United States v. Carrera Navoa

Opinion

USCA1 Opinion

April 21, 1994        [NOT FOR PUBLICATION]
                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 93-1780

                                    UNITED STATES,

                                 Plaintiff, Appellee,

                                          v.

                               MAURICIO CARRERA NOVOA,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Mark L. Wolf, U.S. District Judge]
                                           ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                            Bownes, Senior Circuit Judge,
                                    ____________________
                              and Stahl, Circuit Judge.
                                         _____________

                                 ____________________

            George  Garfinkle with  whom Richard  N.  Ivker  was on  brief for
            _________________            __________________
        appellant.
            William F.  Sinnott, Assistant United  States Attorney, with  whom
            ___________________
        Donald K. Stern, United States Attorney, was on brief for appellee.
        _______________

____________________

____________________

Per  Curiam.   In this  appeal, defendant-appellant
                      Per  Curiam.
                      ____________

            Mauricio   Carrera  Novoa,  a/k/a   John  Pimental  and  Jose

            Pimental,  challenges   his  conviction  for   one  count  of

            possession  of  cocaine with  intent  to  distribute, see  21
                                                                  ___

            U.S.C.   841(a)(1), and the sentence of incarceration imposed

            therefor.  After carefully considering defendant's arguments,

            we affirm.

                      In asserting that his conviction should be reversed

            or,  in  the  alternative,  that he  should  be  resentenced,

            defendant  makes five  arguments.   None  requires  extensive

            discussion.

                      1.    Defendant  first contends  that  the district

            court erred in finding that the arresting agents had probable

            cause  to search  the  gym bag  from  which the  cocaine  was

            seized.  We do not agree with this contention.

                      The  court  supportably  found that  the  arresting

            agents,   in  conducting  their  initial  surveillance,  were

            relying upon trustworthy information from  three confidential

            informants indicating,  inter alia,  that (i) an  individual,
                                    _____ ____

            one  of whose aliases was  Jose Louis Pimental,  ran a large-

            scale cocaine ring from an  apartment at 131 Coolidge  Avenue

            in  Watertown, Massachusetts;  (ii)  Pimental's brother,  the

            defendant  here,  typically  removed  the  drugs   from  this

            apartment for transportation elsewhere; (iii)  that defendant

            John/Jose was  known to operate  a gray Mitsubishi;  and (iv)

that  a multi-kilogram  shipment of  cocaine was  expected to

            arrive at this apartment prior to March 25, 1992.

                      The  court  also  supportably  found  that,  on the

            morning of March  25, 1992,  one or more  of the  surveilling

            agents observed, inter alia, (a) a gray Mitsubishi, which was
                             _____ ____

            registered to a Jose  Pimental, drive into the garage  at 131

            Coolidge  Avenue; (b) defendant exit  the car and walk toward

            the building's  elevators; and  (c) defendant return  a short

            time  later carrying a bag  which appeared to  be quite heavy

            and bulky (and  which, in the  estimation of the  experienced

            arresting agents, had an  appearance consistent with a method

            of transporting  large quantities  of drugs).   In  our view,

            these  findings  are  more  than sufficient  to  sustain  the

            district court's determinations, in light of the totality-of-

            the-circumstances, see United  States v. Torres-Maldonado, 14
                               ___ ______________    ________________

            F.3d 95,  105 (1st  Cir. 1994),  that probable cause  existed

            both to  arrest defendant  for possession of  contraband, see
                                                                      ___

            United States  v. Figueroa,  818 F.2d  1020,  1023 (1st  Cir.
            _____________     ________

            1987) (probable cause to  arrest attaches when the  facts and

            circumstances within the knowledge  of police officers and of

            which they  have trustworthy information are  "`sufficient to

            warrant a prudent person in believing that the defendant  had

            committed or  was committing  an offense'") (quoting  Beck v.
                                                                  ____

            Ohio, 379 U.S. 89, 91 (1964)), and to remove the bag from the
            ____

            Mitsubishi's trunk and  search it, see Illinois v. Gates, 462
                                               ___ ________    _____

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U.S. 213, 238 (1983) (probable cause  to search attaches when

            there is "a fair probability that contraband or evidence of a

            crime  will  be  found  in a  particular  place");  see  also
                                                                ___  ____

            California v.  Acevedo, 111 S. Ct. 1982,  1991 (1991) (police
            __________     _______

            officers  may  search  any  container  within  an  automobile

            without  a warrant  so long  as they  have probable  cause to

            believe the container contains contraband).

