U.S. v. Walters

• Decision Date: 05 March 1990
• Docket Number: Nos. 88-2106,s. 88-2106
• Citation: 904 F.2d 765
• Parties: 30 Fed. R. Evid. Serv. 465 UNITED STATES, Appellee, v. Ira Glen Anthony WALTERS, Defendant, Appellant. UNITED STATES, Appellee, v. Neville Anthony WILLIAMS, Defendant, Appellant. UNITED STATES, Appellee, v. Patrick O. MATTIS, Defendant, Appellant. UNITED STATES, Appellee, v. Andrew Jonathan BAINES, Defendant, Appellant. to 88-2109. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 765

904 F.2d 765

30 Fed. R. Evid. Serv. 465

UNITED STATES, Appellee, v. Ira Glen Anthony WALTERS, Defendant, Appellant.

UNITED STATES, Appellee, v. Neville Anthony WILLIAMS, Defendant, Appellant.

UNITED STATES, Appellee, v. Patrick O. MATTIS, Defendant, Appellant.

UNITED STATES, Appellee, v. Andrew Jonathan BAINES, Defendant, Appellant.

Nos. 88-2106 to 88-2109.

United States Court of Appeals First Circuit.

Heard March 5, 1990.

Decided May 31, 1990.

Lisa Parlagreco, with whom James S. Dilday and Grayer, Brown & Dilday, were on brief, for defendant, appellant Ira Glen Anthony Walters.

Charles McGinty, Federal Defender Office, for defendant, appellant Neville Anthony Williams.

Jonathon M. Feigenbaum, with whom Richard M. Passalacqua, was on brief, for defendant, appellant Patrick O. Mattis.

James B. Dolan, with whom Badger, Dolan, Parker & Cohen, was on brief, for defendant, appellant Andrew Jonathan Baines.

Robert Ullmann, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief, for appellee.

Before CAMPBELL, Chief Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

BOWNES, Senior Circuit Judge.

Ira Glen Anthony Walters (Walters), Neville Anthony Williams (Williams), Patrick Mattis (Mattis) and Andrew Johnson Baines (Baines) appeal their convictions for participating in a cocaine distribution conspiracy between December, 1986, and April, 1987. The appellants and eight other alleged co-conspirators were charged, in varying combinations, with conspiring to possess cocaine with intent to distribute, 21 U.S.C. Secs. 841 & 846, possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1), and using or carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. Sec. 924(c). ¹ The appellants were found guilty by a jury on all counts. We affirm.

Before considering each of the issues on appeal, we briefly recount ² the facts, taking the evidence as we must, in the light most favorable to the government. The appellants participated in a drug conspiracy operating out of three apartments in Boston (318 Fuller Street, 37 Westmore Street and 9 Topalian Street). The primary evidence against the defendants was the testimony of Lisa Gray, Williams' girlfriend during part of the conspiracy, who lived behind the Westmore Street apartment, and Herbert Beeche, a resident of 37 Westmore Street, who was shot in the leg by Olgivie Williams, a defendant below who has not appealed, and Walters. Gray and Beeche testified about the many drug sales they witnessed and the guns they saw during those transactions. In addition, the police searches of the Fuller Street and Topalian Street apartments and the Nelson Street apartment building where Walters lived uncovered cocaine, drug paraphernalia (scales, etc.), firearms and other items. During the government's case-in-chief, several of the firearms and rounds of ammunition seized, including weapons found during a search of the basement of the Nelson Street building, were admitted into evidence. Also admitted into evidence was a single color photograph of Walters which was seized during the search of his apartment. Other evidence, including a videotape of some of the appellants, plane tickets and other items, was also admitted into evidence. The appellants take issue with a number of rulings below.

I.

Defendant-appellant Walters raises two issues involving the admission of the photograph: that it violated Fed.R.Evid. 404(b); and that it was not properly authenticated as required under Fed.R.Evid. 901.

The photograph is a posed shot showing Walters kneeling on the floor, facing the camera, and holding what appears to be a large pistol. The back of the photograph is stamped "OCT 1986." The crimes charged in the indictment covered a period from December, 1986, through April, 1987. Walters argues that the photograph's sole purpose at trial was to impermissibly demonstrate that he had a propensity to carry firearms thus showing "bad character."

