                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-12-2003

USA v. Lopez
Precedential or Non-Precedential: Precedential

Docket No. 02-1111P




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                                    PRECEDENTIAL

                                             Filed August 11, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                             No. 02-1111


                 UNITED STATES OF AMERICA,
                                   v.
                          ALBERT LOPEZ,
                                                Appellant

      On Appeal from the United States District Court
           for the Middle District of Pennsylvania
        District Judge: Honorable William J. Nealon
                   D.C. No. 01-cr-00084-1

                       Argued April 11, 2003
       BEFORE: BARRY and ROSENN, Circuit Judges,
              and POLLAK,* District Judge

                     (Filed: August 11, 2003)

                           Daniel I. Siegel (Argued)
                           Office of the Federal Public Defender
                           100 Chestnut Street, Suite 306
                           Harrisburg, PA 17101
                           Counsel for Appellant




* Honorable Louis H. Pollak, District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
                             2


                      Matthew E. Haggerty, Esq.
                      Christian A. Fisanick, Esq. (Argued)
                      Office of United States Attorney
                      Federal Building, P.O. Box 309
                      Scranton, PA 18501
                      Theodore B. Smith, III, Esq.
                      Office of United States Attorney
                      228 Walnut Street, P.O. Box 11754
                      Harrisburg, PA 17108
                      Counsel for Appellee


                OPINION OF THE COURT

POLLAK, District Judge.
   Albert Lopez, a federal prisoner, was convicted of (1)
possession of heroin, in violation of 18 U.S.C. § 844(a), and
(2) possession of contraband by an inmate, in violation of
18 U.S.C. § 1791(a)(1). On appeal, Lopez challenges two
evidentiary rulings of the District Court, as well as the
District Court’s ruling that the government’s voir dire
peremptory challenge of a black jury panelist was not keyed
to the impermissible factor of race.
  Because we agree with appellant Lopez that the
statements of two government witnesses that they had
“received information” that Lopez possessed heroin
constituted inadmissible hearsay, and that the District
Court’s erroneous admission of those statements was not
harmless, we reverse and remand for a new trial.

                              I
  In 1991, Lopez began serving a 140-month sentence for
participating in a conspiracy to distribute cocaine. After
periods of confinement in federal penitentiaries in
Leavenworth, Kansas, and Lompoc, California, Lopez in
1997 was transferred to the Federal Correctional Institution
Schuylkill (FCI Schuylkill), in Minersville, Pennsylvania,
where the events leading to the criminal conviction now
under review took place.
                             3


   On June 7, 2000, prison officials received information
that inmate Lopez was in possession of heroin. Based on
that information, prison officials conducted a search of
Lopez’s cell, during which they recovered twenty small
packets of heroin from inside a sock, which was inside a
laundry bag located on the floor near Lopez’s bunk. A drug
screen submitted by Lopez later that day tested positive for
morphine, which is consistent with, though not conclusive
of, the use of heroin.
   Prison officials referred the matter to the FBI, and on
June 12, 2000, a federal agent arrived at FCI Schuylkill
and read Lopez his Miranda rights. Lopez declined to waive
his rights or to be interviewed. On March 13, 2001, a grand
jury returned a two-count indictment against Lopez,
alleging that he had possessed heroin in violation of 21
U.S.C. § 844(a), and that he had possessed contraband in
violation of 18 U.S.C. § 1791(a)(1).
  After a two-day trial that began on August 20, 2001, a
jury convicted Lopez on both counts. On November 30,
2001, the Court sentenced Lopez to 37 months
imprisonment, followed by two years of supervised release.

                             II
  Lopez presents three issues on appeal. The first concerns
the District Court’s ruling admitting, under Federal Rule of
Evidence 404(b), Lopez’s 1991 federal conviction for
conspiracy to distribute cocaine. We review a trial court’s
decision to admit evidence of a prior conviction for abuse of
discretion. See United States v. Saada, 212 F.3d 210, 220
(3d Cir. 2000). For the reasons stated below, we find that
the District Court did not abuse its discretion in admitting
evidence of Lopez’s 1991 conviction. The second issue
concerns the District Court’s ruling that the statements of
two prison officials that they had “received information”
that Lopez possessed heroin did not constitute inadmissible
hearsay. Whether the challenged third-party statements
were hearsay is a question of law subject to plenary review.
United States v. Sallins, 993 F.2d 344, 346 (3d Cir. 1993).
We conclude that those statements constituted hearsay and
that the District Court erred in admitting them. We further
                                  4


conclude that the District Court’s error was not harmless.
We therefore remand the case for a new trial. In light of our
resolution of the second issue, we find it unnecessary to
address the third issue—namely, whether the District Court
erred in deciding that the government’s peremptory strike
of a black jury panelist did not contravene the Supreme
Court’s constitutional directive, in Batson v. Kentucky, 476
U.S. 79 (1986), prohibiting the exercise of peremptory
challenges on the basis of race.

