United States v. Ford

May 2, 1994
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1867

UNITED STATES,
Appellee,

v.

JEFFREY FORD,
Defendant, Appellant.

ERRATA SHEET

Please make the following correction in the opinion in
the above case released on April 28, 1994:

Page 2, line 1: Insert the following before the first
sentence:

PETTINE, Senior District Judge.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1867

UNITED STATES,

Appellee,

v.

JEFFREY FORD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge]

Before

Boudin, Circuit Judge,

Coffin, Senior Circuit Judge,

and Pettine,* Senior District Judge.

David P. Hoose, by Appointment of the Court, with whom Katz,

Sasson and Hoose was on brief for appellant.

Kevin O'Regan, Assistant United States Attorney, with whom Donald

K. Stern, United States Attorney, was on brief for appellee.

April 28, 1994

*Of the District of Rhode Island, sitting by designation.

PETTINE, Senior District Judge. Defendant Dr.

Jeffrey M. Ford was charged under a four count indictment

for violations of the drug laws. He was convicted on all

counts and sentenced to fifty-one months imprisonment and

three years of supervised release. Dr. Ford raises three

issues on appeal: the district court erred in denying a

motion to suppress evidence seized during a warrantless

search; the district court erred in admitting into evidence

a book entitled Secrets of Methamphetamine Manufacture; and

there is insufficient evidence to support a conviction for

possession of cocaine with intent to distribute. For the

reasons stated below, we reject Dr. Ford's arguments and

affirm the district court.

I.

The relevant facts are as follows. In March 1991,

the Postmaster of the South Hadley Post Office in

Massachusetts notified Postal Inspector Terrence Loftus that

on several occasions Dr. Ford had purchased postal money

orders and sent them via Express Mail to an address in

Arizona. After a few days, Ford would receive an Express

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Mail package from a person named R. Cunningham with a

fictitious California return address. Inspector Loftus

asked to be informed of the next such occurrence.

On July 22, 1991, the postmaster informed

Inspector Loftus that Dr. Ford purchased additional money

orders and sent them to the address in Arizona. On July 23,

1991, an Express Mail package arrived for Dr. Ford from R.

Cunningham at the Los Angeles address. Inspector Loftus

removed the package from the mail stream and had it examined

by a trained narcotics detection dog. The dog alerted to

the package, indicating the presence of narcotics. On July

24, 1991, Inspector Loftus obtained a search warrant to

inspect the contents of the Express Mail package. The

contents field tested positive for methamphetamine.

Subsequent laboratory tests disclosed that the substance was

27.59 grams of 80% pure cocaine.

The package was returned to the mail stream to be

delivered to Dr. Ford. Postal Inspectors and the South

Hadley police department then placed the post office and Dr.

Ford's home under surveillance. In the meantime, Dr. Ford

arrived, picked up the package and then returned home.

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After he entered his house with the package, Sergeant David

Strychars and Postal Inspector Fred Gray, who were

surveilling the premises, knocked on Dr. Ford's door

announcing that they were from the water department and

convinced Dr. Ford to exit his home.1 As the district

court found, "[o]nce defendant exited the premises, assisted

by Strychars' hand on his shoulder, the law enforcement

officers informed him that he was under arrest and

handcuffed him." Aplt.'s App. at 16.

The testimony of law enforcement
officers and of the defendant diverge
significantly as to what happened next.
According to the law enforcement
officers, who testified consistently
with one another, Ford was first given
his Miranda rights. Loftus then asked

Ford whether Ford would give consent to
a search of his house, informing Ford
that the search would take place in any
case after the officers obtained a
warrant. Ford refused permission to
search the premises.

Id. at 17 (citations omitted). Subsequently, Inspector

Loftus explained to Dr. Ford that he would be brought to

Springfield to be arraigned before a federal Magistrate

Judge ("Magistrate") and that bail would be set. Dr. Ford

1 Dr. Ford contends that Sergeant Strychars and Inspector
Gray immediately announced themselves as police officers.
This discrepancy is immaterial for the purposes of this
appeal.

