United States v. Jose Muniz

60 F.3d 65, 1995 U.S. App. LEXIS 16070, 1995 WL 385910

• Court: Court of Appeals for the Second Circuit
• Decided: June 29, 1995
• Docket: 1163, Docket 94-1470
• Status: Published

Opinions

LEVAL, Circuit Judge:

Jose Muniz appeals his conviction after jury trial for possessing heroin with intent to distribute; he argues that the evidence was insufficient as a matter of law and that the court improperly admitted empty glassine envelopes pursuant to Rule 404(b). Muniz also appeals his sentence on a firearms charge to which he pleaded guilty, claiming that United States Sentencing Guidelines § 4B1.4, which determines the guidelines range for “armed career criminals,” is invalid.

BACKGROUND

On February 24, 1993, a United States Postal Inspection Service police officer, at the request of the New York City Housing Police, opened a bank of mail boxes in the lobby of 520 East 137th Street, Bronx, New York. The mail box to Apartment 6C was found to contain 137 glassine envelopes of heroin, each bearing a rubber-stamped brand logo: “Flatliner,” “Terrific,” or “Monster.”

Eight days later, Housing Police officers executed a search warrant for Apartment 6C. The apartment was rented to Zaida Muniz, the defendant’s mother. The officers found the defendant lying on a bed, his leg in a cast. On the night stand next to the bed was a key to the apartment. A box of empty glassine envelopes, rubber-stamped with the brand name “Sledgehammer,” was found on a cabinet shelf in the bedroom. The officers also found in the bedroom a loaded nine-millimeter semi-automatic handgun and a box of nine-millimeter ammunition.

The indictment charged Muniz in Count I with possessing the handgun as a previously convicted felon, in violation of 18 U.S.C. § 922(g) and 924(e), and in Count II with possessing heroin with intent to distribute, in violation of 21 U.S.C. § 841; The district court ordered severance of the two counts and scheduled separate trials. Muniz then pleaded guilty to the gun possession charge. At trial on the heroin charge, the district court excluded the evidence of the handgun and ammunition. The empty glassine envelopes found in the apartment were received over objection. The jury found Muniz guilty. At no time did Muniz move for judgment of acquittal based on the insufficiency of the evidence. He now brings this appeal.

DISCUSSION

I. The sufficiency of the evidence and the admission of the glassine envelopes.

Muniz contends the evidence was insufficient as a matter of law to support his conviction. We consider the question to be a close one, but we do not need to resolve it. Muniz made no motion at trial for dismissal based on insufficiency. A convicted defendant who fails to raise the issue of insufficient evidence in the trial court cannot prevail on that ground on appeal unless it was plain error for the trial court not to dismiss on its own motion. See United States v. Kaplan, 586 F.2d 980, 982 n. 4 (2d Cir.1978); Fed.R.Crim.P. 52(b). We do not find plain error.

Muniz contends the evidence showed no more than his casual one-time presence at his mother’s apartment, eight days after discovery of the heroin in the mailbox, which would not support the inference that he had exercised control over the heroin in the mailbox. Upon a claim of insufficiency of evidence, we must consider the evidence in the light most favorable to the government, drawing all inferences supporting guilt that a jury could reasonably have found. United States v. Martinez, 54 F.3d 1040, 1042-43 (2d Cir.1995). We therefore review the evidence according to that standard.

Officers of the New York City Housing Authority testified that they had observed substantial drug dealing in the lobby area and at the front of the building at 520 East 137th Street in the Bronx, and that drug dealers in such buddings would use mailboxes to store drugs and weapons.

On February 24, 1993, the Housing Authority Police conducted a search of the mailboxes at the building and found in the box for Apartment 6C fourteen bundles of glas-sine envelopes, ten envelopes to a bundle (137 envelopes in all), each envelope containing a $10 quantity of heroin and each stamped with a heroin brand name of “Flat-liner,” “Terrific,” or “Monster.” There were no signs of tampering with the mailbox; this supported the inference that only a person possessing the key to the mailbox for Apartment 6C could have been using it to store the heroin.

A witness from the Housing Authority who worked as the housing assistant for the building testified that the tenant-of-record for Apartment 6C was Zaida Muniz and that she had two children — a daughter Esther, who had gotten married and moved out many years back, and a son Jose.

In the few days immediately following the discovery of the drugs in the mailbox, the police observed the defendant Jose, who in this period was on crutches with his leg in a cast, three times at the building. Officer Nesmith saw the defendant approximately the day after the discovery of the heroin “struggling down the walkway in front of his building, 520 East 137th Street” on crutches. Two or three days after the search, as Housing Police officer Washington observed this defendant “just standing out in front of the building.”