                      Accordingly,  the  court  did  not err  in  denying

            defendant's motion to suppress.1

                      2.   Defendant next argues that  the district court

            abused its discretion in allowing the government to introduce

            evidence  against  him  relating  to  the  warrant-authorized

            search of Apartment #624  at 131 Coolidge Avenue on  the same

            day  of his arrest.   In so  doing, he contends  (1) that the

            evidence  was not relevant; and (2)  in the alternative, that

            its  probative  value  was  substantially  outweighed by  its

            prejudicial  effect upon the jury.  We reject these claims as

            well.

                      The  district court  determined that  the contested

            evidence  --  the fact  that  defendant  possessed  a key  to

            Apartment #624 at the time of his arrest; the fact that eight

            kilograms of cocaine seized  from the apartment were packaged

____________________

            1.  In so  ruling, we obviously reject defendant's contention
            that  the  arresting  agents'  relative  lack   of  knowledge
            regarding (1)  defendant's physical description, and  (2) the
            exact time the  narcotics would be taken from  the apartment,
            deprived them of probable cause to arrest and search.

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in the same distinctive manner as the twelve kilograms seized

            from defendant's bag; and the fact that defendant's brother's

            bank  statement, a  ledger,  and approximately  $18,600  were

            found  in the apartment -- was evidence of a drug trafficking

            operation of  which the  cocaine seized from  defendant's bag

            was  a part.  The court further determined that this evidence

            was  relevant   to,  inter  alia,  the   contested  issue  of
                                 _____  ____

            defendant's  intent  in   possessing  the  cocaine.     These

            determinations were well within  the court's discretion.  See
                                                                      ___

            United  States  v. Sepulveda,  15 F.3d  1161, 1193  (1st Cir.
            ______________     _________

            1993).2

                      The district  court, after  engaging in the  proper

            balancing process, also concluded that the probative value of

            this evidence  was not  substantially outweighed by  a danger

            that it might cause unfair prejudice.  See Fed. R. Evid. 403.
                                                   ___

            Defendant  provides  no  specific  argument  (other than  his

            general complaint that the court erred in so concluding) that

            this  conclusion was erroneous.   Nor does our  review of the

            record  reveal  a legitimate  basis  for  any such  argument.

            Thus, the  court's ruling  in this regard  must be  affirmed.

____________________

            2.  Defendant also argues that  because he lacked standing to
            contest  the  search of  the  apartment  on Fourth  Amendment
            grounds,  the  government  should  be required  "to  meet  an
            extraordinary burden  in its showing of  relevance."  Without
            in any way endorsing defendant's dubious proposition, we note
            that,  in  our view,  the  contested  evidence was  extremely
            relevant  and was  therefore,  under any  putative  relevance
            standard, properly admitted.

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See Pinkham v. Burgess,  933 F.2d 1066, 1071 (1st  Cir. 1991)
            ___ _______    _______

            (noting the  extraordinarily  broad discretion  we  afford  a

            trial  court's   on-the-spot  judgment  as   to  whether  the

            probative value of certain relevant evidence is substantially

            outweighed by the danger of unfair prejudice).

                      Accordingly, the court did not err in admitting the

            aforementioned evidence against defendant.

                      3.   Defendant's third  argument -- similar  to his

            second -- is that the district court abused its discretion in

            allowing  the government  to  introduce  evidence  concerning

            defendant's   prior   drug-related  arrest   and  conviction.

            Defendant contends that this  evidence only was introduced to

            show his propensity to  commit a crime, in violation  of Fed.

