*1 injunctive relief are oth- standards rationale, however, erwise met. That language clear
insufficient to overcome the 1821(j)
of section in instances where the
FDIC does not exceed the bounds of its
statutory powers.
Accordingly, affirm the order of the
district court. America, Appellee,
UNITED STATES ARIAS-MONTOYA,
Victor
Defendant, Appellant.
No. 91-1908. Appeals, United States Court of Providence, R.I., Murphy, William J. First Circuit. defendant, appellant. April Heard 1992. Chafee, Zechariah Atty., Asst. U.S. Decided June Almond, whom Atty., Lincoln C. U.S. Prov-
idence, R.I., brief, appellee. was on CYR, Judge, Before Circuit COFFIN and CAMPBELL, Judges. Senior Circuit COFFIN, Judge. Senior Circuit Arias-Montoya Victor appeals his convic- knowingly tion for and intentionally pos- sessing cocaine with intent to distribute 841(a)(1) violation of 21 U.S.C. § (b)(1)(B). We find that the district court admitting erred in into evidence defen- posses- conviction for cocaine sion, but that error was harmless. We therefore affirm.
I. The facts as the could have found them are as follows. February
On
1991 at about 11:30
p.m.,
two Rhode
Troopers
Island State
post monitoring
speed
manned a radar
moving
of traffic
north on Route 95 in
Richmond, Rhode
Their
Island.
radar de-
moving
sixty-six
tected
defendant's
per
fifty
per
miles
hour
mile
hour zone.
*2
troopers gave
stopped
The
chase and
the
To rebut defendant’s
knowledge”
“no
fense,
prosecution
car.
the
Defendant was at the
No one
wheel.
introduced into evi-
dence Arias-Montoya’s
else
in the car.
1983 conviction for
was
possession.2
The district court in-
response
questioning by
In
one of the
jury
structed the
on the
purpose
limited
for
troopers, defendant said that
had left
he
which this evidence could be considered.
in his
driver’s license
wallet at home.
jury
The
returned a guilty verdict, and
name,
He wrote out his
address and date of defendant
prison
was sentenced to a
term
officers, giving
birth
a
for
false name
years.
of ten
Virginia
and a
address. He informed the
belonged
that the
officers
a friend
II.
provided
who lived in New York and
them
Defendant claims that the district court
this,
registration papers
with car
effect.
committed
in admitting
error
viction into evidence. After careful
review
police officers returned to their car
and the
precedent,
record
requested
a radio check for a license in
agree.
we must
Virginia
either
or
They
New York.
told that
there was
none
state
either
that,
It is well established
under Fed.
under the
given by
name and date of birth
404(b),
R.Evid.
evidence of
bad acts is
defendant.
not admissible to show bad character or
propensity
crime,
to commit a
but
bemay
suspicions aroused,
His
one of the offi-
admitted to prove, among
things,
other
in
cers asked defendant if he could
search
tent or knowledge.3 United States v. Si
car. Defendant consented to
search
mon,
orally
writing.
both
and in
In
cavity
a
relevant,
While logically
“propensity” or
the trunk of the car the officers found a
“bad character” evidence is deemed to
taped
wrapped
of cocaine
carry
unacceptable
an
risk that
the jury
plastic bags. When the officers tried to
will convict the defendant for crimes other
defendant,
arrest
attempted
escape
he
charged.
than those
y.
United States Moc
and a
Eventually
scuffle ensued.
cia,
(1st Cir.1982);
Later,
dant was handcuffed and arrested.
Rubio-Estrada,
States
during an inventory search of defendant’s
(ist Cir.1988). Such evidence therefore is
barracks,
car at the State Police
Where,
general
inadmissible as a
rule.
beeper
officers discovered an electronic
and however,
“special,”
some
has
wcm-char-
telephone
cellular
on the front seat and
relating
acter-based
to intent or
relevance—
floor
the car.
example may
be admit
—it
63;
ted.
