February 12, 1993
UNITED STATES COURT OF APPEALS
For The First Circuit
No. 92-1858
UNITED STATES OF AMERICA,
Appellee,
v.
OLGIVIE O'BRIEN WILLIAMS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. John J. McNaught, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
James L. Sultan for appellant.
Robert L. Ullmann, First Assistant U.S. Attorney, with whom A.
John Pappalardo, United States Attorney, was on brief for appellee.
February 12, 1993
COFFIN, Senior Circuit Judge. Defendant Olgivie O'Brien
Williams appeals his conviction on charges of conspiracy to
possess cocaine with intent to distribute, possessing cocaine
with intent to distribute, and using or carrying a firearm in a
drug trafficking crime. We affirm.
I.
We begin with a brief synopsis of the facts, taken in the
light most supportive of the verdict, United States v. Karas, 950
F.2d 31, 35 (1st Cir. 1991), and the prior proceedings.
From December 1986 to April 1987, Williams and eleven co-
conspirators participated in a cocaine distribution scheme in
Boston. They operated a packaging center and retail outlets in
three apartments. On March 5, 1987, at the Westmore Street
outlet, the conspirators caught Herbert Beeche, a tenant in the
building, spying on them as they were weighing cocaine and
tallying their profits. That night, Beeche was summoned to the
conspirators' apartment. Williams accused Beeche of being an
informer and threatened to kill him. Williams and a co-
conspirator bound and gagged Beeche and placed him in the
bathtub. Williams then shot Beeche in the thigh.
Later that month, the Boston police executed search warrants
at two of the conspirators' outlets. The searches uncovered a
small quantity of cocaine, drug paraphernalia, firearms, and
ammunition. Eight of the conspirators ultimately were arrested.
Williams and six co-conspirators were tried jointly in
1988.1 At trial, the government presented the testimony of
Beeche and Lisa Gray, a girlfriend of one of the co-defendants
during part of the conspiracy. Both witnesses testified about
the drug preparation and transactions they had witnessed at the
various outlets and stated that they had seen many of the
conspirators, including Williams, routinely carrying and
displaying firearms during these transactions.
The jury convicted Williams on all three counts against
him.2 Williams raises two claims on appeal: that testimony at
trial was admitted improperly against him and that the district
court improperly limited his cross examination of Gray. We
discuss each issue in turn.
II.
Williams contends that the district court permitted the jury
to hear evidence from Gray of past conduct that should have been
1 One of the six co-defendants received a severance during
trial and later pleaded guilty to the one count against him. All
five of the remaining co-defendants also were convicted, and four
of them appealed. This court affirmed their convictions in
United States v. Walters, 904 F.2d 765 (1st Cir. 1990). Williams
raises issues on appeal that were not advanced in Walters.
Another conspirator, who was tried separately, also was convicted
and had his conviction affirmed. United States v. Green, 887
F.2d 25 (1st Cir. 1989).
2 Williams's trial counsel indicated at sentencing that he
would file a notice of appeal but did not. In 1991, Williams
filed a habeas corpus petition in district court, seeking, in
effect, the right to appeal his conviction. On June 11, 1992,
Williams's prior judgment was vacated and his original sentence
re-imposed. Williams's new counsel then filed a timely notice of
appeal.
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excluded under Fed. R. Evid. 404(b).3 Gray testified that, in
December 1986, Williams had told her that "he had killed a couple
of people." Tr. Vol. III at 66. Following a lengthy sidebar
conference, the district court admitted the evidence without
explanation. Williams argues that the sole purpose of Gray's
testimony, especially in light of its repetition to the jury, id.
at 107, was to demonstrate that he had a bad character which made
him more likely to commit the drug-related offenses charged in
the indictment.
This court has adopted a two-part test to analyze Rule
404(b) evidence. United States v. Nickens, 955 F.2d 112, 123-24
(1st Cir. 1992); United States v. Oppon, 863 F.2d 141, 146 (1st
Cir. 1988). First, the district court must determine whether the
evidence has any "special relevance" to a material issue, such as
motive, intent, or plan. Nickens, 955 F.2d at 123. If so, it
must determine, pursuant to Fed. R. Evid. 403,4 whether the
3 Rule 404(b) provides:
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.
4 Rule 403 provides:
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.
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probative value of the evidence outweighs the risk of unfair
prejudice. Id. at 124. We review the district court's decision
to admit the evidence for abuse of discretion. Karas, 950 F.2d
at 36; Walters, 904 F.2d at 768. Having done so, we agree with
Williams that the evidence was admitted improperly.
At trial, the government virtually admitted that it offered
the statement for its value as evidence of criminal propensity.
During the sidebar conference, the government argued that the
statement was relevant because Williams and a co-conspirator
"talk about how bad they are. How tough they are." Tr. Vol.
