-
USCA1 Opinion
February 4, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1427
UNITED STATES,
Appellee,
v.
JOSE A. GARCIA,
Defendant, Appellant.
____________________
No. 92-1428
UNITED STATES,
Appellee,
v.
PABLO H. GARCIA,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
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Bownes, Senior Circuit Judge,
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and Selya, Circuit Judge.
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____________________
John M. Cicilline, for defendant-appellant Jose A. Garcia.
_________________
Francis J. Gillan, III, for defendant-appellant Pablo H. Garcia.
______________________
Zechariah Chafee, Assistant United States Attorney, with whom
_________________
Lincoln C. Almond, United States Attorney, was on brief, for appellee.
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____________________
____________________
BOWNES, Senior Circuit Judge. Defendants Pablo
_____________________
Garcia and Jose Garcia (no relation) were tried jointly and
convicted by a jury in federal district court for possession
of cocaine with intent to distribute, in violation of Title
21 U.S.C. 841(a)(1), and conspiracy to possess cocaine with
intent to distribute, in violation of Title 21 U.S.C. 846.
On appeal, defendants-appellants both argue: (1) that the
evidence was insufficient to support the convictions; (2)
that the district judge erred in vacating the magistrate's
order compelling the attendance of the government's
confidential informant at a suppression hearing; and (3) that
the district judge erred in failing to suppress certain
evidence. In addition, defendant Pablo Garcia argues that
the district judge erred in admitting evidence of his prior
arrest pursuant to Fed. R. Evid. 404(b). We affirm.
I.
I.
Background
Background
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On February 6, 1991, the Providence police executed
a search warrant for narcotics and related items in the
second floor apartment of a three-story tenement building at
93-95 Gallatin Street. The search warrant had been obtained
pursuant to information the police received to the effect
that drug trafficking was being conducted in the apartment.
The police had confirmed the information by conducting a
"controlled buy." In executing the warrant, the police
announced their presence, waited approximately ten seconds,
and receiving no response, proceeded forcibly to enter the
apartment. Upon their entry, the police found the two
defendants and a woman holding a child in the front room of
the apartment. The woman, Altagracia Lopez, shared the front
room of the apartment with Oscar Quinones, who was not
present at the time of the defendants' arrest.
Defendants were made to lie on the floor while the
police initiated a search of the apartment. INS Special
Agent Bernstein testified that he gave defendants Miranda
_______
warnings in Spanish. In the closet of the back bedroom, the
police found approximately ten and one-half ounces (295
grams) of suspected cocaine in one of several opaque plastic
bags on the closet's floor. The substance later tested
positive as cocaine, and was valued between $13,650 and
$16,800. Also in the closet were articles of clothing and
scattered papers, including a bill of sale and a car
registration in the name of Pablo Garcia registered to the
address of 93-95 Gallatin Street. Under a mattress in the
front room, the police discovered a passport for Pablo Garcia
and a number of notebooks with figures and names that a DEA
agent testified were records of narcotics dealing. In the
box spring under the mattress, the police found $1,308 in
cash. Finally, on the kitchen counter, police discovered
plastic ziploc bags that had been cut, and a candle and a
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strainer. At trial, DEA agents testified that these were
packaging materials for cocaine distribution.
The police took Pablo and Jose separately into the
room where the cocaine had been found, and asked each of them
to identify a piece of clothing that belonged to them. Pablo
picked out a shirt and jacket (later revealed to be a woman's
jacket). Jose picked out a shirt. Also in that room were
two mattresses, one of which was propped against the wall.
The closet in the back bedroom was the only closet in the
apartment.
Both defendants took the stand at trial and
testified in their own defense. While admitting that they
both slept in the room in which the cocaine was found, they
denied knowing that there was cocaine in the closet. Both
also denied knowing of the presence of the other drug
paraphernalia in the apartment or of any drug trafficking
operation.
Defendants presented different explanations for
their presence in the apartment. Jose Garcia testified that
he had lived in the back room at 93-95 Gallatin Street since
the previous August or September. He said that he had been
in Santo Domingo from December 23, 1990 until January 23,
1991, and that he had spent a few days in New York before
returning to Providence. He returned to find that Pablo
Garcia, whom he had never met, was staying in the room he
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rented. He testified that he had been trying to move from
the apartment when the arrest took place, and that he already
had moved many of his belongings to a friend's home.
Pablo Garcia testified that he lived in New York,
but had come to Providence in February to stand trial for his
arrest, in December 1990, for cocaine trafficking. The
district judge had, before Pablo testified, admitted evidence
of this prior arrest as probative of defendant's knowledge
and intent to commit the offenses at issue. Pablo
acknowledged that he was a friend of Oscar Quinones, but
maintained that he did not know Jose Garcia, and that he had
no real control over the room or the apartment because he was
only temporarily residing there.
II.
II.
Sufficiency of the Evidence
Sufficiency of the Evidence
___________________________
Defendants both appeal the denial of their
respective motions for judgment of acquittal.1 Both were
convicted of possessing and conspiring to possess cocaine
with the intent to distribute. Defendants assert that the
prosecution failed to prove, beyond a reasonable doubt, both
knowing possession of the cocaine and their participation in
a conspiracy to possess cocaine.
____________________
1 Pablo Garcia and Jose Garcia have each adopted, by
reference, the other's brief. See F.R.A.P. 28(i).
___
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The standards governing a challenge to the
sufficiency of the evidence are familiar and oft-quoted:
The challenges to the sufficiency of the
evidence and to the denial of the motion
for judgments of acquittal raise a single
issue. We assess the sufficiency of the
evidence as a whole, including all
reasonable inferences, in the light most
favorable to the verdict, with a view to
whether a rational trier of fact could
have found the defendant guilty beyond a
reasonable doubt. We do not weigh
witness credibility, but resolve all
credibility issues in favor of the
verdict. The evidence may be entirely
circumstantial, and need not exclude
every reasonable hypothesis of innocence;
that is, the factfinder may decide among
reasonable interpretations of the
evidence.
United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.
_____________ _______________
1991) (citations omitted). See also United States v. Lopez,
___ ____ _____________ _____
944 F.2d 33, 39 (1st Cir. 1991).
A. Substantive Offense
A. Substantive Offense
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The charge of possession with intent to distribute
cocaine requires, in the context of this case, proof beyond a
reasonable doubt that the cocaine found in the closet within
the room shared by defendants was knowingly and intentionally
possessed by them for purposes of distribution. See United
___ ______
States v. Vargas, 945 F.2d 426, 428 (1st Cir. 1991).
