U.S. v. Tuesta-Toro

• Decision Date: 07 June 1994
• Docket Number: TUESTA-TOR,No. 93-2182,D,93-2182
• Citation: 29 F.3d 771
• Parties: 39 Fed. R. Evid. Serv. 1201 UNITED STATES of America, Plaintiff, Appellee, v. Hector H.efendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 771

29 F.3d 771

39 Fed. R. Evid. Serv. 1201

UNITED STATES of America, Plaintiff, Appellee, v. Hector H. TUESTA-TORO, Defendant, Appellant.

No. 93-2182.

United States Court of Appeals, First Circuit.

Heard June 7, 1994.

Decided July 25, 1994.

Kevin G. Little, Los Angeles, CA, for appellant.

Jose A. Quiles Espinosa, Sr. Litigation Counsel, Hato Rey, PR, with whom Guillermo Gil, U.S. Atty., Washington, DC, and Warren Vazquez, Asst. U.S. Atty., Hato Rey, PR, were on brief, for appellee.

Before SELYA, CYR and BOUDIN, Circuit Judges.

CYR, Circuit Judge.

Following a three-day trial, a jury returned guilty verdicts on four drug-related charges against defendant-appellant Hector H. Tuesta Toro ("Tuesta"), who was sentenced to serve 128 months in prison, and this appeal ensued. Finding no reversible error, we affirm.

I FACTS

We set out the salient facts in the light most favorable to the verdicts. United States v. Tejeda, 974 F.2d 210, 212 (1st Cir.1992). On September 2, 1992, after receiving information from a confidential informant ("CI") that Tuesta and codefendant Carlos Martinez Diaz ("Martinez") were distributing large quantities of cocaine in the San Juan metropolitan area, the United States Drug Enforcement Administration ("DEA") recorded telephone conversations during which Martinez agreed to sell the CI five kilograms of cocaine at $16,500 per kilogram and identified Tuesta as his source. Martinez in turn spoke with Tuesta by cellular phone in order to establish the price and quantity of the cocaine to be sold to the CI and the site of the drug transaction, but then lost phone contact with Tuesta.

The next day Martinez advised the CI by phone that a one-kilogram transaction (rather than the five-kilogram transaction discussed the day before) would take place that afternoon, but that Tuesta did not wish to be seen by the buyer. Martinez reestablished telephone contact with Tuesta at 2:40 in the afternoon. En route to the scene of the transaction, Martinez noted that Tuesta was carrying a gun and more than one kilogram of cocaine. At Tuesta's instruction, Martinez parked their vehicle so that Tuesta could witness the drug deal without being observed. Martinez then exited the car and delivered the cocaine to the CI, who was accompanied by an undercover DEA agent.

Shortly thereafter, Martinez and Tuesta were arrested and charged with possessing cocaine, with intent to distribute, see 21 U.S.C. Sec. 841(a)(1), 18 U.S.C. Sec. 2; carrying a firearm during and in relation to a drug trafficking offense, see id. Secs. 942(c)(1), 2; and with two counts of using a communication facility to facilitate a drug trafficking offense, see 21 U.S.C. Sec. 843(b), 18 U.S.C. Sec. 2. Martinez eventually entered into a plea agreement with the government and testified against Tuesta at trial. Following Tuesta's conviction on all counts, he was sentenced to 128 months' imprisonment.

II DISCUSSION

A. Evidence Rule 404(b)

Prior to trial, Tuesta filed an omnibus motion to compel discovery which included the following request:

[a]ll confessions, admissions and statements to the United States Attorney, or any law enforcement agent, made by any other person, whether indicted or not, that in any way exculpate, inculpate or refer to the defendant, whether or not such confessions, admissions and statements have been reduced to writing.

(Emphasis added.) The motion made no mention of Rule 404(b) or "other wrongful acts" evidence.

The government responded that it intended to pursue an "open file" discovery policy and that only government agents would be called to testify against Tuesta. Following the government's response, however, Martinez entered into a plea agreement which provided that he would testify against Tuesta. Except as discussed below, Tuesta did not claim surprise.

At trial, the defense objected when the government asked Martinez how he knew Tuesta. The government responded that Martinez would testify to prior drug dealings with Tuesta. Tuesta objected on the ground that he had not been afforded pretrial notification of the government's intention to use Rule 404(b) evidence. The court admitted the evidence for the limited purpose of refuting Tuesta's "mere presence" defense, see United States v. Hernandez, 995 F.2d 307, 314 (1st Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 407, 126 L.Ed.2d 354 (1993), after ruling that its probative value was not substantially outweighed by the danger of unfair prejudice, see Fed.R.Evid. 403. The court, acting sua sponte, gave the jury a contemporaneous limiting instruction.

