U.S. v. Rodriguez-Cardona

• Decision Date: 06 November 1990
• Docket Number: Nos. 89-1611,RODRIGUEZ-CARDONA,89-1613,s. 89-1611
• Parties: 32 Fed. R. Evid. Serv. 241 UNITED STATES of America, Appellee, v. Osvaldo, a/k/a "Valdo" Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1148

924 F.2d 1148

32 Fed. R. Evid. Serv. 241

UNITED STATES of America, Appellee, v. Osvaldo RODRIGUEZ-CARDONA, a/k/a "Valdo" Defendant, Appellant.

Nos. 89-1611, 89-1613.

United States Court of Appeals, First Circuit.

Heard Nov. 6, 1990.

Decided Jan. 23, 1991.

R. Marc Kantrowitz, with whom Kevin Connelly, Boston, Mass. and Guillermo J. Godreau, Salinas, P.R., were on brief, for defendant, appellant.

Thomas M. Gannon, Attorney, Appellate Section, Crim. Div., Dept. of Justice, Washington, D.C., with whom Daniel F. Lopez-Romo, U.S. Atty. and Salixto Medina-Malave, Asst. U.S. Atty., Hato Rey, P.R., were on brief, for appellee.

Before CAMPBELL, TORRUELLA and CYR, Circuit Judges.

TORRUELLA, Circuit Judge.

Appellant Osvaldo Rodriguez-Cardona brings an appeal from two separate criminal proceedings. Following a jury trial, Rodriguez was convicted of four counts of possessing cocaine with intent to distribute it, and four counts of distributing cocaine. He appeals several aspects of that conviction: (1) evidentiary rulings dealing with evidence of other wrongdoing; (2) prosecutorial misconduct during closing argument; (3) the sentence imposed by the district court; (4) denial of his motion for change of venue due to pre-trial publicity; (5) double jeopardy violation from the separate charges of possession with intent to distribute and distribution; (6) ineffective assistance of counsel; and (7) jury instructions on reasonable doubt. Separately, Rodriguez pled guilty to one count of conspiracy to possess with intent to distribute cocaine. He appeals the sentence imposed by the district court on that count. We affirm both convictions and sentences.

I. BACKGROUND

The jury trial arose from an FBI probe of several unsolved murders allegedly involving a gang known as the Martinez-Torres brothers. During the investigation, agents recruited an informant by the name of Angel Santiago- Rodriguez. Santiago agreed to buy narcotics from the appellant under the supervision of the agents and to wear a body recorder during these transactions.

Pursuant to this plan, cocaine transactions were arranged and carried out. Before each buy, FBI agents provided Santiago with cash, wired him with a recorder, and established surveillance. Santiago then met with appellant, at appellant's restaurant or at his house nearby, and purchased varying amounts of cocaine. After each buy, the agents retrieved the tape recordings and the purchased cocaine. Both before and after each meeting the agents searched Santiago, his vehicle, and his companions to ensure that he had no narcotics in his possession other than those purchased from appellant. After four such transactions, FBI agents arrested appellant and executed a search at his house pursuant to a warrant. The search uncovered a triple beam scale and plastic sandwich bags, items frequently used by drug traffickers. Subsequent chemical analysis identified a residue on the scale as cocaine.

At trial, the government introduced the actual tape recordings made of each of the four transactions. The jury also heard testimony from the informant, FBI agents, an FBI fingerprint specialist and a DEA chemist. The defense introduced the testimony of several employees and suppliers of appellant's restaurant business.

Appellant's guilty plea stemmed from a seven-count indictment against appellant and several co-defendants for possession and conspiracy. Upon the entry of appellant's plea of guilty to the conspiracy count, counts two through seven were dismissed.

II. DISCUSSION

A. The Jury Trial

1. The evidentiary rulings

Appellant contends that throughout the trial the judge allowed the jury to hear evidence of other crimes, wrongs or acts that should have been excluded under Rule 404(b), Fed.R.Evid. ¹ This court uses a two-part test to analyze Rule 404(b) evidence. United States v. Oppon, 863 F.2d 141, 146 (1st Cir.1988). First, the trial judge must determine whether the evidence has any "special" probative value; that is, whether it was offered for any purpose other than solely to prove that the appellant had a propensity to commit the crime in question. Id. Second, the judge must decide whether the probative value of the evidence outweighs the danger of unfair prejudice. Id.; see also Fed.R.Evid. 403.