681 F.2d at
Rubio-Estra
Arias-Montoya’s defense at
trial was
da,
135, 137 scrutiny Fed. admitted into evidence under court must survive dence possess- three-year-old evidence whose convictions bars which R.Evid. *3 distribute) “substantially marijuana out- is ing (with intent to probative value prejudice, confu- risk of sustained that weighed” by the This court and cocaine. at sion, “[sjince of time. who or waste We reasoned that cision. drugs is more experience with previous has the evi- district court ruled Initially, the know) (and hence to recognize likely.... Subsequently, how- dence inadmissible. drugs than bags’ the contents were that itself, concluding Ari- that ever, it reversed inferences experience, the one without for cocaine past conviction as-Montoya’s character,” id. at at do involve issue In tests. both of these possession survived juror might also fact that a “[T]he on what it ruling, court relied the so char- that do involve make other inferences this cir- controlling precedent from sidered as point as far Rule is beside the acter court’s the district cuit. We believe Id. The is concerned.” 404’s absolute ban Indeed, a con- correct. instinct first was an absolute ban as will evidence think, “survive[ ] drain the holding, trary inference permissible long as at least one at force of Rule first sentence possible.” Id. all. “Special” Relevance No reasoning in United applied the same Simon, F.2d 552 Cir. record, to see how we fail On this There, 1988). customs officers dis federal possessing for twen defendant’s containing fifty-five pounds covered a box nearly in Texas grams of cocaine ty-eight plane bound from Jamai marijuana on a any “special” relevance ago has years ten Rico). Juan, (via Puerto Antigua San ca to the the knowledge of contents to his the box was an airline outside of On the driving in Febru the he was trunk of name and sticker with defendant’s address sure, often we have ary, 1991. To be Also written on the address on it. Antigua acts admissi drug-related bad deemed profes university the name a box was knowledge” on “no defense negate ble a professor nor the Neither defendant sor. charge. As follow drug subsequent a carrying the box. Defen clear, plane holdings survey our makes ing flight the same Juan on dant arrived San however, so where the done we have for vari day and arrested one on next supported at least evidence issue agents. non-character-based) by the customs infer offenses (i.e., ous checked box having concerning the He admitted ence before, day charged plane offense. onto the Jamaica mind at time it con not know that he did but claimed Ferrer-Cruz, 899 In United States According to the defen marijuana. tained Cir.1990), example, the fifty- dant, to check the had asked been driving car to a a observed defendant was pas another a box as favor pound five Defen- met codefendants. corner where he told (the university professor) senger away in a drove exited the dant books. him box contained car, drove the pickup truck. Codefendants and consummated shopping center to a of “no claim negate defendant’s agents. At the drug sale introduced ev- knowledge,” prosecution center, agents found shopping earlier, conviction, idence containing cocaine on the floor bags a friend in marijuana with cultivating driver’s seat where to the car next admissi- sustained the This court Antigua. and co- sitting. Defendant had been dant conviction, finding sup- that it bility of the possessing defendants were pro- one non-character ported at least distribute) cocaine. (with intent to “a back- one with pensity-based inference: cultivation,” involving marijuana ground among argued, At trial defendant likely to believe that “is not suggested, unaware things, that was
7H
containing marijuana
a box
(or
feels like
admitting
Arias-Montoya’s past convic-
weighs
as)
about the same
comparatively
tion into evidence:
question
“The
is ...
books,
sized box of
and therefore would
one can infer that a
[whether]
suspicious
have been more
[pro-
of the ...
who has a
conviction of
related
(had
story
there been such
fessor’s]
a ...
crime as in this case is
[person]),”
the freezer room and under the chicken package form” inwas the trunk of the car coop prior and possession has a conviction Rather, was driving. he claimed not to likely is more presence to know about the know it. circumstances, Under these marijuana than one who lives on such a relevant test appear would to be whether farm and does not past possession have a someone with past possess- conviction for conviction.” Id. at 63. ing twenty-eight grams of cocaine is more We affirmed the admission of this evi- likely to know that is a there dence, finding possessed “special,” non- cocaine in the trunk of the borrowed car he character-based relevance. jury might The is prior someone no with concluded, have suggested, we that those viction. keep use and marijuana nearby who are connection we can draw be- likely freely more to talk about it in front prior tween defendant’s conviction and his one with a possess- conviction for mind at the time of the Rhode ing marijuana; past that possessor “a is character, i.e., Island arrest is one based on likely more spot marijuana to under a defendant was likely more to know cocaine coop;” past possessor chicken and that “a inwas the car he previously pos- less to away marijuana throw if he cocaine. explained, sessed As have we it,” comes across sup- id. These inferences indeed, may, while bad character evidence port found, a conclusion of probative of a guilty be defendant’s knowl- depends entirely upon ... “[n]one edge, suppressed it must sup- be unless it character/propensity’ ‘bad chain of reason- ports at least one non-character based in- ing.” They “escape thus the absolute ference. 404(b)’s] bar first sentence.” Id. [Rule possible No such The same cannot said inference is here. be of the inference upon quoting connecting this case. After There was no evidence defen- Moccia, extensively from the court at- to the trunk of the car that dant would tempted permissible to articulate basis past possession make the added fact additional, The court also supported reasoned that Simon's dence not bas- suggested marijuana linking he "used in An- es for knowledge bad acts to his defendant’s box, tigua marijuana and that those who use in Anti- of the we sus- contents gua bring marijuana pect are more wish we would not have affirmed without con- not,” Simon, Antigua fronting implications holding. than those who do of such Mehrmanesh, reasoning, Arguably, F.2d at 553. if United States v. 831- (9th Cir.1982) independent holding, sweep (jury inferring viewed as an barred from broadly enough support admissibility participation even defendant’s made use though solely propensity-based. importation likely). Had the evi- defendant, belonged to or Had the knowledge on the instant to his show, and the he had used it for The record there evidence charge. were argue, not did or more than of time period an extended open had reason opened or had ever willing pre- occasion, might belongings None of the car.
