U.S. v. Bosch

• Decision Date: 29 September 1978
• Docket Number: 77-1110,Nos. 77-1109,s. 77-1109
• Parties: UNITED STATES of America, Appellee, v. Victor Ernesto BOSCH, Appellant. UNITED STATES of America, Appellee, v. Victor Correa GOMEZ, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1113

584 F.2d 1113

UNITED STATES of America, Appellee, v. Victor Ernesto BOSCH, Appellant.

UNITED STATES of America, Appellee, v. Victor Correa GOMEZ, Appellant.

Nos. 77-1109, 77-1110.

United States Court of Appeals First Circuit.

Argued June 8, 1978.

Decided Sept. 29, 1978.

Wallace W. Sherwood, Boston, Mass., by appointment of the Court with whom Leonard B. Mandell, Boston, Mass., was on brief, for appellant, Victor Ernesto Bosch.

Carlos Perez Olivo, San Juan, P. R., by appointment of the Court for appellant, Victor Correa Gomez.

John Voorhees, Atty., Dept. of Justice, Washington, D. C., with whom Julio Morales-Sanchez, U. S. Atty., San Juan, P. R., and Robert J. Erickson, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and PETTINE, ^* District Judge.

BOWNES, Circuit Judge.

Appellants, Correa Gomez and Ernesto Bosch, were tried together on several narcotic counts stemming from the importation of cocaine and heroin to Puerto Rico in May and June, 1975. Appellant Correa Gomez was convicted on one count of conspiracy to possess and distribute narcotics in violation of 21 U.S.C. § 846 and one count of distribution of narcotics in violation of 21 U.S.C. § 841(a)(1). He was acquitted on another count of distribution. On appeal, Correa Gomez contends that the admission of evidence implicating him in prior crimes deprived him of a fair trial, and also that his conviction was obtained in violation of the double jeopardy clause.

Appellant Ernesto Bosch was convicted of possession of narcotics in violation of 21 U.S.C. § 841(a)(1), but was acquitted of conspiracy to distribute narcotics in violation of 21 U.S.C. § 846. He claims that he was deprived of his sixth amendment right to the effective assistance of counsel and because of improper jury instructions of his right to a fair trial.

I. APPELLANT CORREA GOMEZ

During the redirect examination of one of the government witnesses, an alleged coconspirator, the prosecutor, trying to pinpoint the date when the witness had met Correa Gomez, asked him whether he had seen the defendant in New York about one year prior to the occurrence of the crime for which appellant was being tried. The witness gave a nonresponsive answer stating: "Well, it was as to heroin that they were planning to bring to Puerto Rico."

Appellant's counsel immediately requested a mistrial, arguing that, once the jury had heard this irrelevant and highly prejudicial statement, his client could no longer obtain a fair trial. The motion was denied. Counsel then requested that the statement be stricken from the record and the jury instructed to disregard it. The court replied, "In a narcotics or a conspiracy case you can bring (in) evidence as to any prior transaction ¹ of the same kind to show the disposition of the Defendant to commit the crime . . . . Motion is denied."

The next witness called by the government volunteered, despite having been instructed beforehand not to, that appellant was in the hospital recovering from a gunshot wound shortly before he allegedly participated in the narcotics transaction in issue. Because the gunshot wound had nothing to do with the present case, the parties had stipulated that it was not to be mentioned to the jury. The court, aware of this stipulation, Sua sponte, instructed the jury to disregard the statement and struck the testimony from the record immediately after the statement was volunteered. Appellant then moved for a mistrial, which request was denied, but which resulted in the court spending several additional minutes reinstructing the jurors that it would be extremely unfair for them to consider the reference to the gunshot wound in determining appellant's guilt or innocence on the narcotics charges.

Appellant contends that he was deprived of a fair trial because of the admission of the statement as to his prior heroin involvement and the excluded gunshot wound testimony. It is well settled that evidence of prior criminal acts is inadmissible for the purpose of proving that a defendant has a criminal disposition. United States v. Fosher, 568 F.2d 207, 211-12 (1st Cir. 1978); United States v. Myers, 550 F.2d 1036, 1044 (5th Cir. 1977); United States v. Foutz, 540 F.2d 733, 736 (4th Cir. 1976); United States v. Barrett, 539 F.2d 244, 248 (1st Cir. 1976). Such evidence should only be admitted after the court determines that it is relevant for another reason, E. g., to show preparation, plan, knowledge or identity, and that its probative value is not substantially outweighed by the danger of unfair prejudice. Myers, supra; Barrett, supra. Clearly, then, the district court's decision to allow the volunteered statement concerning appellant's prior involvement with heroin traffic to remain in evidence solely because it was relevant to appellant's criminal disposition was error. United States v. Dansker, 537 F.2d 40, 57-58 (3d Cir. 1976), Cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977); United States v. Eatherton, 519 F.2d 603, 611 (1st Cir.), Cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975). The question remains, however, whether it constitutes reversible error.

