

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 93-2346

                          UNITED STATES,

                            Appellee,

                                v.

                   ESPERANZA AGUILAR-ARANCETA,

                      Defendant - Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                                                  

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                  Bownes, Senior Circuit Judge,                                                        

                    and Stahl, Circuit Judge.                                                      

                                           

     Rachel Brill, by Appointment of the Court, for appellant.                           
     Esther  Castro-Schmidt,  Assistant  United States  Attorney,                                     
with  whom Guillermo  Gil, United  States Attorney,  and  Jos  A.                                                                           
Quiles-Espinosa,  Senior Litigation  Counsel,  were on  brief for                         
appellee.

                                           

                          July 13, 1995
                                           

          TORRUELLA,  Chief  Judge.   Esperanza  Aguilar-Aranceta                    TORRUELLA,  Chief  Judge.                                            

("Aguilar-Aranceta") was convicted for possession of cocaine with

intent to distribute, in violation of 21 U.S.C.   841(a)(1).  She

now appeals.  For the following reasons, we reverse.

                      I.  STATEMENT OF FACTS                                I.  STATEMENT OF FACTS

          On September 22, 1990, Aguilar-Aranceta went to pick up

two  parcels at  the United States  Post Office in  Old San Juan,

Puerto Rico.   Two yellow  slips had  been left in  her mail  box

prior to that date  notifying her that there were  two registered

parcels  addressed to  her  at the  post  office.1     Addressing

Aguilar-Aranceta in English, the window  clerk at the post office

counter  asked for identification to verify  the signature on the

two  slips.  Aguilar-Aranceta responded by immediately retrieving

a  Puerto Rican driver's license from her purse.  After verifying

the signatures,  the window clerk  brought her two  packages with

return  addresses from  Medell n, Colombia.   Both  packages were

addressed  to Esperanza  Aguilar, P.O.  Box 5739.   Box  5739 was

rented to  Aguilar-Aranceta.   Aguilar-Aranceta  pointed  at  the

return addresses on the packages and stated "no me (sic) family,"

to  which the  attendant replied  that it  was up  to her  if she

wanted to take  them or not.  The window  clerk left the packages

on the counter  and once again  the defendant  said "no me  (sic)

family," and once again the  clerk replied that it was up  to her

if she wanted  to take them or not.   Defendant then proceeded to
                                                  

1   These yellow  slips were  the second set  of slips  placed in
defendant's mail box.  The first set of slips were recovered from
defendant's purse after her arrest.

                               -2-

take the two packages.  Immediately upon exiting the lobby of the

Post  Office defendant was detained and placed under arrest.  The

two  packages she  was carrying  had been  intercepted by  a mail

specialist earlier  and found to contain  approximately 224 grams

of cocaine.  Aguilar-Aranceta never opened the packages.

          On September  26, 1990,  a federal  grand  jury in  San

Juan,  Puerto  Rico,  returned  a two  count  indictment  against

defendant, charging her with unlawful possession of approximately

224  grams of cocaine with the intent to distribute, in violation

of 21 U.S.C.   841(a)(1) (count one); and with importation of the

same cocaine  to the  United States  from Medell n,  Colombia, in

violation of  21 U.S.C.    952(a) (count two).   Aguilar-Aranceta

entered pleas of not guilty as to both counts.  The jury returned

a  verdict of not  guilty as  to the  importation count,  but was

unable  to reach  a unanimous  verdict as  to the  count alleging

possession  with  intent  to  distribute.    The  district  court

declared  a mistrial as to count one and subsequently granted the

government's request for a new trial.2

          After  a  second  jury  trial in  June  1993,  Aguilar-

Aranceta was convicted for possession  of cocaine with the intent

to distribute.  Aguilar-Aranceta now appeals.

                                                  

2   On March 18, 1991, defendant  filed a motion to dismiss count
one on the grounds  that a second prosecution would  constitute a
violation of  her fifth amendment  right not  to be twice  put in
jeopardy  for the same conduct.   The district  court denied this
motion, a ruling  we affirmed on  appeal.  See  United States  v.                                                                       
Aguilar-Aranceta,  957 F.2d 18  (1st Cir.), cert.  denied, 113 S.                                                                   
Ct. 105 (1992).  

