United States v. Cotto Aponte

• Court: Court of Appeals for the First Circuit
• Decided: July 21, 1994
• Docket: 93-1287
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                                     
                                 ____________________

        No. 93-1287

                              UNITED STATES OF AMERICA,

                                 Plaintiff, Appellee,

                                          v.

                                 EMILIO COTTO-APONTE,

                                Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

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                                Cyr, Boudin and Stahl,

                                   Circuit Judges.
                                   ______________

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Carlos A.  Vazquez-Alvarez,  Assistant Federal  Public  Defender,
             __________________________
        with whom  Benicio Sanchez  Rivera,  Federal Public  Defender, was  on
                   _______________________
        brief for appellant.
             Jose  A. Quiles  Espinosa, Senior  Litigation Counsel,  with whom
             _________________________
        Guillermo  Gil, United  States  Attorney, and  Jorge E.  Vega-Pacheco,
        ______________                                 ______________________
        Assistant United States Attorney, were on brief for appellee.

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                                    July 20, 1994
                                                     
                                 ____________________

CYR, Circuit  Judge.   Following a two-day  jury trial,
                    CYR, Circuit  Judge
                         ______________

          appellant Emilio Cotto Aponte ("Cotto") was convicted of possess-

          ing cocaine with  intent to distribute.  See 21  U.S.C.   841(a)-
                                                   ___

          (1), 18 U.S.C.   2 (1993).   On appeal, he challenges two eviden-

          tiary  rulings and the sufficiency  of the evidence.   Finding no

          reversible error, we affirm.

                    The  challenge  to  the  sufficiency  of  the  evidence

          requires that we assess all evidence, draw all reasonable  infer-

          ences, and  resolve all  credibility determinations in  the light

          most favorable to the  verdict.  United States v.  Hernandez, 995
                                           _____________     _________

          F.2d 307, 310 (1st Cir.),  cert. denied,     U.S.    , 114 S. Ct.
                                     _____ ______  ___     ____

          407 (1993).  On June 11, 1992, Cotto  enlisted Tracy Barnwell and

          Israel  Rodriguez  to  accompany him  to  Puerto  Rico  to obtain

          cocaine  which Cotto planned to distribute upon his return to New

          York  City.  While in Puerto  Rico, Cotto delivered to Barnwell a

          suitcase containing two kilograms of cocaine, and told him how to

          conceal the cocaine for  the return trip.  Cotto  purchased three

          one-way airline tickets for the return flight to New York,  as he

          had done for the flight to  Puerto Rico.  After a  drug-detection

          dog alerted to Barnwell's suitcase at the airport in Puerto Rico,

          Cotto consented to a search of his own travel bag which was found

          to  contain $1,400 in cash, three airline ticket receipts for the

          flight from New York to Puerto Rico, and an electronic scale.  As

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a  mere  recitation demonstrates,  there  was  ample evidence  to

          establish guilt beyond a reasonable doubt.  

                    Cotto also challenges  two evidentiary rulings normally

          subject  to review  for abuse  of discretion.   United  States v.
                                                          ______________

          Rodriguez Alvarado, 985  F.2d 15, 18 (1st Cir.  1993).  First, at
          __________________

          trial  a United  States  Customs agent  identified  Cotto in  the

          courtroom but testified that Cotto's appearance had changed since

          his  arrest.  Cotto objected solely on the ground that the testi-

          mony  was not  relevant.   Second,  the  government introduced  a

          photospread  from  which  another  witness had  made  a  pretrial

          identification of Barnwell, Rodriguez  and Cotto.  Cotto objected

          on the ground  that his  unkempt appearance, as  depicted in  the

          photospread  (e.g., unshaven; dressed  in a  T-shirt; pony-tail),
                        ____

          would  cause unfair  prejudice.   See  Fed. R.  Evid.  403.   The
                                            ___

          district  court  ruled  that  the photospread  was  not  unfairly

          prejudicial.