______ ______
"Possession may be actual or constructive, sole or joint."
United States v. Wight, 968 F.2d 1393, 1397 (1st Cir. 1992);
______________ _____
United States v. Vargas, 945 F.2d at 428. Constructive
______________ ______
-6-
possession is proved when a person "`knowingly has the power
and intention at a given time to exercise dominion and
control over an object, either directly or through others.'"
United States v. Ocampo-Guarin, 968 F.2d 1406, 1409-10 (1st
_____________ _____________
Cir. 1992) (quoting United States v. Lamare, 711 F.2d 3, 5
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(1st Cir. 1983)). See also United States v. Vargas, 945 F.2d
___ ____ _____________ ______
at 428 (constructive possession found where defendant was
sole tenant and occupant of apartment immediately prior to
police raid); United States v. Barnes, 890 F.2d 545, 549-50
_____________ ______
(1st Cir. 1989) (constructive possession found where
defendant leased apartment that was jointly occupied with
others), cert. denied, 494 U.S. 1019 (1990); United States v.
_____ ______ _____________
Calle-Cardenas, 837 F.2d 30, 32 (1st Cir.) (reasonable for
______________
jury to find defendant exercised dominion and control over
area where contraband was found because three occupants were
dressed similarly and all three names appeared on door at the
time of the raid), cert. denied, 485 U.S. 1024 (1988). The
_____ ______
government may show constructive possession through the use
of either direct or circumstantial evidence. Mere presence
or association with another who possessed the contraband is,
however, insufficient to establish constructive possession.
United States v. Wight, 968 F.2d at 1397; United States v.
______________ _____ _____________
Batista-Polanco, 927 F.2d at 18.
_______________
This case is very similar to United States v.
_____________
Vargas, 945 F.2d 426, and the analysis flows accordingly. In
______
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Vargas, a search warrant was executed at defendant's
______
apartment when defendant was playing cards in a kitchen with,
among others, an alleged co-conspirator. The search
uncovered: one kilogram of cocaine concealed behind a wooden
baseboard in a bedroom with the co-conspirator's passport;
drug ledgers on top of a bureau and $2,400 in a jacket pocket
in the only other bedroom, and a narcotics notebook in open
view in the kitchen. We affirmed both the possession and the
conspiracy charges.
On the possession charge, we held that there was
sufficient evidence from which the jury could have found that
defendant enjoyed either exclusive or joint dominion and
control of the apartment during the days preceding the police
raid. We found that there was ample circumstantial evidence
for a finding that the cocaine was intended for distribution:
from the quantity it was reasonable to infer that the cocaine
was not merely for personal consumption and such inference
was buttressed by the large amount of cash and the drug
records in open view. In language directly apposite to this
case, we concluded that, "it would be reasonable to infer
that no non-occupant, other than a confidant of the tenant,
would deposit a valuable cache of contraband in a bedroom of
an unsuspecting tenant's apartment from which retrieval would
be much more difficult at best, and the risk of discovery and
loss far greater, than if a more accessible and closely
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controlled location were used or the secret were shared with
the tenant." United States v. Vargas, 945 F.2d at 429.
_____________ ______
Similarly, the evidence in this case was sufficient to permit
a rational jury to find that both Pablo Garcia and Jose
Garcia constructively possessed the cocaine. They both
shared dominion and control over the area where the cocaine
was found. Both men admitted to living in the second floor
apartment and to jointly occupying the rear bedroom where the
cocaine was found; Jose exclusively for the prior five or six
months, and both Pablo and Jose for the week immediately
preceding the raid. At the time of the search, both told the
police that the apartment was where they lived. After the
search uncovered cocaine, both were separately taken into the
bedroom and asked to pick out an article of clothing that
belonged to them, which they did. Also found on the floor of
the closet along with the cocaine were various personal
papers belonging to Pablo, including car registration forms
registered to 93-95 Gallatin Street. In addition, Pablo's
passport, concealed along with a large amount of money and
records of drug sales, was also found during the search. As
we stated in Vargas, "[e]vidence sufficient to establish that
______
the accused shared dominion and control of the premises can
serve as a sufficient basis for inferring a knowing
possession of contraband where the evidence indicates that
the accused, either alone or jointly with one or more
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persons, intended to facilitate the possession." United
______
States v. Vargas, 945 F.2d at 428.
______ ______
There was also ample evidence from which the jury
could find that the cocaine discovered was intended for
distribution. The quantity of cocaine (295 grams), the large
amount of cash, the drug records, and cocaine paraphernalia
in plain view, were all links in a chain of evidence from
which intent to distribute cocaine could be found. See
___
United States v. Desmarais, 938 F.2d 347, 352 (1st Cir. 1991)
_____________ _________
(intent to distribute reasonably inferable from possession of
controlled substance and related paraphernalia).
B. Conspiracy
B. Conspiracy
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"The gist of conspiracy is an agreement to disobey
or to disregard the law." United States v. Drougas, 748 F.2d
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8, 15 (1st Cir. 1984). The government must prove both
"intent to agree and intent to commit the substantive
offense." Id. "Due to the clandestine nature of criminal
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conspiracies, the law recognizes that the illegal agreement
may be either 'express or tacit' and that a `"common purpose
and plan may be inferred from a development and collocation
of circumstance." ' " United States v. Sanchez, 917 F.2d 607
_____________ _______
(1st Cir. 1990) (citations omitted), cert. denied, ___ U.S.
_____ ______
___, 111 S. Ct. 1625, 113 L. Ed. 2d 722 (1991). See also United
___ ____ ______
States v. Tejeda, 974 F.2d 210, 212 (1st Cir. 1992). Thus, a
______ ______
conspiracy may be established through circumstantial
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evidence, United States v. Ocampo, 964 F.2d 80, 82 (1st Cir.
_____________ ______
1992), and to prove its case the government is required to
demonstrate only a tacit understanding between the
conspirators. United States v. Olivo-Infante, 938 F.2d 1406,
_____________ _____________
1410 (1st Cir. 1991). But mere presence at the scene of a
crime is insufficient to prove membership in a conspiracy.
United States v. Ocampo, 964 F.2d at 82 (citing United States
_____________ ______ _____________
v. Francomano, 554 F.2d 483, 486 (1st Cir. 1987)).
