USCA1 Opinion

March 30, 1993

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 91-1571
UNITED STATES OF AMERICA,
Appellee,
v.
GLENN ALLEN,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Brown,* Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
_____________________
Perry O'Brian, by Appointment of the Court, for appellant.

_____________
F. Mark Terison, Assistant United States Attorney, with whom
_______________
Richard S. Cohen, United States Attorney, and James L. McCarthy,
________________
__________________
Assistant United States Attorney, were on brief for appellee.
____________________
March 30, 1993
____________________

*
Of the Fifth Circuit, sitting by designation.
Judge Brown
(now deceased)
heard oral
argument in this
matter, and
participated in the semble, but did not participate in the
drafting or the issuance of the panel's opinion.
The remaining
two panelists therefore issue this opinion pursuant to 28 U.S.C.
46(d).

____________________

-2-

TORRUELLA, Circuit Judge.

______________
convicted of conspiracy to
possession

of

psilocybin

Appellant Glenn

Allen was

possess in excess of 10 grams of LSD,

with

intent

to

distribute,

and

distribution

of

841(a)(1) and

psilocybin,

846, and 18

in

violation

U.S.C.

2.

of

21

Appellant

U.S.C.

alleges that

insufficient evidence existed to support his convictions and that

the government violated
these

his Fourth Amendment

allegations, appellant requests

find that sufficient

and that

rights.

Based

a new trial.

on

Because we

evidence supported appellant's convictions,

no Fourth Amendment violations occurred,

we affirm the

verdict.
BACKGROUND
BACKGROUND
__________
Evidence of the
States
of

postal inspector, assigned

illicit drugs

through

Express Mail package

Kurt Humphrey
coast of

the United States.

a previously

originating

The

became

suspicious of

receipts were addressed

sent from two locations

The sender's name

false.

addressed to Kurt

to

on the west

In addition,

The postal

directed the appropriate postmaster in Maine to watch

Express Mail packages

two

on each receipt

investigated sender.

addresses were

A United

to investigate transportation

the mail,

receipts.

in Maine and

coincided with
the

following appeared at trial.

inspector

for future

Humphrey from the

west

coast.
Such a
at 7:00 a.m.
hour

later

The

package arrived from Oregon on January 11, 1990

postmaster alerted the

when the

inspector
-2-

arrived

postal inspector
at

the New

one

Hampshire

office,

where he

directed

the

instruction.
notified

was working

postmaster to
Ordinarily,

that day.
hold

the

The

postal inspector

package pending

the postmaster would have

Humphrey that the package had arrived.

further

immediately

The package had

a guaranteed delivery time of 3:00 p.m. that day.

At 10:00 a.m. in
Coast,

the inspector

learned that the

fictitious.

New Hampshire, 7:00 a.m. on

called the

appropriate Oregon

the West

office and

originating address and the sender's

The inspector

then arranged

with the

name were

Maine state

police for a trained dog to sniff the package for drugs.

was trained

to find marijuana,

cocaine, hashish, and

The dog

heroin in

all of their forms.

When the

state police

arrived at

noon, the postmaster closed the

the

police officers to his

privacy.

office for lunch.

nearby house to

Four times, the police

and sent the

dog to

the post office

find it.

He then

at

took

conduct the test in

hid the package in

Each time, the

the garage

dog located

the

package and indicated the presence of drugs.

The police presented an affidavit to a local magistrate

describing
from a
warrant

the test and stating

fictitious
at

4:21

address.
p.m.

When

that the package

The magistrate
the

police

had been sent

issued

search

officers opened

the

package,

they found

blotter paper.

rations of

LSD

on 112

sheets

of

The police then prepared a dummy package with two

sheets of blotter
envelope.

11,200

paper in an

apparently unopened Express

Mail

Meanwhile, sometime between 11:00 a.m. and 2:00 p.m.,

-3-

Humphrey

checked his

post office box,

found nothing,

and left

without inquiring about the package.

The next day, Humphrey returned to the post
received
two

the dummy package.

office and

When Humphrey left the post office,

police officers followed

him.

They

ultimately stopped him

en-route to appellant's house.

At trial, Humphrey described
in the scheme,

appellant's participation

alleging that appellant recruited him

packages

and

dollars.

Humphrey also stated that appellant sold him $250 worth

of

psilocybin

mushrooms

deliver

them to

mushrooms.

appellant

The

police

for

to receive

fee of

later found

fifty

psilocybin

in Humphrey's home and in a barn on appellant's family

property.
In
from James

addition, the police

Paoletti made out

found a money

to appellant in

order for $400

appellant's home.

Paoletti testified

that the money order

represented payment for

LSD.

Appellant moved to suppress the contents of the Express

mail package

unsuccessfully.

He also lost

motions for judgment

of acquittal.
APPELLANT'S CLAIMS
APPELLANT'S CLAIMS
__________________
I.
I.

