United States v. Mercado

1991 | Cited 0 times | First Circuit | August 21, 1991

A jury found the appellant, Manuel Gines Mercado, guilty of possessing heroin with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). He was sentenced as a career offender. He now appeals, raising two issues. We affirm.


First and foremost, the appellant challenges the sufficiency of the prosecution's proof. He admits possession of nine packets, containing eighty-three decks of heroin, having a net weight of just under two grams; indeed, he was caught red-handed with the contraband on his person. He implores us to find, however, that there was insufficient evidence from which the jury could appropriately have concluded that he possessed the heroin with the intention of distributing it (as opposed to, say, reserving it for personal use).

The applicable standard of review is a familiar one. The court of appeals, faced with a sufficiency challenge in a criminal case, must take the evidence in the light most congenial to the government, drawing all plausible inferences in its favor and resolving all credibility determinations in line with the jury's verdict. See United States v. Ingraham, 832 F.2d 229, 230 (1st Cir. 1987), cert. denied, 486 U.S. 1009 (1988); United States v. Cintolo, 818 F.2d 980, 983 (1st Cir.), cert. denied, 484 U.S. 913 (1987). The verdict must be affirmed so long as any rational trier of the facts could have found the essential elements of the crime beyond a reasonable doubt. See, e.g., United States v. Gomes-Pabon, 911 F.2d 847, 852 (1st Cir. 1990), cert. denied, 111 S. Ct. 801 (1991); United States v. Cuevas-Esquivel, 905 F.2d 510, 514 (1st Cir.), cert. denied, 111 S. Ct. 208 (1990).

Applying this standard to the record before us makes short shrift of the appellant's asseverations. Intent to distribute drugs can be proven "through the use of circumstantial evidence so long as the total evidence, including reasonable inferences, is sufficient to warrant a jury to conclude that the defendant is guilty beyond a reasonable doubt." United States v. Desmarais, 938 F.2d 347, (1st Cir. 1991) [No. 90-2178, slip op. at 10] (quoting United States v. Campa, 679 F.2d 1006, 1010 (1st Cir. 1982)). Here, the jury was presented with a plenitude of circumstantial evidence. The sheer number of decks was strongly suggestive of a professional, rather than a personal, interest. The prosecution's chemist, Catherine Churchill, testified that, whereas the seized contraband had a purity of seventeen percent, heroin sold for personal use was, customarily, five percent pure. An experienced Drug Enforcement Administration (DEA) officer testified that the heroin could be cut three times and sold on the street for roughly $3,000. He also testified that the distinctive packaging of the contraband was a clear indication that it was intended for resale. These facts, and the other evidence, in context, plainly supported the jury's verdict.

To be sure, the prosecution's case was largely circumstantial. Moreover, the appellant offered third-party evidence that he, himself, was a drug user. A jury could perhaps have believed that the eighty-three decks of heroin were destined to feed the appellant's own habit. Yet, that possibility does not call for an automatic acquittal. After all, "the evidence need not preclude every reasonable hypothesis inconsistent with guilt" in order to sustain a conviction. United States v. Guerrero-Guerrero, 776 F.2d 1071, 1075 (1st Cir. 1985), cert. denied, 475 U.S. 1029 (1986). What counts is that, notwithstanding the evidence suggesting innocence, a rational, responsible jury, properly instructed, "could certainly have chosen to believe that the converging circumstances pointed toward a more sinister truth and been persuaded thereby of appellant's guilt." United States v. Jimenez-Perez, 869 F.2d 9, 11 (1st Cir. 1989). No more was required.


The appellant was apprehended serendipitously, as it were, when DEA agents went to a certain address to arrest a suspected drug trafficker, Michael Cruz. The agents placed the dwelling under surveillance. When Cruz exited the dwelling, the appellant was with him. While the other agents apprehended Cruz (whom they had reason to believe was armed and dangerous), agent Diaz detained the appellant at gunpoint and patted him down.1 In the process, the packets were discovered. Diaz asked the appellant what they contained and the appellant replied "manteca" (heroin).

On appeal, the appellant does not contest the legality of the stop or the pat-down, or that the heroin was lawfully discovered, seized, and used in evidence. Rather, his complaint is that Diaz asked him the question mentioned above without giving him the necessary warnings. See Miranda v. Arizona, 384 U.S. 436 (1966). Consequently, Gines argues, the government should not have been allowed to introduce evidence of his response. The district court, however, admitted this evidence. Gines strives to convince us that, due to this bevue, a new trial is required to purge the ensuing taint.

We need not tarry over this assignment of error. Even if we were to make the assumptions that the appellant urges on us - (1) that he was under "de facto arrest" at the time and thus "in custody" in a fifth amendment sense, and (2) that the agent was not entitled to ask the one brief question without first fully advising the suspect of his rights - there would be no sufficient reason to set aside the conviction. For one thing, having lawfully seized the packets, the authorities' discovery of their contents was inevitable. Hence, there could be no bar to admissibility. See Nix v. Williams, 467 U.S. 431, 448 (1984) (when "the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and evidence is admissible").

At any rate, if there was error, the harmless-error rule applies. See Arizona v. Fulminante, 111 S. Ct. 1246, 1264-65 (1991); Bryant v. Vose, 785 F.2d 364, 367 (1st Cir.), cert. denied, 477 U.S. 907 (1986). And in this instance, any error was, indeed, benign. At no time was the appellant's possession of, or knowledge anent, the heroin a contested issue at the trial. To the contrary, the appellant's sole defense - personal use - rested on the foundation that he was in fact carrying heroin. Under the circumstances, it is inconceivable that the admission of Gines' one word response to Diaz' question had a bearing on the outcome of the trial. Any error was, therefore, harmless beyond a reasonable doubt. See generally Chapman v. California, 386 U.S. 18, 22-24 (1967) (explicating appropriate standard); United States v. Argentine, 814 F.2d 783, 789 (1st Cir. 1987) (similar).


We need go no further. In the absence of any showing of reversible error, the judgment below must be


* Of the District of Massachusetts, sitting by designation.

1. The stop and frisk took place on the street.

Back to top