U.S. v. Prati
| Decision Date | 16 November 1988 |
| Docket Number | No. 87-1960,87-1960 |
| Citation | 861 F.2d 82 |
| Parties | 27 Fed. R. Evid. Serv. 66 UNITED STATES of America, Plaintiff-Appellee, v. Robert Anthony PRATI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
David Botsford, Frank Maloney, Austin, Tex., for plaintiff-appellee.
Jack Frels, LeRoy Morgan Jahn, Janet E. Bauerle, Asst. U.S. Attys., San Antonio, Tex., Helen M. Eversberg, U.S. Atty., Austin, Tex., for defendant-appellant.
Appeal from the United States District Court for the Western District of Texas.
Before WISDOM, GEE, and RUBIN, Circuit Judges.
The defendant, Robert Anthony Prati, was convicted of conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. Sec. 846 and of possession with the intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a). On appeal the defendant presents several grounds for reversal of his convictions and challenges the court's imposition of consecutive sentences. We reject the defendant's arguments and affirm the convictions and the sentences.
The defendant contends that police officers violated his fourth amendment rights by removing and later conducting a warrantless search of a briefcase found in the car the defendant was driving when he was stopped by the police.
On May 2, 1985 an informant cooperating with the Austin Police Department arranged to buy half of a pound of cocaine from Breck Craig. Craig identified his source of the drug to the informant as "Bobby". Based on Craig's statement to the informant that Bobby would drop off the cocaine at a specified apartment around 9:00 p.m., several police officers conducted surveillance at the apartment complex, and around 9:45 p.m. they saw a man drive up in a white Renault and carry a black briefcase into an apartment. About five minutes later, Craig left the apartment and drove to the pre-arranged location to complete the sale to the informant. The police met Craig there and arrested him with almost six ounces of cocaine in his possession. Within an hour, back at the apartment complex, the police saw the man with the briefcase who had arrived earlier move hurriedly back to the Renault and speed away. The car was traveling at up to 60-70 mph, but the police were able to stop the vehicle after a short pursuit. The driver, Robert Prati, refused to give permission to search the car. The police determined that the car was not registered to Prati and detained Prati for about ten minutes for questioning. During the detention the officers learned from the police department that Craig had named Robert Prati as the source of the cocaine. Prati was placed into custody, his briefcase was removed from the car, and the car was inventoried cursorily. Later, at the station, the police conducted a warrantless search of the briefcase and discovered several small notebooks containing calculations, initials, and telephone numbers, as well as a piece of paper with a chemical formula later determined to be that of amphetamines.
On these facts we conclude that based on the totality of the circumstances the officers had a reasonable or well-founded suspicion that the man driving the white Renault, later identified as Robert Prati, had distributed cocaine to Craig and therefore the stop was permissible under Terry v. Ohio. 1 Based on the informant's tips from Craig and the officers' surveillance there was a particularized and objective basis for suspecting Prati of criminal activity. See United States v. Cortez. 2 Craig's identification of Prati as the source, information conveyed to the officers at the scene about ten minutes after they stopped Prati, provided probable cause to arrest Prati and to search the car for contraband, including the missing 1-2 ounces of cocaine, and for evidence of the crime. 3
A warrantless search of an automobile is permissible where, as here, officers have probable cause to believe that the vehicle contains contraband. Carroll v. United States. 4 The scope of the search is as extensive as a magistrate could legitimately authorize in a warrant. In United States v. Ross, 5 the Supreme Court made it clear that closed containers, such as the defendant's briefcase, are not immune from the search: "If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." The search need not be conducted immediately; it may take place at the police station. See United States v. Johns. 6 Having learned that only about six ounces of cocaine were delivered rather than the eight ounces the informant agreed to buy from Craig, the officers who stopped Prati had probable cause to believe that up to two ounces of cocaine were on Prati's person, in his briefcase, or in the car. Therefore, we conclude that the warrantless search of the defendant's briefcase did not violate the fourth amendment and suppression of the evidence obtained was properly denied on this ground.
The defendant also contends that contents of the briefcase, the testimony of an officer regarding these items, and Craig's testimony regarding previous drug purchases from the defendant should have been suppressed under Fed.R.Evid. 404(b) and our decisions in United States v. Beechum 7 and United States v. Robinson. 8 We disagree.
