United States v. Taylor

United States Court of Appeals
For the First Circuit

No. 01-1579

UNITED STATES OF AMERICA,

Appellee,

v.

ALBERT TAYLOR,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Boudin, Chief Judge,

Lynch, Circuit Judge,

and Gertner,* District Judge.

Darla J. Mondou, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with whom
Margaret E. Curran, United States Attorney, and Zechariah Chafee,
Assistant United States Attorney, were on brief for appellee.

*Of the District of Massachusetts, sitting by designation.
 March 25, 2002

GERTNER, District Judge. On January 9, 2001, defendant-

appellant Albert Taylor ("Taylor") and his co-defendant Thomas Isaac

Webb ("Webb") were found guilty of one count of conspiracy to

distribute crack cocaine and two counts of knowingly distributing crack

cocaine (in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1),

respectively). Taylor was sentenced to 97 months in prison and five

years of supervised release on each count, with the sentences to run

concurrently.1

Taylor challenges a number of evidentiary rulings of the

trial court, claiming that these rulings, individually and in

combination, warranted a mistrial or reversal of his conviction. We

conclude otherwise and affirm the district court's rulings.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

During a five day trial, the government sought to prove that

Taylor and Webb engaged in a conspiracy to distribute crack cocaine and

did so on two occasions, April 17, 1999, and April 22, 1999. The

Government called several witnesses, including William Cossia

("Cossia"), a cooperating witness and the putative purchaser of the

drugs. Cossia purchased crack cocaine from the defendants at the Blue

1This appeal was consolidated with the appeal of Taylor's
co-defendant, Webb, but Webb's appeal was subsequently dismissed
for want of prosecution.

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Star Motel in Westerly, Rhode Island, while the Federal Bureau of

Investigations ("FBI") recorded the transactions. The government

introduced the tapes of the recorded conversations as well as the crack

cocaine reportedly sold by Taylor and Webb during the two transactions.

A. Motion In Limine Hearing

Prior to trial, Taylor and Webb filed a motion in limine to

exclude evidence of a prior Cossia-Taylor drug transaction under Fed.

R. Evid. 403 ("Rule 403"). The motion sought to exclude "any evidence

or testimony that the informant, William Cossia, had prior drug dealing

activities with Albert Taylor." The motion noted that the challenged

testimony was "highly prejudicial, irrelevant and would mislead the

jury."2 Specifically, Taylor sought to prevent Cossia from testifying

about a November 1998 incident in North Stonington, Connecticut, six

months before the two charged transactions, during which Cossia and a

female friend met Taylor and Webb at a truck stop and purchased crack

cocaine from them.

2The defendant filed a memorandum of law consisting of the
following:

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.
Federal Rules of Evidence 403.

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 The government countered that the testimony was important

for several reasons: (a) to enable the jury to understand that Cossia

did not contact Taylor out of the blue to set up the charged

transactions; (b) to counteract the expected defense that Cossia

incorrectly identified Taylor and Webb on those occasions; and (c) to

establish a common scheme or plan under Fed. R. Evid. 404(b) ("Rule

404(b)").

Characterizing the motion as one raising "a difficult issue,"

the trial court concluded that because six months elapsed between the

alleged prior sale and the April 17, 1999, transaction, the connection

between the two incidents was too tenuous to show a "common scheme or

plan" under Rule 404(b). The court expressed concerns about avoiding

a mini-trial on the subject of the North Stonington incident, which

would open up a "Pandora's Box of other issues." The court also found

that the North Stonington evidence was not probative on the subject of

Cossia's identification of Taylor and Webb because Cossia claimed to be

able to identify the defendants on the basis of his face-to-face

dealings with them on the two charged occasions. The court did,

however, allow the government to establish that Cossia had met Taylor

and Webb before the April 17, 1999, transaction, so long as it

instructed Cossia not to explain the circumstances of their meeting.

The problem was that there were two sources of evidence

concerning the North Stonington transaction -- Cossia's testimony and

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a reference on the audiotape recordings (which the government was

seeking to introduce) of the April 17, 1999, meeting. While the tape

reference was mentioned during the motion in limine hearing, the focus

of the court's order was directed to the Cossia testimony.3 Neither the

government nor defense counsel ever sought clarification from the court

as to whether the court's order covered the audio taped reference to

North Stonington as well as Cossia's testimony. The defendant, in

particular, never objected to the North Stonington reference or sought

its redaction from the tape-recorded conversation at any time.4

B. Cossia's Trial Testimony

During the course of Cossia's testimony at trial, the

government did establish that Cossia had met Taylor and Webb prior to

the April 17, 1999, crack cocaine deal.5 Cossia, however, did not refer

to the North Stonington incident.

