U.S. v. Castro-Lara

• Decision Date: 29 July 1992
• Docket Number: Nos. 91-1736,91-1737,D,CASTRO-LAR,s. 91-1736
• Citation: 970 F.2d 976
• Parties: UNITED STATES of America, Appellee, v. Ramonefendant, Appellant. UNITED STATES of America, Appellee, v. Abraham OBJIO SARRAFF, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 976

970 F.2d 976

UNITED STATES of America, Appellee, v. Ramon CASTRO-LARA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Abraham OBJIO SARRAFF, Defendant, Appellant.

Nos. 91-1736, 91-1737.

United States Court of Appeals, First Circuit.

Submitted June 17, 1992.

Decided July 29, 1992.

H. Manuel Hernandez, Longwood, Fla., on brief for defendant, appellant Ramon Castro-Lara.

Jose Antonio Pagan Nieves, Old San Juan, P.R., on brief for defendant, appellant Abraham Objio Sarraff.

Daniel F. Lopez-Romo, U.S. Atty., and Carlos A. Perez, Asst. U.S. Atty., Hato Rey, P.R., on brief for the U.S.

Before TORRUELLA, SELYA and BOUDIN, Circuit Judges.

SELYA, Circuit Judge.

Defendants Ramon Castro-Lara (Castro) and Abraham Objio Sarraff (Objio) were arrested, indicted, tried, and convicted on three counts of aiding and abetting violations of the drug trafficking laws. ¹ In addition, Objio was convicted on a charge of violating 18 U.S.C. § 924(c)(1) (1988) (criminalizing the "use[ ] or carri[age]" of a firearm "during and in relation to any ... drug trafficking crime"). Defendants appeal. We affirm.

I. The Essential Facts

The facts necessary to put these appeals into workable perspective are for the most part undisputed.

On January 24, 1991, a government agent, Rafael Valle-Ortiz (Valle), received a tip from an informant that a drug shipment was to arrive in Puerto Rico on the next Caribe Express flight from Santo Domingo. The informant described the putative courier. The authorities proceeded to stake out the airstrip in question.

An incoming flight from Santo Domingo soon landed. The crew members (including a crewman, later identified as Castro, who matched the informant's description) disembarked and drove together to the nearby town of Aguadilla. Once there, Castro did some shopping. He then spoke with another person (subsequently identified as Objio). The two men entered Objio's car and returned to the airfield. Castro boarded the aircraft. When he deplaned, he was carrying a bag which he placed in Objio's vehicle. As the two men prepared to drive away, the authorities intervened.

The bag was found to contain 3,007 grams of cocaine. A consensual search of the car's trunk revealed a briefcase owned by Objio. Inside the briefcase was an unloaded, but otherwise fully operable, revolver; live ammunition; and, according to some witnesses, an envelope containing $6,000 in cash.

II. Castro's Appeal

Castro advances a single assignment of error, contending that the district court erred in denying his motion for judgment of acquittal "based on the total lack of admissible evidence that [he] knowingly and intentionally possessed, imported or transported cocaine."

Generally, the court of appeals reviews a defendant's challenge to the evidentiary sufficiency of the government's case by examining "whether the total evidence, taken in the light most amicable to the prosecution, together with all reasonable inferences favorable to it, would allow a rational factfinder to conclude beyond a reasonable doubt that the defendant was guilty as charged." United States v. Maraj, 947 F.2d 520, 522-23 (1st Cir.1991). In this instance, however, the government asserts that Castro, who moved for judgment of acquittal at the close of the prosecution's case in chief, but thereafter testified in his own behalf, waived his motion by not renewing it at the close of all the evidence. We treat first with the government's claim of waiver and then proceed to address the merits of the assigned error.

A. Waiver

It is settled law that a defendant who moves for judgment of acquittal at the end of the prosecution's case, but then fails to renew the motion after presenting evidence in his own behalf, waives the original motion. See, e.g., United States v. Cheung, 836 F.2d 729, 730 n. 1 (1st Cir.1988) (per curiam); United States v. Greenleaf, 692 F.2d 182, 185 (1st Cir.1982), certs. denied, 460 U.S. 1069, 103 S.Ct. 1522 & 1523, 75 L.Ed.2d 946 (1983). ² But, given other facets of the record before us, the waiver argument is an exercise in irrelevancy.

In this case, Castro made a timely post-trial motion for judgment of acquittal in conformity with Fed.R.Crim.P. 29(c). ³ We feel confident that Rule 29(c) means precisely what it says. Consequently, even absent any motion for judgment of acquittal at trial, a defendant who files a timeous post-trial motion for acquittal stands on the same footing as a defendant who moves for acquittal at the close of all the evidence; and the former is, therefore, entitled to the benefit of the same standard of appellate review as the latter. See United States v. Allison, 616 F.2d 779, 784 (5th Cir.) (per curiam), cert. denied, 449 U.S. 857, 101 S.Ct. 156, 66 L.Ed.2d 72 (1980); Government of the Virgin Islands v. Carr, 451 F.2d 652, 654-55 (3d Cir.1971); see also 8A James W.M. Moore, Moore's Federal Practice p 29.03 at 29-10--29-11 & n. 12 (1992); 2 Charles A. Wright, Federal Practice and Procedure § 465 (1982).

