UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-1708
UNITED STATES,
Appellee,
v.
MARIA VALERIO,
Defendant, Appellant.
No. 94-1709
UNITED STATES,
Appellee,
v.
DOMINGO BAEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
William T. Murphy for appellant Maria Valerio.
Ernest J. Barone for appellant Domingo Baez.
Lawrence D. Gaynor, Assistant United States Attorney, with whom
Sheldon Whitehouse, United States Attorney, was on brief for appellee.
February 27, 1995
BOWNES, Senior Circuit Judge. Following a five-day
BOWNES, Senior Circuit Judge.
jury trial, defendants-appellants Domingo Baez and Maria
Valerio were convicted of possession of cocaine with intent
to distribute and conspiracy to commit the same offense.
Baez also was convicted of being an illegal alien in
possession of a firearm. Baez challenges his convictions,
asserting that he was deprived of a fair trial because of (1)
the district court's failure to hold an in camera hearing to
determine the truthfulness of a search warrant affidavit; and
(2) a duplicitous count in his indictment. Valerio also
challenges her convictions, contending that the evidence was
insufficient to support them. After carefully reading the
record and considering the parties' arguments, we affirm
Baez's convictions and reverse Valerio's.
I.
I.
A. Background Facts
A. Background Facts
Because this case involves a challenge to criminal
convictions, we interpret the evidence in the light most
amenable to the government. See United States v. Ortiz, 23
F.3d 21, 23 (1st Cir. 1994).
Prior to July 21, 1993, Providence Police Detective
Stanley Nadrowski, pursuant to an on-going investigation, led
a police team that conducted several surveillances of
apartment buildings at 165 Peace Street, Providence, Rhode
Island, and 49 Marden Street, Cranston, Rhode Island. The
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team also surveilled a gray Chevrolet with Rhode Island
license plate YC-243, which was seen at both addresses.
At approximately 7:00 p.m. on July 21, 1993, in the
course of one of these surveillances, Nadrowski noticed Baez
leave 165 Peace Street, enter the gray Chevrolet, and drive
off. Nadrowski and several other members of the surveillance
team followed Baez to 49 Marden Street, which they saw him
enter. Subsequently, the police officers observed Baez exit
the building and drive onto Route 10. They followed him into
Providence, where he turned onto Westminster Street. At this
point, the police stopped him. Baez got out of his vehicle
and dropped a plastic bag containing 13.9 grams of cocaine to
the ground. The police then arrested him. In Baez's right
front pants pocket, the officers found a set of keys
containing keys to 165 Peace Street and 49 Marden Street.
One of the keys was labeled "49 Marden Street #7."
At the time of Baez's arrest, the police had
already obtained a search warrant for 165 Peace Street.
After his arrest, the police also obtained a warrant for
Apartment 7 at 49 Marden Street. The Marden Street warrant
was executed first, and the search of those premises led to
the discovery of 515.6 grams of cocaine, along with a Tanita
scale of the type used to weigh narcotics. The cocaine was
found in a Brillo box underneath a nightstand in the bedroom;
on top of an adjoining bureau was a picture of Baez.
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After the search of 49 Marden Street, the police
executed the search warrant for the first floor right
apartment at 165 Peace Street. Valerio and a baby were
present in the apartment at the time the search was executed.
Nadrowski searched the only bedroom in the apartment, and
found men's and women's clothing, two pairs of Baez's shorts,
photo albums containing pictures of Baez and Valerio, a
woman's flowered purse, identification cards and rent
receipts in Valerio's name, a child's health records to which
Valerio's name was affixed, and a bassinet. He and the other
officers also found 73.24 grams of cocaine and an operable,
unloaded .357 handgun. Most of the cocaine was found in the
lining under the seat cushion of a chair next to the bed;
14.83 grams of it, however, were found inside a baby's shoe,
which was on a bedroom shelf. The gun was next to the
cocaine in the chair lining. At the conclusion of this
search, Valerio was arrested.
At trial, the landlord of 165 Peace Street
testified that Baez had rented the apartment in April, 1993,
and that Baez had requested that the rent receipts be issued
in the name of Maria Valerio. The receipts bearing Valerio's
name were introduced with a cautionary instruction from the
court that they could be considered in connection with Baez's
case, but not Valerio's. The landlord testified that he saw
Baez two or three times between April, 1993 and the day of
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the arrest. He also testified that he had never seen Valerio
before the night of her arrest. This testimony was
consistent with Baez's testimony that Valerio was not a long-
term occupant of the apartment, but had been visiting him
from New York for the two or three days prior to her arrest.
