United States Court of Appeals
For the First Circuit
No. 08-1407
UNITED STATES OF AMERICA,
Appellee,
v.
RONALD PENA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Boudin, Stahl, and Lipez, Circuit Judges.
Mary A. Davis, by Appointment of the Court, with whom Tisdale
& Davis, P.A., was on brief for appellant.
Mark T. Quinlivan, Assistant U.S. Attorney, with whom Michael
K. Loucks, Acting United States Attorney, was on brief for
appellee.
November 17, 2009
STAHL, Circuit Judge. Defendant-Appellant Ronald Pena
appeals both his conviction and sentence for possession of cocaine
base with intent to distribute and carrying a firearm during and in
relation to a drug trafficking crime. His primary contentions are
that his conviction rested on improperly admitted fingerprint
evidence and that there was insufficient evidence to convict him of
either charge. After a careful review, we reject Pena’s claims and
affirm the district court.
I. Facts and Procedural Background
Because Pena challenges the sufficiency of the evidence
brought against him, we recite the facts in the light most
favorable to the jury’s verdict. United States v. Garcia-Alvarez,
541 F.3d 8, 11 (1st Cir. 2008) (citing United States v. Vázquez-
Botet, 532 F.3d 37, 42-43 (1st Cir. 2008)). As a result of a phone
call placed to the Brockton Police on August 27, 2005 at about 2:00
p.m., officers of the Brockton Police Department were dispatched to
the area of North Warren Avenue to look for a particular
individual. Sergeant Kenneth Lofstrom, who was in a marked
cruiser, observing Pena walking down the street, pulled up next to
Pena and asked if he could speak with him. Pena responded, "Why?
What’s up?" A second marked cruiser pulled up, and as the officer
driving that cruiser exited the vehicle, Pena took off running
through a vacant lot on North Warren Avenue. He then ran across
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Walnut Street and through a backyard at 18-20 Crowell Street before
being apprehended by police and arrested.
Officers then searched for evidence in the area where
Pena had been observed running. They found a Sidekick II cell
phone as well as a green baseball cap. Pena had been wearing such
a cap before fleeing the police. The officers also found a loaded
Smith & Wesson Model .357 Magnum revolver lying on the ground in
plain view and, a few feet from the firearm, a clear plastic bag
with other, smaller clear plastic bags inside of it containing a
white substance. A state laboratory analysis later determined that
the bags contained a net weight of 43.19 grams of cocaine base.1
When Pena was transported to the Brockton Police
Department for booking, officers recovered $2,781 in United States
currency from his front right pocket. Pena was fingerprinted and
advised of his Miranda rights. He subsequently asked the officers
if they had found his cell phone, and when Pena was shown the
Sidekick II phone, he identified it as his.
On December 7, 2005, the grand jury returned a two-count
indictment charging Pena with possession of cocaine base with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (the
"drug charge" or "Count One"); and carrying a firearm during and in
relation to a drug trafficking crime, and possession of a firearm
1
At trial, the jury heard testimony that the street value of
that amount of cocaine base, packaged in that fashion, would be
close to $2,100.
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in furtherance of that crime, in violation of 18 U.S.C. § 924(c)
(the "firearm charge" or "Count Two").
A ten-day jury trial commenced on May 29, 2007. At a
motions hearing prior to opening statements, Pena moved to exclude
testimony regarding fingerprint evidence, arguing that it failed to
meet the standard for expert testimony under Fed. R. Evid. 702.
The district court provisionally denied the motion and allowed
three troopers from the Massachusetts State Police trained in
fingerprint analysis to testify at trial that they compared a
partial latent fingerprint found on the revolver to an inked
fingerprint of Pena’s left thumb using the ACE-V method (analysis,
comparison, evaluation, and verification), and matched the latent
fingerprint with the inked fingerprint to the exclusion of all
others. Pena renewed his objection to the testimony, and the
district court again denied the motion in an oral ruling.
Also, Christina Rosado, a civilian witness residing at 95
North Warren Avenue, testified that on the afternoon of August 27,
2005, she looked out her kitchen window and saw a man run across
her backyard, reach into the area of his right hip, and make two
separate throwing motions, as if he were throwing something away.
Rosado testified that she then observed the man continue to run
until he was out of her line of sight.
On June 8, 2007, on the seventh day of trial, Pena moved
for judgment of acquittal, asserting that the evidence was
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insufficient to sustain a conviction on either count charged in the
indictment. The district court orally denied the motion, and on
June 14, 2007, Pena was convicted on both counts of the indictment.
