April 21, 1994 [NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
No. 93-1780
UNITED STATES,
Plaintiff, Appellee,
v.
MAURICIO CARRERA NOVOA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
George Garfinkle with whom Richard N. Ivker was on brief for
appellant.
William F. Sinnott, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for appellee.
Per Curiam. In this appeal, defendant-appellant
Per Curiam.
Mauricio Carrera Novoa, a/k/a John Pimental and Jose
Pimental, challenges his conviction for one count of
possession of cocaine with intent to distribute, see 21
U.S.C. 841(a)(1), and the sentence of incarceration imposed
therefor. After carefully considering defendant's arguments,
we affirm.
In asserting that his conviction should be reversed
or, in the alternative, that he should be resentenced,
defendant makes five arguments. None requires extensive
discussion.
1. Defendant first contends that the district
court erred in finding that the arresting agents had probable
cause to search the gym bag from which the cocaine was
seized. We do not agree with this contention.
The court supportably found that the arresting
agents, in conducting their initial surveillance, were
relying upon trustworthy information from three confidential
informants indicating, inter alia, that (i) an individual,
one of whose aliases was Jose Louis Pimental, ran a large-
scale cocaine ring from an apartment at 131 Coolidge Avenue
in Watertown, Massachusetts; (ii) Pimental's brother, the
defendant here, typically removed the drugs from this
apartment for transportation elsewhere; (iii) that defendant
John/Jose was known to operate a gray Mitsubishi; and (iv)
that a multi-kilogram shipment of cocaine was expected to
arrive at this apartment prior to March 25, 1992.
The court also supportably found that, on the
morning of March 25, 1992, one or more of the surveilling
agents observed, inter alia, (a) a gray Mitsubishi, which was
registered to a Jose Pimental, drive into the garage at 131
Coolidge Avenue; (b) defendant exit the car and walk toward
the building's elevators; and (c) defendant return a short
time later carrying a bag which appeared to be quite heavy
and bulky (and which, in the estimation of the experienced
arresting agents, had an appearance consistent with a method
of transporting large quantities of drugs). In our view,
these findings are more than sufficient to sustain the
district court's determinations, in light of the totality-of-
the-circumstances, see United States v. Torres-Maldonado, 14
F.3d 95, 105 (1st Cir. 1994), that probable cause existed
both to arrest defendant for possession of contraband, see
United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.
1987) (probable cause to arrest attaches when the facts and
circumstances within the knowledge of police officers and of
which they have trustworthy information are "`sufficient to
warrant a prudent person in believing that the defendant had
committed or was committing an offense'") (quoting Beck v.
Ohio, 379 U.S. 89, 91 (1964)), and to remove the bag from the
Mitsubishi's trunk and search it, see Illinois v. Gates, 462
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U.S. 213, 238 (1983) (probable cause to search attaches when
there is "a fair probability that contraband or evidence of a
crime will be found in a particular place"); see also
California v. Acevedo, 111 S. Ct. 1982, 1991 (1991) (police
officers may search any container within an automobile
without a warrant so long as they have probable cause to
believe the container contains contraband).
Accordingly, the court did not err in denying
defendant's motion to suppress.1
2. Defendant next argues that the district court
abused its discretion in allowing the government to introduce
evidence against him relating to the warrant-authorized
search of Apartment #624 at 131 Coolidge Avenue on the same
day of his arrest. In so doing, he contends (1) that the
evidence was not relevant; and (2) in the alternative, that
its probative value was substantially outweighed by its
prejudicial effect upon the jury. We reject these claims as
well.
The district court determined that the contested
evidence -- the fact that defendant possessed a key to
Apartment #624 at the time of his arrest; the fact that eight
kilograms of cocaine seized from the apartment were packaged
1. In so ruling, we obviously reject defendant's contention
that the arresting agents' relative lack of knowledge
regarding (1) defendant's physical description, and (2) the
exact time the narcotics would be taken from the apartment,
deprived them of probable cause to arrest and search.
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in the same distinctive manner as the twelve kilograms seized
from defendant's bag; and the fact that defendant's brother's
bank statement, a ledger, and approximately $18,600 were
found in the apartment -- was evidence of a drug trafficking
operation of which the cocaine seized from defendant's bag
was a part. The court further determined that this evidence
was relevant to, inter alia, the contested issue of
defendant's intent in possessing the cocaine. These
determinations were well within the court's discretion. See
United States v. Sepulveda, 15 F.3d 1161, 1193 (1st Cir.
