UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-5530
United States of America,
Plaintiff-Appellee,
VERSUS
Augustin Mora Carrillo,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(January 12, 1993)
Before WISDOM, JOLLY, and DEMOSS, Circuit Judges.
DEMOSS, Circuit Judge:
A jury found the defendant guilty of distribution of heroin
and cocaine based on an undercover officer's testimony that he
purchased a narcotics-filled balloon from the defendant. At trial,
the defendant's alibi was mistaken identity: he claimed that the
police officer misidentified him as the seller. The district court
allowed the government to present evidence of two other sales of
controlled substances by the defendant as modus operandi to help
establish his identity as the drug seller in the present case.
Carrillo challenges the admission of those extrinsic acts under the
identity exception of Federal Rule of Evidence 404(b). Because we
hold that those acts do not bear a sufficient degree of similarity
to the charged offense to mark it as the handiwork of the
defendant, we vacate the conviction and remand for a new trial.
I. FACTS AND PROCEDURAL HISTORY
Detective Leo Alonzo (Alonzo), an undercover officer with the
San Antonio police department, testified that at approximately
10:00 a.m. on January 8, 1991, he was approached while standing
near the Three Kings Lounge on West Commerce by a man who asked
what he wanted. Alonzo had received a tip from a confidential
informant that a man named "Tito" was selling heroin in the area,
and so replied that he was looking for "Tito." The man pointed to
another man walking down Commerce Street and told Alonzo that the
man was "Tito."
As Alonzo approached "Tito," who Alonzo later identified as
Augustin Mora Carrillo, Carrillo asked Alonzo what he wanted and
Alonzo replied that he needed a "veinte," a street term meaning
twenty dollars' worth of narcotics. Alonzo gave Carrillo twenty
dollars and Carrillo took a balloon, which contained cocaine and
heroin, from his mouth and handed it to Alonzo. Alonzo took the
drugs and kept walking.1
1
The January 8 transaction occurred very quickly; Alonzo
saw the seller for approximately thirty seconds. No other
officer observed the sale. The police did not photograph or
videotape the transaction. The serial numbers on the bills used
to pay for the heroin were not recorded. During a four-year
period prior to January 8, 1991, Carrillo participated in between
300 and 500 undercover drug buys, and on a prior occasion had
misidentified a narcotic's seller.
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After the sale, Alonzo received information that the man who
had sold him the heroin was named Augustin Carrillo and that he
lived on Barney Street. He advised his partner, Detective Barbe,
of that information and Barbe retrieved a photograph of Carrillo
from the police files. Later that day, Alonzo identified the man
in the photograph--Carrillo--as the person that sold him the drugs.
Carrillo was arrested and charged with distribution of cocaine and
heroin in violation of 21 U.S.C. § 841 (1992).
Before trial, Carrillo filed a motion in limine seeking to
exclude any evidence of other crimes, wrongs, or acts, specifically
that evidence of his two extrinsic acts of selling heroin. The
district court denied the motion, ruling that if Carrillo raised
the issue of identity, then it would allow the government to call
the two police officers to testify about the details of Carrillo's
prior offenses to show that Carrillo was the seller. Thus, when
Carrillo claimed as an alibi defense that he was at the
intersection of San Marcos and Buena Vista streets, a few blocks
from where the drug transaction that Detective Alonzo participated
in took place, the district court ruled that Carrillo had raised
the issue of identity and allowed the government to call the two
police officers as witnesses.
The government called San Antonio Police Detective Manuel
Garcia, who testified that while working undercover on April 9,
1990, he purchased two balloons of heroin from Carrillo at a house
about four blocks from the Three Kings Lounge--near where Detective
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Alonzo's buy took place. He said that he was third or fourth in
line to buy drugs from Mr. Carrillo, and that Carrillo sold drugs
to everybody who was at the house. Additionally, Detective Michael
Peters testified that on March 28, 1991, he arrested Carrillo for
heroin possession at a location near the Three Kings Lounge after
observing Carrillo conducting a drug transaction with a pregnant
woman. Peters testified that Carrillo possessed several balloons
filled with heroin when he arrested him.
