U.S. v. Diaz, 91-30165

Citation961 F.2d 1417
Decision Date15 April 1992
Docket NumberNo. 91-30165,91-30165
Parties35 Fed. R. Evid. Serv. 491 UNITED STATES of America, Plaintiff-Appellee, v. Louis Juan DIAZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Mildred J. Carmack and John R. Faust, Jr., Schwabe, Williamson & Wyatt, Portland, Or., for defendant-appellant.

Jennifer J. Martin, Sp. Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: HALL, O'SCANNLAIN, and LEAVY, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Appellant Louis Diaz appeals his jury conviction for possession with intent to distribute more than 500 grams of cocaine pursuant to 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii)(II). We affirm.

I

On April 5, 1990, Diaz and undercover officer Kim Lowe discussed the purchase of one kilogram of cocaine. Diaz and Lowe agreed to meet on June 15, 1990, to complete the transaction. At 5:15 p.m. on June 15, 1990, Lowe met Diaz in the parking lot of a Chinese restaurant across the street from a storage facility. Diaz told Lowe that "his people" were late. He left and returned half an hour later. Diaz gave Lowe $2,000 in cash and told her that he would procure the remaining $8,000 from his associates. He left once more and returned to the parking lot at 6:15 p.m. The two then drove across the street in Diaz's van to the storage facility. Diaz's eight year old son was also in the van with him.

Diaz told his son to get out of the van while he talked to Lowe. According to Lowe, Diaz then counted out several thousand dollars and gave the money to Lowe. Lowe put the cash away and handed a kilogram of cocaine to Diaz. Diaz cut the wrapper to look at the cocaine, placed it in a bag, and put it under the driver's seat of his van. Lowe then signalled a waiting team of agents. Diaz was subsequently arrested by members of the Clackamas County Sheriff's Office and the Regional Organized Crime and Narcotics Task Force ("ROCN").

After the arrest, Diaz was interrogated by Detective Roberts of the Clackamas County Sheriff's office and Deputy Spang of the Washington County Sheriff's office. According to Detective Roberts and Deputy Spang, Diaz admitted that he was in the process of buying a kilogram of cocaine from Lowe. He also admitted giving Lowe his Corvette, stereo, and television as collateral for the unpaid balance of the cocaine.

During trial, however, Diaz testified that he told Deputy Lowe that he would not complete the transaction, and that the transaction was, in fact, not completed. Diaz was found guilty of possessing more than 500 grams of cocaine with intent to distribute in violation 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii)(II).

II

Diaz first argues that the government improperly commented, during closing argument, on Diaz's post-arrest silence. We review for an abuse of discretion the district court's decision to permit comments made in closing argument after objection. United States v. Makhlouta, 790 F.2d 1400, 1403 (9th Cir.1986) (citing United States v. Patel, 762 F.2d 784, 794 (9th Cir.1985)). Diaz objects to the following comments:

[A]ssuming in the middle of this Mr. Diaz in fact told Deputy Lowe, "No, no, I can't go through with this. No, No I've had a change of heart, I can't go through with this. Take your cocaine and go away. I'm not going to give you any money," why did he tell the police--that's not what he told the police when he was arrested. That's not the statement he gave when he was arrested. If ... that's what happened, why didn't he say that to the police?

Diaz argues that these comments were designed to have the jury draw impermissible inferences from his silence.

The Supreme Court in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), held that the use for impeachment purposes of a defendant's silence at the time of arrest and after Miranda warnings violates the Due Process Clause. Id. at 619, 96 S.Ct. at 2245; see also United States v. Lopez, 575 F.2d 681, 685 (9th Cir.1978) (prosecutor's statement in closing argument referring to a defendant's silence at the time of arrest and after receiving Miranda warnings constituted plain error).

The Court, however, has distinguished Doyle in cases where the prosecution's use of post-arrest silence "merely inquires into prior inconsistent statements." Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222 (1980). Thus, we held in United States v. Ochoa-Sanchez, 676 F.2d 1283 (9th Cir.), cert. denied, 459 U.S. 911, 103 S.Ct. 219, 74 L.Ed.2d 174 (1982):

When the defendant offers testimony at trial that differs from his post-arrest statement, he raises a question of credibility. The jury must determine whether to believe the version of events to which the defendant testifies at trial or the version he revealed to the police when arrested. In such a situation, the jury is entitled to all the relevant evidence bearing on credibility. The prosecutor, to provide this evidence, may probe all post- arrest statements and the surrounding circumstances under which they were made, including defendant's failure to provide critical details.

Id. at 1286. A defendant's post-arrest statements need only be arguably inconsistent with the defendant's trial testimony in order to justify comment by the prosecution upon the discrepancy. Makhlouta, 790 F.2d at 1404. Because Diaz's post-arrest statement that he was buying a kilogram of cocaine is arguably inconsistent with his trial testimony that he did not complete the transaction, the closing argument comment was proper.

III

Diaz next argues that the district court improperly excluded testimony from two character witnesses. We subject the district court's construction of the Federal Rules of Evidence to de novo review. United States v. Sanchez-Robles, 927 F.2d 1070, 1077 (9th Cir.1991).

During direct examination of Gary Lawson, Diaz's pastor, the district court sustained the government's objection to a question inquiring into Diaz's "character traits for being prone to criminal activity or conduct." The district court also sustained the government's objection to a question posed to Diaz's mother, Manuela Paganelli. Diaz's mother was asked about Diaz's "character trait for being prone to large-scale drug dealing." Diaz argues that the district court erred in sustaining these objections because character evidence offered by the defendant as to whether he is prone to criminal activity was admissible pursuant to Federal Rule of Evidence 404(a)(1). 1 In order to determine the admissibility of the excluded character evidence under Rule 404(a)(1), we must decide if the propensity to engage in criminal conduct and the propensity to engage in large scale drug dealing are pertinent character traits. We deal with each asserted character trait in turn.

The government errs in asserting that "being prone to criminal conduct" is not an "actual" character trait but is, instead, a conclusion drawn from other specific character traits such as honesty, gullibility, and reliability. The Supreme Court in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), held that a defendant may introduce favorable testimony concerning "the general estimate of his character." Id. at 476, 69 S.Ct. at 218. The First and Fifth Circuits have held further that character traits admissible under Rule 404(a)(1) need not constitute specific traits of character but may include general traits such as "lawfulness" and "law-abidingness." United States v. Angelini, 678 F.2d 380, 382 (1st Cir.1982); United States v. Hewitt, 634 F.2d 277, 279 (5th Cir.1981).

We find that Diaz's proneness to criminal activity is an admissible character trait encompassed under Angelini's general definition of "law-abidingness." Though the word "law-abiding" was not used, Diaz's question concerning proneness to criminal activity was intended to elicit information concerning Diaz's "law-abidingness." The inquiry as to whether Diaz is prone to commit criminal activity is simply the converse of an inquiry into whether Diaz is a law-abiding individual. The two inquiries elicit the same information. A defendant's propensity to commit crimes is an admissible character trait.

A defendant's propensity to engage in large scale drug dealing, however, is not an admissible character trait. Proneness to large scale drug...

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