U.S. v. Catano, 76-3316

• Decision Date: 06 June 1977
• Docket Number: No. 76-3316,76-3316
• Parties: 2 Fed. R. Evid. Serv. 73 UNITED STATES of America, Plaintiff-Appellee, v. Carlos A. CATANO, Defendant-Appellant. Summary Calendar. * United States Court of Appeals, Fifth Circuit
• Court: U.S. Court of Appeals — Fifth Circuit

Page 497

553 F.2d 497

2 Fed. R. Evid. Serv. 73

UNITED STATES of America, Plaintiff-Appellee, v. Carlos A. CATANO, Defendant-Appellant.

No. 76-3316

Summary Calendar. ^*

United States Court of Appeals,

Fifth Circuit.

June 6, 1977.

Irwin G. Lichter, Miami, Fla. (Court-appointed), for defendant-appellant.

Robert W. Rust, U. S. Atty., C. Wesley G. Currier, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, and RONEY and HILL, Circuit Judges.

PER CURIAM:

Appellant Carlos A. Catano appeals from his conviction in a jury trial for violation of 21 U.S.C.A. §§ 952(a) and 841(a)(1), which make it illegal to smuggle cocaine into the United States and to possess cocaine with the intent to distribute it. Appellant argues that his conviction should be reversed because of the trial court's alleged errors in (i) admitting into evidence testimony concerning crimes subsequent to the commission of the crime charged in the indictment in the instant case, which testimony was highly prejudicial and unrelated to the charges against defendant; (ii) failing to give defendant's requested charges; (iii) denying defendant's motion for judgment of acquittal with regard to the possession of cocaine with intent to distribute it; and (iv) denying defendant's motion to dismiss the indictment for unreasonable delay in arresting defendant. Finally, appellant also argues that the discovery of an unclaimed and unmarked suitcase containing cocaine found on a baggage conveyor and never presented for entry into the United States cannot be, as a matter of law, importation of cocaine within the meaning of the statute. We find no reversible error and affirm.

Appellant entered the United States at Miami International Airport from Colombia on Flight 144, on May 16, 1975. When this flight's baggage was unloaded, an unclaimed bag was found on the luggage carousel. Although the bag apparently had arrived on Flight 144, it contained no identification, claim check or mark which would indicate where and when it had been placed on the plane. A traffic agent testified at trial that a passenger started to claim this bag, but then said that it was not his. The agent could not identify the man and said that he did not think he had ever seen appellant before. When the bag was taken to customs, it was found to contain 51 individually wrapped packages of cocaine. The Drug Enforcement Agency chemist later found its net weight to be 19.007 kilograms.

On November 18, 1975, appellant met with two DEA undercover agents at his apartment in Greenwich, Connecticut. The agents told him they wanted to buy several kilos of cocaine. Appellant informed the agents that he could possibly sell them several kilos at $54,000 to $56,000, the final price depending on how much he had to pay for it.

Appellant informed the agents that his source of supply for the cocaine was in Colombia, and that he was a Colombian citizen living in the United States posing as a Puerto Rican. The agents also testified that appellant told them that a few months previously, he had carried 19 kilograms of cocaine into Miami, but that something went wrong, and that the FBI intercepted the package.

Appellant told the agents that he would contact his connections in Colombia to find out when he could expect another shipment of cocaine. The agents testified that appellant told them that he traveled to Colombia several times a year, and that occasionally he brought cocaine back with him, although usually someone else brought it into the country. He agreed to contact the agents later and let them know when they could buy two kilos.

On January 22, 1976, appellant met with the agents again. He informed them that he was expecting a shipment of cocaine at any time, although it was getting difficult to bring cocaine out of Colombia. They also discussed using Bradley Airport to bring the cocaine in.

On March 22, 1976, appellant held his third meeting with the DEA undercover agents. The appellant stated that he had not received any word concerning further shipments of cocaine from Colombia. At this meeting, one agent mentioned having read a magazine article about the seizure of 19 kilos of cocaine in Miami at the airport, in a suitcase which was not claimed. One of the agents testified that appellant told him that he had a newspaper clipping at his house which described the seizure of the 19 kilos of cocaine which he, appellant, had left at the airport. At these meetings, appellant never transferred or exhibited any cocaine to the agents. No cocaine, or magazine or newspaper articles were found during a search of appellant's residence.

On March 29, 1976, appellant was arrested. The indictment alleged that on or about May 16, 1975, at Miami, Dade County, Florida, the Defendant knowingly and intentionally imported cocaine into the United States and on the same date did knowingly and intentionally possess cocaine with the intent to distribute it. ¹ Appellant did not testify at his trial. Appellant was convicted after a jury trial and now appeals from that conviction.

Appellant's first argument is that the trial court erred in admitting into evidence testimony concerning crimes subsequent to the commission of the offense charged in the indictment. In particular, appellant argues that it was error for the trial court to admit into evidence the testimony of the two DEA agents concerning their three meetings with appellant after the May 16 incident. Assuming that a subsequent crime was involved here, F.R.Evid. 404(b) provides that "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted 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" Rule 404(b) is subject to Rule 403, which provides that, "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."

The testimony of the two DEA agents concerning their conversations with appellant in the post-May 16, 1975, meetings was highly probative and relevant as to the crucial issue of appellant's knowledge and intent to import and distribute cocaine. Thus, we conclude that the testimony was admissible under F.R.Evid. 404(b), unless otherwise inadmissible under F.R.Evid. 403. In light of the legislative history, see note 2, supra, we conclude that the probative value of the testimony was not 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. In short, the testimony was admissible, and the trial court did not err in admitting it.

Appellant next argues that the trial court erred in refusing to give two of his requested jury charges. These concerned the rule that importation is not complete until the contraband has entered this country. However, our examination of the charges given convinces us that the...