Rule 404(b) prohibits the admissibility of evidence of other crimes, wrongs, or acts to show a person's character but permits admissibility of such evidence to prove motive, opportunity, intent, preparation, plan, or knowledge. In Beechum we established a two-pronged analysis for determining the admissibility of evidence of extrinsic acts or offenses. First, the extrinsic evidence must be relevant to a matter referred to in Rule 404(b) other than the defendant's character. Second, the probative value of the evidence must not be outweighed substantially by its undue prejudice and must otherwise comply with Rule 403. 9 In Robinson this Court determined that it may be proper to remand a case to the trial court for an on-the-record evaluation of the probative value and prejudicial effect of the evidence where the defendant has objected to admissibility, the trial court has not given reasons for its ruling, and it is unclear from the record whether the Beechum requirements have been satisfied. 10 Despite appellate counsel's admission at oral argument that there was no request for an on-the-record Beechum finding, counsel nevertheless argues for reversal contending that Beechum was not complied with. We disagree.
The trial court admitted into evidence the witnesses' testimony, the spiral notebooks containing calculations, and the written formula based on the prosecutor's contention that the evidence was relevant to show intent, knowledge, motive, and opportunity. Although trial counsel for the defendant objected based on the prejudicial impact of the evidence, the court concluded that its probative value was greater than its prejudicial impact. Considering that no objection was made regarding the relevance of the evidence and that the court heard counsels' arguments before ruling on the objection, we find no reason to remand for further Beechum findings. We note that in a conspiracy case the mere entry of a not guilty plea raises the issue of intent sufficiently to justify the admissibility of extrinsic offense evidence. 11 Moreover, a trial court has broad discretion in determining the admissibility of evidence, including its relevance, probative value, and prejudicial effect. United States v. Vincent. 12 A district court's ruling on admissibility will not be reversed on appeal absent an abuse of discretion. Although more extensive on-the-record findings would have aided our determination that the trial court considered all the relevant factors under Beechum and Fed.R.Evid. 403, the court's ruling, in the light of the attorneys' arguments on the motion made to the judge out of the jury's presence, was not an abuse of discretion.
The defendant next contends that even if the evidence of extraneous acts and offenses was admitted properly, the court's failure to provide an instruction limiting the jury's consideration of this evidence is error warranting reversal of his conviction. Where, as here, a limiting instruction is not requested by defense counsel, the court's failure to provide such an instruction on its own is tested under the plain error standard of Fed.R.Crim.P. 52(b). 13 Under this standard the defendant "must demonstrate that the charge, considered as a whole, is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice". 14
Because in our criminal trial system counsel is charged with the important task of safeguarding his client's rights, in these circumstances where counsel for the complaining party has failed to bring a potentially reversible error to the trial court's attention, we limit our inquiry on appeal. Our question is whether "the need for the instruction is obvious and the failure to give it so prejudicial as to affect substantial rights of the accused". United States v. Garcia. 15 We are unable to conclude that the court's jury instructions, as a whole, were so deficient that they significantly prejudiced the defendant's rights. Although the trial court should have cautioned the jury to consider the extrinsic act/offense evidence only as it related to the defendant's intent, knowledge, or opportunity, it did warn the jury:
The defendant is not on trial for any act or conduct or offense not alleged in the indictment.
Because the calculations in the notebooks did not identify particular prior drug transactions we find that the lack of a specific limiting instruction regarding this evidence did not rise to the level of plain error. Considering the instructions as a whole we...
To continue reading
Request your trial
-
Nichols v. Scott
...176, 178 (5th Cir.) (original emphasis), cert. denied, 493 U.S. 831, 110 S.Ct. 102, 107 L.Ed.2d 66 (1989). Moreover, in United States v. Prati, 861 F.2d 82 (5th Cir.1988), we concluded that the Supreme Court, in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), "rejected......
-
U.S. v. Hall
...v. Johnson, 98 F.3d 171, 174 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1262, 137 L.Ed.2d 341 (1997); United States v. Prati, 861 F.2d 82, 87 (5th Cir.1988). Ross makes clear that, in disposing of Hall's Sixth Amendment claim, our inquiry is limited to an evaluation of the impar......
-
Jones v. State
..." error), 9 does the exclusion of a juror by an unintentional mistake amount to a constitutional violation. United States v. Prati, 861 F.2d 82, 87 (5th Cir.1988). Accord, United States v. Gonzalez-Balderas, 11 F.3d 1218, 1222 (5th Cir.), cert. denied, 511 U.S. 1129, 114 S.Ct. 2138, 128 L.E......
-
U.S. v. Sherrod
...U.S. ----, 112 S.Ct. 1499, 117 L.Ed.2d 638 (1992); United States v. Posner, 865 F.2d 654, 658 n. 1 (5th Cir.1989); United States v. Prati, 861 F.2d 82, 86-87 (5th Cir.1988). Such instructions were given in this Finally, prejudice from either the extrinsic act evidence or the failure to gran......
-
Trial
...by the defense, and there is no evidence that the jury selected was other than representative and impartial. United States v. Prati , 861 F.2d 82, 87 (5th Cir. 1988) (granting one extra challenge to government was not reversible error); United States v. Gleason , 616 F.2d 2, 29 (2d Cir. 197......