U.S. v. Lau

• Decision Date: 01 June 1987
• Docket Number: 86-2008,Nos. 86-1255,86-1256 and 86-2002,s. 86-1255
• Citation: 828 F.2d 871
• Parties: 23 Fed. R. Evid. Serv. 881 UNITED STATES of America, Appellee, v. Michael Alan LAU, Defendant, Appellant. UNITED STATES of America, Appellee, v. Bruce TAYLOR, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 871

828 F.2d 871

23 Fed. R. Evid. Serv. 881

UNITED STATES of America, Appellee, v. Michael Alan LAU, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Bruce TAYLOR, Defendant, Appellant.

Nos. 86-1255, 86-2008, 86-1256 and 86-2002.

United States Court of Appeals, First Circuit.

Heard June 1, 1987.

Decided Sept. 15, 1987.

William L. Camper, Tallahassee, Fla., for defendant, appellant Michael Alan Lau.

Clyde M. Taylor, Jr., Tallahassee, Fla., for defendant, appellant Bruce Taylor.

Antonio R. Bazan, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before BREYER and SELYA, Circuit Judges, and RE, ^* Judge.

BREYER, Circuit Judge.

The appellants, Michael Lau and Bruce Taylor, appeal their convictions for importing and possessing cocaine and for conspiring to do so. 21 U.S.C. Secs. 841(a)(1), 846, 952(a) (1982). They claim that there was insufficient evidence for conviction; they make several claims relating to a DEA informant's testimony about their participation in an earlier cocaine smuggling scheme; and they ask for a new trial because they say the government withheld exculpatory evidence. We do not believe their arguments are legally sufficient, and we affirm their convictions.

I

Appellants' first claim is that there was insufficient evidence for conviction. A reading of the record, with inferences appropriately drawn in the government's favor, see United States v. Drougas, 748 F.2d 8, 15 (1st Cir.1984); United States v. Patterson, 644 F.2d 890, 893 (1st Cir.1981), indicates the following basic series of events:

1. In the morning of August 9, 1985, appellant Michael Lau, president of St. Maartin Helicopter Service, landed his helicopter in St. Croix, Virgin Islands. He falsely told a United States customs officer that he was traveling on to San Juan, Puerto Rico, with only one passenger and that the senior inspector of U.S. customs in St. Croix had said it was all right to "pre-clear" the flight, that is, to grant U.S. customs clearance in St. Croix instead of San Juan. The customs officer then pre-cleared Lau without inspecting the helicopter. (Tr. 259, 262-63, 266-68.)

2. Later that day, Lau landed his helicopter in San Juan. Lau, an elderly man, and another man in a wheelchair all got off the helicopter. (Tr. 196.) Lau and the elderly man unloaded several suitcases from the helicopter and "left them between two vehicles." (Tr. 336-37.) The elderly man and the man in the wheelchair then approached appellant Taylor, a partner in Lau's helicopter company, who was standing nearby awaiting the helicopter's landing. (Tr. 339.)

3. Gus Maestrales, a charter jet pilot whom Lau had hired to fly his passengers from San Juan to Orlando, asked Taylor, the elderly man, and the man in the wheelchair if they had any luggage except the few bags they were carrying. They said, "[N]o, we've got more bags over there," and pointed to six suitcases "over by a vehicle." Maestrales's co-pilot complained that the six suitcases "weigh[ed] a ton." (Tr. 194-96.)

4. Maestrales, who was perhaps especially cautious because authorities had found $5 million aboard his jet the previous March (Tr. 216-17), thought the bags were suspiciously heavy and asked about their contents. Taylor said, "We don't have anything in there." (Tr. 198.) Later, when Maestrales insisted on being shown the contents of the bags, Taylor said they belonged to a man who had not come on the helicopter. He added, "[T]hey are not mine. We don't want you to take them, just leave the bags." (Tr. 202.) Maestrales found a customs official, who watched as Maestrales opened one of the bags. Inside was cocaine. (Tr. 203-05.) In all, the six suitcases held 193 pounds of cocaine. (Tr. 322.)

5. By the time the cocaine was discovered, however, Taylor and the man in the wheelchair had disappeared. (Tr. 277, 416.) Two witnesses said they saw Taylor pushing the man in the wheelchair quickly toward the street. (Tr. 341, 354.) One of them found the wheelchair abandoned under an airport stairway. (Tr. 342.) Another witness, who refueled Lau's helicopter after the bags were unloaded, testified that Lau appeared nervous and in a hurry; his hands were shaking, and "[h]e was dying for the plane to be serviced." As soon as customs cleared Lau to take off, he left. (Tr. 386-88.)

