U.S. v. Castiello

• Decision Date: 08 March 1990
• Docket Number: No. 89-1927,89-1927
• Parties: 31 Fed. R. Evid. Serv. 413 UNITED STATES of America, Appellee, v. Giovanni CASTIELLO, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

915 F.2d 1

31 Fed. R. Evid. Serv. 413

UNITED STATES of America, Appellee, v. Giovanni CASTIELLO, Defendant, Appellant.

No. 89-1927.

United States Court of Appeals First Circuit.

Heard March 8, 1990.

Decided Sept. 12, 1990.

Robert W. Harrington with whom Thomas J. Iovieno was on brief, for defendant, appellant.

Paul V. Kelly, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief, for U.S.

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

CYR, Circuit Judge.

When he arrived at Logan Airport on the morning of November 23, 1988, defendant Castiello was right on time for the long-awaited meeting with "Joe." It was the eve of Thanksgiving and the defendant's ambitious drug distribution scheme, possessing little substance at the start, at last seemed about to take on more as Castiello surrendered $68,000 in cash to undercover agent "Joe" Desmond for four kilograms of imaginary cocaine. The fly was in the ointment all along, of course, its flight plan delayed just long enough to ensure that Castiello not sense the sting until all voluntary statements against penal interest were preserved on tape. After appellant was apprehended red-handed, he was tried, convicted, and sentenced under 21 U.S.C. Secs. 841(a)(1), (b)(1)(B) and 846 for attempting to possess, with intent to distribute, a Schedule II controlled substance. As there is no discernible substance to the appeal, we affirm the district court judgment.

I

The first contention advanced on appeal is that the district court erred by allowing Agent Desmond to interpret the following taped admission by the defendant: "[I] [u]sed to buy stuff off him seven or eight years ago for 35, 37, 33, 34, so you know the market changes, you know what I'm saying?" ¹ After the district court overruled a defense objection, ² Desmond responded, "There is one thing, other than the obvious, that by naming prices seven, eight years ago, that indicates to me obviously that the defendant was in business seven or eight years ago." Defense counsel moved for mistrial on grounds that the answer was unresponsive, improper and prejudicial. The court denied the motion for mistrial.

The defendant maintains on appeal that the taped admission interpreted by Desmond contains no drug jargon, only "plain language" that a jury would have no difficulty understanding. Therefore, defendant argues, Desmond's interpretation was not "helpful" to the jury, in the sense intended by Federal Rule of Evidence 702, ³ and constituted improper "other acts" evidence under Federal Rule of Evidence 404(b).

We review the district court's denial of the motion for mistrial under an abuse of discretion standard, see United States v. Giorgi, 840 F.2d 1022, 1036 (1st Cir.1988); United States v. Chamorro, 687 F.2d 1, 6 (1st Cir.), cert. denied, 459 U.S. 1043, 103 S.Ct. 462, 74 L.Ed.2d 613 (1982), according considerable deference to its determination that the expert testimony would be helpful to a jury in these circumstances, see United States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir.1987) ("Lay jurors cannot be expected to be familiar with the lexicon of the cocaine community.").

We conclude that the district court acted well within its discretion. As the statement intimates in haec verba ("you know what I'm saying?"), the vocabular form the defendant employed with Desmond was not so readily comprehensible to the layman that it could not bear elucidation by a law enforcement agent knowledgeable in the ways of the drug world. The admission was phrased in drug world jargon. For instance, we do not think that a lay jury reasonably could be expected to know that "35, 37, 33, 34" referred to prices for a kilogram of cocaine seven or eight years earlier, much less what those prices were. ⁴ See Hoffman, 832 F.2d at 1310.

Desmond's interpretive testimony that the defendant had been in the drug business seven or eight years earlier amounted to no more than an inexorable corollary to Castiello's taped admission that he "[u]sed to buy stuff ... seven or eight years ago...." Assuming, as defendant contends, that the statement needed no interpretation, it follows that the jury already understood, from having heard that portion of the tape played previously, that the defendant was in the drug business seven or eight years ago. In that event there can have been no unfair prejudice. At most, Desmond's testimony represented a harmless reiteration of the taped statement already heard by the jury. See, e.g., supra note 1. Conversely, assuming, as we conclude, that the taped statement did warrant expert interpretation, there was no basis for its exclusion under Evidence Rule 702.

