U.S. v. D'Alora, 77-1183

• Decision Date: 05 October 1978
• Docket Number: No. 77-1183,77-1183
• Citation: 585 F.2d 16
• Parties: 3 Fed. R. Evid. Serv. 1362 UNITED STATES of America, Plaintiff-Appellee, v. Daniel J. D'ALORA, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 16

585 F.2d 16

3 Fed. R. Evid. Serv. 1362

UNITED STATES of America, Plaintiff-Appellee, v. Daniel J. D'ALORA, Defendant-Appellant.

No. 77-1183.

United States Court of Appeals First Circuit.

Submitted March 7, 1978.

Decided Oct. 5, 1978.

Stanley M. Meyer, Brooklyn, N.Y., by appointment of the Court, on brief, for defendant-appellant.

Edward F. Harrington, U. S. Atty., and Walter B. Prince, Asst. U. S. Atty., Boston, on brief, for plaintiff-appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Appellant Daniel J. D'Alora was convicted by a jury of possession and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Appellant was one of four original defendants named in a three count indictment.

Count I of the indictment charged John P. Seretta and Robert A. Fisher with possession and distribution of cocaine on September 21, 1976. Count II charged Seretta, Fisher, D'Alora, and Joseph Giordano with possession and distribution of cocaine on October 1, 1976. Count III charged D'Alora and Giordano with possession of a firearm during the commission of the crimes charged in Count II.

Seretta and Fisher pled guilty to Counts I and II. D'Alora and Giordano were tried together on Counts II and III. During the trial, Count III was dismissed. Giordano was acquitted.

Three issues are raised on appeal: (1) whether the admission into evidence of money found on appellant after his arrest which had been used in a prior narcotics transaction involving one of the other defendants (Seretta) was improper; (2) whether a mistrial should have been granted at the time Count III the gun count was dismissed; and (3) whether the district court erred in not holding a hearing or taking some action in response to defense counsel's claim that the jury panel did not meet the constitutional requirements of representing a fair cross-section of the community.

THE FACTS

A somewhat detailed exposition of the facts is necessary in order to understand the issues.

On September 21, 1976, Seretta and Fisher sold one ounce of cocaine to Angel Diaz. Diaz was a detective of the Hartford, Connecticut Police Department on assignment as an undercover agent of the Drug Enforcement Agency (DEA) investigating narcotics sales in western Massachusetts. Seretta met Diaz in the Top-O-The-Round Restaurant at the Holiday Inn in Springfield, Massachusetts, at about 7:00 P. M. The two went downstairs to Room 416, where Diaz was given the cocaine and, in exchange, paid Seretta $1,800 in marked bills. Diaz told Seretta he was interested in purchasing larger amounts of cocaine. Seretta gave Diaz his telephone number and told him to call the next day.

The next day, September 22, Diaz telephoned Seretta to confirm the availability of the cocaine. This conversation was recorded and introduced into evidence by the government. Seretta told Diaz to call him back. On September 26, Diaz again telephoned Seretta. Seretta stated he was trying to make a "connection" in Miami who would supply him. This conversation was also recorded and introduced into evidence. On September 29, Diaz telephoned Seretta, who informed him that everything was set as he had just returned from the South.

On September 30, Diaz telephoned Seretta again and Seretta told him that he had spoken with his source in New York, that the deal was ready to go through the next day, and Seretta would introduce Diaz to the New York people at this time. This conversation, too, was recorded and became part of the evidence. On October 1, 1976, a final phone conversation between Diaz and Seretta took place. Seretta told Diaz that the transaction was set for 7:00 P. M. at the Holiday Inn in Springfield, Massachusetts.

DEA agents and the local police staked out the Holiday Inn. They were positioned outside the building and in Room 414 where they could witness the "buy" which was to take place in Room 416. At about 6:15 P. M., a white Chevrolet van with Massachusetts license plates was observed entering the parking lot of the Holiday Inn. It was followed by a dark brown four-door Mercury with New York license plates. The van stopped at about the middle of the parking lot and the Mercury pulled alongside of it. Fisher was driving the van with Seretta as a passenger. Appellant was driving the Mercury with Giordano in the passenger's seat. Seretta and the appellant talked for a few minutes and then appellant drove off. Seretta left the van and entered the front door of the Holiday Inn. Meanwhile, appellant and Giordano returned, parked, got out of the car, and stood around the front door of the Inn.

