999 F.3d 60
1st Cir.2021Background
- Police executed a warrant at an apartment; Rivera was found in a bedroom where drugs and a green-and-black .40 Glock (obliterated serial) were found. An officer opened the apartment padlock with a key from Rivera's key chain. Rivera’s phone contained drug photos.
- Rivera was indicted for possession with intent to distribute cocaine, crack, and marijuana, and for possessing a firearm in furtherance of a drug-trafficking crime; jury convicted on all counts.
- Rivera moved to suppress; the district court denied the motion (not challenged on appeal).
- At trial the government introduced a redacted Puerto Rico conviction showing Rivera had possessed a similar green-and-black Glock about a month earlier; that Puerto Rico conviction was later vacated after the Supreme Court’s Ramos decision regarding jury unanimity.
- Rivera appealed, challenging (1) admission of the prior-conviction/other-acts evidence, (2) exclusion of certain impeachment/audio/work-plan evidence, and (3) several jury instructions. The First Circuit affirmed.
Issues
| Issue | Rivera's Argument | Government's Argument | Held |
|---|---|---|---|
| Admissibility of vacated Puerto Rico gun conviction under Fed. R. Evid. 404(b) | The vacated conviction undermines documentary and testimonial value and its admission violated due process | Other-acts evidence may be admitted to show knowledge/intent; admission was properly limited and not unfairly prejudicial | Admission was proper: the prior act was specially relevant to knowledge/intent for constructive possession; vacatur did not bar admissibility and error (if any) was waived or harmless |
| Ability to impeach agent with codefendant’s report claim (padlock/key) | Defense sought to show another had a key to impeach agent’s testimony that Rivera had the only keys | Statement was hearsay and would only show someone else also had a key, not exclusive control | Exclusion harmless: joint constructive possession possible, so the impeachment would not have changed outcome |
| Exclusion of audio of Rivera saying a key was for his car and evidence of police "work plan" | The audio and plan would support Rivera’s theory police planted the gun; admissible under excited-utterance or business-record/state-of-mind exceptions | Both were hearsay and properly excluded; even if admitted they would not negate that Rivera had a key linking him to the apartment | Any error (if error) was harmless because evidence still linked Rivera to the apartment and likely would not have altered verdict |
| Jury instructions: mental state for gun possession; aiding-and-abetting "advance knowledge"; actual-possession language | Claimed erroneous instructions on mens rea and inclusion of actual-possession language where no direct evidence existed | Instructions followed controlling First Circuit and Supreme Court precedent ("knowingly", Rosemond standard for advance knowledge) | No plain error: instructions conformed to binding law; actual-possession complaint waived for inadequate briefing |
Key Cases Cited
- United States v. Tanco-Baez, 942 F.3d 7 (1st Cir. 2019) (constructive possession may be inferred from control over area)
- United States v. Aguilar-Aranceta, 58 F.3d 796 (1st Cir. 1995) (knowledge is required element for possession)
- United States v. Powell, 50 F.3d 94 (1st Cir. 1995) (prior gun possession may have special relevance to knowledge and intent)
- United States v. Wyatt, 561 F.3d 49 (1st Cir. 2009) (other-acts evidence need not be identical but must have sufficient similarity)
- Dowling v. United States, 493 U.S. 342 (1990) (other-acts evidence admissible even if defendant was acquitted of that act)
- Rosemond v. United States, 572 U.S. 65 (2014) (aider/abettor liability requires knowledge in time to opt to walk away)
- United States v. McLean, 409 F.3d 492 (1st Cir. 2005) (constructive possession may be inferred from control of area)
- United States v. Bobadilla-Pagán, 747 F.3d 26 (1st Cir. 2014) ("knowingly" is the requisite mens rea for firearms possession in furtherance of drug trafficking)