United States v. Alejandro Rubio-Estrada

857 F.2d 845, 26 Fed. R. Serv. 1229, 1988 U.S. App. LEXIS 12359, 1988 WL 94432

• Court: Court of Appeals for the First Circuit
• Decided: September 15, 1988
• Docket: 87-1556
• Status: Published

Opinions

BREYER, Circuit Judge.

On December 19, 1986, a group of federal and state law enforcement officers, with a search warrant, entered the house of the appellant, Alejandro Rubio-Estrada. The appellant, his son, a friend, a baby-sitter, and her son, all were present. The officers searched the house thoroughly. They found, among other things, 37 blank Social Security cards, a tax return, a ledger recording (according to the government’s expert testimony) multi-thousand dollar transactions, an electronic scale, considerable cash, white powder (that was not cocaine), and two glassine envelopes containing 125 grams of cocaine. A federal jury subsequently convicted the appellant of possessing cocaine with intent to distribute it. 21 U.S.C. § 841(a)(1) (1982). After examining the record, we find no legal error, and we affirm the conviction.

1. Appellant’s most serious claim — one that divides this panel — concerns the district court’s decision to allow the government to introduce into evidence appellant’s prior conviction for possessing cocaine with intent to distribute it, and for aiding and abetting similar possession by others. The convicting court had sentenced appellant to a term of three years in prison and three years on special parole. The parole term of that prior conviction had ended 26 days before the crime here at issue.

Appellant argues that the district court’s decision to admit this prior conviction was legally erroneous. Fed.R.Evid. 403, 404(b). We believe, however, that this is a fairly typical instance in which current law, as embodied in the Federal Rules of Evidence and numerous precedents interpreting those rules, gives the district court, not this court, the power to decide whether or not to admit a prior conviction.

a. The Federal Rules of Evidence recognize that a strong argument can be made for admitting, say, a prior crime as evidence when it shows “bad character.” That argument consists of the well-accepted fact that “bad character” has probative value. They also recognize the strong arguments against admitting such evidence. See dissent pp. 851-52. The result is a compromise. Where the past bad act is relevant only because it shows bad character (i.e., the proposed logical inference includes character as a necessary link), Rule 404 automatically excludes the evidence. But, if that evidence is also relevant in any way that does not involve character, the evidence is not automatically excluded. 2 J. Weinstein & M. Berger, Weinstein’s Evidence § 404[08] (1986 & Supp.1988) (hereinafter referred to as “Weinstein & Berger”). Indeed, it will be admitted unless the trial court determines that its probative value is “substantially outweighed” by the risks of prejudice, confusion, or waste of time. Fed.R.Evid. 408; 1 Weinstein & Berger ¶ 403[01] — [04].

b. The evidence here is admissible to show “knowledge” and “intent,” both controverted issues in the case that are not based on “bad character.” The government’s witnesses testified, in relevant part, to the following: Police, with a search warrant, entered the defendant’s house, where he was present with family members and friends. They found, in a walk-in closet under steps leading to the basement, behind some men’s and women’s clothing, a box surrounded by white powder. (An expert later testified that those selling cocaine often “dilute” or “cut” pure cocaine “with a material such as inositol, lactose, or lidocaine which are white powders”, “similar in appearance to cocaine.”) The box contained more of the powder and an electronic scale, of a kind that, according to the expert’s testimony, is often used to weigh cocaine when it is sold. Against the closet wall, the police found another box with the word “cash” on it that contained a ledger book, which the expert testified contained accounts of transactions that appeared to be drug sales. After a further search, the police found, hidden in the rafters at the top of the closet, two plastic bags containing cocaine. They also found, elsewhere in the house, substantial amounts of cash. One police officer testified that the defendant, when confronted with the bags of cocaine, said “I know what it is, it will come back [from the testing laboratory] positive.”