3The court, for example, directed the government to caution
Cossia prior to taking the stand not to refer to the prior
incident.
4Counsel's omission is especially telling since the tapes
were the subject of an independent motion in limine which was
argued during the same motion hearing. Defense counsel sought
to exclude the audiotapes due to the allegedly poor sound
quality of the recordings. The court denied the motion after
listening to the tapes.
5 The government asked, "You mentioned earlier seeing them
. . . do you recall how much earlier before April that occasion
was that you saw them with the gold Probe?" Taylor objected.
After the judge overruled the objection, Cossia responded,
"Several months."

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 Cossia testified that he phoned Taylor on April 17, 1999, and

placed an order for two "eight balls" (7 grams) of crack cocaine. A

meeting was arranged at the Blue Star Motel for that evening. When

Cossia arrived, he was wearing a tape recorder and wire transmitter.

The tape was played to the jury. In it, Cossia could be

heard posing as a retail drug dealer with wealthy clients who demanded

high quality crack cocaine. Cossia identified Taylor and Webb, who

were also posturing. They boasted about dealing large quantities of

drugs, larger than other dealers in the area. Taylor warned Cossia

that he (Taylor) controlled all future transactions. He remarked, "We

don't do what you say! You do what we say . . . ."

When Taylor expressed concern that Cossia might be working

for the police, Cossia, in the portion of the audiotape whose

introduction the defendant now challenges, sought to ease Taylor's

concerns by reminding Taylor that they had met in North Stonington six

months before. Although the reference was brief and the context not

entirely clear, the dialogue does suggest that the earlier transaction

involved a drug deal.6 Cossia told Taylor that if Cossia was working

6 On the audiotape, Cossia first states to Taylor, "You
dealt with me before . . . I can tell you all the spots you
dealt with me . . . . Did anything happen to you then?" And
later Cossia says, "Over by BROOKS. Right there . . . . We did
you again. We met you in North Stonington. Went down side road
and came up. Shined a flashlight in my face. Now you fellas
had to been together . . . now . . . if I'm the police why
aren't you jammed?" Cossia explained to the jury that the
definition of "spot" was a place where you can purchase cocaine

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for the police, then Taylor surely would have been arrested at the

time. Cossia added, "We met you over North Stonington . . . if I'm the

police why aren't you jammed?" Defense counsel did not object at any

time to the playing of this portion of the audiotape.

Taylor then went on to threaten Cossia: "[W]hen the shit go

wrong they'll know why it happened. They get shot." Cossia testified

at trial that shortly after making the threat, Taylor leaned back in

his chair and exposed the automatic handgun tucked in his waistband,

calling Cossia's attention to it by patting it. Taylor objected, but

his objection was overruled.7

Webb then placed two eight balls of crack cocaine on the

table. After a brief dispute over their texture, Cossia accepted the

drugs and handed Taylor $450 in cash that had been supplied to him by

the FBI. Meeting with the FBI as soon as he left the defendants,

or where individuals meet.
7 The trial court told the jury:

I'd just like to mention, ladies and
gentlemen, there's no -- the Defendants are
not charged with possessing a firearm or a
gun. The only bearing this would have on
anything at all is whether it helps you in
determining whether they're guilty with
which they have been charged, which is
conspiracy to deliver crack cocaine and
delivery of crack cocaine. Aside from that,
this has no significance.

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Cossia turned the drugs over to them. The weight of the drugs was

recorded at 6.44 grams of crack cocaine.

On April 22, 1999, Cossia phoned Taylor to set up a second

meeting to purchase three eight balls (l0.5 grams) of crack cocaine.

After setting the price at $750, the two agreed to meet again at the

Blue Star Motel. Cossia again wore a wire transmitter and recording

device. At the meeting, Taylor and Webb exchanged cash for cocaine

base, which Cossia turned over to the FBI. The weight was determined

subsequently to be 8.77 grams.

In addition to Cossia, law enforcement officers testified

that they monitored Cossia's transmissions. The government also

presented evidence which linked Taylor and Webb to a gold Ford Probe

that was parked outside the Blue Star Motel during the transactions.

During its closing argument, and specifically, in rebutting

defense counsel's argument, the government briefly referred to the

North Stonington incident mentioned in the audiotape of the April 17,

1999, transaction. Defense counsel did not object.

