United States v. Soler

United States Court of Appeals
For the First Circuit

No. 01-1179

UNITED STATES OF AMERICA,

Appellee,

v.

ANIBAL SOLER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Selya, Circuit Judge,

Rosenn* and Cyr, Senior Circuit Judges.

Richard Abbott, by appointment of the court, for appellant.
Todd E. Newhouse, Assistant United States Attorney, with
whom James B. Farmer, United States Attorney, was on brief, for
the United States.

January 4, 2002
_______________
*Of the Third Circuit, sitting by designation.
 SELYA, Circuit Judge. This appeal presents a series

of questions, some of novel impression in this circuit,

concerning various federal drug-trafficking laws. Those

questions touch upon the quantum of evidence necessary to

establish the existence of a drug-trafficking conspiracy; the

necessity (if any) for a showing of reasonable foreseeability in

a prosecution for selling heroin, death resulting; and the type

and kind of proof that the government must adduce to convict a

defendant of selling drugs within 1,000 feet of a school. We

resolve most of these questions favorably to the government, but

we resolve the last question favorably to the defendant (finding

that the government did not present evidence from which a

rational jury could conclude beyond a reasonable doubt that

heroin sales occurred within 1,000 feet of a school).

Accordingly, we affirm in part and reverse in part.

I. BACKGROUND

We limn the facts in the light most favorable to the

government, consistent with record support. United States v.

Houlihan, 92 F.3d 1271, 1277 (1st Cir. 1996).

On the morning of July 21, 1999, five men — Thomas

Dudek, Christopher Stevenson, Edward Thompson, Matthew Lawrence,

and Granger Fulton — gathered at Stevenson's apartment in

Sunderland, Massachusetts. The men drank heavily, and Lawrence

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and Fulton eventually passed out. Despite having consumed

between ten and twenty beers apiece, the other three drove to

Holyoke in search of cocaine. Dudek, apparently the most drug-

savvy of the three, directed Thompson to drive to 67 Newton St.

Thompson remained in the car while his confreres climbed an

exterior staircase at the back of the building.

Dudek previously had purchased cocaine on the second

floor, but this time he and Stevenson ascended to the third-

floor landing where a makeshift door, constructed of plywood and

chicken wire, blocked further access. Defendant-appellant

Anibal Soler met them at that point. When asked what they

wanted, Stevenson replied, "$200 worth." The appellant

retreated inside and emerged with twenty plastic bags labeled

"Me Salve." He handed them to Dudek in exchange for cash.

As matters turned out, the bags contained heroin, not

cocaine. Dudek apparently recognized that fact, but said

nothing to the others. Stevenson began to snort some of the

heroin inside the car. The men drove to Thompson's apartment in

Chicopee, where all three proceeded to snort heroin until they

collapsed.

Thompson's girlfriend appeared on the scene hours later

and tried to revive him. Failing in this effort, she called for

help. Dudek awoke before the paramedics arrived, but his two

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friends remained comatose. The paramedics rushed all three men

to the hospital and, soon thereafter, Thompson was pronounced

dead.

The authorities immediately undertook an investigation

and enlisted Dudek's cooperation (Stevenson did not awake from

his coma until seven days later). Upon learning the source of

the heroin, they decided to dispatch an undercover state

trooper, Juan Colon, to 67 Newton St. On the following day

(July 22), Colon, posing as a customer, climbed the exterior

stairs to the third-floor landing. When he called into the

apartment, a pregnant female emerged and asked what he wanted.

Colon responded, "two bags." The woman left the doorway

momentarily (as the appellant had done when Dudek appeared) and

returned with two bags of heroin, one stamped "e Salve" (an

obvious error in which the "M" in "Me Salve" presumably missed

the bag's surface during the stamping process) and the other

"Blunt." Colon handed her a $20 bill and departed.

Later that day, Colon revisited the third-floor

landing. This time, the appellant responded and sold him two

bags of heroin, both labeled "Blunt." Once again, Colon paid

for the drugs with a $20 bill. The authorities then executed a

search warrant for the third-floor apartment. Both the

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appellant and the pregnant woman were there when the police

arrived — and both attempted to flee.