At about 6:50 P. M. Diaz drove into the parking lot, parked his car, and entered the rear door of the Holiday Inn. He took the elevator to the Top-O-The-Round Restaurant where Seretta met him as planned and told him that the people from New York were downstairs, but did not want to meet Diaz because the price had already been set. Diaz replied that the money was being held in a room downstairs. He told Seretta he would like to see the cocaine first, and then Seretta could see the money. Following this, Seretta could come up to the room with the cocaine and the sale would be made. Seretta agreed and he left the lounge. Diaz also left a few minutes later and met Seretta in the main lobby. Seretta informed him that the people from New York were controlling the transaction, that they did not want to meet him, and that Seretta wanted to see the money first. Diaz agreed to this, and the two went to Room 416 where Agent Breard, acting as moneyman, showed Seretta $12,000 in cash. Seretta left, saying he would return in five minutes. Seretta was observed leaving the front door of the Holiday Inn. He spoke with appellant and Giordano who had been standing there. After two or three minutes, the three separated. Appellant and Giordano walked through the parking lot, glancing back at the Mercury as they went. Seretta, meanwhile, walked over to the Mercury, opened the driver's door, bent over into the car, and removed a brown paper bag from the front seat. He closed the door and walked over to Fisher, still in the van. The two then entered the front door of the Holiday Inn. Seretta and Fisher were admitted to Room 416 where Fisher pulled up his shirt, removed a brown paper bag, and handed it to Agent Breard. The bag contained one-half pound of cocaine in two cellophane envelopes covered with tinfoil. Seretta and Fisher were immediately arrested. A signal was transmitted and appellant and Giordano were arrested in the street.

A search of Seretta produced the keys to the Mercury. When appellant was searched, he had in his possession a valid Florida driver's license issued to Daniel Orlando and $634. Giordano had $1,904 on him when he was arrested. A search of the Mercury disclosed a .38 caliber revolver on the passenger's seat and an automobile rental agreement showing that the car had been rented at 11:20 that morning in Brooklyn, New York, to a person using the name Orlando. A rental agent testified that a person by the name of Orlando had rented cars on this and prior occasions.

Of the $634 found on appellant when he was arrested, $400 was the marked money which Diaz had given to Seretta on September 21. Of the $1,904 found on Giordano, $1,060 was also marked money from that transaction.

Appellant did not testify. Giordano took the stand and testified, in effect, that he was an innocent bystander who rode up from New York City with appellant in the hope of collecting a business debt.

I. Introduction of the Marked Money Given to Seretta on September 21.

Appellant's contention is that the trial court erred in admitting into evidence the marked money given by Diaz to Seretta and Fisher in the September 21 cocaine sale. He argues not only that this evidence was irrelevant, but that its probative value was outweighed by its prejudicial impact.

Fed.R.Evid. 404(b) provides:

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

All relevant evidence may be admitted as long as it has some other purpose than to show propensity to commit crime if its probative value outweighs its prejudicial impact. United States v. Barrett, 539 F.2d 244, 248 (1st Cir. 1976).

Appellant argues that the September 21 incident is irrelevant because he was not charged with a commission of a crime on that day. The government argues that it was relevant, contending that the October 1 transaction originated during the September 21 sale. It was at this time that Diaz inquired about larger amounts of cocaine which culminated in the attempted sale and arrest on October 1. The evidence concerning the September 21 sale was not irrelevant simply because appellant was not charged with committing a crime on that date. It is not necessary that facts, appearing alone, be sufficient to sustain a conviction to pass the test of relevancy. Rather, all that is needed is a showing that the evidence "tended to logically associate appellant with that particular crime" and enhance the probability of guilt. 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). Evidence is not to be examined in isolation, but in its particular factual setting. Id. Evidence of prior conduct is admissible "to complete the story of the crime on trial by proving its immediate context of happenings near in time and place." 2 Weinstein's Evidence §§ 404(09), 404-57 (1975), quoting McCormick on Evidence § 157 (1954); United States v. Barrett, supra, 539 F.2d at 248.

But appellant argues that he was not present on the 21st and his identity was learned only after...