
USCA1 Opinion

	




                            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                                          2          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          ______   ____       ____                                          3          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.                                          4          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.                    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).                                          5
