United States v. O'Brien Williams

• Court: Court of Appeals for the First Circuit
• Decided: February 12, 1993
• Docket: 92-1858
• Status: Published

Opinion

USCA1 Opinion

February 12, 1993

                            UNITED STATES COURT OF APPEALS
                                For The First Circuit
                                 ____________________

        No. 92-1858

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                              OLGIVIE O'BRIEN WILLIAMS,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. John J. McNaught, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                               Torruella, Circuit Judge,
                                          _____________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                               and Cyr, Circuit Judge.
                                        _____________

                                 ____________________

            James L. Sultan for appellant.
            _______________
            Robert L.  Ullmann, First  Assistant U.S. Attorney,  with whom  A.
            __________________                                              __
        John Pappalardo, United States Attorney, was on brief for appellee.
        _______________

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                                  February 12, 1993
                                 ____________________

COFFIN,  Senior Circuit  Judge.   Defendant Olgivie  O'Brien
               ______________________________

          Williams  appeals  his conviction  on  charges  of conspiracy  to

          possess  cocaine  with intent  to distribute,  possessing cocaine

          with intent to distribute,  and using or carrying a  firearm in a

          drug trafficking crime.  We affirm.

                                          I.

               We begin  with a brief synopsis  of the facts,  taken in the

          light most supportive of the verdict, United States v. Karas, 950
                                                _____________    _____

          F.2d 31, 35 (1st Cir. 1991), and the prior proceedings.

               From December 1986  to April 1987,  Williams and eleven  co-

          conspirators participated  in  a cocaine  distribution scheme  in

          Boston.  They operated  a packaging center and retail  outlets in

          three  apartments.   On  March 5,  1987,  at the  Westmore Street

          outlet, the conspirators caught Herbert  Beeche, a tenant in  the

          building,  spying  on  them as  they  were  weighing  cocaine and

          tallying their profits.   That night, Beeche was summoned  to the

          conspirators'  apartment.   Williams accused  Beeche of  being an

          informer  and threatened  to  kill  him.    Williams  and  a  co-

          conspirator  bound  and  gagged  Beeche  and  placed  him  in the

          bathtub.  Williams then shot Beeche in the thigh.

               Later that month, the Boston police executed search warrants

          at  two of the conspirators'  outlets.  The  searches uncovered a

          small  quantity of  cocaine,  drug  paraphernalia, firearms,  and

          ammunition.  Eight of the conspirators ultimately were arrested.

Williams  and  six  co-conspirators were  tried  jointly  in

          1988.1   At  trial,  the government  presented  the testimony  of

          Beeche  and Lisa Gray, a  girlfriend of one  of the co-defendants

          during part of  the conspiracy.   Both witnesses testified  about

          the drug preparation and transactions  they had witnessed at  the

          various  outlets  and  stated that  they  had  seen  many of  the

          conspirators,   including   Williams,   routinely  carrying   and

          displaying firearms during these transactions.  

               The  jury convicted  Williams  on all  three counts  against

          him.2  Williams raises two claims  on appeal:  that testimony  at

          trial was admitted  improperly against him and  that the district

          court  improperly limited  his  cross examination  of  Gray.   We

          discuss each issue in turn.

                                         II.

               Williams contends that the district court permitted the jury

          to hear evidence from Gray of  past conduct that should have been
                              
          ____________________

               1   One of the six co-defendants received a severance during
          trial and later pleaded guilty to the one count against him.  All
          five of the remaining co-defendants also were convicted, and four
          of  them  appealed.   This  court affirmed  their  convictions in
          United States v. Walters, 904 F.2d 765 (1st Cir. 1990).  Williams
          _____________    _______
          raises  issues  on appeal  that  were  not advanced  in  Walters.
                                                                   _______
          Another conspirator, who was tried separately, also was convicted
          and had his  conviction affirmed.   United States  v. Green,  887
                                              _____________     _____
          F.2d 25 (1st Cir. 1989).  

               2  Williams's trial counsel  indicated at sentencing that he
          would  file a notice  of appeal but  did not.   In 1991, Williams
          filed  a habeas  corpus petition in  district court,  seeking, in
                   ______  ______
          effect, the right to  appeal his conviction.   On June 11,  1992,
          Williams's prior  judgment was vacated and  his original sentence
          re-imposed.  Williams's new counsel then filed a timely notice of
          appeal.  

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excluded  under Fed. R. Evid.  404(b).3  Gray  testified that, in

          December 1986, Williams had told her that "he had killed a couple

          of people."   Tr. Vol.  III at 66.   Following a  lengthy sidebar

          conference, the  district  court admitted  the  evidence  without

          explanation.   Williams argues  that the  sole purpose  of Gray's

          testimony, especially in light of its repetition to the jury, id.
                                                                        __

          at 107, was to demonstrate that he had a bad character which made

          him  more likely to  commit the drug-related  offenses charged in

          the indictment.  

