United States v. Morla-Trinidad

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 96-1070

UNITED STATES,

Appellee,

v.

ALBERTO MORLA-TRINIDAD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Selya and Stahl, Circuit Judges,

and Torres,* District Judge.

Stephen H. Mackenzie on brief for appellant.

Jay P. McCloskey, United States Attorney, Margaret D. McGaughey,

Assistant United States Attorney, and George T. Dilworth, Assistant

United States Attorney, on brief for appellee.

November 8, 1996

*Of the District of Rhode Island, sitting by designation

STAHL, Circuit Judge. A jury convicted defendant-
STAHL, Circuit Judge.

appellant Alberto Morla-Trinidad of conspiring to distribute

and possess with intent to distribute crack cocaine. Morla-

Trinidad now seeks a new trial, claiming that the district

court erred when it permitted the prosecutor to impeach his

testimony with cross-examination and rebuttal evidence

concerning a prior arrest of the defendant in which evidence

was illegally obtained. We affirm.

I.
I.

Background
Background

On September 4, 1994, police in Lewiston, Maine,

stopped a vehicle in which Morla-Trinidad was a passenger and

Melvin "Bubba" Lagasse ("Bubba Lagasse") was the driver.

Incident to that stop, the police officers searched Morla-

Trinidad for weapons and discovered cash and small amounts of

marijuana and crack cocaine. Subsequent state drug charges

against Morla-Trinidad were dismissed after a Maine Superior

Court judge ruled that the officers lacked justification to

search him and suppressed the seized evidence.

Pursuant further investigation, federal agents

arrested Morla-Trinidad in Lewiston on April 18, 1995. That

same day, a grand jury returned a one-count indictment

charging Morla-Trinidad and Ruth Peabody with conspiring to

traffick drugs from July to December 1994 in Maine and

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Massachusetts. Peabody eventually pleaded guilty while

Morla-Trinidad proceeded to trial.

II.
II.

Trial Events
Trial Events

Because Morla-Trinidad does not challenge the

sufficiency of the evidence, we describe the pertinent trial

evidence in a neutral manner to provide context for the

claimed error. See United States v. Procopio, 88 F.3d 21,

23-24 (1st Cir. 1996). Generally, the government sought to

show that, throughout the indictment period, Morla-Trinidad

traveled between Lawrence, Massachusetts, and Lewiston,

Maine, to manage sales of crack cocaine out of Peabody's

Lewiston residence.

In its case in chief, the government presented six

witnesses who testified about their involvement with Morla-

Trinidad. Raul Baez testified that Morla-Trinidad initially

sold drugs for him in Lawrence, but then became interested in

selling in Lewiston, another locale in which Baez conducted

his drug business. Baez stated that although he rejected

Morla-Trinidad's offer to become a partner in his Lewiston

business, he did drive Morla-Trinidad to Lewiston to meet

Peabody; to Baez's dismay, Morla-Trinidad then began to

compete with him in the Lewiston drug trade.

Most of the other witnesses testified that they saw

Morla-Trinidad in Peabody's residence (where they bought

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crack cocaine), and/or that they bought the drug directly

from Morla-Trinidad at that location. In particular, Marlane

Driggers testified that she first met Morla-Trinidad in May

1994 in Lawrence, at which time she drove him to her

apartment in Lewiston. She stated that he carried at least

200 bags of crack cocaine on that trip, intending that she

sell it in Lewiston. Driggers testified that soon

thereafter, she moved into Peabody's apartment out of which

they sold crack cocaine. She indicated that Morla-Trinidad

stayed in their living room at least three days a week and

that, two or three times during each of those days, she would

obtain from him a batch of twenty bags of crack cocaine to

sell.

Michael Lagasse testified that his brother, Bubba

Lagasse, told him that Morla-Trinidad operated out of

Peabody's residence. He stated that Morla-Trinidad was at

Peabody's residence at least two or three times per week and

that he bought crack cocaine many times from Morla-Trinidad

at that location. Three other witnesses, Bruce Moody, Scott

Poulin, and Karla Schools, testified that they regularly

purchased crack cocaine out of Peabody's apartment and that

they either bought directly from Morla-Trinidad or they saw

him there when they bought from Peabody.

There was testimony to the effect that Morla-

Trinidad would exchange crack cocaine for travel between

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Lawrence and Lewiston. Driggers testified that she drove

Morla-Trinidad from Lawrence to Lewiston at least five times

and that various people, including Bubba Lagasse, Peabody and

Schools, also drove him to and from Lawrence and Lewiston.

Moody testified that he drove Morla-Trinidad twice to

Lawrence from Maine. Schools testified that on two occasions

she picked up Morla-Trinidad in Lawrence and transported him

to Lewiston, where, she said, he would stay for about a week.