                                  A
   Prior to trial, Lopez filed a motion in limine urging that
his 1991 conviction for participating in a conspiracy to
distribute cocaine be excluded from evidence. Specifically,
Lopez contended that the conviction was irrelevant, that
any marginal relevance that it might possess was
outweighed by the potential for prejudice, and that it
constituted inadmissible character evidence under Rule
404(b). After defense counsel, Patrick Casey, raised the
issue at a conference immediately preceding trial, the
following exchange occurred:
     THE COURT: Why are you objecting to that?
     MR. CASEY:       That is, again, 404(b) evidence. If he
                      testifies, he will be open game for that
                      conviction, but the fact that he’s not . . .
     THE COURT: They’re not offering it to impeach. They
                are offering it to show general intent,
                knowledge, absence of act of mistake
                and opportunity to obtain.
     MR. CASEY:       Its simply prejudicial.
     THE COURT: A lot of relevance, I suppose, could be
                called prejudicial.
The Court then overruled Lopez’s motion to exclude the
evidence. Later in the conference, the Court “put on the
record that [it had] concluded that [the 1991 conviction,
along with other contested evidence,] is relevant and the
probative value of the issue of intent, knowledge, absence of
incident1 or mistake and opportunity to obtain.

1. We presume that the phrase, “absence of incident,” reflects a
mistranscription, and that the passage instead should read, “absence of
                                    5


Furthermore, I conclude that the probative value is not
substantially outweighed by prejudice to the Defendant.”
  The upshot of the Court’s ruling was that an FBI agent
was permitted to testify that, at the time the heroin was
discovered in his cell, Lopez was serving a sentence for
participating in a conspiracy to distribute cocaine.
   Rule 404(b) provides that “[e]vidence 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
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident
. . . .” Fed. R. Evid. 404(b). For evidence of past bad acts to
be admissible, “(1) the evidence must have a proper
purpose under Rule 404(b); (2) it must be relevant under
Rule 402; (3) its probative value must outweigh its potential
for unfair prejudicial effect under Rule 403; and (4) the
Court must charge the jury to consider the evidence only
for the limited purpose for which it is admitted.” United
States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002) (citing
Huddleston v. United States, 485 U.S. 681, 691-92 (1988)).
Resolution of the present case turns on the first prong of
this admissibility inquiry—whether Lopez’s prior conviction
had a proper purpose under Rule 404(b).2
   Lopez relies chiefly on this court’s decision in United
States v. Sampson, 980 F.2d 883 (3d Cir. 1992), the facts
of which are similar to those in the case at bar. At issue in
Sampson was the District Court’s decision permitting the
government to introduce evidence of the defendant’s prior
conviction for possession with intent to distribute cocaine,
for the purpose of proving that the defendant, who was in
state prison at the time, was guilty of possessing
marijuana. Prison officials had found several balloons filled

accident.” See Rule 404(b), which states that evidence of “other crimes,
wrongs, or acts” may be admissible to show, among other things,
“absence of mistake or accident.”
2. Lopez has not raised as an issue in this appeal the third prong of the
Vega test. Therefore, we do not consider whether the prejudicial effect of
the prior bad act evidence might have outweighed its probativeness.
                             6


