U.S. v. Rivera, s. 85-1768

• Decision Date: 20 January 1988
• Docket Number: 85-1771,Nos. 85-1768,s. 85-1768
• Parties: , 24 Fed. R. Evid. Serv. 827 UNITED STATES of America, Plaintiff-Appellee, v. Luis Anthony RIVERA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 906

837 F.2d 906

56 USLW 2466, 24 Fed. R. Evid. Serv. 827

UNITED STATES of America, Plaintiff-Appellee, v. Luis Anthony RIVERA, Defendant-Appellant.

Nos. 85-1768, 85-1771.

United States Court of Appeals Tenth Circuit.

Jan. 20, 1988.

Louis Vernell, North Miami Beach, Fla. (Gregory Meier, Muskogee, Okl., on the brief of defendant-appellant, and Louis Vernell on the supplemental brief), for defendant-appellant.

Gene V. Primomo, Asst. U.S. Atty. (Roger Hilfiger, U.S. Atty., E.D. Okl., with him on the brief), Muskogee, Okl., for plaintiff-appellee.

Before McKAY and MOORE, Circuit Judges, and BROWN, District Judge ^*.

McKAY, Circuit Judge.

Luis Anthony Rivera was found guilty of all counts under both a seven-count indictment (indictment I) and a six-count indictment (indictment II) in a consolidated trial. He was sentenced to the maximum term allowable under every count with each to run consecutively, resulting in a life sentence without parole plus 140 years.

Indictment I charged defendant and six other named individuals, with: (1) conspiracy to import cocaine in violation of 21 U.S.C. Secs. 952(a), 960, and 963 (1982 & Supp. III 1985); (2) importation of cocaine in violation of 21 U.S.C. Secs. 952(a) and 960 (1982 & Supp. III 1985); (3) conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982); (4) possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1982); (5) conspiracy to travel in interstate and foreign commerce with the intent to import and possess with the further intent to distribute cocaine in violation of 18 U.S.C. Secs. 371 and 1952(a)(3) (1982); (6) traveling in interstate and foreign commerce with intent to import and possess with the further intent to distribute cocaine in violation of 18 U.S.C. Sec. 1952(a)(3) (1982); and (7) engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. Sec. 848 (1982 & Supp. III 1985). See Indictment, record, vol. 1, at 1-12.

The acts described in indictment I allegedly occurred between January 1, 1983, and July 1, 1983, culminating in 460 pounds of cocaine being smuggled from Columbia to an isolated airstrip in Talihina, Oklahoma, on the latter date. The defendants had allegedly arranged to hide the narcotics in secret compartments in various horse trailers and pickup trucks for transport to Miami, Florida, for further distribution across the country. The plan was interrupted with the arrest of several of the defendants and seizure of the cocaine shortly after it was transferred from the aircraft to a pickup truck in twenty-four green duffel bags. Mr. Rivera was arrested approximately eighteen months later.

The indictment detailed Mr. Rivera's recruiting activities in finding someone both to locate an appropriate airstrip and to arrange transport of the cocaine to Miami. It described the purchases of the Cessna aircraft and two pickup trucks used to transport the cocaine and recounted the travels of the various participants under assumed names in the days before July 1, 1983. All actions and facts alleged in the indictment were directly related to the July 1, 1983, transaction.

The six counts in indictment II were identical to the first six counts in indictment I, but they related to actions allegedly occurring between May 1, 1982, and July 12, 1982. There was no CCE count. The indictment only charged defendant and Alan Ronald Kaye, although it named two unindicted co-conspirators who were indicted in indictment I. The smuggling operation described was similar to that in indictment I, allegedly resulting in the successful importation of approximately 400 pounds of cocaine into Talihina on July 12, 1982, which were then transported to Florida. See indictment, record, vol. 2, at 1-7. All of the alleged actions and facts in indictment II directly pertained to the July 12, 1982, operation.

I.

Mr. Rivera contends that the trial court erred in admitting evidence of two substantial drug offenses not charged in either indictment. The first transaction occurred in May of 1983 when the defendant contacted Cecil Ford, an indicted co-conspirator under indictment I, and instructed him to travel from Florida to the Denver Airport to deliver five kilos of cocaine. Mr. Ford was paid $5,000.00 for the job. The second transaction occurred approximately one week prior to the July 1983 importation charged in indictment I. The defendant instructed William Sebolt and Rogers Ariza, also indicted co-conspirators under indictment I, to travel from Oklahoma to Milwaukee, Wisconsin, in order to pick up cocaine from a parked aircraft. They did so, placing the cocaine in a hidden compartment in a truck provided by Mr. Rivera, and transported the cargo to Florida. Upon delivering the cocaine to the defendant, Messrs. Ariza and Sebolt received cash payments of $10,000.00 and $5,000.00, respectively. Each of the three coconspirators testified at length to these events, and the prosecutor cited them in both his opening statement and closing argument. See record, supp. vol. 2, at 126-27; supp. vol. 4, at 479-87; supp. vol. 5, at 686-96, 751-55; supp. vol. 7, at 1,222-24.