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then made several inquiries: he inquired about his dog (who

was in the house); asked if he could change his clothes;

whether he needed to bring money with him; and if he could

go inside and use the bathroom. Dr. Ford was told that he

could exchange his clothes and use the bathroom but that he

could not go back in the house by himself. Inspector Loftus

told Dr. Ford that the officers "would have to satisfy

themselves that there was no one else on the premises who

might pose a threat to them." Aplt.'s App. at 18.

Dr. Ford, Inspector Loftus and three other law

enforcement personnel then proceeded to enter the house with

the defendant, who posed no objection. Beginning with the

ground floor, the officers performed a sweep of each floor

to ensure that no one else was present. On the second

floor, the officers noticed the package Dr. Ford had

received that day. "On an unmade bed in a bedroom on the

middle level of Dr. Ford's three level home, the agents

found the package of cocaine, which had been opened, a plate

with a sifter and knife and a Penthouse magazine." Aplt.'s

Br. at 5-6. The group proceeded to the third level so that

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Dr. Ford could change his clothes.2 When the agents

reached the top floor, several doors were closed. Inspector

Loftus told Dr. Ford that the agents were going to open the

doors to make sure that no one else was present. Dr. Ford

then responded "I wish you wouldn't." Tr., vol. III at 55.

The agents opened the doors and were able to see marijuana

growing in two of the rooms. Dr. Ford asked how much money

he should bring for bail and indicated he had substantial

amounts of cash on hand. Inspector Loftus inquired as to

the amount and Dr. Ford produced $13,000 from a wicker

basket. The agents confiscated the cash.

Dr. Ford contends that it was the agents, not

himself, who initiated the re-entry into the house; that the

conversations concerning bail, his dog and changing clothes

took place inside the house and that Inspector Loftus

prompted the discussion about the money. "Loftus . . .

stated that if Ford showed him where the money was

immediately, Loftus would count the money in front of Ford

and give him a receipt for the full amount. The

implication, according to Ford, was that the money would not

2 When Dr. Ford was arrested, he was wearing a tee shirt
and shorts, and was barefoot.

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be accounted for properly if he did not turn it over before

he was taken to Springfield." Aplt.'s App. at 21. We note

that the district court, when confronted with contradictory

versions of the relevant facts, accepted the version set

forth by the government witnesses. "[T]he Court either

rejects defendant's conflicting account of the events for

lack of credibility, or else concludes, in specific

instances, that certain discrepancies are immaterial for

purposes of defendant's suppression motions." Aplt.'s App.

at 21.

Dr. Ford was brought to the Magistrate in

Springfield and Inspector Loftus obtained a search warrant

for the house. When the search warrant was executed the

agents seized the marijuana plants, packaged marijuana, a

scale, a pistol, items used to cultivate marijuana and

several postal receipts for Express Mail packages from Dr.

Ford to his contact in Arizona.

II.

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Prior to trial, Dr. Ford filed a motion to

suppress the evidence uncovered during the search of his

house: the marijuana plants, packaged marijuana, a scale, a

pistol and various items used to grow and care for the

marijuana. He contends that the search was unlawful. The

government argued below that the search was a lawful

"protective sweep" of the house. After a hearing on the

motion, the district court did not decide whether the search

was a lawful protective sweep. Instead, the court

determined that the evidence was admissible under an

exception to the warrant requirement known as the

"inevitable discovery" rule.

Because the agents in the first instance entered

Dr. Ford's home without a warrant, we must determine whether

the evidence seized must be suppressed or whether the

evidence is admissible under an exception to the warrant

requirement. We feel compelled to note that had the agents

obtained a warrant, this exercise would be unnecessary. As

this is not the case, we must turn to the task at hand.

The inevitable discovery rule, adopted by the

Supreme Court in Nix v. Williams, 467 U.S. 431 (1984),

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provides for the admissibility of evidence discovered during

a warrantless search if the evidence would have been

inevitably discovered through independent legal means. "If

the prosecution can establish by a preponderance of the

evidence that the information ultimately or inevitably would

have been discovered by lawful means . . . then . . . the

evidence should be received." Id. at 444. The prosecution

may not rely on speculation but rather must meet this burden

of proof based on "demonstrated historical facts capable of

ready verification or impeachment." Id. at 444 n.5.