The third occasion was on March 4, 1993, when the housing officers conducted the search of Apartment 6C. On this occasion, the officers found Jose, alone in the apartment, lying on the bed in one of the two bedrooms. An officer testified he saw no “indication that anyone other than Jose Mun-iz and Zaida Muniz lived there.” The defendant still had a cast on his leg and moved very slowly and with difficulty, requiring crutches. Next to the defendant’s bed was a stand on which the officers found a key to the front door of the apartment. On an open cabinet shelf inside the bedroom, the officers found a cardboard box, without a top, which was neatly packed with empty glassine envelopes, each stamped with the brand name “Sledgehammer.” These glassine envelopes, except for the different brand name, were similar to those found in the mailbox eight days before.

In the room the officers also found the defendant’s gun and ammunition. However, those were not received in evidence because the district judge sustained the defendant’s objection to their receipt on grounds of prejudice.

The evidence presented to the jury strongly supported the inference that the defendant either resided in Apartment 6C or, in any event, had free access to it and used it regularly. His mother was the tenant of record and had lived there many years. The testimony of the housing assistant, as to housing records, showed that the defendant’s sister had married and moved out. The frequent observation of the defendant at the building, during this period in which he had a broken leg and moved with difficulty, together with his possession of a key, suggests that he either resided in his mother’s apartment or at least used it frequently. That he was alone in the apartment lying on the bed suggests he was not there merely to visit his mother. His use of the bed in one of the two bedrooms suggests that he was very much at home.

Officer Washington, who observed the defendant in the bedroom, furthermore, referred to it as “Mr. Muniz’ bedroom.” On appeal, the defendant protests, arguing that the officer had no basis for so describing it, other than having once seen the defendant lying on the bed in that room. This, however, is inappropriately raised for the first time on appeal. Had the defendant objected, or conducted a voir dire or cross-examination as to foundation, the court might well have stricken that designation. On the other hand, it is perfectly possible that the officer had ample basis for calling it the defendant’s bedroom. It may be that the bed he was lying on had been slept in, that the defendant’s clothes and personal possessions were in evidence around the room, or that the defendant referred to it as his room. As there was no challenge at trial to this designation, the jury was entitled to take the officer’s testimony at face value and conclude that it was the defendant’s bedroom. Finally, although no key to the mailbox was found in his possession, the jury might reasonably infer, given his apparent utilization of his mother’s apartment, that he had access to the key to the mailbox.

The likelihood that the defendant used that bedroom on a regular, or frequent, basis strengthens the connection between the defendant and the box of trademark-stamped glassine envelopes on the cabinet shelf in the room. The jury could reasonably have found that these were his glassines.

Muniz contends that the empty glassines had no relevance other than as an impermissible showing of his commission of another crime to show propensity to commit the crime charged. See Fed.R.Evid., Rule 404(b).¹ The defendant is mistaken.

This circuit follows the “inclusionary” approach to the admission of other-act evidence, so that “evidence of prior crimes, wrongs or acts is admissible for any purpose other than to show a defendant’s criminal propensity.” United States v. Lasanta, 978 F.2d 1300, 1307 (2d Cir.1992) (internal quotations omitted). Here, the court properly determined that the glassine envelopes were admissible as evidence of “the identity of the defendant and the relationship between him and the 137 glassines and the heroin in the mailbox,” as well as tools of the narcotics trade. This court reviews a district court’s ruling on the admissibility of evidence for abuse of discretion, or for arbitrary or irrational action. See United States v. Valdez, 16 F.3d 1324, 1332 (2d Cir.), cert. denied, — U.S. -, 115 S.Ct. 60, 130 L.Ed.2d 18 (1994). We find no such error here.

This evidence had several proper uses. By showing the defendant’s possession of tools of the drug trade, this evidence properly connected the defendant to the heroin. Part of its relevance related to the defendant’s state of mind, showing intent to possess drugs, knowledge of the illegal substance possessed, and, as a consequence, the identity of the defendant as the person responsible for the heroin in the mailbox. Had the defendant possessed a triple-beam scale and boxes of cut, this would have been relevant to show a state of mind focussed on drug dealing; his possession of other tools of the drug trade is equally relevant. Furthermore, the fact that he possessed empty glassines supports the inference that he participated in packaging the drugs, and therefore tends to show his knowledge of the nature of the illegal contents of the envelopes in the mailbox.