                    With respect to the  customs agent's in-court identifi-

          cation testimony, appellant's burden is daunting.  "[T]he thresh-

          old for relevance is very low under Federal Rule of Evidence 401.

          Evidence is  relevant under Rule 401  if it has 'any  tendency to

          make the  existence of any  fact that  is of  consequence to  the

          determination of  the action more probable or  less probable than

          it would  be without the evidence.'"   United States v.  Nason, 9
                                                 _____________     _____

          F.3d 155,  162 (1st Cir. 1993) (citing  Fed. R. Evid. 401), cert.
                                                                      _____

          denied,       U.S.      , 114 S.  Ct. 1331 (1994).   The in-court
          ______   ____       ____

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identification testimony provided highly  probative corroboration

          of other  trial  testimony that  a  government witness  had  seen

          Cotto, Barnwell, and Rodriguez together  at the airport in Puerto
                                         ________

          Rico,  and  that it  was  Cotto's atypical  appearance  which had

          attracted the  witness's attention  to the  trio.   Since Cotto's

          physical appearance was no longer the same at trial, the in-court

          identification testimony was probative  of the material fact that

          the person on trial  was the one previously seen  in the presence

          of Rodriguez and  Barnwell at the airport.  Cf.  United States v.
                                                      ___  _____________

          Holmes,  632 F.2d 167, 169  (1st Cir. 1980)  (holding that photo-
          ______

          graph  of  defendant taken  at time  of  arrest is  admissible to

          demonstrate changed appearance at time of trial).1

                    The Rule  403 challenge can succeed only  if the proba-

          tive value of the photospread was substantially outweighed by the

          danger, inter alia,  of "unfair  prejudice."  See  Fed. R.  Evid.
                  _____ ____                            ___

          403;  United States  v.  Carty, 993  F.2d  1005, 1011  (1st  Cir.
                _____________      _____

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               1The record  reflects that the  only objection made  to this
          testimony  at trial was based  exclusively on Fed.  R. Evid. 401.
          On appeal, however,  Cotto attempts  to assert a  claim of  error
          under Fed.  R. Evid. 403.  As  the latter claim of  error was not
          preserved below, see Fed.  R. Evid. 103(a), we review  for "plain
                           ___
          error" only, see  id. 103(d).   United States  v. Castiello,  915
                       ___  ___           _____________     _________
          F.2d 1, 3-4 (1st  Cir. 1990) (failure to assert  proper objection
          at  trial calls for "plain error" review), cert. denied, 498 U.S.
                                                     _____ ______
          1068 (1991).   Careful review  reveals that  no unfair  prejudice
          resulted  from  the  admission  of  the  in-court  identification
          testimony.   See Holmes, 632  F.2d at  169.  Thus,  there was  no
                       ___ ______
          error, plain or otherwise.

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1993).2     The  photospread  provided  probative  circumstantial

          evidence that Cotto  had been seen  at the hotel  in Puerto  Rico

          where Rodriguez and Barnwell stayed before the three were arrest-

          ed at the airport.  Though its admission hampered Cotto's defense

          by tying  all three  codefendants together,  there was  no unfair
                                                                     ______

          prejudice.  See  Onujiogu v.  United States, 817  F.2d 3, 6  (1st
                      ___  ________     _____________

          Cir.  1987) ("The fact  that a piece of  evidence hurts a party's

          chances does not mean it  should automatically be excluded,  [or]

          there  would  be precious  little left  in  the way  of probative

          evidence in any case.").  

                    As  there  was no  reversible  error,  the judgment  of

          conviction and sentence must be affirmed.

                    Affirmed.
                    Affirmed.
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               2Although at  trial Cotto challenged this  evidence on addi-
          tional  grounds, in his appellate brief he has preserved only the
          Rule 403 objection.  See United  States v. Fahm, 13 F.3d 447, 450
                               ___ ______________    ____
          (1st Cir. 1994) (issues  adverted to in a perfunctory  fashion on
          appeal are deemed waived).

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