In United States v. Silvestri, 787 F.2d 736 (1st

Cir. 1986), cert. denied, 487 U.S. 1233 (1988), this court

established the analytical framework for the inevitable

discovery rule. In Silvestri, police officers unlawfully

searched a residence and discovered large quantities of

drugs in the garage. Two other officers, who were not

involved in the unlawful search, prepared the search warrant

affidavit and application without any knowledge of the

illegal search. Upon issuance of the warrant, the premises

were lawfully searched and the evidence seized. The

defendant moved to suppress the evidence. The district

court denied the motion, holding the evidence to be

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admissible under the inevitable discovery rule. On appeal,

this court affirmed the district court after considering

three questions. "[A]re the legal means truly independent;

are both the use of the legal means and the discovery by

that means truly inevitable; and does the application of the

inevitable discovery exception either provide an incentive

for police misconduct or significantly weaken fourth

amendment protection?" Id. at 744.

In Silvestri, the defendant argued that, in order

to be truly independent, the legal means (i.e. the search

warrant) must be underway at the time of the discovery; in

other words, the warrant process must be ongoing at the time

of the alleged police misconduct or illegal search. The

defendant cited for support a Fifth Circuit decision which

held that "the legal process of discovery be ongoing at the

time of the illegal discovery in order for the inevitable

discovery exception to be applicable." Id. at 742

(discussing United States v. Cherry, 759 F.2d 1196 (5th Cir.

1985)). See also United States v. Satterfield, 743 F.2d 827

(11th Cir. 1984), cert. denied, 471 U.S. 1117 (1985)

(adopting similar rule); United States v. Romero, 692 F.2d

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699 (10th Cir. 1982) (same). This court declined to adopt

such a strict approach.

Rather than setting up an inflexable
[sic] "ongoing" test such as the Fifth
Circuit's, we suggest that the analysis
focus on the questions of independence
and inevitability and remain flexible
enough to handle the many different fact
patterns which will be presented. . . .
In cases where a warrant is obtained,
however, the active pursuit requirement
is too rigid. On the other hand, a
requirement that probable cause be
present prior to the illegal search
ensures both independence and
inevitability for the prewarrant search
situation.

Id. at 746. Under this flexible standard, independence and

inevitability remain the cornerstones of the analysis. The

specific facts of each case will determine the requirements

necessary to prove independence and inevitability.

The district court applied the teachings of Nix

and Silvestri and held that the inevitable discovery rule

applied.

[T]he search warrant, the legal means of
search, even if filtered of any
reference to marijuana and the large
sums of money, was wholly independent of
the arguably improper protective sweep,
and the discovery of the physical
evidence at issue was certainly
inevitable. In addition, the Court
concludes that application of the

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inevitable discovery doctrine to the
facts of this case would not
significantly dilute constitutional
protections or provide a carrot for
police misconduct.

Aplt.'s App. at 30.

A. The Decision To Seek A Warrant

Dr. Ford attacks the district court's holdings

under each of the three Silvestri questions. First, he

argues that the search warrant was not sufficiently

independent of the warrantless entry into his home. He

argues that while Silvestri held that the warrant process

did not have to be ongoing, "it is implicit that Silvestri

establishes as at least a minimum requirement, the decision

to seek a warrant [must] be made prior to the time that the

illegal search took place and that the decision in no way be

influenced or accelerated by information gained from the

illegal search." Aplt.'s Br. at 10.3

Before we address Dr. Ford's arguments, we must

bear in mind the appropriate standard of review. "The

3 The government does not dispute Dr. Ford's reading
of Silvestri but rather argues that there is sufficient

evidence showing a decision was made prior to the search.

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standard of review of an appeal from a denial of a motion to

suppress is that the decision will be upheld if any

reasonable view of the evidence supports the trial court's

decision." United States v. McLaughlin, 957 F.2d 12, 16

(1st Cir. 1992). We review de novo any questions of law

which arise in the course of our analysis. United States v.

