possess in excess of 10 grams of LSD,
possession of psilocybin with intent to distribute, and
distribution of psilocybin, in violation of 21 U.S.C.
841(a)(1) and 846, and 18 U.S.C. 2. Appellant alleges that
insufficient evidence existed to support his convictions and that
the government violated his Fourth Amendment rights. Based on
these allegations, appellant requests a new trial. Because we
find that sufficient evidence supported appellant's convictions,
and that no Fourth Amendment violations occurred, we affirm the
verdict.
BACKGROUND
Evidence of the following appeared at trial. A United
States postal inspector, assigned to investigate transportation
of illicit drugs through the mail, became suspicious of two
Express Mail package receipts. The receipts were addressed to
Kurt Humphrey in Maine and sent from two locations on the west
coast of the United States. The sender's name on each receipt
coincided with a previously investigated sender. In addition,
the originating addresses were false. The postal inspector
directed the appropriate postmaster in Maine to watch for future
Express Mail packages addressed to Kurt Humphrey from the west
coast.
Such a package arrived from Oregon on January 11, 1990
at 7:00 a.m. The postmaster alerted the postal inspector one
hour later when the inspector arrived at the New Hampshire
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office, where he was working that day. The postal inspector
directed the postmaster to hold the package pending further
instruction. Ordinarily, the postmaster would have immediately
notified Humphrey that the package had arrived. The package had
a guaranteed delivery time of 3:00 p.m. that day.
At 10:00 a.m. in New Hampshire, 7:00 a.m. on the West
Coast, the inspector called the appropriate Oregon office and
learned that the originating address and the sender's name were
fictitious. The inspector then arranged with the Maine state
police for a trained dog to sniff the package for drugs. The dog
was trained to find marijuana, cocaine, hashish, and heroin in
all of their forms.
When the state police arrived at the post office at
noon, the postmaster closed the office for lunch. He then took
the police officers to his nearby house to conduct the test in
privacy. Four times, the police hid the package in the garage
and sent the dog to find it. Each time, the dog located the
package and indicated the presence of drugs.
The police presented an affidavit to a local magistrate
describing the test and stating that the package had been sent
from a fictitious address. The magistrate issued a search
warrant at 4:21 p.m. When the police officers opened the
package, they found 11,200 rations of LSD on 112 sheets of
blotter paper. The police then prepared a dummy package with two
sheets of blotter paper in an apparently unopened Express Mail
envelope. Meanwhile, sometime between 11:00 a.m. and 2:00 p.m.,
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Humphrey checked his post office box, found nothing, and left
without inquiring about the package.
The next day, Humphrey returned to the post office and
received the dummy package. When Humphrey left the post office,
two police officers followed him. They ultimately stopped him
en-route to appellant's house.
At trial, Humphrey described appellant's participation
in the scheme, alleging that appellant recruited him to receive
packages and deliver them to appellant for a fee of fifty
dollars. Humphrey also stated that appellant sold him $250 worth
of psilocybin mushrooms. The police later found psilocybin
mushrooms in Humphrey's home and in a barn on appellant's family
property.
In addition, the police found a money order for $400
from James Paoletti made out to appellant in appellant's home.
Paoletti testified that the money order represented payment for
LSD.
Appellant moved to suppress the contents of the Express
mail package unsuccessfully. He also lost motions for judgment
of acquittal.
APPELLANT'S CLAIMS
I. Sufficiency of the evidence
"The standard of review for sufficiency challenges is
whether the total evidence, taken in the light most amicable to
the prosecution, together with all reasonable inferences
favorable to it, would allow a rational fact-finder to conclude
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beyond a reasonable doubt that the defendant was guilty as
charged." United States v. Maraj, 947 F.2d 520, 522-23 (1st Cir.
1991). Viewing the record in this light, we find sufficient
evidence for appellant's conviction on all three counts.
