United States v. Pena

          United States Court of Appeals
                        For the First Circuit


No. 08-1407

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                             RONALD PENA,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Nancy Gertner, U.S. District Judge]


                                Before

               Boudin, Stahl, and Lipez, Circuit Judges.



     Mary A. Davis, by Appointment of the Court, with whom Tisdale
& Davis, P.A., was on brief for appellant.
     Mark T. Quinlivan, Assistant U.S. Attorney, with whom Michael
K. Loucks, Acting United States Attorney, was on brief for
appellee.



                          November 17, 2009
             STAHL, Circuit Judge.         Defendant-Appellant Ronald Pena

appeals both his conviction and sentence for possession of cocaine

base with intent to distribute and carrying a firearm during and in

relation to a drug trafficking crime.               His primary contentions are

that his conviction rested on improperly admitted fingerprint

evidence and that there was insufficient evidence to convict him of

either charge. After a careful review, we reject Pena’s claims and

affirm the district court.

                   I. Facts and Procedural Background

             Because Pena challenges the sufficiency of the evidence

brought   against    him,    we   recite      the   facts     in    the      light   most

favorable to the jury’s verdict.           United States v. Garcia-Alvarez,

541 F.3d 8, 11 (1st Cir. 2008) (citing United States v. Vázquez-

Botet, 532 F.3d 37, 42-43 (1st Cir. 2008)).              As a result of a phone

call placed to the Brockton Police on August 27, 2005 at about 2:00

p.m., officers of the Brockton Police Department were dispatched to

the   area   of   North     Warren   Avenue     to     look    for       a     particular

individual.       Sergeant    Kenneth    Lofstrom,       who       was    in    a   marked

cruiser, observing Pena walking down the street, pulled up next to

Pena and asked if he could speak with him.               Pena responded, "Why?

What’s up?"    A second marked cruiser pulled up, and as the officer

driving that cruiser exited the vehicle, Pena took off running

through a vacant lot on North Warren Avenue.                   He then ran across




                                        -2-
Walnut Street and through a backyard at 18-20 Crowell Street before

being apprehended by police and arrested.

          Officers then searched for evidence in the area where

Pena had been observed running.         They found a Sidekick II cell

phone as well as a green baseball cap.      Pena had been wearing such

a cap before fleeing the police.    The officers also found a loaded

Smith & Wesson Model .357 Magnum revolver lying on the ground in

plain view and, a few feet from the firearm, a clear plastic bag

with other, smaller clear plastic bags inside of it containing a

white substance. A state laboratory analysis later determined that

the bags contained a net weight of 43.19 grams of cocaine base.1

          When   Pena   was   transported    to   the   Brockton   Police

Department for booking, officers recovered $2,781 in United States

currency from his front right pocket.       Pena was fingerprinted and

advised of his Miranda rights.    He subsequently asked the officers

if they had found his cell phone, and when Pena was shown the

Sidekick II phone, he identified it as his.

          On December 7, 2005, the grand jury returned a two-count

indictment charging Pena with possession of cocaine base with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (the

"drug charge" or "Count One"); and carrying a firearm during and in

relation to a drug trafficking crime, and possession of a firearm


     1
       At trial, the jury heard testimony that the street value of
that amount of cocaine base, packaged in that fashion, would be
close to $2,100.

                                  -3-
in furtherance of that crime, in violation of 18 U.S.C. § 924(c)

(the "firearm charge" or "Count Two").

           A ten-day jury trial commenced on May 29, 2007.             At a

motions hearing prior to opening statements, Pena moved to exclude

testimony regarding fingerprint evidence, arguing that it failed to

meet the standard for expert testimony under Fed. R. Evid. 702.

The district court provisionally denied the motion and allowed

three troopers from the Massachusetts State Police trained in

fingerprint analysis to testify at trial that they compared a

partial latent fingerprint found on the revolver to an inked

fingerprint of Pena’s left thumb using the ACE-V method (analysis,

comparison, evaluation, and verification), and matched the latent

fingerprint with the inked fingerprint to the exclusion of all

others.   Pena renewed his objection to the testimony, and the

district court again denied the motion in an oral ruling.

