U.S. v. Ferrer-Cruz, FERRER-CRU

• Decision Date: 08 December 1989
• Docket Number: No. 89-1057,D,FERRER-CRU,89-1057
• Citation: 899 F.2d 135
• Parties: 29 Fed. R. Evid. Serv. 1445 UNITED STATES, Appellee, v. Carlosefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 135

899 F.2d 135

29 Fed. R. Evid. Serv. 1445

UNITED STATES, Appellee, v. Carlos FERRER-CRUZ, Defendant, Appellant.

No. 89-1057.

United States Court of Appeals First Circuit.

Heard Dec. 8, 1989.

Decided March 30, 1990.

Rehearing and Rehearing En Banc Denied May 18, 1990.

Jose R. Aguayo, Hato Rey, P.R., with whom Joaquin Monserrate Matienzo was on brief, for defendant, appellant.

Jorge E. Vega-Pacheco, Asst. U.S. Atty., San Juan, P.R., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before BREYER, TORRUELLA and SELYA, Circuit Judges.

BREYER, Circuit Judge.

Carlos Ferrer-Cruz appeals his conviction for aiding and abetting the possession of cocaine with intent to distribute it. 21 U.S.C. Sec. 841(a)(1); 18 U.S.C. Sec. 2. He challenges the admission into evidence of a prior drug conviction, the admission of a statement he made just after his arrest, and the adequacy of the evidence. After reviewing the record in light of his arguments, we affirm his conviction.

1. Sufficiency of the evidence. The government claimed that Ferrer knowingly delivered two kilograms of cocaine to two other defendants, who, in turn, sold it to a government agent. The two kilograms of cocaine were on the floor of a blue Honda car. Ferrer drove the car to a meeting with the other two defendants, switched the car for their pickup truck, and drove off in the truck, while they drove the car on to meet the buyer. The government's evidence consisted primarily of testimony from government agents that they observed the following events on June 13, 1988:

a. At about 10 a.m. Gonzalez (a government agent) and Arteaga (a co-defendant) agreed that their cocaine sale would take place at 1 p.m. in Puerto Nuevo, that they would meet at the Borinquen Towers Shopping Center between 11:30 and noon, and that Gonzalez would telephone Arteaga about 11:30 to confirm arrangements. At 11:15 Gonzalez phoned and confirmed.

b. Arteaga drove to the shopping center. At about 11:45 a.m. he made a phone call. A few minutes later codefendant Juan Oquendo (with his son and another man) arrived in a blue pick-up truck. Just after 12 noon Arteaga made another call. Oquendo then left with his son. He drove to a nearby apartment house, briefly went inside, returned, and drove to appellant Ferrer's liquor store. He spoke briefly to Ferrer. Ferrer drove off in a blue Honda, stopped briefly at the same apartment house, picked up his wife, and drove off again (in the Honda).

c. In the meantime Oquendo returned to the shopping center, where he found Gonzalez and another government agent (the ostensible buyers) talking to Arteaga. Oquendo then tried to switch the sale site from the shopping center to his own home. The effort led several of these men to travel back and forth from the center to Oquendo's home. Eventually, however, they decided to maintain the shopping center as the transfer point. Oquendo said he did not have cocaine with him, but it was on its way from Mirimar. He said he would bring it to the shopping center when it arrived. The two government agents waited at the shopping center. Oquendo and Arteaga returned to Oquendo's home.

d. Oquendo walked back and forth from his house to the street corner several times. At 2 p.m. Ferrer arrived at the corner, driving his blue Honda. At the same time Oquendo came out of his house with a small pan and a spoon. They spoke. Oquendo and Arteaga then drove off in Ferrer's blue Honda. Ferrer drove off in the pickup.

e. When Oquendo and Arteaga arrived at the shopping center in the Honda, one of the government agents noticed two dark pink bags on the front seat floor on the passenger side. They arrested Oquendo and Arteaga. They found the bags filled with cocaine.

f. Government agents went to Ferrer's liquor store, saw the pickup parked outside, and arrested Ferrer. They found an address book containing Ferrer's telephone number in the pickup.

Appellant claims that this evidence shows only that he was present at a place (the blue Honda) where cocaine was also present; it does not show that he knew that there was cocaine in the car or that he shared the criminal intent of the codefendants. In our view, however, this intricate series of events, the timing, the visits, the phone calls, would permit a reasonable trier of fact to conclude beyond a reasonable doubt that Ferrer was part of a cocaine scheme. See United States v. Rivera-Santiago, 872 F.2d 1073, 1078-79 (1st Cir.) (appellate court "must review the evidence in the light most favorable to the government, including any legitimate inferences which can be drawn from it to determine whether a rational jury could have found [the] defendant guilty beyond a reasonable doubt"), cert. denied sub nom. Castro-Poupart v. United States, --- U.S. ----, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989) and cert. denied sub nom. Romero-Lopez v. United States, --- U.S. ----, 110 S.Ct. 105, 107 L.Ed.2d 68 (1989); United States v. Paone, 758 F.2d 774, 775 (1st Cir.1985) (same); United States v. Mehtala, 578 F.2d 6, 10 (1st Cir.1978) (same). Thus, it is sufficient to permit a jury to convict him.