A search of the premises yielded, among other things,

thirty bags of heroin (all labeled "Blunt") and over $5,000 in

United States currency. Stashed with the heroin was $1,010 in

cash, including the two $20 bills that Colon had used to pay for

his purchases from the pregnant woman and the appellant,

respectively.

In due course, a federal grand jury handed up a five-

count indictment. The indictment charged the appellant with

distribution of heroin, death resulting, on July 21, 1999, in

violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C) (count 1);

possession of heroin with intent to distribute on July 22, 1999,

in violation of 21 U.S.C. § 841(a)(1) (count 3); possession of

heroin with intent to distribute within 1,000 feet of a school

on each of those two dates, in violation of 21 U.S.C. § 860(a)

(counts 2 and 4); and conspiracy to possess and distribute

heroin, in violation of 21 U.S.C. §§ 841(a)(1) & 846 (count 5).1

Following a ten-day trial, the jury found the appellant guilty

on all five counts. On December 5, 2000, the district court

imposed concurrent sentences of life imprisonment on counts 1,

1
For ease in reference, we reprint pertinent portions of
these statutes in an appendix hereto.

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2, and 5, thirty years on count 3, and sixty years on count 4.

The court sentences were enhanced because the government,

pursuant to 21 U.S.C. § 851, appropriately brought to the

court's attention the appellant's previous convictions for

unrelated drug-trafficking felonies. This timely appeal ensued.

II. THE CONSPIRACY CHARGE

We turn first to the appellant's conviction on the

conspiracy count and to his contention that the evidence was

insufficient to prove that charge. The appellant raised the

same point in a timely motion for judgment of acquittal. See

Fed. R. Crim. P. 29. The district court denied the motion,

finding the evidence adequate. We review the district court's

denial of a motion for judgment of acquittal de novo, applying

the same standard as the lower court. This means that we must

uphold the verdict unless the evidence, viewed in the light most

hospitable to the government's theory of the case, could not

have persuaded a rational trier of fact, beyond any reasonable

doubt, of the defendant's guilt. United States v. Lara, 181

F.3d 183, 200 (1st Cir. 1999). In other words, the verdict can

stand if — and only if — the evidence, viewed in the requisite

light, suffices to establish each element of the offense of

conviction beyond a reasonable doubt. Id.

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 To prove the existence of a conspiracy under 21 U.S.C.

§ 846, "the government must present clear evidence sufficient to

show beyond a reasonable doubt that an agreement to commit the

substantive offense actually existed, and that the individual

defendant knew of the agreement, had intent to agree, and had

intent to commit the substantive offense." United States v.

Lopez-Pena, 912 F.2d 1536, 1537 (1st Cir. 1989). When direct

evidence of any one or more of these elements is lacking, that

element may be proven by circumstantial evidence. United States

v. Barnes, 244 F.3d 172, 175 (1st Cir. 2001).

In this instance, the appellant claims that there is

no significantly probative evidence to show that he and the

pregnant woman (who was taken into custody, but who was neither

charged in this indictment nor called as a witness at the trial)

were acting in concert. Although the appellant concedes that

the jury could have found that each of them was selling drugs

from the identical locus, he asserts that their mere presence in

the same apartment is not enough to establish the existence of

a conspiracy. See United States v. Ocampo, 964 F.2d 80, 82-83

(1st Cir. 1992) (holding that mere presence of two defendants in

the same apartment is insufficient to prove that both knowingly

participated in drug trafficking within that apartment).

Relatedly, he asserts that a conspiracy, by definition, requires

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more than one member, and that the woman's participation in a

single heroin sale does not establish her status as a

coconspirator. See United States v. Izzi, 613 F.2d 1205, 1210

(1st Cir. 1980) (finding participation in a single drug sale,

without more, to be inadequate to sustain a conspiracy

conviction).