On the second day of his trial, Morla-Trinidad

testified in his own defense.1 Defense counsel began Morla-

Trinidad's direct examination with the following question:

"Alberto, yesterday there were six witnesses that testified

directly about your supposed involvement in a crack ring.

We'll go through this list and ask you whether you know these

people in any way." In response to counsel's subsequent

questions, Morla-Trinidad testified: "Of the witnesses who

testified yesterday, I can assure you, I can swear before God

that I have only seen two of them, [Driggers and Baez]."

As to Driggers, he testified that the first time he

saw her was in prison after his April 1995 arrest. He stated

that the events to which Driggers testified "didn't happen"

and that he never gave or sold crack cocaine to her. As to

1. Before Morla-Trinidad took the stand, the district court
personally informed him that, if he testified in his own
defense, the government would have the opportunity to cross-
examine him and might be permitted to introduce the subject
of the September 1994 arrest.

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Baez, he stated that, although he had seen Baez several

times, he neither sold crack cocaine for him nor knew that he

was "involved in this kind of business." Additionally,

Morla-Trinidad denied knowing either Bubba Lagasse or

Peabody, his indicted co-conspirator.

Concerning his whereabouts during the indictment

period (July to December 1994), Morla-Trinidad testified that

he split his time between New York and Lawrence. He stated

that, during this time, he was devoted full-time to his

business of promoting Hispanic music in the New York area.

When asked if he went to Maine during the indictment period,

Morla-Trinidad replied that he traveled there only once to

see his attorney. When asked if he had any friends or

associates in Lewiston, he replied that he had a "woman

friend" there.

During cross-examination by the prosecutor, Morla-

Trinidad maintained that he did not know Bubba Lagasse and

that he traveled to Lewiston only once during the indictment

period -- to meet only with his attorney. When pressed,

however, he acknowledged that he traveled to Lewiston once

again during that time, again to see his attorney, and that

he also once went to a fast food restaurant near Lewiston to

meet his woman friend. The prosecutor then inquired, "And on

any of these occasions that you went to Lewiston in 1994 to

see your lawyer . . . did you possess crack cocaine?"

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At this point, defense counsel objected and a

sidebar conference was held. Anticipating that the question

would lead to further inquiry into the September 1994

Lewiston arrest (during which evidence was unlawfully

seized), counsel argued that the subject was "very

prejudicial" and, in any event, irrelevant to the charged

conspiracy. The district court disagreed, stating, "It's

certainly relevant to the question of conspiracy." The

prosecutor then voiced his intention to introduce the subject

of the September 1994 arrest. Defense counsel objected,

contending that the previously-suppressed evidence was of

little probative value and unduly prejudicial.

The district court ruled in favor of the

government, finding that, although the tainted evidence would

be inadmissible as part of the government's case in chief, it

was admissible to impeach Morla-Trinidad's testimony. The

court observed:

This defendant has taken the stand. He's
denied knowing Bubba Lagasse, he
certainly denied having any involvement
in the . . . crack cocaine conspiracy
during July to December [1994].
And so this is material and relevant
evidence to show that his testimony is
false. [T]he suppression issue [is] no
longer relevant. So far as the relevance
issue is concerned, this bears directly
on his testimony.

The court acknowledged that the evidence was prejudicial, but

found that it was not unfairly so.

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Subsequently, the following exchange took place

before the jury with Morla-Trinidad on the witness stand:

Q. [By the prosecutor] Mr. Trinidad,
when you visited Lewiston, Maine, in
1994, did you ever possess crack cocaine?
A. Never, sir.
Q. Never once?
A. Never.

The prosecutor then elicited Morla-Trinidad's acknowledgment

that he was stopped in September 1994, with another man, by

Lewiston police; Morla-Trinidad stated, however, that he did

not know the other man as "Bubba Lagasse." Morla-Trinidad

denied that the police found a plastic baggie in his pocket,

then stated that he did not know the baggie contained crack

cocaine. He did acknowledge that the police discovered some

$1,800 in his possession.

In its rebuttal case, the government called a

police officer to testify about the events surrounding the

September 1994 arrest, including the illegal seizure of cash

and drugs. The government also called a state chemist who

identified the seized drugs as crack cocaine. The drugs were

admitted into evidence.

The jury convicted Morla-Trinidad of the charged

conspiracy and the district court subsequently sentenced him

to 324 months' imprisonment. This appeal ensued.

III.
III.

Discussion
Discussion

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Morla-Trinidad contends that the impeachment of his

testimony by the cross-examination and subsequent testimony

concerning the tainted evidence obtained at the time of the

September 1994 arrest constituted prejudicial error because

his testimony on direct examination neither "opened the door"

to this topic nor reasonably suggested inquiry into it on

cross-examination. He argues that his testimony on direct

regarding his alleged drug activities concerned only Driggers

and Baez and did not fairly implicate the September 1994

arrest.