__________
The evidence viewed in the light most favorable to
the verdict, together with all reasonable inferences to be
drawn therefrom, permitted a rational jury to find both
defendants guilty beyond a reasonable doubt of conspiracy to
possess cocaine with the intent to distribute. See United
___ ______
States v. Tejeda, 974 F.2d at 212.
______ ______
III.
III.
District Judge's Decision to Vacate
District Judge's Decision to Vacate
___________________________________
Order Compelling Attendance of
Order Compelling Attendance of
______________________________
Confidential Informant at Hearing
Confidential Informant at Hearing
_________________________________
Defendant Pablo Garcia argues that the district
court erred in vacating the magistrate-judge's order
compelling the attendance of the confidential informant at an
evidentiary hearing to be held by the district judge.2 The
magistrate first issued a pretrial order on June 11, 1991,
____________________
2 Although we treat this issue and the following issue
involving motions to suppress as arguments presented below
and on appeal by Pablo Garcia, we acknowledge that Jose
Garcia has adopted the arguments. See footnote 1.
___
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which required that the government arrange communication
between the confidential informant and the defense "to the
extent that said person is willing to communicate." On July
9, defendant Pablo Garcia filed a motion with the magistrate
asking that the government be ordered to comply with the
pretrial order. On September 5, the magistrate issued a
second order stating, in pertinent part, that,
the person who bought cocaine at 95
Gallatin Street, 2nd Floor on behalf of
the police, be served by the United
States Marshal Service, through the
United States Attorney, with a copy of
this order to compel attendance of this
witness at a Motion to Suppress hearing
to be held by Judge Lagueux at a date,
time and place to be fixed and specified
by Judge Lagueux. Counsel for the
Defendant shall be allowed to meet with
such witness just prior to said hearing.
The government appealed this second motion to the district
court judge.3 The district judge held a hearing on the
government's appeal. He determined that the defendant failed
to make the preliminary showing as required by Franks v.
______
Delaware, 438 U.S. 154 (1978), in order for the court to
________
conduct an evidentiary hearing on the validity of the search
warrant. The judge explained that it appeared that the
magistrate's order assumed that the district judge was going
____________________
3 Local Rule 32(b)(2) provides in pertinent part that,
"[a]ny party may appeal from a magistrate's determination
made under this rule within 10 days after the issuance of the
magistrate's order."
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to conduct a hearing, that the defense had failed to make a
proper case for the hearing, and that, absent a hearing,
there was no requirement that the informant appear. At a
later hearing on October 31, 1991, the judge refused to grant
defendant a subpoena ex parte, and delayed determination of
__ _____
whether the informant could be subpoenaed until the
appropriate time at trial. Pablo Garcia never renewed his
motion for a subpoena at trial.
A magistrate's discovery order may be set aside
where the order is clearly erroneous or contrary to law.
Fischer v. McGowan, 585 F. Supp. 978, 984 (D.R.I. 1984);
_______ _______
Pascale v. G.D. Searle & Co., 90 F.R.D. 55, 59 (D.R.I. 1981);
_______ _________________
28 U.S.C. 636 (b)(1)(A); Local Rule 32(b)(2). The district
judge determined that the magistrate's order was clearly
erroneous because it compelled the confidential informant to
attend a suppression hearing when the district judge had not
yet determined whether he would conduct such a hearing. We
find that the district court properly vacated the
magistrate's order.
IV.
IV.
The Suppression Motions
The Suppression Motions
_______________________
A. Probable Cause
A. Probable Cause
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Defendant Pablo Garcia challenges the district
court's denial of his motion to suppress evidence seized
during the search of the apartment on the ground that there
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was no probable cause for the officers to execute the search.
In particular, he asserts that the affidavit underlying the
search warrant upon which the search team relied was
deficient. The search warrant was issued by a state court
judge for the state of Rhode Island upon the affidavit of
Detective Zammarelli. That affidavit, in essence, stated:
that Detective Zammarelli had reason to believe that a large-
scale drug operation was being conducted out of the second
floor apartment of 93-95 Gallatin Street; that he met with a
reliable confidential informant who told him that two
Hispanic persons were storing and selling drugs; that the
informant had seen large amounts of cocaine in the apartment;
and that, to corroborate this information, Detective
Zammarelli executed a "controlled buy" through the informant.
The affidavit fully described the "controlled buy."
Detective Zammarelli reported searching the informant prior
to the buy and finding no contraband on him. He stated that
he gave the informant a sum of U.S. currency, followed him to
the apartment, watched him enter the front door of 93-95
Gallatin Street, and observed him exit a few minutes later
from the same door. Next, he stated in the affidavit that
the informant then handed Detective Zammarelli a quantity of
cocaine, reporting that he had purchased the substance from
the Hispanic male who resided in the second floor apartment.
Detective Zammarelli stated that he made another search of
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the informant and found no contraband. Later, upon testing
the substance, Detective Zammarelli confirmed that it was
cocaine.
The district court determined that there was
sufficient probable cause stated on the face of the
affidavit, finding that the information provided therein
would lead a reasonable person to believe that cocaine was
being sold from the second floor apartment.
We review the district court's decision to uphold
the warrant only for clear error. United States v. Nocella,
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849 F.2d 33, 39 (1st Cir. 1988); United States v. Figueroa,
_____________ ________
818 F.2d 1020, 1024 (1st Cir. 1987). In evaluating the
sufficiency of an affidavit, we afford great deference to a
magistrate's determination of probable cause. Illinois v.
________
Gates, 462 U.S. 213, 236 (1983) (citing Spinelli v. United
_____ ________ ______
States, 393 U.S. 410, 419 (1969)).
______
The standard applied in determining the sufficiency
of an affidavit is a "totality of the circumstances" test.
Illinois v. Gates, 462 U.S. at 238. The affidavit is to be
________ _____
interpreted in a common-sense rather than a hypothetical or
hypertechnical manner. See id.; United States v. Ventresca,
___ ___ _____________ _________
380 U.S. 102, 109 (1965); United States v. Cochrane, 896 F.2d
_____________ ________
635, 637 (1st Cir.), cert. denied, 496 U.S. 929 (1990);
_____ ______
United States v. Calle-Cardenas, 837 F.2d at 31.
_____________ ______________
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Defendant argues that the affidavit is inadequate
because the detective failed to establish the reliability of
the confidential informant. More generally, he argues that
this affidavit is the sort of "bare bones" affidavit that the
Supreme Court criticized in United States v. Leon, 468 U.S.
_____________ ____
at 915. We disagree with both of these contentions.
