U.S. v. Ramirez, s. 298
| Decision Date | 24 January 1990 |
| Docket Number | Nos. 298,313,D,s. 298 |
| Citation | 894 F.2d 565 |
| Parties | 29 Fed. R. Evid. Serv. 1400 UNITED STATES of America, Appellee, v. John Alonso RAMIREZ, and Zeir Marulanda, Defendants-Appellants. ockets 89-1110, 89-1127. |
| Court | U.S. Court of Appeals — Second Circuit |
Dennis C. Murphy, Norwalk, Conn. (Mary Beattie Schairer, Norwalk, Conn., of counsel), for defendant-appellant, John Alonso Ramirez.
James M. Kearns, Bridgeport, Conn., for defendant-appellant, Zeir Marulanda.
James I. Glasser, Asst. U.S. Atty., Bridgeport, Conn. (Stanley A. Twardy, Jr., U.S. Atty. for Conn., Holly B. Fitzsimmons, Asst. U.S. Atty., Bridgeport, Conn., of counsel), for appellee.
Before OAKES, Chief Judge, and KEARSE and ALTIMARI, Circuit Judges.
Defendants John Alonso Ramirez and Zeir Marulanda appeal from judgments of the United States District Court for the District of Connecticut (T.F. Gilroy Daly, Judge) convicting them after a jury trial of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1), and of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846. On this appeal, Ramirez argues that his conviction should be reversed on the ground that the district court improperly admitted subsequent similar act evidence. Marulanda, Ramirez's co-defendant, asserts that the similar act evidence, admitted against Ramirez only, unduly prejudiced him, and therefore denied him a fair trial. In addition, Marulanda contends that the district court committed reversible error both when it held certain evidence to be inadmissible hearsay, and when it instructed the jury concerning flight as possible evidence of his guilt. For the reasons stated below, we affirm the judgments of conviction against both defendants.
On November 19, 1987, a United States Customs inspector at the Bridgeport, Connecticut, Post Office on a routine inspection discovered a package sent from Venezuela in which approximately six pounds of cocaine were secreted in a Spanish language encyclopedia. The package was addressed to Jose Manuel Grisales at 300 Lyons Terrace, Bridgeport, Connecticut. In preparation for a controlled delivery, federal agents equipped the package with a court-authorized electronic monitoring device. Following a successful delivery and a twenty-four hour surveillance period of the premises, the agents decided to obtain a search warrant. The ensuing search of 300 Lyons Terrace disclosed neither any trace of Jose Manuel Grisales, nor evidence of drug trafficking; the unopened package was recovered from under a basement staircase. Subsequent investigation revealed that Baltazar and Carmen Hernandez resided with their two children at 300 Lyons Terrace. Mrs. Hernandez explained that a woman who lived in Philadelphia with her husband's half-brother, Gennaro Figueroa (a/k/a "Lachuga"), had asked them to hold the package.
Approximately two weeks after the search, the Bridgeport Post Office received a change of address form in the name of Jose Manuel Grisales that redirected mail from 300 Lyons Terrace to 147 Grove Street, Bridgeport. Federal agents sent a postal notice to inform Grisales at the Grove Street address that a package addressed to him could be procured at the post office. On December 22, 1987, the defendants John Ramirez and Zeir Marulanda claimed the package. Ramirez presented a social security card in the name of Jose Manuel Grisales to a federal agent posing as a postal clerk, and signed that name to a receipt.
After accepting the package, the defendants departed in Marulanda's car. Federal and local police officers followed in unmarked cars as the defendants proceeded in a seemingly aimless and surveillance conscious manner. Anticipating a sudden acceleration in speed, Bridgeport Detective Rafael Villegas and his partner forced the defendants to the side of the road. The defendants were found to be in possession of the package and taken into custody.
At the joint trial of the defendants, Ramirez testified on his own behalf, and denied any involvement in the sale or purchase of cocaine. Ramirez further testified that he had no knowledge of the contents of the package. He claimed to be simply picking-up the package for his friend, Grisales. In addition, Ramirez stated that he and Grisales had entered the country illegally, and that shortly before claiming the package, he and Marulanda had visited Grisales in Philadelphia where they were introduced to Lachuga.