Sufficiency of the evidence

Sufficiency of the evidence

"The standard

of review for sufficiency

whether the total evidence,

the

prosecution,

favorable to it,

together

challenges is

taken in the light most

with

all

amicable to

reasonable

would allow a rational fact-finder

inferences

to conclude

-4-

beyond

a reasonable

charged."
1991).

doubt

that

the

defendant was

guilty

as

United States v. Maraj, 947 F.2d 520, 522-23 (1st Cir.

_____________
_____
Viewing

the record

in this

light, we

find sufficient

evidence for appellant's conviction on all three counts.

First,

through testimony

the government presented sufficient

from Paoletti

and Humphrey,

evidence for a rational jury

to conclude that appellant

to

distribute it.

Paoletti

conspired to possess LSD

with intent

The following evidence was admitted at trial.

sent appellant

$400 money

order

appellant would obtain from the West Coast.

Proceedings at 145).

to buy

LSD

that

(Transcript of Trial

After procuring an Express Mail shipment of

LSD from the West Coast, appellant would pay Humphrey to retrieve
the

package from the post

home.

Id. at 20.
__

searched the
dummy package.

office and deliver

Pursuant to a search warrant, police officers

package, discovered

LSD, and

Humphrey retrieved the

replaced

a rational

jury could

it with

package, and the officers

arrested him on the way to appellant's home.

this evidence,

it to appellant's

Id. at 20-21.
__

find appellant

From

guilty of

conspiracy to possess LSD beyond a reasonable doubt.

Second,

sufficient

evidence

conviction for distribution of psilocybin.

it

was enough to show that the

supported

appellant's

To prove this charge,

defendant had the "power and the

intention to cause the transfer . . . either directly or

another person . . . ."

through

United States v. Acevedo, 842 F.2d

_____________
_______

502,

507

(1st Cir. 1988).

Humphrey testified that (1) when appellant

was

in Europe in November 1989, he phoned Humphrey, and Humphrey

-5-

asked him if he

could get some psilocybin, (Transcript

of Trial

Proceedings at 34); (2) appellant offered him the psilocybin that

was

in the barn

agreed

at appellant's home,

to sell

a quarter

pound of

id. at
__

35; (3) appellant

psilocybin for

Humphrey would pay when appellant returned from

$250, which

Europe, id.; (4)

__

Humphrey took the psilocybin from the barn, id. at 35-36; and (5)
__
when appellant returned,
payment, which
wanted

Humphrey offered him

appellant took, saying he'd

it, id. at 39.

__

The government

a gun as

partial

try it to see

if he

also introduced evidence

that the police confiscated psilocybin from Humphrey, id. at

__
and from the

barn on appellant's property,

id. at 90-91.
__

this evidence, a rational jury could conclude that

37,

From

appellant had

the power and intent to cause the transfer of psilocybin.

Finally,

sufficient

appellant's conviction
psilocybin.
establish

prove this crime,

defendant

substance, knowledge of that

to

distribute

it.

possession will
circumstantial
control

21

evidence

premises in

support

to distribute

of a

controlled

possession, and the specific intent

U.S.C.

such

to

the government must

had, possession

841(a)(1).

support a conviction

over the

existed

for possession with intent

In order to
that the

evidence

as

and can be
defendant's

which the

Constructive

established by
ownership

contraband

or

is hidden.

Acevedo, 842
_______

F.2d

at 507.

ownership or control over

Appellant argues

that

he had

no

the psilocybin because his family

access to the barn where it was stored,

had

and because he exercised

no exclusive or mutual control over the part of the barn in which

-6-

the

mushrooms were

appellant

ordered

(Transcript of Trial

found.
the

psilocybin

id. at 28.
__

testified, however,

and

hid

it

in

that

the

barn,

on the

same

psilocybin mushrooms that he had

in a

Proceedings at

day, appellant showed him

duffel bag,

Humphrey

28), and that

From this evidence, the jury could infer

that appellant owned or controlled the psilocybin in the barn.

Appellant attacks the
witnesses

for

all three

Paoletti's testimony
that Humphrey
suitable

opportunity

charges.

He

for

to present

government's

complains that

conflicted with a prior

offered solely

arguments

credibility of the

made statement and

conclusory assertions.

the

jury,

them at

reject them, we must do the same.

and

trial.

appellant
As

part of

the jury

United States
_____________

These are
had

ample

chose to

v. Angiulo, 897
_______

F.2d 1169,

1197

(1st Cir.)

credibility determinations

(reviewing court
in favor

must resolve

of verdict),

all

cert. denied,
____________

498 U.S. 845 (1990).

II.
II.

Fourth Amendment Issues

Fourth Amendment Issues

Appellant next argues that

denying his motion to suppress the
package.