                               -3-

                         II.  DISCUSSION                                   II.  DISCUSSION

          To  convict   Aguilar-Aranceta   under  21   U.S.C.    

841(a)(1),  the   government  was  required  to   show  beyond  a

reasonable  doubt  that  she  knowingly  possessed  a  controlled

substance with  the  intent to  distribute.3   United  States  v.                                                                       

Bergodere, 40 F.3d 512, 518 (1st Cir. 1994), cert. denied, 115 S.                                                                   

Ct. 1439  (1995).   The government presented  evidence concerning

Aguilar-Aranceta's  prior conviction  for possession  of cocaine.

The  district court  admitted this  evidence as  relevant to  the

issue of  whether Aguilar-Aranceta  was in knowing  possession of                                                            

cocaine when  she was arrested at the Old San Juan Post Office in

1990.  Aguilar-Aranceta contends  that all evidence pertaining to

her prior conviction  serves no other purpose than to demonstrate

a propensity for criminal activity and should therefore have been

excluded under Federal Rule of Evidence 404(b).

          A.   Admissibility of Prior Bad Acts                    A.   Admissibility of Prior Bad Acts                                                        

          This circuit is no stranger to the problems surrounding

the admissibility  of extrinsic act evidence  under Rule 404(b).4
                                                  

3  21 U.S.C.   841(a)(1) provides, in pertinent part:

            [I]t  shall  be unlawful  for  any person
            knowingly  or intentionally  .  . .  [to]
            possess   with  intent   to  manufacture,
            distribute,  or  dispense,  a  controlled
            substance.

4  Federal Rule of Evidence 404(b) provides, in relevant part:

            Evidence of other crimes, wrongs, or acts
            is  not admissible to prove the character
            of a  person in  order to show  action in
            conformity therewith. It may, however, be
            admissible  for  other purposes,  such as

                               -4-

See, e.g., United States v. Guyon, 27 F.3d 723, 728-29 (1st  Cir.                                           

1994);  United States v. Fields,  871 F.2d 188,  195-99 (1st Cir.                                         

1989); United States v. Mateos S nchez, 864 F.2d 232, 234-38 (1st                                                

Cir. 1988); United  States v.  Oppon, 863 F.2d  141, 144-48  (1st                                              

Cir. 1988).   We have  adopted a  two-part test to  determine the

admissibility of such evidence.  Oppon, 863 F.2d at  146.  First,                                                

the trial judge must  determine whether the evidence  in question

is offered  for any purpose other  than solely to prove  that the

defendant  had a  propensity  to commit  the  crime in  question.

United States v.  Garc a, 983  F.2d 1160, 1172  (1st Cir.  1992);                                  

United States v. Moccia, 681  F.2d 61, 63 (1st Cir. 1982).   That                                 

is, the  judge  must  determine  whether the  evidence  has  some

"special" probative  value.  United States  v. Arias-Montoya, 967                                                                      

F.2d 708,  709 (1st Cir. 1992).  Prior bad acts may be "specially

relevant" if  they are probative of  motive, opportunity, intent,

preparation, plan, knowledge, identity,  or absence of mistake or

accident.   See, e.g., Guyon, 27 F.3d at 728; Garc a, 983 F.2d at                                                              

1172.

          If the  judge is satisfied that  the proffered evidence

has "special relevance," the  focus shifts to the second  part of

the  test,  which  applies  Rule  403  to  determine whether  the

probative value  of the evidence is  "substantially outweighed by

                                                  

            proof  of  motive,  opportunity,  intent,
            preparation,  plan, knowledge,  identity,
            or absence of mistake or accident . . . .

                               -5-

the danger of  unfair prejudice."5  Fed. R.  Evid. 403; Guyon, 27                                                                       

F.3d at 728-29; Garc a, 983  F.2d at 1172.  On appeal,  we review                                

the Rule 404(b) determination for abuse of discretion.  Guyon, 27                                                                       

F.3d at 728-29; United States v. Cassiere, 4 F.3d 1006, 1022 (1st                                                   

Cir. 1993); see also Garc a, 983 F.2d at 1172.                                     

