U.S. v. Flores Perez, 86-1381

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before CAMPBELL, Chief Judge, BOWNES and BREYER; LEVIN H. CAMPBELL
• Citation: U.S. v. Flores Perez, 849 F.2d 1 (1st Cir. 1988)
• Decision Date: 06 May 1988
• Docket Number: No. 86-1381,86-1381
• Parties: 25 Fed. R. Evid. Serv. 1247 UNITED STATES of America, Appellee, v. Francisco FLORES PEREZ, Defendant, Appellant. . Heard

Page 1

849 F.2d 1

25 Fed. R. Evid. Serv. 1247

UNITED STATES of America, Appellee, v. Francisco FLORES PEREZ, Defendant, Appellant.

No. 86-1381.

United States Court of Appeals First Circuit.

Heard May 6, 1988.

Decided June 3, 1988.

Robert H. Astor, Springfield, by Appointment of the Court, 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., and Luis A. Plaza, Asst. U.S. Atty., Crim. Div., were on brief for appellee.

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

LEVIN H. CAMPBELL, Chief Judge.

Defendant-appellant Francisco Flores Perez ("Flores") appeals from his conviction for aiding and abetting Lorenzo Hernandez Lopez in violating federal firearms laws. 18 U.S.C. Secs. 2(a), 922(k), 924 (1982 & Supp. IV 1986). Flores alleges three grounds for overturning his conviction: 1) that crucial evidence was obtained in violation of the Fourth Amendment; 2) that the evidence was insufficient to support the conviction; and 3) that the prosecution presented "other bad act" testimony in violation of Fed.R.Evid. 404(b).

I.

Although some facts are hotly disputed, the parties agree on the basic outline of the alleged crime and the circumstances of Flores's arrest. On the morning of January 23, 1985, four undercover Puerto Rico police officers were conducting surveillance near Mr. Dominicci's residence in Ponce, Puerto Rico. The officers were seated in an unmarked Datsun. Just after the officers arrived, they observed two men exit a yellow car parked in front of the Dominicci residence and walk inside the home. A few minutes later, Lorenzo Hernandez Lopez ("Hernandez") was seen walking toward the Dominicci residence. He stopped in front and called inside. The two men (originally from the yellow car) came out of the Dominicci residence and greeted Hernandez. Conversing, the three men crossed the street and stopped. After a couple of minutes, defendant Flores, driving his brown van, arrived on the scene. The officers observed Flores's van drive past their car toward the Dominicci residence. Hernandez made a hand signal to Flores, and Flores pulled the van up onto the sidewalk and stopped. The three men immediately recrossed the street and walked towards the yellow car. One of the men opened the trunk of the yellow car, pulled out a briefcase, and handed it to Hernandez. Hernandez said farewell, walked over to the passenger side of Flores's van, and climbed inside.

The police believed that the briefcase contained contraband, and were determined not to allow the van to get away. As soon as Hernandez entered the van, the police started their car and headed towards it. Meanwhile, the van was moving from the sidewalk onto the street. The Datsun pulled parallel to the van, and then veered to its right in an attempt to force the van to stop. Flores evaded the Datsun, accelerated quickly, and attempted to escape. With the Datsun in pursuit, Flores drove down the street, turned right, and entered the Ariste de Chavier Housing Project. In the middle of the project, the van slowed, and Hernandez, with the briefcase in his hand, leaped out. Hernandez stumbled, and the briefcase hit the ground and sprung open, revealing four pistols. The Datsun stopped in the same location, and all but one officer left the car to capture Hernandez. The remaining officer remained in the Datsun and pursued the van. After a high speed chase, Flores stopped the van and got out. He was then arrested by the pursuing officer.

Further investigation by federal and state authorities revealed the following: The two men from the yellow car had just arrived in Puerto Rico on a flight from Louisiana; they had brought with them the briefcase containing the four pistols. The serial numbers on the pistols had been obliterated, and an engraving tool suited to that task was in the men's luggage. Under 18 U.S.C. Sec. 922(k), it is a crime

for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered.

As a result of this incident, the two men in the yellow car were convicted of violating federal firearms laws, see United States v. Garcia, 818 F.2d 136 (1st Cir.1987), Flores and Hernandez were indicted, and Flores was tried in the instant case.

