USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
No. 92-2470
UNITED STATES OF AMERICA,
Appellee,
v.
TEMISTOCLES PAULINO,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
___________________
_________________________
Before
Selya, Cyr and Stahl, Circuit Judges.
______________
_________________________
Scott A. Lutes for appellant.
______________
Margaret E. Curran, Assistant United States

Attorney, with

___________________
whom Edwin J. Gale, United States Attorney, and
______________
Sullivan, Assistant United States Attorney, were on
________
the United States.

Gerard B.
__________
brief, for

_________________________
January 5, 1994
_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________
Paulino

asks us

acquittal, or,

to

set

in the

Defendant-appellant Temistocles

aside his

conviction

alternative, order a

and direct

new trial.

his

Having

reviewed the record, we decline to disturb the judgment below.

I
I
This
investigation

case
of

Providence, Rhode

finds

its

narcotics

trafficking

Island police

focused

on an

course,

the police began

genesis

apartment building

in

an

undercover

conducted

department.
at 70 Peace

The

the

investigation

Street.

paying special attention

by

In due

to apartment

706.

On

several occasions in late

May and early June

of 1992,

they observed appellant in and around the apartment.

After
under
and

intensive

surveillance,

police auspices, entered

made

a controlled

The
it
and

informant,

apartment 706 during

purchase of

cocaine from

suspect, Moreno, inside the apartment.

in

an

progress detectives observed

acting

early June

the principal

While the transaction was

Paulino peering from

a window.

officers subsequently obtained a search warrant and executed

on June 11,

1992.

a stranger,

They discovered

Junior Rodriguez,

known as "Moreno" was elsewhere

appellant in the kitchen

taking a

shower.1

The man

when the police arrived, and his

whereabouts remain a mystery.

Although the tiny apartment
a

kitchen,

bathroom,

and bedroom,

contained little more than

it

nevertheless

disclosed

____________________

1Prior to June 11, 1992, the date when the police discovered
him completing his ablutions, Rodriguez had never before been
seen in or around 70 Peace St.
2

bountiful evidence
found an

assortment

of drug
of

plastic bags containing

trafficking activities.

drugs

in the

bedroom,

Detectives

namely,

three

64.02 grams of cocaine in the aggregate,

and a fourth
and heroin)

bag containing a "speedball" (a

weighing 11.79

speedball perched on

grams.

The

a small coffee

mixture of cocaine

search party

table, inside a

found the

five-pound

bag of rice; on a piece of foil next to the rice rested a rock of

cocaine weighing

95.11 grams.

The rock showed signs

of having

recently been "cooked".

The
From
of
a

search uncovered

more than

atop the coffee table, the

the narcotics

cache.

police confiscated a collection

drug paraphernalia, including a digital scale, three sifters,

playing card,

cutting agents,
ledger.

packaging materials,

three

and a small notebook that

separate kinds

of

appeared to be a drug

On a chair next to the table, under a shirt, within easy

reaching

distance

of

the

drugs,

revolver.2

On appellant's person,

apartment's

front door.

No

officers

loaded

officers found a key

to the

other key

to

spotted

the apartment

was

located.
II
II
Based

primarily on this evidence, a federal grand jury

returned a three-count
charged him with
it, in

indictment against appellant.

possession of cocaine, intending

violation of 21

U.S.C.

Count one

to distribute

841(a)(1) & (b)(1)(C)

(1988 &

____________________

2We temporarily exclude from the inventory of unveiled items

the receipt for a Postal Service money order, discussed infra
_____
Part III.
3

Supp. IV

1992).

intending to

possessing heroin,

violation of the

same statutory

Count three charged him with possession of a firearm

during and

guilty

two charged him with

distribute it, in

provisions.

U.S.C.

Count

in relation to

drug trafficking, in violation

924(c) (1988 & Supp.

across

IV 1992).

the board.

On

A jury found

December

10, 1992,

of 18

appellant
the

court

sentenced him to concurrent 37-month terms of imprisonment on the

two narcotics
count three.

counts and a

consecutive 60-month prison

term on

This appeal ensued.

III
III

Appellant's most touted assignment of

error relates to

a so-called "customer's receipt" for a Postal Service money order

discovered on a kitchen shelf.
(although his

given name,

The receipt bore appellant's name

"Temistocles," was

spelled with

two

surplus letters, viz, "Temistomecles"), listed his address as "70

___
Peace

#706 Prov. RI 02907," and purported to corroborate payment

to "Tower Management"

in an amount of

$280.

