United States v. Landrau-Lopez

United States Court of Appeals
For the First Circuit

No. 05-1299

UNITED STATES OF AMERICA,

Appellee,

v.

KELLNUM LANDRAU-LÓPEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Selya, Lynch, and Howard, Circuit Judges.

Mark L. Stevens, with whom Law Office of Mark Stevens was on
brief, for appellant.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
with whom H.S. Garcia, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Senior Appellate Attorney
in Charge, were on brief, for appellee.

April 6, 2006
 HOWARD, Circuit Judge. In July 2003, Kellnum Landrau-

López was a new employee of Ponce Air Service (PAS), a ground

service provider at Luis Muñoz Marín International Airport (LMMIA)

in Puerto Rico. His duties included loading and unloading luggage

for commercial flights. Landrau obtained this job with the help of

his neighbor and long-time friend, Pedro Villegas-López, who worked

for PAS and who has admitted to smuggling drugs into the

continental United States through flights departing from LMMIA.

Following a seizure of drugs from a commercial flight

originating from LMMIA, the Drug Enforcement Administration (DEA)

commenced an investigation of the ramp and baggage handling

employees at the airport. In July 2003, a DEA confidential

informant infiltrated the smuggling ring. Posing as a cocaine

supplier, the informant brokered a deal with Melvin Poupart to

smuggle 30 kilograms of what was actually "sham" cocaine onto a

flight from LMMIA to Newark, New Jersey. After Poupart offered the

smuggling job to Landrau, Landrau informed Villegas about it.

Villegas initially declined to participate, but offered to enroll

the services of two other PAS employees who had previously helped

him with drug shipments, Saulo Hernández and José Ramírez-Báez.

In the early morning hours of July 23, 2003, with DEA

agents observing from a concealed location, Poupart and the

informant hand delivered two large duffel bags containing 30

kilograms of sham cocaine to Landrau at his house. Shortly

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thereafter, Hernández arrived. Landrau loaded the two duffel bags

into Hernández's car, and the two then proceeded to the airport.

At the airport, Ramírez protested that the duffel bags were ill-

suited for smuggling drugs because they would appear suspicious and

their contents would be easily detectable by feeling the outside of

the bags. Landrau, nevertheless, insisted that they continue as

planned. Ramírez and Landrau loaded the two bags onto a baggage

cart, placed some garbage and an empty suitcase on top, and then

drove the cart out to the make-up area for a Continental Airlines

flight to New Jersey. Ramírez removed the tags from two suitcases

that had been checked-in for the flight and attached them to the

duffel bags. After baggage handlers finished loading all the

legitimate luggage into the plane, Landrau drove the cart to the

plane and personally loaded the two duffel bags. The bags were

seized in New Jersey later that day.

A federal grand jury subsequently indicted Landrau and

four others, including Villegas and Hernández, for conspiracy to

possess with intent to distribute five or more kilograms of

cocaine. See 21 U.S.C. §§ 841(a), 846. Although Landrau's four

co-defendants pleaded guilty, Landrau elected to plead not guilty.

He contended at trial that he was unaware of the contents of the

duffel bags. Villegas, Ramírez and Hernández, however, testified

that Landrau was the primary person responsible for smuggling this

particular shipment. A jury returned a guilty verdict and the

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district court sentenced Landrau to 151 months in prison. Landrau

challenges the conviction on two grounds.

Landrau first argues that the district court delivered an

erroneous jury instruction that may have caused the jury

impermissibly to shift the burden of proof to him in violation of

his due process rights. The allegedly erroneous instruction was

delivered during jury selection. Addressing a panel of 38

potential jurors, the court explained the process of jury selection

and outlined the allegations contained in the indictment. The

court then stated as follows:

[In] this case, the defendant has plead [sic]
not guilty to the charges contained in the
indictment, and thereby has raised issues of
fact that need to be tried by a jury, and that
is why you are here this morning, we are going
to select the jury and proceed to try the
issues of fact in this case.

