U.S. v. Rubio-Estrada

• Decision Date: 05 April 1988
• Docket Number: RUBIO-ESTRAD,No. 87-1556,D,87-1556
• Citation: 857 F.2d 845
• Parties: 26 Fed. R. Evid. Serv. 1229 UNITED STATES of America, Appellee, v. Alejandroefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 845

857 F.2d 845

26 Fed. R. Evid. Serv. 1229

UNITED STATES of America, Appellee, v. Alejandro RUBIO-ESTRADA, Defendant, Appellant.

No. 87-1556.

United States Court of Appeals, First Circuit.

Heard April 5, 1988.

Decided Sept. 15, 1988.

David N. Cicilline with whom John F. Cicilline, Providence, R.I., was on brief, for defendant, appellant.

James H. Leavey, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for appellee.

Before BOWNES, BREYER and TORRUELLA, Circuit Judges.

BREYER, Circuit Judge.

On December 19, 1986, a group of federal and state law enforcement officers, with a search warrant, entered the house of the appellant, Alejandro Rubio-Estrada. The appellant, his son, a friend, a baby-sitter, and her son, all were present. The officers searched the house thoroughly. They found, among other things, 37 blank Social Security cards, a tax return, a ledger recording (according to the government's expert testimony) multi-thousand dollar transactions, an electronic scale, considerable cash, white powder (that was not cocaine), and two glassine envelopes containing 125 grams of cocaine. A federal jury subsequently convicted the appellant of possessing cocaine with intent to distribute it. 21 U.S.C. Sec. 841(a)(1) (1982). After examining the record, we find no legal error, and we affirm the conviction.

1. Appellant's most serious claim--one that divides this panel--concerns the district court's decision to allow the government to introduce into evidence appellant's prior conviction for possessing cocaine with intent to distribute it, and for aiding and abetting similar possession by others. The convicting court had sentenced appellant to a term of three years in prison and three years on special parole. The parole term of that prior conviction had ended 26 days before the crime here at issue.

Appellant argues that the district court's decision to admit this prior conviction was legally erroneous. Fed.R.Evid. 403, 404(b). We believe, however, that this is a fairly typical instance in which current law, as embodied in the Federal Rules of Evidence and numerous precedents interpreting those rules, gives the district court, not this court, the power to decide whether or not to admit a prior conviction.

a. The Federal Rules of Evidence recognize that a strong argument can be made for admitting, say, a prior crime as evidence when it shows "bad character." That argument consists of the well-accepted fact that "bad character" has probative value. They also recognize the strong arguments against admitting such evidence. See dissent pp. 851-52. The result is a compromise. Where the past bad act is relevant only because it shows bad character (i.e., the proposed logical inference includes character as a necessary link), Rule 404 automatically excludes the evidence. But, if that evidence is also relevant in any way that does not involve character, the evidence is not automatically excluded. 2 J. Weinstein & M. Berger, Weinstein's Evidence Sec. 404 (1986 & Supp.1988) (hereinafter referred to as "Weinstein & Berger"). Indeed, it will be admitted unless the trial court determines that its probative value is "substantially outweighed" by the risks of prejudice, confusion, or waste of time. Fed.R.Evid. 403; 1 Weinstein & Berger p 403--.

b. The evidence here is admissible to show "knowledge" and "intent," both controverted issues in the case that are not based on "bad character." The government's witnesses testified, in relevant part, to the following: Police, with a search warrant, entered the defendant's house, where he was present with family members and friends. They found, in a walk-in closet under steps leading to the basement, behind some men's and women's clothing, a box surrounded by white powder. (An expert later testified that those selling cocaine often "dilute" or "cut" pure cocaine "with a material such as inositol, lactose, or lidocaine which are white powders", "similar in appearance to cocaine.") The box contained more of the powder and an electronic scale, of a kind that, according to the expert's testimony, is often used to weigh cocaine when it is sold. Against the closet wall, the police found another box with the word "cash" on it that contained a ledger book, which the expert testified contained accounts of transactions that appeared to be drug sales. After a further search, the police found, hidden in the rafters at the top of the closet, two plastic bags containing cocaine. They also found, elsewhere in the house, substantial amounts of cash. One police officer testified that the defendant, when confronted with the bags of cocaine, said "I know what it is, it will come back [from the testing laboratory] positive."

