U.S. v. Cardenas, 88-4041

• Decision Date: 08 March 1990
• Docket Number: No. 88-4041,88-4041
• Parties: 29 Fed. R. Evid. Serv. 1123 UNITED STATES of America, Plaintiff-Appellee, v. Juan Andres CARDENAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1338

895 F.2d 1338

29 Fed. R. Evid. Serv. 1123

UNITED STATES of America, Plaintiff-Appellee, v. Juan Andres CARDENAS, Defendant-Appellant.

No. 88-4041.

United States Court of Appeals, Eleventh Circuit.

March 8, 1990.

Rene A. Sotorrio, Miami, Fla., Jack Ross, Gainesville, Fla., for defendant-appellant.

Lyndia P. Barrett, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.

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

Before FAY and EDMONDSON, Circuit Judges, and YOUNG ^*, Senior District Judge.

FAY, Circuit Judge:

Appellant Cardenas was convicted of conspiring to possess with intent to distribute more than 500 grams of cocaine and of possessing with intent to distribute more than 500 grams of cocaine. Cardenas appeals his conviction claiming that the trial judge committed reversible error in admitting into evidence the testimony of two government witnesses who described appellant's prior use and distribution of cocaine. We hold that the testimony was admissible under Federal Rule of Evidence 404(b) to prove intent and under Federal Rule of Evidence 608(b) to contradict the material testimony of Cardenas. Accordingly we AFFIRM appellant's conviction.

I. BACKGROUND

In November 1986, the Drug Enforcement Administration (DEA) began investigating narcotics transactions taking place in Gainesville, Florida. The DEA received information that an individual named Terry Lee Brown was dealing cocaine in Gainesville and set up a deal between an undercover agent and Brown for the sale of one kilogram of cocaine.

On November 19, 1986, the undercover agent showed Brown that he possessed the money to buy the cocaine. After seeing the money, Brown contacted his supplier, Martinez, to verify that the cocaine was available. Martinez then contacted his supplier, who was located in Miami, Florida. Martinez's supplier informed him that the cocaine was being delivered by a courier and was on its way to Gainesville. Martinez was to pick up the cocaine from the courier's hotel room.

The transaction took place late in the afternoon of November 19, 1986. The DEA agent met Brown and Martinez in a parking lot. Brown and Martinez brought the cocaine, but the DEA agent had stuffed shredded paper, instead of money, in a bag. After exchanging the bag for the cocaine, DEA agents arrested Brown. After fleeing the scene, and crashing his motorcycle into a DEA vehicle, Martinez was also arrested.

Subsequent to the arrest of Martinez and Brown, DEA agents checked hotel records to find the courier. Hotel records indicated that George Quintero was the only person who checked in during the time in question. A DEA agent called Quintero informing him that Martinez had been arrested, but that he knew where the money was located. The agent arranged for a meeting with Quintero. Quintero obliged, and agents arrested him when he arrived.

Quintero cooperated with the authorities in the investigation and revealed that the source of the cocaine in Miami was Juan Andres Cardenas. Quintero informed the DEA that Cardenas delivered the cocaine to him at a health club on November 18, 1986 and instructed him to transport the cocaine to Gainesville. Cardenas further directed Quintero to call him at a beeper number upon arriving in Gainesville. It was later discovered that the beeper number which Quintero called was the same number that Cardenas indicated was his home phone number on an application for membership in the health club. At trial, Quintero identified defendant as the Cardenas who provided him the cocaine to deliver.

Cardenas, on his way from Venezuela to California, was arrested in San Juan, Puerto Rico on March 25, 1988, after a computer check revealed that there was a federal warrant for his arrest. Cardenas had been indicted for conspiracy to possess with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. Secs. 846 & 841(a)(1) (1982) and with possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1982) and 18 U.S.C. Sec. 2 (1982). Cardenas pleaded not guilty and was convicted by a jury of both counts.

II. DISCUSSION

The sole issue Cardenas raises on appeal is whether the trial court abused its discretion in admitting testimony which implicated Cardenas in prior drug dealings and prior drug usage. Cardenas contends that testimony from two of the government's witnesses, George Quintero and Thomas Moore, should have been excluded.