Detective Zammarelli confirmed the information with
which the confidential informant provided him by carrying out
a carefully-executed "controlled buy." Given its greatest
force, defendant's argument against this corroboration was
that one and the same informant was the source of the
information and the actor in the "controlled buy," and that
the informant might have stashed cocaine elsewhere in the
building out of the sight of the detective. This
possibility, defendant posits, undercuts the reliability of
the informant. Although defendant's argument is possible, it
is not probable and strains credulity on a common-sense
reading. We find that both the issuing state court judge and
the district judge drew a reasonable inference of probable
cause that there was drug trafficking in the second floor
apartment of 93-95 Gallatin Street. We affirm the denial of
the motion to suppress the evidence seized pursuant to the
warrant.
B. Execution of Warrant
B. Execution of Warrant
____________________
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Pablo Garcia next challenges the denial of his
motion to suppress certain statements made and evidence
seized during the search of the apartment on the ground that
the execution of the search warrant was unlawful, resulting
in an unconstitutional search and seizure.
In reviewing a denial of a suppression motion, we
must uphold the district court's findings unless they are
clearly erroneous; the court's ultimate conclusion, however,
is subject to plenary review. United States v. Sanchez, 943
_____________ _______
F.2d 110, 112 (1st Cir. 1991) (citations omitted). We will
uphold the denial of the motion to suppress if any reasonable
view of the evidence supports it. Id. (citing United States
___ _____________
v. Veillette, 778 F.2d 899, 902 (1st Cir. 1985), cert.
_________ _____
denied, 476 U.S. 1115 (1986)). See also United States v.
______ ___ ____ _____________
Cruz Jimenez, 894 F.2d 1, 7 (1st Cir. 1990) (district court's
____________
choice between two competing interpretations of the evidence
cannot be clearly erroneous).
At the time of the execution of the search warrant,
defendants were watching television in the front room of the
apartment with co-tenant, Altagracia Lopez. Detectives Della
Ventura and Zammarelli were part of the search team at the
apartment's front door. Detective Della Ventura testified
that he knocked loudly on the door and shouted "Police,
search warrant, open the door." After waiting approximately
ten seconds without receiving a response (Detective
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Zammarelli estimated ten to fifteen seconds), the search team
forcibly entered the apartment. Upon entering, defendants
were immediately restrained.
At the hearing, defendant Pablo Garcia sought to
suppress all evidence seized from the apartment on the basis
that the execution of the warrant was conducted in violation
of the "knock and announce" rule, 18 U.S.C. 31094, and
such violation rendered the subsequent search warrantless.
Pablo Garcia argued, alternatively, that no knock or
announcement was made at all; that the announcement was
inadequate when considering the purpose of the rule; or, if
the announcement was adequate, that the ten second wait
before forcibly entering was, as a matter of law, not long
enough.
After hearing the testimony of the two police
officers who executed the warrant and of Pablo Garcia, the
district judge found that the police did loudly knock and
announce their presence and purpose as required, and that
they entered the apartment when they believed that they had
been refused admission. The district judge was satisfied
____________________
4 18 U.S.C. 3109 states in pertinent part:
The officer may break open any outer or
inner door or window of a house, or any
part of a house, or anything therein, to
execute a search warrant, if, after
notice of his authority and purpose, he
is refused admittance or when necessary
to liberate himself or a person aiding
him in the execution of the warrant.
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that, in the context of a drug raid where contraband can be
disposed of within seconds, the ten to fifteen second wait
was a reasonable period of time, and that the officers fully
complied with the "knock and announce" rule.
The district court's findings are not clearly
erroneous. Under the circumstances, a wait of ten seconds
after knocking combined with an announcement before forced
entry, was reasonable. The occupants of the apartment were
reasonably believed to possess cocaine, a substance that is
easily and quickly hidden or destroyed. See United States v.
___ _____________
One Parcel of Real Property, 873 F.2d 7, 9 (1st Cir.)
______________________________
(shorter wait [five to ten seconds] before entry justified by
fact that officers had probable cause to believe occupants
possessed cocaine, a substance that is easily and quickly
removed down a toilet), cert. denied sub nom, Latreverse v.
_____ ______ ___ ___ __________
United States, 493 U.S. 891 (1989).
_____________
C. Adequacy of Miranda Warnings
C. Adequacy of Miranda Warnings
____________________________
Finally with regard to the district court's denial
of his motions to suppress, defendant Pablo Garcia argues
that the law enforcement officials failed to adequately
apprise him of his rights in violation of Miranda v. Arizona,
_______ _______
384 U.S. 436 (1966).
Upon entering the apartment, the police restrained
the defendant and placed him face down on the floor. As the
search commenced, INS Special Agent Bernstein gave the
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defendant Miranda warnings in Spanish. He specifically asked
_______
defendant if he understood each right as it was read to him.
After each such question, the defendant responded
affirmatively. After advising defendant of his rights and
being told by the defendant that he understood them, Agent
Bernstein asked the defendant if he was willing to answer
some questions without the presence of an attorney.
Defendant agreed and told the officer he would answer
questions. Agent Bernstein then asked defendant basic
informational questions, such as where he lived. The answers
to some of the questions were incriminating.
After the discovery of the cocaine in the rear
bedroom, Agent Bernstein took the defendant, alone, into the
bedroom and asked him if any clothing belonged to him.
Defendant responded affirmatively. Agent Bernstein then
asked him to point out something that was his. Being
handcuffed, defendant motioned with his head to a shirt and a
jacket. Agent Bernstein identified the shirt and jacket and
asked defendant if they were his; defendant answered
affirmatively.5
At the suppression hearing, Pablo Garcia had sought
to suppress the incriminating statements and actions he made
during the search of the apartment on the ground that they
____________________
5 Special Agent Bernstein's treatment of Jose Garcia was
substantially the same, and the same analysis applies.
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were made without an intelligent, knowing, and voluntary
waiver of his Fifth Amendment rights. Defendant argued that
the officer was required to specifically advise him that his
answers to the informational questions could be used against
him, and because he was never so advised, he could not have
knowingly waived his rights. In addition, defendant argued
that the warnings were inadequate because the officer should
have advised defendant that anything he did could be used
___
against him, and that defendant had a right to refuse to
point out such clothing that belonged to him.