III. at 70. In essence, the government offered the evidence so
that the jury would infer that, because Williams was or claimed
to be a murderer, he was more likely than not also to be a
cocaine trafficker who uses guns in his business. The use of
"other acts" evidence to demonstrate criminal propensity is
specifically forbidden by Rule 404(b). Accordingly, the district
court erred in admitting the statement.
On appeal, the government characterizes the evidence of
Williams's prior wrongdoing as evidence of his plan to establish
and operate a cocaine distribution business by means of his modus
operandi of intimidation. Gray earlier had testified that
Williams unsuccessfully had offered her mother double rent for an
apartment located near the Westmore Street outlet. The
government claims that Williams's revelation that he was a
murderer is admissible under Rule 404(b) to illustrate his use of
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both "carrot" and "stick" to locate an apartment from which to
sell cocaine.
Neither the law nor the record supports the government's
argument. Evidence of modus operandi is admissible under Rule
404(b) to prove identity, see generally 22 C.A. Wright, A.R.
Miller, & E.H. Cooper, Federal Practice and Procedure ("Wright &
Miller") 5246, at 512-13 (1978), but identity is not disputed
in this case.5 Moreover, at trial, the government made no
effort to link the "carrot" and the alleged plan to the "stick."
The manner in which the government conducted Gray's direct
examination manifests the disjunction between the attempt to rent
an apartment from her mother and Williams's statement to Gray.
After eliciting testimony regarding the failed attempt, the
government switched to a line of questions regarding the Nelson
Street outlet. It next solicited the in-court identification of
two co-conspirators. Only then did it begin the exploration of
Williams's and some of the other conspirators' backgrounds, which
produced the other-acts evidence. Having introduced the
challenged statement, the government did not connect it to the
attempt to rent an apartment. Nor did it suggest that Williams
had made the statement to intimidate Gray or her mother or that
5 Even were identity disputed, the government's position is
untenable. For conduct to be characterized as a modus operandi,
it generally must be "`so unusual and distinctive as to be like a
signature.'" 22 Wright & Miller at 513 (quoting C.T. McCormick,
Evidence 190, at 449 (1972)). On this record, neither
Williams's boast of committing or actual commission of murder is
so distinctive a device as to prove his identity as the drug
trafficker in this case.
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Gray's mother even knew of the statement. Indeed, the government
did not place the evidence into any context, other than temporal,
related to the development or operation of the drug conspiracy.
The finding of error does not, however, conclude our
inquiry. We still must determine whether the error was harmless.
Karas, 950 F.2d at 37-38. We hold that it was. Having reviewed
the entire record and considered the probable impact of the error
on the minds of the jurors, we conclude "`with fair assurance,
after pondering all that happened without stripping the erroneous
action from the whole, that the [jurors'] judgment was not
substantially swayed by the error.'" United States v. Burke, 948
F.2d 23, 27 (1st Cir. 1991) (quoting United States v. Mazza, 792
F.2d 1210, 1216-17 (1st Cir. 1986) (quoting Kotteakos v. United
States, 328 U.S. 750, 765 (1946))).
Williams's possible status as a murderer was offered to the
jury through other properly admitted evidence. Beeche testified
without objection that he, too, knew that Williams claimed to be
a murderer. Gray testified that she had overheard Williams
threatening to kill a co-conspirator when money from cocaine
sales began to come up short. Under the circumstances, we
conclude that the admission of Williams's statement to Gray had
little prejudicial impact on the jury's judgment.
Furthermore, the record contains ample evidence to prove
Williams's involvement in a drug conspiracy and use of a firearm
in connection with it. Beeche testified that Williams shot him
in the thigh for being an informer. Gray testified that Williams
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was responsible for delivering cocaine to the retail outlets and
collecting the proceeds. Both Gray and Beeche testified that
Williams routinely was armed while cocaine was being packaged and
sold. A videotape portrayed Williams brandishing a gun while a
co-conspirator counted money on a kitchen counter bearing
cocaine. In light of this evidence, we think it extremely
unlikely that the improperly admitted evidence swayed the jury.
See Mazza, 792 F.2d at 1221 (fair assurance standard satisfied if
it is highly probable that the challenged action did not affect
the judgment).
Because we find the admission of this evidence to be
harmless, we do not reach the question of whether the court
committed an abuse of discretion in admitting the evidence under
Rule 403. Karas, 950 F.2d at 38; United States v. Hernandez-
Bermudez, 857 F.2d 50, 54 (1st Cir. 1988). Nor is it necessary
to review the court's failure to issue a limiting instruction,
especially where trial counsel did not request one. See United
States v. De La Cruz, 902 F.2d 121, 124 (1st Cir. 1990) (stating
general rule that failure of trial court sua sponte to issue
limiting instruction is not reversible error).