This argument is cleverly constructed, but it

understates the force of the government's proof. Here, unlike

in Ocampo, the evidence showed that both occupants of the

apartment were actively engaged in the sale of drugs. Thus, the

jury could have found that the pregnant woman was not merely

present, but culpably present. Cf. United States v. Ortiz, 966

F.2d 707, 712 (1st Cir. 1992) (distinguishing between "mere

presence" and "culpable presence"). And here, unlike in Izzi,

the proof did not show only a single drug sale, but, rather,

three sales over a two-day period — with an inventory of heroin

suggesting a readiness to engage in future transactions.

Even apart from these distinctions, the government's

evidence is significantly more elaborate than the appellant

suggests. The two alleged coconspirators were operating out of

the same "store" and selling identically marked bags from the

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same inventory.2 Both of them were in the apartment at the time

of the police raid — and both attempted to flee. Finally, and

perhaps most damagingly, the $20 bills tendered to the pregnant

woman and to the appellant, respectively, were found commingled

in a pile of cash stored with the drugs. We think that this

evidence constitutes substantial proof that the two were engaged

in a common enterprise, the proceeds of which were pooled. See

generally United States v. LiCausi, 167 F.3d 36, 45 (1st Cir.

1999) ("In reviewing a jury's finding that a single conspiracy

existed, we consider specifically such factors as the

commonality vel non of the nature, motive, design,

implementation, and logistics of the illegal activities as well

as the scope of coconspirator involvement.").

The appellant interposes a final objection, noting that

there was no evidence of the pregnant woman's participation in

the venture on the first day of the alleged two-day conspiracy.

This objection is wide of the mark. There is no requirement

that each coconspirator participate in every act of the

conspiracy. Cf. United States v. David, 940 F.2d 722, 735 (1st

2
The appellant confessed at one point that he had been
selling Me Salve heroin but that his supply of Me Salve had been
exhausted on July 22, at which point he switched to Blunt. The
serial sales, including the pregnant woman's sale to Colon, fit
into this pattern and strongly suggest that both vendors were
selling from the same inventory.

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Cir. 1991) (explaining that one who joins a conspiracy may be

held "accountable for the earlier acts of his coconspirators in

furtherance of the conspiracy"). Here, the government adduced

competent proof that the object of the conspiracy — heroin

distribution — took place over a two-day period. We think that

a rational jury easily could conclude — as this jury did — that

these activities came within the scope of a tacit agreement

between the two coconspirators. Consequently, we affirm the

appellant's conviction on count 5.

III. THE "DEATH RESULTING" CHARGE

In count 1 of the indictment, the grand jury charged

a violation of 21 U.S.C. § 841(b)(1)(C). Under that statute, a

drug trafficker faces an enhanced sentence "if death or serious

bodily injury results from the use [of the drugs purveyed]."

The appellant argues that the statute is inapposite because the

key event leading to the death — Thompson's snorting of heroin

under the misimpression that it was cocaine — was not reasonably

foreseeable (and, thus, the death itself was not reasonably

foreseeable). This brings us to the preliminary question of

whether the operation of section 841(b)(1)(C) depends to any

extent upon proof that death was reasonably foreseeable.

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 This is a question of first impression in this circuit.

The district court answered it in the negative.3 Because this

is a purely legal issue, we review the correctness of the

district court's disposition de novo. United States v. Pitrone,

115 F.3d 1, 4 (1st Cir. 1997).

By its terms, the statute of conviction applies

whenever "death . . . results" from the use of drugs supplied by

the defendant. 21 U.S.C. § 841(b)(1)(C). The fact that the

statute does not speak to the defendant's state of mind

undercuts the appellant's argument that we should impose some

kind of foreseeability test. After all, Congress knows how to

write statutes containing state-of-mind requirements — and

Congress demonstrated that facility in crafting this very

statute. E.g., id. § 841(a) (prohibiting knowing and

intentional drug trafficking). This makes the omission of an

explicit intent requirement in section 841(b)(1)(C) telling.

See Duncan v. Walker, 121 S. Ct. 2120, 2125 (2001) ("'[W]here

Congress includes particular language in one section of a

3 The court charged the jury in pertinent part:

The government need not prove that the defendant knew
his distribution of heroin could result in the death
of another . . . . All that the government must prove
beyond a reasonable doubt is that Mr. Thompson used
the heroin the defendant distributed, and that but for
Mr. Thompson's use of the defendant's heroin, Mr.
Thompson would not have died.

