U.S. v. Carty, No. 92-1613

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore TORRUELLA and CYR; CYR; TORRUELLA
Citation993 F.2d 1005
Parties38 Fed. R. Evid. Serv. 871 UNITED STATES of America, Appellee, v. Ralph H. CARTY, Defendant-Appellant.
Docket NumberNo. 92-1613
Decision Date28 May 1993

Page 1005

993 F.2d 1005
38 Fed. R. Evid. Serv. 871
UNITED STATES of America, Appellee,
Ralph H. CARTY, Defendant-Appellant.
No. 92-1613.
United States Court of Appeals,
First Circuit.
Argued Dec. 9, 1992.
Decided May 28, 1993.

Page 1006

John F. Cicilline for defendant-appellant.

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

Before TORRUELLA and CYR, Circuit Judges, and KEETON, * District Judge.

CYR, Circuit Judge.

On July 30, 1990, the Providence Police executed a state-court search warrant at the residence of appellant Ralph Carty and seized several firearms and a small quantity of cocaine. Carty was tried and convicted on two firearms charges but acquitted on a cocaine charge. Carty contends on appeal that (1) the evidence seized at the residence should have been suppressed because the warrant affidavit contained false statements; (2) at the suppression hearing the district court improperly restricted cross-examination of the affiant; and (3) the court improperly admitted "other act" evidence at trial. We affirm.


A. Suppression Hearing

1. Franks v. Delaware

The warrant affidavit, provided by Detective Nicholas Cardarelli of the Providence Police Department, formed the primary focus of the Franks hearing 1 conducted before the district court. 2

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Although the Cardarelli affidavit, dated July 30, 1990, indicated that the controlled buy had taken place within the preceding "few days," Cardarelli subsequently learned that Carty and his family were on vacation during that time and had not returned to their residence until the evening of July 29. At the suppression hearing, Cardarelli testified that the controlled buy took place between 2:00 and 4:00 p.m. on July 30. He explained that it was normal police procedure not to reveal the exact date of the controlled buy so as to protect the identity of the confidential informant. Cardarelli testified that he drove the informant to the tenement in which Carty occupied a first-floor apartment, observed the informant enter and emerge shortly thereafter with a small baggie containing a substance that appeared to be cocaine, returned to the Special Investigation Bureau ("SIB") office, and performed a field test on the substance. As the test indicated the presence of cocaine, Cardarelli drafted the affidavit and obtained a search warrant from a state court judge. At approximately 8:00 p.m. on July 30, Cardarelli and other officers executed the search warrant at the Carty residence.

Detective Stephen Berarducci corroborated Cardarelli's testimony. He testified that he saw Cardarelli at the SIB office on July 30 at about 2:00 p.m. and was aware that Cardarelli was going to attempt a controlled buy at the Carty residence. According to Berarducci, Cardarelli returned to the office around 4:00 p.m. and performed a field test on a small plastic bag of cocaine, which Cardarelli said had been purchased at the Carty residence. Berarducci also testified that he received a check the following day from Sergeant Dennis Lambert, the SIB evidence control officer, which was used to pay for the informant's services. A photocopy of the check was admitted into evidence.

Sergeant Lambert testified that he could locate neither a log book entry, nor a "controlled buy form," reflecting a drug transaction on July 30 conducted by Detective Cardarelli or any other officer. 3 Lambert testified that his records documented a controlled buy of heroin on July 25 or 26 at the apartment building in which Carty lived, but that it occurred on the second floor of the building and was unrelated to any controlled buy at the Carty apartment on the first floor.

Two of Carty's co-workers testified that he was at work on July 30 between 9:00 a.m. and 7:00 p.m. Mrs. Carty provided similar testimony and submitted receipts reflecting Carty's wages for the day. She further testified that no one came to their residence between 2:00 p.m. and 4:00 p.m. on July 30. Two other individuals testified that they were at the Carty residence throughout the

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day on July 30 and that no one came to the house between 2:00 p.m. and 4:00 p.m.