This evidence showing intent to deal in drugs had a further relevance to the issue of identity. The defendant’s possession of tools of heroin trade at the time heroin was found within his possible control increases the likelihood that it was he, rather than another person having possible access, who in fact controlled the drugs in the mailbox. If a cache of heroin were found in a place to which both A and B have access, a showing that A possessed tools of the drug trade, or that A announced an intention to sell drugs, would show that A intended to distribute drugs and would thus increase the likelihood that it was A, rather than B, who owned or controlled the drugs. The situation here was similar. The jury could find that Jose and his mother shared Apartment 6C and both had access to the mailbox where the drugs were found; Jose’s possession of glassine envelopes could be considered by the jury as showing that it was Jose, rather than his mother, who controlled the drugs (ie., his “identity” as the possessor of the drugs, in the terms of Rule 404(b)).²

The defendant sought to weaken the likely inference of his control over the drugs in the mailbox by an attempt to show the existence of another user of the apartment and the mailbox. The more persons shown to share the apartment or the mailboxes, the weaker the inference that the drugs were under defendant’s control. The defendant thus offered evidence that at the time of the discovery of the drugs, the mailbox also contained a letter addressed to a Wilfredo Kirkaldy. The showing of the Kirkaldy letter, however, was too inconclusive to weaken substantially the tendency of the circumstances to suggest the defendant’s guilt.³ There was no showing what address was written on the letter. There was no showing that Kirkaldy resided in that building, much less in that apartment, or that he had access to the mailbox. Especially given the fact that the mailbox was being used to hold contraband that was not being delivered through the mails, the presence in the box of a letter addressed to someone named Kirkaldy told virtually nothing about who were the users of Apartment 6C and its mailbox.

As noted above, because of the failure to object below, the defendant must show on appeal not only that the evidence was legally insufficient but that it was plain error for the court to fail to dismiss on its own motion. “[T]he error must be so plain [that] the trial judge and prosecutor were derelict in countenancing it, even absent the defendant’s timely assistance in detecting it.” United States v. Yu-Leung, 51 F.3d 1116, 1121 (2d Cir.1995) (internal quotation omitted). Here, if there was a deficiency it was not extreme. The evidence presented was close to legal sufficiency, even if it fell a trifle short. Any insufficiency was not so plain that the trial judge was derelict in allowing judgment to be entered on the jury’s verdict.

Judge Kearse in dissent raises a serious argument that the conviction should be reversed. The case is certainly a close one. We offer the following points in respectful rebuttal.

First, Judge Kearse concedes in her opening line the “given” that “we are required to view the evidence in the light most favorable to the government and credit all inferences the jury might reasonably have drawn from the evidence.” Her analysis, however, is not always faithful to that rule. When she characterizes the evidence as showing only that Muniz “went on three occasions to the residence of his mother,” that is viewing the evidence in the light least favorable to the government. The jury was entitled to infer far more of a connection between Muniz and the apartment — at least that he frequented it with regularity. That he visited three times is the least the jury could infer.

As to a police witness’s reference to “Mr. Muniz’s bedroom,” Judge Kearse assumes, despite the absence of objection, that the witness had no adequate basis for that description. We cannot know whether the failure to object was oversight or clever lawyer-ing. If, in fact, it was Jose Muniz’s bedroom, his attorney may well have withheld objection in order to avoid a more persuasive and better emphasized demonstration of his dominion over that room. In any event, the jury was entitled to accept the testimony at face value. The dissenting opinion grants much less.

When the dissent asserts that “even a trifle short is insufficient,” this applies the wrong rule of law. Because of the defendant’s failure to make timely objection, nothing turns on whether the evidence meets the usual test of legal sufficiency. The test is that prescribed by Fed.R.Crim.P. 52(b), ordinarily described as “plain error.” This test imposes less exacting demands on the strength of the government’s evidence than the ordinary test of sufficiency. In United States v. Olano, — U.S. -, -, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993), the Supreme Court explained that a defendant must clear three hurdles to pass that test. We recently summarized Olano’s requirements as follows:

First, there must be “error,” or deviation from a legal rule which has not been waived. Second, the error must be “plain,” which at a minimum means “clear under current law.” Third, the plain error must, as the text of Rule 52(b) indicates, “affect[ ] substantial rights,” which normally requires a showing of prejudice.

United States v. Viola, 35 F.3d 37, 41 (2d Cir.1994) (citations omitted); accord United States v. Yu-Leung, 51 F.3d 1116, 1121 (2d Cir.1995). As to the “plainness” branch, “the error must be so plain [that] the trial judge and prosecutor were derelict in countenancing it.” Yu-Leung, supra, at 1121 (internal quotation omitted).

