*1 clearly comments indicated that the court rely issue,
did on the statements at append
court failed to a written record of
such a determination In either PSI. comply the district failed to 32(c)(3)(D) sentencing
with Rule Rivera
Lopez. appropriate remedy The in situa- this, however, such as is
tions not resen- Rather,
tencing. his case should be re-
manded to the district court for clarifica-
tion on of its reliance the statements to applies. If
which the rule the district court rely that it did not on disputed
indicates sentencing appellant,
information when
it make a should written determination to effect, append disclaimer If, hand,
the PSI. on the other the court
indicates that it relied to extent
disputed information, it vacate the should
sentence sentencing and hold a new hear-
ing complies with Fed.R.Crim.P. Serino,
32(c)(3)(D). appellants convictions of both are Appeal
affirmed. No. 87-1595 is remanded sentencing judge pro- further
ceedings opinion. consistent with this America, Appellee,
UNITED STATES of SIMON,
Alister Henderson
Defendant, Appellant.
No. 87-1511. of Appeals, Court
First Circuit.
Heard Dec. 1987.
Decided March 1988.
553 P.R., propensi- or by missible to show bad character Inserni, Rey, Hato D. Frank crime, defendant, ad- ty to commit a are nonetheless Court, for Appointment of the show, among things, “in- to other missible appellant. tent, mis- knowledge, ... or absence of ... with Gaztambide, Atty., Asst. U.S. Jose 404(b); Fed.R.Evid. see take or accident.” Romo, Atty., U.S. Lopez F. whom Daniel (1st Scelzo, 2 810 F.2d Atty., Vazquez, Asst. U.S. Warren and Zeuli, v. 725 F.2d brief, P.R., appellee. on for Rey, were Hato (1st Cir.1984). He also concedes that 813 leeway in has considerable the trial court COFFIN, and BREYER Before legitimate probative balancing any value TORRUELLA, Judges. Circuit may against its that such evidence BREYER, Judge. potential prejudicial effect. United States (1st 886, 888 Rodriguez, v. Rivera 31, 1986, federal customs On December Medina, 761 Rico, Juan, the with in Puerto officers San Cir.1985). says, He how- F.2d dog, a searched help drug-sniffing of a court, admitting ever, in here the trial that flight had that Indies Airlines British West conviction, beyond the limits went the from enroute briefly in San Juan stopped authority. find the legal While we of its pack- They found a Antigua. Jamaica to one, ultimately we do not a issue close marijuana. containing pounds age agree appellant. with address sticker had a BWIA package Antigua in and address on it with name legal power under The trial court has Henderson Simon. Alister of defendant 404(b) engage probative-value- in to Rule the name were printed because, Also box technically balancing vs.-prejudice BANDI, UNIVER- AMERICAN “DR. K.S. legitimately rele- speaking, the evidence is CARIBBEAN, PLYM- THE SITY OF said that it found the The trial court vant. OUTH, and “DR. K.S. motive, MONTSERRAT” “relevant to prior conviction of the West BANDI, [University U.W.I. knowledge, plan, preparation, ... CAMPUS, W.I.” Indies], JAMAICA MONA and, particular be- identity, in this neither Si- agents learned that The federal an- that has been of the defense cause that flight, but nor was on the mon Bandi or accident.” nounced, of mistake absence flight the next same Simon be on the would in ways which reveals several The record Rico, in Puerto day. arrived When Simon may be so. he He said that agents him. arrested that First, might have jury reasoned he had not way Antigua; that was on his to that Simon and suggested conviction marijuana; that contained known the box Antigua in marijuana used his associates in as a favor to package he had checked the Anti- marijuana in use that those who with passenger a a man who claimed to be bring to mari- likely to wish gua more are him luggage who had told overweight do not. Antigua than those who juana to added Simon package contained books. reasoning indicates that This chain of gotten into a conversation degree some rele- was to prior conviction and had the check-in counter a woman at See, e.g., intent. defendant’s vant to the flight. juryA convicted original missed his Francesco, v. States marijuana possession him of unlawful Cir.1984) for sell- (prior conviction drug (with distribute) and related intent to intent to show ing cocaine admissible 952(a), 841(a)(1), offenses. U.S.C. §§ cocaine); United distribute possess and (1982 1986). now He Supp. and 955 & IV Penes, 760- Cepeda appeals his conviction. Cir.1978) (evidence customs in defend- marijuana seed found officials court argues district Simon days prior to events luggage nine in ant’s should not have admitted evidence mari- possessing leading prosecution him July Antigua 1980 a convicted to distribute admissible intent juana with Si marijuana. cultivating and a friend of intent). see United States But convictions, show inad- mon concedes that Masters, Cir.1971) fendant had possession been in of cocaine (marijuana use significantly probative years five earlier admissible show import). intent to knowledge where defendant claimed he
Second, drugs unaware jury might were in have taken note his camera case). of a letter that customs officers took from him, they defendant when arrested a Finally, may have concluded *3 letter apparently that carrying he was for persons grown who have marijuana on person. another The letter part said in users, a farm are not mere likely but are to got plan “Fve a to use some tape 16-track have an intent to distribute it well. as Cf. as smuggling a machine.... could [Y]ou Mehrmanesh, post them to me I post and will them back (9th Cir.1982)(evidence posses- of full of mystic scent.” The jury might “large sion of probative amounts” of drugs thought background that one with a distribute). of intent to Since intent to