Yoffe, 775 F.2d 447, 451 (1st Cir. 1985).

We have carefully reviewed Silvestri and find no

language to support Dr. Ford's argument. Indeed, Silvestri

rejected a bright line rule in favor of a flexible analysis.

[In] [t]he situation where a warrant is
obtained after a warrantless search . .
. the requirement of active pursuit
could be viewed as ensuring the
independent inevitability of the police
decision to seek the search warrant,
i.e., to ensure that the evidence turned
up in the illegal search did not
influence this decision. As a
protection of the independence of the
warrant, however, this bright-line rule
goes too far.

Silvestri, 787 F.2d at 745. However, Silvestri did require

"that probable cause be present prior to the illegal search

[to ensure] both independence and inevitability for the

prewarrant search situation." Id. at 746.

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The existence of independent probable cause to

search Dr. Ford's home is undisputed. Dr. Ford concedes

that "it is beyond argument that the agents had probable

cause to search Dr. Ford's residence after he returned with

the package from the Post Office." Aplt.'s Br. at 10. It

is also beyond dispute that the seized evidence would have

been (and was) discovered following the authorized search.

It is inevitable that the existence of probable cause would

find fruition in the issuance of a search warrant. This is

bolstered by the fact that there is evidence in the record,

relied upon by the district court, that a decision to seek a

warrant had been made prior to the warrantless entry.

"Loftus then asked Ford whether Ford would consent to a

search of his house, informing Ford that the search would

take place in any case after the officers obtained a

warrant." Aplt.'s App. at 17. Thus, we believe that a

reasonable view of the evidence supports the district

court's finding that the probable cause supporting the

search warrant was independent of the warrantless search and

that the evidence seized would have been discovered upon the

issuance of a warrant.

B. The Inclusion of Tainted Information

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Dr. Ford argues that the search warrant cannot be

considered independent because the search warrant affidavit

included observations made during the warrantless search of

the home. "The inclusion of tainted evidence in the

affidavit in support of the application for a search warrant

seriously undercuts the true independence of the warrant as

a valid subsequent legal means." Aplt.'s Br. at 16.

According to Dr. Ford, because the warrant contained such

tainted information, it is impossible to know with any

certainty whether the magistrate would have issued the

warrant in the absence of the tainted information. This

uncertainty, Dr. Ford contends, renders the search warrant

suspect and mandates against the application of the

inevitable discovery rule.

For support, Dr. Ford cites Murray v. United

States, 487 U.S. 533 (1988). In Murray, the Supreme Court

considered the "independence" of legal means under another

exception to the warrant requirement -- the independent

source doctrine.

The ultimate question, therefore, is
whether the search pursuant to warrant
was in fact a genuinely independent
source of the information and tangible
evidence at issue here. This would not
have been the case . . . if information

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obtained during that entry was presented
to the Magistrate and affected his
decision to issue the warrant.

Id. at 542. Contrary to Dr. Ford's contention, the Court

did leave some room for speculation when making this

determination. "To determine whether the warrant was

independent of the illegal entry, one must ask whether it

would have been sought even if what actually happened had

not occurred." Id. at 542 n.3. Dr. Ford also cites Nix for

the proposition that speculation may not play any role in a

determination under the inevitable discovery rule.

"[I]nevitable discovery involves no speculative elements but

focuses on demonstrated historical facts capable of ready

verification or impeachment and does not require a departure

from the usual burden of proof at suppression hearings."

Nix, 467 U.S. at 444 n.5.

When reviewing affidavits containing "tainted"

evidence, courts regularly set aside the tainted information

and then determine if "there remains sufficient content in

the warrant affidavit to support a finding of probable

cause." Franks v. Delaware, 438 U.S. 154, 172 (1978). This

court has applied the same analysis. "[The illegally

obtained information] should be set to one side (as the

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district court did) and the remaining content of the

affidavit examined to determine whether there was probable

cause to search, apart from the tainted averments." United

States v. Veillette, 778 F.2d 899, 904 (1st Cir. 1985),

cert. denied, 476 U.S. 1115 (1986).