In the

"used for"

space, someone had written "May rent."

At
the truth

trial, the prosecution offered the receipt to prove

of the

matter asserted therein:

that

appellant had

paid

the

apartment rent

apartment was
was

used as a

unaccompanied by

court

May

a period

drug distribution outlet.

the

postal service, or,

than a member of

nonetheless

1992

testimony from

Management, from the

any person other

for

admitted

when

The proffer

landlord, from

Tower

for that matter,

from

the search party.

the

receipt

the

into

The lower

evidence

over

appellant's timely objection

and the prosecutor used

it to good

effect.
In

this court, as below,

cites both

the lack of

prohibition

against

appellant assigns error.

an appropriate foundation and

hearsay

evidence.

We

He

the hoary

examine

these

assertions in turn.
A
A
The

logical

starting

point

for

consideration

appellant's first asseveration is Fed. R. Evid. 901(a).

reminds us that
"[t]he

documentary exhibits must be

requirement

of

authentication

condition precedent

to

admissibility is

sufficient to

support a finding

of

The rule

authentic and that

or identification
satisfied by

that the matter in

as

evidence

question is

what

its proponent

United States
_____________
Under

claims."

v. Arboleda,
________

the Evidence

without

the

Rules,

direct

document's

patterns,
conjunction

or

See
___

with

901(a); see
___

also
____

869 (1st

Cir. 1991).

authentication

can be

accomplished

of

either

Fed. R. Evid. 903.

"[a]ppearance,
other

R. Evid.

929 F.2d 858,

testimony

percipient witness.3
a

Fed.

contents,

distinctive

circumstances,"

custodian

Thus, for example,

substance,

characteristics,
can,

or

internal
taken

in cumulation,

in

provide

____________________

3Notwithstanding this possibility, prudent parties will

usually take advantage of direct testimony, especially when it is
readily available.
In this case, for example, the government
jeopardized
the entire
prosecution by not
attempting to
authenticate the receipt in better fashion. We should not have
to remind experienced prosecutors that, as Benjamin Franklin
observed more than two centuries ago, for want of a nail the
rider will sometimes be lost.
5

sufficient indicia

of reliability to

authenticate it.

Fed. R.

Evid. 901(b)(4); see also United States v. Newton, 891 F.2d 944,
___ ____ ______________
______
947 (1st Cir. 1989).

In

respect

to matters

of

authentication,

the trial

court serves a gatekeeping function.

See generally Fed. R. Evid.

___ _________

104(a)

preliminary

(discussing

admissibility).
record to

handling

If

the court

warrant a

of

discerns

reasonable person

questions

enough support
in determining

of

in the

that the

evidence is what it purports to be, then Rule 901(a) is satisfied

and the weight to be given
See United States v. Ladd,
___ ______________
____

to the evidence is left to the

885 F.2d 954,

956 (1st

jury.

Cir. 1989);

United States v. Williams, 809 F.2d 75, 89 (1st Cir. 1986), cert.
_____________
________
_____
denied,
______

481 U.S.

Because

rulings

district

1030 (1987);
of

see also
___ ____

this stripe

court's sound

Fed. R.

involve

discretion,

we

the
review

mistake of law or abuse of that discretion.

McMahon, 938 F.2d
_______
956;

exercise
them

of the

only

for

See United States v.

___ _____________

1501, 1508 (1st Cir. 1991);

United States v. Masse, 816 F.2d

_____________
_____

Evid. 104(e).

Ladd, 885 F.2d at

____

805, 813 (1st Cir. 1987);

Williams, 809 F.2d at 89-90.

________
In this instance,

the trial court addressed

the issue

of authenticity and concluded that the receipt's contents and the

attendant

circumstances warranted a finding of authenticity.

believe that this determination is supportable.

of a type likely
by

landlord).

seemingly

to be saved only by a
It

uninhabited

was found,
apartment.

We

The document was

rent-payer (or, perhaps,

neatly

stored,

Although

no

in a
one

small,
was

in

residence, appellant had

at

least two

been in the apartment, on

weeks prior

to

document, and, importantly,

the searchers'

matters, appellant had

earlier sale;

by the receipt.

been in the apartment

the

in May, that
To

clinch

on the day of

the

he was there at the time of the raid; and he alone

possessed a latchkey.
facts that

discovery of

he had been seen there

is, during the rental period covered

and off, for

The judge plausibly could infer from those

appellant had somehow

acquired a right

of occupancy

in, and a degree of dominion over, the apartment.

The
equally

physical setting in which the document surfaced is

telling.

operation.