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statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.'") (quoting

Russello v. United States, 464 U.S. 16, 23 (1983)); In re 229

Main St. Ltd. P'ship, 262 F.3d 1, 5-6 (1st Cir. 2001) (same).

The case law tracks in the same direction. Although

the appellant cites several cases that he claims impose a

reasonable foreseeability requirement, those cases all involve

liability of one coconspirator for the acts of others. E.g.,

United States v. Swiney, 203 F.3d 397, 339 (6th Cir. 2000);

United States v. Chisholm, 73 F.3d 304, 208 (11th Cir. 1996);

United States v. DePriest, 6 F.3d 1201, 1212-13 (7th Cir. 1993).

When the defendant's own conduct has caused the harm, those

cases are inapposite. Rather, a rule of strict liability

applies. See United States v. McIntosh, 236 F.3d 968, 972 (8th

Cir. 2001) (holding, in the context of subsection 841(b)(1)(A),

that "giving effect to [the statute's] plain meaning prohibits

us from superimposing upon the statute a foreseeability or

proximate cause requirement"); United States v. Patterson, 38

F.3d 139, 145 (4th Cir. 1994) (holding that section 841(b)(1)(C)

does not require a finding that death resulting from the use of

a distributed drug was reasonably foreseeable). Thus, when a

defendant deals drugs and a user of those drugs dies as a

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result, section 841(b)(1)(C) applies without any independent

proof that the death was a reasonably foreseeable event.

Because the lower court correctly apprehended this point, we

affirm the appellant's conviction on count 1.

IV. THE "SCHOOLYARD" COUNTS

21 U.S.C. § 860(a), colloquially called "the schoolyard

statute," provides enhanced penalties, inter alia, for the sale

of drugs within 1,000 feet of a school. The jury convicted the

appellant of violating this statute on both July 21 (count 2)

and July 22 (count 4). The appellant mounts a two-pronged

challenge to these convictions. We consider each prong

separately.

A. The School.

The schoolyard statute focuses on the sale of drugs

within 1,000 feet of any "real property comprising a public or

private elementary, vocational, or secondary school . . . ." 21

U.S.C. § 860(a). The appellant questions whether the government

presented sufficient evidence that such a facility existed in

the vicinity of 67 Newton St. We think that it did.

To be sure, the government's proof is grudgingly bare.

The only testimony on the point came from a Holyoke police

officer, William Lempke, who identified a nearby structure as

"Lawrence Elementary School" and stated that it was "a public

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school in Holyoke." The appellant insists that Lempke was not

a competent witness on the point — but he did not object to the

testimony when it was adduced and has waived any right to

challenge the witness's competence on appeal. United States v.

Taylor, 54 F.3d 967,972 (1st Cir. 1995) (discussing operation of

the raise-or-waive rule).

Of course, even if Lempke was a competent witness, it

is arguable that his testimony, standing alone, was insufficient

to prove the existence of a school beyond a reasonable doubt.

On this point, the appellant strikes a responsive chord when he

posits that the introduction of a map, the testimony of a city

planner, or evidence from a school official would have been a

vastly preferable means of establishing that fact. The issue,

however, is not whether the government proved this element of

the offense in the best or most effective way, but, rather,

whether the proof adduced was legally adequate. After all,

sufficiency of evidence is a context-specific concern, and it

must be determined by whether a rational juror could have found

the essential fact beyond a reasonable doubt. See Lara, 181

F.3d at 200.

In the case at hand, the witness had been a member of

the local police force for fifteen years. He testified that he

was intimately familiar with the neighborhood and that he worked

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out of a police station located within a block of 67 Newton St.

(and, thus, quite close to the structure that he identified as

a school). Taking these facts into account and giving the

government the benefit of the inferences therefrom, see

Houlihan, 92 F.3d at 1277, we conclude that the officer's

testimony was enough — if barely — to prove the existence of a

school.4

B. The Measurement.

The second prong of the appellant's argument is more

finely honed. He faults the government for not presenting

adequate evidence that a drug transaction took place within the

proscribed area — the 1,000-foot distance specified in section

860(a).

