8 F.3d 989 (5th Cir. 1993), 92-8356, United States v. Ponce

Docket Nº:92-8356.
Citation:8 F.3d 989
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael Rene PONCE, Defendant-Appellant.
Case Date:November 23, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 989

8 F.3d 989 (5th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael Rene PONCE, Defendant-Appellant.

No. 92-8356.

United States Court of Appeals, Fifth Circuit

November 23, 1993

Rehearing Denied Jan. 10, 1994.

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[Copyrighted Material Omitted]

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Ben Florey, Austin, TX (Court-appointed), for defendant-appellant.

Joan Stearns, Richard L. Durbin, Jr., Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before EMILIO M. GARZA and DeMOSS, Circuit Judges, and ZAGEL 1, District Judge.

ZAGEL, District Judge:

Michael Rene Ponce was convicted under 21 U.S.C. § 841(a)(1) for possession of heroin with the intent to distribute. Ponce was sentenced to 48 months in prison. He advances three grounds for reversal of his conviction.

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I.

Ponce's conviction stems from two separate drug arrests. The first occurred on the night of November 10, 1990 in a high crime area in Austin, Texas. Officer Ivey Yancy of the Austin Police Department saw the driver of a car back up at a high rate of speed in front of a gas pump in what he considered to be a reckless manner. Thinking the driver might be intoxicated, Officer Yancy went to investigate. Yancy, who was driving a marked patrol car and wearing a uniform, approached the car and told the driver that he was being stopped for his driving. The driver of the car was defendant Ponce. At Officer Yancy's request, Ponce produced his driver's license and told the officer that the car was a rental. Officer Yancy radioed for a registration check on the car and a warrant check on Ponce. When the officer inquired about Ponce's employment, Ponce said he was unemployed.

A second officer, Officer Barber, pulled up in a marked patrol car while Yancy and Ponce were talking. Barber, basing his statement on his prior knowledge of Ponce, told Officer Yancy that Ponce might have a weapon. His suspicions further aroused, Yancy asked Ponce if they could search his car. Ponce answered "sure." Barber searched the car after Ponce consented, but found nothing. When asked or told that Officer Yancy was going to search him for weapons, Ponce said, "okay." Ponce removed his jacket at Yancy's request and handed it to the officer. Yancy checked its pockets and found a few one-dollar bills and a pager. Yancy also patted down Ponce's shirt pockets and checked around his waist and ankles.

After Officer Yancy had patted Ponce down, he was advised over his police radio that Ponce had just gotten out of jail and that Ponce might possess drugs. Yancy then asked Ponce if he had ever been in the penitentiary, and Ponce said, "No." Having failed to search Ponce's pants pockets the first time, Officer Yancy asked Ponce if he could pat him down again. Ponce did not resist. Feeling a bulge in Ponce's left front pocket, Yancy pulled out a wad of bills totalling $510 and containing 22 twenty-dollar bills, one ten-dollar bill, and some five-dollar bills. Officer Yancy felt nothing in the right pants pocket, but in the "change" or "watch" pocket he felt something that rattled like paper. Yancy removed the pocket's contents and found a cigarette paper containing a small amount of heroin. After Yancy removed the heroin from his pocket, Ponce said, "Dang, I forgot it was there."

The second arrest at issue occurred on January 9, 1991. On that day Officer Joe Nichols, a member of the Repeat Offender Division of the Austin Police Department, was advised by a parole officer that there was a parole violation warrant out for Ponce and that Ponce was at the parole office. Officer Nichols, accompanied by another officer, went to the parole office and placed Ponce under arrest. When the officers patted Ponce down they found a set of Ford keys in his pants pocket. Ponce told the officers that he had driven a Ford pickup belonging to his brother-in-law, Mark Sosa, to the parole office. Officer Nichols asked Ponce if there was anyone with him to whom they could release the truck. Ponce said his girlfriend, Lisa Lara, was in the waiting room and could take the truck.

The officers, Ponce and Lisa Lara exited the parole office. When Officer Nichols asked Ponce where the truck was, Ponce looked around the parking lot and said the truck was gone and that someone must have taken it. Officer Nichols looked to his left and saw a white Ford pickup. He found the passenger door of the truck unlocked, got in, and started the pickup with the keys that had been in Ponce's pocket. A license plate check showed that the truck was registered to Mark Sosa. Ponce then acknowledged that the truck was his brother-in-law's.