Here, the district court performed precisely this

analysis.

[A] valid warrant to search Ford's home
would have issued despite the
information obtained in the course of
the protective sweep . . . . If one
were to strike from the supporting
affidavit any and all references other
than those to the express mail package
in question and the events leading to
its arrival in defendant's dwelling, the
search warrant would have issued based
on probable cause.

Aplt.'s App. at 29. This finding cannot be seriously

doubted. We set forth a portion of the affidavit to

underscore this holding.

2. This morning I received a search
warrant for an Express Mail package
suspected of containing controlled
substances. . . .

3. The Express Mail package was addressed to Dr.
Jeff Ford, 90 Amherst Road, So. Hadley, MA 01075.

4. Upon executing the search warrant I
found approximately 30 grams of a
substance that field tested positive for
methamphetamine, a Schedule III

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controlled substance.

.
. .

6. At approximately 2:15 p.m. Ford
picked up the Express Mail package and
drove to his home at 90 Amherst Road,
South Hadley, Massachusetts (the
"Premises").

7. At approximately 2:45 p.m. Ford was
arrested by another U.S. Postal
Inspector at the Premises.

Rec., doc. 29, ex. B at 1. It requires no speculation to

determine that the excised affidavit supports a finding of

probable cause.4 We therefore reject Dr. Ford's second

attack on the independence of the warrant.5

4 Dr. Ford argues that Franks and Veillette are

inapplicable in an inevitable discovery context. Veillette

was decided under the independent source doctrine which,
according to Dr. Ford, lacks the requirement of
inevitability. We note once again that the Silvestri

analysis is a flexible one, turning on the particular facts
of each case. In closer cases, the requirement of
inevitability may mandate that the Magistrate not be
presented with any of the tainted information. However, in
such a clear case as this, we do not believe that the
inevitability of the issuance of the warrant can be
seriously questioned.

5 Dr. Ford also argues that the warrant should not
be considered independent because the agents who were
involved in the warrantless search were also the agents who
prepared the search warrant. Many courts have considered
the level of participation by agents not involved in the
original search. See Silvestri, 787 F.2d at 741-742; United

States v. Merriweather, 777 F.2d 503 (9th Cir. 1985), cert.

denied 475 U.S. 1098 (1986); United States v. Hidalgo, 747

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C. Incentive for Police Misconduct

Finally, Dr. Ford argues that application of the

inevitable discovery rule in this case would weaken Fourth

Amendment protection and provide an incentive for police

misconduct. He points out that the agents did not attempt

to secure either a search or an arrest warrant prior to Dr.

Ford's receipt of the package. Further, because the agents

used a ruse (the water department story) to lure Dr. Ford

from his home, "it was surely not a surprise for the

defendant to have needs related to the inside of the home."

Aplt.'s Br. at 26. "The government should not be permitted

to be indifferent to the warrant requirement for twenty-four

hours and rely on a search warrant obtained after agents

have engaged in an entirely predictable and manufactured

'protective sweep,' as proof of inevitability." Id. at 27.

F. Supp. 818, 833 (D. Mass. 1990); Hunnewell v. United

States, 738 F. Supp. 582, 584 (D. Maine), aff'd without

opinion, 923 F.2d 839 (1st Cir. 1990). These cases

demonstrate that the level of participation is one of the

many factors to be considered when determining the
independence of the warrant. As we have previously stated,
the independence of the warrant in the present case is
firmly established. The overlap between the agents
searching the premises prior to the warrant and the agents
preparing the warrant does not alter our holding.

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Although we agree with Dr. Ford that a warrant

would have avoided this problem, we cannot agree that

applying the inevitable discovery doctrine in this situation

would provide an incentive for misconduct. We have found

only one case in which a court, after engaging in the

Silvestri analysis, refused to apply the inevitable

discovery rule due to the incentive for police misconduct.

United States v. Rullo, 748 F. Supp. 36 (D. Mass. 1990). In

Rullo, the police used excessive physical force to compel a

suspect to disclose the location of a gun. The court held

that, although the gun would have been inevitability

discovered through a separate search, the incentive for

police misconduct was so great that the inevitable discovery

rule could not apply. The present case obviously does not

involve such blatant police misconduct.

