Professional Documents
Culture Documents
United States v. Valerio, 1st Cir. (1995)
United States v. Valerio, 1st Cir. (1995)
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________
trial,
defendants-appellants
Valerio were
to
also
Domingo
convicted of possession of
distribute and
Baez
Following a five-day
was
possession of
conspiracy
convicted
of
a firearm.
Baez
and Maria
to commit
the same
being
illegal
an
Baez challenges
offense.
alien
in
his convictions,
duplicitous count
challenges
indictment.
Valerio also
insufficient to
record
in his
support them.
and considering
the
After carefully
parties'
reading the
arguments, we
affirm
we interpret
the
evidence in
criminal
the light
most
Ortiz, 23
_____
police
team
that
conducted
several
surveillances
of
apartment buildings
Island, and 49
at 165 Peace
Street, Providence,
Rhode
Rhode Island.
The
-33
team
also
surveilled a
gray
Chevrolet
with Rhode
Island
off.
team
followed Baez to 49
enter.
Subsequently, the
stopped him.
At this
of his vehicle
pants
The police
pocket,
containing keys
officers
to 165 Peace
found
Street and
In
a
Baez's right
set
49 Marden
of
keys
Street.
the
obtained
his
time
of
a search
arrest, the
Apartment 7 at 49
scale
warrant
for
police also
Marden Street.
Baez's arrest,
the
police
165 Peace
obtained a
The Marden
had
Street.
warrant for
Street warrant
led to
weigh narcotics.
-44
After the
executed
the
apartment
at
search of
search
warrant
165 Peace
49 Marden Street,
for
Street.
the
first
Valerio
the police
floor
and a
right
baby were
searched the
only bedroom
in the
apartment, and
photo
albums
woman's
containing pictures
flowered
purse,
of
Baez
identification
and Valerio,
cards
and
rent
under the
seat cushion of
a chair next
an operable,
found in the
to the bed;
14.83
which
was on
cocaine
in
a bedroom
the chair
shelf.
lining.
The
At
gun was
next to
the conclusion
the
of this
trial,
the
landlord
of
165
Peace
Street
Baez two
-55
day of
the arrest.
before
the
night
of
her
arrest.
This
testimony
was
occupant of
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,
arraigned on a superseding,
charged them
1993,
Baez
and
Valerio
three-count indictment.
were
Count I
II charged
underlying offense
of
with being
922(g)(5).
The
defendants moved to
district court
suppress the
cocaine and
motion.
Subsequently, Baez
that
in support
the
warrants
hearing.
affidavits
were
false.
submitted
He accordingly
of
the
search
requested a
Franks
______
make to be entitled to
hearing on
the
adequacy of
warrant affidavit).
On
a Franks
______
-66
hearing
court
suppress.
the hearing
and
denied
Baez's motion
to
Franks hearing in
______
against
Valerio.
Prior to trial,
On
March 1, 1994, the jury found Baez guilty on all three counts
of
II.
121 months in
$150
Valerio guilty on
in special
assessments.
That
Counts I and
sentenced Baez to
the
court
sentenced
Valerio to
supervised
court
as a
13
release, and
$100 in
months in
prison,
five years
special assessments.
of
The
of their
supervised release.
This
appeal
followed.
II.
II.
___
Baez's Appeal
Baez's Appeal
_____________
contends
Baez
makes two
that
the district
request, made
conduct
the
at the
arguments
court
conclusion of
on appeal.
erred
First,
in declining
the Franks
______
he
his
hearing, to
search warrant
designed to
-77
impeach the
affiant's credibility.
Second, he
claims that
Count II of
It
is Baez's
hearing
position that
requires
the error
that
we
set
regarding the
aside
all
in camera
__ ______
three
of
his
that we
convictions.
set
The
aside his
possession and
conspiracy
affidavits
submitted
in
had
informant
was
cocaine
that
same
cocaine in
two
the
confidential
to be Baez)
first
floor
The affidavits
informant,
recent controlled
of
confidential
had made
from
out
apartment at
supervision,
the
information
this
of
received
distributing
support
right
also stated
under
police
purchases
of
a prearranged location.
location.
