UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-1832
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERTO VALLE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
William J. Murphy for appellant.
Margaret E. Curran, Assistant United States Attorney, with
whom Sheldon Whitehouse, United States Attorney, and Kenneth P.
Madden, Assistant United States Attorney, were on brief, for
appellee.
December 26, 1995
SELYA, Circuit Judge. Defendant-appellant Roberto
SELYA, Circuit Judge.
Valle challenges his convictions for possession of cocaine with
intent to distribute, see 21 U.S.C. 841(a)(1) & (b)(1)(B), and
use of a firearm during and in relation to a drug trafficking
crime, see 18 U.S.C. 924(c). We affirm the drug trafficking
conviction but reverse the firearms conviction.
I. BACKGROUND
I. BACKGROUND
On April 17, 1991, nine law enforcement officers
converged upon an apartment located at 82 Glenham St.,
Providence, Rhode Island, to execute a search warrant. Inside,
they found three individuals: the appellant, his grandmother
(who leased the apartment), and Rafael Tavarez. The police
immediately segregated the trio in different chambers. They
placed the appellant in the kitchen under the watchful eye of
Detective Michael Panzarella. The search team then started its
treasure hunt.
In short order, a narcotics detective, Guy DeAngelis,
discovered a plastic bag secreted between the cushions of the
living room couch. Inside the bag were forty-seven cut straws
with the ends burned shut. Subsequent tests confirmed that each
straw contained cocaine base, known colloquially as "crack."
Another gendarme, Robert Clements, spied two firearms under a day
bed in the dining room. A third officer, John Corley, rummaged
through the rear hall closet and found a plastic bag, containing
an additional 101 crack-filled straws, in the pocket of a green
jacket.
2
Promptly upon the discovery of the contraband,
Panzarella read the appellant his rights. See Miranda v.
Arizona, 384 U.S. 436, 479 (1966). Meanwhile, the search
continued. DeAngelis proceeded to examine the contents of the
rear hall closet, poring over items of apparel one by one and
dropping each piece on the floor when he had finished his
inspection of it. The appellant (who enjoyed a clear view of the
closet from the kitchen) harangued DeAngelis not to throw his
clothing on the floor as he might want to wear it upon his
release. When DeAngelis asked the appellant whether he owned the
clothes, the appellant responded affirmatively. In reply to a
specific inquiry, the appellant identified the crack-laden green
jacket as belonging to him. Later on, DeAngelis descended into
the basement an area to which all occupants of the building
enjoyed common access and came across a triple-beam scale of a
type commonly associated with the packaging of illegal drugs for
retail distribution.
Near the end of the search, Corley asked the appellant
where he slept. The appellant pointed toward the day bed and
said "there." To put the ribbon on the package, Sergeant Stephen
Bathgate (the officer in charge of the operation) elicited
incriminating comments from the appellant in the course of making
the formal arrest.
The police transported the appellant to the station
house. After again receiving Miranda warnings, the appellant
signed a form that signified his understanding of those rights.
3
He then called a friend and asked her to contact his attorney.
II. PROCEEDINGS BELOW
II. PROCEEDINGS BELOW
In due course, a federal grand jury handed up an
indictment. The appellant responded in part by filing a motion
to suppress the statements he had made to the police during the
search. He advanced two arguments. First, he insisted that,
while still at Glenham St., he had invoked his right to remain
silent and asked if he could contact his attorney, but that the
police ignored his importuning and did not permit him to do so.
Second, he contended that DeAngelis had dumped the clothing on
the floor in a wily effort to provoke him into making an
inculpatory comment, and that, therefore, DeAngelis's antics
should be treated as an impermissible constructive interrogation.
See Rhode Island v. Innis, 446 U.S. 291, 301 (1980). The
government denied that the appellant invoked his right to remain
silent or that he sought counsel while at the apartment. It also
argued that his initial complaint concerning the handling of his
vestments was a spontaneous utterance, and that his subsequent
statements amounted to a waiver of his Miranda rights.