with marijuana in the defendant’s coat pocket, and
although defendant admitted that he owned the coat, he
denied knowledge of the balloons. In finding the prior
conviction admissible, the District Court noted only that it
was “inclined to think that this is the kind of incident
which does fall within the purview of the exceptions listed
in 404(b).” Id. at 885.
   As the Sampson court observed, “[t]here is no question
that, given a proper purpose and reasoning, drug
convictions are admissible in a trial where the defendant is
charged with a drug offense.” Id. at 887. “[W]here the
evidence only goes to show character, or that the defendant
had a propensity to commit the crime, it must be excluded.
Where, however, the evidence also tends to prove some fact
besides character, admissibility depends upon whether its
probative value outweighs its prejudicial effect.” Id. For
prior offense evidence to be admissible, however, the
government “must clearly articulate how that evidence fits
into a chain of logical inferences, no link of which can be
the inference that because the defendant committed drug
offenses before, he therefore is more likely to have
committed this one.” Id. Further, “[t]he district court . . .
must in the first instance . . . articulate reasons why the
evidence also goes to show something other than character.
Unless the reason is apparent from the record, a mere list
of the purposes found in rule 404(b) is insufficient.” Id. at
888. Based on this standard, the Sampson court concluded
that because the District Court had neglected to construct
the requisite chain of inferences—instead merely noting
that the challenged evidence fell within the purview of the
404(b) exceptions—its admission of the prior conviction
amounted to an abuse of discretion.
  Although we agree with Lopez that the District Court in
the present case could have been more explicit in
articulating the chain of logical inferences warranting the
admission of Lopez’s prior conviction, that omission is not
dispositive of the admissibility question. “The prime inquiry
is whether the evidence is probative of a material issue
other than character.” United States v. Boone, 279 F.3d
163, 187 (3d Cir. 2002) (citing Huddleston, 485 U.S. at
687)).
                                    7


  We are satisfied that, viewed in the full context of the oral
argument on the defendant’s various Rule 404(b) motions
to exclude, the District Court’s reasons for admitting
Lopez’s prior conviction are sufficiently apparent to warrant
upholding its ruling. It is clear from the record that when,
in announcing its ruling, the Court recited a number of
permissible Rule 404(b) purposes—the “mere list” on which
Lopez bases his objection—it was endorsing the
government’s position that the challenged evidence was
admissible for the purpose of rebutting the defendant’s
anticipated claim of innocent association with, and lack of
knowledge of, the heroin found near his bunk. That
position had been elaborated, largely in reference to the
defendant’s motion to exclude another piece of proffered
evidence, in an extended exchange immediately preceding
the Court’s prior-conviction ruling.3 The propriety of this

3. The exchange centered on the defendant’s Rule 404 motion to exclude
the results of two urine tests—one taken 15 months before, and one
taken immediately after, the heroin was discovered in Lopez’s cell—
showing that Lopez had used morphine, a result consistent with, but not
conclusive of, the use of heroin. With respect to the first urine test, the
prosecutor, AUSA Matthew Haggerty, stated:
    [T]he Third Circuit said in United States versus Butch, [256 F.3d
    171 (3d Cir. 2001),] in cases of innocent association, which it’s the
    only defense that could be made, . . . [that evidence of past drug
    involvement is admissible.] There’s 180 cell mates on the cell floor.
    [Lopez] had a cell mate, he has others that he’s friends with. The
    fact that he’s found sleeping with a bag of heroin underneath his
    bed, the only defense I could see is innocent association. It’s not
    mine. It’s my cell mate’s, or it’s my friend’s or somebody that was in
    the cell, and I didn’t know this was here. We’re saying he’s going to
    say it’s not mine, and the Third Circuit says you can use prior
    convictions and prior bad acts to show that, to refute that argument
    of innocent association.
Shortly thereafter, the Court pointed out to Mr. Casey that, according to
Butch, “such evidence is permissible to show criminal intent and absence
of innocent association.” After Mr. Casey then attempted to persuade the
Court that the factual circumstances did not present an issue of
innocent association, the Court inquired of him: “Assuming possession
is established, wouldn’t it be relevant to show knowledge that it was
heroin, . . . isn’t evidence that he had used the heroin in the
confinement of prison some year or so earlier, evidence that he knew
what was in that bag that he possessed was heroin?”
                              8


position is illustrated by recent decisions of this court
upholding the admission of evidence of prior drug
involvement for the purpose of rebutting defense claims of
innocent association, and to prove criminal intent. See
United States v. Givan, 320 F.3d 452, 461 (3d Cir. 2003);
United States v. Vega, 285 F.3d 256, 261-62 & n.2 (3d Cir.
2002); United States v. Butch, 256 F.3d 171, 177 n.5 (3d
Cir. 2001); Boone, 279 F.3d at 187-88. In light of the
foregoing, we cannot say that the District Court abused its
discretion in admitting evidence of Lopez’s prior conviction.