This court has not spoken to how distance ought to be

measured in cases brought under the schoolyard statute. We do

so today. In order to convict under section 860(a), the

government must prove beyond a reasonable doubt that the

4
This case is distinguishable from United States v. Smith,
13 F.3d 380 (10th Cir. 1993), much bruited by the appellant.
There, the court found testimony that a park contained a
playground insufficient for purposes of section 860. The
statute, however, contains a specific definition of what
constitutes a playground, see 21 U.S.C. § 860(e) (stating that
a playground must have "three or more separate [recreational]
apparatus"), and the police officer who testified in Smith did
not speak to this aspect of the definition, see 13 F.3d at 382.
Section 860 contains no such qualifying language for what
constitutes a school.

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distance from a school to the actual site of the transaction,

not merely to the curtilage or exterior wall of the structure in

which the transaction takes place, is 1,000 feet or less. See

United States v. Harrison, 103 F.3d 986, 990 (D.C. Cir. 1997);

United States v. Johnson, 46 F.3d 1166, 1169-70 (D.C. Cir.

1995). To achieve this benchmark here, the government again

relies upon officer Lempke's testimony. Lempke stated that he

used a measuring wheel as he walked from the rear entrance of 67

Newton St. to the corner of the school building. He calculated

that distance to be 963 feet. But this left an obvious gap —

the distance between the base of the Newton St. building and the

third-floor landing on which the heroin was sold — and the

government offered no direct evidence as to that distance.

In an effort to fill this void, the government

asseverates that a reasonable jury could have determined the

unmeasured distance based on a videotape made during an

unrelated drug raid earlier that month. This asseveration rings

hollow. Precise measurements may be unnecessary in some cases

where the spatial leeway is relatively great and the gap in the

chain of proof is relatively small. E.g., United States v.

Glover, 153 F.3d 749, 756 (D.C. Cir. 1998) (holding 326-foot

leeway sufficient to cover measurement gap from front door of

convenience store to the store's basement); Harrison, 103 F.3d

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at 990 (holding 528-foot leeway sufficient to cover measurement

gap from the exterior of an apartment building to defendant's

unit); United States v. Baylor, 97 F.3d 542, 546 (D.C. Cir.

1996) (holding 466-foot leeway sufficient to cover measurement

gap from the exterior of an apartment building to defendant's

basement apartment). In such extreme instances, common sense,

common knowledge, and rough indices of distance can carry the

day. When the spatial leeway is modest, however, and personal

liberty is at stake, courts must examine the government's proof

with a more critical eye.

United States v. Applewhite, 72 F.3d 140 (D.C. Cir.

1995), illustrates the point. There, the court of appeals

reversed a conviction on the ground that there was no evidence

from which a jury could conclude that the defendant's kitchen,

where drugs were found, was within the relatively small leeway

(under eighty feet) left open by a measurement of the distance

between the school and the entrance to the apartment building in

which the defendant resided. Id. at 143-44. So too Johnson, in

which the court reversed a conviction where the only evidence of

distance was a measurement of 994 feet up to the walkway of the

defendant's house. 46 F.3d at 1169-70.

The case at hand is one in which the spatial leeway is

exceedingly modest: the gap here is thirty-seven feet. We have

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viewed the videotape mentioned by the government and find

unconvincing the assertion that the jury could have determined

from it beyond a reasonable doubt that the vertical distance was

less than thirty-seven feet. Although the videotape was played

several times for the jury, it was neither filmed with an eye

toward elucidating relative distances nor introduced into

evidence for that purpose. Moreover, it showed the relevant

portion of the building fleetingly and as an incidental matter;

the camera angles were distorted by the repeated use of a zoom

lens; and the prosecutor did not even attempt to draw the jury's

attention to the scale involved.

To say more on this point would be supererogatory.