The jury found Carrillo guilty and the judge sentenced him to
serve 168 months in prison with a five-year term of supervised
release and ordered him to pay a $50 special assessment. Carrillo
filed a timely notice of appeal raising one issue--the admission of
the extrinsic act evidence.
II. DISCUSSION
A. "The Test"
A district court's decision to admit evidence under Rule
404(b) is reviewed under an abuse of discretion standard. United
States v. Anderson, 933 F.2d 1261, 1268 (5th Cir. 1991).
"Nevertheless, . . . [this court's] review of evidentiary rulings
in criminal trials is necessarily heightened." Id. Federal Rule
of Evidence 404(b), in issue here, states:
[e]vidence 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,
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knowledge, identity, or absence of mistake or
accident. . . .
The admissibility of extrinsic act evidence under Rule 404(b)
is determined by application of the two-part test enunciated by
this court in United States v. Beechum, 582 F.2d 898 (5th Cir.
1978), cert denied, 440 U.S. 920, 99 S. Ct. 1244, 59 L. Ed.2d 472
(1979). "First, it must be determined that the extrinsic offense
evidence is relevant to an issue other than the defendant's
character." Id. at 911. "Second, the evidence must possess
probative value that is not substantially outweighed by its undue
prejudice and must meet the other requirements of [Fed. R. Evid.]
403."2 Beechum, 582 F.2d at 911. Character evidence is not
excluded because it has no probative value, but because it
sometimes may lead a jury to convict the accused on the ground of
bad character deserving punishment regardless of guilt. United
States v. Anderson, 933 F.2d 1261, 1268 (5th Cir. 1991).
B. "Application of the Test"
To support his contention that the district court erred in
admitting evidence of the extrinsic acts, Carrillo relies on the
case of United States v. Silva, 580 F.2d 144 (5th Cir. 1978). In
Silva, the defendant was convicted for distributing heroin and
cocaine; he argued that testimony admitted by the trial court
2
Rule 403 provides: "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."
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concerning a subsequent negotiation for the sale of heroin3 was
inadmissible under the identity exception without a showing that it
bore such a high degree of similarity as to mark it as the
defendant's handiwork. The court agreed with the defendant:
"[t]he identity exception has a much more limited scope; it is used
either in conjunction with some other basis for admissibility or
synonymously with modus operandi." Silva. at 148. The court
stated an extrinsic offense is not admissible under 404(b) to show
identity "merely because it is similar, but only if it bears such
a high degree of similarity as to mark it as the handiwork of the
accused." Id. In the Silva case, the court held that "no such
handiwork was . . . shown." Id. Carrillo contends in the present
case that the district court erred in admitting evidence of the
extrinsic offenses because they were not so similar to the charged
offense as to mark it as his handiwork.
To refute Carrillo's contention, the government relies on the
case of United States v. Torres-Flores, 827 F.2d 1031 (5th Cir.
1987), where the court allowed evidence to be admitted showing that
the defendant, accused of assaulting a border patrol officer, had
previously been arrested at the same river checkpoint so as to
place the defendant at the scene of the crime. We believe that the
3
In Silva, the undercover agent who participated in the
charged offense testified to a continuing series of meetings with
the defendant, the purpose of which was to locate a source of
supply. No further purchases were made, however, presumably
because the agent was unable to provide the "front money."
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government's reliance on Torres-Flores, however, is misplaced
because that case did not involve the modus operandi method of
proving identity.4 In Torres-Flores, the defendant did not testify
and thus the only evidence to corroborate the border patrol
officer's testimony and place the defendant at the checkpoint
during the commission of the offense was the testimony that he had
been apprehended there twice before. The court did not hold that
the evidence was admissible based on the uniqueness or similarity
between the prior border crossings and the charged offense, but on
the fact that the defendant had crossed there before and therefore
was more likely to have been there on the day the charged offense
occurred. Conversely, in the present case showing that Carrillo
was in the area where the charged offense occurred adds little
weight to the evidence against him since he doesn't deny being in
the area--he claims that he was a few blocks away at the
intersection of San Marcos and Buena Vista.