Following an evidentiary hearing, the district court
ruled that DeAngelis's rearrangement of the appellant's wardrobe
did not amount to an interrogation, and that the appellant's
original objection to DeAngelis's behavior could properly be
admitted into evidence as a spontaneous statement. Sweeping more
broadly, the court found as a matter of fact that the appellant
4
had neither invoked his rights nor requested an attorney while
the search was ongoing. Consequently, the court ruled that,
given the adequate warnings which proceeded the officers'
questions, the appellant's replies could be used against him.
At trial, the appellant did not seriously dispute his
possession of crack cocaine, but, rather, concentrated his fire
on the issue of distributive intent. Some of the government's
proof on this point came in the form of opinion testimony
rendered by DeAngelis. In the end, the jury bought the
prosecution's wares and convicted the appellant on both counts.
The district court sentenced him to serve sixty-three months in
prison on the drug trafficking charge, and added a consecutive
sixty-month incarcerative term for the firearms count. After a
false start, the details of which are not relevant here, this
appeal blossomed.
III. THE DRUG TRAFFICKING CONVICTION
III. THE DRUG TRAFFICKING CONVICTION
We begin by analyzing the assignments of error insofar
as they relate to the conviction for possession of crack cocaine
with intent to distribute. The appellant assigns error in three
respects. We treat these claims seriatim.
A. Suppression of Statements.
A. Suppression of Statements.
Before us, the appellant assails the district court's
refusal to suppress his statements regarding the clothing, the
day bed, and the like. His main thesis is that he exercised his
prerogative to remain silent and demanded an attorney, but that
the police rode roughshod over his rights. He asseverates that,
5
under these circumstances, the interrogation conducted by the
officers at the search scene contravened the teachings of both
Miranda and Edwards v. Arizona, 451 U.S 477, 484-85 (1981)
(explaining that an accused, having voiced a desire to deal with
the authorities only with the aid of a lawyer, is not subject to
further police interrogation until counsel has been made
available to him).1 We find no error.
In reviewing orders granting or denying suppression
motions, this court scrutinizes a district court's factual
findings, including its credibility determinations, for traces of
clear error. See United States v. Zapata, 18 F.3d 971, 975 (1st
Cir. 1994). By contrast, we indulge plenary review of the lower
court's answers to questions of law, including its ultimate
resolution of the constitutional issue. See id.
In this case, whether or not to suppress the challenged
statements boils down to a credibility call. Such calls are
grist for the district court's mill. See, e.g., United States v.
Rutkowski, 877 F.2d 139, 144 (1st Cir. 1989). The district
court, having seen and heard the witnesses at first hand, chose
to believe the mustered testimony of four law enforcement
officers Bathgate, DeAngelis, Panzarella, and Corley (two of
whom testified unequivocally that the appellant had neither
1Except for his contention that he invoked certain of his
rights prior to questioning, the appellant has not maintained
that his responses to police queries represented anything less
than a knowing and intelligent waiver of his Miranda rights. Any
such argument is, therefore, waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082
(1990).
6
expressed a desire to stay silent nor requested counsel) and
rejected the appellant's contradictory version of his interaction
with the police. If we are to remain faithful to the
jurisprudence of clear error, we cannot disturb this finding.2
See id. (acknowledging that a judge's credibility choice between
two plausible accounts of the events in question cannot be deemed
clearly erroneous); see also Cumpiano v. Banco Santander P.R.,
902 F.2d 148, 152 (1st Cir. 1990) (explaining that there can be
no clear error "unless, on the whole of the record, [the court of
appeals] form[s] a strong, unyielding belief that a mistake has
been made").