First, through testimony from Paoletti and Humphrey,
the government presented sufficient evidence for a rational jury
to conclude that appellant conspired to possess LSD with intent
to distribute it. The following evidence was admitted at trial.
Paoletti sent appellant a $400 money order to buy LSD that
appellant would obtain from the West Coast. (Transcript of Trial
Proceedings at 145). After procuring an Express Mail shipment of
LSD from the West Coast, appellant would pay Humphrey to retrieve
the package from the post office and deliver it to appellant's
home. Id. at 20. Pursuant to a search warrant, police officers
searched the package, discovered LSD, and replaced it with a
dummy package. Humphrey retrieved the package, and the officers
arrested him on the way to appellant's home. Id. at 20-21. From
this evidence, a rational jury could find appellant guilty of
conspiracy to possess LSD beyond a reasonable doubt.
Second, sufficient evidence supported appellant's
conviction for distribution of psilocybin. To prove this charge,
it was enough to show that the defendant had the "power and the
intention to cause the transfer . . . either directly or through
another person . . . ." United States v. Acevedo, 842 F.2d 502,
507 (1st Cir. 1988). Humphrey testified that (1) when appellant
was in Europe in November 1989, he phoned Humphrey, and Humphrey
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asked him if he could get some psilocybin, (Transcript of Trial
Proceedings at 34); (2) appellant offered him the psilocybin that
was in the barn at appellant's home, id. at 35; (3) appellant
agreed to sell a quarter pound of psilocybin for $250, which
Humphrey would pay when appellant returned from Europe, id.; (4)
Humphrey took the psilocybin from the barn, id. at 35-36; and (5)
when appellant returned, Humphrey offered him a gun as partial
payment, which appellant took, saying he'd try it to see if he
wanted it, id. at 39. The government also introduced evidence
that the police confiscated psilocybin from Humphrey, id. at 37,
and from the barn on appellant's property, id. at 90-91. From
this evidence, a rational jury could conclude that appellant had
the power and intent to cause the transfer of psilocybin.
Finally, sufficient evidence existed to support
appellant's conviction for possession with intent to distribute
psilocybin. In order to prove this crime, the government must
establish that the defendant had, possession of a controlled
substance, knowledge of that possession, and the specific intent
to distribute it. 21 U.S.C. 841(a)(1). Constructive
possession will support a conviction and can be established by
circumstantial evidence such as a defendant's ownership or
control over the premises in which the contraband is hidden.
Acevedo, 842 F.2d at 507. Appellant argues that he had no
ownership or control over the psilocybin because his family had
access to the barn where it was stored, and because he exercised
no exclusive or mutual control over the part of the barn in which
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the mushrooms were found. Humphrey testified, however, that
appellant ordered the psilocybin and hid it in the barn,
(Transcript of Trial Proceedings at 28), and that on the same
day, appellant showed him psilocybin mushrooms that he had in a
duffel bag, id. at 28. From this evidence, the jury could infer
that appellant owned or controlled the psilocybin in the barn.