LSD found in the Express Mail

Specifically, appellant contends that the detention and

subsequent search
right

the district court erred in

of the

package violated his

against unreasonable

detention

was

not

based

search and
on

contained contraband; and (2)

Fourth Amendment

seizure because

reasonable suspicion

it was unreasonable.1

See
___

(1) the
that

it

United
______

____________________

1
In his brief, appellant also argued that the police officers
lacked probable cause to search the package because the dogs were
not trained to sniff LSD.
At oral argument, however, he
-7-

States v.
______

La France, 879
__________

F.2d

1, 4

(1st

Cir. 1989)

(police

entitled to delay delivery if delay is based reasonable suspicion

and is reasonably executed).
view of the

We find, however, that a reasonable

record evidence supports the district court's denial

of the motion.

See United States v. Masse, 816 F.2d 805, 809 n.4

___ _____________
_____

(1st Cir. 1987) (citing United States v. Veillette, 778 F.2d 899,
_____________
_________
902

(1st

court's

Cir. 1985)
denial

(appellate

of motion

to

court

should uphold

suppress

if

district

reasonable view

of

evidence supports it).

The
supported the
shows that

court properly

that

reasonable

package's delayed

delivery.

The

the postal inspector

has seven

years of

investigating drug

transportation

investigated between
through

found

Express Mail.

through

200 and 300 cases

(Transcript of

Motion to Suppress Evidence at 12-13).

package for several reasons.
Mail packages, and Humphrey

the

suspicion

record evidence

experience

mail,

and

has

involving drug transport

Hearing on

Defendant's

He grew suspicious of the

Individuals rarely receive Express

received three in five months.

Id.
__

____________________

abandoned that argument and conceded that the disputed time frame
consisted of that between the arrival of the package and the
sniff test.

We note that the test did in fact generate probable cause.

Probable cause is judged upon the information known to the
authorities and presented at the time the warrant issues. United
______
States v.
Johnston, 784 F.2d 416, 420
(1st Cir. 1986).
______
________
Information available to the magistrate at this time revealed
that a trained dog had alerted to the presence of drugs in the
package four times. This information gave rise to probable cause
to suspect that the package contained contraband.
That the
package later turned out to contain LSD, which the dog was not
trained to find, is irrelevant.
-8-

at

55.

Also,

the inspector

suspicious mailings

knew

that Humphrey

had received

from the West Coast in the past.

Id. at 15.
__

The labels were suspicious because the return addresses differed,

but
Also,

the handwriting, in his observation, appeared the same.

one of

the

senders

had the

same

name

as someone

Id.
__

who

previously

mailed an Express Mail package containing psilocybin.

Id.
__

this

From

inspector

had

initially.
was

evidence, the
reasonable

suspicion

When the inspector

fictitious, additional

district
to

court found
detain

that

the

the

package

learned that the sender's address

suspicion developed,

justifying the

further delay that it took to arrange for the dog sniff test.
In

addition

to

having

reasonable

suspicion,

officials did not unreasonably delay delivery of the package.

determine

the

diligence of

reasonableness

of

the

delay,

we

review

the

To

the

the investigators, the length of detention, and the

information conveyed

to the suspect.

La France, 879 F.2d

_________

at 7

(citing United States v. Place, 462 U.S. 696, 709-10 (1983)).

_____________
_____
In

the present case,

the law

enforcement authorities

acted

diligently.

The delay

lasted only as

The postmaster promptly contacted

further

information, and

verified the
to open.

Id. at
__

26-27.

postal

inspector

at

then

promptly

the appropriate office

When the inspector determined

exist, he

(Transcript of

Evidence

the postal inspector to obtain

addresses, waiting only for

addresses did not

test.

the

long as necessary.

arranged for and

executed the

Hearing on Defendant's Motion

26-29).

No

evidence

that the

suggested

dog

to Suppress

that

the

law

-9-

enforcement officials could have acted more swiftly.

Furthermore, the dog was located at a distance from the

postmaster's home, id. at 91-92; yet, within five hours after the
__
postmaster notified
test was complete.
the package
time,

delivery
expectancy

Indeed,

developed two

and thus

interest.

the inspector

See
___
time,
that

before

hours before the

appellant had
F.2d

possessory

package

the sniff

sufficient probable cause to

La France, 879
__________
only

about the package,

would

guaranteed delivery

a significant

possessory

at 7

guaranteed

(before

interest
be

search

delivered

is

contract-based
on

time).

The

district court judge properly found the delay reasonable.

Finally, appellant received no misinformation regarding

his package.
Accordingly,

Indeed,
we

find

he never
that

inquired

the record

about

evidence

the

package.

supports

the

district court's denial of the motion to suppress.

CONCLUSION
CONCLUSION
__________
Because
conviction, and

sufficient
appellant's

evidence

supported

Fourth Amendment

violated, we affirm appellant's conviction.

Affirmed.
________

-10-

rights

appellant's
were

not