          B.   Special relevance under Rule 404(b)                    B.   Special relevance under Rule 404(b)                                                            

          Applying  these principles  to  the facts  at hand,  we

first  must  determine  whether  the district  court  abused  its

discretion in finding that Aguilar-Aranceta's 1986 conviction for

misdemeanor possession  of cocaine was specially  relevant to the

issue  of  knowledge  in the  present  case.    Although the  law

regarding  prior  bad  acts  as  evidence  of  knowledge is  well

settled, it is complex and merits some discussion.

          In   prosecutions   for  "possession"   offenses,6  the

central  issue is  often  whether the  defendant  was in  knowing                                                                           

possession.  The  knowledge element  is difficult  to prove,  and

defendants  commonly  claim   that  they  were  merely   innocent

bystanders  or unwitting  participants.   Where  the evidence  is
                                                  

5  Fed. R. Evid. 403 states:

            Although   relevant,   evidence  may   be
            excluded  if  its   probative  value   is
            substantially outweighed by the danger of
            unfair   prejudice,   confusion  of   the
            issues,  or misleading  the  jury, or  by
            considerations of undue  delay, waste  of
            time,   or   needless   presentation   of
            cumulative evidence.

6    Possession  offenses  include,  inter  alia,  possession  of                                                          
narcotics, possession  of stolen merchandise,  and possession  of
firearms.

                               -6-

susceptible  to   the  explanation  that  the   acts  alleged  to

constitute the  crime were  innocently performed and  the crucial

issues  of intent and knowledge are keenly disputed, we have held

that it is within the judge's discretion to permit the government

to introduce  evidence of  prior similar offenses  to demonstrate

the unlikeliness  that the defendant  was merely an  innocent and

unknowing bystander.  For  example, in United States  v. Spinosa,                                                                          

982  F.2d 620 (1st Cir.  1992), we held  that evidence concerning

the  defendant's history  of cocaine  possession and  dealing was

probative of  his knowledge and intent to  participate in cocaine

transaction charged because it directly contradicted  his defense

that he was involved only by accident or mistake.  

          The justification often advanced for admitting evidence

of other crimes to prove knowledge is that no inference as to the

defendant's character  is required.  See United States v. Ferrer-                                                                           

Cruz,  899 F.2d 135, 138 (1st Cir.  1990); see also 22 Charles A.                                                             

Wright  &amp; Kenneth A. Graham, Jr., Federal Practice and Procedure,                                                                          

  5245 (1978).  Rather, the probative value emanates from the law

of probabilities.  We consider the following example illustrative

of the permissible inferential chain:

            The  fact  that   an  illegal  alien  was
            previously  found  stowed away  under the
            hood  of defendant's  car does  not prove
            that a  second alien found  there did not
            creep in  undetected  while the  car  was
            parked.  However,  it does seem  unlikely
            that  the  same  person  could  be  twice
            victimized in  this fashion, particularly
            when   a   reasonable   person  who   had
            previously  gotten  into trouble  in this
            way would probably take care to see  that

                               -7-

            he  had only  an  engine  under the  hood
            before heading for the border.

22 Wright  &amp; Graham, supra,    5245.  Along these  lines, we also                                    

have explained that jurors might permissibly hypothecate that the

defendant's  repetitive   involvement  in  criminal   conduct  is

unlikely to have left her oblivious to  the true character of the

acts  in question.    See, e.g.,  Ferrer-Cruz,  899 F.2d  at  138                                                       

(noting that "[s]ince one who has previous experience  with drugs

is more  likely  to see  'car  switching' as  part of  drug  sale

technique  than  one  who has  no  such  experience,  . .  .  the

inferences at  issue do not involve character"); United States v.                                                                        

Simon,  842 F.2d 552 (1st Cir. 1988); United States v. Estabrook,                                                                          

774 F.2d 284, 288 (8th Cir. 1985).

          "There  is,  however,   a  danger  that  the   supposed

inferences  to  knowledge  will  be  obscured  by  the  forbidden

inference  to  propensity, particularly  in  cases  in which  the

theory  of knowledge is the probability  that the defendant would

have obtained  knowledge in the course  of repetitive involvement

in criminal  conduct."  Wright &amp;  Graham, supra,   5245.   It is,                                                         

therefore,   important    to   explain   what    inferences   are

impermissible.  It is impermissible to suggest that a defendant's

prior conviction for possession of cocaine somehow makes her more                                                                           

likely to  have acted in a  similar manner in the  context of the                

present  possession charges.    Similarly, a  prosecutor may  not

argue that  the defendant's prior  conviction for a  drug offense

demonstrates her propensity for involvement in drug trafficking.