The
informant's existence.
sum and
to anyone at a
substance
of
Baez's
-88
Calling
Baez's
showing
"marginal," the
district
if s/he can
falsehood was
see
___
Cir.
necessary to
entirely
the finding of
consistent
at the
with
U.S. 936
(1991).
probable cause);
denied, 500
______
Nadrowski testified
affidavits.
Baez and
gave accounts
Baez
also
to
Street prior to
his arrest.1
telephone
He stated
for
the
that he
that day)
in
renters
of
Apartment
7,
who were
retrieve and to
out
of town
and had
He
asked
him to
that
falsehoods,
the
warrant
Baez asked,
affidavits
at the
were
conclusion of
his burden of
infected
by
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.
-99
that the
regarding the
district
court
hearing was
motion to
identity of
denied this
request,
not necessary.
The court
of the search
warrants.
Nadrowski in camera
__ ______
In so
stating
The
that such
then denied
Baez's
that
Nadrowski
is settled
an in
__
that
camera hearing
______
informant is requested.'"
1, 3 (1st
F.2d
Cir. 1993)
"`a district
whenever
court need
the identity
of an
not
1986)).
v. Fixen,
_____
Instead,
780
it is entirely
whether the
determine the
And
there is,
respect
to the
disclosure is
necessary in order
course, a
affidavit
presumption
supporting
the
officer.
of validity
search
to
Id.
___
with
warrant.
hearing are
F.2d 546, 556 (1st Cir.), cert. denied, 114 S. Ct. 148 (1993)
_____ ______
and 114 S. Ct. 149 (1993).
___
-1010
judge's
hearing.
refusal
to
hold
the
requested
in
__
camera
______
to
satisfy
concluding that
himself
that
there
was
carefully reviewed
basis
for
We have
no
in any of these
reject
Baez's argument
that
the
count)
second
of
argument,
the
that
superseding
Count
II
indictment
(the
was
to
Count
II for
district court.
Fed. R. Crim.
duplicity, or
other grounds,
in the
any
based on
in the court or
to charge an
See
___
to show
offense) must be
-1111
Even
duplicity
were
we
argument,
to
reach
we would
reject
in the
fact
that the
allegedly
could have
charging
possession.
given
the
it
merits
as
of duplicity.
in the wording of
evidence
rise to
This is
of
Baez's
based upon
Baez's problem
the count; it
underlying the
three separate
not duplicity.
count
counts
count is
_______
count.
arises primarily
count without
commission
of
any particular
Obviously, this
actually
having reached a
only becomes
charges two
unanimous verdict
offense.
a problem when
or more
offenses in
Here,
Count II of
"That
on or about
Island, the
See id.
___ ___
at
26.2
the indictment
a
single count.
in the District
on the
of Rhode
mixture and
substance containing
a detectable
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.
-1212
question
could
_____
whether the
have been
actions to
charged as
which this
count referred
separate crimes
is irrelevant.
there
sole
appellate
argument
is
that
the
have concluded
determination
reasonably
have
is
found
belief that
that
Valerio
the
had
jury
an
Central to
could
not
intent
to
distribute cocaine.
We start by acknowledging the formidable showing
defendant
must
insufficient
assessment,
to the
make
in order
evidence.
In
to
prevail
on
conducting
a claim
a
of
sufficiency
inferences in its
favor,
with
allowed
a rational
doubt that
Ortiz,
_____
an eye
towards
jury
whether the
to determine
23 F.3d
at 24.
proof
would have
beyond a
reasonable
guilty of the
"In
crime charged."
this analysis,
no premium
is
-1313
placed
both
upon
direct as
opposed to
circumstantial evidence;
types of
proof
can adequately
ground a
cert.
