United States Court of Appeals
For the First Circuit
No. 10-1776
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS ENRIQUE SANTIAGO-PÉREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Lipez and Howard,
Circuit Judges.
Lawrence A. Vogelman, with whom Nixon, Raiche, Vogelman,
Barry, Slawsky & Simoneau, P.A. was on brief, for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, was on brief, for appellee.
January 19, 2012
HOWARD, Circuit Judge. Defendant-appellant Luis
Santiago-Pérez (("Santiago") was convicted of attempting to possess
with an intent to distribute 500 grams or more of a controlled
substance, but acquitted of conspiracy to possess with an intent to
distribute the same substance. See 18 U.S.C. § 2; 21 U.S.C. §§
841(a)(1), 841(b)(1)(B)(ii)(II), 846. Resting on Federal Rule of
Evidence 403, the appellant argues that the district court
erroneously admitted evidence of the amount of money that he and
his companions were carrying when traveling to the British Virgin
Islands. Discerning no error, we affirm.
During the afternoon of March 15, 2009, Santiago and two
other men arrived at Tortola in the British Virgin Islands after
traveling by ferry from St. Thomas. A customs officer asked
Santiago about a "bulge" that she saw in his left pocket. He
acknowledged that it was money and placed the cash on the counter
when requested to do so; it totaled $5,000. The other two men also
revealed the cash that they were carrying, one having $15,000 on
him and the other having over $9,000. Because the $15,000 cache
exceeded the legal limit for undeclared money and the defendant's
companions apparently spoke little English, the customs officer
asked Santiago whether he knew that one of his friends was carrying
an unlawful amount. Santiago initially answered in the negative,
but he then explained that the purpose of his visit to the Virgin
Islands was to purchase a horse, and that he had parceled out his
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purchase money to each man in an effort to circumvent the
declaration requirement. Santiago was unsure of the name or
location of the person from whom he intended to buy the horse.
Ultimately, while retaining possession of the $15,000, the customs
officer permitted the trio to continue on their way with the
remaining money -- about $14,000 -- intact.
Two days later, a customs officer in Puerto Rico examined
a package as it passed through an x-ray machine and deemed it
suspicious. According to the labeling, the package had been
shipped from St. Thomas earlier that day via express mail and the
intended recipient was "Luis A. Santiago"1 of Rio Grande, Puerto
Rico. A subsequent search and investigation revealed its contents
to be more than a kilogram of a cocaine mixture. Law enforcement
conducted a controlled delivery on March 19 and arrested two
individuals, including one of the men who had accompanied Santiago
on March 15. During a second controlled delivery later that same
day, Santiago was arrested after he collected the package at a post
office in Puerto Rico.
A grand jury returned a two-count indictment for
conspiracy and attempted possession against both Santiago and one
of his March 15 traveling companions. At trial, the government's
1
The parties' briefs say that the package label identified the
recipient as "Luis A. Santiago," yet the testimony suggests that
the label stated "Luis E. Santiago." This potential discrepancy
does not alter any material aspect of this case.
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array of evidence included (1) Santiago's encounter with the
Tortola customs officer on March 15, (2) a surveillance video
depicting Santiago mailing the cocaine-filled package on the
morning of March 17 from a post office in St. Thomas, (3) testimony
that a total of 14 phone calls were made on March 18 and 19 from a
phone number registered in Santiago's name to the toll free phone
number for tracking express mail packages, (4) Santiago's admission
that he was paid $500 to mail a box of "auto parts" for a "friend"
and his admission that he suspected that the box contained
marijuana, and (5) testimony that during the March 2009 time frame
the average cost of a bulk kilogram of cocaine ranged from $18,000
to $25,000 in Puerto Rico, and about $6,000 to $10,0002 in the
Virgin Islands.3 After a seven-day trial, the jury acquitted
Santiago on the conspiracy count and convicted him on the attempted
possession count.
On appeal, the appellant targets the evidence of the
amount of money that he and his companions were carrying when
entering Tortola on March 15. He argues that its admission
violated Federal Rule of Evidence 403, which provides that relevant
2
Although the appellant suggests that the Virgin Islands price
was $14,000 rather than being in the $6,000 to $10,000 range, the
trial testimony supports the lower range. This discrepancy,
however, makes no difference in our analysis.
3
This listing is a mere summary of a portion of the
government's evidence. Because we do not reach the defendant's
argument that admission of the evidence did not amount to harmless
error, there is no need for us to portray all evidentiary angles.
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evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. Fed. R. Evid. 403.4
We review the district court's evidentiary ruling for abuse of
discretion. See United States v. Bayard, 642 F.3d 59, 63 (1st Cir.