The apartment harbored a large-scale narcotics

Drugs, drug

paraphernalia, and

were strewn about in plain

inference

that appellant

activities, see
___
hard-to-trace

view.
was

manner,

such

trade

The circumstances supported an

part and

infra Part IV;

_____

tools of the

parcel

of the

ongoing

and, further, that payment

as

payment

by

money

order,

in a

was

compatible with the nature of the illicit enterprise.

Lastly, the content
furnish indicia

of a disputed document

of authenticity.

may itself

See Newton, 891 F.2d

at 947;

___ ______
see also Fed.
___ ____

R. Evid 901(b)(4).

buttress a finding
to Paulino.

Here,

the document's contents

that it is an authentic

rent receipt, issued

The document bears appellant's name.4

correct apartment

number.

It lists the

And, it refers to a time frame within

____________________

4Appellant makes much of the fact that his first name was
misspelled.
We do not think that this circumstance possesses
decretory significance.
It is altogether unsurprising that a
payee would spell a payor's rather unusual name incorrectly in
scribbling a receipt.
7

which the drug distribution center was in operation.

Taking the totality of

the circumstances into account,

and giving due deference to the wide radius of the

trial court's

discretion in such matters, we cannot say that the court erred in

ruling that,

at least

purports to be:

presumptively, the

document

is what

it

a receipt evidencing appellant's payment of rent

with respect to apartment 706.

B
B
Authenticity
related, are separate

and admissibility,
inquiries.

though often

The mere fact

closely

that a document

is authentic does
evidence.

overruling

appellant's

hearsay

objection,

the

court did not specifically identify a hearsay exclusion

exception that

removed the

evidence.

While

appellate

chore, it

court's ruling.
matter

1, 5 n.7 (1st

We turn, then, to the question of admissibility.

In

or

is admissible in

See United States v. De Jongh, 937 F.2d

___ _____________
________

Cir. 1991).

district

not necessarily mean that it

asserted

court's failure
appellate

this
does

under

of

not

If evidence
some

to articulate

court from

Nivica, 887
______

lack

barrier

specificity

require

of the

complicates

reversal of

the

the

lower

is admissible for the truth of

cognizable

theory,

that theory

relying upon

F.2d 1110, 1127

to introduction

it.

the

district

will not prevent

See
___

United States
_____________

(1st Cir. 1989), cert.

_____

the

an

v.

denied, 494
______

U.S. 1005 (1990); cf. Polyplastics, Inc. v. Transconex, Inc., 827

___ __________________
________________
F.2d

859, 860-61 (1st

court is not wed to the

Cir. 1987) (explaining

that an appellate

trial court's reasoning, but is free

to

affirm a

judgment on

any independently

sufficient ground

made

manifest in the record).

In the present situation, we believe the receipt can be

classified

as an

adoptive admission,

eludes the

hearsay bar.

and,

This analysis

depends, of

Fed. R. Evid. 801(d)(2)(B), which instructs

evidence shows a party to
in [the]

truth" of

therefore, that

it

course, on

courts that when the

have "manifested an adoption or belief

a statement made

by another,

the statement

loses its hearsay character and becomes admissible in evidence if

offered against the
courts

frequently

adopting party.
have

construed

In

applying this doctrine,

possession

of

statement as an adoption of what its contents reveal.

United States v. Ospina, 739
_____________
______
a receipt for

a hotel room),

written

See, e.g.,
___ ____

F.2d 448, 451 (9th Cir.) (involving

cert. denied, 469 U.S.
_____ ______

887 (1984)

and 471 U.S. 1126 (1985); United States v. Marino, 658 F.2d 1120,
___
_____________
______
1124-25

(6th

Cir.

1981)

(involving

that the

correct

possession

of

airline

tickets).
We
Ospina, is
______

think

that "possession

another way,
possessor

so long as

its contents.
here:

plus" can

exemplified by

evidence adoption.

the surrounding

and the document together

possessor may be

approach,

circumstances tie

Put

the

in some meaningful way, the

found to have adopted the

writing and embraced

Over and above possession, the tie is very strong

appellant held the only known key to the apartment; he had

frequented the premises; the saved document bore his name; and he

was,

at

the

very

least, privy

to

the

criminal

enterprise.

Consequently, the record

is sufficient to permit

a finding that

appellant possessed and adopted, the receipt.

We need
reviews a

not wax

trial

judge's admission

objection only for abuse

of Lebanon, 957
__________
Abreu,
_____
1695

longiloquent.

of evidence

of discretion.

