United States v. Paulino

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-2470

UNITED STATES OF AMERICA,

Appellee,

v.

TEMISTOCLES PAULINO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Selya, Cyr and Stahl, Circuit Judges.

Scott A. Lutes for appellant.

Margaret E. Curran, Assistant United States Attorney, with

whom Edwin J. Gale, United States Attorney, and Gerard B.

Sullivan, Assistant United States Attorney, were on brief, for

the United States.

January 5, 1994

SELYA, Circuit Judge. Defendant-appellant Temistocles
SELYA, Circuit Judge.

Paulino asks us to set aside his conviction and direct his

acquittal, or, in the alternative, order a new trial. Having

reviewed the record, we decline to disturb the judgment below.

I

This case finds its genesis in an undercover

investigation of narcotics trafficking conducted by the

Providence, Rhode Island police department. The investigation

focused on an apartment building at 70 Peace Street. In due

course, the police began paying special attention to apartment

706. On several occasions in late May and early June of 1992,

they observed appellant in and around the apartment.

After intensive surveillance, an informant, acting

under police auspices, entered apartment 706 during early June

and made a controlled purchase of cocaine from the principal

suspect, Moreno, inside the apartment. While the transaction was

in progress detectives observed Paulino peering from a window.

The officers subsequently obtained a search warrant and executed

it on June 11, 1992. They discovered appellant in the kitchen

and a stranger, Junior Rodriguez, taking a shower.1 The man

known as "Moreno" was elsewhere when the police arrived, and his

whereabouts remain a mystery.

Although the tiny apartment contained little more than

a kitchen, bathroom, and bedroom, it nevertheless disclosed

1Prior to June 11, 1992, the date when the police discovered
him completing his ablutions, Rodriguez had never before been
seen in or around 70 Peace St.

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bountiful evidence of drug trafficking activities. Detectives

found an assortment of drugs in the bedroom, namely, three

plastic bags containing 64.02 grams of cocaine in the aggregate,

and a fourth bag containing a "speedball" (a mixture of cocaine

and heroin) weighing 11.79 grams. The search party found the

speedball perched on a small coffee table, inside a five-pound

bag of rice; on a piece of foil next to the rice rested a rock of

cocaine weighing 95.11 grams. The rock showed signs of having

recently been "cooked".

The search uncovered more than the narcotics cache.

From atop the coffee table, the police confiscated a collection

of drug paraphernalia, including a digital scale, three sifters,

a playing card, packaging materials, three separate kinds of

cutting agents, and a small notebook that appeared to be a drug

ledger. On a chair next to the table, under a shirt, within easy

reaching distance of the drugs, officers spotted a loaded

revolver.2 On appellant's person, officers found a key to the

apartment's front door. No other key to the apartment was

located.

II

Based primarily on this evidence, a federal grand jury

returned a three-count indictment against appellant. Count one

charged him with possession of cocaine, intending to distribute

it, in violation of 21 U.S.C. 841(a)(1) & (b)(1)(C) (1988 &

2We temporarily exclude from the inventory of unveiled items
the receipt for a Postal Service money order, discussed infra

Part III.

3

Supp. IV 1992). Count two charged him with possessing heroin,

intending to distribute it, in violation of the same statutory

provisions. Count three charged him with possession of a firearm

during and in relation to drug trafficking, in violation of 18

U.S.C. 924(c) (1988 & Supp. IV 1992). A jury found appellant

guilty across the board. On December 10, 1992, the court

sentenced him to concurrent 37-month terms of imprisonment on the

two narcotics counts and a consecutive 60-month prison term on

count three. This appeal ensued.

III

Appellant's most touted assignment of error relates to

a so-called "customer's receipt" for a Postal Service money order

discovered on a kitchen shelf. The receipt bore appellant's name

(although his given name, "Temistocles," was spelled with two

surplus letters, viz, "Temistomecles"), listed his address as "70

Peace #706 Prov. RI 02907," and purported to corroborate payment

to "Tower Management" in an amount of $280. In the "used for"

space, someone had written "May rent."

At trial, the prosecution offered the receipt to prove

the truth of the matter asserted therein: that appellant had

paid the apartment rent for May 1992 a period when the

apartment was used as a drug distribution outlet. The proffer

was unaccompanied by testimony from the landlord, from Tower

Management, from the postal service, or, for that matter, from

any person other than a member of the search party. The lower

court nonetheless admitted the receipt into evidence over

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appellant's timely objection and the prosecutor used it to good

effect.

In this court, as below, appellant assigns error. He

cites both the lack of an appropriate foundation and the hoary

prohibition against hearsay evidence. We examine these

assertions in turn.