In fact, as the district court stated, "it is

dubious whether the police involved in this case behaved

improperly at all." Aplt.'s App. at 30. A police officer

has the right to remain with a suspect at all times.

Washington v. Chrisman, 455 U.S. 1, 6-7 (1982). In

Chrisman, a student was detained outside of his dormitory.

The student requested that he be allowed to return to his

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room to obtain identification. He was told that the police

officer would accompany him if he should return to his room.

The student consented. While standing in the doorway of the

room, the police officer saw, in plain view, marijuana seeds

and a pipe. The Court held that the police officer

"properly accompanied [the student] to his room, and that

his presence in the room was lawful." Id. at 7. See also

United States v. Hidalgo, 747 F. Supp. 818 (D. Mass. 1990)

(holding that there was no incentive for police misconduct

when the search of the premises took place out of a concern

for the safety of the police officers involved).

In light of these decisions, we do not believe

that applying the inevitable discovery doctrine in the

present case provides an incentive for police misconduct.

The police had the right to accompany Dr. Ford when he re-

entered the house. Further, the district court found that

the protective sweep was motivated by a concern of the

police officers to protect themselves. Aplt.'s App. at 18-

19. We therefore hold that a reasonable view of the

evidence supports the district court's application of the

inevitable discovery rule. The denial of the motion to

suppress is AFFIRMED.

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III.

Among the items discovered during the search of

Dr. Ford's house was a book entitled Secrets of

Methamphetamine Manufacture. Prior to trial, Dr. Ford filed

a motion in limine requesting the court to exclude the book

from evidence. The motion was denied after a brief sidebar

conference. The government offered the book into evidence.

Dr. Ford renewed his objections, arguing that the book was

irrelevant and prejudicial.

Rule 401 of the Federal Rules of Evidence defines

relevant evidence as "evidence having any tendency to make

the existence of any fact that is of consequence to the

determination of the action more probable or less probable

than would be without the evidence." Fed. R. Evid. 401.

Dr. Ford contends that the book does not meet the this

definition. "The title of the book makes this perfectly

clear. This trial had nothing whatsoever to do with

methamphetamine, let alone its manufacture." Aplt.'s Br. at

30. Further, Dr. Ford argues that any inferences which

could be drawn from the book would be solely related to the

manufacture of methamphetamine and "would still have no

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tendency to prove that Dr. Ford had an intent to distribute

the cocaine and marijuana found in his possession, which was

the sole contested issue at trial." Id.

We review evidentiary decisions under the abuse of

discretion standard. United States v. Nason, 9 F.3d 155,

162 (1st Cir. 1993), cert. denied, 62 U.S.L.W. 3624 (1994).

"The threshold for relevance is very low under [Rule 401]."

Id. The district court found that the book was a tool of

the drug trafficking trade and therefore should be admitted

into evidence. Tr., vol. III at 5. We cannot say that the

district court abused its discretion in admitting the book.

As aptly stated by the government, the book "describes how

to create a sophisticated illicit drug operation. . . .

Viewed in conjunction with the High Times Magazine which

Ford testified he read to develop his sophisticated

marijuana growing operation, this evidence tended to show

that Ford was a drug dealer as opposed to someone who merely

possessed drugs for his personal use." Aplee.'s Br. at 28.

Such evidence meets the "any tendency" test. We will not

disturb the Rule 401 ruling of the district court.

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After having determined that the book is relevant,

we must now consider whether the admission of the book is

overly prejudicial under Rule 403. Rule 403 states that

"[a]lthough relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the

jury . . . " Fed. R. Evid. 403. Dr. Ford contends that the

book is overly prejudicial.

Since the book had nothing to do with
cocaine, marijuana or their
distribution, it surely caused the jury
to speculate about why it was an exhibit
in the case. The risk . . . is that the
jury would infer without other evidence
that possession of the book indicated an
interest in manufacturing drugs in
general and that the defendant's
possession of cocaine and marijuana in
question were somehow part of this
broader plan.