After learning that Lisa Lara did not have a driver's license and could not drive the truck, Officer Nichols decided to impound the truck. Officer Nichols inventoried the truck to note exterior damage and any contents in areas of the truck that would be accessible to the wrecker company. He found 86 small balloons of heroin rolled up and tied in a plastic baggie in the truck's ashtray.

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II.

Ponce's first argument on appeal is that the district court erred in admitting evidence of his prior conviction for possession of methadone because he made an offer to stipulate to intent. Ponce contends that in light of his proposed stipulation, the district court's admission of evidence of the prior conviction violated Rule 404(b), Fed.R.Evid. 2 In accordance with the rule, the government provided notice before trial that it intended to introduce evidence of Ponce's prior possession of methadone conviction, arguing that it was relevant to Ponce's intent and knowledge.

During a recess on the first day of trial, Ponce's counsel announced: "we are willing to stipulate that if the trier of fact finds that the defendant was, in fact, in possession of the contraband in these cases, Count One and Count II, then the defense is going to stipulate that in that event we are stipulating that he was also in possession with intent to deliver." During the same colloquy Ponce's counsel said, "[a]nd I think we are offering to stipulate that if they do find he was guilty of possession in that case, we stipulate that he is also guilty of possession with intent to deliver." Defense counsel argued that the prior conviction was not relevant because it involved a different controlled substance. Admission of the prior conviction, according to defense counsel, "merely lets the jury decide that he's been a bad boy before, so he is a bad boy again." Although the trial court repeatedly expressed uncertainty over defense counsel's stipulation proposal and its purpose, counsel failed to clarify the stipulation or submit a proposed jury instruction that might have clarified his position. The district court overruled defense counsel's objection to the admission of Ponce's prior conviction.

We determine the admissibility of extrinsic offense evidence by applying a two-part test. First, the extrinsic offense must be relevant to an issue other than the defendant's character. Second, the probative value of the extrinsic offense evidence must not be substantially outweighed by its prejudicial effect. United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). Ponce does not contend that the trial court should have excluded his prior conviction under Beechum regardless of its ruling on the proposed stipulation. Rather, he argues that had the court accepted his proposed stipulation, the extrinsic offense evidence would have been sapped of its probity. With Ponce's unlawful intent no longer in dispute, the probative value of the prior conviction would be substantially outweighed by its prejudicial impact and thus rendered inadmissible under Rule 404(b). Thus, the success of Ponce's Rule 404(b) argument hinges on whether the trial judge properly refused to accept the proposed stipulation.

We conclude that the district court did not abuse its discretion by rejecting the proposed stipulation offered by Ponce's trial counsel. This Court has long held that "as a general rule a party may not preclude his adversary's proof by an admission or offer to stipulate." United States v. Spletzer, 535 F.2d 950, 955 (5th Cir.1976). United States v. Yeagin, 927 F.2d 798 (5th Cir.1991) represents an exception to the general rule announced in Spletzer. In Yeagin, a stipulation similar to the one offered here was rejected and the trial court admitted evidence of nine prior felony convictions, four of which the government conceded on appeal were irrelevant to any issue. Id. at 800-01. We reversed the conviction because "the prosecutor's need to introduce evidence of Yeagin's nine prior convictions was negligible in comparison to the extremely prejudicial effect that this evidence must have had on the jury." Id. at 803.

This case is not like Yeagin. Yeagin presupposes a proper offer to stipulate. The language of the proposed stipulation offered by Ponce's trial counsel was never precisely

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defined. Also, the Yeagin Court disapproved of the government's arguing for the first time on appeal that the prior convictions were admissible because they tended to prove elements other than those to which the defendant had agreed to stipulate. Id. at 802. Here, by contrast, the government explicitly argued below that Ponce's prior conviction was relevant to knowledge, as well as to the element of intent to which Ponce was willing to stipulate. Furthermore, the Court in Yeagin concluded that the prior conviction evidence was "irrelevant to the knowledge required for actual possession because there was no evidence that indicated that Yeagin had direct physical control over the drugs."...

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