The government alleges that Flores was a willing aider and abettor of Hernandez, while Flores argues that the evidence is insufficient to prove that he was anything more than an unwitting participant who was caught in the wrong place at the wrong time. Flores testified at trial in his own defense. He stated that on the morning of January 23, he was on his way to visit his mother. As he drove down the street, he spotted Hernandez, who was a casual acquaintance. When Hernandez signalled, Flores, as an act of friendship, stopped the van so that he could give Hernandez a lift. As Flores drove the van off the curb into the street, the unmarked red Datsun suddenly appeared, and tried to cut him off. Flores instinctively accelerated, and continued to flee when occupants of the pursuing Datsun fired shots at him. ¹ Sometime after Hernandez had jumped from the van, Flores began to realize that the Datsun might be a police car, so he ended his flight.

Flores's reason for fleeing when the police Datsun pulled alongside his van was a major issue at trial. Flores denied realizing that the Datsun was a police vehicle. Two police officers testified, however, that when they pulled parallel to the van, they sounded the Datsun's siren. They also testified that the window on the driver's side of the van was open, that Officer Campos Camacho, seated in the front passenger seat of the Datsun, waved his police credentials and told Flores to stop, and that Flores turned his head and looked towards Officer Campos.

Flores gave a different version of events. He testified that all of the van's windows were rolled up because he was using the van's air conditioning. Further, the van had tinted glass. When the Datsun appeared, Flores did look towards his left. Due to the difference in height between a van and a compact car, however, Flores mostly saw the roof of the Datsun, and could not see or hear any police officers.

II.

A. Insufficient Evidence

Flores claims that the evidence was insufficient for the jury to find, beyond a reasonable doubt, that he knowingly aided and abetted Hernandez in an illegal firearms transaction. We disagree. Taken in the light most favorable to the government, the evidence and reasonable inferences therefrom were sufficient to permit the jury to infer that Flores had knowingly agreed to participate in the unlawful firearms transaction. First, the jury could have inferred that Hernandez and the two men were expecting someone to come and pick up Hernandez. After crossing the street, they stopped until Flores arrived, whereupon they immediately recrossed the street and transferred the briefcase from the yellow car to Hernandez. Second, the jury could have found that Flores's stopping his van at Hernandez's hand signal is more consistent with a planned rendezvous than a chance meeting between casual acquaintances. Third, the jury could have found that Flores was well aware that the Datsun was a police car. If so, then Flores's flight from the Datsun implied that Flores knew he was involved in an illegal transaction. See, e.g., United States v. Alvarez, 626 F.2d 208, 210 (1st Cir.1980); United States v. Petrozziello, 548 F.2d 20, 24 (1st Cir.1977).

B. "Other Acts" Evidence

Flores next contends that the district court committed reversible error by allowing into evidence a prior "bad act" in violation of Federal Rules of Evidence 404(b). ² See also Rule 403. The challenged bad act was Flores's alleged possession on September 22, 1984, of a handgun and ammunition in purported violation of Puerto Rico law. State charges for this were still pending at the time of Flores's present trial.

The admissibility of "other bad acts" evidence is determined by a two-step procedure:

As a first step, the judge determines whether the evidence has some "special" probative value that would show intent, preparation, knowledge, or absence of mistake. As a second step, the judge balances the evidence's probative value against the prejudice to the defendant.

United States v. Scelzo, 810 F.2d 2, 4 (1st Cir.1987) (citations omitted). Such evidentiary rulings are committed to the discretion of the district court, and will only be reversed if the district court abuses that discretion. 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). Further, where, as here, the other bad act evidence is introduced to show knowledge, motive, or intent, the Rule 404(b) exceptions to the prohibition against character evidence have been construed broadly. See, e.g., United States v. Cintolo, 818 F.2d 980, 1000 (1st Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 259, 98 L.Ed.2d 216 (1987).

The evidence presented of the prior act showed that, as of September 22, 1984, ³ Flores's wife had been "feuding" with Flores's next-door neighbor. The neighbor called the police, claiming that Flores had shot at the neighbor's house. Two policemen arrived, and as they were discussing the incident with the neighbor, the neighbor noticed Flores and his wife drive by in a car. (Flores was driving; his wife was in the front passenger seat.) The police climbed in their marked police vehicle, turned on the flasher, and began to pursue. After the police began to follow, Flores drove two or three blocks before stopping. Although it was dark, the police were able to observe that two objects were thrown from the passenger's window onto the street. After the officers arrested Flores and his wife, one officer returned to where he thought the objects were thrown from the car,...