               This  court  has adopted  a  two-part test  to  analyze Rule

          404(b)  evidence.  United States v. Nickens, 955 F.2d 112, 123-24
                             _____________    _______

          (1st Cir. 1992);  United States v. Oppon, 863  F.2d 141, 146 (1st
                            _____________    _____

          Cir. 1988).  First, the district court must determine whether the

          evidence has any "special relevance" to a material issue, such as

          motive,  intent, or plan.   Nickens, 955 F.2d at 123.   If so, it
                                      _______

          must  determine,  pursuant to  Fed.  R. Evid.  403,4  whether the

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               3  Rule 404(b) provides:

               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.

               4  Rule 403 provides:

               Although  relevant,  evidence may  be  excluded  if its
               probative  value  is  substantially  outweighed  by the
               danger of unfair prejudice, confusion of the issues, or
               misleading  the jury,  or  by  considerations of  undue
               delay,  waste  of  time,  or  needless  presentation of
               cumulative evidence.

                                         -4-

probative value  of the  evidence  outweighs the  risk of  unfair

          prejudice.  Id. at  124.  We review the district court's decision
                      __

          to admit the evidence for  abuse of discretion.  Karas, 950  F.2d
                                                           _____

          at 36; Walters, 904 F.2d  at 768.  Having done so,  we agree with
                 _______

          Williams that the evidence was admitted improperly.

               At trial, the government  virtually admitted that it offered

          the statement for its  value as evidence of  criminal propensity.

          During  the sidebar  conference, the  government argued  that the

          statement  was relevant  because  Williams  and a  co-conspirator

          "talk  about how bad they  are.  How  tough they are."   Tr. Vol.

          III. at 70.   In essence, the government offered the  evidence so

          that the jury would  infer that, because Williams was  or claimed

          to  be a  murderer, he  was more  likely than  not also  to be  a

          cocaine  trafficker who uses  guns in his  business.   The use of

          "other  acts"  evidence  to demonstrate  criminal  propensity  is

          specifically forbidden by Rule 404(b).  Accordingly, the district

          court erred in admitting the statement.

               On appeal,  the  government characterizes  the  evidence  of

          Williams's prior wrongdoing as evidence of his plan to  establish

          and operate a cocaine distribution business by means of his modus
                                                                      _____

          operandi  of  intimidation.    Gray earlier  had  testified  that
          ________

          Williams unsuccessfully had offered her mother double rent for an

          apartment  located   near  the  Westmore  Street   outlet.    The

          government  claims  that  Williams's  revelation that  he  was  a

          murderer is admissible under Rule 404(b) to illustrate his use of

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both  "carrot" and "stick" to  locate an apartment  from which to

          sell cocaine.  

               Neither  the law  nor the  record supports  the government's

          argument.  Evidence  of modus operandi  is admissible under  Rule
                                  _____ ________

          404(b) to  prove  identity, see  generally 22  C.A. Wright,  A.R.
                                      ___  _________

          Miller, &  E.H. Cooper, Federal Practice and Procedure ("Wright &
                                  ______________________________

          Miller")   5246, at  512-13 (1978), but identity is  not disputed

          in  this case.5    Moreover, at  trial,  the government  made  no

          effort to link the "carrot" and the alleged plan to the "stick."

               The manner  in which the government  conducted Gray's direct

          examination manifests the disjunction between the attempt to rent

          an apartment  from her mother  and Williams's statement  to Gray.

          After eliciting  testimony  regarding  the  failed  attempt,  the

          government switched to a line  of questions regarding the  Nelson

          Street outlet.   It next solicited the in-court identification of

          two co-conspirators.  Only  then did it begin the  exploration of

          Williams's and some of the other conspirators' backgrounds, which

          produced   the  other-acts  evidence.     Having  introduced  the

          challenged statement, the  government did not  connect it to  the

          attempt to  rent an apartment.  Nor  did it suggest that Williams

          had made the statement to intimidate  Gray or her mother or  that

____________________

               5  Even were identity disputed, the government's position is
          untenable.   For conduct to be characterized as a modus operandi,
                                                            _____ ________
          it generally must be "`so unusual and distinctive as to be like a
          signature.'"   22 Wright & Miller at 513 (quoting C.T. McCormick,
          Evidence    190,  at  449  (1972)).    On  this  record,  neither
          ________
          Williams's boast of committing or actual commission of  murder is
          so  distinctive a  device as  to prove his  identity as  the drug
          trafficker in this case.  

