U.S. v. Hernandez-Bermudez

• Decision Date: 02 May 1988
• Docket Number: D,No. 88-1003,HERNANDEZ-BERMUDE,88-1003
• Citation: 857 F.2d 50
• Parties: 27 Fed. R. Evid. Serv. 248 UNITED STATES of America, Appellee, v. Clementeefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 50

857 F.2d 50

27 Fed. R. Evid. Serv. 248

UNITED STATES of America, Appellee, v. Clemente HERNANDEZ-BERMUDEZ, Defendant, Appellant.

No. 88-1003.

United States Court of Appeals First Circuit.

Heard May 2, 1988.

Decided Sept. 26, 1988.

Charles P. McGinty, Federal Defender Office, Boston, Mass., for defendant, appellant.

Ralph C. Martin, II, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, Chief Judge, COFFIN, Circuit Judge, and FUSTE, ^* District Judge.

LEVIN H. CAMPBELL, Chief Judge.

Defendant-appellant Clemente Hernandez Bermudez appeals from his jury conviction in the United States District Court for the District of Massachusetts for knowingly and intentionally possessing with intent to distribute cocaine. See 21 U.S.C Sec. 841(a)(1) (1982). The sole ground for appeal is the district court's admission of evidence and its jury instruction regarding defendant's 21-month absence from the jurisdiction in violation of his bail agreement, and subsequent extradition to stand trial. In light of all the evidence against defendant presented at trial, we hold that admission of the flight evidence and the corresponding jury instruction did not prejudice Hernandez's substantial rights. Accordingly, even assuming, without deciding, that admission of the flight evidence would constitute an abuse of discretion in this particular case, we affirm the conviction.

On September 25, 1985, pursuant to a valid search warrant, federal drug agents conducted a search of Hernandez's apartment in Jamaica Plain, Massachusetts, for evidence of drug trafficking. Six or seven agents were present at the search, and one was stationed outside to watch the windows at the rear of the apartment building. At trial, Sergeant Driscoll, who was stationed outside, and Sergeant Murphy and Detective Hartford, two of the agents present inside during the search, testified for the government.

Murphy and Hartford testified that, once they entered the apartment, they found an elderly gentleman, and heard movement coming from behind a closed door in the back of the apartment. After announcing themselves, they broke open the closed door, and discovered defendant in a bedroom. Sergeant Driscoll testified that at approximately the same time, he saw defendant throw two objects from a window at the rear of the building. Driscoll testified that later retrieval of the objects revealed them to be a foil packet of white powder, which was not cocaine, and a sock containing a loaded .25 caliber automatic pistol.

A search of the room revealed several objects indicative of an intent to distribute cocaine, the agents testified. Most importantly, the agents found concealed in the leg of a table a plastic bag containing packets of white powder, revealed by laboratory analysis to be 45 percent pure cocaine. Additionally, testimony revealed, the agents seized from the bedroom a bag of lidocainehydrochloride, some screen-type sifters, and a small mirror. The prosecution entered into evidence a bag of white powder identified as the powder in the foil packet found outside, a plastic bag containing 13 small packets of cocaine, a plastic bag containing lidocainehydrochloride, and the gun and ammunition clip.

Testifying as an expert in drug law enforcement, Detective Hartford explained that such items were consistent with the sale of cocaine. In particular, the amount and purity of the cocaine seized indicated, in Detective Hartford's view, that defendant intended to distribute the substance. Cocaine users rarely have more than one gram of the drug at a time, and the usual strength of cocaine purchased on the street is approximately 21 percent, said the agent. Detective Hartford opined that 45 percent cocaine would be too strong for an individual to inhale without incurring physical injuries. Additionally, the agent testified, both lidocainehydrochloride and non-specific white powder, such as that found in the foil packet, are used in "cutting" or diluting cocaine. The sifting screen and mirror also would be used in the process of diluting the cocaine for sale on the street, Detective Hartford stated.

Although the prosecution entered into evidence 13 small packets of cocaine, there was a dispute at trial over how much cocaine the agents seized. Both Sergeant Murphy and Detective Hartford testified that one plastic bag containing cocaine was seized from defendant's apartment. In completing the return on the search warrant, Detective Hartford indicated that the search revealed 13 packets of the drug. In his report to the Drug Enforcement Administration, however, Detective Hartford wrote that there had been found only 12 packets of cocaine. When asked to explain the discrepancy, Detective Hartford testified that, inside the plastic bag, the cocaine was in two other plastic bags, one containing ten packets and one containing three. Because he did not want to disturb the contents, he explained, he counted the packets through the plastic and miscounted the ten packets as nine. Later, the detective testified, the bag was opened and the two bags containing ten and three packets were discovered.

Defendant disputed much of the evidence presented by the government. Testifying in his own defense, Hernandez admitted that the search revealed cocaine in his bedroom, but testified that there were only three small packets of cocaine, rather than the 13 introduced by the government. Hernandez testified that he is a cocaine addict, and uses between one half a gram and a gram of cocaine daily, having a street value of from $20 to $60. It was unusual for him to have three grams of cocaine at one time, defendant testified, but on this occasion he had purchased extra for a party he was planning. Hernandez denied that the agents' search produced the sifters, lidocainehydrochloride, or mirror. Additionally, he denied that the gun and foil packet were his, and testified that he did not have time to throw them from the window. On cross-examination, Hernandez acknowledged that he was unemployed for the four months preceding his arrest, but stated that he supported his habit by taking odd jobs as a barber, carpenter and mechanic. Hernandez also testified that he was unaware of the cocaine's high purity, but that he had tested it by placing some on his tongue when he purchased it and that it had the same effect on him as cocaine he had purchased in the past. Finally, over Sergeant Driscoll's denial, Hernandez testified that Sergeant Driscoll had approached him on three occasions previous to the search. Defendant testified that on one of those occasions Driscoll had threatened to "get" him, and on another, had conducted a strip search of Hernandez in a public restroom.

In addition to testimony about the search, the government introduced evidence that defendant had absented himself from the jurisdiction for 21 months after being arrested and charged. Upon his initial arrest, Hernandez was released on bail providing that, among other things, he would remain in Massachusetts and report to the court's Pre-Trial Services office thrice weekly. No trial date was set. Soon after his release, Hernandez twice failed to report to Pre-Trial Services, and on October 3, 1985, the court issued a warrant for his arrest. He appeared on October 8, 1985, and subsequently was released subject to similar conditions, except that he was to report to Pre-Trial Services daily. Again, he failed to do so, and the court issued a second arrest warrant on October 22, 1985. Defendant subsequently was found in New Jersey, and was brought before the court 21 months later, on August 10, 1987.

On the stand, Hernandez explained that after the change in his bail conditions, he had gone to New York to be with his wife and child, who were sick. His wife, he testified, was admitted to a New York hospital for six days in November 1985. He admitted that he did not attempt to contact Pre-Trial Services, but stated that he was unconcerned because he was expecting a letter to be forwarded to him from his Massachusetts address telling him when to report for trial. Hernandez testified that he was unaware of the warrant for his arrest.

Upon completion of the parties' cases, the court instructed the jury as follows:

[T]he intentional flight by a defendant after he is accused of a crime is not sufficient by itself to say a man is guilty. However, you may consider the flight of the defendant, in the light of all other evidence in this case, in determining his guilt or innocence.

Whether or not evidence of flight shows a consciousness of guilt and the significance to be attached to any such evidence are matters exclusively within your province.

We find it an exceedingly close question whether the district court erred in admitting the flight evidence. Evidence of an accused's flight may be...