U.S. v. Green, 89-1081

• Decision Date: 06 September 1989
• Docket Number: No. 89-1081,89-1081
• Citation: 887 F.2d 25
• Parties: 28 Fed. R. Evid. Serv. 1542 UNITED STATES of America, Appellee, v. Dalton GREEN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 25

887 F.2d 25

28 Fed. R. Evid. Serv. 1542

UNITED STATES of America, Appellee, v. Dalton GREEN, Defendant, Appellant.

No. 89-1081.

United States Court of Appeals, First Circuit.

Heard Sept. 6, 1989.

Decided Oct. 13, 1989.

Winston Kendall on brief for defendant, appellant.

Robert L. Ullmann, Asst. U.S. Atty., and Wayne A. Budd, U.S. Atty., on brief for the United States.

Before SELYA, Circuit Judge, ALDRICH and GIBSON, ^* Senior Circuit Judges.

PER CURIAM.

On March 17, 1988, an indictment was filed against appellant Dalton Green and eleven codefendants charging a number of drug-related crimes. Green was charged with conspiring to possess and possessing cocaine with intent to distribute in violation of 21 U.S.C. Secs. 846 and 841 (1982) as well as carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c) (Supp. IV 1986). The case against Green was severed before trial because Green was arrested some time after his codefendants. A jury found Green guilty on all three counts. He now appeals, arguing that the district court committed reversible error in (1) admitting into evidence eight firearms and other items of real evidence that unfairly prejudiced him; (2) admitting into evidence statements of a coconspirator in violation of the hearsay rule; and (3) ruling that the evidence was sufficient to convict him.

We conclude that no error was committed by the district court that warrants reversal. Accordingly, Green's conviction is affirmed.

I.

The government's principal witness in this case was Herbert Beech, who had lived at 37 Westmore Road in Boston's Mattapan area since 1980 and testified that from November 1986 through March 1987 Green and his codefendants sold cocaine from the second floor apartment at that residence on a regular basis. The evidence indicated that the Westmore Road apartment was the conspirators' principal retail outlet for cocaine sales; they also worked out of residences on Nelson Street and Fuller Street in the Dorchester area of Boston. Beech testified that between November 1986 and March 1987 he saw Green sell cocaine approximately 20 times and that Green always carried a gun while conducting drug transactions. Beech also testified that on March 5, 1987, a group of Green's coconspirators confronted him (Beech), accused him of being an informer, bound and gagged him, put him in a bathtub, and shot him in the leg.

At trial the government also presented items of real evidence that had been obtained from police searches of the Nelson Street and Fuller Street residences. From the Nelson Street residence the police seized and the government later introduced into evidence six firearms, ammunition, an address book, telephone billing records, cocaine, a photograph of one of Green's coconspirators holding a gun, and a video tape that the conspirators had filmed at 37 Westmore Road that showed several of them, including Green, handling firearms, money, and cocaine. The items introduced by the government that had been seized from the Fuller Street residence included two firearms, ammunition, a scale, and cocaine residue.

II.

We first address Green's claim that the district court's admission of the eight guns and other items unfairly prejudiced him.

Federal Rule of Evidence 403 provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403. We review a district court's decision regarding Rule 403 pursuant to the abuse of discretion standard and are obligated to give great deference to the district court's judgment. United States v. Foley, 871 F.2d 235, 238 (1st Cir.1989); United States v. Pelletier, 845 F.2d 1126, 1130 (1st Cir.1988). We will reverse a district court's decision regarding the comparative probative value and prejudicial effect of evidence only in "exceptional circumstances." United States v. Griffin, 818 F.2d 97, 101 (1st Cir.), cert. denied, 484 U.S. 844, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987). We find no such circumstances here.

The white-handle .22 caliber pistol seized at the Nelson Street residence was highly probative of the firearms offense because it was the gun that Green usually carried while selling cocaine, as observed by Beech. The other firearms were relevant to corroborate Beech's testimony and to establish that Green and his codefendants conspired to distribute cocaine at the three Boston residences. This circuit and others have recognized that in drug trafficking firearms have become "tools of the trade" and thus are probative of the existence of a drug conspiracy. See United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988); United States v. Montes-Cardenas, 746 F.2d 771, 777 (11th Cir.1984); United States v. Perez, 648 F.2d 219, 224 (5th Cir. Unit B 1981), cert. denied, 454 U.S. 1055, 102 S.Ct. 602, 70 L.Ed.2d 592 (1981). We also note that the district judge maintained strict control over the presentation of the firearms evidence to ensure that unfair prejudice did not result. We find no abuse of discretion in the district court's admission of this evidence.

Likewise, the district court's admission of the other items of real evidence, including telephone billing records, a video tape, and a photograph, did not unfairly prejudice the defendant. Each of the items was relevant and served to corroborate Beech's testimony and to link the conspirators to their weapons and to each other.

Green next argues that the district court abused its discretion in admitting into evidence statements made by Green's coconspirator, Homer,...