           Also, Christina Rosado, a civilian witness residing at 95

North Warren Avenue, testified that on the afternoon of August 27,

2005, she looked out her kitchen window and saw a man run across

her backyard, reach into the area of his right hip, and make two

separate throwing motions, as if he were throwing something away.

Rosado testified that she then observed the man continue to run

until he was out of her line of sight.

           On June 8, 2007, on the seventh day of trial, Pena moved

for   judgment   of   acquittal,   asserting   that   the   evidence    was


                                   -4-
insufficient to sustain a conviction on either count charged in the

indictment.      The district court orally denied the motion, and on

June 14, 2007, Pena was convicted on both counts of the indictment.

Pena filed a post-judgment motion for acquittal on Count Two, and

that motion was also denied.           On February 26, 2008, the district

court sentenced Pena to consecutive terms of imprisonment totaling

120 months as well as four years of supervised release.

                                       II.

           On appeal we consider the following issues: (1) whether

the   district    court   erred   in    admitting   the   testimony   of   the

Massachusetts State Troopers regarding the fingerprint evidence,

and (2) whether the totality of the evidence was sufficient to

support the verdict.2

A. Admissibility of Expert Testimony Regarding Fingerprint
Evidence

           We review Pena’s claim that the district court erred in

admitting expert testimony regarding fingerprint evidence for abuse

of discretion.      United States v. Diaz, 300 F.3d 66, 74 (1st Cir.

2002).

           Pena challenges the ACE-V method used by the state

troopers in matching the partial latent fingerprint recovered from



      2
       We also briefly consider claims of error which Pena raises
in his pro-se Supplemental Brief regarding the court’s charging
instructions on reasonable doubt and the elements of the offenses
as well as the identification of the drug type as crack for
purposes of sentencing.

                                       -5-
the firearm to Pena’s inked fingerprint.           Pena claims that the

method was not scientific and that the troopers’ conclusion that

his fingerprint matched the partial latent print was based on no

discernible standard.       Specifically, Pena argues that the ACE-V

method   was   unreliable    because   it    involved   merely   a   visual

comparison of the two prints where the trooper conducting the

initial analysis knew that the inked print was taken from a suspect

and the trooper made no diagrams, charts, or notes as part of his

evaluation.    Given our standard of review, we are not persuaded.

           Federal Rule of Evidence 702 permits a witness qualified

as an expert to offer opinion testimony if "(1) the testimony is

based upon sufficient facts or data, (2) the testimony is the

product of reliable principles and methods, and (3) the witness has

applied the principles and methods reliably to the facts of the

case."   As the Supreme Court has held, it is the task of the trial

judge to ensure that an expert’s testimony "both rests on a

reliable foundation and is relevant to the task at hand."            Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993).

This involves a preliminary assessment of "whether the reasoning or

methodology underlying the testimony is scientifically valid and of

whether that reasoning or methodology properly can be applied to

the facts in issue."        Id. at 592-93.     The Court later extended

Daubert’s application to technical and other specialized knowledge

in addition to scientific testimony. See Seahorse Marine Supplies,


                                   -6-
Inc. v. Puerto Rico Sun Oil Co., 295 F.3d 68, 81 (1st Cir. 2002)

(citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141

(1999)).

             In this case, the district court declined to hold a

Daubert hearing and initially denied Pena’s motion to exclude the

fingerprint evidence.        On Day 6 of trial, Massachusetts State

Trooper Kevin Halle gave extensive testimony about the ACE-V

method,     his   training   and   experience       using    the   method    for

fingerprint identification, and how he used the method in Pena’s

case.     He explained that after he had analyzed the partial latent

print, compared it to the prints on Pena’s fingerprint card, and

determined that it matched Pena’s left thumb print, he had two

other troopers independently verify his findings.                   Those two

troopers then testified as to their verification of the match.