On appeal, Taylor challenges the admission of the North

Stonington reference on the April 17, 1999, tape and the fact that the

court permitted Cossia to testify that Taylor had a gun in his

waistband during the April 17, 1999, drug deal, to which he had

objected. In addition, Taylor challenges the prosecutor's reference to

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the North Stonington incident in his closing and the court's failure to

grant a mistrial sua sponte based on the collection of "errors."

II. LEGAL ANALYSIS

A. Cossia's Taped Statement Concerning the North
Stonington Incident

Taylor concedes that he did not object to the admission of

Cossia's taped statement concerning the North Stonington incident.

Absent an objection to the evidence at trial, our review under Fed. R.

Crim. P. 52(b) ("Rule 52(b)") is for plain error. United States v.

Meserve, 271 F.3d 314, 324 (1st Cir. 2001). Taylor must prove "(1)

that an error occurred (2) which was clear or obvious and which not

only (3) affected [his] substantial rights, but also (4) seriously

impaired the fairness, integrity, or public reputation of judicial

proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001). Taylor's challenge to the North Stonington reference on the

tape cannot meet this standard.

Taylor claims error of two sorts -- on the part of the

government and on the part of the court. First, he claims that there

was prosecutorial misconduct when the government sought to admit the

reference to the North Stonington meeting as part of the April 17,

1999, tape. And second, he claims that the trial court erred because

it did not sua sponte exclude or redact the portion of the tape

containing this reference.

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 The admission of the North Stonington reference on the

audiotape is neither prosecutor error nor court error, much less "plain

error" on the part of either within the meaning of Rule 52(b). First,

there is no basis to conclude that the government inappropriately tried

to "slip in" references to the incident. The government had shared the

tapes and the transcripts with the defense in advance of trial.

Indeed, at the motion in limine hearing before the trial, the court

listened to the audiotapes while reading the transcripts. The

government even referred to Cossia's taped remark during the argument.

Second, it is not at all clear that the North Stonington

references violated the court's in limine order. The scope of the

court's order was ambiguous. While the defendant's motion was directed

at "evidence or testimony," the court's oral remarks focused

exclusively on Cossia's testimony: Cossia was permitted to testify

generally about meeting the defendants on an earlier occasion, but not

about specific prior bad acts. In fact, rather than deflecting blame

on to the prosecutor or the court, responsibility for the admission of

the unredacted tape rests at the feet of the defense counsel, who made

no effort to clarify the scope of the court's order, flag the issue in

advance of the hearing, or object contemporaneously to the tape's

admission.

In any event, the admission of the unredacted tape is hardly

error. If it had been brought to the court's attention, it would have

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been within the court's discretion to exclude Cossia's direct testimony

about the earlier transaction, but, at the same time, to allow the

cursory reference to the transaction on the tape. The two positions

are not at all inconsistent with one another. Cossia's testimony

raised specific concerns about the admission of "prior bad act"

testimony under Rule 404(b).8 Rule 404(a) codifies the basic principle

that evidence of a person's character is not admissible for the purpose

of proving that such person acted in conformity with that character on

a particular occasion. Rule 404(b) represents an extension of the

principle to the admission of more specific -- and potentially more

prejudicial -- evidence, namely "other crimes, wrongs, or acts." Its

purpose is to prevent the jury from inferring that because a person

acted in a particular way on a specific occasion unconnected with the

facts in the case at bar, the person is likely to have acted the same

way with respect to the operative facts of the crime charged. But

evidence of "other crimes, wrongs, or acts" may be admissible where

8 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 . . . .

Fed. R. Evid. 404(b).

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offered to prove facts other than propensity, such as those listed in

Rule 404(b) (e.g., common plan or scheme, motive, or intent).

The court below found that Cossia's testimony about the

earlier incident was inappropriate propensity evidence because the

connection between the earlier incident and the charged incident was

tenuous. In addition, the Cossia testimony on this subject raised

issues about judicial economy -- the specter of a mini-trial about what

had occurred on that earlier date that was not in any way essential to

Cossia's account of what had occurred on April 17, 1999, and April 22,

1999. Accordingly, the trial court precluded Cossia from testifying

about the earlier incident.

