U.S. v. Moccia, 81-1532

• Decision Date: 16 June 1982
• Docket Number: No. 81-1532,81-1532
• Citation: 681 F.2d 61
• Parties: 10 Fed. R. Evid. Serv. 1038 UNITED STATES of America, Appellee, v. Nicholas Anthony MOCCIA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 61

681 F.2d 61

10 Fed. R. Evid. Serv. 1038

UNITED STATES of America, Appellee, v. Nicholas Anthony MOCCIA, Defendant, Appellant.

No. 81-1532.

United States Court of Appeals,

First Circuit.

Argued April 9, 1982.

Decided June 16, 1982.

John A. Macoul, Lawrence, Mass., by appointment of the Court, for appellant.

Helen J. Forsyth, Asst. U. S. Atty., Concord, N. H., with whom W. Stephen Thayer, III, U. S. Atty., Concord, N. H., was on brief, for appellee.

Before CAMPBELL, BOWNES, and BREYER, Circuit Judges.

BREYER, Circuit Judge.

Defendant/appellant Nicholas Moccia was convicted of possessing two drugs-marijuana and diethylpropion-with intent to distribute. 21 U.S.C. §§ 812 (Schedule I(c)(10)), 841; 21 C.F.R. § 1308.14(e)(1) (1981). He was sentenced under the "Dangerous Special Drug Offender" statute, 21 U.S.C. § 849, to two concurrent fifteen-year terms. He attacks his conviction and sentence on several grounds. In our view, both must stand.

1. Defendant's first claim is that the trial court erred in allowing the Government to tell the jury that he had previously been convicted in state court for possession of marijuana. The relevant federal rule of evidence is 404(b), which states Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This rule codifies the common law doctrine forbidding the prosecution from asking the jury to infer from the fact that the defendant has committed a bad act in the past, that he has a bad character and therefore is more likely to have committed the bad act now charged. Although this "propensity evidence" is relevant, the risk that a jury will convict for crimes other than those charged-or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment-creates a prejudicial effect that outweighs ordinary relevance. 2 Weinstein's Evidence P 404(04) at 404-26 (1980); Note, Procedural Protections of the Criminal Defendant-A Reevaluation of the Privilege Against Self-Incrimination and the Rule Excluding Evidence of Propensity to Commit Crimes, 78 Harv.L.Rev. 426, 436 (1964). Where the evidence has some "special" probative value, however,-where, for example, it is relevant to something other than mere "character" or "propensity,"-it "may " be admitted. The trial judge then must weigh the special relevance against the prejudicial risk, taking into account the likely hostile jury reaction that underlies the common law rule. United States v. Halper, 590 F.2d 422, 432 (2d Cir. 1978); 2 Weinstein's Evidence §§ 404(08), 404(18). See also United States v. Byrd, 352 F.2d 570, 574-75 (2d Cir. 1965) (Friendly, J.).

In this case there was a "special" factor making the past conviction more than an effort to produce a "bad character/propensity" chain of inference. Evidence was introduced showing that federal agents had found marijuana and diethylpropion buried under some dog food in the freezer room of the farmhouse where defendant lived with his wife (the owner). Bags of marijuana were also found in the barn under a chicken coop. While defendant offered to stipulate that he knew marijuana and diethylpropion were "controlled" substances, and that whatever he did, he did "knowingly" and "intentionally," cf. United States v. Mohel, 604 F.2d 748 (2d Cir. 1979), he would not stipulate that he knew the drugs were in the freezer room or under the chicken coop. By introducing the past conviction, the Government thus, in part, sought to have the jury infer that one who lives on a farm with marijuana in the freezer room and under the chicken coop and has a prior possession conviction is more likely to know about the presence of marijuana than one who lives on such a farm and does not have a past possession conviction.

Such an inference would not have been difficult to draw. The jury might have thought a past possessor is more likely to associate with those who use and keep and talk freely about nearby marijuana; it might have thought a past possessor is more likely to spot marijuana under a chicken coop; it might have thought a past possessor is less likely to throw away marijuana if he comes across it. None of these inferences-all supporting a conclusion of "knowledge"-depends entirely upon the "bad character/propensity" chain of reasoning. See United States v. Sinn, 622 F.2d 415, 416 (9th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980). Cf. United States v. Merryman, 630 F.2d 780, 786 (10th Cir. 1980). But see United States v. Hernandez-Miranda, 601 F.2d 1104, 1108 (9th Cir. 1979). Thus, they escape the absolute bar of the Rule's first sentence.