             Though Trooper Halle acknowledged that the Massachusetts

State Police used no specific minimum number of points to confirm

a   fingerprint    match,    and   the   district    court    expressed     some

reservation about the reliability of the testimony on that basis,3

the court ultimately decided to admit the testimony, noting that

"the case law is overwhelmingly in favor of admitting fingerprint

experts under virtually any circumstance." Consequently, the court



      3
       The court also expressed concern about "the lack of uniform
standards, the problem that the proficiency rates, error rates are
basically determined without a controlled group" and the fact that
"no one has ever tested the premise of uniqueness."

                                     -7-
reasoned, the only way it would have considered excluding the

testimony or giving a limiting instruction "is if there had been

data,     real        evidence        presented        about     the    limitations     of

fingerprinting." Instead, as the court acknowledged, Pena’s motion

to exclude relied on "one article from the Fordham Law Review, and

that’s not enough to carry the weight of the exclusion motion."

            The       district        court    did     not     abuse   its     discretion.

Numerous       courts     have    found        expert     testimony      on    fingerprint

identification         based     on    the     ACE-V    method    to    be    sufficiently

reliable under Daubert. See United States v. Baines, 573 F.3d 979,

992 (10th Cir. 2009); United States v. Mitchell, 365 F.3d 215, 246

(3d Cir. 2004); United States v. Sullivan, 246 F. Supp. 2d 700, 704

(E.D. Ky. 2003); United States v. Llera Plaza, 188 F. Supp. 2d 549,

575-76 (E.D. Pa. 2002); Commonwealth v. Patterson, 840 N.E.2d 12,

32-33 (Mass. 2005) (finding ACE-V method reliable for single latent

fingerprint impressions). Though acknowledging the lack of minimum

points    and    relative        subjectivity        of   certain      ACE-V    protocols,

including that followed by the FBI, courts have nonetheless found

that    most     of     the    Daubert        factors     support      admitting   latent

fingerprint identification evidence obtained pursuant to the ACE-V

method. See Baines, 573 F.3d at 990-92; Mitchell, 365 F.3d at 241,

246.     As this court has stated, against such a backdrop, "it is

difficult to discern any abuse of discretion" when the district

court decides to admit expert testimony that relies on the ACE-V


                                               -8-
method.      United States v. Mahone, 453 F.3d 68, 71 (1st Cir. 2006).

The same holds true in this case.4

B. Sufficiency of the Evidence

              We review preserved challenges to sufficiency of the

evidence de novo.      United States v. Azubike, 564 F.3d 59, 64 (1st

Cir.       2009).    We   examine   the   evidence   "both   direct   and

circumstantial, in the light most favorable to the prosecution and

decide whether that evidence, including all plausible inferences

drawn therefrom, would allow a rational factfinder to conclude

beyond a reasonable doubt that the defendant committed the charged

crime." United States v. Cruz-Rodriguez, 541 F.3d 19, 26 (1st Cir.

2008) (citing United States v. Fenton, 367 F.3d 14, 18 (1st Cir.

2004)).




       4
      Pena also argues that the district court erroneously shifted
to him the burden of refuting the reliability of the expert
testimony. Though somewhat vague, Pena’s argument appears to be
that once the trial judge acknowledged the questionable nature of
the evidence, she "abdicated her role" by not holding a Daubert
hearing and instead requiring Pena to produce data and experts to
demonstrate why the evidence should not be admitted. This argument
also fails.
     A district court does not abuse its discretion by dispensing
with a Daubert hearing if no novel challenge is raised.        See
Mitchell, 365 F.3d at 246. Here, Pena raised no new favorable case
law or expert testimony to challenge the admissibility of the
fingerprint identification evidence, instead citing only a single
2002 student note from the Fordham Law Review.

                                    -9-
1. The Drug Charge5

          In his pro-se Supplemental Brief, Pena challenges the

sufficiency of the evidence as to Count One of the indictment,

which charged him with possession with intent to distribute cocaine

base in violation of 21 U.S.C. § 841(a)(1).6   Pena claims that the

testimony of Ms. Rosado was "uncorroborated and unsubstantiated"

and that "no other evidence showed that [he] possessed a firearm or

any drugs, at any time at all."   According to Pena, the only other

evidence relied upon by the government was his sudden flight from

police.   Viewing the evidence in the light most favorable to the

prosecution, as we must, we find Pena’s argument unavailing.