                               -8-

          Moving  to   the  present   case,  we  note   that  the

circumstances surrounding Aguilar-Aranceta's 1986  conviction are

similar to  those of the  present charges in  several significant

aspects.   We have held that similarity between the prior act and

the current charges is often the predominant factor or touchstone

in the  test for special  relevance as to  defendant's knowledge.

See  United   States  v.   Arias-Montoya,  967  F.2d   at  712-13                                                  

(summarizing  circumstances  which   would  constitute   "special

relevance," including  that prior  bad acts (1)  closely mirrored

the newly  charged crime, (2) were  part of a common  scheme or a

course of continuous dealing, or (3) provided the context for the

newly charged  crime); see also  United States  v. Hadfield,  918                                                                     

F.2d 987, 994  (1st Cir. 1990)  (upholding admission of  evidence

concerning  prior drug  involvement  in a  drug trafficking  case

because the  past actions  were "proximate  in  time and  closely

allied  with the type of  crimes for which  appellants were being

tried"), cert. denied,  500 U.S.  936 (1991).   Here, both  cases                               

involved  packages containing  cocaine that  had been  shipped to

Aguilar-Aranceta's  post  office box  at  the Old  San  Juan Post

Office.    In both  instances,  the  packages were  addressed  to

Aguilar-Aranceta with return addresses  indicating that they  had

been  sent from Medell n, Colombia.  The cases differ with regard

to  the  circumstances  of  arrest.    In 1986,  the  authorities

followed Aguilar-Aranceta from the  Old San Juan Post Office  and

arrested  her at her home.  In the present case, Aguilar-Aranceta

was arrested before she  left the Post Office Building.   In both

                               -9-

cases Aguilar-Aranceta had not opened the packages at the time of

her arrest.   In the 1986 case, the unopened packages had been in

her possession for several hours.

          With regard to whether  the prior conviction clears the

special  relevance  hurdle,  it   is  a  close  call.     We  are

particularly  concerned  with the  four-year  period between  her

prior  conviction and the facts leading to the present charges as

well  as the  fact  that  the  packages  were  unopened  in  both

instances.   Nevertheless, we do not find that the district court

abused its  discretion in concluding that the  1986 conviction is

so similar that it is  relevant to the issue of knowledge  in the

present case.  A  jury could have permissibly made  the following

inferential analysis: many people  in the general population have

little  or no knowledge of how narcotics traffickers use the mail

system  to ply their trade, and for this reason might unwittingly

accept  two packages sent to  them from an  unfamiliar address in

Medell n,  Colombia.    Aguilar-Aranceta's  prior  conviction for

possession  of cocaine that had been mailed to her from Medell n,

Colombia suggests that she cannot plausibly make this claim.  See                                                                           

United  States  v.  Nickens,  955 F.2d  112,  124-25  (1st  Cir.)                                     

(holding that  where defendant claimed  to have been  an innocent

dupe  with  regard to  cocaine found  in  his luggage,  his prior

narcotics conviction was relevant to issue of knowledge because a

jury  might permissibly  infer  that someone  who has  experience

selling  cocaine  is  more  likely  to know  how  drug  smugglers

operate),  cert. denied, 113 S.  Ct. 108 (1992).   Of course, her                                 

                               -10-

prior  conviction  does  not  conclusively  prove  that  Aguilar-

Aranceta   knew   that   the   packages   contained   contraband.

Nevertheless,  we  think that  the  jury  permissibly could  have

inferred that  someone  with a  previous  mail-related  narcotics

conviction would be reluctant to again accept mysterious packages

from Colombia, and that  Aguilar-Aranceta's failure to reject the

packages given her prior  experiences bears on the  crucial issue

of knowledge.  We think that  these inferences might be even more

plausible  given that  Aguilar-Aranceta  claims to  have been  an

unwitting pawn  in the  events that  led to  her  guilty plea  in

1986.7   Accordingly,  we find  that the  district court  did not

abuse  its discretion  in  finding that  Aguilar-Aranceta's prior

conviction was specially relevant to the issue of knowledge.