trunk
open
its
had reason
have
sume would
And,
there were
though
there.
was found
and, so,
kilogram of
that a
to know
trunk
package,
on the
fingerprints
Arguably,
there.
hidden
cocaine was
among
them.
possession cou-
fact
404(b) question in more om-
Framing the
trunk
and use of the
his access to
pled with
point.
only underscores
terms
inous
him to have
likely for
it more
would make
ask,
example,
an
whether
might
recognized the
the cocaine
come across
alien, driving a bor-
good place to hide
as a
cavity
the trunk
pager
containing an electronic
rowed
closely
align the case more
This would
it.
police offi-
lies to
phone,
cellular
eight
identity and has an
cers about
drugs suggested
the location
where
possessing a small
year old conviction
opportunity for dis-
a more substantial
cocaine,
likely to know
is more
amount
*5
logical
and, accordingly,
“tighter
covery
is hidden
kilogram of cocaine
act and
the extrinsic
link between
no such
car than one
of the
with
trunk
v. Garcia-
States
crime,”
United
charged
might
Although
an-
prior conviction.
209,
(1st Cir.1989).5
Rosa,
221
response
be based
“yes,” our
swer
juryA
solely on character
inferences.
prone to
might more
Alternatively, we
pager,
the cellular
find the
might well
had the circum-
“special relevance”
find
immigration and em-
phone, defendant’s
drug con-
Arias-Montoya’s prior
stances of
police
status,
to the
lying
and his
ployment
closely mirrored those
viction more
However,
guilty
of
conviction;6
part of
had
been
instant
assumptions about
barring improper
of
suggested course
scheme or
a common
cocaine,
of
the fact
possess
propensity
dealing;7 had the fact
continuous
make defen-
conviction
provide con-
likely to
act been
knowledge
likely.
earlier bad
guilty
161,
Cir.1986) (similar
smug-
(3d
drug
174-75
found on the
the cocaine was
5. In Ferrer-Cruz
lardan,
defendant;
schemes);
v.
552
gling
United States
car driven
floor of the
front
Cir.1977) (similar
216,
(8th
heroin
F.2d
218-19
box of mari-
handled
the defendant
conduct).
United
address);
See abo
(bearing
and in
distribution-related
juana
name
229,
(1st
Ingraham,
F.2d
231-34
v.
832
drugs
States
Cir.1987)
discovered
bearing
710-11,
(similar,
peculiar
offenses
home. See discussion
dant's own
Lau,
Rubio-Estrada,
"signature”);
828
United States v.
fendant's
States v.
also United
supra. Cir.1987) (similar smug-
871,
(1st
845,
Cir.1988) (evidence
(1st
of
F.2d
873-74
847-48
F.2d
857
individuals);
involving
gling
same
supports
schemes
drug
inference
convictions
Charris,
F.2d
scales,
822
v. Molinares
powder,
United
1213,
and cash
States
white
knew
Cir.1987) (similar
(1st
drug
& n. 6
used in
1219-21
ledger
his home were
found in
Scelzo,
schemes);
v.
smuggling
States
scheme).
United
distribution
2,
(similar
(1st Cir.1987)
card
credit
4
Francesco,
See,
following
schemes);
example,
cases
725
States v.
United
fraud
govern-
817,
(1st Cir.1984) (prior
sale
upon inappositely, we
cocaine
F.2d
822
think —
—
Rivera-Medina,
isomer).
v.