     5
       The government argues that Pena waived his sufficiency
challenge as to Count One by failing to renew his motion for
judgment of acquittal at the close of evidence and by also failing
to contest his conviction as to that count in his post-verdict
motion. However, a review of the trial transcript indicates that
Pena appears to have renewed his motion after both parties rested,
so his motion was not waived. Whatever the standard of review,
Pena's claim fails as there is more than sufficient evidence to
support his conviction.
     6
       In addition to challenging the sufficiency of the evidence,
Pena appears to raise a separate argument that the police did not
have grounds to stop or arrest him. Pena claims that the anonymous
tip on which the Brockton Police were acting when they approached
him did not exhibit sufficient indicia of reliability under Florida
v. J.L., 529 U.S. 266 (2000), and his subsequent actions, namely
his flight from the police, did not amount to reasonable suspicion
that he was engaged in criminal activity. Pena never made this
argument to the district court in a motion to suppress, and it is
therefore deemed waived. See United States v. Santos Batista, 239
F.3d 16, 19 (1st Cir. 2001) ("Failure to raise suppression
arguments before trial 'shall constitute waiver thereof.'" (quoting
Fed. R. Crim. P. 12(f))).

                               -10-
                  Ms.   Rosado    testified    that   on   the   date    and    time   in

question, she observed a man matching Pena’s general description7

run across her backyard, reach into his right hip area, and make

two separate throwing motions.                She recounted the same to officers

searching the area minutes after the incident.                   The officers then

found the cell phone, firearm, and plastic bag containing drugs

along the flight path.              Pena admitted the phone was his, and a

fingerprint match was made as to the firearm.                           Based on this

evidence, a rational jury could conclude beyond a reasonable doubt

that       Pena    possessed      the   bag   containing    cocaine      base    before

discarding it (along with the firearm and cell phone) while fleeing

the police.8

2. The Firearm Charge

                  Pena also argues that the government did not produce

sufficient evidence to support his conviction on Count Two of the

indictment, which charged him with violation of 18 U.S.C. § 924(c)

("Section 924(c)").              Title 18 U.S.C. § 924(c)(1)(A) prescribes a



       7
      Ms. Rosado testified that the man she saw looked to be about
twenty years old, with dark skin. She stated that he was chubby,
had black hair in braids, and was wearing black pants and a white
short-sleeve shirt.    One of the officers testified that the
defendant was wearing a white tee shirt and blue jeans -- a
distinction without a difference.
       8
       The jury could also easily have concluded that the drugs
were intended for distribution. The jury heard testimony that such
a large amount (43.19 grams), packaged in individual sandwich bags
and with a street value of over $2,100, would ordinarily be
possessed by a dealer rather than an end user.

                                          -11-
mandatory minimum sentence for any person who "during and in

relation to any . . . drug trafficking crime . . . uses or carries

a firearm, or who, in furtherance of any such crime, possesses a

firearm."   We focus here on the possession offense.9   To obtain a

conviction, the government must prove that the defendant: 1)