During, and just after, the government’s presentation of its case, defendant’s counsel, through cross-examination and comment, made clear that a major part of the defense would consist of a claim that the defendant lacked knowledge of the presence of cocaine or intent to commit the crime (which makes it unlawful to “possess [cocaine] with intent to distribute ...” 21 U.S.C. § 841(a)(2) (1982)). Counsel said that “there is no real showing here ... that this defendant knew that that substance was concealed up under his stairs.” (Tr. 119). He suggested that the defendant had used the scales to weigh gold. He suggested that the handwriting in the ledger books was not that of defendant, and that the defendant thought the books were used to keep track of automobile sales and loan payments in Peruvian “soles” or “inti.” He indicated at one point that the searching agent’s report of defendant’s apparent recognition of the cocaine was inadmissible or inaccurate. He moved (after the government presented its case) for a judgment of acquittal under Fed.R.Crim.P. 29 on the ground that “there’s no evidence to show that this defendant knew that that cocaine was in fact on those premises.” (Tr. 165). Moreover, when the court was considering admitting the prior conviction and it asked counsel whether he would “concede” knowledge and intent, counsel replied “certainly not,” and went on to say that “by telling this jury that [defendant] has a prior conviction ... and because he has a prior conviction, he would certainly know that it [the cocaine] was there.” (Tr. 119). The defendant repeatedly denied knowledge that cocaine was in the house.

The obvious non-character-based inferences to which the prior conviction is relevant concern knowledge and intent, the points argued in detail to the judge. The judge specified that he was admitting the evidence only in respect to knowledge and intent. That it was so relevant seemed fairly obvious to the district court, as it is to us, though, given the dissent, we shall spell out in detail non-character-based, knowledge-related inferences. For example, a person previously convicted of cocaine distribution is more likely than one not so convicted to know that electronic scales are used to measure cocaine for sale; such a person is more likely to know that ledger books of a certain sort are used for drug sales, not car sales in Peruvian “soles” or “inti;” such a person is more likely to think that a white powder around the scales might be a substance used to cut cocaine before it is sold. And, a person who knew such drug-related items are used to help sell drugs (which he denies knowing about), is more likely to have known about, and intended to distribute, the drugs, than a person who does not know these drug-related items are used to help sell drugs. In addition, such a person is more likely than one not previously involved in cocaine distribution to know how to use electronic scales to measure cocaine, to keep drug ledgers, etc. And, a person who knows how to perform a fairly technical operation, such as “cutting cocaine” or “keeping drug ledgers” is more likely to have been involved in performing those operations than one who does not know how to do so (just as one who knows how to fly a plane is more likely to have been piloting an airplane than the average person who does not know how to fly an airplane). Further, a person previously involved in cocaine distribution, entering the downstairs closet to find his clothes (as the jury might have thought this defendant sometimes did), noticing the white powder, scales, and box saying “cash” (as the jury might have thought sometimes happened here) is more likely than one not previously involved to think that some kind of cocaine distribution operation is taking place in his house.

Each of these inferences is a reasonable one that a fact-finder might make here in finding evidence relevant, whether or not it offers proof beyond a reasonable doubt. Any one of these sets of inferences makes it logically somewhat more likely that defendant did know about the cocaine in his house and did intend to distribute it than one who did not have a prior conviction — or so the jury might reasonably believe. Any one of these inferences is sufficient to remove the evidence of prior conviction from the automatic bar of Rule 404. Taken together, these possible inferences make it reasonable for the court to determine, in the context of this case, that the prejudicial effect of this evidence does not “substantially outweigh” its probative value, and for the court to admit it under Rule 403.