F.2d 913, 918 (1st Cir.

952 F.2d 1458, 1467 (1st Cir.),

(1992).

We

Evid. 801(d)(2)(B)
non-hearsay

The court of
over a

hearsay

See DCPB, Inc.

___ __________

v. City
____

1992); United States v.

_____________

cert. denied, 112 S. Ct.

_____ ______

are satisfied that, in

authorized the

appeals

this instance, Fed. R.

admission of

evidence against the appellant.

the receipt

as

The district court,

therefore, did not outstrip the bounds of its discretion.

IV
IV
Appellant's
sufficiency of
well

defined

verdict,

final assignment

the evidence.
course

Sufficiency

in criminal

a reviewing court

of

cases.

error questions
challenges travel
Following a

must scrutinize the

the

guilty

record, drawing

all reasonable inferences

in favor of the

if a

have found that the

rational jury could

verdict, to ascertain

each element of the crime beyond a reasonable

States v.
______

Echeverri, 982 F.2d

_________

government proved
doubt.

675, 677 (1st Cir.

See United
___ ______

1993); United
______

States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied,
______
_____
_____ ______
113 S.
court

Ct. 1005 (1993).

need

not

appropriately

conclude
be

reached;

determination draws its

record.

See
___

To sustain
that

a conviction,

only

it

is

guilty

enough

a reviewing

verdict

that

could

the

jury's

essence from a plausible reading

of the

Echeverri, 982 F.2d at 677; Ortiz, 966 F.2d at 711.

_________
_____
10

Using these

guideposts, the

quantum of

evidence adduced

here,

though largely circumstantial, is adequate to the task.5

Appellant's
easily dispatched.
bifurcated

to

sufficiency

challenge

is

a weak

For discussion purposes, however,

permit

separate analysis

of

trafficking counts, and (b) the firearms count.

A
A

(a)

the

point,

it must be

two drug

Appellant asserts that sheer happenstance placed him in

harm's

way and

questions whether there

was enough

evidence to

sustain a finding that he possessed cocaine and heroin, intending

to

distribute

respectively.
the burden

To

of

knowingly and
intent to
F.2d

them,

as

convict on these

proving beyond

distribute them.

(1990); see
___

(1st

See
___

Cir.

suggests that

a necessary

lacking here.

To bolster

one

and

charges, the government

doubt that

United States v.
_____________

1989), cert.
_____

two,

had

Paulino

denied,
______

Barnes, 890
______

494 U.S.

841(a)(1) & (b)(1)(C).

ingredient

guilty

1019

Appellant

knowledge

is

this suggestion, he labors to convince

evidence shows no more than his mere presence at the

where the drugs were

that the district court erred

of

counts

a reasonable

also 21 U.S.C.
____

us that the

in

intentionally possessed the drugs, and did so with

545, 549

apartment

charged

acquittal

on both

drug

situated.

He argues, therefore,

in denying his motion for judgment

trafficking

counts.

We

are

not

____________________

5In a criminal case, the government can satisfy its burden

of proof by either direct or circumstantial evidence, or by a
combination of both.
See Echeverri, 982 F.2d at 677; United
___ _________
______
States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.), cert.
______
_______________
_____
denied, 492 U.S. 910 (1989).
______
11

persuaded.
This court has recognized
presence"

and

"culpable

trafficking activities.
___, ___ (1st

of

the

92-1362, slip

not sufficient

context

of

to ground

op. at 8]

("While

criminal charges,

point of a drug

sale, taken in

presence does not

966 F.2d at

712 (holding

reviewing

evaluate

establish guilt, presence

court faced

the

can establish

"mere

presence"

in order to

Thus,

claim

must

determine the

a particular defendant's presence at a location where

drugs are found.

See Echeverri, 982 F.2d at 678.

___ _________

In Ortiz, we
_____
participation

presence.

with

the attendant circumstances

quality of

illicit

that, while

guilt under circumstances where it implies participation).

a

drug

attendant circumstances, can constitute strong evidence

complicity."); Ortiz,
_____

mere

in

See United States v. Sepulveda, ___ F.3d

___ _____________
_________

defendant's presence at the

light of

presence"

Cir. 1993) [No.

mere presence is

the difference between "mere

in a

concluded that evidence of

dialogue between

drugs was enough to warrant a

See Ortiz,
___ _____

966 F.2d

buyer and

a defendant's
a seller

of

finding of more than mere

at 712-13.

