United States Court of Appeals
For the First Circuit
No. 05-1299
UNITED STATES OF AMERICA,
Appellee,
v.
KELLNUM LANDRAU-LÓPEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Selya, Lynch, and Howard, Circuit Judges.
Mark L. Stevens, with whom Law Office of Mark Stevens was on
brief, for appellant.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
with whom H.S. Garcia, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Senior Appellate Attorney
in Charge, were on brief, for appellee.
April 6, 2006
HOWARD, Circuit Judge. In July 2003, Kellnum Landrau-
López was a new employee of Ponce Air Service (PAS), a ground
service provider at Luis Muñoz Marín International Airport (LMMIA)
in Puerto Rico. His duties included loading and unloading luggage
for commercial flights. Landrau obtained this job with the help of
his neighbor and long-time friend, Pedro Villegas-López, who worked
for PAS and who has admitted to smuggling drugs into the
continental United States through flights departing from LMMIA.
Following a seizure of drugs from a commercial flight
originating from LMMIA, the Drug Enforcement Administration (DEA)
commenced an investigation of the ramp and baggage handling
employees at the airport. In July 2003, a DEA confidential
informant infiltrated the smuggling ring. Posing as a cocaine
supplier, the informant brokered a deal with Melvin Poupart to
smuggle 30 kilograms of what was actually "sham" cocaine onto a
flight from LMMIA to Newark, New Jersey. After Poupart offered the
smuggling job to Landrau, Landrau informed Villegas about it.
Villegas initially declined to participate, but offered to enroll
the services of two other PAS employees who had previously helped
him with drug shipments, Saulo Hernández and José Ramírez-Báez.
In the early morning hours of July 23, 2003, with DEA
agents observing from a concealed location, Poupart and the
informant hand delivered two large duffel bags containing 30
kilograms of sham cocaine to Landrau at his house. Shortly
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thereafter, Hernández arrived. Landrau loaded the two duffel bags
into Hernández's car, and the two then proceeded to the airport.
At the airport, Ramírez protested that the duffel bags were ill-
suited for smuggling drugs because they would appear suspicious and
their contents would be easily detectable by feeling the outside of
the bags. Landrau, nevertheless, insisted that they continue as
planned. Ramírez and Landrau loaded the two bags onto a baggage
cart, placed some garbage and an empty suitcase on top, and then
drove the cart out to the make-up area for a Continental Airlines
flight to New Jersey. Ramírez removed the tags from two suitcases
that had been checked-in for the flight and attached them to the
duffel bags. After baggage handlers finished loading all the
legitimate luggage into the plane, Landrau drove the cart to the
plane and personally loaded the two duffel bags. The bags were
seized in New Jersey later that day.
A federal grand jury subsequently indicted Landrau and
four others, including Villegas and Hernández, for conspiracy to
possess with intent to distribute five or more kilograms of
cocaine. See 21 U.S.C. §§ 841(a), 846. Although Landrau's four
co-defendants pleaded guilty, Landrau elected to plead not guilty.
He contended at trial that he was unaware of the contents of the
duffel bags. Villegas, Ramírez and Hernández, however, testified
that Landrau was the primary person responsible for smuggling this
particular shipment. A jury returned a guilty verdict and the
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district court sentenced Landrau to 151 months in prison. Landrau
challenges the conviction on two grounds.
Landrau first argues that the district court delivered an
erroneous jury instruction that may have caused the jury
impermissibly to shift the burden of proof to him in violation of
his due process rights. The allegedly erroneous instruction was
delivered during jury selection. Addressing a panel of 38
potential jurors, the court explained the process of jury selection
and outlined the allegations contained in the indictment. The
court then stated as follows:
[In] this case, the defendant has plead [sic]
not guilty to the charges contained in the
indictment, and thereby has raised issues of
fact that need to be tried by a jury, and that
is why you are here this morning, we are going
to select the jury and proceed to try the
issues of fact in this case.
