U.S. v. Medina, 83-1546

• Decision Date: 26 April 1985
• Docket Number: No. 83-1546,83-1546
• Citation: 761 F.2d 12
• Parties: 18 Fed. R. Evid. Serv. 314 UNITED STATES of America, Appellee, v. Alejo Maldonado MEDINA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 12

761 F.2d 12

18 Fed. R. Evid. Serv. 314

UNITED STATES of America, Appellee, v. Alejo Maldonado MEDINA, Defendant, Appellant.

No. 83-1546.

United States Court of Appeals, First Circuit.

Argued Feb. 4, 1985.

Decided April 26, 1985.

Carlos V. Garcia Gutierrez, Santurce, P.R., with whom Harry Anduze Montano, Santurce, P.R., was on brief for defendant, appellant.

Louis M. Fischer, Dept. of Justice, Washington, D.C., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., and Dana D. Biehl, Dept. of Justice, Washington, D.C., were on brief for appellee.

Before COFFIN, Circuit Judge, WISDOM, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

BOWNES, Circuit Judge.

Defendant-appellant Alejo Maldonado Medina appeals from a jury conviction of conspiring to commit extortion, and the actual commission of the offense in violation of the Hobbs Act, 18 U.S.C. Sec. 1951. The extortion consisted of kidnapping Mario Consuegra and telling Francisco Consuegra, Mario's father and a wealthy jeweler, that his son faced violence and death unless and until a ransom of $224,800 in cash and gold chains was paid. Five issues are raised on appeal which we discuss seriatim.

I. THE ADMISSION OF EVIDENCE OF A PRIOR KIDNAPPING

The Consuegra kidnapping took place on September 1, 1982. On March 28, 1982, the same persons involved in the Consuegra kidnapping had abducted Julio Cortes Melendez, Jr., the son of a numbers racketeer, and held him until a ransom of $200,000 was paid by his father. Presumably because interference with interstate commerce could not be shown, ¹ no federal charges were brought against the defendant for the Cortes kidnapping-extortion. In the trial below, the prosecution led off by introducing evidence of the kidnapping of Cortes and defendant's participation in it. Defendant claims that it was error to admit this evidence for two reasons: that because interstate commerce was not obstructed or affected, such evidence was inadmissible, and that its admission resulted in a constructive amendment of the indictment. The government's position is that the evidence was properly admitted as proof of an overt act alleged in the indictment and that it was admissible under Federal Rule of Evidence 404(b).

We start with the indictment. It charged in Count One that Maldonado, Cesar Caballero-Rivera, Roberto Stevenson Louis, Jorge David Casanova-Cruz, and William Suarez-Garay conspired together to commit extortion by kidnapping Mario Consuegra and holding him for ransom. The indictment alleged that the conspiracy began "on or about March of 1982." Count Two charged the commission of the substantive offense as "on or around September 2, 1982." ² The first overt act alleged under the conspiracy count charged that "on or about March 28, 1982," Maldonado, Caballero and Stevenson kidnapped Julio Cortes, Jr., in order to obtain $200,000 from his father. The second overt act states:

2. The plans, methods and techniques used in the kidnapping referred to in Overt Act I were similar and identical to those which would be and were used to kidnap the son of Francisco Consuegra and extort money and jewelry from the said Francisco Consuegra, including

a. Telling the kidnap victims they were police officers and using hand cuffs to restrain them.

b. Keeping the kidnap victims on a mattress in the rear of a van.

c. Telling the extortion victims to drive to Las Americas Expressway where they would receive further instructions.

d. Leaving a note containing instructions within a container located at identified marks on the Las Americas Expressway.

e. Telling the extortion victims to place the ransom in pillow cases.

f. Telling the extortion victims to drop the pillow cases containing the ransom over the side of a bridge located on Las Americas Expressway.

The third overt act alleged that "[o]n or about March 29, 1982, the defendant, Alejo Maldonado-Medina, made and maintained a tape recording of a telephone conversation of the kidnapping and extortion plot involving Julio Cortes."