Defendant's counsel apparently learned of this line of evidence from the prosecution shortly before trial and at the beginning of the trial moved to exclude evidence of these uncharged offenses. See id., supp. vol. 2, at 97-106. The prosecutor freely admitted that "the reason that [these offenses were] not in the indictment is at the time the indictment was drafted we did not know that." Id. at 99 (emphasis added). The record clearly shows that this evidence was not presented to the grand jury that returned the indictment.

The prosecution offered three grounds supporting admissibility of this evidence: (1) that it was direct support indicating Mr. Rivera was a supervisor or manager within the meaning of the CCE statute, id. at 98; (2) that it showed "agreements and plans and whatnot" in general support of the CCE charge, id. at 100; and (3) that it was circumstantial evidence showing "four or five things, one of which is absence of mistake, motive, intent, identity, I forget what all, there are four or five" and was thus admissible under Fed.R.Evid. 404(b). ¹ Id. at 103.

In response to the prosecution's assertion that such evidence is admissible "mainly under the continuing criminal enterprise," id. at 100, defendant's counsel argued that the CCE count of the indictment "specifically allege[d] that Mr. Rivera caused the importation of cocaine in the United States and caused the possession of cocaine with intent to distribute as alleged in Counts Two and Four of this indictment." Id. at 101 (emphasis added). As noted, counts two and four, indeed the entire indictment, discussed only facts regarding preparation for and execution of the July 1983 Oklahoma importation. ² Defense counsel submitted that

if these particular serious offenses, transporting cocaine up to Wisconsin, transporting cocaine to Colorado, if those are to be part of this indictment and a part of this case, I think the law is that they have to take that matter back to the grand jury, because it's a substantial variance from what they have alleged that they're going to prove to prove [sic] this count.

Id. at 102-03. Furthermore, with respect to the Rule 404(b) ground, defense counsel argued that none of the 404(b) elements was at issue in this case. See id. at 104.

In ruling the evidence admissible, the trial court stated, "In my opinion it's relevant and closely connected, and I think it fits under the conspiracy as an overt act, if nothing else, but certainly under Rule 404(b)." Id. at 105. The court also overruled defendant's motion for a mistrial on these grounds after the prosecutor's opening statement. Id. at 137. Each of his ensuing objections were similarly overruled, but the court cited only Rule 404(b) grounds on each subsequent occasion. See record, supp. vol. 4, at 480-81; supp. vol. 5, at 688-90, 751.

"Various circuit courts have admitted into evidence proof of other illegal controlled substance activities in a trial dealing with illegal controlled substance charges, as establishing various elements of the crime." United States v. Nolan, 551 F.2d 266, 271 (10th Cir.) (citations omitted), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977). Nevertheless, "[t]he use of other crimes evidence is not looked on favorably and its use must be narrowly circumscribed and limited." United States v. Lewis, 787 F.2d 1318, 1321 (9th Cir.1986). In this circuit,

the Government bears the burden of showing how the proffered evidence is relevant to one or more issues in the case.... The Government must articulate precisely the evidentiary hypothesis by which a fact of consequence may be inferred from the evidence of other acts. In addition, the trial court must specifically identify the purpose for which such evidence is offered and a broad statement merely invoking or restating Rule 404(b) will not suffice. A specific articulation of the relevant purpose and specific inferences to be drawn from each proffer of evidence of other acts will enable the trial court to more accurately make an informed decision and weigh the probative value of such evidence against the risks of prejudice specified in Rule 403. This requirement is an attempt to ensure that a decision to admit or exclude be made only after issues and reasons are exposed and clearly stated. In addition, specific and clear reasoning and findings in the trial record will greatly aid an appellate court in its review of these evidentiary issues.

United States v. Kendall, 766 F.2d 1426, 1436-37 (10th Cir.1985) (emphasis added) (citations omitted), cert. denied, 106 S.Ct. 848, 474 U.S. 1081, 88 L.Ed.2d 889 (1986).

Furthermore, in order for evidence to be admissible under Rule 404(b), "[t]he element of the prior crime for which there is a recognized exception to the...