U.S. v. Arias-Montoya

• Decision Date: 06 April 1992
• Docket Number: ARIAS-MONTOY,No. 91-1908,D,91-1908
• Citation: 967 F.2d 708
• Parties: 35 Fed. R. Evid. Serv. 1276 UNITED STATES of America, Appellee, v. Victorefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 708

967 F.2d 708

35 Fed. R. Evid. Serv. 1276

UNITED STATES of America, Appellee, v. Victor ARIAS-MONTOYA, Defendant, Appellant.

No. 91-1908.

United States Court of Appeals, First Circuit.

Heard April 6, 1992.

Decided June 23, 1992.

William J. Murphy, Providence, R.I., for defendant, appellant.

Zechariah Chafee, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for appellee.

Before CYR, Circuit Judge, COFFIN and CAMPBELL, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

Victor Arias-Montoya appeals his conviction for knowingly and intentionally possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). We find that the district court erred in admitting into evidence defendant's prior conviction for cocaine possession, but that the error was harmless. We therefore affirm.

I.

The facts as the jury could have found them are as follows.

On February 12, 1991 at about 11:30 p.m., two Rhode Island State Troopers manned a radar post monitoring the speed of traffic moving north on Route 95 in Richmond, Rhode Island. Their radar detected defendant's car moving at sixty-six miles per hour in a fifty mile per hour zone. The troopers gave chase and stopped the car. Defendant was at the wheel. No one else was in the car.

In response to questioning by one of the troopers, defendant said that he had left his driver's license in his wallet at home. He wrote out his name, address and date of birth for the officers, giving a false name and a Virginia address. He informed the officers that the car belonged to a friend who lived in New York and provided them with car registration papers to this effect.

The police officers returned to their car and requested a radio check for a license in either Virginia or New York. They were told that there was none in either state under the name and date of birth given by defendant.

His suspicions aroused, one of the officers asked defendant if he could search the car. Defendant consented to the search both orally and in writing. In a cavity in the trunk of the car the officers found a kilogram of cocaine taped and wrapped in plastic bags. When the officers tried to arrest defendant, he attempted to escape and a scuffle ensued. Eventually defendant was handcuffed and arrested. Later, during an inventory search of defendant's car at the State Police barracks, one of the officers discovered an electronic beeper and a cellular telephone on the front seat and floor of the car.

Arias-Montoya's defense at trial was that he did not know the cocaine was in the trunk of the car. He claimed to have borrowed the car from a friend to drive from New York to Rhode Island to visit another friend for the day. Defendant could not give the last name of either the friend from whom he had borrowed the car or the one he intended to visit in Rhode Island. ¹

To rebut defendant's "no knowledge" defense, the prosecution introduced into evidence Arias-Montoya's 1983 conviction for cocaine possession. ² The district court instructed the jury on the limited purpose for which this evidence could be considered. The jury returned a guilty verdict, and defendant was sentenced to a prison term of ten years.

II.

Defendant claims that the district court committed error in admitting his prior conviction into evidence. After careful review of the record and the relevant precedent, we must agree.

It is well established that, under Fed.R.Evid. 404(b), evidence of prior bad acts is not admissible to show bad character or propensity to commit a crime, but may be admitted to prove, among other things, intent or knowledge. ³ United States v. Simon, 842 F.2d 552, 553 (1st Cir.1988). While logically relevant, "propensity" or "bad character" evidence is deemed to carry an unacceptable risk that the jury will convict the defendant for crimes other than those charged. United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982); United States v. Rubio-Estrada, 857 F.2d 845, 846 (1st Cir.1988). Such evidence therefore is inadmissible as a general rule. Where, however, it has some "special," non-character-based relevance--relating to intent or knowledge, for example--it may be admitted. Moccia, 681 F.2d at 63; Rubio-Estrada, 857 F.2d at 846-47.

This circuit has established a two-step test for determining the admissibility of bad act evidence. Such evidence first must overcome the "absolute bar" of Fed.R.Evid. 404(b), which excludes evidence of a past bad act where it is relevant "only because it shows bad character...." United States v. Ferrer-Cruz, 899 F.2d 135, 137 (1st Cir.1990). Second, the evidence must survive scrutiny under Fed.R.Evid. 403, which bars evidence whose probative value is "substantially outweighed" by the risk of prejudice, confusion, or waste of time. Id. at 138.