B. Admission of Opinion Testimony.
B. Admission of Opinion Testimony.
At trial, DeAngelis, after chronicling his experience
as a narcotics detective and his encyclopedic familiarity with
the mores of the crack cocaine community, testified as to the
approximate "street value" (all told, roughly $1,500) of the 148
straws of crack found during the search. He also explained that
so large a quantity of crack was consistent with distribution as
opposed to personal use. Finally, he listed the visible
characteristics of the prototypical crack addict, and noted that
2Since we uphold the lower court's finding that the
appellant did not assert his rights, but, rather, voluntarily
elected to answer the officers' questions, we need not assess the
correctness of the court's holding that the appellant's initial
statement comprised a spontaneous utterance, not a response to
constructive interrogation. Though the detective's special brand
of valet service was heavy-handed (both literally and
figuratively), there is no basis on the present record for
suppression of the appellant's retort.
7
the appellant manifested none of these symptoms.3
The appellant labors to convince us that this testimony
should not have been admitted for two reasons: first, it did not
afford the jury appropriate assistance in determining his intent;
and second, it comprised an impermissible opinion concerning his
supposed mental state. We are not persuaded.
1. Rule 702. Under the Federal Rules of Evidence,
1. Rule 702.
expert testimony is admissible if the witness qualifies as an
expert and the proffered testimony "will assist the trier of fact
to understand the evidence or to determine a fact in issue."
Fed. R. Evid. 702. The decision to admit or reject expert
testimony is committed to the sound discretion of the trial court
and the court's determinations are reviewable only for abuse of
that discretion. See United States v. Echeverri, 982 F.2d 675,
680 (1st Cir. 1993); United States v. Hoffman, 832 F.2d 1299,
1310 (1st Cir. 1987). Typically, appellate courts give trial
judges a wide berth in respect to these kinds of discretionary
judgments. See Echeverri, 982 F.2d at 680.
Viewed through this lens, the district court's decision
to admit DeAngelis's testimony appears to be properly focused.
DeAngelis's qualifications as an expert were not challenged
either below or in the appellant's brief, and we readily accept
3DeAngelis's testimony assisted the appellant in certain
particulars. For example, he admitted on cross-examination that
many of the tools of the drug trafficking trade were not found in
the apartment, and that no direct evidence (e.g., fingerprints)
linked the appellant to the scale that the authorities unearthed
in the basement.
8
them as sufficient.4 Turning to the testimony, DeAngelis
explained the amount of crack that users normally carry, the
effects of an individual dose, and the price of each packet.
Matters involving dosages, prices, and other particulars endemic
to the ingestion and distribution of crack cocaine are beyond the
ken of the average juror. Consequently, expert testimony on
these subjects is likely to help the jury and, hence, if
sanctioned by the trial judge, is admissible in evidence. See
United States v. Ladd, 885 F.2d 954, 959, 964 (1st Cir. 1989)
(approving admission of testimony that the quantity and packaging
of certain heroin indicated its suitability for distribution).
Other courts, apparently reaching the same conclusion, have
regularly upheld the admissibility of such expert testimony based
upon the trial judge's belief that it would help the jurors. See
United States v. Tapia-Ortiz, 23 F.3d 738, 741 (2d Cir.), cert.
denied, 115 S. Ct. 206, 286 (1994); United States v. Brown, 7
F.3d 648, 652 (7th Cir. 1993); United States v. McDonald, 933
F.2d 1519, 1522 (10th Cir.), cert. denied, 502 U.S. 897 (1991);
United States v. Safari, 849 F.2d 891, 895 (4th Cir.), cert.
denied, 488 U.S. 945 (1988).
In this instance, the district court heard and
overruled the appellant's objections to the proffered testimony.
4To be sure, DeAngelis is not an expert in the sense that he
possesses formal education in his field. But as we have
recognized before, street savvy and practical experience can
qualify a witness as an expert as surely as "a string of academic
degrees or multiple memberships in learned societies." Hoffman,
832 F.2d at 1310.
9
On this record, there is no principled way for us to second-guess
that ruling. Nor will we strain to do so: we think that
DeAngelis's testimony was likely welcomed by the jurors, who
otherwise might not have understood the significance of such a
large number of crack-filled straws. Seen from this perspective,
the testimony provided a factual predicate for the jury,
presumably inexperienced in the customs of the crack cocaine
community, to draw the inference that the appellant possessed
cocaine base for the purpose of retail distribution.