A. Standard of Review

Determining the scope of cross-examination is a

matter within the district court's discretion and will not be

disturbed absent abuse. United States v. Cassiere, 4 F.3d

1006, 1019-20 (1st Cir. 1993); see O'Connor v. Venore Trans.

Co., 353 F.2d 324, 326 (1st Cir. 1965) (extent to which a

court allows counsel to test witness's credibility on cross-

examination will not be disturbed absent "plain abuse of

discretion").

B. Use of Tainted Evidence to Impeach

It is well-settled that evidence obtained in

violation of the Fourth Amendment can be admitted for the

limited purpose of impeaching a testifying criminal

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defendant's credibility.2 Walder v. United States, 347 U.S.

62, 65 (1954) (rejecting notion that a criminal defendant

"can turn the illegal method by which evidence in the

Government's possession was obtained to his own advantage,

and provide himself with a shield against contradiction of

his untruths"). The so-called "impeachment exception" to the

exclusionary rule reflects a balance of values underlying

that rule. See James v. Illinois, 493 U.S. 307, 311-12

(1990) (acknowledging that the truth-seeking function of a

criminal trial is limited by the goal of discouraging lawless

searches and seizures). Thus, while defendants are "free to

testify truthfully on their own behalf . . . without opening

the door to impeachment," id. at 314, an "affirmative[]

resort to perjurious testimony" may be exposed by impeachment

with illegally obtained evidence, Walder, 347 U.S. at 65.3

When a defendant opens the door to impeachment

through his statements on direct, the government may try to

establish that his testimony is not to be believed through

cross-examination and the introduction of evidence, including

2. Tainted evidence illegally obtained from a defendant may
not, however, be used to impeach trial witnesses other than
the testifying defendant. James v. Illinois, 493 U.S. 307,

313 (1990).

3. This particular mode of impeachment falls within the
general category of "impeachment by contradiction," which is
not specifically treated in the Federal Rules of Evidence,
United States v. Cudlitz, 72 F.3d 992, 996 n.1 (1st Cir.

1996), but is governed by common-law principles, United

States v. Perez-Perez, 72 F.3d 224, 227 (1st Cir. 1995).

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tainted evidence, that contradicts the direct testimony.4

See Oregon v. Hass, 420 U.S. 714, 716-17, 721-22 (1975);

Harris v. New York, 401 U.S. 222, 223-225 (1971); Walder, 347

U.S. at 63, 65. When the assertedly false testimony is first

given on cross-examination, however, the trial judge must

gauge how closely the cross-examination is connected with

matters explored during direct before invoking the

impeachment exception to the exclusionary rule. See United

States v. Havens, 446 U.S. 620, 626 (1980).

In Havens, the Supreme Court held:

a defendant's statements made in response
to proper cross-examination reasonably
suggested by the defendant's direct
examination are subject to otherwise
proper impeachment, albeit by evidence
that has been illegally obtained and that
is inadmissible on the government's
direct case, or otherwise, as substantive
evidence of guilt.

4. Here, Morla-Trinidad's travel to Maine and his possession
of cocaine during that travel are "non-collateral" matters,
i.e., matters that are of consequence to this case. See

United States v. Andujar, 49 F.3d 16, 26 (1st Cir. 1995).

Typically, only non-collateral matters such as these may be
impeached (by contradiction) with extrinsic evidence. See

Perez-Perez, 72 F.3d at 227; United States v. Pisari, 636

F.2d 855, 859 (1st Cir. 1981). But see Charles A. Wright &

Victor J. Gold, Federal Practice and Procedure 6096 at 546-

49 (1990) (suggesting that extrinsic contradiction on a
collateral issue is permissible where a testifying criminal

defendant opens the door to that issue); see also United

States v. Havens, 446 U.S. 620, 624-25 (1980) (stating that

impeachment of a defendant with illegally obtained evidence
is constitutionally permitted for non-collateral as well as
collateral matters, but not discussing the effect of other
evidentiary limitations).

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Id. at 627-28. Thus, the government may not "smuggle[] in"

the impeaching opportunity with a cross-examination that has

"too tenuous a connection with any subject opened upon direct

examination." Id. at 625; see also United States v. Ruiz-

Batista, 956 F.2d 351, 352 n.1 (1st Cir.), cert. denied, 506

U.S. 834 (1992). Rather, the questions on cross must have

been "suggested to a reasonably competent cross-examiner" by

the defendant's direct testimony. Havens, 446 U.S. at 626.

Whether or not the defendant's direct testimony

"reasonably suggests" inquiry on cross-examination about

events involving tainted evidence is necessarily case

specific. See, e.g., Havens, 446 U.S. at 628 (defendant's

denial of involvement with the concealment of drugs

reasonably suggested cross-examination about specific

materials found for concealing the drugs); United States v.