Initially, the district court ruled the evidence inadmissible. Subsequently, however, it reversed itself, concluding that Arias-Montoya's past conviction for cocaine possession survived both of these tests. In so ruling, the court relied on what it considered controlling precedent from this circuit. We believe that the district court's first instinct was correct. Indeed, a contrary holding, we think, would drain the first sentence of Rule 404(b) of any force at all.

No "Special" Relevance

On this record, we fail to see how defendant's conviction for possessing twenty-eight grams of cocaine in Texas nearly ten years ago has any "special" relevance to his knowledge of the contents of the trunk of the car he was driving in February, 1991. To be sure, we have often deemed prior drug-related bad acts admissible to negate a "no knowledge" defense on a subsequent drug charge. As the following survey of our holdings makes clear, however, we have only done so where the evidence at issue supported at least one permissible (i.e., non-character-based) inference concerning the defendant's state of mind at the time of the charged offense.

In United States v. Ferrer-Cruz, 899 F.2d 135 (1st Cir.1990), for example, the defendant was observed driving a car to a corner where he met codefendants. Defendant exited the car and drove away in a pickup truck. Codefendants drove the car to a shopping center and consummated a drug sale to government agents. At the shopping center, the agents found two bags containing cocaine on the floor of the car next to the driver's seat where defendant had been sitting. Defendant and codefendants were charged with possessing (with intent to distribute) cocaine.

At trial defendant argued, among other things, that he was unaware of the cocaine when he turned the car over to codefendants. To negate this defense, the district court admitted into evidence defendant's two three-year-old convictions for possessing (with intent to distribute) marijuana and cocaine. This court sustained that decision. We reasoned that "[s]ince one who has previous experience with drugs is more likely.... to recognize (and hence to know) that the bags' contents were drugs than one without such experience, the inferences at issue do not involve character," id. at 138. "[T]he fact that a juror might also make other inferences that do involve character is beside the point as far as Rule 404's absolute ban is concerned." Id. The evidence will "survive[ ] an absolute ban as long as at least one permissible inference is possible." Id.

We applied the same reasoning in United States v. Simon, 842 F.2d 552 (1st Cir.1988). There, federal customs officers discovered a box containing fifty-five pounds of marijuana on a plane bound from Jamaica to Antigua (via San Juan, Puerto Rico). On the outside of the box was an airline address sticker with defendant's name and Antigua address on it. Also written on the box was the name of a university professor. Neither defendant nor the professor was on the plane carrying the box. Defendant arrived in San Juan on the same flight on the next day and was arrested for various drug offenses by the customs agents. He admitted to having checked the box onto the plane in Jamaica the day before, but claimed that he did not know it contained marijuana. According to the defendant, he had been asked to check the fifty-five pound box as a favor to another passenger (the university professor) who told him the box contained books.

To negate defendant's claim of "no knowledge," the prosecution introduced evidence of his conviction, six years earlier, for cultivating marijuana with a friend in Antigua. This court sustained the admissibility of the conviction, finding that it supported at least one non-character or propensity-based inference: one with "a background involving marijuana cultivation," we suggested, "is not likely to believe that a box containing marijuana feels like (or weighs about the same as) a comparatively sized box of books, and therefore would have been more suspicious of the ... [professor's] story (had there been such a ... [person]," Simon, 842 F.2d at 554. ⁴

In United States v. Moccia, 681 F.2d 61 (1st Cir.1982), federal agents found illegal drugs, including marijuana, under a chicken coop in a barn and under some dog food in a freezer room of the farmhouse where defendant lived with his wife (the owner). At trial, defendant claimed not to have known of the drugs' presence. By introducing evidence of defendant's prior conviction for marijuana possession, the government sought to have the jury infer that "one who lives on a farm with marijuana in the freezer room and under the chicken coop and has a prior possession conviction is more likely to know about the presence of marijuana than one who lives on such a farm and does not have a past possession conviction." Id. at 63.

We affirmed the admission of this evidence, finding it possessed "special," non-character-based relevance. The jury might have concluded, we suggested, that those who use and keep marijuana nearby are more likely to talk freely about it in front of one with a prior...