A

The logical starting point for consideration of

appellant's first asseveration is Fed. R. Evid. 901(a). The rule

reminds us that documentary exhibits must be authentic and that

"[t]he requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is

what its proponent claims." Fed. R. Evid. 901(a); see also

United States v. Arboleda, 929 F.2d 858, 869 (1st Cir. 1991).

Under the Evidence Rules, authentication can be accomplished

without the direct testimony of either a custodian or a

percipient witness.3 See Fed. R. Evid. 903. Thus, for example,

a document's "[a]ppearance, contents, substance, internal

patterns, or other distinctive characteristics, taken in

conjunction with circumstances," can, in cumulation, provide

3Notwithstanding this possibility, prudent parties will
usually take advantage of direct testimony, especially when it is
readily available. In this case, for example, the government
jeopardized the entire prosecution by not attempting to
authenticate the receipt in better fashion. We should not have
to remind experienced prosecutors that, as Benjamin Franklin
observed more than two centuries ago, for want of a nail the
rider will sometimes be lost.

5

sufficient indicia of reliability to authenticate it. Fed. R.

Evid. 901(b)(4); see also United States v. Newton, 891 F.2d 944,

947 (1st Cir. 1989).

In respect to matters of authentication, the trial

court serves a gatekeeping function. See generally Fed. R. Evid.

104(a) (discussing handling of preliminary questions of

admissibility). If the court discerns enough support in the

record to warrant a reasonable person in determining that the

evidence is what it purports to be, then Rule 901(a) is satisfied

and the weight to be given to the evidence is left to the jury.

See United States v. Ladd, 885 F.2d 954, 956 (1st Cir. 1989);

United States v. Williams, 809 F.2d 75, 89 (1st Cir. 1986), cert.

denied, 481 U.S. 1030 (1987); see also Fed. R. Evid. 104(e).

Because rulings of this stripe involve the exercise of the

district court's sound discretion, we review them only for

mistake of law or abuse of that discretion. See United States v.

McMahon, 938 F.2d 1501, 1508 (1st Cir. 1991); Ladd, 885 F.2d at

956; United States v. Masse, 816 F.2d 805, 813 (1st Cir. 1987);

Williams, 809 F.2d at 89-90.

In this instance, the trial court addressed the issue

of authenticity and concluded that the receipt's contents and the

attendant circumstances warranted a finding of authenticity. We

believe that this determination is supportable. The document was

of a type likely to be saved only by a rent-payer (or, perhaps,

by a landlord). It was found, neatly stored, in a small,

seemingly uninhabited apartment. Although no one was in

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residence, appellant had been in the apartment, on and off, for

at least two weeks prior to the searchers' discovery of the

document, and, importantly, he had been seen there in May, that

is, during the rental period covered by the receipt. To clinch

matters, appellant had been in the apartment on the day of the

earlier sale; he was there at the time of the raid; and he alone

possessed a latchkey. The judge plausibly could infer from those

facts that appellant had somehow acquired a right of occupancy

in, and a degree of dominion over, the apartment.

The physical setting in which the document surfaced is

equally telling. The apartment harbored a large-scale narcotics

operation. Drugs, drug paraphernalia, and tools of the trade

were strewn about in plain view. The circumstances supported an

inference that appellant was part and parcel of the ongoing

activities, see infra Part IV; and, further, that payment in a

hard-to-trace manner, such as payment by money order, was

compatible with the nature of the illicit enterprise.

Lastly, the content of a disputed document may itself

furnish indicia of authenticity. See Newton, 891 F.2d at 947;

see also Fed. R. Evid 901(b)(4). Here, the document's contents

buttress a finding that it is an authentic rent receipt, issued

to Paulino. The document bears appellant's name.4 It lists the

correct apartment number. And, it refers to a time frame within

4Appellant makes much of the fact that his first name was
misspelled. We do not think that this circumstance possesses
decretory significance. It is altogether unsurprising that a
payee would spell a payor's rather unusual name incorrectly in
scribbling a receipt.

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which the drug distribution center was in operation.

Taking the totality of the circumstances into account,

and giving due deference to the wide radius of the trial court's

discretion in such matters, we cannot say that the court erred in

ruling that, at least presumptively, the document is what it

purports to be: a receipt evidencing appellant's payment of rent

with respect to apartment 706.

B

Authenticity and admissibility, though often closely

related, are separate inquiries. The mere fact that a document

is authentic does not necessarily mean that it is admissible in

evidence. See United States v. De Jongh, 937 F.2d 1, 5 n.7 (1st

Cir. 1991). We turn, then, to the question of admissibility.

In overruling appellant's hearsay objection, the

district court did not specifically identify a hearsay exclusion

or exception that removed the barrier to introduction of the

evidence. While this lack of specificity complicates the

appellate chore, it does not require reversal of the lower

court's ruling. If evidence is admissible for the truth of the

matter asserted under some cognizable theory, the district

court's failure to articulate that theory will not prevent an

appellate court from relying upon it. See United States v.