Landrau contends that this instruction, regarding the

effect of his not-guilty plea, diminished the presumption of his

innocence and impermissibly shifted or reduced the government's

burden of proof at trial. According to Landrau, because a

defendant is never required to "raise issues of fact," the court's

instruction may have confused the jury as to the proper standard of

proof required of the government. See Hill v. Maloney, 927 F.2d

646, 648 (1st Cir. 1990) (holding that the due process clause

"requires that the prosecution bear the burden of proving every

essential element of a crime beyond a reasonable doubt, and

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evidentiary presumptions in a jury charge that have the effect of

relieving the government of that burden are therefore

unconstitutional"). Because Landrau did not raise this issue

below, our review is for plain error. See United States v. Bailey,

405 F.3d 102, 110 (1st Cir. 2005) (citing United States v. Olano,

507 U.S. 725, 732-36 (1993)).

The district court's introductory statement to the

venire, while perhaps infelicitously phrased, was not erroneous.

On its face, the statement accurately explained why the jurors had

been assembled and did not suggest that Landrau bore the burden of

raising an issue of fact. It merely expressed a truism -- that, by

pleading not guilty, Landrau had put the facts alleged in the

indictment at issue, thus necessitating a jury trial to determine

those facts. See, e.g., United States v. Argentine, 814 F.2d 783,

788 (1st Cir. 1987) ("[T]he plea of not guilty places every issue

in doubt, and not even undisputed fact may be removed from the

jury's consideration, either by direction or by omission in the

charge.") (internal quotation marks omitted). Moreover, when read

in the context of the court's entire introductory remarks, it is

clear that the court did not suggest that Landrau bore any burden

in proving his innocence. At the outset of jury selection, the

court noted that the indictment constituted allegations, not proof,

and that at trial, "it is the government who has the burden of

proving the defendant guilty beyond a reasonable doubt." Finally,

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any initial confusion potentially caused by the court's

introductory remarks was undoubtedly cured by the court's

subsequent instructions to the selected and sworn jury. See United

States v. Nishnianidze, 342 F.3d 6, 16 (1st Cir. 2003) (no plain

error where the district court's misstatement at the start of an

instruction was clarified later in the instruction). Just before

the commencement of the trial, and again before submitting the case

to the jury for deliberation, the court properly instructed the

jurors on the government's burden and repeatedly emphasized that

Landrau was entitled to "rely entirely on the presumption of

innocence."1

Landrau's second argument is that the district court

abused its discretion by allowing testimony concerning certain

prior bad acts that he had allegedly committed. Landrau argues

that the government improperly presented this testimony to

illustrate his bad character and his propensity to commit crimes.

See Fed. R. Evid. 404(b) (barring the admission of evidence of

other crimes, wrongs or acts in order to illustrate a person's

character to suggest action in conformity therewith). The

1
A cautionary note is in order. Although a statement that the
assembled venire has been summoned to jury duty in part because of
the defendant's plea of not guilty may be historically accurate,
such a statement runs the risk of prejudicing reluctant jurors
against the defendant. On this record we have no reason to
believe, nor has Landrau argued, that such prejudice resulted, but
we urge district courts to avoid ascribing the jurors' presence in
court to the defendant's refusal to plead guilty.

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government counters that the evidence was presented to rebut

Landrau's defense -- that he did not know what was inside the

duffel bags. See id. (providing that evidence of other crimes,

wrongs or acts "may, however, be admissible for other purposes,

such as proof of . . . intent, . . . knowledge, . . . or absence of

mistake or accident"). We review the district court's admission of

other acts evidence under Rule 404(b) for an abuse of discretion.

See United States v. Williams, 985 F.2d 634, 637 (1st Cir. 1993).

Before trial, the government moved for leave to introduce

testimony concerning Landrau's prior drug smuggling activities.

Specifically, the government sought to elicit testimony from

Villegas that Landrau: (1) ran a heroin drug point out of a public

housing complex; (2) was involved in the sale and trafficking of

marijuana; (3) was arrested for possession of an illegal firearm;

(4) brought a suitcase full of cocaine on a flight from LMMIA to

the continental United States; and (5) stored a stockpile of

cocaine for Villegas. The district court barred testimony

concerning the first three incidents, but, over Landrau’s

objection, allowed testimony concerning the latter two. Villegas

subsequently testified that he had paid Landrau to bring a suitcase

containing 36 kilograms of cocaine on a commercial flight from

Puerto Rico to New York, and, on a separate occasion, had paid

Landrau to store 100 kilograms of cocaine pending its smuggling

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into the continental United States.2 Villegas additionally

testified that he and Landrau had been next-door neighbors and

friends for 15 years.