Aplt.'s Br. at 31. Dr. Ford argues that the evidence

presented a close case and that the book, "which suggested a

larger and more sinister involvement with narcotics than was

warranted by the evidence" tipped the scales against the

defendant. Id. at 33.

The government notes that after the book was admitted into

evidence, "it was never mentioned again by a witness or the

government as significant to the main issue in the case."

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Aplee.'s Br. at 31. Indeed, the government did not discuss

the relevance of the book in its closing argument.

Rule 403 "admissions of evidence are within the

sound discretion of the trial court. We will not disturb

such rulings absent an abuse of discretion. We will,

nevertheless, reverse a lower court's determination in

'exceptional circumstances.'" United States v. Rodriquez-

Cortes, 949 F.2d 532, 540 (1st Cir. 1991). See also United

States v. Green, 887 F.2d 25, 27 (1st Cir. 1989); United

States v. Griffin, 818 F.2d 97, 101-102 (1st Cir.), cert.

denied, 484 U.S. 844 (1987). While Dr. Ford argues that

exceptional circumstances are present in this case, he fails

to articulate what those circumstances are beyond the notion

that the admission of the book tipped the scales. However,

Rule 403 does not act to exclude any evidence which may be

prejudicial but rather evidence in which the prejudice

"substantially outweighs" the probative value. We cannot

say that the book, a tool of the drug trafficking trade as

the trial judge found, was so lacking in probative value as

to be excluded under Rule 403 nor that exceptional

circumstances exist which require the reversal of the

district court. Thus, the district court's admission of the

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book entitled Secrets of Methamphetamine Manufacture is

AFFIRMED.

IV.

Dr. Ford's final issue on appeal concerns count

two of the indictment alleging possession of cocaine with

intent to distribute. He contends that there is

insufficient evidence to support the conviction for this

count. "We review the evidence in the light most favorable

to the government, including all legitimate inferences to be

drawn therefrom, to determine whether a rational trier of

fact could have found defendant guilty beyond a reasonable

doubt." United States v. Montoya, 917 F.2d 680, 681 (1st

Cir. 1990). "'The prosecution . . . need not exclude every

reasonable hypothesis of innocence so long as the total

evidence permits a conclusion of guilt beyond a reasonable

doubt.'" United States v. Almonte, 952 F.2d 20, 24 (1st

Cir. 1991) (citations omitted), cert. denied, 112 S. Ct.

1776 (1992).

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The cocaine seized had a net weight of 27.59

grams, or just under one ounce. In United States v. Latham,

874 F.2d 852, 863 (1st Cir. 1989), this court stated "that

an inference of intent to distribute is not warranted from

the possession of one ounce of cocaine." Dr. Ford contends

that in light of Latham, the government must look to other

evidence to prove that the cocaine was for distribution

rather than for personal use. Dr. Ford's reading of Latham

is immaterial since the government has offered other

evidence of an intent to distribute.

Dr. Ford points to numerous factors which support

his contention that the cocaine was for personal use.

When the agents entered Dr. Ford's home,
only moments after they had observed him
enter with the package of cocaine, they
found that the package had been opened
and placed on a bed with a plate, a
grinder and a Penthouse magazine. Agent
Loftus acknowledged that the grinder is
an instrument used to convert cocaine
that is often granular when purchased,
into a fine powder more suitable for
inhaling. A straw and a mirror, two
other objects commonly associated with
the consumption of cocaine was found.
In addition, small vials designed for
consumption of cocaine and containing
cocaine residue were recovered in the
house. Certainly the circumstances
under which the cocaine was recovered,
raise a strong suggestion that at least

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some of the cocaine was about to be
consumed by Dr. Ford.

Aplt.'s Br. at 35. Dr. Ford also argues that items commonly

used for narcotics distribution were absent from his home.

