Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1029
UNITED STATES OF AMERICA,
Appellee,
v.
JEFFREY PINA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Selya, Circuit Judge,
Hill,* Senior Circuit Judge,
and Lynch, Circuit Judge.
Evan Slavit with whom Bodoff & Slavitt LLP was on brief, for
appellant.
William H. Connolly, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
July 15, 2005
*
Of the Eleventh Circuit, sitting by designation.
Per Curiam: Defendant-appellant Jeffrey T. Pina
challenges his jury convictions for being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1), for possession of
cocaine base with intent to distribute it, in violation of 21
U.S.C. § 841(a)(1), and for possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A). Based upon the following, we affirm the judgment of
the district court.
I.
Although Pina raises multiple issues on appeal, we
discuss only one: did the district court abuse its discretion in
admitting the opinion testimony of the government’s drug expert
witness, Brockton Police Sergeant Kevin O’Connell?1 See United
States v. Valle, 72 F.3d 210, 214 (1st Cir. 1995)(the trial court
has discretion to admit or reject expert testimony and its
determination is reviewable only for an abuse of that discretion).2
II.
O’Connell testified that “the crack cocaine and other
items found” at the apartment, such as scales, packages of cash,
1
All other issues are plainly meritless and, therefore, are
affirmed without discussion.
2
Pina does not challenge O’Connell’s expert qualifications. Nor
does he challenge the admission into evidence under Fed. R. Evid.
702 by the district court of each of the specific items discussed
by O’Connell in his expert testimony.
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and Glad sandwich baggies, “were consistent with distribution.”
R2 at 75.3 Pina claims that O’Connell’s testimony was irrelevant
under Fed. R. Evid. 401, prejudicial and non-probative under Fed.
R. Evid. 403, and beyond the scope of Fed. R. Evid. 702.
Pina contends that, as these items have many innocent
uses, their presence does not make his involvement with drug
trafficking more likely. Therefore, because the presence of these
items is also “not inconsistent with” the personal use or
possession of drugs, this testimony is neither relevant nor
probative to the jury.
Pina claims that although such specific phraseology,
“consistent with” drug trafficking, has been examined many times by
this circuit in general terms, it has never been squarely
addressed. But see United States v. Ladd, 885 F.2d 954, 960 (1stt
Cir. 1989) (where drug expert’s opinion that drug packaging was
“consistent with” distribution was deemed probative and relevant as
to defendant’s intent). Pina argues, however, that in this close
circumstantial case, the jury verdict would in all likelihood have
been different, had O’Connell’s expert testimony been excluded.
3
Citations to the record are in the following format: R [volume
number] at [page number].
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III.
The government contends that the record reads differently
than Pina suggests. We agree.
Among other things, O’Connell testified on direct
examination in this manner:
Q. Based on the items that you’ve described
previously as having seen, have you formed an
opinion, with respect to the crack cocaine and
the other items found, whether or not that
crack cocaine is – and the other items is
consistent with the intent to distribute crack
cocaine?
[Defense Counsel]: Objection.
THE COURT: Sustained as to the form of the
question.
Q. Have you formed an opinion with respect to
those items as to whether it’s consistent with
distribution versus personal possession?
A. I have.
Q. And, what is that opinion?
A. It is consistent with distribution.
R2 at 74-75.
The original question posed by the government to the drug
expert was, based upon the drugs and other items seized from the
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apartment, “do you have an opinion as to whether or not these items
are consistent with an intent to distribute crack cocaine?” R2 at
74-75. Objection was made by defense counsel. R2 at 75. That
objection was sustained by the district court. Id.
The question was then properly rephrased by the
government to eliminate any reference or speculation as to the
defendant’s intent. R2 at 75. The drug expert was asked whether
or not he had formed an opinion with respect to whether or not
those items were “consistent with drug distribution versus personal
possession.” Id. He answered in the affirmative. Id. The drug
expert was then asked to give his opinion. Id. It was his opinion
that the items found in the apartment, (the crack cocaine [R2 at
65-69], the scales [R2 at 70-72], the baggies [R2 at 69-70] and the
packages of cash [R2 at 72-74]), were consistent with drug
trafficking. R2 at 75.
It is clear from a reading of the entire record that
O’Connell did not testify that all the items, such as the scales,
were inconsistent with personal possession. Nor did he offer an
opinion on Pina’s intent with respect to the crack cocaine. He
merely gave his opinion, based upon his training and experience,
that the drugs and collection of items found in Pina’s apartment
were, in the aggregate, consistent with the distribution of crack
cocaine as opposed to mere possession. See Ladd, 885 F.2d at 960;
see also Valle, 72 F.3d at 216 (expert testimony is appropriate
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provided the expert is not offering his or her opinion on the
defendant’s specific intent but only laying out critical facts upon
which a jury can determine the defendant’s intent).
O’Connell, after defense counsel’s sustained objection,
testified properly in accordance with the rules of evidence. This
ends the case on appeal.
IV.
The judgment of the district court is affirmed.
AFFIRMED.
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