When an individual is taken into custody and before
interrogation, Miranda requires that the individual be
_______
advised: that he has the right to remain silent; that
anything he says may be used against him in court; that he
has the right to consult an attorney before being asked
questions; that the attorney may be present during
questioning; and that if he cannot afford an attorney, one
will be appointed for him if he wishes. Miranda v. Arizona,
_______ _______
384 U.S. at 444. Once the warnings delineated in Miranda are
_______
given and acknowledged, all interrogation must cease if the
individual indicates in any manner, at any time prior to or
during questioning, that he wishes to remain silent, or that
he would like to seek the assistance of counsel. Id. at 444-
___
45.
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After being advised of his Miranda rights, the
_______
accused may validly waive his right to remain silent and his
right to counsel and respond to questions. See North
___ _____
Carolina v. Butler, 441 U.S. 369, 372-76 (1979); United
________ ______ ______
States v.
______
Eaton, 890 F.2d 511, 513 (1st Cir. 1989), cert. denied, 495
_____ _____ ______
U.S. 906 (1990). The determination of whether a valid waiver
of the right to counsel or right to remain silent was made
depends on whether the waiver was knowing and intelligent,
given the totality of the circumstances and the facts
surrounding the particular case, "`including the background,
experience, and conduct of the accused.'" United States v.
_____________
Butler, 441 U.S. at 374-75 (quoting Johnson v. Zerbst, 304
______ _______ ______
U.S. 458, 464 (1938)). See also Edwards v. Arizona, 451 U.S.
___ ____ _______ _______
477, 482-83 (1981); United States v. Ferrer-Cruz, 899 F.2d
_____________ ___________
135, 141 (1st Cir. 1990) ("The basic governing legal rule is
that a court, in considering whether a defendant has
voluntarily relinquished his Fifth Amendment rights, must
examine the `totality of circumstances surrounding the
interrogation.'"). An express waiver is not required.
United States v. Butler, 441 U.S. at 373. What is required
_____________ ______
is a clear showing of the intention, intelligently exercised,
to relinquish a known and understood right. Patterson v.
_________
Illinois, 487 U.S. 285, 292 (1988); United States v. Porter,
________ _____________ ______
764 F.2d 1, 7 (1st Cir. 1985), cert. denied, 481 U.S. 1048
_____ ______
-22-
(1987) (Miranda requires the officer to go further than just
_______
asking accused if he understands his rights; the officer must
make sure that the accused, knowing his rights, voluntarily
relinquishes them).
At the suppression hearing, the district court
concluded that the defendant was properly advised of his
rights, understood them, and knowingly waived them. The
court found no compulsion in the questioning or request to
pick out an article of clothing. The court concluded that
defendant voluntarily and with full knowledge of his rights,
responded to the officer's request and effectively waived his
rights. The record supports the district court's finding.
We note that the incriminating statement which the defendant
sought to suppress was never elicited from the arresting
officer at trial.
-23-
V.
V.
The Admission of Pablo Garcia's Prior Arrest
The Admission of Pablo Garcia's Prior Arrest
____________________________________________
A. Background
A. Background
__________
This final issue is the most difficult one. It
involves the questions of whether, and, if so, how a
defendant can avoid the admission of prior bad acts by
stipulating that knowledge and intent are not contested. We
first rehearse in extenso what happened in the district
__________
court.
Prior to trial, defendant Pablo Garcia requested a
ruling from the district court as to whether it would admit
evidence under Fed. R. Evid. 404(b)6 of his prior arrest for
dealing in cocaine. The court deferred ruling until the
evidence became relevant at trial.
At the start of the trial, but before the jurors
were in the courtroom, the attorney for Pablo Garcia (Francis
J. Gillan, III) requested that the government not be allowed
to mention the 404(b) evidence in its opening and that none
of the witnesses be allowed to testify as to defendant's
prior arrest until the court had ruled on the admissibility
____________________
6 Fed. R. Evid. 404(b) provides that:
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.
-24-
of the evidence. The prosecutor stated that he had no
intention of referring to the evidence in his opening and
that he would instruct his witness not to mention the
previous arrest. The court then stated that there would be a
hearing on the question in the absence of the jury at the
time the prosecutor wished to introduce the evidence.
Counsel for the defendant Jose Garcia (John M.
Cicilline), then informed the court that he might want to
elicit testimony as to the prior arrest of Pablo Garcia in
cross-examination of government witnesses. The court stated
that he would rule on the question at the appropriate time.
After the trial had progressed, Attorney Cicilline,
counsel for Jose Garcia, informed the court that he wanted to
elicit testimony about Pablo Garcia's prior arrest in cross-
examination of the next government witness, a DEA agent. The
court then held a hearing on the admissibility of the
evidence.
After hearing Attorney Cicilline on the question of
relevancy, the court heard argument by Attorney Gillan, Pablo
Garcia's attorney, as to why the evidence should not be
admitted. The prosecutor then advised the court that he was
not going to offer the evidence through the DEA agent, but
that he intended to offer testimony on Pablo Garcia's prior
arrest by a detective on the Providence Police Department.
The detective would testify that, within the last six months,
-25-
he had arrested Pablo Garcia on a cocaine charge after
personally witnessing the transaction in which Pablo Garcia
was involved.
During the course of the argument by Pablo Garcia's
attorney, the court commented:
Well, one of the requirements that
the government must prove is that there
was possession, number 1, and number two,
that it was was [sic] a knowing
possession. So, doesn't this evidence go
to question [sic] of whether the
possession was knowing?
After hearing further argument by Pablo Garcia's counsel the
court ruled:
Well, I think the rule is clear, as
has been explicated by the First Circuit
with the one exception that I referred
to, that this kind of evidence is
admissible as proof of motive, intent,
plan, knowledge, in this kind of a case
where there's a charge of possession with
intent to distribute, and also, a charge
of conspiracy. . . . It's admissible.
The prosecution can put it in. So, if
the prosecution doesn't choose to put it
in, one of the other defendants can bring
it out.
Prior to the introduction of the Rule 404(b)
testimony that the court had ruled would be admissible, Pablo
Garcia's attorney tried again to have it excluded. He
stated, inter alia:
_____ ____
Number 1, your Honor had said that
this evidence was important because it
would go to issue of intent to
distribute. A prior sale equals an
intent to distribute on this occasion.