          C.   Rule 403 balancing                    C.   Rule 403 balancing                                           

          We  now  consider  whether the  district  court  should

nevertheless  have  excluded the  evidence under  Rule 403.   The

tenets of Rule 403 balancing are familiar and often  quoted:  "If

the evidence brings unwanted baggage,  say, unfair prejudice or a

                                                  

7   Aguilar-Aranceta  testified regarding the  events surrounding
her   1986  conviction.     She   testified  that   Jos   Perales
("Perales"),  a man she had  met while studying,  asked to borrow
her post office box so he  could receive some greeting cards from
Colombia.  She testified that when the authorities arrived at her
home, she gave them  the packages, which were unopened,  and told
them about Perales.   The authorities waited  for a few hours  to
see if Perales would arrive,  and when he did not,  they arrested
her.

   She testified that she  subsequently pled guilty to possession
of cocaine even though the packages were not hers because she was
in  an advanced state of pregnancy and wanted to avoid jail time.
She was sentenced to two years probation.  

                               -11-

cognizable  risk  of confusing  the  jury, and  if  the baggage's

weight substantially  overbalances any probative value,  then the

evidence must be excluded."   United States v. Rodr guez-Estrada,                                                                          

877 F.2d 153, 155 (1st Cir. 1989).  We note, however, that, "[b]y

design,  all  evidence is  meant to  be  prejudicial; it  is only

unfair prejudice which must be avoided."  Id. at  156.  Moreover,                                                       

"[t]he phrasing of Rule 403 makes it clear that the discretion to

exclude  does not arise  where the balance  between the probative

worth and the countervailing factors  is debatable; there must be

a significant tipping of the scales against the evidentiary worth

of the proffered  evidence."  Wright &amp;  Graham, supra,   5221  at                                                               

309-10.   Accordingly, we review  only for  abuse of  discretion.

United States v. Desmarais, 938 F.2d 347, 351 (1st Cir. 1991).                                    

          Aguilar-Aranceta argues that  the legitimate  probative

value of her prior conviction, if any, is completely overshadowed

by  the  danger of  unfair  prejudice.    We  agree.   The  prior

conviction  is probative  on the  issue of  knowledge only  in an

attenuated manner, dependent on the following "once burned, twice

shy"  chain  of  inferences:   (1)  someone  who  has a  previous

conviction  stemming from  the receipt of  cocaine-laden packages

would likely  be reluctant  to innocently and  unwittingly accept

mysterious packages from Colombia; and (2) the fact that Aguilar-

Aranceta  did  in  fact  accept the  packages  despite  her prior

conviction  suggests that she knew their contents.  While in some

circumstances this inferential chain might be strongly probative,

the  circumstances here render it  of limited value.    First, we

                               -12-

note  the remoteness  in time  of her  prior conviction.   Common

sense  dictates  that the  time  span  between the  events  bears

directly  on the probative weight of  the prior conviction vis-a-

vis  the government's  "once burned,  twice shy"  argument.   Cf.                                                                           

United States v. Lynn, 856 F.2d  430 (1st Cir. 1988) (noting that                               

six year  period between  the prior  conviction  and the  instant

offense significantly diminishes the probative value of the prior

conviction).   Second, we  note that  Aguilar-Aranceta apparently

spoke little or no English.  She testified that she was expecting

a  letter from  her sister  and became  confused when  the window

clerk produced  packages with  unfamiliar return addresses.   She

testified  further  that  she  eventually  accepted  the packages

because the window  clerk kept insisting  that the packages  were

hers  even  though  she  repeatedly  tried  to explain  that  the

packages were  not from  her family.    Third, we  note that  the

window clerk was aware that Aguilar-Aranceta would be arrested if

she took the  packages, which  suggests that he  might have  been

especially zealous in encouraging  her to take the packages.   We

think these circumstances limit the probative value of the  prior

conviction evidence.