Our finding of harmless error does not lessen our continuing
conviction that the government and the courts must exercise great
caution in handling evidence of other bad acts. Williams's
statement was unrelated to the offenses charged and was highly
inflammatory. To infect and jeopardize a prosecution with such
evidence is unwise and unjustifiable. It comes with ill grace to
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introduce marginally justifiable evidence and then to defend its
use by arguing that there was so much evidence of guilt that any
error would be harmless. Courts, in turn, should remain vigilant
to whether other-acts evidence serves a genuinely probative
purpose that substantially outweighs the risk of unfair
prejudice.6 Hernandez-Bermudez, 857 F.2d at 54. At a minimum,
courts routinely may wish to issue an instruction limiting the
use of Rule 404(b) evidence, Oppon, 863 F.2d at 147, or to
ascertain whether defense counsel desires one.
III.
Defendant also contends that the district court erred in
limiting his cross examination of Gray. Defendant sought to
inquire into Gray's knowledge regarding the preparation and use
of cocaine and her brother's alleged cocaine dealing to
demonstrate that she was induced to cooperate with the government
to protect herself or her brother.
The Sixth Amendment to the Constitution guarantees a
criminal defendant the right to confront the witnesses against
him. An essential component of this right is the defendant's
prerogative to establish the biases, prejudices, or ulterior
motives of these witnesses through cross examination. Davis v.
Alaska, 415 U.S. 308, 315-17 (1974); United States v. Kepreos,
6 We recognize, however, that express findings regarding
the challenged evidence are not necessary so long as the record
indicates that the district court did weigh the balance between
the probative value and the prejudicial effect. See United
States v. Santagata, 924 F.2d 391, 394 (1st Cir. 1991) (citing De
La Cruz, 902 F.2d at 123 n.1).
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759 F.2d 961, 965 (1st Cir. 1985). The trial court, therefore,
must permit sufficient cross examination to enable the jury "`to
make a discriminating appraisal of the possible biases and
motivations of the witness.'" Niziolek v. Ashe, 694 F.2d 282,
289 (1st Cir. 1982) (quoting United States v. Tracey, 675 F.2d
433, 437 (1st Cir. 1982)).
So long as it satisfies this standard, the district court
retains wide discretion to impose reasonable limits to avoid
prejudice, confusion of the issues, harassment, repetition, and
inquiry into marginally relevant issues. Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986); United States v. Twomey, 806
F.2d 1136, 1139 (1st Cir. 1986). "If the jury has sufficient
evidence before it bearing on the witness'[s] bias, the court
need not permit unending excursions into each and every matter
touching upon veracity." Kepreos, 759 F.2d at 965 (citation
omitted).
To establish that the district court has abused its
discretion, the defendant must show that the limitations imposed
were clearly prejudicial. Twomey, 806 F.2d at 1140. Williams
has not carried this burden. We, therefore, find that the
decision to exclude certain testimony fell within the court's
discretion.
The district court allowed all defense counsel, including
Williams's, ample opportunity to undermine Gray's credibility by
probing her bias and motive for testifying. See generally Tr.
Vol IV at 30-158. The court did not preclude any defendant from
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exploring Gray's involvement with the cocaine trade but barred
only a few questions of marginal relevance. Its decisions did
not harm defendant because the relevant information reached the
jury through the interrogation by his and the other defense
counsel.
The intensive cross examination thoroughly delved into
Gray's unsavory connection with narcotics. It exposed her
cocaine use, her sale of marijuana, her knowledge of cocaine
trafficking, and her involvement with and knowledge of her
brother's drug trafficking. Gray admitted that she had been
arrested in December 1987 at her mother's house for possession of
cocaine, that a search of the house uncovered cocaine, marijuana,
drug paraphernalia, and a gun, and that the charges resulting
from this arrest subsequently were dismissed. She also admitted
that she was testifying under immunity from the government.
Gray's cross examination thus provided an extensive "record
from which to argue why [she] might have been biased or otherwise
lacked that degree of impartiality expected of a witness at
trial." Davis, 415 U.S. at 318 (emphasis in original). From
this record, various defense counsel, including Williams's,
argued plausibly that Gray was implicated in a cocaine
trafficking ring and that her cooperation with the government
stemmed from her desire to protect herself from prosecution and
to divert police attention from that drug ring.
The jury had more than enough information to appraise Gray's
credibility. Accordingly, we find that the exclusion of certain
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questions about Gray's familiarity with cocaine and with her
brother's drug trade was not an abuse of the court's discretion.
Affirmed.
Concurrence follows.
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TORRUELLA, Circuit Judge (Concurring). I agree with the
analysis and result of this case. I write separately simply to
express my exasperation at the repeated abuse of Rule 404(b) by
government prosecutors.
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