With that in mind, your Honor, and
-26-
reading Rubio Estrada again last night,
where the Court had said that had
mentioned the facts [sic] that intent was
important. I would respectfully suggest
that if intent was at issue, based on the
testimony we heard from Detective Della
Ventura and thus far from Detective
Zammarelli, I wouldn't contest intent to
distribute, insofar as there is more than
ample evidence that whoever possessed
that cocaine, possessed it with the
intent to distribute. So, if the 404(b)
evidence goes to the intention of someone
to distribute that cocaine, I would
suggest, your Honor, that if the jury
finds beyond a reasonable doubt that
Pablo Garcia possessed, did in fact
possess that cocaine, then I would
stipulate that they can find from there,
that he did so with the intention to
distribute that cocaine.
After counsel's further argument on unfair
prejudice the following colloquy took place:
THE COURT: It may be. It may be.
And people in your position say it's
unfair prejudice. I say, it's fair
prejudice because it's fair evidence
against this defendant because he is
being charged with knowing possession,
and that's an issue in this case. He's
going to tell us, and you're going to
argue to the jury, that he just happened
to be there, wrong place at the wrong
time, doesn't know anything about cocaine
trafficking.
Mr. GILLAN: No, I don't say that
he doesn't know anything about cocaine
trafficking, just that he's not involved
in this enterprise.
THE COURT: Well, this evidence
indicates that he is.
MR. GILLAN: Thank you, your Honor.
-27-
THE COURT: And that's why it's
relevant, and that's why it's properly
admissible under the rule because there
is an issue of knowing possession . . .
Detective Zammarelli testified that, two months
prior to the arrest of Jose Garcia and Pablo Garcia, he and
Detective Della Ventura (also involved in the arrests of
Pablo and Jose) arrested Pablo Garcia in Providence at a
different location. Detective Zammarelli testified that he
observed, through a large glass window, three men engaged in
discussion. One of the men handed money to another, who
began to speak with the third man, Pablo Garcia. Pablo
Garcia then walked out of Detective Zammarelli's view, and
returned to hand a bag of suspected cocaine to the man from
whom he obtained money. Detective Zammarelli, along with
Detective Della Ventura, then arrested the three men. Pablo
Garcia was charged with unlawful delivery of cocaine and
conspiracy.
Immediately after this testimony, the court
instructed the jury:
. . . Mr. Foreman and members of the
jury, sometimes evidence is admissible
for one purpose, but it's not admissible
for another purpose. So, the Court has
to allow the evidence in because it's
relevant on some point in the case. But
I have to advise you, as jurors, that you
can't consider it on some other point in
the case.
The rule of evidence that's involved
is rule 404(b) which relates to other
crimes or wrongs, prior bad acts as it's
-28-
often referred to. 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.
That's the rule. What it means is that,
in a criminal trial for an offense you
can't bring in evidence of other
offenses, just to show that the defendant
is a bad person and is likely to have
committed this offense. That's not
admissible for that purpose. However, it
is admissible to show knowledge or intent
or motive or plan.
I have ruled that this evidence is
admissible in this case against Pablo
Garcia because two of the issues in the
case relate to his knowledge and his
intent. First of all, he has to have
knowing possession of the cocaine in this
case, and also, he is charged with not
only knowing possession but possession
with intent to distribute. And so, this
evidence relates to his knowledge about
cocaine and whether he knowingly
possessed it in that apartment on
Gallatin Street, and also, if he
possessed it, whether he possessed it
with intent to distribute.
So, you may consider this evidence
or prior acts by the defendant, Pablo
Garcia, only on the question of his
knowledge and intent in this case; and
the government has the burden of proving
those elements beyond a reasonable doubt.
This instruction was given in abridged form in the jury
charge. It is to be noted that the prosecutor did not
mention the prior arrest in his closing argument.
-29-
On appeal, defendant argues that the district court
erred in admitting the 404(b) evidence for two reasons.
First, defendant contends that it was impermissible evidence
of bad character and that it was unfairly prejudicial.
Second, defendant argues that the district court should have
accepted his attempt to foreclose admission of the evidence
by offering to concede the issues of intent and knowledge to
which the evidence was directed. We begin by addressing the
admissibility of the evidence.
B. Admissibility of the Evidence
B. Admissibility of the Evidence
_____________________________
Evidence of prior bad acts is admissible, pursuant
to Fed. R. Evid. 404(b), when it satisfies a two-part
inquiry by the trial court. The trial judge first determines
whether the evidence has some "special" probative value
showing intent, preparation, knowledge or absence of mistake.
See United States v. Flores Perez, 849 F.2d 1, 4 (1st Cir.
___ _____________ ____________
1988) (quoting from United States v. Scelzo, 810 F.2d 2, 4
_____________ ______
(1st. Cir. 1987)); United States v. Moccia, 681 F.2d 61, 63
_____________ ______
(1st Cir. 1982). This evidence must overcome the absolute
bar of Fed. R. Evid. 404(b), excluding evidence which
demonstrates only that the defendant has a bad character.
See United States v. Ferrer-Cruz, 899 F.2d 135, 137 (1st Cir.
___ _____________ ___________
1990); United States v. Rubio-Estrada, 857 F.2d 845, 846-47
______________ _____________
(1st Cir. 1988). Next, the judge balances the probative
-30-
value of the evidence against the danger of unfair prejudice,
pursuant to Fed. R. Evid. 403.7 See United States v.
___ _____________
Ferrer-Cruz, 899 F.2d at 138; United States v. Rubio-Estrada,
___________ _____________ _____________
857 F.2d at 847; United States v. Scelzo, 810 F.2d at 4;
_____________ ______
United States v. Moccia, 681 F.2d at 63.
_____________ ______
The admission of 404(b) evidence is committed to
the sound discretion of the trial judge. We will reverse on
appeal only for abuse of discretion. See United States v.
___ _____________
Flores Perez, 849 F.2d at 4. In Flores Perez, we observed
_____________ ____________
that where the 404(b) evidence is probative of issues like
intent and knowledge, the prohibition against admission of
character evidence is construed broadly. Id. In this case,
___
the district judge admitted the evidence of Pablo Garcia's
prior arrest for dealing cocaine as relevant to intent and
knowledge.
When he first ruled that the evidence was
admissible, the district judge relied on what he called a
clear rule in this circuit of admitting prior acts evidence
as proof of knowledge, intent, etc., in cases involving
possession and conspiracy. As we explained recently in
____________________
7 Fed. R. Evid. 403 provides that:
Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of
time, or needless presentation of
cumulative evidence.
