United States v. Santana

United States Court of Appeals
For the First Circuit

No. 02-2697

UNITED STATES OF AMERICA,

Appellee,

v.

NELSON SANTANA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella, Circuit Judge,
and Baldock,* Senior Circuit Judge.

Bjorn Lange, Assistant Federal Public Defender, Federal
Defender Office, District of New Hampshire, for appellant.
Mark E. Howard, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, and Samantha M.
Jewett, Legal Intern, were on brief, for appellee.

September 3, 2003

*
Of the Tenth Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. Nelson Santana was convicted

of conspiracy to distribute and to possess with intent to

distribute between one-half and five kilograms of cocaine. After

considering Santana's challenges, which were ably briefed and well

argued, we affirm.

I. Background Facts

In 1998, local, state, and federal law enforcement

agencies began an investigation of suspected cocaine and marijuana

traffickers in southern New Hampshire. They debriefed informants,

used undercover agents to attempt to purchase drugs, conducted

physical surveillance, and reviewed telephone records. In

addition, beginning February 22, 2001, law enforcement agencies

conducted court authorized wire taps on four telephone numbers,

including a cellular telephone belonging to Alfred Nickerson.

Telephone calls between Nickerson and Santana were

recorded on May 7 and May 9, 2001. Based on those calls and other

information gathered during their investigation, law enforcement

agents believed Santana regularly supplied cocaine to Nickerson and

that a drug transfer was going to take place May 9.

At about 10:30 a.m. on May 9, an agent with the Drug

Enforcement Administration ("DEA") saw Santana enter the apartment

complex at 210 Brook Village Road in Nashua, New Hampshire, where

Santana's ex-wife lives. Santana left about 1:00 p.m., accompanied

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by an unidentified male. Santana spoke briefly and shook hands

with this man before driving away.

Also on May 9, investigators were watching Nickerson.

Leaving his home at about 9:05 a.m., he stopped at several Nashua

businesses including R.J. Motor Sports. This stop is significant

because agents watched Nickerson leave R.J. Motor Sports May 7 with

a package. At trial, the government alleged that Nickerson

obtained marijuana from Roger Paget, the owner of R.J. Motor

Sports. The defense argued at trial that Nickerson's cocaine also

came from Paget.

On May 9, Nickerson left R.J. Motor Sports empty-handed.

He then drove to the Brook Village Road apartment complex, arriving

at approximately 12:30 p.m. and leaving (alone) fifteen minutes

later. The surveilling officer saw him enter the complex, but

could not identify which apartment, if any, he entered.

Believing that Nickerson and Santana made a drug

transaction inside the Brook Village Road complex, investigators

ordered state troopers to stop Nickerson's car. Nickerson was

"clearly nervous"; the trooper ordered him out of the car to ensure

her safety. She then found what she believed to be marijuana in

Nickerson's car and arrested him. An inventory search of

Nickerson's car yielded approximately eight ounces of cocaine, four

ounces of marijuana, a digital scale, an address book, and more

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than one thousand dollars. After his arrest, Nickerson agreed to

become a government informant.

A grand jury indicted Santana on April 10, 2002, and he

was arrested on April 11, 2002 and charged with conspiracy to

distribute more than five kilograms of cocaine between 1997 and May

2001. At Santana's trial, Nickerson testified that Santana had

been his long-time supplier of cocaine and that he purchased

cocaine from Santana up to and including the day of Nickerson's

arrest -- May 9, 2001. Nickerson said that he and Santana had

little social interaction and mainly communicated about drugs.

Nickerson also testified that he used and sold marijuana, which he

obtained from Paget, the owner of R.J. Motor Sports.

On September 24, 2002, a jury found Santana guilty of

conspiring to possess and possessing with intent to distribute

between one-half and five kilograms of cocaine. He was sentenced

to 121 months imprisonment to be followed by four years of

supervised release and ordered to forfeit money, certain real

property and an automobile. This appeal followed.