In that regard, the Fifth Circuit has recognized that evidence
not constituting a signature or otherwise demonstrating a
particular, identical modus operandi may nonetheless be admissible
under the identity exception. United States v. Evans, 848 F.2d
1352, 1360 (5th Cir. 1988), modified on rehearing, 854 F.2d 56 (5th
Cir. 1988); See, e.g., United States v. Aguirre Aguirre, 716 F.2d
4
Although the defendant in Torres-Flores argued that the
"prior apprehensions were dissimilar to and had nothing in common
with the modus operandi of the assault," the court never
addressed that argument. Id. at 1034.
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293, 300 (5th Cir. 1983); United States v. Montemayor, 684 F.2d
1118, 1121 (5th Cir. 1982). In United States v. Evans, 848 F.2d
1352, 1360 (5th Cir. 1988)(quoting 22 C. Wright § K. Graham,
Federal Practice and Procedure § 5246, at 512 (1978)), modified on
rehearing, 854 F.2d 56 (5th Cir. 1988), this court stated:
[t]he exception in Rule 404(b) for use of
other crimes evidence will probably be used
most often . . . `[t]o prove other like crimes
by the accused so nearly identical in method
as to earmark them as the handiwork of the
accused.' This exception, often referred to
as the `handiwork or signature exception' or
the exception for `modus operandi' is,
however, only one method by which other crimes
can prove identity. It is important that
courts recognize these different modes so as
not to impose requirements, such as
distinctive similarity, that apply only to the
modus operandi method of identification, on
different methods of using other crimes
evidence to show identity.
While recognizing the different methods by which other crimes can
prove identity and that only the modus operandi method needs to
meet the handiwork or signature exception, here, it is abundantly
clear that the government sought to introduce the extrinsic acts to
prove identity by showing Carrillo's methods of selling heroin were
so similar to the method used in the charged offense and so
distinctive from the normal method as to mark it as his handiwork.
The government sought to avail itself of the modus operandi method;
and, as such, the government was required to show that evidence of
the extrinsic acts was sufficiently similar to the charged offense
and sufficiently unique from the common practice for it to do so.
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Carrillo's extrinsic offenses of selling heroin fail to satisfy
those requirements.
Detective Alonzo himself testified that drug dealers and users
frequent the area in which he made the drug purchase. He further
stated that it is "very common" for a street dealer to distribute
narcotics in a balloon; he explained that packaging the drug in
this way allows the dealer to swallow it if a police officer
approaches. Alonzo also testified that he had previously purchased
narcotics in undercover operations when a dealer distributed the
narcotics in a balloon. Alonzo did not testify to any
characteristics of the purchase that was unique or would tend to
mark the drug sale as the handiwork of the accused. In sum, the
January 8 sale was a typical drug sale in a drug-ridden urban
neighborhood where such transactions are commonplace. Thus, the
testimony of Garcia and Peters did not corroborate the identity of
the seller through unique or uncommon elements of the transaction.
The evidence, in our opinion, did no more than to illustrate
Carrillo's bad character and to show that he acted in conformity
with that character on January 8. Such is not permissible; and,
indeed, is the purpose behind the prohibition of propensity
evidence in Rule 404(b). Therefore we hold that the trial court
erred in admitting evidence of Carrillo's extrinsic offenses of
selling heroin.
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III. CONCLUSION
The extrinsic acts of Carrillo were not sufficient to mark
them as the handiwork of Carrillo and thus were not admissible
under the modus operandi method of identification. For the
foregoing reason, the conviction of Carrillo is VACATED and the
case REMANDED for a new trial.
c:br:opin:92-5530:mm