B. Proceedings Below
B. Proceedings Below
On November 9, 1993, Baez and Valerio were
arraigned on a superseding, three-count indictment. Count I
charged them with conspiracy to distribute and possess with
the intent to distribute cocaine, in violation of 21 U.S.C.
846; Count II charged them with the underlying offense of
possession of cocaine with intent to distribute, in violation
of 21 U.S.C. 841(a)(1); Count III charged them with being
illegal aliens in possession of a firearm, in violation of 18
U.S.C. 922(g)(5).
The defendants moved to suppress the cocaine and
firearm that were the subject of the superseding indictment.
The district court denied the motion. Subsequently, Baez
renewed his suppression request, alleging for the first time
that the affidavits submitted in support of the search
warrants were false. He accordingly requested a Franks
hearing. See Franks v. Delaware, 438 U.S. 154, 171-72 (1978)
(summarizing showing a defendant must make to be entitled to
a hearing on the adequacy of a warrant affidavit). On
January 28, 1994, the court granted the motion for a Franks
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hearing and held a portion of it. On February 3, 1994, the
court concluded the hearing and denied Baez's motion to
suppress. At that same time, the court stated on the record
that it had been a mistake to grant Baez a Franks hearing in
the first place.
On February 16, 1994, trial began. Prior to trial,
the government moved to dismiss Count III of the indictment
against Valerio. The district court granted the motion. On
March 1, 1994, the jury found Baez guilty on all three counts
of the indictment and found Valerio guilty on Counts I and
II. On June 17, 1994, the district court sentenced Baez to
121 months in prison, five years of supervised release, and
$150 in special assessments. That same day, the court
sentenced Valerio to 13 months in prison, five years of
supervised release, and $100 in special assessments. The
court also ordered the defendants presented for deportation
as a condition of their supervised release. This appeal
followed.
II.
II.
Baez's Appeal
Baez's Appeal
Baez makes two arguments on appeal. First, he
contends that the district court erred in declining his
request, made at the conclusion of the Franks hearing, to
conduct an in camera proceeding at which the court would ask
the search warrant affiant submitted questions designed to
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impeach the affiant's credibility. Second, he claims that
Count II of the superseding indictment was duplicitous. It
is Baez's position that the error regarding the in camera
hearing requires that we set aside all three of his
convictions, and that the duplicitous count in the indictment
requires that we set aside his possession and conspiracy
convictions. The arguments are without merit.
A. The Requested In Camera Hearing
A. The Requested In Camera Hearing
The affidavits submitted in support of the
applications for warrants to search 49 Marden Street and 165
Peace Street stated, inter alia, that the affiant, Detective
Nadrowski, had received information from a confidential
informant that a Hispanic male (who turned out to be Baez)
was distributing cocaine out of the first floor right
apartment at 165 Peace Street. The affidavits also stated
that this same confidential informant, under police
supervision, had made two recent controlled purchases of
cocaine in Baez's gray Chevrolet at a prearranged location.
In moving for a Franks hearing, Baez challenged the veracity
of these statements, submitting as proof an affidavit of his
own which swore that he had never sold drugs to anyone at a
prearranged location. The sum and substance of Baez's
position was that Nadrowski had fabricated the confidential
informant's existence.
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Calling Baez's showing "marginal," the district
court nonetheless ruled that Baez's affidavit was substantial
enough to warrant a Franks hearing. See Franks, 438 U.S. at
155-56 (defendant is entitled to Franks hearing if s/he can
make a "substantial preliminary showing" that (1) a statement
in a warrant affidavit was knowingly or intentionally false,
or made with reckless disregard for the truth; and (2) the
falsehood was necessary to the finding of probable cause);
see also United States v. Hadfield, 918 F.2d 987, 992 (1st
Cir. 1990), cert. denied, 500 U.S. 936 (1991). Baez and
Nadrowski testified at the hearing, and both gave accounts
entirely consistent with their affidavits. Baez also
provided testimony elaborating on the reason for his entering
49 Marden Street prior to his arrest.1 He stated that he
had gone to the building (for the third time that day) in
order to retrieve a telephone bill for the renters of
Apartment 7, who were out of town and had asked him to
retrieve and to safeguard the bill. He also stated that he
did not know when they would return.
