United States v. Cotto Aponte

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1287

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

EMILIO COTTO-APONTE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

Cyr, Boudin and Stahl,

Circuit Judges.

Carlos A. Vazquez-Alvarez, Assistant Federal Public Defender,

with whom Benicio Sanchez Rivera, Federal Public Defender, was on

brief for appellant.
Jose A. Quiles Espinosa, Senior Litigation Counsel, with whom

Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco,

Assistant United States Attorney, were on brief for appellee.

July 20, 1994

CYR, Circuit Judge. Following a two-day jury trial,
CYR, Circuit Judge

appellant Emilio Cotto Aponte ("Cotto") was convicted of possess-

ing cocaine with intent to distribute. See 21 U.S.C. 841(a)-

(1), 18 U.S.C. 2 (1993). On appeal, he challenges two eviden-

tiary rulings and the sufficiency of the evidence. Finding no

reversible error, we affirm.

The challenge to the sufficiency of the evidence

requires that we assess all evidence, draw all reasonable infer-

ences, and resolve all credibility determinations in the light

most favorable to the verdict. United States v. Hernandez, 995

F.2d 307, 310 (1st Cir.), cert. denied, U.S. , 114 S. Ct.

407 (1993). On June 11, 1992, Cotto enlisted Tracy Barnwell and

Israel Rodriguez to accompany him to Puerto Rico to obtain

cocaine which Cotto planned to distribute upon his return to New

York City. While in Puerto Rico, Cotto delivered to Barnwell a

suitcase containing two kilograms of cocaine, and told him how to

conceal the cocaine for the return trip. Cotto purchased three

one-way airline tickets for the return flight to New York, as he

had done for the flight to Puerto Rico. After a drug-detection

dog alerted to Barnwell's suitcase at the airport in Puerto Rico,

Cotto consented to a search of his own travel bag which was found

to contain $1,400 in cash, three airline ticket receipts for the

flight from New York to Puerto Rico, and an electronic scale. As

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a mere recitation demonstrates, there was ample evidence to

establish guilt beyond a reasonable doubt.

Cotto also challenges two evidentiary rulings normally

subject to review for abuse of discretion. United States v.

Rodriguez Alvarado, 985 F.2d 15, 18 (1st Cir. 1993). First, at

trial a United States Customs agent identified Cotto in the

courtroom but testified that Cotto's appearance had changed since

his arrest. Cotto objected solely on the ground that the testi-

mony was not relevant. Second, the government introduced a

photospread from which another witness had made a pretrial

identification of Barnwell, Rodriguez and Cotto. Cotto objected

on the ground that his unkempt appearance, as depicted in the

photospread (e.g., unshaven; dressed in a T-shirt; pony-tail),

would cause unfair prejudice. See Fed. R. Evid. 403. The

district court ruled that the photospread was not unfairly

prejudicial.

With respect to the customs agent's in-court identifi-

cation testimony, appellant's burden is daunting. "[T]he thresh-

old for relevance is very low under Federal Rule of Evidence 401.

Evidence is relevant under Rule 401 if it has 'any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.'" United States v. Nason, 9

F.3d 155, 162 (1st Cir. 1993) (citing Fed. R. Evid. 401), cert.

denied, U.S. , 114 S. Ct. 1331 (1994). The in-court

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identification testimony provided highly probative corroboration

of other trial testimony that a government witness had seen

Cotto, Barnwell, and Rodriguez together at the airport in Puerto

Rico, and that it was Cotto's atypical appearance which had

attracted the witness's attention to the trio. Since Cotto's

physical appearance was no longer the same at trial, the in-court

identification testimony was probative of the material fact that

the person on trial was the one previously seen in the presence

of Rodriguez and Barnwell at the airport. Cf. United States v.

Holmes, 632 F.2d 167, 169 (1st Cir. 1980) (holding that photo-

graph of defendant taken at time of arrest is admissible to

demonstrate changed appearance at time of trial).1

The Rule 403 challenge can succeed only if the proba-

tive value of the photospread was substantially outweighed by the

danger, inter alia, of "unfair prejudice." See Fed. R. Evid.

403; United States v. Carty, 993 F.2d 1005, 1011 (1st Cir.

1The record reflects that the only objection made to this
testimony at trial was based exclusively on Fed. R. Evid. 401.
On appeal, however, Cotto attempts to assert a claim of error
under Fed. R. Evid. 403. As the latter claim of error was not
preserved below, see Fed. R. Evid. 103(a), we review for "plain

error" only, see id. 103(d). United States v. Castiello, 915

F.2d 1, 3-4 (1st Cir. 1990) (failure to assert proper objection
at trial calls for "plain error" review), cert. denied, 498 U.S.

1068 (1991). Careful review reveals that no unfair prejudice
resulted from the admission of the in-court identification
testimony. See Holmes, 632 F.2d at 169. Thus, there was no

error, plain or otherwise.

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1993).2 The photospread provided probative circumstantial

evidence that Cotto had been seen at the hotel in Puerto Rico

where Rodriguez and Barnwell stayed before the three were arrest-

ed at the airport. Though its admission hampered Cotto's defense

by tying all three codefendants together, there was no unfair

prejudice. See Onujiogu v. United States, 817 F.2d 3, 6 (1st

Cir. 1987) ("The fact that a piece of evidence hurts a party's

chances does not mean it should automatically be excluded, [or]

there would be precious little left in the way of probative

evidence in any case.").

As there was no reversible error, the judgment of

conviction and sentence must be affirmed.

Affirmed.

2Although at trial Cotto challenged this evidence on addi-
tional grounds, in his appellate brief he has preserved only the
Rule 403 objection. See United States v. Fahm, 13 F.3d 447, 450

(1st Cir. 1994) (issues adverted to in a perfunctory fashion on
appeal are deemed waived).

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