          Against the  marginal relevance of the prior conviction

evidence, we  weigh the  danger that  it unfairly prejudiced  the

jury.   Here,  we  cannot escape  the  conclusion that  the  most

powerful  inference that  the jury  was likely  to make  from the

prior conviction is also the forbidden one:  that because she was

previously  convicted under  nearly identical  circumstances, she

                               -13-

must be  guilty here.    The specter  of impermissible  character

evidence  is  likely  to   have  significantly  overshadowed  any

legitimate probative value.  We find this especially likely given

that  there  was  virtually  no other  evidence  suggesting  that

Aguilar-Aranceta was  in knowing possession of  cocaine.  Leaving                                          

aside  her previous  conviction, the  evidence pertaining  to the

defendant's state of mind  was equivocal.  The  government points

out that  although  Aguilar-Aranceta was  poor  and was  able  to

receive mail at her  home, she kept a post office  box at the Old

San  Juan  Post  Office.     Nevertheless,  Aguilar-Aranceta  was

apparently in no hurry to  get the packages.  In fact,  nine days

passed between the time the first set of claim slips were  placed

in Aguilar-Aranceta's box and the time that Aguilar-Aranceta went

to pick up the packages.  Similarly, her  behavior at the counter

was of uncertain significance.  The window clerk could only state

that  since  she  did  not  expressly  refuse  the  packages,  he

continued to  leave  them  on  the  counter.    The  government's

argument  that  Aguilar-Aranceta's  demonstrated  reluctance  was

merely  a smokescreen to conceal her knowledge of the contents of

the packages is dubious, especially in light of the fact that the

window  clerk could  have taken  back the  packages at  any time.

Perhaps because  the government's evidence was  weak with respect

to  the  current charges  (particularly  so  because it  arrested

Aguilar-Aranceta before she had  a chance to open the  packages),

it focused the jury's attention on her prior  conviction.  In any

case,  we  think that  the  amount  of  evidence introduced  with

                               -14-

respect  to  her  prior  conviction  dramatically  increased  the

likelihood that the jury  convicted Aguilar-Aranceta on the basis

of the 1986 conviction alone rather than on  a fair assessment of

the evidence.

          The  gravity  of  the  unfair prejudice  is  even  more

apparent  when one  considers that  the prior conviction  was not

merely one part of the government's attempt to establish Aguilar-

Aranceta's state of mind.   It was the entire case.   The offense

of possession with intent to distribute cannot be "established by

proof merely  that a  package  containing drugs  was mailed  from

outside this country and was received and opened by the addressee

of the package  inside this country.  The  threat this would pose

to  innocent  victims  of  mere  mistake  or  actual  set-ups  is

obvious."  United States v. Samad, 754 F.2d  1091, 1096 (4th Cir.                                           

1985).  This logic applies with equal or greater force to someone

with  a  previous  conviction  for  narcotics  trafficking.    In

essence,  admitting  Aguilar-Aranceta's prior  conviction allowed

the jury  to convict her upon  facts that would  likely have been

insufficient to convict a  similarly situated defendant without a

prior conviction.   In sum,  we think that  evidence of  Aguilar-

Aranceta's prior conviction should have been excluded because its

marginal probative value, coupled with the scarcity and equivocal

nature of  the other evidence relating  to the Aguilar-Aranceta's

state of mind, created  an unacceptable risk that the  jury would

assume  that  Aguilar-Aranceta  had  a  propensity for  narcotics

trafficking and convict on that basis alone.

                               -15-

          D.   Harmless error                    D.   Harmless error                                       

          A  non-constitutional  evidentiary  error   under  Rule

404(b)  will be  treated  as  harmless  only  if  it  is  "highly

probable"  that  the error  did  not contribute  to  the verdict.

Arias-Montoya, 967 F.2d at 714  (citing United States v.  Garc a-                                                                           

Rosa, 876 F.2d 209, 222 (1st  Cir. 1989)).  Given the scarcity of              

other evidence pertaining to Aguilar-Aranceta's state of mind, we

think it is highly probable that the evidentiary error did affect

the  verdict.   Accordingly, we  find that  the district  court's

error was not harmless.8

          Reversed.                            

                                                  

8   Because we reverse on  the 404(b) error, we  decline to reach
the other issues raised by Aguilar-Aranceta.

                               -16-