2. Rule 704(b). In a related vein, the appellant,
2. Rule 704(b).
citing Fed. R. Evid. 704(b), suggests that the trial court
improvidently allowed DeAngelis to testify to the appellant's
state of mind (intent to distribute).5 We reject the
suggestion.
Rule 704(b) is of fairly recent vintage. It emerged in
1984 as an offshoot of Congress's retooling of the insanity
defense. See S. Rep. No. 225, 98th Cong., 2d Sess. 230 (1984),
reprinted in 1984 U.S.C.C.A.N. 3182, 3412 (explaining the need to
limit psychiatric testimony as to the ultimate issue of sanity
5The rule provides:
No expert witness testifying with respect to
the mental state or condition of a defendant
in a criminal case may state an opinion or
inference as to whether or not the defendant
did or did not have the mental state or
condition constituting an element of the
crime charged or of a defense thereto. Such
ultimate issues are matters for the trier of
fact alone.
Fed. R. Evid. 704(b).
10
under the law). Congress recommended that the new regime be
applied broadly. To this end, the Senate Report stated:
[T]he rationale for precluding ultimate
opinion psychiatric testimony extends beyond
the insanity defense to any ultimate mental
state of the defendant that is relevant to
the legal conclusion sought to be proven.
The Committee has fashioned its Rule 704
provision to reach all such "ultimate"
issues, e.g., premeditation in a homicide
case, or lack of predisposition in
entrapment.
Id. at 3413. Thus, both the letter of Rule 704(b) and the spirit
that animates it preclude psychiatrists or other mental health
professionals from testifying directly to a mental state or
condition that constitutes an element of the crime charged (such
as a criminal defendant's intent). See United States v.
Childress, 58 F.3d 693, 728 (D.C. Cir. 1995); United States v.
Cameron, 907 F.2d 1051, 1060 (11th Cir. 1990); United States v.
Pohlot, 827 F.2d 889, 906 (3d Cir. 1987), cert. denied, 484 U.S.
1011 (1988).
By like token, Rule 704(b) has not been restricted to
testimony offered by psychiatrists and other mental health
professionals. To the precise contrary, courts have consistently
read the rule to apply to cases in which intent is an element of
the offense and an expert whether or not a psychiatrist or
other mental health professional seeks to testify to the
defendant's actual intent. See, e.g., United States v. Buchanan,
F.3d , (5th Cir. 1995) [No. 93-8730, slip op. at 8]
(discussing narcotics officer's opinions in respect to
defendant's specific intent to possess drugs); United States v.
11
Orr, 68 F.3d 1247, 1252 (10th Cir. 1995) (discussing opinion
evidence of witness skilled in banking practices in respect to
defendant's intent to commit bank fraud), petition for cert.
filed, No. 95-6890 (U.S. Nov. 27, 1995); United States v. Boyd,
55 F.3d 667, 670 (D.C. Cir. 1995) (discussing police officer's
opinions in respect to defendant's intent to distribute cocaine);
United States v. Windfelder, 790 F.2d 576, 582 (7th Cir. 1986)
(discussing IRS agent's opinions in respect to defendant's intent
to evade taxes). We, too, have indicated, albeit sub silentio,
that Rule 704(b) potentially could apply to opinion testimony
offered by a person other than a mental health professional. See
United States v. Lamattina, 889 F.2d 1191, 1193-94 (1st Cir.
1989) (discussing FBI agent's testimony in loan-sharking case).
Given the unambiguous language of the rule and the weight of
authority,6 we hold that Rule 704(b) prohibits all direct expert
testimony concerning a criminal defendant's intent, regardless of
the witness's field of expertise, so long as intent is an element
of the crime charged.