II. Discussion

A. Motion to Suppress Wiretaps

An April 27, 2001, order permitting wiretapping of

Nickerson's telephone identified Santana as a potential

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interceptee.1 Conversations on that line between Santana and

Nickerson were recorded on May 7 and May 9, 2001. Santana appeals

the district court's denial of his motion to suppress the evidence

and his request for a hearing under Franks v. Delaware, 438 U.S.

154, 155 (1978). The government does not contend that Santana

lacks standing to seek suppression of the wiretap evidence.

Santana claims that the wiretap violated Title III of the

Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.

§§ 2510-2522 (2000) ("Title III") -- the federal statute governing

electronic surveillance -- because (1) probable cause did not exist

to support the wiretap and (2) there was no required showing of

necessity for the wiretap. He also asserts that a Franks hearing

was warranted because of material misrepresentations by the

affiant.

First, Santana asserts that while the government had

probable cause to suspect Nickerson was committing or would commit

a crime, it lacked probable cause to identify Santana as involved

in criminal activity and therefore had no right to identify Santana

as an interceptee. We review de novo the district court's

determination that the facts in the affidavit constituted probable

cause. United States v. Strother, 318 F.3d 64, 67 (1st Cir. 2003).

Any findings of fact are reviewed for clear error. Id. Our

1
The government may record conversations only between the target
telephone and identified interceptees.

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inquiry is whether the affidavit "provided a sufficient basis for

a finding of probable cause," United States v. Scibelli, 549 F.2d

222, 226 (1st Cir. 1977); that is, we must determine "if the facts

set forth in the application were minimally adequate to support the

determination that was made." United States v. Villarman-Oviedo,

325 F.3d 1, 9 (1st Cir. 2003). Probable cause exists when the

affidavit demonstrates in some trustworthy fashion the likelihood

that an offense has been or is being committed. United States v.

Vigeant, 176 F.3d 565, 569 (1st Cir. 1999).

The affidavit contains the following information about

Santana:2 that an informant knew Santana was Nickerson's cocaine

supplier for many years and as recently as two months before the

affidavit was made; that the informant (correctly) knew that

Santana had previously been arrested on drug charges and that

Santana's brother was in prison following a drug conviction; and

that several phone calls had been placed from Nickerson (the

primary target of the investigation and wiretap) to the cell phone

of Santana's girlfriend and to Santana's ex-wife, and that Santana

was thought to use each of those phones. We therefore find that

there was a sufficient basis for the issuing judge to determine

2
We note that the apartment number of Santana's ex-wife is
incorrect in several places in the affidavit. This error is not
material because even when it is excised from the affidavit, there
is probable cause. See United States v. Nelson-Rodríguez, 319 F.3d
12, 34 (1st Cir. 2003).

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that Santana was committing, had committed, or was about to commit

the listed drug-related crimes.

Second, Santana asserts that the government did not

demonstrate necessity for the wiretap. The necessity requirement

under Title III requires that the government's interception

application include "a full and complete statement as to whether or

not other investigative procedures have been tried and failed or

why they reasonably appear to be unlikely to succeed if tried or to

be too dangerous." 18 U.S.C. § 2518(1)(c). The application must

"demonstrate that the government has made a reasonable, good faith

effort to run the gamut of normal investigative procedures before

resorting to means so intrusive as electronic interception of

telephone calls." United States v. London, 66 F.3d 1227, 1237 (1st

Cir. 1995). However, the government need not demonstrate that it

exhausted all investigative procedures. United States v. López,

300 F.3d 46, 52 (1st Cir. 2002). When reviewing the government's

showing of necessity, our role "is not to make a de novo

determination of sufficiency as if [we] were [the issuing judge],

but to decide if the facts set forth in the application were

minimally adequate to support the determination that was made."

Id. at 53 (quotation omitted); see also United States v. Ashley,

876 F.2d 1069, 1073 (1st Cir. 1989) ("The government affidavit is

adequate if it satisfies the burden that it indicate a 'reasonable

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likelihood' that alternative techniques would fail to expose the

crime.").

