United States v. Valle

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