This conclusion does not end our inquiry. No matter
how expansively Rule 704(b) is read, it is not limitless in its
reach. Though Rule 704(b) bars experts from opining on the
ultimate issue of a defendant's felonious intent, the rule does
6The Seventh Circuit has expressed a certain reluctance to
read Rule 704(b) so generously, but has felt constrained by "the
fact that this court and others have routinely assumed that Rule
704(b) imposes an additional limitation, however slight, on the
expert testimony of law enforcement officials." United States v.
Lipscomb, 14 F.3d 1236, 1242 (7th Cir. 1994).
12
not prohibit experts from testifying to predicate facts from
which a jury might infer such intent. See, e.g., Brown, 7 F.3d
at 651 (explaining that Rule 704(b) does "not preclude [] [an
expert] from suggesting inferences to be drawn from the facts,
including inferences that embrace an ultimate issue").
The case at hand fits neatly within this integument.
Here, the witness offered no testimony that directly
characterized the appellant's intent to distribute controlled
substances. Instead, DeAngelis merely explained that the
quantity of crack found at the search site was consistent with
distribution, as opposed to personal use. Because this evidence
does no more than supply suggested predicate facts, allowing the
jury to draw its own conclusions as to intent from those facts if
it chooses to credit the testimony, it does not transgress Rule
704(b). See United States v. Lipscomb, 14 F.3d 1236, 1240 (7th
Cir. 1994) (upholding the introduction of opinion testimony
suggesting that a particular amount of crack indicated intended
distribution, and distinguishing such testimony from testimony
that the defendant intended to distribute crack).
Discerning no error, we hold that the district court
acted within the realm of its discretion in permitting the jury
to hear and consider the contested opinion testimony.
C. Sufficiency of the Evidence.
C. Sufficiency of the Evidence.
A convicted defendant who presses a claim of
evidentiary insufficiency faces an uphill climb. If the evidence
presented, taken in the light most agreeable to the government,
13
is adequate to permit a rational jury to find each essential
element of the offense of conviction beyond a reasonable doubt,
then the defendant's claim fails. See United States v. Olbres,
61 F.3d 967, 970 (1st Cir. 1995); United States v. Gifford, 17
F.3d 462, 467 (1st Cir. 1994). Phrased another way, as long as
the aggregate evidence justifies a judgment of conviction, "it
need not rule out other hypotheses more congenial to a finding of
innocence." Gifford, 17 F.3d at 467.
When a criminal defendant undertakes a sufficiency
challenge, all the evidence, direct and circumstantial, must be
viewed from the government's coign of vantage, and the viewer
must accept all reasonable inferences from it that are consistent
with the verdict. See United States v. Taylor, 54 F.3d 967, 974
(1st Cir. 1995); United States v. O'Brien, 14 F.3d 703, 706 (1st
Cir. 1994). In other words, "the trial judge must resolve all
evidentiary conflicts and credibility questions in the
prosecution's favor; and, moreover, as among competing
inferences, two or more of which are plausible, the judge must
choose the inference that best fits the prosecution's theory of
guilt." Olbres, 61 F.3d at 970. Because the district court's
disposition of a motion for judgment of acquittal is subject to
de novo review, see id., this court, like the trial court, must
"scrutinize the evidence in the light most compatible with the
verdict, resolve all credibility disputes in the verdict's favor,
and then reach a judgment about whether a rational jury could
find guilt beyond a reasonable doubt." Taylor, 54 F.3d at 974.
14
Applying these straightforward rules to this record
makes short shrift of the appellant's claim. The elements of the
offense of conviction are knowing possession of a controlled
substance (here, crack) and intent to distribute that substance.
See United States v. Marin, 7 F.3d 679, 688 (7th Cir. 1993),
cert. denied, 114 S. Ct. 739 (1994). Here, these elements were
amply proven.