Brandon, 847 F.2d 625, 628-29 (10th Cir.) (denial of bringing

of drugs into motel room triggered inquiry and introduction

of defendant's bag, found in room, bearing traces of

cocaine), cert. denied, 488 U.S. 973 (1988); United States v.

Grubbs, 776 F.2d 1281, 1286-87 (5th Cir. 1985) (assertion of

legitimacy of insurance services "opened door" to impeachment

with conversation implicating illegitimacy of business deal);

United States v. Palmer, 691 F.2d 921, 922 (9th Cir. 1982)

(assertion that cocaine was used for legitimate dental

purposes permitted impeachment with personal-use cocaine

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paraphernalia); see also United States v. LeAmous, 754 F.2d

795, 798 (8th Cir.) ("By painting a picture of himself, on

direct examination, as a protector of young girls who

encouraged alternatives to prostitution, the defendant

invited cross-examination concerning particular instances of

his conduct to the contrary during the relevant time frame.")

(reviewing case not involving tainted evidence), cert.

denied, 471 U.S. 1139 (1985).

Here, Morla-Trinidad testified on direct that he

had seen only two of the government's witnesses previously,

and, with regard to those two (Baez and Driggers), he

specifically denied any drug-related activity. He also

denied knowing his indicted codefendant, Peabody, or Bubba

Lagasse, the person with whom he was stopped during the

September 1994 arrest. Morla-Trinidad also stated on direct

that, during the period of the charged conspiracy, he spent

most of his time in Massachusetts and New York and traveled

to Maine only once to see his attorney. He maintained that

his only associate in Lewiston was a "woman friend."

Morla-Trinidad's testimony could be reasonably

construed as both a contradiction of the government

witnesses' testimony and a denial of any involvement in the

crack cocaine ring underlying the charged conspiracy. See

Havens, 446 U.S. at 628 (reasoning that defendant's testimony

"could easily be understood as a denial of any connection

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with [incriminating evidence] and as a contradiction of

[government witness's] testimony"). We think, and Morla-

Trinidad concedes as much, that the prosecutor reasonably

brought attention to Morla-Trinidad's direct testimony by

exploring, on cross-examination, when and how often he

traveled to Maine, with whom he met there, and for what

purposes.

Morla-Trinidad's direct testimony also clearly

implied a denial that he ever traveled to Lewiston carrying

crack cocaine for distribution. Thus, the disputed question

on cross-examination, "when you visited Lewiston, Maine, in

1994, did you ever possess crack cocaine?", was reasonably

suggested by that implied denial. His subsequent categorical

denial of the foregoing question subjected his testimony to

proper impeachment, including the probing questions on

further cross and the rebuttal testimony about the illegally

seized crack cocaine and cash. See United States v. Wood,

982 F.2d 1, 4 (1st Cir. 1992) (explaining that the trial

judge enjoys discretion in deciding whether to admit rebuttal

evidence).

Morla-Trinidad also suggests that the impeaching

evidence was unfairly prejudicial and that the district court

abused its considerable discretion under Fed. R. Evid. 403

when admitting it. See Espeaignnette v. Gene Tierney Co., 43

F.3d 1, 5 (1st. Cir. 1994) (noting court's "considerable

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latitude" in determining the relative weight of probative

value versus unfair effect). We disagree. The evidence was

of undoubted probative value to Morla-Trinidad's credibility

on issues material to the case. Moreover, the district court

alleviated the danger of unfair prejudice by (1) insuring

that information about the seized marijuana from the

September 1994 arrest would not be conveyed to the jury, and

(2) instructing the jury, on the government's suggestion,

that it was to use the disputed evidence only to consider

Morla-Trinidad's credibility, not as substantive proof of the

crime charged,5 see United States v. Tejada, 974 F.2d 210,

214 (1st Cir. 1992) (finding no abuse in trial judge's Rule

403 balancing, "particularly in light of the careful limiting

instruction given by the district court").

In sum, we conclude that the district court did not

abuse its discretion in permitting the government to impeach

Morla-Trinidad's testimony with questions about the September

1994 arrest and the tainted evidence obtained therefrom.

Thus, we do not reach Morla-Trinidad's additional arguments

that the evidence was also inadmissible under Fed. R. Evid.

404(b), and that the asserted error was not harmless.

5. In an apparent misreading of Havens, the government on

appeal asserts that this limiting instruction was unnecessary
and suggests that the evidence could have been used for
substantive purposes. The assertion is clearly wrong. See

Havens, 446 U.S. at 627-628; see also James v. Illinois, 493

U.S. at 313 n.3 (approving similar instruction).

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IV.
IV.

Conclusion
Conclusion

For the reasons stated above, we affirm the

judgment of the district court.

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