We shall address each piece of evidence separately, and then consider the cumulative effect of the evidence. Following are the specific pieces of testimony to which the appellant objects:

(a) An FBI agent testifying for the government stated that the informant, Santiago, had come to the attention of the FBI during the investigation of several murders in which the Martinez-Torres brothers were thought to be involved, and that Santiago had given detailed statements admitting his own participation in the murders. Defense counsel objected; the court overruled the objection but immediately gave the following caution to the jury: "Let me instruct the jury that in this case the defendant is being tried only on charges set forth in the indictment and nothing else."

Initially, we express our concern that this sort of "context" evidence could easily be misused by placing a defendant in the midst of extensive criminal activity unrelated to the offense charged. Notwithstanding this potential for abuse, however, we find that in this case the evidence plainly served a purpose other than solely to demonstrate appellant's criminal propensity. The prosecution needed to get the damaging evidence about the informant in front of the jury on direct rather than on cross-examination.

[T]he Government on direct examination may bring out information damaging to its witnesses' credibility, including evidence of their criminal records, provided the jury is cautioned that the testimony is not evidence of the defendant's guilt ... This is to prevent the defense from creating a misleading impression, or the jurors from thinking, that the Government is keeping something from the jury.

United States v. Del Purgatorio, 411 F.2d 84, 87 (2d Cir.1969) (citations omitted). Moreover, the testimony did not implicate appellant in the murders and was only tangentially related to appellant. In any event, the judge gave a cautionary instruction. Both facts mitigate any possible prejudice from the testimony. Under these circumstances, admission of the testimony was not error.

(b) Santiago and two FBI agents testified about two meetings with appellant that occurred some four months after the last of the four transactions for which the indictment issued. At both of these encounters Santiago had attempted to purchase more cocaine from appellant, but the transactions were never concluded. Defense counsel objected to the evidence on the ground that it was outside the time frame of the indictment. The judge admitted the evidence as probative of pattern, mode of operation, lack of surprise and mistake, and intent, and found that its prejudicial effect did not outweigh that probative value. The court also gave the following limiting instruction to the jury:

I am admitting this evidence about the attempt to purchase on July 8th, 1988, not to show that, not for the defendant's character or to show that the defendant because this was an attempted sale--not that the defendant did commit the acts charged in the indictment. Only for the purpose to show intent. To show modus operandi. That's the reason why I'm admitting this evidence. The fact that this was done doesn't mean that the defendant in this case acted the way that he acted in that one. That's not the purpose I'm admitting it. Just only to show intent, modus operandi and lack of mistake.

The district court proceeded correctly in applying the Oppon analysis, yet we cannot agree with the conclusion it reached. There is no suggestion in the trial transcript that appellant had raised mistake as a defense, nor was modus operandi an issue. The government argues in its brief that the evidence of subsequent meetings proved that appellant had a "continuing intent to possess cocaine for distribution." We do not see the need for the government to prove "continuing intent." Surely it is sufficient to prove that a defendant had the necessary intent at the time of the offense. Other act evidence, of course, is admissible "when it is probative of an issue other than character even when the defense is a general denial of the charge." Oppon, 863 F.2d at 146. Nevertheless, the probative value of the evidence is strengthened if the issue on which it is offered is specifically disputed. It appears to us that the primary, if not the only, purpose of this evidence was to show propensity. See id. at 147 (other act evidence should be excluded when the character inferences that may be drawn outweigh the probative value of the evidence); see also id. at 149 (Coffin, J., concurring) (care must be used when admitting Rule 404(b) evidence on the issue of intent to ensure that the exception does not swallow the rule).

Despite our concern, we find that the error in admitting this evidence was harmless. The evidence against appellant was overwhelming. His voice was heard on the tape recordings of four cocaine transactions, and the supporting evidence was substantial. For this reason alone we decline to reverse the conviction on this ground.

(c) A tape recording of a conversation between Santiago and appellant was introduced in which references were made to "false money," "bolita," (numbers racketeering), and possibly "Valium." ² The court gave the following instruction:

In that tape recording there was mention of some numbers racketeering, "bolita," and also some mention about some counterfeiting, money. Please bear in mind that the defendant is only being tried in this case with [sic] the counts in the indictment and nothing else. And that's the only counts that defendant is being tried on. And then you should disregard the recordings concerning the "bolita" and the counterfeit money in your consideration of this...