The discovery of sizable quantities of crack at the
appellant's place of abode and in his jacket, together with the
appellant's admissions to the authorities, form a sturdy platform
on which to load a finding of guilt. The opinion evidence that
we have recounted furnishes additional support for the finding.
It is clear to us that a rational jury, impartially assaying all
the evidence, could have found beyond a reasonable doubt as
this jury did that the prosecution had successfully proved the
essential elements of the drug trafficking charge.7
IV. THE FIREARMS CONVICTION
IV. THE FIREARMS CONVICTION
The jury also convicted the appellant on a charge of
violating 18 U.S.C. 924(c)(1).8 The appellant challenges this
7The appellant places great reliance on the decision in
United States v. Boissoneault, 926 F.2d 230 (2d Cir. 1991). But
Boissoneault does not assist his cause. Here, unlike in
Boissoneault, there is sufficient corroborative evidence
including but not limited to the admissions, the firearms, and
the sheer quantity of drugs to reinforce the opinion testimony
and support a guilty verdict.
8The statute of conviction provides in pertinent part:
Whoever, during and in relation to any . . .
drug trafficking crime . . . for which he may
be prosecuted in a court of the United
15
conviction, asserting that the evidence is insufficient to
sustain the verdict.
While this case was pending on appeal, the Supreme
Court decided Bailey v. United States, 64 U.S.L.W. 4039 (1995).
The Bailey Court concluded that, in order to convict an accused
for "use" of a firearm under section 924(c)(1), "the Government
must show active employment of the firearm." Id. at 4041. Thus,
"liability attaches only to cases of actual use" of a firearm,
id. at 4042, a standard that "includes brandishing, displaying,
bartering, striking with, and most obviously, firing or
attempting to fire, a firearm." Id.
This construction of the "use" prong of section
924(c)(1) resolved a split in the circuits, see id. at 4040-41
(citing representative cases), and, in the bargain, abrogated
earlier decisions of this court that permitted conviction under a
more inclusive definition of "use." See, e.g., United States v.
McFadden, 13 F.3d 463, 465 (1st Cir. 1994) (holding that evidence
of the presence of a gun under a mattress, with cash, near drugs,
sufficed to show "use"). Consequently, we acknowledge that
McFadden and its siblings are no longer good law.
Bailey is directly on point here. At oral argument,
the government confessed error, candidly admitting that its
evidence was insufficient to show "use" under the Bailey
States, uses or carries a firearm, shall . .
. be [subjected to additional punishment].
18 U.S.C. 924(c)(1) (1988 & Supp. II 1990).
16
standard. Because our assessment of the record conduces to the
same conclusion, we reverse the appellant's conviction under 18
U.S.C. 924(c) and direct the district court to enter judgment
in Valle's favor on that count.9
V. CONCLUSION
V. CONCLUSION
To recapitulate, we affirm the appellant's conviction
on the drug trafficking charge and reverse his conviction on the
firearms charge. Since it is conceivable that our disposition of
the latter count might affect the sentencing calculus in regard
to the former count, we honor counsels' joint request and remand
to the district court for possible reconsideration of the
sentence originally imposed on the drug trafficking count. See
generally United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st
Cir.) (en banc) (discussing, in a pre-Guidelines case, the
district court's "authority to reshape a sentence when multiple
convictions garner mixed reviews on appeal some affirmed, some
reversed"), cert. denied, 493 U.S. 890 (1989).
We need go no further. We intimate no view as to
whether the district court should undertake to reconsider the
sentence previously imposed or, if it chooses to do so, what the
appropriate outcome of such reconsideration might be.
Affirmed in part, reversed in part, and remanded.
Affirmed in part, reversed in part, and remanded.
9Although the Bailey Court did not address the "carry" prong
of 18 U.S.C. 924(c)(1), the government concedes that, in this
case, it has no evidence that the appellant carried firearms
during and in relation to the commission of a drug trafficking
offense.
17