Although the defendant further contends on appeal that Desmond's interpretation of the drug world jargon constituted "wrongful act" character evidence inadmissible under Evidence Rule 404(b), ⁵ no Rule 404(b) objection was raised at trial, as required by Evidence Rule 103(a)(1), ⁶ either when the recorded statements were heard by the jury or when Desmond's interpretative testimony was received in evidence. ⁷

We have explained that Evidence Rule 103(a)(1) was designed to require an objecting party "to alert the trial court and the other party to the grounds of the objection so that it may be addressed or cured." United States v. Walters, 904 F.2d 765, 769 (1st Cir.1990). Not only did defendant's objection not refer to Rule 404(b), or mention a ground based in the substance of Rule 404(b), it intimated no basis of objection other than Rule 702, except, conceivably, Evidence Rule 403. ⁸ As the objection was not sufficiently specific to alert the court that it contemplated a basis in Rule 404(b), we review for plain error. United States v. Gonzalez-Sanchez, 825 F.2d 572, 583 n. 27 (1st Cir.1987) (where objection did not refer to Rule 404(b), held: "[w]ithout a timely objection stating the specific grounds therefor, our review is limited to plain error"); Fed.R.Evid. 103(d); Fed.R.Crim.P. 52(b).

As we stated in United States v. Zeuli, 725 F.2d 813 (1st Cir.1984):

The most striking aspect of ... [Evidence Rule 404(b) ] is its inclusive rather than exclusionary nature: should the evidence prove relevant in any other way it is admissible, subject only to the rarely invoked limitations of Rule 403. United States v. Fosher, 568 F.2d 207, 212 (1st Cir.1978). Moreover, the test of admissibility is committed primarily to the trial court. United States v. Eatherton, 519 F.2d 603, 611 (1st Cir.1975).

Id. at 816 ("intent" exception to Rule 404(b) warranted admission of evidence). See United States v. Mazza, 792 F.2d 1210, 1223 (1st Cir.1986) ("Mazza's statements to Agent Kelly (who was posing as the 'Florida source') tended to show an effort by Mazza to impress Kelly with his 'experience' in the drug trade and thereby to encourage Kelly to go ahead with the transaction. Thus, Mazza's remarks were probative of his intent...."), cert. denied, 479 U.S. 1086, 107 S.Ct. 1290, 94 L.Ed.2d 147 (1987). See supra note 1. See also United States v. Medina, 761 F.2d 12, 15 (1st Cir.1985) (two step application of Rule 404(b): first, determine whether the evidence has "special" probative value, i.e., shows "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident;" second, balance its probative value against any unfair prejudice). Like the statement itself, Desmond's translation was probative of defendant's "intent." See Fed.R.Evid. 404(b). There was no error in its admission in evidence.

II

The second contention is that Desmond's interpretive testimony preordained a reluctant decision to employ an entrapment defense. The record belies Castiello's claim. Five months before trial the tape recordings of the incriminating admissions were made available to defense counsel, who submitted a proposed entrapment instruction prior to trial. The record demonstrates that entrapment offered whatever prospect remained for mounting a successful defense after the jury heard the defendant's damning admissions on tape. We are unimpressed with the claim that Castiello was forced to resort to an entrapment defense in order to counter Desmond's interpretation of the admission that Castiello had been in the drug business seven or eight years earlier, particularly since that admission was made after defendant's uninterpreted admission that he had "been in business for ten years." ⁹

III

Castiello asserts that the sentence imposed under the Sentencing Guidelines should be set aside on the ground that the district court was unaware that the Sentencing Guidelines permit downward departures. See United States v. Tucker, 892 F.2d 8, 9 & n. 2 (1st Cir.1989) (no appeal from denial of request to depart downward under Sentencing Guidelines, unless district court unaware of discretion to depart). ¹⁰

The sentencing judge was aware that a sentence of imprisonment below the sentencing guideline range may be imposed without contravening the Sentencing Guidelines. At the sentencing hearing, defense counsel requested "a downward departure as the Court is entitled to do...." Defense counsel volunteered that "there are a number of cases which suggest that there is still discretion, as Your Honor knows, under specific provisions of the Guidelines." The court expressed its intention to consider a downward departure only after evaluating the relevant facts and "to what extent there is any ability to exercise ... 'discretion'...." The judge stated that he would determine the requirements of the sentencing guideline "mechanics" before determining "what, if any, level of discretion ... is available." Although aware of the discretionary power to depart downward from the sentencing range, the district court elected to impose the minimum sentence within the guideline sentencing range. Thus, the record reveals that the court considered, and expressly rejected, a downward departure in the present case. ¹¹

We therefore are...