U.S. v. Mateos-Sanchez

• Citation: 864 F.2d 232
• Decision Date: 04 October 1988
• Docket Number: MATEOS-SANCHE,D,No. 87-2012,87-2012
• Parties: 27 Fed. R. Evid. Serv. 536 UNITED STATES of America, Appellee, v. Manuel L.efendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 232

864 F.2d 232

27 Fed. R. Evid. Serv. 536

UNITED STATES of America, Appellee, v. Manuel L. MATEOS-SANCHEZ, Defendant, Appellant.

No. 87-2012.

United States Court of Appeals First Circuit.

Heard Oct. 4, 1988.

Decided Dec. 29, 1988.

Joyce Frank with whom Leonard Kopelman, Boston, Mass., by Appointment of the Court, Sondra M. Korman, Cambridge, Mass., and Kopelman and Paige, P.C., Boston, Mass., were on brief for defendant, appellant.

Luis A. Plaza, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., and Warren Vazquez, Asst. U.S. Atty., Criminal Div., Hato Rey, P.R., were on brief for appellee.

Before BOWNES and BREYER, Circuit Judges, and BROWN, ^* Senior Circuit Judge.

BOWNES, Circuit Judge.

This appeal arises from the arrest of the defendant-appellant, Manuel L. Mateos-Sanchez, a citizen of Spain, at the Luis Munoz Marin International Airport at Carolina, Puerto Rico on April 29, 1987. Appellant seeks reversal of his conviction by jury trial in district court for the possession, importation and intent to distribute approximately three (3) pounds of cocaine.

Appellant raises five issues on appeal: (1) whether the district court committed reversible error by allowing the prosecutor to question the defendant about his use of drugs and about his possession of a small amount of marijuana at the time of arrest; (2) whether there was sufficient evidence to support the conviction; (3) whether in-transit passengers should be subject to search without some level of suspicion; (4) whether the district court's denial of the defense attorney's motion for travel expenses prevented the defendant from receiving a fair trial; and (5) whether the prosecutor's comments during closing arguments were calculated to inflame the jury and resulted in prejudice to the defendant. We affirm the conviction.

I. BACKGROUND

Appellant, a citizen of Spain, was en route from Bogata, Colombia to Madrid, Spain when his plane, Avianca Airlines Flight 10, made a scheduled stop at Puerto Rico on April 29, 1987. After disembarking from the aircraft and while walking to a passenger waiting area at the airport, appellant drew the attention of a United States Customs official who stopped and questioned him. Finding appellant's answers to be suspicious, the customs official conducted a search of his handbag. A total of approximately three (3) pounds of cocaine was discovered within the dividers of the handbag and within the covers of a photo album which was part of the contents of the handbag.

Appellant denied knowledge of the cocaine and declared that he was carrying the handbag at the request of an unidentified woman whom he had met at the airport in Colombia. The woman allegedly gave him the handbag so that it might be safely carried to another unidentified person in Spain.

Customs officials also searched appellant's suitcase and found a small quantity of marijuana. Although the appellant admitted possession of the marijuana, he stated that it was a gift from friends in Colombia and that it was not for his personal use.

On April 30, 1987, appellant was indicted for violations of 21 U.S.C. Secs. 952(a), 841(a)(1), and 955. The indictment alleged that he: 1) did import into the customs territory of the United States, from a place outside thereof, approximately three (3) pounds of cocaine; 2) did possess with intent to distribute approximately three (3) pounds of cocaine; and 3) did possess on board an aircraft approximately three (3) pounds of cocaine. There was no charge in the indictment based upon the discovery of the marijuana.

II. THE MARIJUANA EVIDENCE

Appellant contends that the district court committed reversible error by allowing the prosecutor to question the defendant about his use of drugs. He further argues that the error was compounded by allowing the answer to the question to be used as the basis for introducing otherwise inadmissible testimony about his possession of a small amount of marijuana at the time of arrest, and the admission of the marijuana itself as an exhibit.

No mention was made during the prosecution's case-in-chief of the marijuana found in the defendant's suitcase. But, when the defendant was being cross-examined, the prosecutor asked:

And of course, you don't use drugs?

This question elicited the following response:

DEFENSE COUNSEL: Objection, Your Honor.

THE WITNESS: No. sir.

THE COURT: Overruled.

The prosecutor resumed cross-examination with the following sequence resulting:

MR. PLAZA: Okay. You remember, sir, that also you brought, as part of your baggage, another suitcase?