1. The Notification Requirement of Rule 404(b)

Tuesta first contends that the "other wrongful acts" evidence introduced through codefendant Martinez should have been excluded because the government failed to provide the pretrial notification required by Evidence Rule 404(b) in response to Tuesta's omnibus motion for discovery. The government maintains that Tuesta made no cognizable Rule 404(b) request prior to trial.

The question presented is one of first impression: how particular must a pretrial discovery request be in order to trigger the government's responsibility to disclose Rule 404(b) evidence as a precondition to its use at trial? Rule 404(b), as amended in 1991, provides in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action 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, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial ... of the general nature of any such evidence it intends to introduce at trial.

Fed.R.Evid. 404(b) (emphasis added). As the rule speaks only of a "request by the accused" and the duty of the prosecution to provide reasonable pretrial notification "of the general nature of any such evidence it intends to introduce at trial," id., we turn elsewhere for guidance.

The advisory committee's notes to the 1991 amendment define the responsibilities of the respective parties in requesting and affording pretrial notification under Rule 404(b): "The amendment to Rule 404(b).... expects that counsel for ... the defense ... will submit the necessary request ... in a reasonable and timely manner." Fed.R.Evid. 404(b) advisory committee's notes (1991 amendment) (emphasis added). The advisory committee note simply confirms the requirement implicit in the rule itself--that the defense must submit, "in a reasonable and timely manner," its request for pretrial notification of the general nature of any evidence of other crimes, wrongs, or acts the government intends to introduce at trial for purposes of proving "motive, intent, preparation, plan, knowledge, identity or absence of mistake or accident," Fed.R.Evid. 404(b). We think it beyond question, therefore, that a "reasonable" request for notification, at a minimum, must be sufficiently clear and particular, in an objective sense, fairly to alert the prosecution that the defense is requesting pretrial notification of the general nature of any Rule 404(b) evidence the prosecution intends to introduce.

An overbroad pretrial request, like the present--for "confessions, admissions and statements ... that in any way exculpate, inculpate or refer to the defendant"--is insufficiently specific at the very least, if not misleading. Cf. United States v. Carrasquillo-Plaza, 873 F.2d 10, 12 (1st Cir.1989) (noting that overbroad discovery requests, absent a specific showing of materiality, do not afford the prosecution proper notice in analogous Rule 16 context); United States v. Hemmer, 729 F.2d 10, 14-15 (1st Cir.) (same), cert. denied, 467 U.S. 1218, 104 S.Ct. 2666, 81 L.Ed.2d 371 (1984). The omnibus motion submitted by Tuesta made no discernible reference to anything resembling "other wrongful acts" evidence nor did it request mere notification of the general nature of any such evidence. Rather, it demanded outright pretrial disclosure of statements in any form, referring to the defendant in any way, without regard to their admissibility or the government's intention to introduce them. ¹ See Fed.R.Evid. 404(b); cf., United States v. Williams, 792 F.Supp. 1120, 1133 (S.D.Ind.1992) (notification required in response to detailed request reciting text of Rule 404(b)); United States v. Alex, 791 F.Supp. 723, 728 (N.D.Ill.1992) (similar; request specifically referencing Rule 404(b)).

Accordingly, at a minimum the defense must present a timely request sufficiently clear and particular, in an objective sense, to fairly alert the prosecution that the defense is invoking its specific right to pretrial notification of the general nature of all Rule 404(b) evidence the prosecution intends to introduce at trial. The rule we describe will bring pretrial practice under Rule 404(b) in line with circuit precedent governing the prosecution's duty to provide discovery material under Federal Rule of Criminal Procedure 16. Cf. Fed.R.Evid. 404(b) advisory committee's notes (1991 amendment) (noting that amended rule "places Rule 404(b) in the mainstream with notice and disclosure provisions in other rules of evidence" but was not intended to impose on government a greater disclosure burden than "currently ... required ... under [Fed.R.Crim.P.] 16") (emphasis added). See also supra note 1.

2. Admission of 404(b) Evidence at Trial

Next, Tuesta contends that it was reversible error to admit the Martinez testimony to rebut Tuesta's "mere presence" defense. These evidentiary rulings normally are reviewed for abuse of discretion. United States v. Figueroa, 976 F.2d 1446, 1454 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1346, 122 L.Ed.2d 728 (1993). As Tuesta made no contemporaneous objection, however, we review for "plain error," id. at 1453, and will...