For example, the search did not uncover any substance used

to dilute cocaine, small plastic bags, vials or three to

four inch squares of magazine paper. Further, no ledgers,

receipts or notebooks indicating narcotics transactions were

recovered. Dr. Ford argues that there are only three items

found in his home which arguably intimate an intent to

distribute: the gun, the scale and the $13,000 in cash. The

government argues that these three items, together with the

weight and purity of the cocaine, provide sufficient

evidence to support a conviction.6

This court has held that scales, firearms and

large amounts of cash are each probative of the intent to

distribute narcotics. "[W]e have long 'recognized that in

drug trafficking firearms have become "tools of the trade"

and thus are probative of the existence of a drug

6 Sergeant Kerle testified that an ounce of 80
percent pure cocaine could have been diluted and divided up
into 112 grams with a street value of $11,200. Tr., vol. I
at 36-37. He also testified as an expert that "this amount
of cocaine in that purity is consistent with [an] intent to
distribute it." Id. at 39.

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conspiracy.'" United States v. Walters, 904 F.2d 765, 796

(1st Cir. 1990) (citing United States v. Green, 887 F.2d 25,

27 (1st Cir. 1989)). Dr. Ford does not dispute this but

rather argues that the firearm has no tendency to prove that

Dr. Ford was intending to distribute the cocaine. According

to Dr. Ford, the weapon was found in a bedroom closet on a

different floor from which the cocaine was found. Further,

Dr. Ford was not armed when he picked up the package nor

when the agents approached his house.

There is other evidence in the record which

supports the government's contention that the gun was used

as a tool of the trade. The gun, a .357 Magnum, was kept in

the closet of the bedroom where Dr. Ford slept and on the

same floor as the $13,000 in cash and the marijuana. Tr.,

vol. III at 88. Two loaded "speed loaders" were also

located in the closet. Id. Finally, Dr. Ford

acknowledged that one of the reasons he had the gun was for

"personal protection" and that due to the marijuana and

cocaine in the house he could not call the police if someone

sought to break into his home. Tr., vol. II at 18-19.

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The government argues that the scale is further

evidence of the intent to distribute cocaine. Dr. Ford

conceded that he used the scale to weigh drugs. Tr., vol.

IV at 116. This court has acknowledged that a scale is one

of the tools of the trade for drug dealers, Montoya, 917

F.2d at 682, and therefore may be considered as evidence

here.

Finally, the government argues that Dr. Ford could

not persuasively account for the $13,000 in cash. "Evidence

that the defendant possessed or controlled substantial sums

of money from unexplained sources is relevant in a

prosecution for drug trafficking." United States v.

Figueroa, 976 F.2d 1446, 1454 (1st Cir. 1992), cert. denied,

113 S. Ct. 1346 (1993). See also United States v. Newton,

891 F.2d 944, 948 (1st Cir. 1989); United States v. Ariza-

Ibarra, 605 F.2d 1216, 1224-25 (1st Cir. 1979), cert.

denied, 454 U.S. 895 (1981). Dr. Ford contends that he

sufficiently explained the source of a substantial portion

of the cash. Dr. Ford's sister testified that she loaned

him $7500. Tr., vol. IV at 49. Dr. Ford testified that he

borrowed $7500 from his sister and $7500 from his parents.

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Id. at 84. Dr. Ford also testified that he kept his assets

in cash rather than a bank account because "[he] left a lot

of institutions holding the bag financially. People were

looking for [him.] . . . So there were people that wanted

money from [him.]" Id. at 89.

The government notes that Dr. Ford testified that

he stopped making payments for his rent, his car lease and

his orthodontic practice yet he had $13,000 in cash on hand.

Further, "when faced with a listing of his known expenses

for the months prior to his arrest, Ford was unable to

reconcile those expenses with the amount of cash he had on

hand." Aplee.'s Br. at 36.

Each of these three pieces of evidence must be

considered in the light most favorable to the government.

Although Dr. Ford may have provided reasons for the

existence of the scale, the gun and the cash, the finder of

fact is free to reject his explanation. It is not the

province of this court to reweigh conflicting testimony or

to make credibility determinations. Based on our review of

the record, we hold that the government has presented

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sufficient evidence to support a conviction under count two.

The decision of the district court is AFFIRMED.

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