"A nonconstitutional error, as in the case of erroneous admission of similar act evidence, is harmless if it is 'highly probable' that the error did not contribute to the verdict . . . . Where there is overwhelming evidence of guilt . . . erroneous evidentiary rulings on such collateral matters are often harmless." United States v. Corey, 566 F.2d 429, 432 (2d Cir. 1977); Accord, United States v. Klein, 546 F.2d 1259, 1263 (5th Cir. 1977); United States v. Splain, 545 F.2d 1131, 1133-34 (8th Cir. 1976); United States v. Roland, 449 F.2d 1281, 1282 (5th Cir. 1971). In the present case, the evidence against Correa Gomez can fairly be characterized as overwhelming. The chief government witness was Raymond Rivera who had been directly involved in importing heroin and cocaine from New York City to Puerto Rico. He and one Jose Luis were planning to bring heroin to Puerto Rico, and Rivera felt that it was essential to find "the man" to distribute the drugs because Rivera did not know many people in the metropolitan area of San Juan. Correa Gomez was picked as the distribution man. Rivera's testimony, which was not seriously challenged, went into great detail as to the importation and distribution of heroin and cocaine in San Juan by himself and appellant. According to Rivera, the appellant played a key role in the distribution of the drugs. Rivera's testimony as to the offenses specified in the indictment was clear, precise and uncontradicted. Another witness, Gorgonio Lopez, also testified as to Correa Gomez's involvement in the offenses for which he was tried. Given the strength of the evidence against Correa Gomez and the fact that his prior involvement with heroin traffic was only referred to once, and then briefly, we find that the district court's decision to allow that reference to remain in evidence does not constitute reversible error. ² See United States v. Plante, 472 F.2d 829, 830-32 (1st Cir.), Cert. denied, 411 U.S. 950, 93 S.Ct. 1932, 36 L.Ed.2d 411 (1973).

Any prejudice which may have been caused by the volunteered statement concerning the gunshot wound was effectively cured by the court's immediate and comprehensive instructions to the jury to disregard that evidence. United States v. Plante, supra, at 830-31. The admission of the evidence concerning prior plans for importing heroin and the excluded gunshot wound testimony neither individually nor collectively call for a reversal of Correa Gomez's conviction.

The second issue raised by Correa Gomez is whether his conviction for conspiring to possess and distribute narcotics in May and June, 1975, was obtained in violation of the double jeopardy clause. One year prior to his trial on the conspiracy charge, he pled guilty in a different case to aiding and abetting in the unlawful possession of narcotics on June 11, 1975. Appellant concedes that aiding and abetting is a substantive charge and that, generally, a defendant may be prosecuted for both conspiracy and the underlying substantive offense, even when the substantive offense is aiding and abetting. Iannelli v. United States, 420 U.S. 770, 777-78, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). He argues, however, that an exception to the general rule is applicable to this case.

The exception appellant relies on is confined to those situations in which an acquittal on one charge clearly constitutes a finding that a fact essential to the proof of another charge does not exist. Under such circumstances, the prosecution of the other charge is barred. Ashe v. Swenson, 397 U.S. 436, 443-46, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). In Ashe, a group of poker players were robbed during the course of their game. Defendant was tried and acquitted on the charge of robbing one of the players. He was then tried and convicted in a different action for robbing another. When the second case reached the Supreme Court, it held that the second conviction was obtained in violation of the double jeopardy clause because a close examination of the record from the first trial revealed that the acquittal in that case had to have been grounded upon a finding by the jury that defendant was not at the scene when the crime occurred. The issue whether he was at the scene, having been determined by a valid and final judgment, could not, in accordance with the principle of collateral estoppel, be litigated again between the same parties in any future lawsuit. Therefore, since proof of his presence at the scene was essential to the case against him in the second action, the conviction could not stand.

Appellant argues that the Ashe rule is applicable to the present case because the drugs upon which both the aiding and abetting and the conspiracy charges against him were based were from the same shipment...