_____
1005
denied,
______
government's
evidence.
113
proof
S.
Ct.
may
lay
(1993).
entirely
________
conviction."
In
in
fact,
the
circumstantial
Cir. 1993).
That
it must
be borne
a reasonable doubt.
_ __________ _____
in mind
the jury
See United
___ ______
States v.
______
Loder, 23 F.3d
_____
although
the government
hypothesis of
see Ortiz,
___ _____
Ingram v.
______
need not
exclude
innocence in order to
23 F.3d at
upon inference
586, 590
24, we
in order to
United States,
_____________
every reasonable
are loath to
uphold the
360 U.S.
Thus,
stack inference
jury's verdict,
cf.
___
(citing
Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943)).
________________
_____________
In
order
possession with
to
secure
intent to
conviction
under
the
government
had to prove
intended to
agree
Under
beyond a reasonable
and intended
-1414
did so
___ __
doubt that
to effectuate
the
commission
of
the
underlying
distribute
offense.
possession
14,
intent
to
with
1994) (No.
94-6876).
For
Valerio to
have been
to
prove
that
(1)
Baez
committed
the
underlying
[s]he wished to
that both
of Valerio's
is clear,
convictions must
It
be set
beyond a reasonable
no direct
evidence that
Valerio
the cocaine
be distributed.
Thus, the
government is
a type
approved
quantity of
(intent to
on
of circumstantial evidence
several
occasions:
See
___
of which
knowledge
Ortiz, 23 F.3d
_____
of
we
the
at 25
quantity of
982 F.2d
675, 678
(1st Cir.
1993)).
v.
In other
-1515
words,
the
quantity
government's
of
consistent
drugs
with
found
personal
position
in
is
165
that,
Peace
because
Street
consumption, the
jury
was
the
not
correctly
we to infer
that Valerio
cocaine
the
in
baby
was aware
shoe,3
the
plain
cocaine in the
view,
short-term occupant of
of which
likely to
14.83 grams
evidence
at
trial
chair lining.
and not
of the
the
This cocaine
have
the bedroom.4
was
of
was not in
been discovered
And without
of
by a
a finding
quantity of drugs
long-term occupant
Street, it might be
of
the
apartment
at 165
The evidence
Peace
knew about
at trial
Valerio
had
been
anything other
than
short-term
arrest.
were issued
testified
Although
receipts for
the apartment
the rent
of
the
that the
rent
against Valerio.
at Baez's request;
receipts
in connection
and it was
jury not
with
the
to
case
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.
this
The jury
all of
There
Before concluding, we
out that the evidence
weaker than that
think it important to
in other
cases in which
point
was even
we have
reversed
for
insufficient
instance,
to
we
support
held
the
that
the
defendant's
evidence
was
conviction
for
case,
the
evidence
in the apartment
for four to
investigating officers
found in
acetone
the apartment
six months,
In
defendant's
possess with
and cocaine.
alia,
____
In
that
the
had
(evidence at trial
had told
established that
Id. at 81-82.
___
we found
inter
_____
cocaine.
is used to dilute
her fingernails."
1983),
showed,
80 (1st Cir.
the
evidence insufficient
conviction for
to support
conspiracy to distribute
one
and to
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.
-1818
United States v.
_____________
Id. at 862-63.
___
6 (1st
conviction
importing marijuana
the evidence
for
knowingly
and
States.
intentionally
In
that case,
a twenty-year-
spent nearly
sea in a
relationship"
"close
Id. at 7-
___
10.
support a
not,
finding that
however,
Valerio possessed
sufficient
to
support a
necessary element of
cocaine.
finding
It was
that
she
her offenses of
conviction, her
possession
of cocaine
with
intent
to distribute
and
defendant Domingo
Baez
and reverse
_______
the convictions
the convictions
of
____________________
does not require reversal of Baez's conspiracy conviction.
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