The ultimate question requires assessment of the record as a whole. It is a matter of judgment on an issue that is not easily quantifiable. Judge Kearse finds the evidence insufficient. Her position is certainly reasonable. We respectfully disagree and find the evidence sufficient to meet the test of plain error.

We note furthermore that the government possessed substantial additional evidence that was improperly excluded from the jury’s consideration. The trial judge sustained the defendant’s objection to the receipt of the defendant’s handgun and ammunition, which were found with him in the bedroom of the apartment.

As the district judge recognized, there are innumerable precedents of this court approving the admission of guns in narcotics cases as tools of the trade. See, e.g., United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir.1990) (testimony regarding seizure of narcotics records, shoe boxes, and revolver properly admitted under Rule 404(b) as tools of narcotics trade), cert. denied, 499 U.S. 940, 111 S.Ct. 1397, 113 L.Ed.2d 453 (1991). See also United States v. Soto, 959 F.2d 1181, 1187 (2d Cir.1992) (“[Fjirearms are as much tools of the [narcotics] trade as are commonly recognized articles of narcotics paraphernalia.”) (quoting United States v. Crespo, 834 F.2d 267, 271 (2d Cir.1987)). The defendant’s possession of the gun was relevant. It showed that at the time he was charged with possession of the heroin, he had equipped himself with a tool of the narcotics trade. The gun, like the glas-sines, logically supported the proposition that it was the defendant, rather than his mother, or some other person, who placed the heroin in the mailbox. We disagree with the trial court’s conclusion that prejudice outweighed the probative value of this evidence. It should have been received.

II. Validity of USSG § IB14

Muniz also challenges his sentence on the firearms offense. His conviction as a prior felon in possession of a handgun, 18 U.S.C. § 922(g), subjected him to a sentence enhancement under 18 U.S.C. § 924(e), which provides for a minimum sentence of 15 years (180 months). Guidelines § 4B1.4, “Armed Career Criminal,” determines the offense level and criminal history category for defendants to whom § 924(e)’s sentence enhancement applies. Muniz argues that the Sentencing Commission lacked the statutory authority to promulgate a guideline incorporating § 924(e); further, he argues that even if the Commission had such authority, § 4B1.4 is invalid because the 188-month minimum sentence under the guidelines provision exceeds the fifteen-year minimum sentence set by § 924(e).

These precise issues were addressed in our recent decision in United States v. McCarthy, 54 F.3d 51, 53-54 (2d Cir.1995) (as amended), which made clear that the Sentencing Commission had the authority to promulgate § 4B1.4. McCarthy also holds that the guideline range under § 4B1.4 is lawful, notwithstanding the lower statutory minimum set by § 924(e). There is no obligation on the Commission to set minimum guideline ranges that coincide with the minimum punishments prescribed by the statute for such offense. See United States v. Latti-more, 974 F.2d 971, 974 (8th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993). If there were, each statute that permitted a sentence of zero imprisonment would require a minimum permissible guideline range set at zero. See United States v. Berlier, 948 F.2d 1093, 1094-95 (9th Cir.1991). There is obviously no such requirement.

The judgment of the district court is affirmed.

1 . Fed.R.Evid. 404(b) provides in relevant part: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

2 . The defendant contends that evidence of intent should have been removed from the case as the result of his having conceded that issue. (A 163; 181; 221) See United States v. Mohel, 604 F.2d 748, 751-54 (2d Cir.1979) (discussing use of concession to remove issue of intent or knowledge from case). There are at least two answers of this contention. First, the concession related only to intent to distribute. The evidence, however, also tended to show intent to possess drugs; thus the concession failed to deprive the evidence of useful purpose. Second, the concession was conditional; it would come into play only once the jury had found that the defendant possessed the drugs. In this case, however, the evidence of intent to distribute had an evidentiary purpose going beyond proving the element of intent to distribute; it was also a part of the showing that the defendant possessed the drugs. Thus, the defendant's limited and conditional concession failed to make evidence of the glassines superfluous.

3 . The transcript of the trial, in fact, does not even bear out that the Kirkaldy letter was in the same mailbox as the drugs. Officer Baker of the Postal Inspection Service testified as follows:

Q. Did you find any mail in the boxes?

A. Yes, there was one piece of mail.

Q. Who was it addressed to?

A. Alfredo.

Q. Kirkaldy?

A. Kirkaldy, exacdy.

(A 133) (emphasis added) Because the government appears to concede that a letter addressed to Wilfredo Kirkaldy was in the same box, we credit defendant with the showing, even though it is not supported by the transcript.