                              B
  At trial, the government called as witnesses Officers
James Fosnot and Kenneth Gabrielson, the prison officials
who discovered the heroin during the search of Lopez’s cell.
The following exchange occurred during AUSA Matthew
Haggerty’s examination of Officer Fosnot:
    MR. HAGGERTY: Why did you search — why did you
                  search of the cell of Albert Lopez?
    THE WITNESS:       We received information —
    MR. CASEY:         Objection, hearsay.
    THE COURT:         Overruled.
    THE WITNESS:       We received information that Inmate
                       Lopez might be carrying drugs on his
                       person or in his cell.
Later, the following exchange occurred during              Mr.
Haggerty’s examination of Officer Gabrielson:
    MR. HAGGERTY: And on June 7th of 2000, did you
                  have reason to search the cell of
                  Albert Lopez?
    THE WITNESS:       Yes, sir.
    MR. HAGGERTY: And why did you do that?
    THE WITNESS:       I received information that —
    MR. CASEY:         Objection, hearsay.
    THE COURT:         Overruled. It’s just information.
                              9


    . . .
    THE WITNESS:       I received information that Albert
                       Lopez was in possession of heroin
                       and that he was keeping that heroin
                       on his person, and when I received
                       that   information,  I   took   the
                       information to the SIS Lieutenant,
                       which is Joseph Reed, and he
                       instructed myself —
    MR. CASEY:         Objection, hearsay.
    THE COURT:         Overruled. Were you instructed just
                       to search the cell?
    . . .
    THE WITNESS:       Yes, that’s what we continued to do.
Finally, Mr. Haggerty invoked the            above-excerpted
testimony during his closing argument:
      If I could for a minute, I would like to go over some
    of the evidence that is presented here, kind of from the
    beginning to the end, and kind of see what I think is
    important. The things that you heard from this witness
    stand, if you will recall, we called James Fosnot and
    Ken Gabrielson, two of the officers that had searched
    Albert Lopez’s cell on June 7th.
      They testified that they had information that Albert
    Lopez was in possession of heroin. It wasn’t a random
    search. They weren’t walking by and decided to go in.
    They had information that he had heroin in the cell. So
    what did they do? They . . . went to Albert Lopez’s cell
    on June 7th to search it for this heroin.
  Hearsay is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Fed. R.
Evid. 801(c). The question of “[w]hether evidence is hearsay
is a question of law subject to plenary review.” United
States v. Sallins, 993 F.2d 344, 346 (3d Cir. 1993).
  Our analysis is guided by our opinion in Sallins. The
defendant in Sallins, who previously had been adjudged
                              10


guilty of a felony, was convicted of possessing a firearm.
Under review was the District Court’s decision to admit,
over defense counsel’s objection, the arresting officer’s
testimony that when he encountered the defendant he was
searching for a person described in a police radio dispatch
as a “black male wearing all black clothing carrying a gun
on the 2500 block of North Franklin Street.” Id. at 345. At
issue was whether the prosecutor had offered this
testimony merely as “background information,” in order to
explain the officer’s presence at the site of the arrest, as the
government claimed, or rather to prove the truth of the
matter asserted—that is, that the defendant had possessed
a firearm. This court acknowledged in Sallins that “[s]everal
courts have admitted testimony by police officers or
government agents revealing information received out-of-
court for the limited purpose of establishing background for
the officers’ actions,” but observed that the use of such
statements for that purpose had been subject to
“widespread abuse.” Id. at 346. “If the hearsay rule is to
have any force,” we cautioned, “courts cannot accept
without scrutiny an offering party’s representation that an
out-of-court statement is being introduced for a material
non-hearsay purpose.” Id.
   In Sallins, this court conducted a searching evaluation of
the government’s purported need to introduce the third-
party suspect description, and concluded that the content,
if not the fact, of the radio dispatch was unnecessary either
to account for the presence of the arresting officers at the
scene of the arrest, or to explain why the officers had
pursued and arrested the defendant (one of the officers saw
the defendant throw what he thought may have been a gun
underneath a car). “Not only was the testimony regarding
the radio call inadmissible to show background,” we
observed, “it clearly was not offered for that purpose. The
absence of a tenable non-hearsay purpose for offering the
contents of the police radio call establishes that the
evidence could have been offered only for its truth value.”
Id. at 347.
   Finally, the government’s closing argument, in which the
prosecutor repeatedly asked rhetorically whether it could be
“just a coincidence” that the defendant matched the
                                    11