committed a drug trafficking crime; 2) knowingly possessed a

firearm; and 3) possessed the firearm in furtherance of the drug

trafficking crime.   United States v. Marin, 523 F.3d 24, 27 (1st

Cir. 2008).    At oral argument, Pena’s counsel conceded that the

first two elements of the charge were met: Pena was convicted of a

drug trafficking crime, and he was carrying a gun when approached

by police.10    However, Pena challenges the sufficiency of the


     9
        Congress added the "possess[ion]" "in furtherance of"
language to the statute in 1998 in response to Bailey v. United
States, 516 U.S. 137 (1995), where the Supreme Court held that
under the prior version of the statute, "the Government must show
that the defendant actively employed the firearm during and in
relation to the predicate crime." See United States v. Grace, 367
F.3d 29, 34-35 (1st Cir. 2004) (quoting Bailey, 516 U.S. at 150)
(emphasis added).    The statute also continues to prescribe a
violation for the acts of 1) using or 2) carrying a firearm "during
and in relation to" a drug trafficking crime. As Pena was charged
both with "carry[ing]" a firearm "during and in relation to" the
drug offense and "possess[ing]" a firearm "in furtherance of" that
offense, the government could have obtained a conviction under
either avenue of proof. See United States v. Lott, 310 F.3d 1231,
1246 (10th Cir. 2002). As we find sufficient evidence to support
a jury finding that Pena possessed the firearm in furtherance of
his possession with intent to distribute cocaine base, we need not
address whether the government also proved that he carried a
firearm during and in relation to a drug trafficking offense.
     10
        In his pro-se Supplemental Brief, Pena states that his
counsel’s concession on this point contradicted his own position.
He states that he "negates any inference whatsoever that suggests

                               -12-
evidence as to the "in furtherance of" element, arguing that the

government never established a link between the gun and the drug

trafficking crime.     We reject this claim.

          To   prove   that    a   defendant   possessed   a   firearm   "in

furtherance" of the predicate drug crime, the government must show

a sufficient nexus between the firearm and the drug crime such that

the firearm advances or promotes the drug crime.           Marin, 523 F.3d

at 27 (citing Grace, 367 F.3d at 34-35; United States v. Garner,

338 F.3d 78, 81 (1st Cir. 2003)).          The mere presence of a firearm

in the area where the drug offense occurred is insufficient.

Grace, 367 F.3d at 35.        In assessing whether a sufficient nexus

exists, we consider several factors: whether the firearm was

loaded, whether the firearm was easily accessible, the proximity of

the firearm to the drugs, and the surrounding circumstances.

United States v. Robinson, 473 F.3d 387, 399-400 (1st Cir. 2007)

(citing United States v. Carlos Cruz, 352 F.3d 499, 509 (1st Cir.

2003)).

          In this case, each of these factors supports a conclusion

that Pena possessed the gun "in furtherance of" the drug crime.

The .357 Magnum was loaded, and there was circumstantial evidence


he threw the firearm and drugs allegedly recovered on [the day in
question]." Though Pena denies that the firearm recovered by the
police was ever in his possession, the fingerprint evidence taken
from the firearm, the fact that the gun was found along the flight
path, and the testimony of Ms. Rosado were sufficient to allow a
reasonable jury to conclude that Pena had, in fact, been in
possession of the revolver when initially stopped by police.

                                    -13-
that Pena was carrying both it and the drugs on his person.     Cf.

Grace, 367 F.3d at 31 (affirming conviction where unloaded gun was

kept under a bed in a drawer that was blocked by a duffel bag,

trash can, and box of books, no ammunition was in the house, and

drugs were stored in a different room than the gun).

          In addition to this evidence, the government presented

evidence that could lead a rational jury to infer that Pena was

carrying the firearm to protect his drugs and drug proceeds, a

purpose that we have found establishes the required nexus between

the drugs and the firearm.   Grace, 367 F.3d at 35 (citing United

States v. Luciano, 329 F.3d 1 (1st Cir. 2003)).   Pena was carrying

$2,781 in cash at the time of his arrest, and there was evidence

that the drugs he discarded had a street value of $2,100.   The jury

also heard evidence that the area where Pena was approached and

eventually arrested was a high-crime area in which numerous drug

and gun crimes and robberies had taken place.

          This evidence was sufficient to convince a rational jury

beyond a reasonable doubt that Pena possessed the .357 Magnum "in

furtherance of" a drug trafficking crime.

C. Other Matters

          In his pro-se Supplemental Brief, Pena mounts a potpourri

of arguments, none of which were raised below.     We thus briefly

consider each, reviewing only for plain error.    United States v.




                               -14-
Garcia-Carrasquillo, 483 F.3d 124, 132 (1st Cir. 2007) (citing

United States v. Carvell, 74 F.3d 8, 14 (1st Cir. 1996)).