c. The authority supporting admission of evidence of a past bad act, under circumstances such as those present here, is legion. Rule 404 itself says such evidence is “admissible for other [than character] purposes, such as proof of ... intent, ... [and] knowledge.” The inferences here at issue do not differ significantly from those recently considered by the Supreme Court in Huddleston v. United States, — U.S. -, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), where evidence of a defendant’s previous receipt of goods likely stolen was introduced to show that his later possession of stolen goods likely took place with knowledge that they were stolen. Cases more directly on point in the First Circuit include United States v. Simon, 842 F.2d 552, 553-55 (1st Cir.1988) (prior marijuana cultivation conviction admissible to show defendant’s knowledge that package he carried contained marijuana, not books); United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982) (prior conviction admissible where government “sought to have the jury infer that one who lives on a farm with marijuana in the freezer room and under the chicken coop and has a prior possession conviction is more likely to know about the presence of marijuana than one who lives on such a farm and does not have a past possession conviction”). Many similar cases permitting introduction of this evidence can be found in every circuit. E.g., United States v. Harrison, 679 F.2d 942, 948 (D.C.Cir.1982) (testimony regarding defendant’s prior drug dealing in his basement properly admitted to prove motive, intent, preparation, plan, knowledge, identity and absence of mistake in drug conspiracy trial); United States v. Terry, 702 F.2d 299, 316 (2d Cir.) (20-year-old narcotics conviction admissible to prove defendant’s intent and guilty knowledge when defense counsel claimed that defendant’s telephone conversations with certain person related to gambling, not narcotics), cert. denied sub nom. Williams v. United States, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983); United States v. Wright-Barker, 784 F.2d 161, 174-75 (3d Cir.1986) (evidence of defendants’ prior presence on vessels in which marijuana was hidden admissible in trial on charges of violation of federal narcotics laws on the high seas); United States v. Echeverri-Jaramillo, 777 F.2d 933, 936-37 (4th Cir.1985) (evidence of small amount of cocaine allegedly possessed by defendant when he entered apartment admissible to prove motive, intent, preparation, plan, knowledge, or absence of mistake or accident in prosecution for offense related to over 35 pounds of cocaine where defendant claims that his involvement in cocaine distribution conspiracy was mere happenstance), cert. denied, 475 U.S. 1031, 106 S.Ct. 1237, 89 L.Ed.2d 345 (1986); United States v. Alejandro, 527 F.2d 423, 429 (5th Cir.) (prior heroin sale conviction admissible in trial on charge of conspiring to distribute heroin to show willingness, intent), cert. denied sub nom. Rocha v. United States, 426 U.S. 923, 96 S.Ct. 2632, 49 L.Ed.2d 377, reh’g denied, 429 U.S. 875, 97 S.Ct. 199, 50 L.Ed.2d 159, cert. denied sub nom. Alejandro v. United States, 429 U.S. 844, 97 S.Ct. 124, 50 L.Ed.2d 115 (1976); United States v. Ismail, 756 F.2d 1253, 1259-60 (6th Cir.1985) (evidence that defendant and accomplice had jointly schemed to sell hashish admissible in trial on charges that defendant conspired to import and distribute heroin where defendant claimed that he was legitimate businessman travelling to United States to make bulk sales of precious stones, gems, and inexpensive jewelry); United States v. Taylor, 728 F.2d 864, 870-72 (7th Cir.1984) (in prosecution for possession of unregistered machine gun and silencer, cross-examination on subject of defendant’s prior arrest for cocaine possession properly allowed to rebut defendant’s denial of any familiarity with cocaine); United States v. Jardan, 552 F.2d 216, 218-19 (8th Cir.) (in heroin distribution prosecution, evidence of prior heroin distributions admissible to show defendant’s knowledge and intent to possess and to distribute on date charged), cert. denied, 433 U.S. 912, 97 S.Ct. 2982, 53 L.Ed.2d 1097 (1977); United States v. Mehrmanesh, 689 F.2d 822, 830-31 (9th Cir.1982) (defendant’s prior conviction on charge of possessing hashish packets that had been smuggled into the United States admissible to prove that defendant knew that suitcase he received from Kuwait contained heroin); United States v. Nolan, 551 F.2d 266, 270-72 (10th Cir.) (defendant’s prior British conviction for unlawful hashish importation admissible to show intent, knowledge, motive, identity, or absence of mistake or accident), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977); United States v. Holman, 680 F.2d 1340, 1348-50 (11th Cir.) (in prosecution for conspiracy and possessing marijuana with intent to distribute, evidence of defendants’ previous attempts to smuggle marijuana was admissible to show knowledge where one defendant denied that he consented to use of his boat and other defendants refused to make formal stipulation to elimination of intent as an issue), reh’g denied, 691 F.2d 512 (1982). Judge Weinstein and Professor Berger have collected still more cases of this sort, a reading of which suggests that the case before us falls well inside the parameters of admissibility. See 2 Weinstein & M. Berger, ¶ 404[12],

The law thus permits the district court to admit the prior conviction. And, “it is clear in this circuit that we will give the district court considerable leeway on this matter.” Simon, 842 F.2d at 555 (citing United States v. Crocker, 788 F.2d 802, 804 (1st Cir.1986); United States v. Zeuli, 725 F.2d 813, 816 (1st Cir.1984); United States v. Eatherton, 519 F.2d 603, 611 (1st Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975)).

2. Appellant argues that the district court should not have allowed the prosecution to submit into evidence the 37 blank Social Security cards that the officers found in his house. He says that the jury might have thought that the cards showed a past bad act (perhaps making up false Social Security numbers or providing false identification), and that Rule 404(b) therefore prohibits their use.