suspect description in the radio dispatch, “dispell[ed] any
conceivable doubt as to the true evidentiary purpose of the
disputed testimony.”4 Id. Because the details of the radio
call were thus “offered for their truth value,” the court
concluded, “the testimony was hearsay and should have
been excluded.” Id.
   In the instant case, as in Sallins, the absence of any
direct evidence that Lopez possessed the prohibited object—
that is, the heroin—informs our evaluation of the purported
purpose for which the government offered the challenged
statements. Lopez’s defense centered on his attempt to
develop reasonable doubt about whether the heroin
belonged to him. To that end, defense counsel sought at
trial to raise the possibility that the laundry bag in which
the heroin had been found belonged to Lopez’s cell mate, or
that the heroin had been placed in the bag by one of the
more than one hundred members of the defendant’s prison
unit who allegedly had access to Lopez’s cell. Lopez also
notes that defense counsel established at cross-
examination that government investigators “lost possession”
of the laundry bag during the course of the investigation,
thus further compromising the prosecution’s effort to
assign possession. Because the question of possession itself
was the principal issue in dispute, the prospect that the
out-of-court statements were used to prove the truth of the
matter demands close scrutiny.
   Further, there clearly were alternative means available to
the government to establish the factual context of the
officers’ search of Lopez’s cell. As the Sallins court

4. The prosecutor stated:
      [C]ould it be just a coincidence that the defendant is wearing dark
      clothing, that matches the description on the radio call? Could it be
      just a coincidence that the defendant is a black male? That also
      matches the description of the radio call. Could it be just a
      coincidence that the defendant is on the 2500 block of North
      Franklin Street? That’s the location that was put in on the radio
      call. . . . Was it just a coincidence that the defendant was there
      about a minute after the call was put in? . . . Could that just be a
      coincidence?
Id.
                             12


suggested, “testimony that [an officer] acted ‘upon
information received,’ or words to that effect, should be
sufficient.” Id. at 346 (quoting McCormick On Evidence
§ 249, at 104 (4th ed. 1992)). In the present case, the
government could have accounted for the search of Lopez’s
cell in similarly general terms.
   Finally, the government’s emphatic invocation of the
officers’ testimony during closing argument could only have
served to strengthen the jury’s perception that the officers’
“information that Albert Lopez was in possession of heroin”
was itself a datum in the construction of the government’s
substantive case. Specifically, the prosecutor reminded the
jury that Officers Fosnot and Gabrielson had “testified that
they had information that Albert Lopez was in possession of
heroin. It wasn’t a random search. They weren’t walking by
and decided to go in. They had information that he had
heroin in the cell.” We thus conclude that the challenged
statements constituted inadmissible hearsay, and that their
introduction at trial was improper.
   Having concluded that the District Court erred in
overruling defense counsel’s hearsay objection, we now
inquire whether that error nevertheless was harmless. “The
inquiry cannot be merely whether,” notwithstanding the
error, “there was enough to support the [conviction].”
Government of the Virgin Islands v. Toto, 529 F.2d 278, 283
(3d Cir. 1976) (quoting Kotteakos v. United States, 328 U.S.
750, 765 (1946)). Rather, “if one cannot say . . . that the
judgment was not substantially swayed by the error, it is
impossible to conclude that substantial rights were not
affected.” Id. See also Sallins, 993 F.2d at 348 (“An
evidentiary error is harmless only if it is highly probable
that the improperly admitted evidence did not contribute to
the jury’s judgment of conviction.”). In the case at bar, the
government did introduce substantial evidence apart from
the improperly admitted hearsay that Lopez possessed
heroin, foremost among which was the fact that Lopez
tested positive for morphine shortly after the heroin, which
is broken down into morphine in the body, was discovered
in his cell. The dispositive question, however, is not
whether, in the absence of the inadmissible hearsay
evidence, the jury nevertheless could have convicted Lopez.
                              13


Rather, the question is whether the improperly admitted
statements may have helped to “cement[ ] the government’s
case by adding an invisible, presumably disinterested
witness” to corroborate the government’s position. Sallins,
993 F.2d at 348. Notwithstanding the incriminating results
of Lopez’s urine test, there is no direct evidence that Lopez
possessed heroin on the day prison officials discovered it
near his bunk. For that reason, and in light of the defense’s
not implausible argument that the heroin could have been
placed there by any of the more than one hundred inmates
who had relatively unrestricted access to Lopez’s cell, we
are not confident that the improperly admitted hearsay
statements did not help to “cement” the jury’s judgment of
conviction. We therefore conclude that the District Court’s
error was not harmless. Accordingly, we reverse appellant’s
conviction and remand for a new trial.
  Finally, costs should not be taxed against the United
States in this criminal appeal.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