The reference on the tape raised different issues and did not

carry with it the same dangers. The reference was cursory. While it

suggested a prior drug transaction, it did not go into details. It was

introduced not for the purpose of showing propensity to commit a crime,

but rather as part and parcel of an on-going conversation taking place

during the crime itself. See United States v. Kennedy, 32 F.3d 876,

885 (4th Cir. 1994) (holding that Rule 404(b) is not applicable to

evidence of crimes that are necessary to complete the story of the

charged crime). Cossia sought to reassure Taylor that he was not law

enforcement by referring to the prior encounter. Taylor, still

worried, threatened Cossia that he might be shot if events proved

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otherwise.9 The framework for analyzing this testimony was not Rule

404(b) but Rule 403, in which the court balances the probative value of

the evidence against its prejudice.10

Viewed through the prism of the plain error test, the

admission of the unredacted transcript is well within the court's

discretion. See United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996)

(Rule 404(b) did not apply and Rule 403 was not offended where "[t]he

statements regarding [a contract] murder were made during an exchange

of heroin for cash," making the remarks concerning the contract murder

"an intrinsic part of [the] drug deal and the witness' account of the

context and circumstances surrounding the deal."). See generally

United States v. Li, 206 F.3d 78, 84 (1st Cir.), cert. denied, 531 U.S.

9 The problem with not having flagged the issue in advance
is that once the tape was played, Taylor was on the horns of a
dilemma. He could have asked for a limiting instruction -- that
the jury should consider the taped remark only for the purpose
of evaluating the conversation and not for criminal propensity
-- but such an instruction would have also attracted the jury's
attention to the reference. It was a dilemma of counsel's
making.
10 Fed. R. Evid. 403 states:

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
delay, waste of time, or needless
presentation of cumulative evidence.

Fed. R. Evid. 403.

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956 (2000) ("[t]he district court is granted ‘especially wide latitude'

in Rule 403 balancing").

Finally, even if the admission of the unredacted tape

amounted to plain error, it neither affected Taylor's "substantial

rights" nor "seriously impaired the fairness" of the proceedings.

Duarte, 246 F.3d at 60. The reference was general and the context

ambiguous. The evidence of Taylor's guilt was overwhelming -- Cossia's

direct testimony of two hand-to-hand sales, tapes of the encounters,

testimony of surveilling officers who monitored Cossia's transmissions

and linked the defendants to a car parked outside of the hotel.11

B. The Prosecutor's Reference to the North Stonington
Incident in His Closing Argument

Taylor also argues that the government's reference to the

North Stonington incident in its closing compounded the earlier error

and also amounted to prosecutorial misconduct. Again, because Taylor

did not object at trial, our review is for plain error under Rule 52

(b). See United States v. Bey, 188 F.3d 1, 6 (1st Cir. 1999)

(allegedly improper comments made by prosecutor during closing argument

reviewed under plain error standard given defendant's failure to object

11
The government linked this vehicle to Taylor and Webb
through the testimony of one officer who identified the license
plate number of the vehicle driven by the persons who met Cossia
at the Blue Star Hotel on April 17, 1999, and another officer
who testified that he had responded to a motor vehicle accident
involving a car with the same plate number, which was registered
to and driven by Thomas Webb.

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to comments during trial); United States v. Rodriguez-Cardona, 924 F.2d

1148, 1153-54 (1st Cir. 1991), cert. denied, 502 U.S. 809 (1991)

(prosecutor's references in closing argument to evidence of other

crimes and wrongdoing as proof of defendant's character reviewed for

plain error because defense counsel failed to object).

Taylor argues that the prosecutor in his closing argument

referred to the excluded evidence for inappropriate purposes, namely to

suggest criminal propensity. In effect, defendant argues that even if

it were not error to admit the evidence for a limited purpose, it would

be error to argue improper propensity evidence based on it.

While the government's closing argument is less than clear,

it plainly does not rise to the level of plain error. First, the

government did not refer to evidence that had been excluded by the

court. The government simply repeated the words of the tape, again,

words to which Taylor had not objected. Second, the reference did not

encourage the jury to draw the prohibited inference between a prior bad

act and criminal propensity. The government made its closing remarks

on rebuttal, specifically directed to the arguments of defense counsel.

Defense counsel stressed certain inconsistencies between Cossia's

trial testimony and his grand jury testimony, which he had emphasized

in Cossia's cross examination. At trial, Cossia testified that when

the issue of whether he was working for the police came up at the April

17, 1999, meeting, he had vigorously disputed it. Before the grand

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jury, however, Cossia suggested that he had grabbed Taylor physically

and had thrown him against the wall.