                                         -6-

Gray's mother even knew of the statement.  Indeed, the government

          did not place the evidence into any context, other than temporal,

          related to the development or operation of the drug conspiracy.

               The  finding  of  error  does  not,  however,  conclude  our

          inquiry.  We still must determine whether the error was harmless.

          Karas, 950  F.2d at 37-38.  We hold that it was.  Having reviewed
          _____

          the entire record and considered the probable impact of the error

          on  the minds of the  jurors, we conclude  "`with fair assurance,

          after pondering all that happened without stripping the erroneous

          action  from the  whole,  that  the  [jurors'] judgment  was  not

          substantially swayed by the error.'"  United States v. Burke, 948
                                                _____________    _____

          F.2d 23, 27 (1st Cir. 1991) (quoting United States v. Mazza,  792
                                               _____________    _____

          F.2d  1210, 1216-17 (1st Cir.  1986) (quoting Kotteakos v. United
                                                        _________    ______

          States, 328 U.S. 750, 765 (1946))).  
          ______

               Williams's possible  status as a murderer was offered to the

          jury through other properly  admitted evidence.  Beeche testified

          without  objection that he, too, knew that Williams claimed to be

          a  murderer.   Gray  testified that  she  had overheard  Williams

          threatening  to kill  a  co-conspirator when  money from  cocaine

          sales  began to  come  up short.    Under the  circumstances,  we

          conclude  that the admission of Williams's  statement to Gray had

          little prejudicial impact on the jury's judgment.

               Furthermore,  the record  contains ample  evidence to  prove

          Williams's  involvement in a drug conspiracy and use of a firearm

          in connection with it.   Beeche testified that Williams  shot him

          in the thigh for being an informer.  Gray testified that Williams

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was responsible for delivering cocaine to the retail outlets  and

          collecting the  proceeds.   Both Gray  and Beeche  testified that

          Williams routinely was armed while cocaine was being packaged and

          sold.  A videotape  portrayed Williams brandishing a gun  while a

          co-conspirator  counted  money  on  a  kitchen  counter   bearing

          cocaine.   In  light  of this  evidence,  we think  it  extremely

          unlikely that  the improperly admitted evidence  swayed the jury.

          See Mazza, 792 F.2d at 1221 (fair assurance standard satisfied if
          ___ _____

          it is highly probable  that the challenged action did  not affect

          the judgment).

               Because  we  find  the  admission of  this  evidence  to  be

          harmless,  we  do not  reach the  question  of whether  the court

          committed an abuse  of discretion in admitting the evidence under

          Rule  403.  Karas,  950 F.2d at  38; United  States v. Hernandez-
                      _____                    ______________    __________

          Bermudez, 857 F.2d  50, 54 (1st Cir. 1988).   Nor is it necessary
          ________

          to review the  court's failure to  issue a limiting  instruction,

          especially where trial counsel  did not request one.   See United
                                                                 ___ ______

          States v. De La Cruz, 902  F.2d 121, 124 (1st Cir. 1990) (stating
          ______    __________

          general  rule that  failure of  trial court  sua sponte  to issue
                                                       ___ ______

          limiting instruction is not reversible error).  

               Our finding of harmless error does not lessen our continuing

          conviction that the government and the courts must exercise great

          caution in  handling  evidence of  other  bad acts.    Williams's

          statement was  unrelated to the  offenses charged and  was highly

          inflammatory.  To infect  and jeopardize a prosecution  with such

          evidence is unwise and unjustifiable.  It comes with ill grace to

-8-

introduce marginally justifiable evidence  and then to defend its

          use by  arguing that there was so much evidence of guilt that any

          error would be harmless.  Courts, in turn, should remain vigilant

          to  whether  other-acts  evidence  serves  a genuinely  probative

          purpose  that   substantially  outweighs  the   risk  of   unfair

          prejudice.6  Hernandez-Bermudez, 857  F.2d at 54.  At  a minimum,
                       __________________

          courts routinely may  wish to issue  an instruction limiting  the

          use  of Rule  404(b)  evidence, Oppon,  863 F.2d  at  147, or  to
                                          _____

          ascertain whether defense counsel desires one.

                                         III.

               Defendant  also contends  that the  district court  erred in

          limiting  his cross  examination  of Gray.   Defendant  sought to

          inquire into  Gray's knowledge regarding the  preparation and use

          of  cocaine   and  her  brother's  alleged   cocaine  dealing  to

          demonstrate that she was induced to cooperate with the government

          to protect herself or her brother.

