U.S. v. Santana, 88-2389
| Decision Date | 15 June 1989 |
| Docket Number | No. 88-2389,88-2389 |
| Citation | 877 F.2d 709 |
| Parties | UNITED STATES of America, Appellee, v. Juan Carlos SANTANA, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Norman Wilkinson, Fort Smith, Ark., for appellant.
William M. Cromwell, Fort Smith, Ark., for appellee.
Before BOWMAN and WOLLMAN, Circuit Judges, and HENLEY, Senior Circuit Judge.
Juan Carlos Santana appeals his convictions for conspiracy to distribute cocaine, pursuant to 21 U.S.C. Sec. 846, possession with intent to distribute cocaine, pursuant to 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, and distribution of cocaine, pursuant to 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. We affirm the district court's 1 judgment.
In the fall of 1987, the Fort Smith, Arkansas, Police Department and the Drug Enforcement Administration (DEA) initiated an undercover investigation of Santana, David Garcia, and others. On October 26, 1987, a DEA agent taped a telephone conversation between himself and Santana during which they discussed a sale of approximately three ounces of cocaine in exchange for $5,000.00. Three days later, two DEA agents met with Santana and discussed the proposed sale. After a period of delay, the agents and Santana went to Garcia's home, where Santana handed three ounces of cocaine to the agents. In exchange, the agents gave $2,500.00 to Santana and $2,500.00 to Garcia.
The jury found Santana guilty of three cocaine-related offenses. The district court sentenced him to nine years' imprisonment for each offense, the sentences to run concurrently. The court also ordered Santana to pay a special assessment of $150.00 and restitution to the DEA in the amount of $2,500.00.
For reversal, Santana first claims that the district court admitted evidence of prior acts "to show action in conformity therewith," in violation of Fed.R.Evid. 404(b). The government, however, claims that the prior acts evidence was not used to show conforming behavior, but rather to show intent.
The evidence at issue here is testimony given by one of the DEA agents who purchased the three ounces of cocaine from Santana. The agent testified that on October 7, 1987, he purchased two one-eighth ounce quantities of cocaine from Santana, and that on October 8, 1987, he purchased one-half an ounce of cocaine from Santana. Following the agent's testimony, the district court instructed the jury that the evidence was admitted "for the purpose of showing, to the extent you think it shows, a plan or intent or knowledge on the part of [the defendant]."
Santana's intent was a material element in both the charge of conspiracy to distribute and the charge of possession with intent to distribute cocaine. The DEA agent's testimony was relevant because testimony of prior drug transactions is admissible to prove that a defendant acted knowingly and intentionally. United States v. Maichle, 861 F.2d 178, 180 (8th Cir.1988). With regard to the similarity of acts, it is difficult to imagine acts that are more alike. The cocaine transactions took place between the same parties and within the same month. The district court thus properly admitted the DEA agent's testimony regarding Santana's prior cocaine dealings.
Santana's second contention is that the government improperly commented on his failure to subpoena under Fed.R.Crim.Pro. 17 or depose under Fed.R.Crim.Pro. 15 an alibi witness that Santana had not called to testify. At trial, Santana claimed that he was in Miami from October 20 through October 30 of 1987, staying with a friend, Benjamin Gonzales. In closing argument, the government noted that Gonzales had not been called to testify and that even if Gonzales "didn't want to get involved in anything," as Santana alleged, Santana could have...
To continue reading
Request your trial
-
85 Hawai'i 49, State v. Napulou
...may comment on the credibility of defense witnesses and the lack of evidence corroborating a defendant's alibi. United States v. Santana, 877 F.2d 709, 711 (8th Cir.1989) ("The prosecutor is free to comment on the failure of the defendant to call an available alibi witness." (quoting United......
-
Wickizer v. State
...prior cocaine dealings to prove that the defendant acted knowingly and intentionally with respect to the charged crime. U.S. v. Santana (8th Cir.1989), 877 F.2d 709. Wyoming affirmed the admissibility of evidence that a victim's mother had previously abused the victim's sister as proof of t......
-
State v. Milo
...have been adverse to him." 222 Kan. 335, Syl. p 2, 564 P.2d 531. Some other jurisdictions follow the same rule. In United States v. Santana, 877 F.2d 709 (8th Cir.1989), the defendant testified that he was staying with a friend out of town when the crime was committed. The prosecution argue......
-
U.S. v. Brookins
...with possession of cocaine with intent to distribute, had sold drugs out of his apartment on two prior occasions); United States v. Santana, 877 F.2d 709, 710 (8th Cir.1989) (admitting testimony of DEA agent as to prior drug sales by defendant); United States v. Harris, 738 F.2d 1068, 1072 ......