The government argued in its rebuttal that what Cossia meant

to say before the grand jury was merely that he had responded

forcefully to Taylor's accusation, not that he had literally assaulted

him. It used Cossia's reference to the North Stonington incident

during the April 17, 1999, meeting with the defendants in order to

dramatize Cossia's very forceful rebuttal of the accusation that he was

a police officer. In the comments prefacing the North Stonington

reference, the prosecutor stated: "Now, there was some talk of, oh,

why did [Cossia] say he came back with them strong in the Grand Jury,

with some Grand Jury testimony . . . . Listen to what's on the tape."

The prosecutor then quoted the tape verbatim, ending with Cossia's

comment: "If I were the police you would have been arrested over in

North Stonington."12 Finally, making it clear that the reference was

12 During the closing, the prosecutor said:

They are asking, this is William Cossia.
"Right, at the truck stop, over down the
road by Brook's. Right there. We did you
again. We met you over in North Stonington.
Went down [a] side road and came up and
shined a flashlight in my face. Now, you
fellow had been jammed together [sic] now.
If I'm the police, why aren't you jammed?"
Meaning, I'm suggesting to you, if I'm the
police, how come you weren't jammed on this
previous occasion? Jammed, arrested. Over
in North Stonington. How come, you can
trust me. He comes right back at them.

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addressing the alleged inconsistencies in Cossia's trial and grand jury

testimony, the prosecutor noted: "And that's what he's [Cossia's]

talking about, when, I submit to you, when he was talking to the Grand

Jury. He says, talking about, I play fair too. He's assuring them, I

play fair."

If it was within the court's discretion to admit the North

Stonington reference in the tape to provide context to the April 17,

1999, conversation, and not for an impermissible purpose, then it

surely was not error for the prosecutor to refer to it for a similar

reason. And again, even if this was error, given the overwhelming

evidence of Taylor's guilt, this reference in closing argument did not

affect "substantial rights" or affect the fairness of the proceeding.

Duarte, 246 F.3d at 60.

C. Cossia's Testimony Concerning the Gun

Taylor made a timely objection to evidence that he had a gun

during the April 17, 1999, transaction. He claims that the court erred

in admitting the evidence under Rule 404(b) and Rule 403 and further

takes issue with the court's instructions following the testimony on

this issue. Since Taylor objected to the court's rulings, our review

They're telling him . . . we don't have any
police contact unless we want it. He comes
back. "Listen, if I were the police you
would have been arrested over in North
Stonington."

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of whether to admit the evidence pursuant to Rule 404(b) is for an

abuse of discretion. United States v. Houlse, 237 F.3d 71, 77-78 (1st

Cir. 2001), cert. denied, 532 U.S. 1074 (2001). United States v.

Manning, 79 F.3d 212, 217 (1st Cir. 1996), cert. denied, 519 U.S. 853

(1996). We find that there was no error here.

Cossia's testimony concerning the gun was not inadmissible

evidence of "other crimes, wrongs, or acts" under Rule 404(b). There

was nothing "other" about it. The testimony was part and parcel of the

charged transactions. The jury surely could have found that Taylor

carried the gun to protect the drugs he was selling and the cash he was

receiving. Moreover, given the timing of Taylor's gesture -- showing

the gun after discussing whether Cossia was working for law enforcement

-- his actions could be seen as reflecting his efforts to avoid police

detection and thus his consciousness of his own guilt. See, e.g.,

United States v. Shea, 159 F.3d 37, 39-40 (1st Cir. 1998), cert.

denied, 526 U.S. 1077 (1999) (handgun was relevant, intrinsic evidence

of crime and thus was "not Rule 404(b) evidence at all").

Nor was this evidence excludable under Rule 403. Rule 403

is directed to "unfair" prejudice to the defendant, the possibility

that the jury will draw inferences that were not warranted by the

evidence or permitted by the Rules. In any event, the court's

cautionary instructions were appropriate and addressed any such risk:

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 I'd just like to mention, ladies and gentlemen,
there's no -- the Defendants are not charged with
possessing a firearm or a gun. The only bearing
this would have on anything at all is whether it
helps you in determining . . . whether they're
guilty [of the crimes] with which they have been
charged, which is conspiracy to deliver crack
cocaine and delivery of crack cocaine. Aside
from that, this has no significance.

See, e.g., Shea, 159 F.3d at 40 (upholding admission of gun under Rule

403 based in part on cautionary instruction); United States v. Hahn, 17

F.3d 502, 509 (1st Cir. 1994) (same).

II. CONCLUSION

Accordingly, we find no error in the conduct of the trial

below and affirm the defendant's conviction.

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