In reviewing a trial court's ruling pursuant to Rule 404(b) ³, the pertinent inquiry is whether the trial court abused its discretion in admitting the challenged evidence. United States v. Fields, 871 F.2d 188, 196 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 369, 107 L.Ed.2d 355 (1989); United States v. Rubio-Estrada, 857 F.2d 845, 846 (1st Cir.1988). We give "considerable leeway" to the district court in its decision. United States v. Simon, 842 F.2d 552, 555 (1st Cir.1988). As we have said repeatedly, " 'only in exceptional circumstances will we reverse the exercise of a district court's informed discretion vis-a-vis the relative weighing of probative value and unfairly prejudicial effect.' " United States v. Currier, 836 F.2d 11, 18 (1st Cir.1987) (quoting United States v. Griffin, 818 F.2d 97, 101-02 (1st Cir.1987)).

The use of "bad acts" evidence is not limited to those uses listed in the rule. So long as the trial court determines (1) that the proffered evidence is relevant to an issue other than character, and (2) that the evidence, if relevant, is not more prejudicial than probative, the use of the evidence is proper. Fields, 871 F.2d at 196; United States v. Flores-Perez, 849 F.2d 1, 4 (1st Cir.1988).

The initial question is whether the photograph was relevant to any issue other than illustrating defendant's bad character. Evidence is relevant if it has a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Walters was indicted for using or carrying a firearm during, and in relation to, drug trafficking. One of the issues to be determined at trial was the connection, if any, between the guns seized in the searches of the Fuller Street apartment and the basement of the Nelson Street apartment building and Walters. Walters argues that there was no connection between the photograph and any of the crimes with which he was charged. We disagree.

When Walters objected to the introduction of the photograph, the district court judge immediately ruled on the objection stating:

I don't think I will need any argument by the Government. I think the photograph is highly probative and connects him with what apparently--I'm just saying "apparently"--what I would infer to be one of the weapons that has been--all I'm saying is "apparently"--so I'm expecting that the argument will go from there. I can't say that that is the weapon that sat on that witness box.

The district judge determined that sufficient similarity existed between the gun held by Walters in the photograph and one of the guns marked as an exhibit to warrant the admission of the photograph. ⁴ If the jury interpreted the photograph the same way, this would connect Walters to the guns admitted into evidence. It, therefore, met the test of relevancy under Fed.R.Evid. 401. See United States v. Green, 887 F.2d 25, 27 (1st Cir.1989) (holding same guns relevant to severed defendants).

The next question is whether the photograph's "probative value [was] substantially outweighed by the danger of unfair prejudice." Fed.R.Evid. 403. Walters argues that the photograph was unfairly prejudicial because (1) it was taken in Florida and not in Boston where the crimes occurred, (2) it was taken prior to the alleged conspiracy, and (3) there was no expert testimony linking the gun in the photograph to any of those admitted into evidence.

Walters had the opportunity to show on cross-examination that the photograph was taken in a location other than Boston and taken prior to the commission of the crimes charged in the indictment, and he did so. Walters also had an opportunity to discredit the link between the gun in the photograph and the gun seized, but he chose not to. With these opportunities available, we cannot say that the district court abused its discretion in ruling that the photograph's probative value was not substantially outweighed by the photograph's prejudicial effect.

Finally, the defendant, for the first time on appeal, claims that the photograph was not properly authenticated and therefore, inadmissible. Federal Rule of Evidence 103(a)(1) requires that objections at trial not only be made on time but that the grounds of the objection be specific. The reason for such a requirement is to alert the trial court and the other party to the grounds of the objection so that it may be addressed or cured. See Bryant v. Consolidated Rail Corp., 672 F.2d 217, 220 (1st Cir.1986). At trial the defendant failed to specify inadequate authentication as a ground for his objection. We, therefore, decline to consider this argument on appeal. ⁵

II.

We now turn to the other issues on appeal. Williams claims that the admission of the firearms was unfairly prejudicial. As already explained, a ruling denying an objection based on unfair prejudice is very difficult to overturn. Williams faces an additional hurdle in trying to have the guns excluded because the same weapons were admitted in the trial of co-conspirator Green and that admission was recently affirmed by us on appeal.

As we said in Green, we have long

recognized that in drug trafficking firearms have become "tools of the trade" and thus are probative of the existence of a drug conspiracy. See also, United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987), cert. denied , 108 S.Ct. 2033 (1988); United States v. Montes-Cardenas, 746 F.2d 771, 777 (11th Cir.1984); United States v. Perez, 648 F.2d 219, 224 (5th Cir. unit B), cert. denied, 454 U.S. 1055 [102 S.Ct. 602, 70 L.Ed.2d 592] (1981).

Green, 887 F.2d at 27. One weapon was directly linked to Williams by both Beeche and Gray. Other weapons were linked to the other defendants. We cannot say that the court abused its discretion in admitting the guns. In addition, we note that the court was aware of the possible prejudice that could result from brandishing guns in the courtroom and took...