Pena filed a post-judgment motion for acquittal on Count Two, and
that motion was also denied. On February 26, 2008, the district
court sentenced Pena to consecutive terms of imprisonment totaling
120 months as well as four years of supervised release.
II.
On appeal we consider the following issues: (1) whether
the district court erred in admitting the testimony of the
Massachusetts State Troopers regarding the fingerprint evidence,
and (2) whether the totality of the evidence was sufficient to
support the verdict.2
A. Admissibility of Expert Testimony Regarding Fingerprint
Evidence
We review Pena’s claim that the district court erred in
admitting expert testimony regarding fingerprint evidence for abuse
of discretion. United States v. Diaz, 300 F.3d 66, 74 (1st Cir.
2002).
Pena challenges the ACE-V method used by the state
troopers in matching the partial latent fingerprint recovered from
2
We also briefly consider claims of error which Pena raises
in his pro-se Supplemental Brief regarding the court’s charging
instructions on reasonable doubt and the elements of the offenses
as well as the identification of the drug type as crack for
purposes of sentencing.
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the firearm to Pena’s inked fingerprint. Pena claims that the
method was not scientific and that the troopers’ conclusion that
his fingerprint matched the partial latent print was based on no
discernible standard. Specifically, Pena argues that the ACE-V
method was unreliable because it involved merely a visual
comparison of the two prints where the trooper conducting the
initial analysis knew that the inked print was taken from a suspect
and the trooper made no diagrams, charts, or notes as part of his
evaluation. Given our standard of review, we are not persuaded.
Federal Rule of Evidence 702 permits a witness qualified
as an expert to offer opinion testimony if "(1) the testimony is
based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the
case." As the Supreme Court has held, it is the task of the trial
judge to ensure that an expert’s testimony "both rests on a
reliable foundation and is relevant to the task at hand." Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993).
This involves a preliminary assessment of "whether the reasoning or
methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to
the facts in issue." Id. at 592-93. The Court later extended
Daubert’s application to technical and other specialized knowledge
in addition to scientific testimony. See Seahorse Marine Supplies,
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Inc. v. Puerto Rico Sun Oil Co., 295 F.3d 68, 81 (1st Cir. 2002)
(citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141
(1999)).
In this case, the district court declined to hold a
Daubert hearing and initially denied Pena’s motion to exclude the
fingerprint evidence. On Day 6 of trial, Massachusetts State
Trooper Kevin Halle gave extensive testimony about the ACE-V
method, his training and experience using the method for
fingerprint identification, and how he used the method in Pena’s
case. He explained that after he had analyzed the partial latent
print, compared it to the prints on Pena’s fingerprint card, and
determined that it matched Pena’s left thumb print, he had two
other troopers independently verify his findings. Those two
troopers then testified as to their verification of the match.
Though Trooper Halle acknowledged that the Massachusetts
State Police used no specific minimum number of points to confirm
a fingerprint match, and the district court expressed some
reservation about the reliability of the testimony on that basis,3
the court ultimately decided to admit the testimony, noting that
"the case law is overwhelmingly in favor of admitting fingerprint
experts under virtually any circumstance." Consequently, the court
3
The court also expressed concern about "the lack of uniform
standards, the problem that the proficiency rates, error rates are
basically determined without a controlled group" and the fact that
"no one has ever tested the premise of uniqueness."
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reasoned, the only way it would have considered excluding the
testimony or giving a limiting instruction "is if there had been
data, real evidence presented about the limitations of
fingerprinting." Instead, as the court acknowledged, Pena’s motion
to exclude relied on "one article from the Fordham Law Review, and
that’s not enough to carry the weight of the exclusion motion."
The district court did not abuse its discretion.
Numerous courts have found expert testimony on fingerprint
identification based on the ACE-V method to be sufficiently
reliable under Daubert. See United States v. Baines, 573 F.3d 979,
992 (10th Cir. 2009); United States v. Mitchell, 365 F.3d 215, 246
(3d Cir. 2004); United States v. Sullivan, 246 F. Supp. 2d 700, 704
(E.D. Ky. 2003); United States v. Llera Plaza, 188 F. Supp. 2d 549,
575-76 (E.D. Pa. 2002); Commonwealth v. Patterson, 840 N.E.2d 12,
32-33 (Mass. 2005) (finding ACE-V method reliable for single latent
fingerprint impressions). Though acknowledging the lack of minimum
points and relative subjectivity of certain ACE-V protocols,
including that followed by the FBI, courts have nonetheless found
that most of the Daubert factors support admitting latent
fingerprint identification evidence obtained pursuant to the ACE-V
method. See Baines, 573 F.3d at 990-92; Mitchell, 365 F.3d at 241,
246. As this court has stated, against such a backdrop, "it is
difficult to discern any abuse of discretion" when the district
court decides to admit expert testimony that relies on the ACE-V
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method. United States v. Mahone, 453 F.3d 68, 71 (1st Cir. 2006).