Landrau contends that this instruction, regarding the
effect of his not-guilty plea, diminished the presumption of his
innocence and impermissibly shifted or reduced the government's
burden of proof at trial. According to Landrau, because a
defendant is never required to "raise issues of fact," the court's
instruction may have confused the jury as to the proper standard of
proof required of the government. See Hill v. Maloney, 927 F.2d
646, 648 (1st Cir. 1990) (holding that the due process clause
"requires that the prosecution bear the burden of proving every
essential element of a crime beyond a reasonable doubt, and
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evidentiary presumptions in a jury charge that have the effect of
relieving the government of that burden are therefore
unconstitutional"). Because Landrau did not raise this issue
below, our review is for plain error. See United States v. Bailey,
405 F.3d 102, 110 (1st Cir. 2005) (citing United States v. Olano,
507 U.S. 725, 732-36 (1993)).
The district court's introductory statement to the
venire, while perhaps infelicitously phrased, was not erroneous.
On its face, the statement accurately explained why the jurors had
been assembled and did not suggest that Landrau bore the burden of
raising an issue of fact. It merely expressed a truism -- that, by
pleading not guilty, Landrau had put the facts alleged in the
indictment at issue, thus necessitating a jury trial to determine
those facts. See, e.g., United States v. Argentine, 814 F.2d 783,
788 (1st Cir. 1987) ("[T]he plea of not guilty places every issue
in doubt, and not even undisputed fact may be removed from the
jury's consideration, either by direction or by omission in the
charge.") (internal quotation marks omitted). Moreover, when read
in the context of the court's entire introductory remarks, it is
clear that the court did not suggest that Landrau bore any burden
in proving his innocence. At the outset of jury selection, the
court noted that the indictment constituted allegations, not proof,
and that at trial, "it is the government who has the burden of
proving the defendant guilty beyond a reasonable doubt." Finally,
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any initial confusion potentially caused by the court's
introductory remarks was undoubtedly cured by the court's
subsequent instructions to the selected and sworn jury. See United
States v. Nishnianidze, 342 F.3d 6, 16 (1st Cir. 2003) (no plain
error where the district court's misstatement at the start of an
instruction was clarified later in the instruction). Just before
the commencement of the trial, and again before submitting the case
to the jury for deliberation, the court properly instructed the
jurors on the government's burden and repeatedly emphasized that
Landrau was entitled to "rely entirely on the presumption of
innocence."1
Landrau's second argument is that the district court
abused its discretion by allowing testimony concerning certain
prior bad acts that he had allegedly committed. Landrau argues
that the government improperly presented this testimony to
illustrate his bad character and his propensity to commit crimes.
See Fed. R. Evid. 404(b) (barring the admission of evidence of
other crimes, wrongs or acts in order to illustrate a person's
character to suggest action in conformity therewith). The
1
A cautionary note is in order. Although a statement that the
assembled venire has been summoned to jury duty in part because of
the defendant's plea of not guilty may be historically accurate,
such a statement runs the risk of prejudicing reluctant jurors
against the defendant. On this record we have no reason to
believe, nor has Landrau argued, that such prejudice resulted, but
we urge district courts to avoid ascribing the jurors' presence in
court to the defendant's refusal to plead guilty.
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government counters that the evidence was presented to rebut
Landrau's defense -- that he did not know what was inside the
duffel bags. See id. (providing that evidence of other crimes,
wrongs or acts "may, however, be admissible for other purposes,
such as proof of . . . intent, . . . knowledge, . . . or absence of
mistake or accident"). We review the district court's admission of
other acts evidence under Rule 404(b) for an abuse of discretion.
See United States v. Williams, 985 F.2d 634, 637 (1st Cir. 1993).
Before trial, the government moved for leave to introduce
testimony concerning Landrau's prior drug smuggling activities.
Specifically, the government sought to elicit testimony from
Villegas that Landrau: (1) ran a heroin drug point out of a public
housing complex; (2) was involved in the sale and trafficking of
marijuana; (3) was arrested for possession of an illegal firearm;
(4) brought a suitcase full of cocaine on a flight from LMMIA to
the continental United States; and (5) stored a stockpile of
cocaine for Villegas. The district court barred testimony
concerning the first three incidents, but, over Landrau’s
objection, allowed testimony concerning the latter two. Villegas
subsequently testified that he had paid Landrau to bring a suitcase
containing 36 kilograms of cocaine on a commercial flight from
Puerto Rico to New York, and, on a separate occasion, had paid
Landrau to store 100 kilograms of cocaine pending its smuggling
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into the continental United States.2 Villegas additionally
testified that he and Landrau had been next-door neighbors and
friends for 15 years.
