United States v. Carrera Navoa

USCA1 Opinion









April 21, 1994 [NOT FOR PUBLICATION]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-1780

UNITED STATES,

Plaintiff, Appellee,

v.

MAURICIO CARRERA NOVOA,

Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]
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Before

Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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George Garfinkle with whom Richard N. Ivker was on brief for
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appellant.
William F. Sinnott, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for appellee.
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Per Curiam. In this appeal, defendant-appellant
Per Curiam.
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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
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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,
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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
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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
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F.3d 95, 105 (1st Cir. 1994), that probable cause existed

both to arrest defendant for possession of contraband, see
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United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.
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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.
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Ohio, 379 U.S. 89, 91 (1964)), and to remove the bag from the
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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
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California v. Acevedo, 111 S. Ct. 1982, 1991 (1991) (police
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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


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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
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defendant's intent in possessing the cocaine. These

determinations were well within the court's discretion. See
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United States v. Sepulveda, 15 F.3d 1161, 1193 (1st Cir.
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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.
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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.



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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)
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(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
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States v. Rivera-Sola, 713 F.2d 866, 871 (1st Cir. 1983)
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(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
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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.
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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
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(1st Cir. 1990), in determining, by a preponderance of the

evidence, see United States v. Valencia-Lucena, 988 F.2d 228,
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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


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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.
Affirmed.
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