Recognizing that he had not carried his burden of
proving that the warrant affidavits were infected by
falsehoods, Baez asked, at the conclusion of the hearing,
1. The affidavit submitted in support of the request for a
warrant to search Apartment 7 at 49 Marden Street noted that
Baez had entered the building just prior to his arrest.
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that the district court further examine Nadrowski in camera
regarding the identity of the confidential informant. The
district court denied this request, stating that such a
hearing was not necessary. The court then denied Baez's
motion to suppress the evidence seized during the execution
of the search warrants. In so doing, the court found that
Nadrowski had been a credible witness and that Baez had been
less credible (particularly with regard to the reason for his
presence at 49 Marden Street just prior to his arrest).
It is settled that "`a district court need not
conduct an in camera hearing whenever the identity of an
informant is requested.'" United States v. Higgins, 995 F.2d
1, 3 (1st Cir. 1993) (quoting United States v. Fixen, 780
F.2d 1434, 1439 (9th Cir. 1986)). Instead, it is entirely
within the discretion of the judge presented with the request
to decide whether the disclosure is necessary in order to
determine the believability of the testifying officer. Id.
And there is, of course, a presumption of validity with
respect to the affidavit supporting the search warrant.
Franks, 438 U.S. at 171. Moreover, the factual findings made
by a district court in connection with a Franks hearing are
reviewed only for clear error. United States v. Barnett, 989
F.2d 546, 556 (1st Cir.), cert. denied, 114 S. Ct. 148 (1993)
and 114 S. Ct. 149 (1993).
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Here, we can perceive no abuse of discretion in the
trial judge's refusal to hold the requested in camera
hearing. At the conclusion of the Franks hearing, the judge
credited the testimony of Detective Nadrowski and discredited
that of Baez. He also found that he had heard enough at that
point to satisfy himself that there was no basis for
concluding that Nadrowski's affidavits were false. We have
carefully reviewed the transcript of the Franks hearing and
can discern no error, let alone clear error, in any of these
rulings. This ends the matter.
Accordingly, we reject Baez's argument that the
court's failure to hold an in camera hearing after the Franks
hearing requires reversal of his convictions.
B. Duplicity in the Indictment
B. Duplicity in the Indictment
Baez's second argument, that Count II (the
possession count) of the superseding indictment was
duplicitous, requires little discussion. Baez never objected
to Count II for duplicity, or any other grounds, in the
district court. He accordingly has waived his argument. See
Fed. R. Crim. P. 12(b)(2) (defenses and objections based on
defects in the indictment (other than that it fails to show
jurisdiction in the court or to charge an offense) must be
raised prior to trial); see also United States v. Sheehy, 541
F.2d 123, 130 (1st Cir. 1976).
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Even were we to reach the merits of Baez's
duplicity argument, we would reject it as based upon a
misapprehension of the concept of duplicity. Baez's problem
with Count II does not lie in the wording of the count; it
lies in the fact that the evidence underlying the count
allegedly could have given rise to three separate counts
charging possession. This is not duplicity. A count is
duplicitous when it charges more than one offense in a single
count. United States v. Huguenin, 950 F.2d 23, 25 (1st Cir.
1991) (per curiam). Although other factors are involved, the
prohibition against duplicitous indictments arises primarily
out of a concern that the jury may find a defendant guilty on
a count without having reached a unanimous verdict on the
commission of any particular offense. See id. at 26.2
Obviously, this only becomes a problem when the indictment
actually charges two or more offenses in a single count.
Here, Count II of the indictment charged only one offense:
"That on or about July 21, 1993, in the District of Rhode
Island, the defendants, DOMINGO BAEZ and MARIA VALERIO, did
knowingly, willfully and intentionally possess with intent to
distribute a mixture and substance containing a detectable
amount of cocaine, a Schedule II Controlled Substance." The
2. For example, if Count X of an indictment charges a
defendant with having committed two offenses, A and B, a
conviction would be possible even if Jurors 1-6 found only
that the defendant committed offense A, and jurors 7-12 found
only that the defendant committed offense B.
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question whether the actions to which this count referred
could have been charged as separate crimes is irrelevant.
The count was not duplicitous.
Accordingly, we reject Baez's argument that there
was a duplicitous count in his indictment.
III.
III.
Valerio's Appeal
Valerio's Appeal
Valerio's sole appellate argument is that the
evidence adduced at trial was not sufficient for the jury to
have concluded beyond a reasonable doubt that she possessed
the cocaine with an intent to distribute it, aided or abetted
such a possession, or conspired to commit such a possession.