At the conclusion of the suppression hearing, the district court declined to suppress the evidence seized pursuant to the warrant as Carty had failed to produce sufficient evidence to undermine the Cardarelli affidavit. 4 Carty contends that he demonstrated that the controlled buy could not have occurred as described in the Cardarelli affidavit. Without the false statements, he argues, the affidavit was insufficient to establish probable cause. See Franks, 438 U.S. at 156, 98 S.Ct. at 2676 (If the defendant proves perjury or "reckless disregard," by a preponderance of the evidence, and the untainted content of the affidavit is insufficient to establish probable cause, the fruits of the search must be excluded "to the same extent as if probable cause was lacking on the face of the affidavit.").

We review the district court's findings of fact for clear error; its conclusion of law de novo. United States v. Garcia, 983 F.2d 1160, 1167 (1st Cir.1993) (citing United States v. Sanchez, 943 F.2d 110, 112 (1st Cir.1991)). Its denial of the suppression motion will be upheld if supported by any reasonable view of the evidence. Id.

Although we find it troubling, as did the district court, that there is no record of a controlled cocaine buy during the entire relevant period, our review of the suppression hearing transcript reveals nothing inherently contradictory or incredible in Cardarelli's testimony, as corroborated by Detective Berarducci. First and foremost, Cardarelli's suppression hearing testimony as to the exact date of the controlled buy (July 30) is not inconsistent with the time period ("within the past few days") he gave in the warrant affidavit; July 30 at 2:00 to 4:00 p.m. was "within the past few days" of Cardarelli's preparation of the warrant affidavit, which occurred late in the afternoon or early in the evening of July 30. Thus, the affidavit was not necessarily inconsistent with Cardarelli's testimony. Second, the district court, before whom Cardarelli and Berarducci testified, credited Cardarelli's explanation that it was customary to avoid precise specification of the dates of controlled buys in order to protect the identity of informants. Finding nothing inherently inconsistent in Cardarelli's testimony, and mindful of the trial court's superior vantage point, we are satisfied that there is no sound basis for second-guessing its demeanor-based credibility determinations at the suppression hearing. 5 See Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 854, 83 L.Ed.2d 841 (1985) (determinations of demeanor

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and credibility are peculiarly within a trial judge's province); United States v. Portalla, 985 F.2d 621, 622 (1st Cir.1993) (recognizing district court's broad power to determine witness credibility); see also Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985) ("only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said"). 6

2. Right to Confrontation

Carty next asserts that his Sixth Amendment right to confront adverse witnesses was infringed by the district court's restrictions on cross-examination of Detective Cardarelli at the suppression hearing. In the course of cross-examining Cardarelli about the perceived discrepancy between his testimony and his affidavit relating to the date of the controlled buy, defense counsel inquired: "Tell me, Detective Cardarelli, why are you represented by Mr. Bevilacqua?" When the court refused, on relevancy grounds, to direct Cardarelli to answer over the government's objection, defense counsel responded by way of an offer of proof: "[I]t is my belief that this witness is being investigated for corruption in the police department." Defense counsel hypothesized that Cardarelli may have adjusted the asserted date of the controlled buy to negate Carty's alibi evidence. Counsel argued that the proposed line of questioning was intended to determine whether Cardarelli was telling the truth. Rebuffed by the district court, 7 defense counsel urged that he be permitted to show Cardarelli's bias, suggesting that "if, in fact, the investigation is being conducted ... by the [f]ederal [g]overnment, then [Cardarelli] has an interest in making the [f]ederal [g]overnment happy by being a witness who testifies consistently with the [g]overnment's theory of this case[, a]nd bias to that extent is a legitimate area of inquiry." Concluding that it was not "material to the issue here," the court remained steadfast in its refusal to permit inquiry concerning the supposed investigation.

Carty contends that the proffer demonstrated that the putative federal investigation into possible corruption involving Cardarelli was directly related to the events in the case and probative of Cardarelli's credibility and bias, and, therefore, that the district court's ruling deprived him of his Sixth Amendment right to confrontation. "[A] primary interest secured by [the Confrontation Clause of the Sixth Amendment] is the right of cross-examination." Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). Cross-examination is the "principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). Nevertheless, the right of cross-examination is not without limits. "On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned

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to impose reasonable limits on ... cross-examination based on concerns about, among other things, harassment, prejudice, confusion of...

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