We find that the government's application contained the

required details regarding its inability to pursue the criminal

activity through less intrusive means. The affidavit stated, among

other things, that physical surveillance and the use of pen

register information had been employed; that no confidential

informants were available to purchase drugs; that not enough

information was known to seek a search warrant; and that garbage

searches were not possible. The affiant therefore stated that a

wiretap was necessary to uncover the full scope of the conspiracy,

including conclusive proof of identity and information as to how

the drug sales were made. See Villarman-Oviedo, 325 F.3d at 9-10

(showing of necessity made under similar circumstanced). We find

that the affidavit does not fall below the standard of minimal

adequacy. See Nelson-Rodríguez, 319 F.3d at 33.

Finally, a Franks hearing is required "where the

defendant makes a substantial preliminary showing that a false

statement knowingly and intentionally, or with reckless disregard

for the truth, was included by the affiant in the warrant

affidavit, and if the allegedly false statement is necessary to the

finding of probable cause." Franks, 438 U.S. at 155. A district

court's determination that the requisite showing for a Franks

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hearing has not been made is overturned only if clearly erroneous.

United States v. Rivera-Rosario, 300 F.3d 1, 20 (1st Cir. 2002).

Here, there was no clear error in the district court's

denial of a Franks hearing. The only error identified by Santana

is a reference to the wrong apartment unit number. The government

submitted an affidavit that the error was, at most, negligent, and

Santana has no evidence to suggest that it was done knowingly or

intentionally. See United States v. Adams, 305 F.3d 30, 36 n.1

(1st Cir. 2002) (noting that "[m]ere inaccuracies, even negligent

ones, are not enough" to warrant a Franks hearing). Santana

asserts that the apartment listing was done with reckless disregard

for the truth because the surveilling officer was not the affiant,

and the affiant did not verify the apartment number. Failure to

investigate, however, does not evidence a reckless disregard for

the truth. United States v. Ranney, 298 F.3d 74, 78 (1st Cir.

2002).

Moreover, even if Santana were able to meet the

preliminary hurdle in seeking a Franks hearing, he has not shown

that absent the false information the affidavit contained

insufficient evidence to support a finding of probable cause. As

we explained above, the exact apartment unit number of Santana's

ex-wife was not necessary to demonstrate probable cause.

We hold that the affidavit supporting the application to

intercept calls from Nickerson's cellular phone to Santana showed

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probable cause, made the required demonstration of necessity, and

did not contain egregious misrepresentations necessitating a Franks

hearing. The district court properly admitted evidence of the

telephone calls between Santana and Nickerson.

B. Evidence of Prior Criminal Acts

Santana also challenges the district court's decision to

allow introduction of a prior drug conspiracy between him and

Nickerson. We review the admission of prior bad act evidence for

abuse of discretion. United States v. Varoudakis, 233 F.3d 113,

118 (1st Cir. 2000).

Santana was charged with participating in a conspiracy to

distribute and to possess with intent to distribute cocaine from

sometime "in or about 1997" until May 2001. At trial, however,

Nickerson testified that his former drug supplier introduced him to

Santana around 1992, and he bought one-half to one ounce of cocaine

from Santana every week or two until some point in 1996. Nickerson

stated that Santana usually "fronted" him the cocaine. Nickerson

said that he stopped buying cocaine in 1996 and Santana told him to

contact him in the future if he wanted to buy drugs again.

Nickerson further testified that he approached Santana in 1997 and

resumed purchasing cocaine from Santana. Santana was charged and

convicted for this second relationship.

Santana objected to Nickerson's testimony about their

first drug conspiracy. The district court gave a limiting

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instruction, informing the jury that it could only consider

Nickerson's testimony in deciding how the charged conspiracy or a

trust relationship was formed, how the conspiracy operated, the

identity of Santana, and Nickerson's credibility. Santana argues

that any probative value of the testimony was substantially

outweighed by its prejudice and should not have been admitted.