The record shows, however, that the prosecution used the cards for a very different reason. Defendant’s counsel, at trial, made a point of the fact that the searching officers had eventually questioned the defendant during the search, but that they did not give him “Miranda warnings” (or question him) until the search had been underway for 25 minutes, and that they did not give “Miranda warnings” to some of the others present in the house. The prosecution wished to rebut any suggestion that the officers had acted improperly. The district court ruled that the prosecutor was entitled to rebut any inference of impropriety either by an instruction that the law does not require the police to give “Miranda warnings” until they question a person, or by introducing the cards and providing the jury with a complete explanation of the delay (presumably, finding the cards led the officers to decide to begin to question the appellant). The appellant chose the latter alternative; the court permitted the prosecution to present the cards; and the court instructed the jury that the cards “are not being offered to suggest a violation of the law, but simply in connection with the time that passed between the entry into the premises and when the so-called Miranda rights were read to the Defendant.”

Since the cards were not used for the purpose of having the jury draw a ‘character-based’ inference, since the purpose served was relevant in the context of the trial, Fed.R.Evid. 404(b), and since the district court might reasonably find that the relevance of the cards, in terms of that purpose, was not substantially outweighed by potential prejudice, Fed.R.Evid. 403, the decision to permit the cards into evidence was lawful.

3. Appellant objects to the government’s use of his 1985 income tax return (found in his house) when the prosecutor cross-examined him. He argues that it potentially showed a past bad act (lying on his tax return) and the use thereby violated Rule 404(b). The prosecutor used the return, however, for a different reason. Appellant had testified that the multi-thou-sand dollar transactions in the ledger that the agents seized in his house did not reflect sales of drugs, but, rather, reflected sales of gold, automobiles, Peruvian beer, Peruvian money, and restaurant items. The prosecutor wanted to show that the appellant’s income tax return did not contain information about any such legitimate transactions, thereby suggesting that the appellant was lying. This use is not that forbidden by Rule 404. Nor does Rule 403 prohibit the court from permitting the government to use the tax returns for this purpose.

4. Appellant argues that the evidence was not sufficient to warrant conviction. The officers, however, found drugs, drug paraphernalia, large amounts of cash, and transaction ledgers in his house. They found much of this material in a basement closet containing men’s clothes. The jury may have believed the officer’s testimony that, when confronted with the drugs, appellant said “I know what it is, it will come back [from the testing laboratory] positive.” The jury may have disbelieved appellant’s explanation of this statement (that he thought the police were out to get him and would insure that the results were positive). The jury may also have believed appellant’s testimony (and that of his wife) that appellant had used the scales and written in the ledger books. The jury at the same time may have disbelieved appellant’s testimony and that of his wife that he used the scales for weighing gold and the book for recording, e.g., beer transactions. This evidence is more than sufficient to permit the jury to convict the appellant of possession with intent to distribute. Cf. United States v. Robinson, 843 F.2d 1, 8-10 (1st Cir.1988); United States v. Guerrero-Guerrero, 776 F.2d 1071, 1074-77 (1st Cir.1985), cert. denied sub nom. Mosquera v. United States, 475 U.S. 1029, 106 S.Ct. 1233, 89 L.Ed.2d 342 (1986); United States v. Lopez, 709 F.2d 742, 746-48 (1st Cir.), cert. denied, 464 U.S. 861, 104 S.Ct. 187, 78 L.Ed.2d 166 (1983).

5. Appellant argues that the district court unlawfully denied his motion for a new trial, a motion made about three months after conviction. Appellant based his motion on testimony from one Willie Vasquez, who said that he had “planted” the cocaine in appellant’s house in return for $1,000 paid by an “enemy” of appellant named Nestor Vila.

The district court, however, noted changes in Yasquez’s story (he had said at different times that the “planted” cocaine was “rock” and was “powder;” he said that it did, and that it did not, resemble the powder police found). The district court considere^ appellant’s account of how he found out about Vasquez improbable (that appellant’s brother heard through the grapevine that Vazquez had read about appellant’s conviction two months after the trial and, while drunk, had blurted the truth out to friends, and then acknowledged this account when the brother confronted him). And, the district court heard Vasquez testify and disbelieved him. We cannot say that the district court, having heard the witness, erred in concluding that (1) a jury, too, would likely disbelieve his story, and that, (2) given the evidence against appellant, the “newly discovered evidence” was not so credible that it would “probably result in an acquittal upon retrial of the defendant.” United States v. Martin, 815 F.2d 818, 824 (1st Cir.) (quoting United States v. Wright, 625 F.2d 1017, 1019 (1st Cir.1980)), cert. denied, — U.S. -, 108 S.Ct. 89, 98 L.Ed.2d 51 (1987).

The judgment of conviction is

AFFIRMED.