The same holds true in this case.4
B. Sufficiency of the Evidence
We review preserved challenges to sufficiency of the
evidence de novo. United States v. Azubike, 564 F.3d 59, 64 (1st
Cir. 2009). We examine the evidence "both direct and
circumstantial, in the light most favorable to the prosecution and
decide whether that evidence, including all plausible inferences
drawn therefrom, would allow a rational factfinder to conclude
beyond a reasonable doubt that the defendant committed the charged
crime." United States v. Cruz-Rodriguez, 541 F.3d 19, 26 (1st Cir.
2008) (citing United States v. Fenton, 367 F.3d 14, 18 (1st Cir.
2004)).
4
Pena also argues that the district court erroneously shifted
to him the burden of refuting the reliability of the expert
testimony. Though somewhat vague, Pena’s argument appears to be
that once the trial judge acknowledged the questionable nature of
the evidence, she "abdicated her role" by not holding a Daubert
hearing and instead requiring Pena to produce data and experts to
demonstrate why the evidence should not be admitted. This argument
also fails.
A district court does not abuse its discretion by dispensing
with a Daubert hearing if no novel challenge is raised. See
Mitchell, 365 F.3d at 246. Here, Pena raised no new favorable case
law or expert testimony to challenge the admissibility of the
fingerprint identification evidence, instead citing only a single
2002 student note from the Fordham Law Review.
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1. The Drug Charge5
In his pro-se Supplemental Brief, Pena challenges the
sufficiency of the evidence as to Count One of the indictment,
which charged him with possession with intent to distribute cocaine
base in violation of 21 U.S.C. § 841(a)(1).6 Pena claims that the
testimony of Ms. Rosado was "uncorroborated and unsubstantiated"
and that "no other evidence showed that [he] possessed a firearm or
any drugs, at any time at all." According to Pena, the only other
evidence relied upon by the government was his sudden flight from
police. Viewing the evidence in the light most favorable to the
prosecution, as we must, we find Pena’s argument unavailing.
5
The government argues that Pena waived his sufficiency
challenge as to Count One by failing to renew his motion for
judgment of acquittal at the close of evidence and by also failing
to contest his conviction as to that count in his post-verdict
motion. However, a review of the trial transcript indicates that
Pena appears to have renewed his motion after both parties rested,
so his motion was not waived. Whatever the standard of review,
Pena's claim fails as there is more than sufficient evidence to
support his conviction.
6
In addition to challenging the sufficiency of the evidence,
Pena appears to raise a separate argument that the police did not
have grounds to stop or arrest him. Pena claims that the anonymous
tip on which the Brockton Police were acting when they approached
him did not exhibit sufficient indicia of reliability under Florida
v. J.L., 529 U.S. 266 (2000), and his subsequent actions, namely
his flight from the police, did not amount to reasonable suspicion
that he was engaged in criminal activity. Pena never made this
argument to the district court in a motion to suppress, and it is
therefore deemed waived. See United States v. Santos Batista, 239
F.3d 16, 19 (1st Cir. 2001) ("Failure to raise suppression
arguments before trial 'shall constitute waiver thereof.'" (quoting
Fed. R. Crim. P. 12(f))).
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Ms. Rosado testified that on the date and time in
question, she observed a man matching Pena’s general description7
run across her backyard, reach into his right hip area, and make
two separate throwing motions. She recounted the same to officers
searching the area minutes after the incident. The officers then
found the cell phone, firearm, and plastic bag containing drugs
along the flight path. Pena admitted the phone was his, and a
fingerprint match was made as to the firearm. Based on this
evidence, a rational jury could conclude beyond a reasonable doubt
that Pena possessed the bag containing cocaine base before
discarding it (along with the firearm and cell phone) while fleeing
the police.8
2. The Firearm Charge
Pena also argues that the government did not produce
sufficient evidence to support his conviction on Count Two of the
indictment, which charged him with violation of 18 U.S.C. § 924(c)
("Section 924(c)"). Title 18 U.S.C. § 924(c)(1)(A) prescribes a
7
Ms. Rosado testified that the man she saw looked to be about
twenty years old, with dark skin. She stated that he was chubby,
had black hair in braids, and was wearing black pants and a white
short-sleeve shirt. One of the officers testified that the
defendant was wearing a white tee shirt and blue jeans -- a
distinction without a difference.
