United States v. Walters

904 F.2d 765
CourtCourt of Appeals for the First Circuit
DecidedMay 31, 1990
DocketNos. 88-2106 to 88-2109
StatusPublished
Cited by68 cases

This text of 904 F.2d 765 (United States v. Walters) is published on Counsel Stack Legal Research, covering Court of Appeals for the First 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. Walters, 904 F.2d 765 (1st Cir. 1990).

Opinion

BOWNES, Senior Circuit Judge.

Ira Glen Anthony Walters (Walters), Ne-ville Anthony Williams (Williams), Patrick Mattis (Mattis) and Andrew Johnson Baines (Baines) appeal their convictions for participating in a cocaine distribution conspiracy between December, 1986, and April, 1987. The appellants and eight other alleged co-conspirators were charged, in varying combinations, with conspiring to possess cocaine with intent to distribute, 21 U.S.C. §§ 841 & 846, possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), and using or carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c).1 The appellants were found guilty by a jury on all counts. We affirm.

Before considering each of the issues on appeal, we briefly recount2 the facts, taking the evidence as we must, in the light most favorable to the government. The appellants participated in a drug conspiracy operating out of three apartments in Boston (318 Fuller Street, 37 Westmore Street and 9 Topalian Street). The primary evidence against the defendants was the testimony of Lisa Gray, Williams’ girlfriend during part of the conspiracy, who lived behind the Westmore Street apartment, and Herbert Beeche, a resident of 37 West-more Street, who was shot in the leg by Olgivie Williams, a defendant below who has not appealed, and Walters. Gray and Beeche testified about the many drug sales they witnessed and the guns they saw during those transactions. In addition, the police searches of the Fuller Street and [768]*768Topaban Street apartments and the Nelson Street apartment building where Walters lived uncovered cocaine, drug paraphernalia (scales, etc.), firearms and other items. During the government’s case-in-chief, several of the firearms and rounds of ammunition seized, including weapons found during a search of the basement of the Nelson Street building, were admitted into evidence. Also admitted into evidence was a single color photograph of Walters which was seized during the search of his apartment. Other evidence, including a videotape of some of the appellants, plane tickets and other items, was also admitted into evidence. The appellants take issue with a number of rulings below.

I.

Defendant-appellant Walters raises two issues involving the admission of the photograph: that it violated Fed.R.Evid. 404(b); and that it was not properly authenticated as required under Fed.R.Evid. 901.

The photograph is a posed shot showing Walters kneeling on the floor, facing the camera, and holding what appears to bé a large pistol. The back of the photograph is stamped “OCT 1986.” The crimes charged in the indictment covered a period from December, 1986, through April, 1987. Walters argues that the photograph’s sole purpose at trial was to impermissibly demonstrate that he had a propensity to carry firearms thus showing “bad character.”

In reviewing a trial court’s ruling pursuant to Rule 404(b)3, the pertinent inquiry is whether the trial court abused its discretion in admitting the challenged evidence. United States v. Fields, 871 F.2d 188, 196 (1st Cir.), cert. denied, — U.S. —, 110 S.Ct. 369, 107 L.Ed,2d 355 (1989); United States v. Rubio-Estrada, 857 F.2d 845, 846 (1st Cir.1988). We give “considerable leeway” to the district court in its decision. United States v. Simon, 842 F.2d 552, 555 (1st Cir.1988). As we have said repeatedly, “ ‘only in exceptional circumstances will we reverse the exercise of a district court’s informed discretion vis-a-vis the relative weighing of probative value and unfairly prejudicial effect.’ ” United States v. Currier, 836 F.2d 11, 18 (1st Cir.1987) (quoting United States v. Griffin, 818 F.2d 97, 101-02 (1st Cir.1987)).

The use of “bad acts” evidence is not limited to those uses listed in the rule. So long as the trial court determines (1) that the proffered evidence is relevant to an issue other than character, and (2) that the evidence, if relevant, is not more prejudicial than probative, the use of the evidence is proper. Fields, 871 F.2d at 196; United States v. Flores-Perez, 849 F.2d 1, 4 (1st Cir.1988).

The initial question is whether the photograph was relevant to any issue other than illustrating defendant’s bad character. Evidence is relevant if it has a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R. Evid. 401. Walters was indicted for using or carrying a firearm during, and in relation to, drug trafficking. One of the issues to be determined at trial was the connection, if any, between the guns seized in the searches of the Fuller Street apartment and the basement of the Nelson Street apartment building and Walters. Walters argues that there was no connection between the photograph and any of the crimes with which he was charged. We disagree.

When Walters objected to the introduction of the photograph, the district court judge immediately ruled on the objection stating:

I don’t think I will need any argument by the Government. I think the photograph is highly probative and connects him with what apparently — I’m just saying “apparently” — what I would infer to be one [769]*769of the weapons that has been — all I’m saying is “apparently” — so I’m expecting that the argument will go from there. I can’t say that that is the weapon that sat on that witness box.

The district judge determined that sufficient similarity existed between the gun held by Walters in the photograph and one of the guns marked as an exhibit to warrant the admission of the photograph.4 If the jury interpreted the photograph the same way, this would connect Walters to the guns admitted into evidence. It, therefore, met the test of relevancy under Fed. R.Evid. 401. See United States v. Green, 887 F.2d 25, 27 (1st Cir.1989) (holding same guns relevant to severed defendants).

The next question is whether the photograph’s “probative value [was] substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403.

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904 F.2d 765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-walters-ca1-1990.