1993).2
The district court, after engaging in the proper
balancing process, also concluded that the probative value of
this evidence was not substantially outweighed by a danger
that it might cause unfair prejudice. See Fed. R. Evid. 403.
Defendant provides no specific argument (other than his
general complaint that the court erred in so concluding) that
this conclusion was erroneous. Nor does our review of the
record reveal a legitimate basis for any such argument.
Thus, the court's ruling in this regard must be affirmed.
2. Defendant also argues that because he lacked standing to
contest the search of the apartment on Fourth Amendment
grounds, the government should be required "to meet an
extraordinary burden in its showing of relevance." Without
in any way endorsing defendant's dubious proposition, we note
that, in our view, the contested evidence was extremely
relevant and was therefore, under any putative relevance
standard, properly admitted.
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See Pinkham v. Burgess, 933 F.2d 1066, 1071 (1st Cir. 1991)
(noting the extraordinarily broad discretion we afford a
trial court's on-the-spot judgment as to whether the
probative value of certain relevant evidence is substantially
outweighed by the danger of unfair prejudice).
Accordingly, the court did not err in admitting the
aforementioned evidence against defendant.
3. Defendant's third argument -- similar to his
second -- is that the district court abused its discretion in
allowing the government to introduce evidence concerning
defendant's prior drug-related arrest and conviction.
Defendant contends that this evidence only was introduced to
show his propensity to commit a crime, in violation of Fed.
R. Evid. 404(b). Once more, we are not persuaded.
As we have said, intent was a contested issue in
this case. Indeed, it appears that challenging the
government to prove intent beyond a reasonable doubt was one
of the primary trial strategies engaged in by defendant. In
light of this fact, there is no basis for us to disturb the
court's finding that the evidence of the conviction was
admissible to prove intent under Rule 404(b). See United
States v. Rivera-Sola, 713 F.2d 866, 871 (1st Cir. 1983)
(defendant's attorney's statements and cross-examination,
designed to contest the issue of intent, provided proper
basis for the introduction of Rule 404(b) evidence to prove
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intent); cf. United States v. Karas, 950 F.2d 31, 37 (1st
Cir. 1991) (defendant's attorney's opening statement alone is
insufficient basis for admitting Rule 404(b) evidence).
After conducting the balancing analysis prescribed
by Rule 403, the district court also concluded that the
probative value of this evidence was not substantially
outweighed by its potential for unfair prejudice. Once
again, defendant has not presented us with any specific
argument that the court erred in so concluding. And once
again, our review reveals no legitimate basis for such an
argument. See Pinkham, 933 F.2d at 1071.
Accordingly, it was not error to admit the
aforementioned evidence against defendant.
4. Defendant next argues that the court committed
clear error, see United States v. Bradley, 917 F.2d 601, 605
(1st Cir. 1990), in determining, by a preponderance of the
evidence, see United States v. Valencia-Lucena, 988 F.2d 228,
232 (1st Cir. 1993), that the eight kilograms of cocaine
seized from Apartment #624 were, for sentencing purposes,
part of the same scheme or plan as the twelve kilograms
seized from defendant's bag. Our review of the record,
however, reveals no error in this determination. The same
evidence which linked defendant to the apartment and which
made these eight kilograms of cocaine admissible against him
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at trial provides a more than sufficient basis to support the
challenged sentencing finding.
Accordingly, the court did not err in taking this
evidence into account at sentencing.
5. Finally, defendant asserts that the court erred
in allowing his prior drug-related conviction to be used to
enhance his sentence. His argument is two-fold: (1) that
his conviction was not "final" for purposes of 21 U.S.C.
841(b)(1)(A)3 because, although he pleaded guilty to the
offense, he failed to appear at sentencing for that offense;
and (2) that his conviction was constitutionally defective.
The problem with this argument is that the district court did
not use the prior conviction to enhance defendant's sentence;
instead, the sentencing transcript reveals beyond question
that the district court sentenced defendant to 246 months
under the 210-262 month range made applicable by the United
States Sentencing Guidelines. The district court's
subsequent finding that defendant's conviction was final for
purposes of 841(b)(1)(A) was patently superfluous, did not
influence the sentence, and was made solely to protect the
3. In pertinent part, 841(b)(1)(A) states:
If any person commits such a violation
after a prior conviction for a felony
drug offense has become final, such
person shall be sentenced to a term of
imprisonment which may not be less than
20 years and not more than life
imprisonment . . . .
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interests of the United States in the event the sentence
imposed somehow was otherwise unlawful (which it is not).
Accordingly, all questions regarding the finality and
constitutionality of defendant's prior conviction are
immaterial to this appeal.
Affirmed.
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