We

mentioned that

"[j]urors can be assumed to know that criminals . . . rarely seek

to perpetrate

felonies before

larger-than-necessary audiences."

Id. at 712 (collecting cases).

___
comparisons

with the

presence could be

In Echeverri
_________

case at bar

found.

ruling there revolved

a case that evokes

we also

See Echeverri,
___ _________

held that culpable

982 F.2d at 678.

around the defendant's proximity

Our

to drugs

and drug paraphernalia which were strewn about an apartment.

See
___

12

id.
___

The

somewhat

facts

of

more

this case

inculpatory

Specifically, based on

the

facts

in

to,

but

Echeverri.
_________

record here, a

rational

conclude that appellant had

dominion

apartment 706; that he actually or constructively possessed

the contraband located

distribution;6 that

the controlled
rather than

therein; that he

his

knowing and willful;

United

than,

roughly analogous

the evidence of

factfinder plausibly could

over

are

participation

States v.

in

the

enterprise

and that, accordingly, his

buy, and at

innocent.

intended the drugs

the time of

Batista-Polanco,

927 F.2d

was

presence during

the raid, was

See, e.g., Echeverri,

___ ____ _________

for

982 F.2d
14,

culpable

at 678;

18 (1st

Cir.

______________
1991);

_______________

United States
_____________

v. Glover,
______

814 F.2d

15, 16-17

(1st Cir.

of appellant's sufficiency

challenge

1987).
B
B
The final aspect
relates to

count three.

This attack

which

boils down

claim that the evidence fails to show he "used" or "carried"

firearm

in connection with drug trafficking activities

settled law in this circuit and elsewhere.

conviction, 18

U.S.C.

availability for use,

924(c),

to a

the

ignores

Under the statute of

the emphasis is on

a firearm's

regardless of whether it is actually used.

Thus, in United States v. Hadfield, 918 F.2d 987 (1st Cir. 1990),
_____________
________
cert. denied, 111
_____ ______

S. Ct. 2062 (1991), a

section 924(c)(1) case,

____________________

6The total cocaine seized, not including the speedball,

aggregated 159.13 grams.
Expert testimony established that the
drugs were for distribution rather than personal use, and that
their value exceeded $6,000.
On appeal, Paulino has not
challenged either the admission or the import of this testimony.
13

we made it pellucid that, where a drug trafficker is not carrying

a gun

on his

concern

person but

should

not

be

has one

nearby, the

whether

the

court's critical

weapon

was

"instantly

available" or "exclusively dedicated to the narcotics trade," but

whether

it was

"available

for

use"

connection

with

the

narcotics trade.

Id.
___

113 S. Ct. 2050,

2059 (1993) (explaining that a weapon meets the

statutory test if

at 998; see
___

in

also Smith v. United States,

____ _____
______________

its presence, rather than

coincidental, facilitates, or has

the drug

trafficking offense).

being accidental or

the potential of facilitating,

We

think the

case at

hand is

largely governed by Hadfield.

________
Paulino
apartment that
found

was

apprehended in

served

or so the

outwardly uninhabited

jury supportably

as a place from which drugs were being sold.

paraphernalia,
proximity to
interest

and a

loaded

one another.

in,

and a

revolver

significant

these facts,

could find

the requisite facilitative

and in

Drugs, drug

located

of control

reasonable factfinder

apartment to be

relation to the

could have

an apparent

degree

On

was kept in the

were

Paulino had

premises.

gun

an

ongoing drug

nexus, that is,

in

close

possessory
over,

the

certainly

that the

"available for use" during

peddling.

See
___

Abreu, 952
_____

F.2d at 1466 ("Even though a weapon is never fired, if it is kept

nearby by

drug dealer,

it is

'used' so

statutory requirement."); United States

_____________

as

to satisfy

the

v. Castro-Lara, 970 F.2d

___________

976, 983 (1st Cir. 1992) (collecting cases), cert. denied, 113 S.
_____ ______

Ct.

2935 (1993).

And

the

jury also

could conclude,

without

14

discernible difficulty, that appellant knew

trafficking,
generally
_________
juries

of the gun, the drug

and the obvious relationship between

the two.

See
___

Echeverri, 982 F.2d at 679 (reaffirming that "criminal

_________

are not expected

to ignore what

is perfectly obvious").

No more is exigible.
V
V
We
admission

of

need
the

go no

further.

rent

receipt

government's overall proof

just deserts.

Affirmed.
Affirmed.
________

Finding
and

of guilt, we

in

the

in

the

remit appellant to

his

no

no error
shortfall

15