Because Castro's post-trial motion for acquittal notwithstanding the verdict was timely, ⁴ there was no waiver.

B. The Merits

Castro claims that Valle's testimony about the informant's tip was inadmissible hearsay and that the remaining evidence did not support a finding of guilty knowledge. He is wrong on both counts.

1.

In the first place, Valle's testimony was received without objection. Hence, any potential error in the admission of the evidence was not preserved for appeal. See United States v. Hunnewell, 891 F.2d 955, 956-57 (1st Cir.1989); United States v. Griffin, 818 F.2d 97, 99 (1st Cir.), cert. denied, 484 U.S. 844, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987); see also Fed.R.Evid. 103(a)(1).

2.

In the second place, Valle's testimony about the informant's tip was not inadmissible hearsay. "Hearsay" is a term of art, referable to extra-judicial statements "offered in evidence to prove the truth of the matters asserted." Fed.R.Evid. 801(c). The hearsay rule does not pertain to statements adduced merely to show that they were made or that they had some effect on the future actions of a listener. See United States v. Gibson, 675 F.2d 825, 833-34 (6th Cir.), cert. denied, 459 U.S. 972, 103 S.Ct. 305, 74 L.Ed.2d 285 (1982). Thus, testimony which is not offered to prove the truth of an out-of-court statement, but is offered instead for the more limited purpose of providing relevant context or background, is not considered hearsay. See, e.g., United States v. Freeman, 816 F.2d 558, 563 (10th Cir.1987); United States v. Mazza, 792 F.2d 1210, 1215 (1st Cir.1986), cert. denied, 479 U.S. 1086, 107 S.Ct. 1290, 94 L.Ed.2d 147 (1987); United States v. Love, 767 F.2d 1052, 1063 (4th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 890 (1986).

Here, Valle's testimony anent the tip was relevant and material to show that a conversation had taken place and that the conversation led to a full-scale surveillance. This evidence provided the jury with helpful background--table-setting information not only explaining why government agents were at the airstrip but also putting their actions into context. Thus, the testimony was admissible in evidence, notwithstanding the general proscription against hearsay. ⁵ Moreover, once the testimony was received into evidence generally, without objection or limitation, the jury was entitled to draw all reasonable inferences from it. See, e.g., United States v. Tabares, 951 F.2d 405, 409 (1st Cir.1991); United States v. Foster, 711 F.2d 871, 877 (9th Cir.1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1602, 80 L.Ed.2d 132 (1984).

3.

In his appellate brief, Castro suggests for the first time that the probative value of this evidence was substantially outweighed by its unfairly prejudicial effect. He urges, therefore, that the evidence should have been excluded under Fed.R.Evid. 403. The short, dispositive answer to this suggestion is to be found in the raise-or-waive principle: in virtually every instance, a Rule 403 objection must be lodged when evidence is proffered. In the absence of extraordinary circumstances, not present here, such an objection cannot be raised for the first time on appeal. See, e.g., Lewis v. Kendrick, 944 F.2d 949, 952 (1st Cir.1991); see also Freeman v. Package Machinery Co., 865 F.2d 1331, 1338 (1st Cir.1988) ("the importance of a contemporaneous objection is at its zenith" in respect to Rule 403 objections in view of the "balancing calculus which that rule demands"). This case is fully subject to the raise-or-waive principle.

4.

With or without the disputed testimony, we believe that there was ample evidence to warrant a guilty verdict.

It is true that the government's case against Castro was largely based on circumstantial evidence. But, circumstantial evidence, in and of itself, is often enough to ground a conviction. See, e.g., United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992); Maraj, 947 F.2d at 523. Here, the circumstances were little short of damning. The inference of guilty knowledge was, therefore, powerful.

It is also true, as Castro asseverates, that a jury could perhaps have chosen to credit his testimony that he believed the bag he was carrying contained auto parts. Or, the jury might perhaps have resisted an inference of guilty knowledge despite the collocation of circumstantial proof. Yet, neither of those perhapses call for reversal of Castro's conviction. As to the former possibility, we have frequently remarked that credibility judgments are uniquely within the jury's realm. See, e.g., Ortiz, 966 F.2d at 713; United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.1991). As to the latter possibility, we merely repeat the truism that the government's proof "need not exclude every reasonable hypothesis of innocence, provided the record as a whole supports a conclusion of guilt beyond a reasonable doubt." United States v. Victoria-Peguero, 920 F.2d 77, 86-87 (1st Cir.1990), cert. denied, --- U.S....