Nivica, 887 F.2d 1110, 1127 (1st Cir. 1989), cert. denied, 494

U.S. 1005 (1990); cf. Polyplastics, Inc. v. Transconex, Inc., 827

F.2d 859, 860-61 (1st Cir. 1987) (explaining that an appellate

court is not wed to the trial court's reasoning, but is free to

8

affirm a judgment on any independently sufficient ground made

manifest in the record).

In the present situation, we believe the receipt can be

classified as an adoptive admission, and, therefore, that it

eludes the hearsay bar. This analysis depends, of course, on

Fed. R. Evid. 801(d)(2)(B), which instructs courts that when the

evidence shows a party to have "manifested an adoption or belief

in [the] truth" of a statement made by another, the statement

loses its hearsay character and becomes admissible in evidence if

offered against the adopting party. In applying this doctrine,

courts frequently have construed possession of a written

statement as an adoption of what its contents reveal. See, e.g.,

United States v. Ospina, 739 F.2d 448, 451 (9th Cir.) (involving

a receipt for a hotel room), cert. denied, 469 U.S. 887 (1984)

and 471 U.S. 1126 (1985); United States v. Marino, 658 F.2d 1120,

1124-25 (6th Cir. 1981) (involving possession of airline

tickets).

We think that the correct approach, exemplified by

Ospina, is that "possession plus" can evidence adoption. Put

another way, so long as the surrounding circumstances tie the

possessor and the document together in some meaningful way, the

possessor may be found to have adopted the writing and embraced

its contents. Over and above possession, the tie is very strong

here: appellant held the only known key to the apartment; he had

frequented the premises; the saved document bore his name; and he

was, at the very least, privy to the criminal enterprise.

9

Consequently, the record is sufficient to permit a finding that

appellant possessed and adopted, the receipt.

We need not wax longiloquent. The court of appeals

reviews a trial judge's admission of evidence over a hearsay

objection only for abuse of discretion. See DCPB, Inc. v. City

of Lebanon, 957 F.2d 913, 918 (1st Cir. 1992); United States v.

Abreu, 952 F.2d 1458, 1467 (1st Cir.), cert. denied, 112 S. Ct.

1695 (1992). We are satisfied that, in this instance, Fed. R.

Evid. 801(d)(2)(B) authorized the admission of the receipt as

non-hearsay evidence against the appellant. The district court,

therefore, did not outstrip the bounds of its discretion.

IV

Appellant's final assignment of error questions the

sufficiency of the evidence. Sufficiency challenges travel a

well defined course in criminal cases. Following a guilty

verdict, a reviewing court must scrutinize the record, drawing

all reasonable inferences in favor of the verdict, to ascertain

if a rational jury could have found that the government proved

each element of the crime beyond a reasonable doubt. See United

States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993); United

States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied,

113 S. Ct. 1005 (1993). To sustain a conviction, a reviewing

court need not conclude that only a guilty verdict could

appropriately be reached; it is enough that the jury's

determination draws its essence from a plausible reading of the

record. See Echeverri, 982 F.2d at 677; Ortiz, 966 F.2d at 711.

10

Using these guideposts, the quantum of evidence adduced here,

though largely circumstantial, is adequate to the task.5

Appellant's sufficiency challenge is a weak point,

easily dispatched. For discussion purposes, however, it must be

bifurcated to permit separate analysis of (a) the two drug

trafficking counts, and (b) the firearms count.

A

Appellant asserts that sheer happenstance placed him in

harm's way and questions whether there was enough evidence to

sustain a finding that he possessed cocaine and heroin, intending

to distribute them, as charged in counts one and two,

respectively. To convict on these charges, the government had

the burden of proving beyond a reasonable doubt that Paulino

knowingly and intentionally possessed the drugs, and did so with

intent to distribute them. See United States v. Barnes, 890

F.2d 545, 549 (1st Cir. 1989), cert. denied, 494 U.S. 1019

(1990); see also 21 U.S.C. 841(a)(1) & (b)(1)(C). Appellant

suggests that a necessary ingredient guilty knowledge is

lacking here. To bolster this suggestion, he labors to convince

us that the evidence shows no more than his mere presence at the

apartment where the drugs were situated. He argues, therefore,

that the district court erred in denying his motion for judgment

of acquittal on both drug trafficking counts. We are not

5In a criminal case, the government can satisfy its burden
of proof by either direct or circumstantial evidence, or by a
combination of both. See Echeverri, 982 F.2d at 677; United

States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.), cert.

denied, 492 U.S. 910 (1989).

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persuaded.

