United States Court of Appeals
For the First Circuit
No. 05-1567
UNITED STATES OF AMERICA,
Appellee,
v.
JAVIER RIVERA-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. Garcia-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Michael R. Hasse for appellant.
Juan E. Milanés, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-
Sosa, Assistant United States Attorney, and Germán A. Rieckehoff,
Assistant United States Attorney, were on brief for appellee.
February 16, 2007
CYR, Senior Circuit Judge. Javier Rivera-Rivera (Rivera)
appeals from a judgment of conviction for conspiracy to distribute
drugs, 21 U.S.C. § 846, and possession or use of a firearm in
furtherance of a drug conspiracy, 18 U.S.C. § 924(c). We affirm.
I
BACKGROUND
In 2003, the Police of Puerto Rico (POPR) and the Federal
Bureau of Investigation (FBI) jointly conducted an investigation of
POPR police corruption, code-named “Dark Justice.” A POPR
investigator, Officer Carlos Nazario Lebron (Nazario), enlisted
Daniel Perez (Perez), a corrupt POPR officer, as a cooperating
witness. Officer Nazario asked Perez to approach two POPR officers
suspected of corruption – Felipe Brito Ramos (Brito) and appellant
Rivera – and propose that they join him in a drug and money ripoff
scheme. On April 23 and 28, 2003, in two conversations which were
secretly video- and audio-taped, Perez explained to Brito and
Rivera that he had been suspended from the POPR for corruption,
that he planned to steal cash and a kilo of heroin – which only
Perez knew to be fake – from a drug dealer’s parked car, that he
wanted Brito and appellant to participate in the theft so that any
passersby would think it was an official police search of the
automobile, and that Perez’s brother would sell the heroin for them
after the theft. Brito and Rivera agreed to the scheme, and on May
9, 2003, Perez, Brito and Rivera executed the theft of the heroin
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and money as planned. The theft was surreptitiously video- and
audio-taped.
In due course, Rivera was indicted for conspiring to
distribute drugs, 21 U.S.C. § 846, and possessing or using a
firearm in furtherance of the drug conspiracy, 18 U.S.C. § 924(c).
After a jury convicted Rivera on each count, he was sentenced to
151 months’ imprisonment. Rivera now appeals from the judgment of
conviction.
II
DISCUSSION
The primary defense theory presented at trial was that
Rivera had believed that the trio would steal only money from the
drug dealer’s vehicle, and that Rivera was unaware that Perez
intended to steal drugs as well. On appeal, Rivera argues that the
district court erred in admitting evidence of his drug-related
activities prior to and following May 9, which undermined his
defense theory. He contends that this “bad acts” evidence was
inadmissible under Federal Rule of Evidence 404(b),1 that its
1
Rule 404(b) provides:
Other Crimes, Wrongs, or Acts – 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, provided that upon
request by the accused, the prosecution in a criminal
case shall provide reasonable notice in advance of trial,
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unfairly prejudicial effect substantially outweighed its probative
value, see Fed. R. Evid. 403, and that the district court failed to
instruct the jury regarding limitations on their use of Rule 404(b)
evidence (viz., not to prove his bad character or propensity to
commit the charged offenses).
A. The Prior Marijuana Theft
Rivera first challenges the admission in evidence of the
trial testimony that Perez heard that Rivera had once stolen
marijuana Rivera had seized during a police operation at a housing
project. Rivera relies on the fact that his alleged marijuana
theft had no demonstrated relationship (e.g., common coconspirators
or temporal proximity) to the conspiracy to commit the May 9, 2003,
heroin theft. See United States v. Varoudakis, 233 F.3d 113, 119-
20 (1st Cir. 2000).
Normally, we review the admission of Rule 404(b) evidence
only for an abuse of discretion. See United States v. Landrau-
Lopez, 444 F.3d 19, 23 (1st Cir.), cert. denied, 127 S. Ct. 181
(2006). As Rivera did not object to the admission of this evidence
below, however, our review is for plain error only, see United
States v. Washington, 434 F.3d 7, 12 (1st Cir. 2006), which
requires that defendant demonstrate that an obvious error occurred,
or during trial if the court excuses pretrial notice on
good cause shown, of the general nature of any such
evidence it intends to introduce at trial.
Fed. R. Evid. 404(b).
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which affected his substantial rights, and seriously impaired the
fairness, integrity, or public reputation of the judicial
proceedings, see id. at 11. We discern no plain error.