The admissibility of Rule 404(b) evidence is considered
in two steps: "first, a court must determine whether the evidence
in question has any special relevance exclusive of defendant's
character or propensity; and second, notwithstanding its special
relevance, whether the evidence meets the standard set forth in
Fed. R. Evid. 403." United States v. Decicco, 370 F.3d 206, 211
(1st Cir. 2004). In considering the "special relevance" of other
bad act evidence, we have typically focused on two factors: "the
remoteness in time of the other act and the degree of resemblance
to the crime charged." Id. at 212 (internal quotation omitted).
Landrau does not contend that the prior crimes were too remote in
time to have probative value, but instead focuses on the factual
dissimilarities between the prior acts and the crime charged.
Landrau contends that the crime charged concerns his efforts,
through the use of his employment and his position of trust at PAS,
to transport cocaine within the airport, whereas the prior acts
testimony merely alleges his one-time participation as a "mule" --
2
Villegas also testified to one occasion after July 23, 2003,
when Landrau helped move 10 kilograms of cocaine within LMMIA.
Landrau does not challenge the admission of that testimony, and,
even if he did, any such challenge would fail.
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accompanying a shipment of cocaine from LMMIA to New York -- and
that he once agreed to store some cocaine.
Because Landrau was charged with conspiracy to knowingly
possess cocaine with the intent to distribute it, and because he
defended by claiming ignorance of the cocaine, Landrau's reading of
the Rule 404(b) exceptions is too restrictive. See United States
v. Flores Perez, 849 F.2d 1, 4 (1st Cir. 1988) ("[W]here . . . the
other bad act evidence is introduced to show knowledge, motive, or
intent, the Rule 404(b) exceptions to the prohibition against
character evidence have been construed broadly."). The other bad
act need not be identical to the crime charged so long as it is
sufficiently similar to allow a juror to draw a reasonable
inference probative of knowledge or intent. See United States v.
Spinosa, 982 F.2d 620, 628 (1st Cir. 1992) (holding that evidence
of prior drug sales was "sufficiently similar to the crimes charged
. . . to be probative of the fact that [the defendant] was not
merely an innocent driver who was involved in the [drug]
transaction by accident"); United States v. Nickens, 955 F.2d 112,
124-25 (1st Cir. 1992) (upholding, in a drug importation case, the
district court's admission of a prior conviction for selling
cocaine because it "was relevant to both [the defendant's]
knowledge that there was cocaine in the suitcases and to his intent
to distribute it"). Here, both of the alleged prior acts related
to the smuggling of cocaine. In one instance, Villegas claimed to
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have hired Landrau to smuggle cocaine onto a flight out of LMMIA,
and in the other, Villegas claimed that Landrau stored a stockpile
of cocaine which Villegas intended to ship later out of LMMIA.
That testimony, especially when considered with Villegas's
testimony that he and Landrau had a longstanding personal
relationship, is probative of knowledge and intent, see United
States v. Garcia, 983 F.2d 1160, 1173 (1st Cir. 1993) (prior drug
crimes probative of knowledge and intent), and of the
conspiratorial relationship between Landrau and Villegas, see
United States v. Escobar-de Jesus, 187 F.3d 148, 169 (1st Cir.
1999) ("In a conspiracy case, evidence of other bad acts . . . can
be admitted to 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.") (citations omitted).
Landrau fares no better under Rule 403, which provides
that relevant evidence "may be excluded if its probative value is
substantially outweighed by," inter alia, "the danger of unfair
prejudice." Fed. R. Evid. 403. Although there is always some
danger that the jury will use other bad acts evidence to infer
criminal propensity, such evidence should be excluded under Rule
403 only when its probative value is substantially outweighed by
its potential unfairly to prejudice the defendant. See Decicco,
370 F.3d at 213. Here, where Landrau's knowledge of the contents
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of the duffel bags was the critical factual issue in dispute, the
testimony establishing his participation in prior drug smuggling
activities was highly probative. See Spinosa, 982 F.2d at 628
(upholding admission of prior bad act evidence because it "directly
contradicts [the defendant's] defense that he was involved only by
accident or mistake"). In sum, the district court did not abuse
its discretion in admitting Villegas's testimony concerning
Landrau's prior criminal behavior.
Affirmed.
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