(two
cocaine
United States
to distribute
ment:
relevant to intent
1279,
Renteria,
(1st Cir.1988)
12,
of extortion-
instances
625
16
States v.
F.2d
But see United
Cir.1980)
"striking[ly]
(5th
offense of
of
activity
(possession
of two ounces
]”
similar[
ate
1281
involved);
coconspirators
and same
to intent
distribution
cocaine
cocaine).
Gonzalez-Sanchez,
F.2d
involving
pounds
825
of
v.
five
States
United
scheme
Cir.1987) (same
(1st
similar
participants in
581
Hopkinson,
F.2d
492
offenses);
v.
States
Cir.1974)
v. And-
7.United
United States
fraud
arson
iarena,
robbery part
(1st
of
(prior armed
Cir.1987)
(prior
1043
F.2d
drug importa-
"continuing
finance
scheme”
admissible
cocaine network
with
involvement
importa-
prove intent on
so
drug conspiracy with
tion
admissible
prove participation in
Harrison, 679
Crocker,
v.
charges);
States
United
individuals);
United States
same
(evidence
past
(D.C.Cir.1982)
of
Cir.1986) (same
participants
F.2d
drug
F.2d
“course
to show
counterfeiting
distribution
activi-
"sufficient[ly] similar”
and
ties);
charges).
dealing”
instant
intent on
Wright-Barker,
F.2d
complete
story
place
of the one
years
text or
subse-
took
crime
before and in-
or,
quently charged;8
finally,
recently
had
different participants.”
volved
provided
suspicion.9
an additional basis
We are likewise unable to discern a “non-
government argued
But the
none of these
propensity
linking
thread”
pos-
trial,
supported by
theories at
and none is
twenty-eight grams
session of
the record.
possession,
Texas
1982 to his
in Rhode
Instead,
find the
facts
this case
Island,
later,
some nine
of a
Lynn,
closer to those United States v.
packaged
of cocaine
for distribution. See
There the de- Garcia-Rosa,
(relevance
him. familiarity experience play also some part. A driver familiar with is more upon strength This conclusion rests recognized them should government’s case without bad point, become at some such as have visible that, act evidence11and the fact aside from being when loaded or when the trunk was eliciting testimony two lines of about opened. people intuitively Most conviction, prosecutor made no possibility logically reason that the of inno- it, further reference to either at trial or— cent, unwitting possession was less in the particularly significant and this we find —in case of a dealer. I do not be- closing. We also note that the district 404(b) requires lieve that Rule or- properly court cautioned the as to the *7 jury’s der to admit such evidence for the weight given prior limited convic- consideration on the issue of intent and tion. These observations serve to un- knowledge. folly derscore the of bad act overkill. Hence, I would sustain the district Affirmed. court’s admission of the convic- tion in these circumstances. It was not CAMPBELL, LEVIN H. Senior Circuit presented simply to show that commission (Concurring result). Judge likely, offense was more but element, particular rather to establish a I am not convinced that Fed.R.Evid. allows. intent and as the Rule prior barred use of defendant’s help knowledge meaningful convictionto establish I see no factual difference just propensity may the circumstances of this case and have been between effects; Montoya’s any personal was un- 10. Because we find defendant absolutely step the first of our provide barred under able to the officers with the last name 404(b) analysis, weigh- Rule ing we do not reach the of the friend from whom he borrowed prejudicial value and effect Island; pagers or the friend in Rhode electronic required step. under the second phones, near and cellular such as were found the front seat of the car defendant convenience, repeat For the sake of dealers; commonly by drug are used following facts established at trial: defendant and an alien at the time police lied to Rhode Island officers about arrest; and, attempted finally, defendant identity owning date and about birth escape tried to from the officers when license; he be en driver's claimed to route arrest him. night, Island to visit a friend for the but Rhode did not have a fresh set of clothes with him or in a case like United States v. ones If there distinction, greater it lies in the rationaliza post hoe sophistication Requiring the identifica in Moceia. non-propensity based
tion of at least little more than seems to me to do
factor or dis prosecutor for a
create an incentive I would rule to wax creative. judge
trict allowing not err in
here that the court did in, knowledge to come offense and the
being key contested issue reasonably probative of being ANDIARENA, Petitioner,
Oscar
Appellant, America,
UNITED STATES
Respondent, Appellee.
No. 91-1943. Appeals, States Court of
First Circuit. 28, 1992. Jan.
Submitted
Decided June