United States v. Jose Figueroa, Angel Lebron, and Ralph Acosta

618 F.2d 934, 5 Fed. R. Serv. 811, 1980 U.S. App. LEXIS 20133
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 26, 1980
Docket244 to 246, Dockets 79-1188 to 79-1190
StatusPublished
Cited by271 cases

This text of 618 F.2d 934 (United States v. Jose Figueroa, Angel Lebron, and Ralph Acosta) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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. Jose Figueroa, Angel Lebron, and Ralph Acosta, 618 F.2d 934, 5 Fed. R. Serv. 811, 1980 U.S. App. LEXIS 20133 (2d Cir. 1980).

Opinions

[938]*938NEWMAN, Circuit Judge:

This criminal appeal concerns primarily the admissibility of prior crime evidence in a multi-defendant trial. Jose Figueroa, Angel Lebrón, and Ralph Acosta were convicted after a two-day trial in the United States District Court for the Eastern District of New York (Thomas C. Platt, Jr., Judge) upon jury verdicts finding them guilty of conspiracy to possess and distribute heroin in violation of 21 U.S.C. § 846 (1976) and the substantive offense of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1976).

The Government’s evidence disclosed the following. On October 5, 1978, an informant of the Drug Enforcement Administration (DEA) placed two telephone calls from a DEA office to Figueroa. In these calls the informant arranged for the purchase of eight ounces of heroin. The conversations, conducted in Spanish, were tape recorded by a DEA agent with the informant’s consent, and translated transcripts were introduced into evidence only against Figueroa.

Later that day, DEA agent Victor Aponte accompanied the informant to a meeting with Figueroa. Figueroa discussed the proposed transaction with Aponte, counted the $8,500 that Aponte displayed, and agreed to take Aponte to the place where the heroin was kept. After the group was joined by Lebrón and Acosta, Aponte was told that they were going to “La Teresa,” a social club managed by Lebrón. Aponte drove to the club while the others proceeded on foot. Upon entering the club, which was located on the second floor of a building, Acosta looked out the window and told Lebrón that everything was clear. Lebrón then went into the club’s bar area and emerged with a brown paper bag, which Lebrón, accompanied by Aponte and the informant, took into an office. There, Lebrón emptied eight cellophane packets, from the paper bag onto a desk. Aponte opened one of the packets and noted a brown powdery substance with a vinegar-like odor, which he concluded was brown rock heroin.

Aponte told Lebrón he wished to conclude the deal outside the club. He left to get the $8,500 from his car, instructing Lebrón to have Acosta meet him with the heroin outside the building entrance. Returning from his car, Aponte saw Acosta outside the building, next to the informant. The informant had taken off his coat, a pre-arranged signal that the person next to him was carrying heroin. Aponte testified he could see a portion of the brown paper bag sticking out of Acosta’s jeans pocket and could see the outline of some of the cellophane packets inside the bag, which was inside the pocket. Aponte asked Acosta' if they were going ahead with the deal and was told no. When Acosta began to walk away, Aponte went to his car to pursue him. Finding Acosta on a nearby street, Aponte got out of his car and identified himself as a police officer. According to Aponte, Acosta then reached into the pocket that contained the brown paper bag. As Aponte grabbed Acosta and wrestled him to the ground, Acosta pulled the bag out of his pocket and threw it into a crowd of passers-by who had gathered to watch the arrest. The bag and its contents were never found.

For virtually all the critical events — the conversations concerning heroin, Lebron’s display of the heroin, and Acosta’s throwing the paper bag on the street, the only witness was Aponte. Only the fact of the two telephone calls and the identification of the voices of the informant and Figueroa on the tape recordings were testified to by another DEA agent. The informant was identified by name, and his last known address disclosed, but he was not located by either side and did not testify. The defendants called no witnesses.

The principal claim of all three appellants concerns the introduction into evidence of a 1968 conviction of Acosta for selling heroin. Since that claim presents different issues with respect to Acosta and his co-defendants, separate consideration is required.

Acosta

In a series of recent cases, this Court has endeavored to clarify the standards that apply and the procedure to be [939]*939followed when the Government offers evidence of a defendant’s similar crimés or acts. To be admissible the evidence must be relevant to some disputed issue in the trial, Fed.R.Evid. 404(b), and its probative value must not be substantially outweighed by the risk of unfair prejudice. Fed.R.Evid. 403; United States v. Mohel, 604 F.2d 748 (2d Cir. 1979); United States v. Lyles, 593 F.2d 182 (2d Cir. 1979); United States v. Manafzadeh, 592 F.2d 81 (2d Cir. 1979); United States v. O’Connor, 580 F.2d 38 (2d Cir. 1978); United States v. DeVaugn, 579 F.2d 225 (2d Cir. 1978); United States v. Benedetto, 571 F.2d 1246 (2d Cir. 1978). The procedure for determining admissibility depends on the grounds on which the Government offers the evidence. If the evidence is offered to prove that the defendant committed the act charged in the indictment, for example, by proving identity or common scheme, the evidence may be offered during the prosecution’s case-in-chief, unless the defendant’s commission of the act is not a disputed issue. On the other hand, if the evidence is offered to prove the defendant’s knowledge or intent, the offer of similar acts evidence should await the conclusion of the defendant’s case and should be aimed at a specifically identified issue. This enables the trial judge to determine whether the issue sought to be proved by the evidence is really in dispute and, if so, to assess the probative worth of the evidence on this issue against its prejudicial effect. United States v. Danzey, 594 F.2d 905 (2d Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2179, 60 L.Ed.2d 1056 (1979); United States v. Halper, 590 F.2d 422 (2d Cir. 1978); United States v. Benedetto, supra; United States v. Leonard, 524 F.2d 1076, 1092 (2d Cir. 1975), cert. denied, 425 U.S. 958, 96 S.Ct. 1737, 48 L.Ed.2d 202 (1976).

Despite the frequency with which these principles have been expressed and the reversals that have occurred when they have not been followed, United States v. Mohel, supra; United States v. Manafzadeh, supra; United States v. O’Connor, supra; United States v. DeVaugn, supra, the Government persists in jeopardizing convictions by offering evidence of similar crimes or acts either in disregard of the standards or without assisting the trial judge to make sure that they are correctly applied.

In this case, the Government offered evidence of defendant Acosta’s 1968 conviction for sale of narcotics. The offer was made at the conclusion of the prosecution’s casein-chief, but before it had been ascertained that the defendants would rest without presenting evidence.1 More significantly, the prosecutor neglected to inform the trial judge of the issue to which the evidence was claimed to be relevant.2 When Acosta’s counsel then endeavored to oppose the [940]

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Bluebook (online)
618 F.2d 934, 5 Fed. R. Serv. 811, 1980 U.S. App. LEXIS 20133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jose-figueroa-angel-lebron-and-ralph-acosta-ca2-1980.