8
The jury could also easily have concluded that the drugs
were intended for distribution. The jury heard testimony that such
a large amount (43.19 grams), packaged in individual sandwich bags
and with a street value of over $2,100, would ordinarily be
possessed by a dealer rather than an end user.
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mandatory minimum sentence for any person who "during and in
relation to any . . . drug trafficking crime . . . uses or carries
a firearm, or who, in furtherance of any such crime, possesses a
firearm." We focus here on the possession offense.9 To obtain a
conviction, the government must prove that the defendant: 1)
committed a drug trafficking crime; 2) knowingly possessed a
firearm; and 3) possessed the firearm in furtherance of the drug
trafficking crime. United States v. Marin, 523 F.3d 24, 27 (1st
Cir. 2008). At oral argument, Pena’s counsel conceded that the
first two elements of the charge were met: Pena was convicted of a
drug trafficking crime, and he was carrying a gun when approached
by police.10 However, Pena challenges the sufficiency of the
9
Congress added the "possess[ion]" "in furtherance of"
language to the statute in 1998 in response to Bailey v. United
States, 516 U.S. 137 (1995), where the Supreme Court held that
under the prior version of the statute, "the Government must show
that the defendant actively employed the firearm during and in
relation to the predicate crime." See United States v. Grace, 367
F.3d 29, 34-35 (1st Cir. 2004) (quoting Bailey, 516 U.S. at 150)
(emphasis added). The statute also continues to prescribe a
violation for the acts of 1) using or 2) carrying a firearm "during
and in relation to" a drug trafficking crime. As Pena was charged
both with "carry[ing]" a firearm "during and in relation to" the
drug offense and "possess[ing]" a firearm "in furtherance of" that
offense, the government could have obtained a conviction under
either avenue of proof. See United States v. Lott, 310 F.3d 1231,
1246 (10th Cir. 2002). As we find sufficient evidence to support
a jury finding that Pena possessed the firearm in furtherance of
his possession with intent to distribute cocaine base, we need not
address whether the government also proved that he carried a
firearm during and in relation to a drug trafficking offense.
10
In his pro-se Supplemental Brief, Pena states that his
counsel’s concession on this point contradicted his own position.
He states that he "negates any inference whatsoever that suggests
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evidence as to the "in furtherance of" element, arguing that the
government never established a link between the gun and the drug
trafficking crime. We reject this claim.
To prove that a defendant possessed a firearm "in
furtherance" of the predicate drug crime, the government must show
a sufficient nexus between the firearm and the drug crime such that
the firearm advances or promotes the drug crime. Marin, 523 F.3d
at 27 (citing Grace, 367 F.3d at 34-35; United States v. Garner,
338 F.3d 78, 81 (1st Cir. 2003)). The mere presence of a firearm
in the area where the drug offense occurred is insufficient.
Grace, 367 F.3d at 35. In assessing whether a sufficient nexus
exists, we consider several factors: whether the firearm was
loaded, whether the firearm was easily accessible, the proximity of
the firearm to the drugs, and the surrounding circumstances.
United States v. Robinson, 473 F.3d 387, 399-400 (1st Cir. 2007)
(citing United States v. Carlos Cruz, 352 F.3d 499, 509 (1st Cir.
2003)).
In this case, each of these factors supports a conclusion
that Pena possessed the gun "in furtherance of" the drug crime.
The .357 Magnum was loaded, and there was circumstantial evidence
he threw the firearm and drugs allegedly recovered on [the day in
question]." Though Pena denies that the firearm recovered by the
police was ever in his possession, the fingerprint evidence taken
from the firearm, the fact that the gun was found along the flight
path, and the testimony of Ms. Rosado were sufficient to allow a
reasonable jury to conclude that Pena had, in fact, been in
possession of the revolver when initially stopped by police.
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that Pena was carrying both it and the drugs on his person. Cf.
Grace, 367 F.3d at 31 (affirming conviction where unloaded gun was
kept under a bed in a drawer that was blocked by a duffel bag,
trash can, and box of books, no ammunition was in the house, and
drugs were stored in a different room than the gun).
In addition to this evidence, the government presented
evidence that could lead a rational jury to infer that Pena was
carrying the firearm to protect his drugs and drug proceeds, a
purpose that we have found establishes the required nexus between
the drugs and the firearm. Grace, 367 F.3d at 35 (citing United
States v. Luciano, 329 F.3d 1 (1st Cir. 2003)). Pena was carrying
$2,781 in cash at the time of his arrest, and there was evidence
that the drugs he discarded had a street value of $2,100. The jury
also heard evidence that the area where Pena was approached and
eventually arrested was a high-crime area in which numerous drug
and gun crimes and robberies had taken place.
