United States v. Rupert Gordon

987 F.2d 902, 38 Fed. R. Serv. 211, 1993 U.S. App. LEXIS 4216, 1993 WL 56292
CourtCourt of Appeals for the Second Circuit
DecidedMarch 4, 1993
Docket261 Docket 92-1264
StatusPublished
Cited by119 cases

This text of 987 F.2d 902 (United States v. Rupert Gordon) 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. Rupert Gordon, 987 F.2d 902, 38 Fed. R. Serv. 211, 1993 U.S. App. LEXIS 4216, 1993 WL 56292 (2d Cir. 1993).

Opinions

KEARSE, Circuit Judge:

Defendant Rupert Gordon appeals from a judgment entered in the United States District Court for the Eastern District of New York, following a jury trial before I. Leo Glasser, Judge, convicting him of conspiring to import cocaine into the United States in violation of 21 U.S.C. § 963 (1988); importing cocaine, in violation of 21 U.S.C. § 952(a) (1988) and 18 U.S.C. § 2 (1988); and possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1988) and 18 U.S.C. § 2. He was sentenced principally to 63 months’ imprisonment to be followed by a five-year term of supervised release. On appeal, Gordon contends chiefly that the evidence was insufficient to support his convictions and that the district court abused its discretion in admitting evidence that he had previously possessed crack cocaine. For the reasons below, we conclude that the evidence was sufficient but that the other-act evidence was improperly admitted, and we therefore vacate the conviction and remand for a new trial.

I. BACKGROUND

The present prosecution arises out of Gordon’s arrival at New York’s JFK International Airport (“JFK”) in August 1991 to pick up one Vernon Ghullkie, who had arrived on an international flight carrying cocaine and marijuana. The government’s proof at trial was presented principally through the testimony of Ghullkie, three government agents, and Jay Edwards, a Greensboro, North Carolina police detective. Taken in the light most favorable to the government, the evidence revealed the following.

A. The Events

Ghullkie was a Guyanan citizen who had lived in the United States since 1985. In the summer of 1991, he met Carlotta Sandi-[905]*905ford, who offered him $2,000 if he would smuggle drugs from Guyana into the United States. Ghullkie agreed, and Sandiford acquired two airline tickets so that they could travel to Guyana together. On August 4, 1991, Ghullkie and Sandiford met at JFK; Sandiford was accompanied by Gordon, whom she introduced as her husband. After Ghullkie and Sandiford were unable to get seats on that day’s flight to Guyana, Gordon and Sandiford drove Ghullkie home.

On August 7, Ghullkie again met Sandi-ford and Gordon at JFK, and this time Ghullkie and Sandiford were able to fly to Guyana. After they arrived in Guyana, Sandiford gave Ghullkie $250 and told him he would return to the United States the following week. While in Guyana, Ghullk-ie twice asked Sandiford for additional money, but she replied that Gordon had not sent her any money. In fact, on August 9, Gordon sent Sandiford $300.

Before Ghullkie’s return to the United States, Sandiford brought him a girdle and tights to wear, and she hid cocaine in the tights. She also gave Ghullkie a plaque, which she said contained marijuana. Sandiford told Ghullkie that Gordon would meet him at JFK. Ghullkie was to deliver the drugs to Gordon, and Gordon would pay him.

When Ghullkie arrived at JFK on August 16, a United States Customs Service inspector noticed that Ghullkie’s body shape was odd and that he was sweating profusely, and found that he was unable to answer questions. The inspector searched Ghullk-ie and found 1,493 grams of 90% pure cocaine, which had a wholesale value of approximately $40-$45,000. The inspector also found marijuana in the plaque in his suitcase.

Ghullkie was arrested and promptly agreed to cooperate. He said he was to deliver the drugs to Gordon, whom he described, and he agreed to wear a hidden recording device for the delivery. Wearing a wire, Ghullkie went to the lobby of the International Arrivals Building and saw Gordon, who approached him. Ghullkie testified that he said to Gordon, “I got the cocaine, you got the money?” and that Gordon “shook his head and said yes, but he got to go talk to his brother-in-law.” This conversation was not recorded because Ghullkie’s wire picked up only background noise from the lobby, but a government agent saw Gordon nod his head in an affirmative manner.

Gordon left the building without Ghullk-ie, walked several blocks, turned around, and walked back to a pay telephone across the street from the building. After he appeared to make a pay telephone call, he was arrested. After being given his Miranda warnings, Gordon told the agents that earlier that day he had received a telephone call from a friend named Mike James in Guyana who asked him to pick up Ghullkie at JFK. Gordon said he had never seen Ghullkie before but had been given his name and description. Gordon gave the agents a telephone number for James’s beeper, but when agents tried the number, they reached what appeared to be only a fax machine. At the time of his arrest, Gordon was carrying, inter alia, a business card of the travel agent who had issued airplane tickets to Ghullkie and Sandiford. Ghullkie’s name, address, and telephone number were written on the back of the card in Gordon’s handwriting.

Several days after the arrests, in the detention center where they were being held, Gordon told Ghullkie that Ghullkie was “the only man that could set him free.” Gordon said that if Ghullkie did not “finger him,” Gordon could sue the government for false arrest, “and we could get a lot of money.”

B. The Challenged Evidence of Gordon’s Prior Arrest

Gordon was indicted on one count of importing cocaine, in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2, one count of conspiring to do so, in violation of 21 U.S.C. § 963, and one count of possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Prior to trial, he objected to the government’s proposed introduction of evidence that he had been arrested in April 1990 while in [906]*906possession of crack cocaine. The district court ruled that the evidence was relevant to the issue of knowledge and that its probative value would outweigh any prejudice to Gordon.

At trial, Edwards testified that he had arrested Gordon in Greensboro, North Carolina, in April 1990; at the time, Gordon was carrying 3.8 grams of crack cocaine. A search of his house revealed a triple-beam scale, which is often used by narcotics distributors. Edwards testified that Gordon was suspected of being a crack supplier.

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Bluebook (online)
987 F.2d 902, 38 Fed. R. Serv. 211, 1993 U.S. App. LEXIS 4216, 1993 WL 56292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rupert-gordon-ca2-1993.