UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5703
RAUL DENNIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-94-47)
Submitted: March 18, 1997
Decided: April 3, 1997
Before MURNAGHAN and ERVIN, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Thomas K. Maher, RUDOLF & MAHER, P.A., Chapel Hill, North
Carolina, for Appellant. Mark T. Calloway, United States Attorney,
Deborah A. Ausburn, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Raul Dennis appeals his conviction for conspiracy to possess with
intent to distribute cocaine, in violation of 21 U.S.C. § 846 (1994).
We affirm.
I
Roberto Perez was a cocaine distributor in Asheville, North Caro-
lina. Dennis, who lived in Florida, supplied Perez with cocaine. Perez
initially travelled to Florida to pick up the cocaine and to pay Dennis;
however, Perez eventually employed Ubaldo Ortiz to travel to Ashe-
ville with cocaine and return to Florida with money to pay Dennis.
After his arrest in April 1994, Perez began to cooperate with
authorities. He called Dennis, with whom he had not dealt since 1992,
and expressed an interest in purchasing more cocaine. Dennis and
Perez had several conversations, all of which were recorded. Dennis
agreed to supply Perez with cocaine. In June, Perez travelled to Den-
nis's home in Florida. Perez and Dennis discussed arrangements to
deliver cocaine to two men whom Perez supposedly had available to
buy. After Perez left the house, Drug Enforcement Administration
(DEA) agents who had been monitoring the conversation arrested
Dennis.
A jury convicted Dennis of conspiracy to possess with intent to dis-
tribute cocaine. He received a 132-month sentence. Dennis now
appeals, raising four issues.
II
Dennis first contests the introduction of his taped conversations
with Perez and the introduction of items (including forty-four grams
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of cocaine and drug paraphernalia) seized during a consent search of
his house. Dennis objected at trial to the introduction of the tapes. We
therefore review their admission into evidence for abuse of discretion.
See United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993).
Because Dennis did not object to the introduction of the fruits of the
search, their admission is reviewed for plain error. See United States
v. Olano, 507 U.S. 725, 731-32 (1993).
Dennis asserts that introduction of the tapes and items seized dur-
ing the search violated Fed. R. Evid. 404(b). Under that rule, evidence
of "other crimes, wrongs, or acts" is admissible to prove several
things, including motive, intent, and knowledge. The evidence is
inadmissible "to prove the character of a person in order to show
action in conformity therewith." Fed. R. Evid. 404(b). To be admissi-
ble under Rule 404(b), evidence must be relevant, necessary, and reli-
able. United States v. Aramony, 88 F.3d 1369, 1377-78 (4th Cir.
1996), petition for cert. filed, ___ U.S. ___, 65 USLW 3381 (U.S.
Nov. 12, 1996) (No. 96-752). Evidence that is otherwise admissible
under Rule 404(b) must nonetheless be excluded under Fed. R. Evid.
403 if its probative value is significantly outweighed by its prejudicial
value. Id. at 1378.
Both the tapes and the fruits of the search were admissible under
Rule 404(b). Their reliability is not disputed. They were relevant to
the issue of Dennis's intent to commit the charged offense and neces-
sary to corroborate the testimony of Perez. See United States v. Mark,
943 F.2d 444, 448 (4th Cir. 1991). It is immaterial that authorities
recorded the conversations and seized the drugs and drug parapherna-
lia after the arrest of Perez and the conclusion of the charged conspir-
acy. See United States v. Morsley, 64 F.3d 907, 911 (4th Cir. 1995),
cert. denied, ___ U.S. ___, 64 USLW 3467 (U.S. Jan. 6, 1996) (No.
96-6942); United States v. Whaley, 786 F.2d 1229, 1232 (4th Cir.
1986). Nor, particularly in light of the strong case against Dennis, was
the evidence unduly prejudicial under Rule 403.
III
Dennis spoke to agents who arrested him and searched his home.
He claims that, during that conversation, he invoked his Fifth Amend-
3
ment right to remain silent. He contends that the prosecutor imper-
missibly commented in closing upon his invocation of that right.
DEA Special Agent Jaime Comacho testified that Dennis con-
sented to the search. When officers inquired about a locked chest,
Dennis pointed to a set of keys. Officers unlocked the chest, where
they found cocaine and drug paraphernalia. Dennis told Comacho that
financial pressures had led him to make a mistake. Comacho inquired
about Dennis's suppliers; Dennis responded that he would rather face
the penalty for his crime than reveal his source or customers.
During closing, the prosecutor mentioned Dennis's refusal to
divulge his sources. Dennis now contends that this was an impermis-
sible comment on his alleged exercise of his right to remain silent. He
did not exercise that right, however. Instead, Dennis willingly spoke
to Special Agent Comacho, refusing only to divulge his sources. This
simply was an implicit expression to Camacho of his view that it was
not a good idea to cooperate with officials by revealing sources. As
Dennis did not invoke his Fifth Amendment right, the prosecutor's
remark was appropriate.
IV
Finally, Dennis contends that the Government improperly vouched
for its case by implying that it had evidence the jury had not seen. In
attacking the credibility of Perez, defense counsel mentioned that the
prosecution had introduced no records, such as plane tickets or tele-
phone records, that would corroborate his story. In response, the pros-
ecutor in closing stated that the United States could have introduced
such documents, but chose not to do so in the interest of saving time.
Dennis did not object to the argument, which we review for plain
error. See United States v. Olano, 507 U.S. at 731-32.
We do not decide whether this comment constituted improper
vouching because the comment did not prejudice Dennis's substantial
rights. The case against him was strong, and the remark, which was
invited, was isolated. See United States v. Adam , 70 F.3d 776, 780
(4th Cir. 1995).
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V
We therefore affirm the conviction. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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