In the government's case-in-chief, the prosecutor introduced Quintero as a witness and asked Quintero whether he had used drugs with Cardenas. R4-115. Quintero responded affirmatively and counsel for defendant objected and moved for a mistrial on the ground that the testimony about prior drug use was irrelevant and moved for a mistrial. R4-115-16. The government responded that the testimony was admissible under Rule 404(b) to prove that Cardenas had knowledge of cocaine and intent to possess it. R4-116. The judge ruled in favor of the government on both the objection and the motion for a mistrial. R4-116.

Regarding the testimony of Thomas Moore, counsel for Cardenas filed a motion in limine before trial to preclude Moore from testifying about his drug dealings with Cardenas. The trial judge heard extensive arguments from both sides and withheld ruling on the admissibility of Moore's testimony until a proffer was made. After hearing the substance of Moore's testimony out of the presence of the jury, and after hearing more arguments, the trial judge ruled the testimony admissible under Rule 404(b). Accordingly, over vehement and recurring objections from defense counsel, the prosecutor elicited Moore's testimony regarding defendant's using and trafficking drugs:

Q. Did there come a time when you saw Mr. Cardenas in possession of cocaine?

A. Yes.

....

Q. Did there come a time when you bought cocaine from Cardenas?

A. Yes.

Q. Tell the jury about that? How many times?

Mr. Sotorrio: Objection.

The Court: Overruled.

A. When Juan Andres moved in with me, I was in a drug--it was an outpatient drug rehabilitation program and I was trying to get off cocaine.

Once I realized that he did have the drugs, it was very hard for me to resist going to him and saying, you know, can I buy a jig from you.

It was shortly after that, I don't know, days or a week or whatever it was, I began at that time buying coke in small amounts from him, what we call one G's, or a gram.

And at that time, I was buying more and more.

....

Q. During the time that Cardenas lived with you, you were buying all of your cocaine from him?

A. At that time, yes.

Q. And how long did he live with you?

A. Two and a half or three and a half months. I'm not sure of the dates when he moved in or he moved out.

Q. Over that time period that he lived with you, how much money did you pay him for cocaine?

A. I would say, it would be a fair guess to say that I probably spent somewhere from three to $5,000.

Some of that was traded for rent for the use of the cocaine.

Q. Did you ever see him distribute cocaine to anyone else?

A. Yes.

R5-368-72.

After Moore testified, the court gave a limiting instruction to the jury. The judge admonished the jury not to use the evidence of Cardenas' prior drug dealings as evidence that he committed the charged offense, but rather to use Moore's testimony in determining whether Cardenas had the requisite intent and knowledge to commit the crime. R6-399-400. At the close of all the evidence, the judge again charged the jury that the testimony regarding prior drug involvement was not to be considered as proof that Cardenas committed the charged offense. R7-700-01.

Appellant urges this court to reverse his conviction on the ground that the trial judge committed substantial and prejudicial error in admitting, under Rule 404(b), the testimony of Quintero and Moore. Appellant argues that the testimony was inadmissible because the sole issue for consideration by the jury was identity, and the prior acts about which Moore and Quintero testified were too remote and dissimilar to render the evidence admissible to show identity under Rule 404(b).

A. Admissibility Pursuant to Fed.R.Evid. 404(b)

Appellant's argument that the extrinsic acts were inadmissible rests primarily on his contention that knowledge and intent were not at issue in the case, and that the sole issue was the identity of the culprit. ¹ If this contention is correct, the government would be required to show that Cardenas' prior act was so similar to the charged offense as to mark it as the handiwork of the accused. United States v. Myers, 550 F.2d 1036, 1045-46 (5th Cir.1977), cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978). ² "A much greater degree of similarity between the charged crime and the uncharged crime is required when the evidence of the other crime is introduced to prove identity than when it is introduced to prove a state of mind." Id. at 1045.

However, appellant's characterization of this case as one dealing only with the issue of identity is mistaken. One factor to consider in determining whether the evidence of prior acts is admissible to prove intent is whether it appeared at the commencement of trial that intent would be a contested issue. United States v. Mitchell, 666 F.2d 1385 (11th Cir.), cert. denied, 457 U.S. 1124, 102 S.Ct. 2943, 73 L.Ed.2d 1340 (1982); United States v. Beechum, 582 F.2d 898, 915-16 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). In this case, defendant's counsel did nothing before trial to indicate that the government would be relieved of proving intent if it was established that defendant was the same Cardenas who was involved in the Gainesville drug transaction. In fact, the prosecutor stated that she anticipated Cardenas would deny his intent to be involved in the charged offense. R4-8. ³ Consequently, in preparing its case for trial, the...