DEFENSE COUNSEL: I will object, Your Honor. Could we approach the bench? (Counsel approached the bench.)

DEFENSE COUNSEL: Your Honor, Brother Counsel Plaza is trying to bring into evidence the marijuana that was not charged in the indictment, for personal use or whatever reason he has in the luggage. However, whatever use he had it there, that could be charged, it was not charged in the indictment. We are not here--we're not putting and we never put into the direct examination the character. The only way Brother Counsel Plaza can bring that will be under 404(b), which also states that you have to refer to 403; 403 clearly establishes, Your Honor, that circumstantial evidence about character is extremely prejudicial to any person whatsoever.

This is not facts. It doesn't have anything to do with the facts whatsoever. Whatsoever was charged in the indictment. And the character is not one of the elements or a defense in the case.

THE COURT: Unfortunately, you're right. You're a hundred percent right except he asked him you don't use drugs, and he said no. So, now all of a sudden it becomes an issue of his credibility.

In addition to the testimony of marijuana possession, the court allowed the prosecutor to put in evidence the packet of marijuana taken from defendant's suitcase. No limiting instruction was requested or given at the time. Defense counsel did not request any final jury instructions on this point, and he did not object to the failure of the court to include a limiting instruction in the jury charge.

We first determine whether the prosecutor's initial question regarding the defendant's use of drugs should have been excluded. Appellant argues that the question could not be allowed to show character under Fed.R.Evid. 404(a) ¹ because character had not been made an issue by the accused. He further argues that the question could not have been asked to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident under Fed.R.Evid. 404(b) ² because it was more prejudicial than probative and could not pass the required balancing test under Fed.R.Evid. 403. ³

Rule 404(a) states that evidence of a person's character or a trait of his character is not admissible for purposes of proving that he acted in conformity therewith on a particular occasion, except that evidence of a pertinent trait of his character may be offered by an accused or by the prosecution to rebut the same. Evidence of a character trait was not offered by the defendant. Therefore, the question in regard to the defendant's prior drug use could not have found legitimate foundation in Rule 404(a).

Although the trial record does not disclose the basis of the defense attorney's objection ⁴ or the reasoning of the trial judge in overruling the objection, the question as to whether the defendant used drugs may have been admissible under Rule 404(b). Rule 404(b) provides that although evidence of other crimes, wrongs and acts is not admissible to prove character of a person, it may be admissible for other purposes, such as proof of motive, knowledge or absence of mistake or accident. We have held that where a past bad act is relevant only because it shows bad character, Rule 404(b) automatically excludes the evidence. United States v. Rubio-Estrada, 857 F.2d 845, 846 (1st Cir.1988). But, past bad acts which are also relevant in any other way which does not involve character are not automatically excluded from evidence and will be admitted unless substantially outweighed by the risks of prejudice, confusion or waste of time. Id. at 847 (citing J. Weinstein & M. Berger, 2 Weinstein's Evidence Sec. 404; 1 Weinstein's Evidence Sec. 403-.

The question regarding the use of drugs was probative. Because the defendant was charged with possession and intent to distribute narcotics, a knowledge of whether he used drugs could aid the jury in assessing guilt. The defendant's personal use of drugs could be particularly probative of motive, knowledge or absence of mistake or accident.

Having determined that the question was probative, the issue then becomes whether its probative value was substantially outweighed by prejudice to the defendant. The trial court has considerable leeway in balancing the legitimate probative value that such evidence may have against its potential prejudicial effect. United States v. Simon, 842 F.2d 552, 555 (1st Cir.1988); United States v. Crocker, 788 F.2d 802, 804 (1st Cir.1986). The trial court, as a first step, determines whether the evidence has some special probative value as to any of the factors listed in Rule 404(b). United States v. Scelzo, 810 F.2d 2, 4 (1st Cir.1987); United States v. Kadouh, 768 F.2d 20, 21 (1st Cir.1985). As a second step, the judge balances the probative value against prejudice to the defendant. Id. The balancing is committed to the district court judge's judgment and will be reversed only for abuse of discretion. Id.

Although prejudice may have resulted from the defendant's answer, the court was entitled to conclude that the probative value of the evidence was not substantially outweighed by its possible prejudice. It was within the district court judge's discretion to make such a Rule 403 determination. Under the circumstances of this case, the district court judge did not abuse his discretion in allowing the prosecutor to question the...