-31-
31
United States v. Hadfield, 918 F.2d 987, 994 (1st Cir. 1990),
_____________ ________
cert. denied, ___ U.S. ___, 111 S. Ct. 2062, 114 L. Ed. 2d
_____ ______
466 (1991), we frequently have "upheld the admission of
evidence of prior narcotics involvement in drug trafficking
cases to prove knowledge and intent." See e.g., United
___ ____ ______
States v. Ferrer-Cruz, 899 F.2d at 138 (1st Cir. 1990)
______ ___________
(introduction of prior convictions of drug trafficking
admissible to prove defendant's knowledge that bags found in
car contained cocaine); United States v. Rubio-Estrada, 857
______________ _____________
F.2d at 850 (introduction of prior drug trafficking
conviction admissible to prove knowledge where defendant
claimed he did not know that cocaine was in his house);
United States v. Molinares Charris, 822 F.2d 1213, 1220 (1st
_____________ _________________
Cir. 1987) (prior involvement with drug smuggling tended to
refute claim of mere presence on boat carrying drugs), cert.
_____
denied sub nom, Pimienta-Redondo v. United States, 493 U.S.
______ ___ ___ ________________ ______________
890 (1989).
In this case, there is a close nexus between the
past act and the current charges. Pablo Garcia was arrested
only two months earlier by two of the same officers who made
the arrest precipitating the current charges. The previous
arrest was for dealing in cocaine, an act which is similar
and has special relevance to the charge of possession with
intent to distribute cocaine. We find that the trial judge
was correct in concluding that Pablo Garcia's prior arrest
-32-
32
for dealing in cocaine could provide the basis for reasonable
inferences going to defendant's knowledge and intent that
were not based solely on bad character. Cf. United States v.
___ _____________
Francesco, 725 F.2d 817, 822 (1st Cir. 1984) (prior
_________
conviction for selling cocaine admissible to show knowledge
and intent to possess and distribute cocaine).
We also find that the prior arrest was admissible
because its probative value was not substantially outweighed
by the danger of unfair prejudice. See Fed. R. Evid. 403.
___
We afford "considerable leeway" to a district court in its
Rule 403 balancing, United States v. Simon, 842 F.2d at 555,
_____________ _____
and we will reverse a district court's balancing only in
"exceptional circumstances." United States v. Garcia-Rosa,
_____________ ___________
876 F.2d 209, 221 (1st Cir 1989), cert. denied sub nom,
_____ ______ ___ ___
Alvarez v. United States, 493 U.S. 1030 (1990). This case
_______ _____________
does not present any such exceptional circumstances.
We note that the evidence involved an arrest,
rather than a conviction, and involved two of the same
officers who participated in the arrest leading to the
charges at issue. These circumstances might well have
exaggerated the prejudicial effects of the evidence, a factor
not explicitly addressed by the district court.
Nevertheless, Rule 404(b) covers prior acts, and is not
____
limited to convictions. From our review of the record, we
are satisfied that there was sufficient evidence linking the
-33-
33
defendant to the prior act. Moreover, the fact that Pablo
Garcia was only arrested, and had not been convicted, was
explained to the jury.
Lastly, the district court handled the prior acts
evidence with care, providing the jury with a limiting
instruction after the evidence was admitted, and again
instructing the jury of the scope of prior acts evidence in
his final charge.
C. Defendant's Offers to Concede Knowledge and Intent
C. Defendant's Offers to Concede Knowledge and Intent
__________________________________________________
Having found the prior acts evidence admissible, we
now address defendant's argument that, because he had
conceded the elements of knowledge and intent to which the
evidence was directed, the evidence should not have been
admitted. In support of his claim, defendant points to two
statements made by defense counsel prior to the admission of
the evidence. With respect to the issue of knowledge,
defendant highlights an unelaborated statement made in
response to the court's discussion of the prejudicial impact
of the evidence that, "No, I don't say that he doesn't know
anything about cocaine trafficking. . . ." With respect to
the issue of intent, defendant points to his counsel's offer
to stipulate to the intent to distribute in the event the
jury found that Pablo Garcia, in fact, possessed the cocaine.
(We excerpted the context surrounding these statements in our
discussion of the background on this issue, supra.) The
_____
-34-
34
combination of these two statements, defendant argues,
constituted a clear offer to concede that he had the
requisite knowledge and intent to possess the cocaine, and
the specific intent to distribute it, if the government
proved that he possessed it. For the reasons that follow, we
find that the defendant failed sufficiently to remove
knowledge and intent from the case, and that the trial judge
did not err in admitting the evidence despite the defendant's
stated concessions.
Defendant relies upon our decision in United States
_____________
v. Ferrer-Cruz, 899 F.2d at 139, in which we examined a
___________
similar claim "in light of" the Second Circuit's decision in
United States v. Figueroa, 618 F.2d 934 (2d Cir. 1980).
______________ ________
Figueroa held that a defendant may remove issues of knowledge
________
and intent from a case by telling the court that he will not
dispute those issues:
provided that he expresses himself to the
_________________________________________
court with sufficient clarity to justify
_____________________________
the court in (a) disallowing any
`subsequent cross-examination or jury
argument that seeks to raise' those
issues, and (b) `charging the jury that
if they find all other elements beyond a
reasonable doubt, they can resolve the
issue against the defendant because it is
not disputed.'
United States v. Ferrer-Cruz, 899 F.2d at 139 (quoting from
_____________ ___________
United States v. Figueroa, 618 F.2d at 942). The court in
_____________ ________
Figueroa explained that a formal stipulation was not
________
required. Id. The offer, however, must be unequivocal. Id.
___ ___
-35-
35
See also United States v. Colon, 880 F.2d 650, 659 (2d Cir.
___ ____ _____________ _____
1989); United States v. Mohel, 604 F.2d 748, 754 (2d Cir.
_____________ _____
1979).
In Figueroa the court found ample evidence in the
________
record that the defense counsel had spoken with clarity, and
had removed, not merely certain inferences that might be
drawn as to the defendant's intent, but the entire issue of
intent. Counsel had addressed each of the court's concerns
and had stated "unequivocally," "'[t]here is no issue of
intent.'" United States v. Figueroa, 618 F.2d at 940. By
_____________ ________
contrast, in Ferrer-Cruz, we determined that defense
___________
counsel's response to the judge that he was not arguing mere
presence did not amount to a clear offer to stipulate.
United States v. Ferrer-Cruz, 899 F.2d at 139. In addition,
______________ ___________
we found that, far from having removed the issue from the
case, the defense counsel had actually argued mere presence.
Id.