After carefully reviewing the record, we agree. Central to
our determination is a belief that the jury could not
reasonably have found that Valerio had an intent to
distribute cocaine.
We start by acknowledging the formidable showing a
defendant must make in order to prevail on a claim of
insufficient evidence. In conducting a sufficiency
assessment, "we examine the record in a light most favorable
to the government, drawing all reasonable inferences in its
favor, with an eye towards whether the proof would have
allowed a rational jury to determine beyond a reasonable
doubt that the defendant was guilty of the crime charged."
Ortiz, 23 F.3d at 24. "In this analysis, no premium is
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placed upon direct as opposed to circumstantial evidence;
both types of proof can adequately ground a conviction."
United States v. Ortiz, 966 F.2d 707, 710 (1st Cir. 1992),
cert. denied, 113 S. Ct. 1005 (1993). In fact, the
government's proof may lay entirely in circumstantial
evidence. United States v. Akinola, 985 F.2d 1105, 1109 (1st
Cir. 1993).
That having been said, it must be borne in mind
that the proof must still have been sufficient for the jury
to have found guilt beyond a reasonable doubt. See United
States v. Loder, 23 F.3d 586, 590 (1st Cir. 1994). Thus,
although the government need not exclude every reasonable
hypothesis of innocence in order to sustain the conviction,
see Ortiz, 23 F.3d at 24, we are loath to stack inference
upon inference in order to uphold the jury's verdict, cf.
Ingram v. United States, 360 U.S. 672, 680 (1959) (citing
Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943)).
In order to secure a conviction under the
possession with intent to distribute count, the government
had to prove beyond a reasonable doubt that Valerio knowingly
and intentionally possessed the drugs, and that she did so
with an intent to distribute them. United States v. Paulino,
13 F.3d 20, 25 (1st Cir. 1994). Under the conspiracy count,
the government had to prove beyond a reasonable doubt that
Valerio intended to agree and intended to effectuate the
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commission of the underlying possession with intent to
distribute offense. See United States v. Piper, 35 F.3d 611
(1st Cir.), petition for cert. filed, U.S.L.W. (U.S.
Nov. 14, 1994) (No. 94-6876). For Valerio to have been
convicted under an aiding and abetting theory, the government
had to prove that (1) Baez committed the underlying
substantive crime; and (2) Valerio "associated [her]self with
the venture, participated in it as something [s]he wished to
bring about, and sought by [her] actions to make it succeed."
Loder, 23 F.3d at 590-91 (citations omitted). It is clear,
therefore, that both of Valerio's convictions must be set
aside if the jury could not have found beyond a reasonable
doubt that Valerio intended that the cocaine be distributed.
No such finding was possible on this record.
First, there was no direct evidence that Valerio
participated in or helped facilitate the distribution of any
cocaine. Nor is there any direct evidence that she intended
that the cocaine be distributed. Thus, the government is
left to argue that proof of Valerio's distributive intent can
be found in a type of circumstantial evidence of which we
have approved on several occasions: knowledge of the
quantity of the drugs involved. See Ortiz, 23 F.3d at 25
(intent to distribute can be inferred from the quantity of
the controlled substance possessed) (citing United States v.
Echeverri, 982 F.2d 675, 678 (1st Cir. 1993)). In other
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words, the government's position is that, because the
quantity of drugs found in 165 Peace Street was not
consistent with personal consumption, the jury correctly
inferred a distributive intent on the part of Valerio.
The problem with this position is that, even were
we to infer that Valerio was aware of the 14.83 grams of
cocaine in the baby shoe,3 the evidence at trial was
insufficient to prove that Valerio knew of the existence of
the cocaine in the chair lining. This cocaine was not in
plain view, and not likely to have been discovered by a
short-term occupant of the bedroom.4 And without a finding
that Valerio knew about this cocaine, the quantity of drugs
of which Valerio was aware is not large enough to support an
inference of distributive intent.
3. The reasonableness of such an inference, which the
government urges us to draw because Valerio was taking care
of a baby at the time of the search, is open to serious
question. First, it appears that the cocaine in the baby
shoe was not in plain view; that is to say, there is no
suggestion that it was sticking out of the shoe and visible
to occupants of the bedroom in which it was found. And
second, the government did not attempt to prove at trial that
the shoe belonged to Valerio's baby. When these facts are
considered in conjunction with the fact that the evidence was
insufficient to prove that Valerio was anything other than a
short-term visitor to the apartment, see infra at 16-17, we
are skeptical that any factfinder could conclude beyond a
reasonable doubt that Valerio knew of the cocaine in the baby
shoe.
