U.S. v. Arias-Santana, ARIAS-SANTAN

• Decision Date: 07 April 1992
• Docket Number: ARIAS-SANTAN,No. 91-1914,D,91-1914
• Citation: 964 F.2d 1262
• Parties: 35 Fed. R. Evid. Serv. 1392 UNITED STATES of America, Appellee, v. Julio Ernestoefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1262

964 F.2d 1262

35 Fed. R. Evid. Serv. 1392

UNITED STATES of America, Appellee, v. Julio Ernesto ARIAS-SANTANA, Defendant, Appellant.

No. 91-1914.

United States Court of Appeals First Circuit.

Heard April 7, 1992.

Decided June 4, 1992.

Ralph J. Perrotta, Washington, D.C., 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 BREYER, Chief Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

Julio Ernesto Arias-Santana appeals his convictions on two counts of distributing cocaine near an elementary school, see 21 U.S.C. §§ 841(a)(1), 860(a), and one count of conspiring to possess cocaine with intent to distribute, see 21 U.S.C. § 846. Appellant challenges several evidentiary rulings and the instructions to the jury. We affirm.

I BACKGROUND

On February 6, 1991, Woonsocket Police Detective Warot, acting undercover, went The next day, the police obtained a warrant to search the apartment. A third officer, Detective McMillan, participated in the execution of the warrant. Shortly after the search party knocked and announced its presence, McMillan heard people running inside the apartment. The officers broke down the heavily reinforced front door with a battering ram and found four persons inside the apartment: a "maintenance man," appellant, appellant's girlfriend, and codefendant Diaz. ¹

                to a second-floor apartment in Woonsocket, Rhode Island.   After admitting Warot to the apartment, appellant and codefendant Leonidas Diaz sold him cocaine.   On the following day, Warot filed a police report containing a detailed physical description of appellant and codefendant Diaz.   On March 14, 1991, another undercover officer, Detective Dubois, engaged in a similar cocaine transaction with appellant and Diaz at the same apartment
                

Within minutes after the occupants were handcuffed and placed face down on the kitchen floor, Detectives Warot and Dubois arrived at the apartment and identified appellant and Diaz as the persons from whom they had purchased cocaine on February 6 and March 14. ² Detectives Warot and Dubois filed reports detailing their March 15 observations and identifications of appellant shortly after his arrest. At appellant's detention hearing on April 1, 1991, Warot testified to his March 15 identification of appellant. Following their five-day jury trial, appellant and Diaz were convicted of conspiring to distribute cocaine and distributing cocaine within 1000 feet of a school.

II DISCUSSION

A. Admissibility of Police Records

The district court allowed Detective Warot to read to the jury the detailed physical description of appellant contained in the February 7 police report filed by Warot following the first undercover drug buy at the apartment on February 6. See Fed.R.Evid. 803(8)(B) (statements by police officers normally constitute inadmissible hearsay in a criminal case). Even though explicit reference was made to the February 7 police report during codefendant Diaz's cross-examination of Warot, which clearly opened the door to the introduction of those portions of the report that described Diaz, appellant contends that it was improper to admit the report against him since he had avoided any mention of the February 7 report in cross-examining Warot. See, e.g., United States v. White, 887 F.2d 267, 270 (D.C.Cir.1989) ("The prosecution may not gain, through the device of a joint trial, admission against one defendant of otherwise inadmissible evidence on the happenstance that the door to admitting the evidence has been opened by a co-defendant").

We review evidentiary rulings for abuse of discretion, see United States v. Abreu, 952 F.2d 1458, 1467 (1st Cir.1992); United States v. Newton, 891 F.2d 944, 946 (1st Cir.1989), but may affirm a district court decision on any ground supported by the record. See United States v. Mendoza-Acevedo, 950 F.2d 1, 3 (1st Cir.1991). As a general rule, police reports are inadmissible in a criminal case when offered by the prosecution. United States v. DePeri, 778 F.2d 963, 976 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 and 476 U.S. 1159, 106 S.Ct. 2277, 90 L.Ed.2d 720 (1986); United States v. Grady, 544 F.2d 598, 604 (2d Cir.1976). Nonetheless, the Federal Rules of Evidence permit a consistent prior statement by a trial witness to be admitted into evidence if "offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive." Fed.R.Evid. 801(d)(1)(B) (emphasis added).