The first question is whether evidence of the Cortes kidnapping was properly admitted as proof of an overt act. It has been established beyond challenge that an overt act need not be the substantive crime that is the object of the conspiracy, nor even criminal in character; its function is to show the operation of the conspiracy. Yates v. United States, 354 U.S. 298, 334, 77 S.Ct. 1064, 1084, 1 L.Ed.2d 1356 (1957). But it does not follow from this that an overt act cannot be another crime. In United States v. Murzyn, 631 F.2d 525, 534-35 (7th Cir.1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981), the court held that intrastate auto thefts were properly alleged as overt acts because the acts were taken to "effect the object of the conspiracy," the interstate transportation and sale of stolen motor vehicles. Defendant has cited no cases, and we have found none, holding that an overt act cannot be another crime or that, if it is, it must be a federal crime. Such a proposition runs directly counter to the function of an overt act, "to demonstrate the conspiracy's existence, i.e., to prove that it is at work." United States v. Slocum, 695 F.2d 650, 654 (2d Cir.1982), cert. denied, 460 U.S. 1015, 103 S.Ct. 1260, 75 L.Ed.2d 487 (1983).

Moreover, whether or not alleged as overt acts in the indictment, the evidence of how the Cortes kidnapping was carried out was admissible under Federal Rule of Evidence 404(b). The procedure for the admission of evidence under 404(b) was carefully delineated by us in United States v. Morris, 700 F.2d 427, 431 (1st Cir.), cert. denied, 461 U.S. 947, 103 S.Ct. 2128, 77 L.Ed.2d 1306 (1983). Under Federal Rule of Evidence 404(b), evidence of other crimes may be admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The first step is to determine if the evidence has some "special" probative value. Here, the "special" probative value was to show that a modus operandi identical in most respects to the one used in the kidnapping at issue had been used successfully by the same persons to carry out a similar kidnapping five months previously. This is certainly evidence from which a jury could reasonably find "motive, intent, preparation, plan [and] knowledge." But the fact that the evidence has "special" probative value is only the first step towards admissibility; "the district judge must also balance its probative value against possible prejudice." Id. at 431. The balancing decision is left to the discretion of the district court. Id. The district court here went through the balancing process and specifically ruled, "I find that the probative value of the Cortes evidence outweighs the possible prejudicial effect that it might have." This ruling was clearly not an abuse of discretion.

On the proof presented, the jury could have found beyond a reasonable doubt that the defendant was a participant in the planning and execution of the kidnapping of Julio Cortes and shared in the division of the extorted ransom. Based on the evidence of the two kidnappings, the jury could have found beyond a reasonable doubt that the Cortes kidnapping was a prelude to the kidnapping of Consuegra and that the success the defendant and his cohorts had in the Cortes abduction-extortion led them to a repeat performance with a different victim. Of course, if the proof of the Cortes kidnapping constructively amended the indictment, then the fact that it was charged as an overt act or was admissible under Federal Rule of Evidence 404(b) cannot save the prosecution's case. We turn, therefore, to the constructive amendment issue.

In United States v. Kelly, 722 F.2d 873, 876 (1st Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1425, 79 L.Ed.2d 749 (1984), we held:

To prevail on the theory that there has been a constructive amendment to the indictment, appellant must show that his fifth and sixth amendment rights have been infringed. The fifth amendment requires that a defendant be tried only on a charge made by the grand jury.... The sixth amendment working in tandem with the fifth amendment, requires that the defendant "be informed of the nature and cause of the accusation." U.S. Const.amend. VI. [Footnote omitted.]

See also United States v. Gibson, 726 F.2d 869, 873 (1st Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 2174, 80 L.Ed.2d 557 (1984).

There can be no doubt that Counts One and Two of the indictment charged defendant and his accomplices with conspiring to commit extortion by kidnapping Mario Consuegra and the execution of the conspiracy. More than sufficient details were stated to fully apprise the accused of the crime with which he was charged. Nor can there be any doubt that the government proved defendant's participation in the conspiracy and the substantive crime beyond a reasonable doubt. The evidence against defendant was overwhelming. ³ He was identified as the driver of a wine-colored Chevrolet Malibu that went to the place where the kidnappers had told Francisco Consuegra to leave the ransom money. One of the occupants of this car was seen picking up the ransom. Defendant was seen leaving the ransom pickup car and getting into the getaway car, a white Ford Mustang. He received a portion of the gold chains paid as part of the ransom. And it was he who called the victim's father to make the ransom demand and to give the initial instructions for its payment. ⁴ A pen found in his possession had the same type of ink as was on the note giving additional instructions for the ransom payment. The possibility that the jury might have convicted defendant of the Cortes kidnapping rather than the Consuegra kidnapping was obviated by the district judge who charged the jury that evidence of the Cortes kidnapping was not the crime with which defendant was charged "but would at most constitute evidence of similar overt acts as alleged in Count One of the...