4. The government asserts that "[a]lthough not exposed to
plain view, the cocaine was readily accessible since one only
had to turn over the chair to find it." The issue, however,
is not accessibility; it is knowledge of the cocaine's
existence.
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Of course, if it had been demonstrated that Valerio
was a long-term occupant of the apartment at 165 Peace
Street, it might be reasonable to infer that she knew about
all the drugs that were stored there. The evidence at trial
was insufficient, however, to prove beyond a reasonable doubt
that Valerio had been anything other than a short-term
occupant of the apartment at 165 Peace Street at the time of
her arrest. Although the rent receipts for the apartment
were issued in Valerio's name, the landlord of the apartment
testified that this was done at Baez's request; and it was
for this reason that the court instructed the jury not to
consider the rent receipts in connection with the case
against Valerio. Furthermore, the landlord testified that he
lived at 165 Peace Street but had never seen Valerio prior to
her arrest. And, of course, Baez himself testified that
Valerio had only been visiting for two or three days prior to
her arrest. The jury was free to disbelieve any and all of
this testimony; any inference of longer-term residence must,
however, have been predicated on an evidentiary basis. There
was no such basis here.5
5. The government makes much of the fact that the bedroom
contained a flowered purse, identification cards for Valerio,
a child's health care record to which Valerio's name was
affixed, and photo albums containing pictures of Baez and
Valerio, arguing that "[t]hese are not the type of items one
would expect to find if Valerio were merely a casual visitor
to the apartment." We cannot agree; in our view, there is
nothing at all unusual about a mother of a baby bringing a
purse, identification, and the baby's health records along on
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Before concluding, we think it important to point
out that the evidence against Valerio in this case was even
weaker than that in other cases in which we have reversed
convictions on sufficiency grounds.
In United States v. Ocampo, 964 F.2d 80 (1st Cir.
1992), for instance, we held that the evidence was
insufficient to support the defendant's conviction for
conspiracy to possess with intent to distribute cocaine. In
that case, the evidence showed, inter alia, that the
defendant had lived in the apartment where the cocaine had
been stored for four to six months, and that she had told
investigating officers that five quart-sized cans of acetone
found in the apartment (evidence at trial established that
acetone is used to dilute cocaine) were used "to clean off
her fingernails." Id. at 81-82.
In United States v. Hyson, 721 F.2d 856 (1st Cir.
1983), we found the evidence insufficient to support one
defendant's conviction for conspiracy to distribute and to
possess with intent to distribute heroin, marijuana, hashish
and cocaine. In that case, the evidence established that
a multiple-day visit to a friend living approximately two
hundred miles away. And even if we assume that the photo
albums were Valerio's (which we have no basis for doing),
there is nothing in the record indicating that the albums
were of such a nature, or set up in such a way, that they
were unlikely to have been brought to Providence by Valerio
on a short visit.
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this defendant lived with a codefendant in an apartment where
hashish was stored and knew of its existence. Id. at 862-63.
And in United States v. Mehtala, 578 F.2d 6 (1st
Cir. 1978), we found the evidence insufficient to support the
defendant's conviction for knowingly and intentionally
importing marijuana into the United States. In that case,
the evidence established that the defendant, a twenty-year-
old girl, had spent nearly four months at sea in a "close
relationship" with the captain of a ship off whose stern was
floating approximately fifty pounds of marijuana. Id. at 7-
10. The evidence here may well have been sufficient to
support a finding that Valerio possessed cocaine. It was
not, however, sufficient to support a finding that she
intended that cocaine be distributed. Because such a finding
was a necessary element of her offenses of conviction, her
convictions cannot stand.
Accordingly, we reverse Maria Valerio's convictions
for possession of cocaine with intent to distribute and
conspiracy to commit the same offense.
IV.
IV.
For the reasons stated, we affirm the convictions
of defendant Domingo Baez and reverse the convictions of
defendant Maria Valerio.6
6. Because Baez was convicted of conspiring both with
Valerio and with "other persons known and unknown to the
Grand Jury," our reversal of Valerio's conspiracy conviction
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does not require reversal of Baez's conspiracy conviction.
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