First, Rivera cannot persuasively complain about the
admission of this evidence, given that it was the defense – not the
government – which elicited it in the course of its cross-
examination of Perez, in a botched attempt to establish that Rivera
had never been involved in any prior drug theft while serving on
the police force. See United States v. Lizardo, 445 F.3d 73, 84
(1st Cir.), cert. denied, 127 S. Ct. 524 (2006).2
In any event, the record clearly discloses that the
admission of the Perez testimony under Rule 404(b), even if it were
erroneous, ultimately did not affect Rivera’s substantial rights.
See Washington, 434 F.3d at 11. The government adduced
overwhelming admissible evidence to refute the defense theory that
Rivera had not realized that Perez planned to steal heroin from the
drug dealer’s vehicle on May 9, 2003. The evidence included: (i)
video- and audio-recorded conversations of the coconspirators’
meetings on April 23 and 28, 2003, wherein Perez made clear to
2
Defense counsel first asked Perez whether he had informed the
FBI during debriefings that the only crime that Rivera previously
had committed was a car burning. Perez stated that he also had
heard that Rivera and Brito had stolen the 1.5 pounds of marijuana
which they had seized at a housing project. Apparently taken by
surprise, defense counsel persisted, in a vain and ultimately
unsuccessful attempt to show that Perez had not told the FBI about
Rivera’s rumored marijuana theft.
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Rivera and Brito that they would steal drugs from the drug dealer’s
vehicle; (ii) video- and audio recordings of the actual theft on
May 9 in which Rivera witnessed Perez removing the heroin from the
vehicle; and (iii) recordings of a meeting between Perez and Rivera
on July 7, 2003, in which Rivera approached Perez to ask him if he
wanted to join a similar drug theft. The Perez trial testimony
corroborated the substance of all these inculpatory recordings.
Given the pellucid trial record, it is inconceivable that, were it
not for the admission of the Perez testimony regarding Rivera’s
prior marijuana theft, the jury would have concluded that Rivera
was unaware that the conspiracy encompassed the theft of heroin.
B. The July 7 Meeting
Rivera next challenges the Perez testimony that, two
months after the May 9 theft, Rivera approached Perez with an offer
to participate in a similar drug theft. The district court
admitted this evidence on the twin grounds that the Rivera offer
was part and parcel of the ongoing drug conspiracy charged in the
indictment, and/or that the evidence was admissible under Rule
404(b) because it tended to rebut the defense theory that Rivera
had not known that the May 9 theft would involve drugs.
On appeal, Rivera challenges only the former ground. We
need not reach that argument, however,3 inasmuch as Rivera’s July
3
We note, nonetheless, that the district court’s finding of a
single conspiracy is supported by the close temporal proximity of
the July 7 meeting to the May 9 theft, and the fact that the Rivera
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7 offer was admitted in evidence neither to demonstrate bad
character nor propensity to commit crimes, but instead was plainly
admissible under Rule 404(b) as a “bad act” tending to rebut the
defense theory that Rivera lacked the requisite knowledge that the
conspiracy – and his May 9 actions in furtherance of that
conspiracy – involved the planned theft of not only cash, but drugs
as well. See, e.g., Landrau-Lopez, 444 F.3d at 24 (upholding
admission of evidence to refute defendant’s claimed ignorance of
cocaine); supra note 1. Thus, the Rule 404(b) evidentiary ruling
did not remotely constitute an abuse of discretion. See id. at 23.
Although Rivera contends that the district court should
have instructed the jury not to use the evidence to prove bad
character or propensity, Rivera waived his entitlement by failing
to request such an instruction. See United States v. Walter, 434
F.3d 30, 35 (1st Cir.), cert. denied, 126 S. Ct. 2879 (2006).
Finally, even if the admission in evidence of Rivera's
July 7 offer constituted error under Rule 404(b), it was obviously
harmless. See United States v. Roberson, 459 F.3d 39, 49 (1st Cir.
2006) (noting that an erroneous admission of evidence does not
warrant reversal if it is “highly probable that the error did not
influence the verdict” (citation omitted)). As previously stated,
see supra Section II.A., the government adduced video and audio
offer involved the same conspirators and the same modus operandi.
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recordings of meetings among the coconspirators, in the course of
which Perez explicitly described the plan to steal heroin from the
drug dealer’s vehicle. Thus, these “red-handed” recordings
inescapably inculpated Rivera.
Affirmed.
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