United States v. Michael Rene Ponce

8 F.3d 989
CourtCourt of Appeals for the Fifth Circuit
DecidedJanuary 10, 1994
Docket92-8356
StatusPublished
Cited by135 cases

This text of 8 F.3d 989 (United States v. Michael Rene Ponce) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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. Michael Rene Ponce, 8 F.3d 989 (5th Cir. 1994).

Opinions

ZAGEL, District Judge:

Michael Rene Ponce was convicted under 21 U.S.C. § 841(a)(1) for possession of heroin with the intent to distribute. Ponce was sentenced to 48 months in prison. He advances three grounds for reversal of his conviction.

[992]*992I.

Ponce’s conviction stems from two separate drug arrests. The first occurred on the night of November 10, 1990 in a high crime area in Austin, Texas. Officer Ivey Yancy of the Austin Police Department saw the driver of a car back up at a high rate of speed in front of a gas pump in what he considered to be a reckless manner. Thinking the driver might be intoxicated, Officer Yancy went to investigate. . Yancy, who was driving a marked patrol car and wearing a uniform, approached the car and told the driver that he was being stopped for his driving. The driver of the car was defendant Ponce. At Officer Yancy’s request, Ponce produced his driver’s license and told the officer that the car was a rental. Officer Yancy radioed for a registration check on the car and a warrant check on Ponce. When the officer inquired about Ponce’s employment, Ponce said he was unemployed.

A second officer, Officer Barber, pulled up in a marked patrol car while Yancy and Ponce were talking. Barber, basing his statement on his prior knowledge of Ponce, told Officer Yancy that Ponce might have a weapon. His suspicions further aroused, Yancy asked Ponce if they could search his ear. Ponce answered “sure.” Barber searched the car after Ponce consented, but found nothing. When asked or told that Officer Yancy was going to search him for weapons, Ponce said, “okay.” Ponce removed his jacket at Yancy’s request and handed it to the officer. Yancy checked its pockets and found a few one-dollar bills and a pager. Yancy also patted down Ponce’s shirt pockets and checked around his waist and ankles.

After Officer Yancy had patted Ponce down, he was advised over his police radio that Ponce had just gotten out of jail and that Ponce might possess drugs. Yancy then asked Ponce if he had ever been in the penitentiary, and Ponce said, “No.” Having failed to search Ponce’s pants pockets ■ the first time, Officer Yancy asked Ponce if he could pat him down again. Ponce did not resist. Feeling a bulge in Ponce’s left front pocket, Yancy pulled out a wad of bills total-ling $510 and containing 22 twenty-dollar bills, one ten-dollar bill, and some five-dollar bills. Officer Yancy felt nothing in the right pants pocket, but in the “change” or “watch” pocket he felt something that rattled like paper. Yancy removed the pocket’s contents and found a cigarette paper containing a small amount of heroin. After Yancy removed the heroin from his pocket, Ponce said, “Dang, I forgot it was there.”

The second arrest at issue occurred on January 9, 1991. On that day Officer Joe Nichols, a member of the Repeat Offender Division of the Austin Police Department, was advised by a parole officer that there was a parole violation warrant out for Ponce and that Ponce was at the parole office. Officer Nichols, accompanied by another officer, went to the parole office and placed Ponce under arrest. When the officers patted Ponce down they found a set of Ford keys in his pants pocket. Ponce told the officers that he had driven a Ford pickup belonging to his brother-in-law, Mark Sosa, to the parole office. Officer Nichols asked Ponce if there was anyone with him to whom they could release the truck. Ponce said his girlfriend, Lisa Lara, was in the waiting room and could take the truck.

The officers, Ponce and Lisa Lara exited the parole office. When Officer Nichols asked Ponce where the truck was, Ponce looked around the parking lot and said the truck was gone and that someone must have taken it. Officer Nichols looked to his left and saw a white Ford pickup. He found the passenger door of the truck unlocked, got in, and started the pickup with the keys that had been in Ponce’s pocket. A license plate cheek showed that the truck was registered to Mark Sosa. Ponce then acknowledged that the truck was his brother-in-law’s.

After learning that Lisa Lara did not have a driver’s license and could not drive the truck, Officer Nichols decided to impound the truck. Officer Nichols inventoried the truck to note exterior damage and any contents in areas of the truck that would be accessible to the wrecker company. He found 86 small balloons of heroin rolled up and tied in a plastic baggie in the truck’s ashtray.

[993]*993II.

Ponce’s first argument on appeal is that the district court erred in admitting evidence of his prior conviction for possession of methadone because he made an offer to stipulate to intent. Ponce contends that in light of his proposed stipulation, the district court’s admission of evidence of the prior conviction violated Rule 404(b), Fed.R.Evid.2 In accordance with the rule, the government provided notice before trial that it intended to introduce evidence of Ponce’s prior possession of methadone conviction, arguing that it was relevant to Ponce’s intent and knowledge.

During a recess on the first day of trial, Ponce’s counsel announced: “we are willing to stipulate that if the trier of fact finds that the defendant was, in fact, in possession of the contraband in these cases, Count One and Count II, then the defense is going to stipulate that in that event we are stipulating that he was also in possession with intent to deliver.” During the same colloquy Ponce’s counsel said, “[a]nd I think we are offering to stipulate that if they do find he was guilty of possession in that ease, we stipulate that he is also guilty of possession with intent to deliver.” Defense counsel argued that the prior conviction was not relevant because it involved a different controlled substance. Admission of the prior conviction, according to defense counsel, “merely lets the jury decide that he’s been a bad boy before, so he is a bad boy again.” Although the trial court repeatedly expressed uncertainty over defense counsel’s stipulation proposal and its purpose, counsel failed to clarify the stipulation or submit a proposed jury instruction that might have clarified his position. The district court overruled defense counsel’s objection to the admission of Ponce’s prior conviction.

We determine the admissibility of extrinsic offense evidence by applying a two-part test. First, the extrinsic offense must be relevant to an issue other than the defendant’s character. Second, the probative value of the extrinsic offense evidence must not be substantially outweighed by its prejudicial effect. United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). Ponce does not contend that the trial court should have excluded his prior conviction under Beechum regardless of its ruling on the proposed stipulation. Rather, he argues that had the court accepted his proposed stipulation, the extrinsic offense evidence would have been sapped of its probity. With Ponce’s unlawful intent no longer in dispute, the probative value of the prior conviction would be substantially outweighed by its prejudicial impact and thus rendered inadmissible under Rule 404(b). Thus, the success of Ponce’s Rule 404(b) argument hinges on whether the trial judge properly refused to accept the proposed stipulation.

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Bluebook (online)
8 F.3d 989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-rene-ponce-ca5-1994.