Evidence of prior bad acts is inadmissible to show bad

character and consequent propensity to commit crimes, but may be

admitted if it satisfies a two-part analysis: "First, the past

incident must have some relevance other than to show the

defendant's propensity to commit the crime. Second, even if

specially relevant, the danger of prejudice cannot substantially

outweigh the probative value of the evidence." United States v.

Agudelo, 988 F.2d 285, 287 (1st Cir. 1993) (citations omitted); see

also Fed. R. Evid. 403, 404(b).

Reviewing the evidence here and the limiting instruction

given by the trial judge, we find no abuse of discretion. It is

proper to include evidence of prior bad acts in conspiracy cases if

they "explain the background, formation, and development of the

illegal relationship and, more specifically, to help the jury

understand the basis for the co-conspirators' relationship of

mutual trust." United States v. Escobar-de Jesús, 187 F.3d 148,

169 (1st Cir. 1999) (internal citations omitted). Santana's

counsel conceded at oral argument that the evidence had "special"

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probative value. The question is whether its probative value was

substantially outweighed by the danger of unfair prejudice.

All of Nickerson's testimony, including the details of

their drug dealings in the early 1990's, was prejudicial to

Santana; it was not an abuse of discretion, though, to find that

the prejudice did not substantially outweigh the testimony's

probative value. First, the trial court gave a limiting

instruction. See United States v. Vest, 842 F.2d 1319, 1327 (1st

Cir. 1988) (finding that prejudicial effect can be reduced by

issuing an appropriate limiting instruction). Second, although we

are concerned about the length of time between Santana and

Nickerson's first meeting and Santana's arrest, their early

relationship was similar to the charged conspiracy and explained

how the later drug conspiracy was formed. See United States v.

Frankhauser, 80 F.3d 641, 648 (1st Cir. 1996) ("Probative value

must be considered in light of the remoteness in time of the other

act and the degree of resemblance to the crime charged.").

Finally, there was other evidence regarding Santana's involvement

in the drug conspiracy, including surveillance evidence, recorded

phone calls, and Nickerson's testimony that he purchased cocaine

from Santana up to and including May 9, 2001. Cf. United States v.

Aguilar-Aranceta, 58 F.3d 796, 801 (1st Cir. 1995) (holding

district court abused its discretion in admitting testimony where

the prior conviction was the only evidence of knowing possession).

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 We have noted the difficulty of balancing probative value

and prejudice in this situation:

The more similar the prior bad act evidence is
to the charged crime, the more likely it is to
be deemed relevant under 404(b). Yet the more
the prior bad act resembles the crime, the
more likely it is that the jury will infer
that a defendant who committed the prior bad
act would be likely to commit the crime
charged.

Varoudakis, 233 F.3d at 123. While we might have weighed the

prejudicial effect and probative value differently, the district

court did not abuse its discretion in admitting Nickerson's

testimony. See id. at 122 ("The district court's determination on

this issue merits great deference on appeal.").

C. Agent's Testimony

Finally, Santana contends that the district court erred

in allowing certain expert testimony from DEA Agent Jean Drouin.

We review that evidentiary decision for an abuse of discretion.

United States v. López-López, 282 F.3d 1, 14 (1st Cir. 2002). The

hallmark of abuse of discretion review is deference. See Gen.

Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997).

Santana also appeals the district court's denial of his

motion for a mistrial as a result of Drouin's testimony. We review

that decision only for a manifest abuse of discretion, and "we will

uphold the court's ruling unless the movant demonstrates a clear

showing of prejudice." Villarman-Oviedo, 325 F.3d at 14.

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 Agent Drouin was surveilling Nickerson on May 7, 2001,

when Nickerson entered R.J. Motor Sports and emerged carrying a bag

containing a box-like object with rounded corners. Shortly after

being seen carrying the suspicious bag, Nickerson placed a phone

call to Ricky Rano, one of his customers, stating, "Thank you in

hand!" -- a call which investigators understood to inform the

customer that drugs were available. Investigators had information

that Paget (the owner of R.J. Motor Sports) supplied Nickerson with

marijuana, which he then sold to Rano. Drouin did not arrest

Nickerson that day.