2011).
Santiago first argues that the so-called money evidence
"was of questionable relevance" because the evidence showed that he
"had only $5,000 when he arrived in the Virgin Isles, [which is]
not enough to purchase [a kilogram of cocaine]." He avers that
because there was no evidence "as to what [he] did with the $5,000
or that he joined his money with the money of his friends[,] . . .
the government asked the jury to take too large a leap." These
suppositions, however, are undermined by the record.
The Tortola customs officer testified that Santiago
admitted that the money that each man carried on March 15 belonged
to Santiago, and that Santiago had divided the money between them
only to circumvent travel cash limits. The customs officer
ultimately allowed the travelers to collectively retain about
$14,000, and the government presented evidence that a bulk kilogram
4
The focus of Santiago's evidentiary objection has evolved
between trial and appeal. At trial, defense counsel objected to
evidence pertaining to the price of a kilogram of cocaine in the
different locales. On appeal, Santiago challenges the admission of
evidence of the amount of money that he and his companions were
carrying when traveling on March 15. Although the government notes
in passing this apparent disparity, it does not argue failure to
preserve. We need not focus on this procedural issue because
Santiago's appellate argument fails on its merits.
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of cocaine costs between $6,000 and $10,000 in the Virgin Islands.
This evidence permitted the jury to rationally conclude that
Santiago had the ability to purchase the amount of cocaine that he
mailed from St. Thomas just two days after the Tortola customs
encounter. Taken in context with the remainder of the story, the
money evidence was plainly relevant to Santiago's knowledge of the
contents of the package. See Fed. R. Evid. 401 (defining "relevant
evidence"). Indeed, in his brief the appellant acknowledges, as he
must, that the money evidence permitted the jury to infer he had
"the means and intent to send drugs" and "knew he was, in fact,
mailing drugs."5 Accordingly, we reject the appellant's attempt to
minimize the relevance of the money evidence.
As to "unfair prejudice," Santiago does not identify any.
See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008)
(characterizing "unfair prejudice" as that which "inflame[s] the
passions of the jurors"); United States v. Varoudakis, 233 F.3d
113, 122 (1st Cir. 2000) (noting that "criminal propensity
evidence" may cause unfair prejudice even if it is not highly
emotionally provocative).
Despite quoting the "unfair prejudice" standard and
citing to Rule 403 cases, the appellant points to no improper
5
We note that the appellant construes the acquittal verdict as
the jury concluding that he was not "acting with anyone else," and,
consequently, that "[h]is $5,000 must have been acting alone as
well." Yet, the jury could very well have accepted the undisputed
evidence that the $14,000 collectively retained by Santiago and one
of his companions belonged to the appellant, and also determined
that he acted alone with that money.
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emotional inflammatory effect or other unfairly prejudicial impact
caused by the money evidence, relying instead on an assertion that
the admission of the evidence was not harmless error.6 See United
States v. Candelaria-Silva, 162 F.3d 698, 705 (1st Cir. 1998)
(emphasizing that evidence is not unfairly prejudicial simply
because it is "prejudicial to the defendant's interests"). A
harmless error analysis, however, assumes that the district judge
committed error. See, e.g., United States v. Whitney, 524 F.3d
134, 142 n.6 (1st Cir. 2008). As the appellant has not
demonstrated error, we need not address whether such error would
have been harmless.7
The conviction is affirmed.
6
At oral argument, the appellant suggested a possible improper
taint: that the jury may have viewed the unusually large amount of
travel cash to be indicative of the defendant being a drug dealer.
We generally do not consider new theories raised for the first time
at oral argument. See United States v. Pulido, 566 F.3d 52, 60 n.4
(1st Cir. 2009). This new theory was not presented to the district
judge and appears nowhere in the appellant's brief. In any event,
it is highly unlikely in this case that the money evidence created
a significant danger that the jury simply assumed that Santiago was
a drug dealer rather than properly considering the March 15
encounter in the context of all of the circumstantial evidence
pointing to his culpable knowledge of the contents of the package.
See Fed. R. Evid. 403 (relevant evidence may be excluded "if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice" (emphasis added)).
7
We note, however, that other evidence allowed the jury to
conclude that Santiago knew the illegal contents of the package.
For example, he admitted to law enforcement that he suspected it
contained marijuana when he mailed it. Additionally, to the extent
that the appellant now expresses concern as to how the jury should
have relied on the money evidence when deliberating on the two
charges, we are unmoved. No request for a limiting instruction was
made at trial and we will not fault the district court in this case
for failing to provide one sua sponte. See Lugo Guerrero, 524 F.3d
at 14.
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