Prior to trial, the government filed notice of its intention to introduce evidence that Ramirez participated in an attempted sale of cocaine subsequent to his December 1987 arrest. The district court, after inquiring into the nature of the evidence, reserved its decision. In response to Ramirez's disavowal of any involvement in the cocaine trade, the government in its rebuttal case sought to introduce the similar act evidence under Federal Rule of Evidence 404(b) for the purpose of proving knowledge. Defense counsel objected to the admission of the evidence on the ground, inter alia, that it was unfairly prejudicial. After hearing the defense position, the district court ruled in favor of the government. Consequently, the jury heard testimony from Bridgeport Detective William Perez that in September 1988 Ramirez and associates met in a Bridgeport pizza parlor to negotiate the price and delivery of one and one-half pounds of cocaine. Both at the time of this testimony and later in the jury charge, the district court cautioned the jury that the evidence was introduced for a limited purpose only as it pertained to Ramirez, and not to Marulanda.
Although Marulanda did not testify at trial, the theory of his defense was that he was set up by Grisales and Lachuga who left him unapprised of the package's contents in order to protect themselves and Lachuga's half-brother, Baltazar Hernandez. In corroboration of the theory, Marulanda sought to admit into evidence two affidavits of Special Agent Kevin McGettrick of the United States Customs Service. McGettrick's affidavits were prepared in support of a request to the court to place the electronic monitoring device in the package shortly before the controlled delivery, and a request for the search warrant for the Hernandez residence. Both affidavits were based on information supplied to McGettrick by other police officers. The district court refused them as inadmissible hearsay.
As an element of its direct case against Marulanda, the government introduced evidence of an admission made while he was incarcerated at the Bridgeport Correctional Center prior to trial. Another inmate in custody at the jail on drug related charges, Pedro Avila, testified that Marulanda revealed to him his participation in the cocaine trade, his knowledge of the contents of the package, as well as his awareness that the package was sent in a different name in order to avoid a problem should its contents be discovered.
Finally, defense counsel for Marulanda objected to a proposed jury charge on the issue of flight, claiming that the testimony of Detective Villegas was insufficient to support such a charge. The district court charged the jury as follows:
The intentional flight or attempt to avoid detection by a person immediately after the commission of a crime is not, of course, sufficient in itself to establish a Defendant's guilt but it is a fact, which if proved to your satisfaction, may be considered by you in light of all other evidence in the case in determining guilt or innocence. Whether or not there's evidence of flight or evidence of an attempt to avoid detection in this case is a matter for you the jury to decide. However, in reviewing such evidence, if you understand that such exists, you should consider, if you understand flight, whether there may be reasons for this which are fully consistent with innocence of the offenses charged in the indictment. Similarly, there may be perfectly innocent reasons for any attempt to avoid detection if you understand such an attempt was made.
Trial Transcript, January 10, 1989, at 51-52. Marulanda's attorney again objected to the charge at the time it was given.
The jury returned its verdict finding both defendants guilty on counts one and two of the indictment. On March 7, 1989, the district court imposed terms of imprisonment on both defendants; they are presently incarcerated.
The sole issue raised by Ramirez on this appeal is whether the district court erred when it allowed the government to introduce similar act evidence. Specifically, Ramirez argues that the district court's admission of Detective William Perez's testimony was inconsistent with the Supreme Court's analysis of Federal Rule of Evidence 404(b) in Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). We disagree.
In Huddleston, 108 S.Ct. at 1502, the Court framed a four part test by which to determine if the admission of evidence under Rule 404(b) might be unfairly prejudicial. Pursuant to this analysis, the district court must insure that the evidence is: advanced for a proper purpose; relevant to the crime for which the defendant is on trial; more probative than prejudicial; and, if requested, admitted with limiting instruction to the jury. Id.; United States v. Colon, 880 F.2d 650, 656 (2d Cir.1989); United States v. Ortiz, 857 F.2d 900, 903 (2d Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1352, 103 L.Ed.2d 820 (1989).
First, the evidence in question must be proffered for a "proper purpose." Huddleston, 108 S.Ct. at 1502. Rule 404(b) expressly provides that similar act evidence may be admitted for the purpose of proving knowledge. When the defendant disavows awareness that a crime was being perpetrated, and the government bears the burden of proving the defendant's knowing possession as an element of the crime, knowledge is properly put...
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