This court has recognized the difference between "mere

presence" and "culpable presence" in the context of drug

trafficking activities. See United States v. Sepulveda, F.3d

, (1st Cir. 1993) [No. 92-1362, slip op. at 8] ("While

mere presence is not sufficient to ground criminal charges, a

defendant's presence at the point of a drug sale, taken in the

light of attendant circumstances, can constitute strong evidence

of complicity."); Ortiz, 966 F.2d at 712 (holding that, while

mere presence does not establish guilt, presence can establish

guilt under circumstances where it implies participation). Thus,

a reviewing court faced with a "mere presence" claim must

evaluate the attendant circumstances in order to determine the

quality of a particular defendant's presence at a location where

drugs are found. See Echeverri, 982 F.2d at 678.

In Ortiz, we concluded that evidence of a defendant's

participation in a dialogue between a buyer and a seller of

illicit drugs was enough to warrant a finding of more than mere

presence. See Ortiz, 966 F.2d at 712-13. We mentioned that

"[j]urors can be assumed to know that criminals . . . rarely seek

to perpetrate felonies before larger-than-necessary audiences."

Id. at 712 (collecting cases). In Echeverri a case that evokes

comparisons with the case at bar we also held that culpable

presence could be found. See Echeverri, 982 F.2d at 678. Our

ruling there revolved around the defendant's proximity to drugs

and drug paraphernalia which were strewn about an apartment. See

12

id. The facts of this case are roughly analogous to, but

somewhat more inculpatory than, the facts in Echeverri.

Specifically, based on the evidence of record here, a rational

factfinder plausibly could conclude that appellant had dominion

over apartment 706; that he actually or constructively possessed

the contraband located therein; that he intended the drugs for

distribution;6 that his participation in the enterprise was

knowing and willful; and that, accordingly, his presence during

the controlled buy, and at the time of the raid, was culpable

rather than innocent. See, e.g., Echeverri, 982 F.2d at 678;

United States v. Batista-Polanco, 927 F.2d 14, 18 (1st Cir.

1991); United States v. Glover, 814 F.2d 15, 16-17 (1st Cir.

1987).

B

The final aspect of appellant's sufficiency challenge

relates to count three. This attack which boils down to a

claim that the evidence fails to show he "used" or "carried" the

firearm in connection with drug trafficking activities ignores

settled law in this circuit and elsewhere. Under the statute of

conviction, 18 U.S.C. 924(c), the emphasis is on a firearm's

availability for use, regardless of whether it is actually used.

Thus, in United States v. Hadfield, 918 F.2d 987 (1st Cir. 1990),

cert. denied, 111 S. Ct. 2062 (1991), a section 924(c)(1) case,

6The total cocaine seized, not including the speedball,
aggregated 159.13 grams. Expert testimony established that the
drugs were for distribution rather than personal use, and that
their value exceeded $6,000. On appeal, Paulino has not
challenged either the admission or the import of this testimony.

13

we made it pellucid that, where a drug trafficker is not carrying

a gun on his person but has one nearby, the court's critical

concern should not be whether the weapon was "instantly

available" or "exclusively dedicated to the narcotics trade," but

whether it was "available for use" in connection with the

narcotics trade. Id. at 998; see also Smith v. United States,

113 S. Ct. 2050, 2059 (1993) (explaining that a weapon meets the

statutory test if its presence, rather than being accidental or

coincidental, facilitates, or has the potential of facilitating,

the drug trafficking offense). We think the case at hand is

largely governed by Hadfield.

Paulino was apprehended in an outwardly uninhabited

apartment that served or so the jury supportably could have

found as a place from which drugs were being sold. Drugs, drug

paraphernalia, and a loaded revolver were located in close

proximity to one another. Paulino had an apparent possessory

interest in, and a significant degree of control over, the

premises. On these facts, a reasonable factfinder certainly

could find the requisite facilitative nexus, that is, that the

gun was kept in the apartment to be "available for use" during

and in relation to the ongoing drug peddling. See Abreu, 952

F.2d at 1466 ("Even though a weapon is never fired, if it is kept

nearby by a drug dealer, it is 'used' so as to satisfy the

statutory requirement."); United States v. Castro-Lara, 970 F.2d

976, 983 (1st Cir. 1992) (collecting cases), cert. denied, 113 S.

Ct. 2935 (1993). And the jury also could conclude, without

14

discernible difficulty, that appellant knew of the gun, the drug

trafficking, and the obvious relationship between the two. See

generally Echeverri, 982 F.2d at 679 (reaffirming that "criminal

juries are not expected to ignore what is perfectly obvious").

No more is exigible.

V

We need go no further. Finding no error in the

admission of the rent receipt and no shortfall in the

government's overall proof of guilt, we remit appellant to his

just deserts.

Affirmed.

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