The case essentially turned on whether the jury believed that Lau and Taylor knew about the cocaine in the six suitcases or whether its presence there was an unfortunate coincidence. The jury apparently concluded that the presence of the suitcases was no coincidence. We think the facts outlined above--even without the prior acts testimony we discuss below--are more than "sufficient to allow a reasonable juror to find guilt beyond a reasonable doubt." United States v. Guerrero-Guerrero, 776 F.2d 1071, 1073 (1st Cir.1985) (noting that our system looks to jurors "to come up with answers that reflect the common-sense view of the community"), cert. denied sub nom. Mosquera v. United States, 475 U.S. 1029, 106 S.Ct. 1233, 89 L.Ed.2d 342 (1986).

II

The major issues on appeal concern an additional piece of evidence. The government presented the testimony of Thomas Aiello, who said that about two and one-half years before the events described above, in January 1983, he had worked with appellants in a cocaine smuggling venture. Aiello said that he and Taylor and others had met a plane that Lau had flown into Broxton, Georgia. He helped unload from the plane a number of boxes that proved to contain 50 to 60 "football shapes" of cocaine. (Tr. 502-05, 508-10.)

Appellants make three separate claims in relation to this evidence. First, they say that Federal Rule of Evidence 404(b) bars this evidence of a prior bad act because it is relevant only to show appellants' bad character. Second, they say the trial judge should have excluded the evidence because the government offered insufficient proof that appellants were the men Aiello saw in Georgia. Third, they say they had insufficient notice of Aiello's testimony. We consider each claim in turn.

A

Since Aiello's testimony amounts to evidence of a prior bad act, it "is not admissible to prove the character of a person in order to show action 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." Fed.R.Evid. 404(b). The trial court must consider whether the evidence has any "special" purpose other than to show the defendant's bad character or his propensity to commit the crime. Then it must weigh any such probative value against the prejudicial risk that the jury will convict the defendant simply in order to punish him for his past crime or will assume that a past criminal is a bad person likely to strike again. See United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982). The law commits this balancing process in the first instance to the trial court, which is more directly familiar than a court of appeals with the need for the evidence and its likely effect on the jury. See United States v. Rivera Rodriguez, 808 F.2d 886, 888 (1st Cir.1986); United States v. Fosher, 568 F.2d 207, 212-13 (1st Cir.1978).

Appellants say that the Broxton incident's probative value depended upon an impermissible inference, namely that, because appellants smuggled drugs before, they would likely do so again. In our view, however, the jury might have made use of the evidence without drawing this inference. For one thing, the jury had to decide which of three persons aboard the helicopter (Lau, the old man, and/or the man in the wheelchair) likely smuggled the cocaine. The jury might have noted similarities between the August 9 incident and the Broxton incident. These included (1) the presence of a large amount of cocaine; (2) Lau's acting as pilot; and (3) Taylor's being present to receive the cocaine. In addition, although there is no evidence in the transcript about the shape of the cocaine packets seized in San Juan, samples of those packets were before the jury, and the prosecutor implied in closing argument that they, like the packets Aiello saw in Georgia, were football shaped. (Tr. 633.) These similarities might have helped the jury to infer that the persons who smuggled cocaine into San Juan were the same as those who smuggled cocaine into Broxton.

For another thing (and more importantly), the jury had to conclude that Lau and Taylor were not the innocent dupes of a calculating smuggler who hired them, without their knowledge, to ferry him and his drug shipment into the States and who then, somehow, convinced Lau to lie to a St. Croix customs officer. The fact that Lau and Taylor were knowledgeable about cocaine, that they probably knew first hand what it weighed and had some sense of how it was smuggled, suggests that Lau (like Maestrales) might have become suspicious (if he in fact were innocent) after he was asked to take several heavy suitcases on his helicopter and to make false statements to the St. Croix customs officer. A "knowledgeable" Lau's apparent lack of suspicion makes an innocent explanation of his actions (and hence of his partner Taylor's actions) less plausible. Similarly, Lau's and Taylor's prior contact with cocaine suggests that they knew what Maestrales was concerned about from the time he first voiced his suspicions; and this fact, in turn, makes a totally naive explanation of Lau's and Taylor's subsequent actions less plausible. To refute such innocent or naive explanations of the appellants' behavior does not automatically prove appellants' guilt, but it helps draw tighter the circumstantial net convicting them.

We need not decide whether either of these two sets of inferences, standing alone, would justify the admission of this prior bad act evidence. Cf. United States v. Pisari, 636 F.2d 855, 858-59 (1st Cir.1981) (holding that evidence...