          First,    Pena   argues   that   the   court’s   instruction   on

reasonable doubt confused jurors and allowed the jury to return a

conviction based on a finding that Pena was "probably guilty"

rather than guilty beyond a reasonable doubt.          Pena cites only a

small portion of the court’s reasonable doubt instruction, which

comprises over two pages of the trial transcript.          In viewing the

instruction as a whole, we find that it did not mislead the jury as

to the government’s burden of proof.             The instruction made it

eminently clear that the jury had to find Pena guilty beyond a

reasonable doubt.

          Pena also contends that the court erroneously instructed

the jury with regard to the term "use," citing Bailey v. United

States, 516 U.S. 137 (1995), for the proposition that "use for

purposes of a § 924(c) violation means to actively deploy or

discharge and not mere possession or presence."         (emphasis in pro-

se Supplemental Brief).     Pena suggests that by employing the term

"use," the court constructively amended the indictment because the

indictment did not charge Pena with "use" of a firearm.

          While the court did, in fact, use the term "use" once in

the context of its instruction on the "in furtherance of" element,

"use" of a firearm was not an issue in this case, and in any event

the court’s use of that term did not prejudice Pena.            There was


                                    -15-
ample evidence that Pena possessed a firearm in furtherance of the

drug crime, and even if the jury thought it had to find "use," that

would have been a benefit not a detriment to Pena.11

                Finally, Pena argues that he was improperly sentenced as

a crack offender, attempting to draw a distinction between the

terms        "crack"   and   "cocaine   base,"   which   were   used   somewhat

interchangeably by the court and the government at trial and

sentencing.        However, for the purpose of the statute under which

Pena was sentenced, 21 U.S.C. § 841(b)(1)(B)(iii),12 the distinction


        11
       Pena raises numerous additional challenges to the court’s
instructions as to each count, each of which is without merit.
With regard to Count One, possession with intent to distribute,
Pena contends that the district court defined "to possess" without
defining "to distribute" or "trafficking." It is unclear how the
definition of trafficking is relevant to the elements of Count One,
and the court did define the term "to distribute."       Pena next
argues that the court constructively amended the indictment by
using the term "crack" in the verdict slip when the indictment
charged him with possession with intent to distribute "cocaine
base." Pena’s claim is incorrect because the verdict slip in fact
uses the term "cocaine base," not "crack."
     Additionally, Pena contends that the court gave the jury
contradictory instructions as to whether or not the government was
required to prove what type of drug was possessed. Here, too, Pena
is incorrect. The court specifically instructed the jury that the
government must prove beyond a reasonable doubt that the substance
actually possessed was cocaine base.
     Regarding Count Two, Pena argues that the court failed to
explain the first element of the Section 924(c) offense and to
define the term "trafficking" within that element. Again, Pena’s
claim is without foundation. The court did, in fact, explain that
the first element of Count Two was that Pena committed a drug
trafficking offense and further instructed that the crime of
possessing cocaine base with intent to distribute charged in Count
One was a "drug trafficking crime" for the purpose of the statute.
        12
       Though the district court did not note the statute or its
terms on the record at sentencing, the indictment specifically

                                        -16-
between   crack   and   cocaine   base    is   meaningless.   Unlike   the

Sentencing Guidelines, 21 U.S.C. § 841(b) does not define "cocaine

base," and we have held that the term, as used in the statute,

includes all forms of cocaine base, including but not limited to

crack.    United States v. Richardson, 225 F.3d 46, 49 (1st Cir.

2000) (citing United States v. Lopez-Gil, 965 F.2d 1124, 1134 (1st

Cir. 1992) (opinion on panel rehearing)). Consequently, regardless

of whether the government proved that Pena possessed 43.19 grams of

crack or 43.19 grams of some other form of cocaine base, his

sentence under the statute would have been the same.             As Pena

admits that the government presented "ample evidence" that the

substance attributed to him was cocaine base, the court clearly did

not commit plain error in sentencing him to the mandatory minimum

prescribed by the statute.

                                   III.

           For the reasons stated above, we affirm Pena’s

conviction and sentence.

           Affirmed.




charged Pena with a violation of 21 U.S.C. § 841(b)(1)(B)(iii),
possession with intent to distribute "5 grams or more of a mixture
or substance . . . which contains cocaine base."

                                   -17-