               The  Sixth  Amendment  to  the   Constitution  guarantees  a

          criminal defendant  the right  to confront the  witnesses against

          him.  An  essential component  of this right  is the  defendant's

          prerogative  to  establish the  biases,  prejudices, or  ulterior

          motives  of these witnesses through cross  examination.  Davis v.
                                                                   _____

          Alaska, 415 U.S.  308, 315-17 (1974);  United States v.  Kepreos,
          ______                                 _____________     _______

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               6   We recognize,  however, that express  findings regarding
          the challenged evidence are  not necessary so long as  the record
          indicates that the district  court did weigh the  balance between
          the  probative value  and  the prejudicial  effect.   See  United
                                                                ___  ______
          States v. Santagata, 924 F.2d 391, 394 (1st Cir. 1991) (citing De
          ______    _________                                            __
          La Cruz, 902 F.2d at 123 n.1).
          _______

                                         -9-

759 F.2d 961,  965 (1st Cir. 1985).   The trial court, therefore,

          must permit sufficient cross examination  to enable the jury "`to

          make  a  discriminating  appraisal  of the  possible  biases  and

          motivations  of the witness.'"   Niziolek v. Ashe,  694 F.2d 282,
                                           ________    ____

          289  (1st Cir. 1982) (quoting  United States v.  Tracey, 675 F.2d
                                         _____________     ______

          433, 437 (1st Cir. 1982)).  

               So long as  it satisfies this  standard, the district  court

          retains  wide discretion  to  impose reasonable  limits to  avoid

          prejudice, confusion  of the issues, harassment,  repetition, and

          inquiry  into  marginally  relevant  issues.    Delaware  v.  Van
                                                          ________      ___

          Arsdall, 475 U.S. 673,  679 (1986); United States v.  Twomey, 806
          _______                             _____________     ______

          F.2d  1136, 1139 (1st  Cir. 1986).   "If the jury  has sufficient

          evidence before  it bearing  on the  witness'[s] bias, the  court

          need  not permit unending  excursions into each  and every matter

          touching upon  veracity."   Kepreos, 759  F.2d  at 965  (citation
                                      _______

          omitted).  

               To  establish  that  the   district  court  has  abused  its

          discretion, the defendant must  show that the limitations imposed

          were  clearly prejudicial.  Twomey,  806 F.2d at  1140.  Williams
                                      ______

          has  not carried  this  burden.   We,  therefore, find  that  the

          decision  to exclude  certain testimony  fell within  the court's

          discretion.

               The district  court allowed  all defense  counsel, including

          Williams's, ample opportunity to undermine  Gray's credibility by

          probing  her bias and motive  for testifying.   See generally Tr.
                                                          ___ _________

          Vol IV  at 30-158.  The court did not preclude any defendant from

-10-

exploring Gray's  involvement with  the cocaine trade  but barred

          only  a few questions of  marginal relevance.   Its decisions did

          not harm  defendant because the relevant  information reached the

          jury  through  the interrogation  by  his and  the  other defense

          counsel.  

               The  intensive  cross  examination  thoroughly  delved  into

          Gray's  unsavory  connection  with  narcotics.   It  exposed  her

          cocaine  use, her  sale of  marijuana,  her knowledge  of cocaine

          trafficking,  and  her  involvement  with and  knowledge  of  her

          brother's drug  trafficking.   Gray  admitted that  she had  been

          arrested in December 1987 at her mother's house for possession of

          cocaine, that a search of the house uncovered cocaine, marijuana,

          drug paraphernalia,  and a  gun, and  that the charges  resulting

          from this arrest subsequently were dismissed.   She also admitted

          that she was testifying under immunity from the government.  

               Gray's cross examination thus  provided an extensive "record

          from which to argue why [she] might have been biased or otherwise
                              ___

          lacked  that degree  of  impartiality expected  of  a witness  at

          trial."   Davis, 415 U.S.  at 318  (emphasis in original).   From
                    _____

          this  record,  various  defense  counsel,  including  Williams's,

          argued  plausibly   that  Gray   was  implicated  in   a  cocaine

          trafficking  ring and  that her  cooperation with  the government

          stemmed from her desire to  protect herself from prosecution  and

          to divert police attention from that drug ring.  

               The jury had more than enough information to appraise Gray's

          credibility.   Accordingly, we find that the exclusion of certain

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questions  about Gray's  familiarity  with cocaine  and with  her

          brother's drug trade was not an abuse of the court's discretion.

               Affirmed.
               ________

                                             Concurrence follows.

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TORRUELLA,  Circuit Judge  (Concurring).   I agree  with the
                           _____________

          analysis  and result of this case.   I write separately simply to

          express my exasperation at  the repeated abuse of Rule  404(b) by

          government prosecutors.  

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