involving marijuana cultivation was more distribute is an element of the offense un- likely than one without background such a der 21 841(a)(1), U.S.C. this to evidence § have understood these terms as refer- ring would be drug smuggling admissible. and therefore to have been drug involved in smuggling at argues Defendant probative val- the time. The conviction was thereby rele- ue of all these inferences light is slight in vant knowledge, intent, and absence of of the fact that he admitted he was a accident or mistake. Rastafarian and jury told the that Rastafa- Third, jury might have noted that the rians marijuana use part as of their reli- customs officer testified that the defendant gion. Since he using admitted marijuana, said that the man who had asked him to asks, he past what did the conviction add? take package told him it contained The question answer to this is that he did time, books. At that (ac- the defendant not admit to familiarity marijuana un- cording officer) said, to the “in my mind I til conviction was admitted. after was afraid there marijuana in this box government The asked the judge to admit because this is Jamaica everyone and the evidence at the govern- close of the knows grass there is a of lot in Jamaica.” ment’s case. At that time the defendant The jury might have reasoned that one did not tell the court that he would admit (cid:127)thinking this who also has a background of, use with, or familiarity marijuana. To involving marijuana cultivation is likely the contrary, defendant’s specifi- counsel to believe that a box containing marijuana cally told the court that he would rest his (or feels weighs like as) about the same a “basically defense on the lack of intent.” comparatively books, box of sized and He also suggested that if the conviction therefore would have been suspicious more admitted, were not of might man's story (had make a Rule there been such a man). for respect In this motion a directed verdict acquittal evidence is rele- of vant to knowledge ground defendant’s government intent had not as well as absence of mistake or accident. enough introduced evidence to show intent: See, e.g., Moccia, The Court: Let me ask you this. If a Cir.1982)(prior admis- conviction motion judgment for acquittal under sible government where “sought to have Rule 29 would presented now, be would infer that one who lives on a farm you say that I to deny that motion? with marijuana in the freezer room and Defense Counsel: I Yes.... would base under the chicken coop and has a my Rule 29 motion ... on lack of intent. possession likely conviction is more know As far (or as we can presence about the the district marijuana than could) one tell, who lives on a such farm defendant may and does not not have past have a possession decided (empha- to concede his familiarity conviction” with mar- original)); sis Sinn, ijuana United States v. until after the court admitted the Cir.1980) (evidence that de- conviction. rul- the time points question to a the court decided the
Defendant
Second
that,
admissibility.
circumstances,
Under these
ing
government
seeks
when
say
we cannot
the decision was outside the
past
introduce a
criminal act
to show
scope of the
authority.
court’s lawful
knowledge or
“the offer of similar
the conclusion
acts evidence should await
Defendant raises another matter.
should be
the defendant’s case and
He
“judicial
asked the district court to take
specifically
aimed at a
issue.”
identified
notice” of the facts that
there exists a
Figueroa, 618 F.2d
United States v.
university
University
called the
of the West
(2nd Cir.1980).
has
Second Circuit
Indies in Jamaica and that Rastafarians
held, however,
timing
also
rule
marijuana
part
religion.
use
as
of their
apply
apparent
does not
when “it is
that The court refused
appeals.
and defendant
dispute.”
intent will
inbe
“supplied
If asked to
sodo
with the
(2nd Cir.1987);
Caputo,
information,”
necessary
a court must take
Reed,
accord United States v.
judicial
“adjudicative
“gen-
notice of
facts”
*4
(2nd
case,
Cir.1981).
906-07
In such a
erally
jurisdic-
known within the territorial
“government may
introduce such evi-
capable
tion of the trial court or
of accu-
case-in-chief,
during
dence
its
than
rather
ready
by
rate and
determination
resort
waiting until the conclusion of the defend-
accuracy
ques-
sources whose
cannot be
968;
Caputo,
ant’s
808 F.2d
case.”
at
ac-
201(a), (b),
(d).
tioned.” Fed.R.Evid.
Reed,
cord
broken line of decisions this court. Giorgi,
United States v.
(1st Cir.1988); United States v. Reverón-
Martinez,
(1st Cir.1988);
United States v.
Cir.1987); Ingraham, United States v. (1st Cir.1987);
F.2d 229
United States v.
Lau,
CORTES-QUINONES,
“[ejvidence of other crimes ...
character person of a in order to show therewith,”
action in conformity mandated
by 404(b) Fed.R.Evid. pro- as well as due
cess, Lovely States, v. United 1948) (“[The arises out rule] of the justice fundamental demand for
fairness which lies at the juris- basis our
prudence.”) exception has become the rath-
er rule, than the a classical case of tail
wagging dog. Almost or excuse theory
far-fetched is made to fit within that
Rule's truly exceptional language, i.e.,
such evidence is only “proof admissible as motive, opportunity, preparation,
plan, knowledge, identity, or absence of
mistake or accident.” See Fed.R.Evid.
404(b).
Although after much I have reflection
decided to join in the affirmance this
“close” issue in I ante at
am of the view that this court should