Appellant attacks the credibility of the government's
witnesses for all three charges. He complains that part of
Paoletti's testimony conflicted with a prior made statement and
that Humphrey offered solely conclusory assertions. These are
suitable arguments for the jury, and appellant had ample
opportunity to present them at trial. As the jury chose to
reject them, we must do the same. United States v. Angiulo, 897
F.2d 1169, 1197 (1st Cir.) (reviewing court must resolve all
credibility determinations in favor of verdict), cert. denied,
498 U.S. 845 (1990).
II. Fourth Amendment Issues
Appellant next argues that the district court erred in
denying his motion to suppress the LSD found in the Express Mail
package. Specifically, appellant contends that the detention and
subsequent search of the package violated his Fourth Amendment
right against unreasonable search and seizure because (1) the
detention was not based on a reasonable suspicion that it
contained contraband; and (2) it was unreasonable.1 See United
1 In his brief, appellant also argued that the police officers
lacked probable cause to search the package because the dogs were
not trained to sniff LSD. At oral argument, however, he
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States v. La France, 879 F.2d 1, 4 (1st Cir. 1989) (police
entitled to delay delivery if delay is based reasonable suspicion
and is reasonably executed). We find, however, that a reasonable
view of the record evidence supports the district court's denial
of the motion. See United States v. Masse, 816 F.2d 805, 809 n.4
(1st Cir. 1987) (citing United States v. Veillette, 778 F.2d 899,
902 (1st Cir. 1985) (appellate court should uphold district
court's denial of motion to suppress if reasonable view of
evidence supports it).
The court properly found that reasonable suspicion
supported the package's delayed delivery. The record evidence
shows that the postal inspector has seven years of experience
investigating drug transportation through the mail, and has
investigated between 200 and 300 cases involving drug transport
through Express Mail. (Transcript of Hearing on Defendant's
Motion to Suppress Evidence at 12-13). He grew suspicious of the
package for several reasons. Individuals rarely receive Express
Mail packages, and Humphrey received three in five months. Id.
abandoned that argument and conceded that the disputed time frame
consisted of that between the arrival of the package and the
sniff test.
We note that the test did in fact generate probable cause.
Probable cause is judged upon the information known to the
authorities and presented at the time the warrant issues. United
States v. Johnston, 784 F.2d 416, 420 (1st Cir. 1986).
Information available to the magistrate at this time revealed
that a trained dog had alerted to the presence of drugs in the
package four times. This information gave rise to probable cause
to suspect that the package contained contraband. That the
package later turned out to contain LSD, which the dog was not
trained to find, is irrelevant.
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at 55. Also, the inspector knew that Humphrey had received
suspicious mailings from the West Coast in the past. Id. at 15.
The labels were suspicious because the return addresses differed,
but the handwriting, in his observation, appeared the same. Id.
Also, one of the senders had the same name as someone who
previously mailed an Express Mail package containing psilocybin.
Id. From this evidence, the district court found that the
inspector had reasonable suspicion to detain the package
initially. When the inspector learned that the sender's address
was fictitious, additional suspicion developed, justifying the
further delay that it took to arrange for the dog sniff test.
In addition to having reasonable suspicion, the
officials did not unreasonably delay delivery of the package. To
determine the reasonableness of the delay, we review the
diligence of the investigators, the length of detention, and the
information conveyed to the suspect. La France, 879 F.2d at 7
(citing United States v. Place, 462 U.S. 696, 709-10 (1983)).
In the present case, the law enforcement authorities
acted diligently. The delay lasted only as long as necessary.
The postmaster promptly contacted the postal inspector to obtain
further information, and the postal inspector then promptly
verified the addresses, waiting only for the appropriate office
to open. Id. at 26-27. When the inspector determined that the
addresses did not exist, he arranged for and executed the dog
test. (Transcript of Hearing on Defendant's Motion to Suppress
Evidence at 26-29). No evidence suggested that the law
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enforcement officials could have acted more swiftly.
Furthermore, the dog was located at a distance from the
postmaster's home, id. at 91-92; yet, within five hours after the
postmaster notified the inspector about the package, the sniff
test was complete. Indeed, sufficient probable cause to search
the package developed two hours before the guaranteed delivery
time, and thus before appellant had a significant possessory
interest. See La France, 879 F.2d at 7 (before guaranteed
delivery time, only possessory interest is contract-based
expectancy that package would be delivered on time). The
district court judge properly found the delay reasonable.
Finally, appellant received no misinformation regarding
his package. Indeed, he never inquired about the package.
Accordingly, we find that the record evidence supports the
district court's denial of the motion to suppress.
CONCLUSION
Because sufficient evidence supported appellant's
conviction, and appellant's Fourth Amendment rights were not
violated, we affirm appellant's conviction.
Affirmed.
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