This evidence was sufficient to convince a rational jury
beyond a reasonable doubt that Pena possessed the .357 Magnum "in
furtherance of" a drug trafficking crime.
C. Other Matters
In his pro-se Supplemental Brief, Pena mounts a potpourri
of arguments, none of which were raised below. We thus briefly
consider each, reviewing only for plain error. United States v.
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Garcia-Carrasquillo, 483 F.3d 124, 132 (1st Cir. 2007) (citing
United States v. Carvell, 74 F.3d 8, 14 (1st Cir. 1996)).
First, Pena argues that the court’s instruction on
reasonable doubt confused jurors and allowed the jury to return a
conviction based on a finding that Pena was "probably guilty"
rather than guilty beyond a reasonable doubt. Pena cites only a
small portion of the court’s reasonable doubt instruction, which
comprises over two pages of the trial transcript. In viewing the
instruction as a whole, we find that it did not mislead the jury as
to the government’s burden of proof. The instruction made it
eminently clear that the jury had to find Pena guilty beyond a
reasonable doubt.
Pena also contends that the court erroneously instructed
the jury with regard to the term "use," citing Bailey v. United
States, 516 U.S. 137 (1995), for the proposition that "use for
purposes of a § 924(c) violation means to actively deploy or
discharge and not mere possession or presence." (emphasis in pro-
se Supplemental Brief). Pena suggests that by employing the term
"use," the court constructively amended the indictment because the
indictment did not charge Pena with "use" of a firearm.
While the court did, in fact, use the term "use" once in
the context of its instruction on the "in furtherance of" element,
"use" of a firearm was not an issue in this case, and in any event
the court’s use of that term did not prejudice Pena. There was
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ample evidence that Pena possessed a firearm in furtherance of the
drug crime, and even if the jury thought it had to find "use," that
would have been a benefit not a detriment to Pena.11
Finally, Pena argues that he was improperly sentenced as
a crack offender, attempting to draw a distinction between the
terms "crack" and "cocaine base," which were used somewhat
interchangeably by the court and the government at trial and
sentencing. However, for the purpose of the statute under which
Pena was sentenced, 21 U.S.C. § 841(b)(1)(B)(iii),12 the distinction
11
Pena raises numerous additional challenges to the court’s
instructions as to each count, each of which is without merit.
With regard to Count One, possession with intent to distribute,
Pena contends that the district court defined "to possess" without
defining "to distribute" or "trafficking." It is unclear how the
definition of trafficking is relevant to the elements of Count One,
and the court did define the term "to distribute." Pena next
argues that the court constructively amended the indictment by
using the term "crack" in the verdict slip when the indictment
charged him with possession with intent to distribute "cocaine
base." Pena’s claim is incorrect because the verdict slip in fact
uses the term "cocaine base," not "crack."
Additionally, Pena contends that the court gave the jury
contradictory instructions as to whether or not the government was
required to prove what type of drug was possessed. Here, too, Pena
is incorrect. The court specifically instructed the jury that the
government must prove beyond a reasonable doubt that the substance
actually possessed was cocaine base.
Regarding Count Two, Pena argues that the court failed to
explain the first element of the Section 924(c) offense and to
define the term "trafficking" within that element. Again, Pena’s
claim is without foundation. The court did, in fact, explain that
the first element of Count Two was that Pena committed a drug
trafficking offense and further instructed that the crime of
possessing cocaine base with intent to distribute charged in Count
One was a "drug trafficking crime" for the purpose of the statute.
12
Though the district court did not note the statute or its
terms on the record at sentencing, the indictment specifically
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between crack and cocaine base is meaningless. Unlike the
Sentencing Guidelines, 21 U.S.C. § 841(b) does not define "cocaine
base," and we have held that the term, as used in the statute,
includes all forms of cocaine base, including but not limited to
crack. United States v. Richardson, 225 F.3d 46, 49 (1st Cir.
2000) (citing United States v. Lopez-Gil, 965 F.2d 1124, 1134 (1st
Cir. 1992) (opinion on panel rehearing)). Consequently, regardless
of whether the government proved that Pena possessed 43.19 grams of
crack or 43.19 grams of some other form of cocaine base, his
sentence under the statute would have been the same. As Pena
admits that the government presented "ample evidence" that the
substance attributed to him was cocaine base, the court clearly did
not commit plain error in sentencing him to the mandatory minimum
prescribed by the statute.
III.
For the reasons stated above, we affirm Pena’s
conviction and sentence.
Affirmed.
charged Pena with a violation of 21 U.S.C. § 841(b)(1)(B)(iii),
possession with intent to distribute "5 grams or more of a mixture
or substance . . . which contains cocaine base."
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