Nickerson was not arrested until May 9, 2001 -- the day

he made a phone call to Santana and allegedly met with Santana

inside the Brook Village Road apartment complex. When Nickerson

was arrested, he had eight ounces of cocaine in his car. The

prosecution alleged that he received the cocaine from Santana the

day of his arrest. The defense, however, argued that the cocaine

could have come from Paget on May 7, when Nickerson carried a bag

out of R.J. Motor Sports.

Agent Drouin testified for the prosecution. When asked

why he did not arrest Nickerson on May 7, he responded that he

"knew it was marijuana." Asked the basis for his knowledge, Drouin

answered that it was based on the characteristics of the package,

intercepted telephone calls, and controlled buys from Rano, and

added "we knew Alfred Nickerson was picking up what Ricky Rano

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wanted, which was marijuana." Drouin also testified that when he

searched Nickerson's home on May 9, he smelled marijuana; he then

discovered a wrapping containing marijuana residue that was similar

to the wrapping on the package Nickerson carried on May 7.

Santana raises two distinct evidentiary appeals. First,

he alleges that it was error to allow testimony that Drouin could

smell marijuana during the search of Nickerson's home, stating

"[i]t should have been excluded under Rule 701 of the Rules of

Evidence because it was not 'rationally based on the perception of

the witness,' and because it was not helpful to the determination

of a fact in issue, as well as because it did not meet the criteria

in Rule 702 and case law."

We find Santana's first evidentiary challenge meritless.

It is axiomatic that a witness may testify as to his personal

knowledge -- here, what he smelled. Fed. R. Evid. 602; see also

Sheek v. Asia Badger, Inc., 235 F.3d 687, 695 (1st Cir. 2000).

There was a sufficient foundation for this testimony because Drouin

testified that his job exposed him to marijuana, and another

witness testified that marijuana residue was found on the wrapper.

See United States v. Paiva, 892 F.2d 148, 157 (1st Cir. 1989)

(holding that past experience and personal knowledge and

observation may qualify a lay witness to identify drugs). The

content of the wrapper was in issue because the defense wanted the

jury to infer that it could be cocaine, while the government

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alleged that it was marijuana. Santana suggests for the first time

on appeal that the testimony should have been excluded under Rule

702. However, Drouin's testimony as to what he smelled was based

on his perception and therefore he was not required to qualify as

an expert under Rule 702. It was not an abuse of discretion to

admit Drouin's lay opinion testimony that he smelled marijuana

during a search of Nickerson's home. See id.

Next, Santana asserts that Drouin was not qualified to

give either a lay or expert opinion that he "knew" what was in the

package Nickerson was carrying. The defense objected and also

moved for a mistrial, arguing that the evidence irreparably

prejudiced Santana's right to a fair trial because the theory of

the defense was that the package contained the cocaine that was

later discovered in Nickerson's car.

We find that any error in permitting Drouin to testify

that he knew Nickerson carried marijuana, and not cocaine, on

May 7, was harmless. See United States v. Scott, 270 F.3d 30, 46

(1st Cir. 2001) (noting that harmless error applies to evidentiary

rulings). The defense was able to cross-examine Drouin to expose

perception difficulties including the fact that Drouin watched

Nickerson from across a busy street. Drouin also stated on cross-

examination that he only "knew" what was in the bag because of the

ongoing investigation. Moreover, Nickerson himself testified that

he was carrying marijuana in the bag Drouin saw him carrying out of

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R.J. Motor Sports that day. Any error in allowing Drouin to

testify that Nickerson had marijuana did not likely affect the

outcome and was therefore harmless. See United States v. Brown,

938 F.2d 1482, 1488 (1st Cir. 1988) (finding erroneous admission of

evidence harmless because it was not crucial to the conviction).

Finally, because Santana has not demonstrated clear prejudice, we

uphold the district court's denial of his motion for a mistrial.

See Villarman-Oviedo, 325 F.3d at 14.

III. Conclusion

Santana's conviction is affirmed.

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