United States v. Alister Henderson Simon

842 F.2d 552, 25 Fed. R. Serv. 364, 1988 U.S. App. LEXIS 3741, 1988 WL 24108
CourtCourt of Appeals for the First Circuit
DecidedMarch 25, 1988
Docket87-1511
StatusPublished
Cited by39 cases

This text of 842 F.2d 552 (United States v. Alister Henderson Simon) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alister Henderson Simon, 842 F.2d 552, 25 Fed. R. Serv. 364, 1988 U.S. App. LEXIS 3741, 1988 WL 24108 (1st Cir. 1988).

Opinions

BREYER, Circuit Judge.

On December 31, 1986, federal customs officers in San Juan, Puerto Rico, with the help of a drug-sniffing dog, searched a British West Indies Airlines flight that had stopped briefly in San Juan enroute from Jamaica to Antigua. They found a package containing 55 pounds of marijuana. The package had a BWIA address sticker on it with the name and address in Antigua of defendant Alister Henderson Simon. Also printed on the box were the name “DR. K.S. BANDI, AMERICAN UNIVERSITY OF THE CARIBBEAN, PLYMOUTH, MONTSERRAT” and “DR. K.S. BANDI, U.W.I. [University of the West Indies], MONA CAMPUS, JAMAICA W.I.” The federal agents learned that neither Simon nor Bandi was on the flight, but that Simon would be on the same flight the next day. When Simon arrived in Puerto Rico, the agents arrested him. He said that he was on his way to Antigua; that he had not known the box contained marijuana; that he had checked the package in as a favor to a man who claimed to be a passenger with overweight luggage and who had told him the package contained books. Simon added that he had gotten into a conversation with a woman at the check-in counter and had missed his original flight. A jury convicted him of unlawful possession of marijuana (with intent to distribute) and related drug offenses. 21 U.S.C. §§ 841(a)(1), 952(a), and 955 (1982 & Supp. IV 1986). He now appeals his conviction.

Simon argues that the district court should not have admitted evidence that in July 1980 a court in Antigua convicted him and a friend of cultivating marijuana. Simon concedes that prior convictions, inadmissible to show bad character or propensity to commit a crime, are nonetheless admissible to show, among other things, “intent, ... knowledge, ... or absence of mistake or accident.” Fed.R.Evid. 404(b); see United States v. Scelzo, 810 F.2d 2 (1st Cir.1987); United States v. Zeuli, 725 F.2d 813 (1st Cir.1984). He also concedes that the trial court has considerable leeway in balancing any legitimate probative value that such evidence may have against its potential prejudicial effect. United States v. Rivera Rodriguez, 808 F.2d 886, 888 (1st Cir.1986); United States v. Medina, 761 F.2d 12, 15 (1st Cir.1985). He says, however, that here the trial court, in admitting the prior conviction, went beyond the limits of its legal authority. While we find the issue a close one, ultimately we do not agree with appellant.

The trial court has the legal power under Rule 404(b) to engage in probative-value-vs.-prejudice balancing because, technically speaking, the evidence is legitimately relevant. The trial court said that it found the prior conviction “relevant to prove motive, ... intent, preparation, plan, knowledge, identity, and, in this particular case, because of the defense that has been announced, absence of mistake or accident.” The record reveals several ways in which this may be so.

First, the jury might have reasoned that the conviction suggested that Simon and his associates used marijuana in Antigua and that those who use marijuana in Antigua are more likely to wish to bring marijuana to Antigua than those who do not. This chain of reasoning indicates that the prior conviction was to some degree relevant to the defendant’s intent. See, e.g., United States v. Francesco, 725 F.2d 817, 822 (1st Cir.1984) (prior conviction for selling cocaine admissible to show intent to possess and distribute cocaine); United States v. Cepeda Penes, 577 F.2d 754, 760-61 (1st Cir.1978) (evidence that customs officials found marijuana seed in defendant’s luggage nine days prior to events leading to prosecution for possessing marijuana with intent to distribute admissible to show intent). But see United States v. [554]*554Masters, 450 F.2d 866, 867 (9th Cir.1971) (marijuana use not significantly probative of intent to import).

Second, the jury might have taken note of a letter that customs officers took from the defendant when they arrested him, a letter that apparently he was carrying for another person. The letter said in part “Fve got a plan to use some 16-track tape as a smuggling machine.... [Y]ou could post them to me and I will post them back full of the mystic scent.” The jury might have thought that one with a background involving marijuana cultivation was more likely than one without such a background to have understood these terms as referring to drug smuggling and therefore to have been involved in drug smuggling at the time. The conviction was thereby relevant to knowledge, intent, and absence of accident or mistake.

Third, the jury might have noted that the customs officer testified that the defendant said that the man who had asked him to take the package told him it contained books. At that time, the defendant (according to the officer) said, “in my mind I was afraid there was marijuana in this box because this is Jamaica and everyone knows there is a lot of grass in Jamaica.” The jury might have reasoned that one •thinking this who also has a background involving marijuana cultivation is not likely to believe that a box containing marijuana feels like (or weighs about the same as) a comparatively sized box of books, and therefore would have been more suspicious of the man's story (had there been such a man). In this respect the evidence is relevant to defendant’s knowledge and intent as well as absence of mistake or accident. See, e.g., 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” (emphasis original)); United States v. Sinn, 622 F.2d 415 (9th Cir.1980) (evidence that defendant had been in possession of cocaine five years earlier admissible to show knowledge where defendant claimed he was unaware drugs were in his camera case).

Finally, the jury may have concluded that persons who have grown marijuana on a farm are not mere users, but are likely to have an intent to distribute it as well. Cf. United States v. Mehrmanesh, 689 F.2d 822

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Bluebook (online)
842 F.2d 552, 25 Fed. R. Serv. 364, 1988 U.S. App. LEXIS 3741, 1988 WL 24108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alister-henderson-simon-ca1-1988.