Distances are notoriously difficult to gauge in still

photographs, see Baylor, 97 F.3d at 546 ("Spatial relationships

are hardly intuitive, and photographs can distort distances."),

and more so in motion pictures (such as videotapes). This case

is no exception. We conclude that the videotape is some

tangential evidence of the unmeasured distance, but it is not

sufficient evidence to establish that measurement beyond a

reasonable doubt. The spatial leeway is too small and the risk

of error too great. Although it is possible (indeed, probable)

that the distance from the school to the site of the heroin

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sales was less than 1,000 feet,5 that is not good enough. The

government must prove the elements of an offense beyond a

reasonable doubt — and its proof here simply does not conform to

that high standard.

We are constrained to add that, in this instance, the

government plainly has been the author of its own misfortune.

A simple measuring tape dropped from the third-floor landing

would have closed the gap and resolved all doubt. 6 If that

measurement would have favored the government, it is hard to

imagine why the government did not undertake it. In all events,

the insufficiency of the evidence on this point undermines the

appellant's convictions on counts 2 and 4.

V. CONCLUSION

5
One reason for this intuition is that the government's 963-
foot measurement likely overstates the distance from the school
to the corner of the apartment building. That measurement
started at the school building itself, rather than at the "real
property comprising [the] school." 21 U.S.C. § 860(a). The
government has made no such argument, however, and it has
provided no basis for calculating the distance from the school
building to the lot line. We therefore do not probe the point.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(explaining that arguments not properly developed on appeal are
deemed waived).
6
A direct vertical measurement, rather than one following
the winding staircase, would have been appropriate, as the
schoolyard statute envisions straight-line rather than
pedestrian-route measurements. Johnson, 46 F.3d at 1170; United
States v. Watson, 887 F.2d 980, 981 (9th Cir. 1989).

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 We need go no further. The government introduced

sufficient evidence on the conspiracy charge, and the district

court correctly refused to instruct the jury that section

841(b)(1)(C) contains a requirement of reasonable

foreseeability. Thus, we affirm the appellant's convictions on

counts 1, 3, and 5, and leave intact the sentences on those

counts. The government, however, failed to prove beyond a

reasonable doubt that any drug transaction occurred within 1,000

feet of a school. Hence, we reverse the appellant's convictions

on counts 2 and 4, and vacate the sentences imposed on those

counts.

Affirmed in part and reversed in part.

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 Appendix

Relevant excerpts from the United States Code 21 U.S.C. §§ 841,

846, 860 (1994 & Supp. V 1999).

§ 841. Prohibited acts A

(a) Unlawful acts. . . . [I]t shall be unlawful for any person

knowingly or intentionally--

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or

dispense, a controlled substance . . . .

(b) Penalties. . . . [A]ny person who violates subsection (a)

of this section shall be sentenced as follows:

(1)

. . . .

(C) In the case of [heroin and certain other

controlled substances, and] except as provided in subparagraphs

(A), (B), and (D), such person shall be sentenced to a term of

imprisonment of not more than 20 years and if death or serious

bodily injury results from the use of such substance shall be

sentenced to a term of imprisonment of not less than twenty

years or more than life . . . . If any person commits such a

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violation after a prior conviction for a felony drug offense has

become final, such person shall be sentenced to a term of

imprisonment of not more than 30 years and if death or serious

bodily injury results from the use of such substance shall be

sentenced to life imprisonment. . . .

§ 846. Attempt and conspiracy

Any person who attempts or conspires to commit any offense

defined in this title shall be subject to the same penalties as

those prescribed for the offense, the commission of which was

the object of the attempt or conspiracy.

§ 860. Distribution in or near schools

(a) Penalty. Any person who violates section 401(a)(1) [21 USCS

§ 841(a)(1)] . . . by distributing, possessing with intent to

distribute, or manufacturing a controlled substance in or on, or

within one thousand feet of, the real property comprising a

public or private elementary, vocational, or secondary school or

a public or private college, junior college, or university, or

a playground, or housing facility owned by a public housing

authority, or within 100 feet of a public or private youth

center, public swimming pool, or video arcade facility, is

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(except as provided in subsection (b)) subject to (1) twice the

maximum punishment authorized by section 401(b) [21 USCS §

841(b)]. . . .

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