___
To prevent the admission of bad acts evidence, a
defendant's offer to concede knowledge and/or intent issues
must do two things. First, the offer must express a clear
and unequivocal intention to remove the issues such that, in
_________
effect if not in form, it constitutes an offer to stipulate.
Second, notwithstanding the sincerity of the defendant's
offer, the concession must cover the necessary substantive
ground to remove the issues from the case. See generally,
___ _________
-36-
36
United States v. Colon, 880 F.2d at 658 (where the court
______________ _____
determined that the stipulation the defendant presented, even
if proffered with sincerity, failed to remove the issue of
intent from the case).
We begin our analysis by noting that it was not
only the government which requested the admission of Pablo
Garcia's prior arrest, but defendant Jose Garcia, as well.
The two statements of concession raise somewhat different
concerns, and we address each in turn.
We do not believe that the defense counsel's
statement as to Pablo Garcia's knowledge of drug trafficking
amounted to an attempt to stipulate, nor do we believe that
it removed knowledge from the case. First, the statement did
not rise to the level of a clear offer to concede knowledge.
It was no more than a single response, among others, in an
ongoing discussion with the court about the prejudicial
impact of the evidence. By contrast with the successful
defendants in both Figueroa and Mohel, defense counsel did
________ _____
not pursue this concession with the court at that time, nor
did he raise it again. See United States v. Figueroa, 618
___ ______________ ________
F.2d at 940 (where defense counsel vigorously pursued his
concessions with the court); United States v. Mohel, 604 F.2d
_____________ _____
at 752 (where defense counsel repeatedly offered to
stipulate). At best, defense counsel's statement may be
construed as an offer not to argue that defendant had no
___ __ _____
-37-
37
knowledge of the workings of drug trafficking. In Ferrer-
_______
Cruz, we observed that defense counsel's comments suggesting
____
that the defendant would not argue an issue (mere presence)
were "quite different from saying that the judge may instruct
the jury that, should it find such presence, the defense
w[ould] not dispute the 'knowledge' or 'intent' needed to
support the conviction." United States v. Ferrer-Cruz, 899
_____________ ___________
F.2d at 139.8
Second, defense counsel's statement of Pablo
Garcia's relative knowledge about cocaine trafficking was not
the sort of concession which the trial judge reasonably could
be expected to assume would remove the entire issue of
knowledge from this case. At most, it was a limited offer to
____________________
8 Courts which permit the foreclosure of 404(b) evidence by
concession or stipulation generally require that the
defendant be willing to accept a jury charge to the effect
that the issue has been removed from the case. See e.g.,
___ ____
United States v. Colon, 880 F.2d at 659; United States v.
_____________ _____ ______________
Figueroa, 618 F.2d at 942. Exactly who has the duty, the
________
defense counsel or the court, to suggest such an instruction,
however, remains unclear. Figueroa seems to suggest that, so
________
long as the defendant raises the issue with sufficient
clarity, the judge must then remove the issue from the case,
by disallowing subsequent cross-examination, and by a jury
charge. See United States v. Figueroa, 618 F.2d at 942. Our
___ _____________ ________
decision in Ferrer-Cruz places the burden more clearly on the
___________
defendant, as evident in the above-cited excerpt. In this
case, we do not need to reach the issue because we find that
defendant's statement was not a clear offer to remove
knowledge from the case. We merely instruct that an offer to
concede an issue which also asks for a jury charge will
appear more sincere and unequivocal, and will assist both
trial and reviewing courts in assessing such concession.
-38-
38
foreclose certain inferences that the jury might have drawn
as to knowledge.
Finally, knowledge remained a focal issue in the
case, and one vigorously contested by the defendant. Pablo
Garcia's defense was that he did not know of the presence of
___ ___ ____
the cocaine in the closet of the room he inhabited. Pablo
Garcia also argued that he did not know of the presence of
the drug paraphernalia that was openly visible in the small
apartment.
We turn next to defense counsel's offer to
stipulate to intent to distribute. By contrast with defense
counsel's statement as to knowledge, this statement
constituted a clear and unequivocal offer to stipulate to one
essential element of the case: the specific intent to
distribute. Conceding the specific intent to distribute did
not, however, affect the relevance of the evidence to show
defendant's knowledge and intent to possess the cocaine.
Defense counsel conceded intent to distribute if the jury
found possession. Because there remained an independent
basis for admission of the
evidence--the defendant's knowledge and intent to possess
the cocaine--the district court did not err in its failure to
consider the defendant's offer to stipulate in this instance.
-39-
39
The effect of stipulations on the admission of
404(b) evidence is confronting us more frequently. We,
therefore, proffer some guidance in this area. We note,
first of all, that a serious offer to concede or stipulate to
issues of intent and/or knowledge should be explored by the
district court. In the final analysis, however, whether such
an offer is accepted remains in the sound discretion of the
district judge. If the judge determines that the offer is
acceptable, the judge should take steps to assure that the
defendant is aware of the contents of the stipulation and of
its implications before directing the jury that it may
resolve the issue against the defendant.
Second, from a survey of the circuits on
stipulations in the area of 404(b) evidence, we have
ascertained a preference for handling the matter before
trial, or early in the trial process. See e.g., United
___ ____ ______
States v. Cardenas, 895 F.2d 1338, 1342 (11th Cir.
______ ________
1990)(noting that the defendant did nothing before trial to
alert the government that it would not need to prove intent);
United States v. Manner, 887 F.2d 317, 322 (D.C. Cir. 1989)
_____________ ______
(relying in part on the fact that the defendant "had not
offered explicitly in any pretrial hearings or motions to
stipulate or concede the intent issue"), cert. denied, 493
_____ ______
U.S. 1062 (1990); United States v. Franklin, 704 F.2d 1183,
_____________ ________
1188 (10th Cir.) (noting the absence of any enforceable
-40-
40
pretrial assurance that the issue would not be contested),
cert. denied, 464 U.S. 845 (1983). Cf. United States v.
_____ ______ ___ ______________
Miller, 974 F.2d 953, 960 (8th Cir. 1992) (declining to
______
overturn the district court on the basis of "defendant's
ambiguous, last minute suggestion" to enter into an agreement
with the government on intent). Although we are mindful of
the importance of some flexibility in this area, we favor
the practice of handling stipulations either pretrial, which
is preferable, or shortly after the trial has begun for the
sake of clarity both at trial and on review.
Affirmed.
Affirmed.
________
-41-
41
Document Info
Docket Number： 92-1427
Filed Date： 2/4/1993
Precedential Status： Precedential
Modified Date： 3/3/2016