During, and just after, the government's presentation of its case, defendant's counsel, through cross-examination and comment, made clear that a major part of the defense would consist of a claim that the defendant lacked knowledge of the presence of cocaine or intent to commit the crime (which makes it unlawful to "possess [cocaine] with intent to distribute ..." 21 U.S.C. Sec. 841(a)(2) (1982)). Counsel said that "there is no real showing here ... that this defendant knew that that substance was concealed up under his stairs." (Tr. 119). He suggested that the defendant had used the scales to weigh gold. He suggested that the handwriting in the ledger books was not that of defendant, and that the defendant thought the books were used to keep track of automobile sales and loan payments in Peruvian "soles" or "inti." He indicated at one point that the searching agent's report of defendant's apparent recognition of the cocaine was inadmissible or inaccurate. He moved (after the government presented its case) for a judgment of acquittal under Fed.R.Crim.P. 29 on the ground that "there's no evidence to show that this defendant knew that that cocaine was in fact on those premises." (Tr. 165). Moreover, when the court was considering admitting the prior conviction and it asked counsel whether he would "concede" knowledge and intent, counsel replied "certainly not," and went on to say that "by telling this jury that [defendant] has a prior conviction ... and because he has a prior conviction, he would certainly know that it [the cocaine] was there." (Tr. 119). The defendant repeatedly denied knowledge that cocaine was in the house.

The obvious non-character-based inferences to which the prior conviction is relevant concern knowledge and intent, the points argued in detail to the judge. The judge specified that he was admitting the evidence only in respect to knowledge and intent. That it was so relevant seemed fairly obvious to the district court, as it is to us, though, given the dissent, we shall spell out in detail non-character-based, knowledge-related inferences. For example, a person previously convicted of cocaine distribution is more likely than one not so convicted to know that electronic scales are used to measure cocaine for sale; such a person is more likely to know that ledger books of a certain sort are used for drug sales, not car sales in Peruvian "soles" or "inti;" such a person is more likely to think that a white powder around the scales might be a substance used to cut cocaine before it is sold. And, a person who knew such drug-related items are used to help sell drugs (which he denies knowing about), is more likely to have known about, and intended to distribute, the drugs, than a person who does not know these drug-related items are used to help sell drugs. In addition, such a person is more likely than one not previously involved in cocaine distribution to know how to use electronic scales to measure cocaine, to keep drug ledgers, etc. And, a person who knows how to perform a fairly technical operation, such as "cutting cocaine" or "keeping drug ledgers" is more likely to have been involved in performing those operations than one who does not know how to do so (just as one who knows how to fly a plane is more likely to have been piloting an airplane than the average person who does not know how to fly an airplane). Further, a person previously involved in cocaine distribution, entering the downstairs closet to find his clothes (as the jury might have thought this defendant sometimes did), noticing the white powder, scales, and box saying "cash" (as the jury might have thought sometimes happened here) is more likely than one not previously involved to think that some kind of cocaine distribution operation is taking place in his house.

Each of these inferences is a reasonable one that a fact-finder might make here in finding evidence relevant, whether or not it offers proof beyond a reasonable doubt. Any one of these sets of inferences makes it logically somewhat more likely that defendant did know about the cocaine in his house and did intend to distribute it than one who did not have a prior conviction--or so the jury might reasonably believe. Any one of these inferences is sufficient to remove the evidence of prior conviction from the automatic bar of Rule 404. Taken together, these possible inferences make it reasonable for the court to determine, in the context of this case, that the prejudicial effect of this evidence does not "substantially outweigh" its probative value, and for the court to admit it under Rule 403.

c. The authority supporting admission of evidence of a past bad act, under circumstances such as those present here, is legion. Rule 404 itself says such evidence is "admissible for other [than character] purposes, such as proof of ... intent, ... [and] knowledge." The inferences here at issue do not differ significantly from those recently considered by the Supreme Court in Huddleston v. United States, --- U.S. ----, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), where evidence of a defendant's previous receipt of goods likely stolen was introduced to show that his later possession of stolen goods...