            R. Evid. 404(b).  Once more, we are not persuaded.

                      As we  have said, intent  was a contested  issue in

            this  case.     Indeed,  it  appears   that  challenging  the

            government to prove intent beyond a reasonable  doubt was one

            of  the primary trial strategies engaged in by defendant.  In

            light  of this fact, there is no  basis for us to disturb the

            court's  finding  that the  evidence  of  the conviction  was

            admissible to  prove intent  under Rule  404(b).   See United
                                                               ___ ______

            States v.  Rivera-Sola, 713  F.2d  866, 871  (1st Cir.  1983)
            ______     ___________

            (defendant's  attorney's  statements  and  cross-examination,

            designed  to contest  the  issue of  intent, provided  proper

            basis  for the introduction of  Rule 404(b) evidence to prove

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intent); cf. United  States v.  Karas, 950 F.2d  31, 37  (1st
                     ___ ______________     _____

            Cir. 1991) (defendant's attorney's opening statement alone is

            insufficient basis for admitting Rule 404(b) evidence).

                      After conducting the balancing  analysis prescribed

            by  Rule 403,  the  district court  also  concluded that  the

            probative  value  of  this  evidence  was  not  substantially

            outweighed  by  its potential  for  unfair  prejudice.   Once

            again,  defendant  has not  presented  us  with any  specific

            argument that the  court erred  in so concluding.   And  once

            again, our review  reveals no  legitimate basis  for such  an

            argument.  See Pinkham, 933 F.2d at 1071.
                       ___ _______

                      Accordingly,  it  was  not   error  to  admit   the

            aforementioned evidence against defendant.

                      4.  Defendant next  argues that the court committed

            clear  error, see United States v. Bradley, 917 F.2d 601, 605
                          ___ _____________    _______

            (1st Cir. 1990),  in determining, by  a preponderance of  the

            evidence, see United States v. Valencia-Lucena, 988 F.2d 228,
                      ___ _____________    _______________

            232 (1st  Cir. 1993),  that the  eight  kilograms of  cocaine

            seized  from Apartment  #624 were,  for  sentencing purposes,

            part  of  the same  scheme or  plan  as the  twelve kilograms

            seized  from defendant's  bag.   Our  review  of the  record,

            however, reveals no  error in this  determination.  The  same

            evidence which  linked defendant  to the apartment  and which

            made these eight kilograms  of cocaine admissible against him

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at trial provides a more than sufficient basis to support the

            challenged sentencing finding.

                      Accordingly, the  court did not err  in taking this

            evidence into account at sentencing.

                      5.  Finally, defendant asserts that the court erred

            in  allowing his prior drug-related conviction  to be used to

            enhance  his sentence.  His  argument is two-fold:   (1) that

            his  conviction was not "final"  for purposes of  21 U.S.C.  

            841(b)(1)(A)3 because,  although  he pleaded  guilty  to  the

            offense, he failed to appear at  sentencing for that offense;

            and (2) that  his conviction was  constitutionally defective.

            The problem with this argument is that the district court did

            not use the prior conviction to enhance defendant's sentence;

            instead,  the sentencing  transcript reveals  beyond question

            that  the district  court sentenced  defendant to  246 months

            under  the 210-262 month range  made applicable by the United

            States  Sentencing   Guidelines.     The   district   court's

            subsequent  finding that defendant's conviction was final for

            purposes of   841(b)(1)(A)  was patently superfluous, did not

            influence  the sentence, and  was made solely  to protect the

____________________

            3.  In pertinent part,   841(b)(1)(A) states:

                      If  any person  commits such  a violation
                      after  a prior  conviction  for a  felony
                      drug  offense  has  become   final,  such
                      person  shall be sentenced  to a  term of
                      imprisonment which  may not be  less than
                      20  years   and   not  more   than   life
                      imprisonment . . . .

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interests  of  the United  States in  the event  the sentence

            imposed  somehow was  otherwise unlawful  (which it  is not).

            Accordingly,  all   questions  regarding  the   finality  and

            constitutionality   of   defendant's  prior   conviction  are

            immaterial to this appeal.

                      Affirmed.
                      Affirmed.
                      ________

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