On direct examination, Detective Warot testified that he returned to the apartment on March 15, the day the search warrant was executed, and identified appellant as one of the persons from whom he had purchased cocaine on February 6. On cross-examination by appellant's counsel, Warot testified that appellant, who was placed in a prone position on the kitchen floor immediately after his arrest, was forced to turn his face toward Warot to permit an identification. Warot was then confronted with his purportedly "inconsistent" sworn statement at appellant's detention hearing on April 1, 1991, see Fed.R.Evid. 801(d)(1)(A), which made no mention that Warot had observed appellant's face during the March 15 identification. Later in the trial, while cross-examining Warot, counsel to codefendant Diaz read into evidence a redacted version of the physical description of Diaz contained in Warot's February 7 report. On re-direct examination by the government, Warot read the physical description of appellant contained in the February 7 police report. Appellant's objection to the admission of the February 7 police report was overruled on the ground that "the reports were gone into on cross-examination."

Quite apart from codefendant Diaz's direct use of the February 7 report, appellant's cross-examination independently raised an implied charge of recent fabrication by Detective Warot. In attempting to establish that Warot had not observed appellant's face on March 15, appellant's cross-examination invited the jury to infer that Warot identified and arrested appellant on March 15 merely because appellant happened to be in the apartment at the time of the raid and without regard to whether appellant was the same person from whom Warot bought cocaine at the apartment on February 6. To rebut the implied charge of recent fabrication, the government introduced the earlier physical description contained in Warot's February 7 report, in an effort to demonstrate a physical likeness between the individual from whom Warot bought cocaine on February 6 and the individual arrested on March 15. The challenged evidence ultimately was designed to diminish the likelihood that Warot falsified the identification and description in the March 15 report, since there would have been little need to do so in light of its similarity to the information in the February 7 report. As appellant opened the door, he cannot be heard to complain that the invitation was accepted by the prosecutor.

B. Witness Sequestration Agreement

Appellant contends that the government orally agreed, without the imprimatur of the court, to sequester all witnesses at trial, but violated its agreement when it permitted Detective McMillan to consult with Detective Dubois. According to appellant, Dubois, who had already testified, "coached" McMillan to testify that appellant had turned his face toward Dubois and Warot at the time of their identifications on March 15. Appellant argues that the district court should have permitted a voir dire examination to ascertain the exact terms of the alleged oral sequestration agreement in order to determine an appropriate sanction (the exclusion of the assertedly "collusive" testimony or the declaration of a mistrial) for its violation.

We normally review the denial of a request for the exclusion of evidence, or of a motion for mistrial, under the same "abuse of discretion" standard. See, e.g., Abreu, 952 F.2d at 1467 (evidentiary rulings); United States v. Castiello, 915 F.2d 1, 3 (1st Cir.1990) (mistrial), cert. denied, --- U.S. ----, 111 S.Ct. 787, 112 L.Ed.2d 849 (1991). As appellant inexplicably postponed his request for a voir dire examination and his motion for mistrial until after the district court had denied his motion for judgments of acquittal at the conclusion of the government's case-in-chief, the witness sequestration claim was waived. See, e.g., United States v. Benavente Gomez, 921 F.2d 378, 385-86 n. 5 (1st Cir.1990) (absent a demonstrated justification for delay, claim of error in admission of evidence will be deemed waived, and hence subject to plain error review, where opposition is withheld until all evidence is in); United States v. Rivera-Santiago, 872 F.2d 1073, 1085 (1st Cir.), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989). We therefore review these claims for plain error.

Even in the face of an established violation of a court-ordered witness sequestration order, the sanction determination is committed to the sound discretion of the trial court. See United States v. Rossetti, 768 F.2d 12, 16 (1st Cir.1985). Two sound reasons support the district court's decision not to exclude McMillan's testimony. First, appellant proffered insufficient evidence that Detective McMillan violated any private sequestration agreement between appellant and the government. McMillan repeatedly testified on cross-examination that he and Dubois engaged in nothing more than a general discussion of the government's "evidence," and he specifically denied having had any conversation concerning the substance of Dubois' previous testimony. Second, the cases relied on by appellant concerned witness sequestration orders entered pursuant to Evidence Rule 615, which provides: "[a]t the request of a party the court shall order witnesses excluded so that they cannot hear the...