The admissibility of Rule 404(b) evidence is considered

in two steps: "first, a court must determine whether the evidence

in question has any special relevance exclusive of defendant's

character or propensity; and second, notwithstanding its special

relevance, whether the evidence meets the standard set forth in

Fed. R. Evid. 403." United States v. Decicco, 370 F.3d 206, 211

(1st Cir. 2004). In considering the "special relevance" of other

bad act evidence, we have typically focused on two factors: "the

remoteness in time of the other act and the degree of resemblance

to the crime charged." Id. at 212 (internal quotation omitted).

Landrau does not contend that the prior crimes were too remote in

time to have probative value, but instead focuses on the factual

dissimilarities between the prior acts and the crime charged.

Landrau contends that the crime charged concerns his efforts,

through the use of his employment and his position of trust at PAS,

to transport cocaine within the airport, whereas the prior acts

testimony merely alleges his one-time participation as a "mule" --

2
Villegas also testified to one occasion after July 23, 2003,
when Landrau helped move 10 kilograms of cocaine within LMMIA.
Landrau does not challenge the admission of that testimony, and,
even if he did, any such challenge would fail.

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accompanying a shipment of cocaine from LMMIA to New York -- and

that he once agreed to store some cocaine.

Because Landrau was charged with conspiracy to knowingly

possess cocaine with the intent to distribute it, and because he

defended by claiming ignorance of the cocaine, Landrau's reading of

the Rule 404(b) exceptions is too restrictive. See United States

v. Flores Perez, 849 F.2d 1, 4 (1st Cir. 1988) ("[W]here . . . the

other bad act evidence is introduced to show knowledge, motive, or

intent, the Rule 404(b) exceptions to the prohibition against

character evidence have been construed broadly."). The other bad

act need not be identical to the crime charged so long as it is

sufficiently similar to allow a juror to draw a reasonable

inference probative of knowledge or intent. See United States v.

Spinosa, 982 F.2d 620, 628 (1st Cir. 1992) (holding that evidence

of prior drug sales was "sufficiently similar to the crimes charged

. . . to be probative of the fact that [the defendant] was not

merely an innocent driver who was involved in the [drug]

transaction by accident"); United States v. Nickens, 955 F.2d 112,

124-25 (1st Cir. 1992) (upholding, in a drug importation case, the

district court's admission of a prior conviction for selling

cocaine because it "was relevant to both [the defendant's]

knowledge that there was cocaine in the suitcases and to his intent

to distribute it"). Here, both of the alleged prior acts related

to the smuggling of cocaine. In one instance, Villegas claimed to

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have hired Landrau to smuggle cocaine onto a flight out of LMMIA,

and in the other, Villegas claimed that Landrau stored a stockpile

of cocaine which Villegas intended to ship later out of LMMIA.

That testimony, especially when considered with Villegas's

testimony that he and Landrau had a longstanding personal

relationship, is probative of knowledge and intent, see United

States v. Garcia, 983 F.2d 1160, 1173 (1st Cir. 1993) (prior drug

crimes probative of knowledge and intent), and of the

conspiratorial relationship between Landrau and Villegas, see

United States v. Escobar-de Jesus, 187 F.3d 148, 169 (1st Cir.

1999) ("In a conspiracy case, evidence of other bad acts . . . can

be admitted to explain the background, formation, and development

of the illegal relationship, . . . and, more specifically, to help

the jury understand the basis for the co-conspirators' relationship

of mutual trust.") (citations omitted).

Landrau fares no better under Rule 403, which provides

that relevant evidence "may be excluded if its probative value is

substantially outweighed by," inter alia, "the danger of unfair

prejudice." Fed. R. Evid. 403. Although there is always some

danger that the jury will use other bad acts evidence to infer

criminal propensity, such evidence should be excluded under Rule

403 only when its probative value is substantially outweighed by

its potential unfairly to prejudice the defendant. See Decicco,

370 F.3d at 213. Here, where Landrau's knowledge of the contents

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of the duffel bags was the critical factual issue in dispute, the

testimony establishing his participation in prior drug smuggling

activities was highly probative. See Spinosa, 982 F.2d at 628

(upholding admission of prior bad act evidence because it "directly

contradicts [the defendant's] defense that he was involved only by

accident or mistake"). In sum, the district court did not abuse

its discretion in admitting Villegas's testimony concerning

Landrau's prior criminal behavior.

Affirmed.

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