2. Evidence of a prior conviction. The trial court permitted the government to introduce into evidence in its case-in-chief the fact that Ferrer had previously pled guilty to two unrelated charges of illegally possessing cocaine and marijuana (in 1985). As we have often pointed out, a trial court can admit such evidence of past bad acts only if the evidence survives two related tests. First, it must overcome the absolute bar of Fed.R.Evid. 404(b), which excludes evidence of a past bad act where it is relevant only because it shows bad character (i.e., the proposed logical inference includes character as a necessary link). See, e.g., United States v. Rubio-Estrada, 857 F.2d 845, 846-47 (1st Cir.1988); United States v. Rivera-Medina, 845 F.2d 12, 15-16 (1st Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 160, 102 L.Ed.2d 131 (1988); United States v. Gonzalez-Sanchez, 825 F.2d 572, 579-80 (1st Cir.), cert. denied sub nom. Latorre v. United States, 484 U.S 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987); United States v. Andiarena, 823 F.2d 673, 678 (1st Cir.1987). Second, it must also survive scrutiny under Fed.R.Evid. 403, which excludes even evidence that is relevant through allowable chains of inference where the probative value of that evidence is "substantially outweighed" by the risks of prejudice, confusion, or waste of time. See Rubio-Estrada, 857 F.2d at 847; Rivera-Medina, 845 F.2d at 15-16; Gonzalez-Sanchez, 825 F.2d at 580; Andiarena, 823 F.2d at 678. Ferrer argues that the district court, in admitting the evidence, wrongly found these tests satisfied.

Leaving aside a special feature of this case, to which we shall turn in a moment, we should not find Ferrer's claim on this appeal very plausible. The government argued to the district court, as it argues to us, that it introduced the evidence in order to show Ferrer's knowledge that the bags contained drugs and to show his intention to help his codefendants consummate the sale. Since one who has previous experience with drugs is more likely to see "car switching" as part of a drug sale technique than one who has no such experience, and since one with such experience is more likely to recognize (and hence to know) that the bags' contents were drugs than one without such experience, the inferences at issue do not involve character. And the fact that a juror might also make other inferences that do involve character is beside the point as far as Rule 404's absolute ban is concerned. As we have written before, that Rule's framers considered the pros and cons of absolutely banning evidence of this sort; and they concluded that the evidence survives an absolute ban as long as at least one permissible inference is possible. See, e.g., Rubio-Estrada, 857 F.2d at 846-47; Gonzalez-Sanchez, 825 F.2d at 579-80.

Moreover, the probative value of the evidence in this case (as we said, leaving aside, for a moment, the special feature) is quite high. We have just pointed out that a reasonable juror could find guilt beyond a reasonable doubt on the basis of the evidence we have described; but it is also true that a reasonable juror might have had a reasonable doubt. Such a juror might have thought that the government failed to prove anything beyond Ferrer's presence in a car with cocaine; and, believing the government failed to prove Ferrer knew it was cocaine or that he intended to deliver cocaine to the codefendants, such a juror might have voted to acquit. The evidence of a past conviction might have helped convince such a juror of guilt through its permissible suggestion that Ferrer knew about drugs and drug possession. Given the district court's broad discretionary power to weigh "probative weight" against "prejudicial effects," see, e.g., United States v. Simon, 842 F.2d 552, 555 (1st Cir.1988); United States v. Crocker, 788 F.2d 802, 804 (1st Cir.1986); United States v. Zeuli, 725 F.2d 813, 817 (1st Cir.1984); 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), and given its proper limiting instructions to the jury, we could not say its decision to admit the evidence was unlawful.

Ferrer argues, however, that his case contains a special feature. He says that the government did not really need this prior conviction evidence because he, in effect, admitted knowledge. His defense consisted of evidence showing that he did not drive the blue Honda. Rather, he said, his brother drove the Honda, and his was the unfortunate circumstance of mistaken identity. We agree with Ferrer that, were knowledge and intent not issues in his case, the prejudicial effect of the past conviction would inevitably overcome the need for the evidence. But, after examining the record, we cannot agree with the premise of his argument. We do not believe he removed...