The question of balancing relevance and risk is more difficult, but we believe that the trial court acted within its 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); 2 Weinstein's Evidence P 404(18) at 404-110 & n.16. On the one hand, the court refused to allow the Government to do more than simply read the prior charge. It instructed the jury to consider the conviction only for its tendency to show knowledge or intent and to ignore whatever light it shed on character or propensity. And the prior conviction (for possession of "more than one pound" of marijuana) was not for a shocking or heinous crime likely to inflame the jury.

On the other hand, there was so much other evidence of guilt in the case that it is difficult to believe the prior conviction was needed. Drug-related equipment was found in public rooms on the farm. Large amounts of cash were found in the defendant's room. The defendant and his wife sold the farm and fled from New Hampshire one month before they were initially to be tried (four years ago). And, the defendant had made two highly incriminating admissions: the day of the search he told one of the agents that they should have waited a few days to raid the farm as the Mexican crop had not yet been harvested. The next day he told two deputy marshals (in their words) that the Government

really blew it. I was going to get two tons of marijuana. In fact, I was talking to the guy on the phone when you raided the place.... I really needed the two tons to get out of the hole, ... but after this, ... I'll never hear from the guy again.

In the face of this evidence, the defense presented no witnesses.

While all this evidence lessened the need for introducing the prior conviction, it also lessened the likelihood of any prejudicial effect-to the point where, even were we to find the evidence inadmissible (which we do not), the error would have been harmless. See United States v. Bosch, 584 F.2d 1113, 1117-18 (1st Cir. 1978); 2 Weinstein's Evidence P 404(18) at 404-111 & n.19.

2. Defendant complains of the trial judge's instruction that the jury not consider any lesser included offenses "until or unless you have arrived at a reasonable doubt on the offenses charged." Defendant does not complain about the well-established rule that a jury is to consider lesser included offenses only after a determination of "not guilty" is reached on the primary charge. See 2 Devitt & Blackmar, Federal Jury Practice and Instructions § 58.15. Rather, he states that this charge somehow implied that the defendant had the burden of coming forward with evidence that would lead the jury to find a reasonable doubt. He claims the charge implied to the jury that "reasonable doubt" had to be created instead of existing from the outset.

We disagree. At the end of the trial, the judge charged the jury as follows:

Consider ... whether the government had sustained its burden of proving beyond a reasonable doubt each offense of possession with intent to distribute with which (Moccia) is charged.

If you find that such burden has been sustained, that is the end of the case as to him. You will have established his guilt as to such offense or offenses. If, however, you find that a reasonable doubt exists as to either or both of such offenses, you must then turn to the issue of whether he is guilty of the lesser included offenses of possession of controlled substances, and here again must consider whether the government has sustained its burden of proof beyond a reasonable doubt as to each of the elements of those offenses. If it has, then he is guilty of the lesser included offense. If it has not, then you must find him not guilty.

The judge then gave the challenged instruction:

I caution you do not turn to the lesser included offense until or unless you have arrived at a reasonable doubt on the offenses charged, that is, possession with intent to distribute.

Taken as a whole, Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); United States v. Thomann, 609 F.2d 560, 565-66 (1st Cir. 1979), this charge certainly seems adequate as to the burden of proof on "reasonable doubt." Moreover, the judge properly charged the jury several different times as to "reasonable doubt" and "presumptions of innocence." We find no violation of "due process" or "fair treatment," In re Winship, 397 U.S. 358, 359, 90 S.Ct. 1068, 1070, 25 L.Ed.2d 368 (1970), or any other basis for complaint.

3. Finally, defendant makes three arguments attacking the "enhanced" fifteen-year concurrent sentences he received as a "dangerous special" drug offender under 21 U.S.C. § 849. First, he claims that at his "enhancement" hearing, the trial judge should not have considered hearsay evidence, evidence derived from "illegal" wiretaps, and evidence not specified in the notice that the statute requires the Government to give prior to trial, 21 U.S.C. § 849(a). The short and conclusive answer to these objections is that the Comprehensive Drug Abuse Prevention and Control Act (of...