
USCA1 Opinion

	




          March 29, 1994                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1663                                    UNITED STATES,                                      Appellee,                                          v.                                   JAIME CORRALES,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Lenore Glaser for appellant.            _____________            R. Bradford  Bailey, Assistant United  States Attorney, with  whom            ___________________        A. John Pappalardo, United States Attorney, was on brief for appellee.        __________________                                 ____________________                                 ____________________                      Per  curiam.     After  a   five-day  jury   trial,                      ___________            defendant-appellant   Jaime   Corrales   was   convicted   of            conspiracy to  possess cocaine  with intent to  distribute in            violation  of 21 U.S.C.   846, and possession of cocaine with            intent   to  distribute   in   violation  of   21  U.S.C.                841(a)(1)(2).  On appeal,  defendant argues that the district            court erroneously limited the  scope of his cross-examination            of  the government's  confidential informant  and asks  us to            vacate his conviction.  We affirm.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      Before beginning  work as a  confidential informant            with  the  federal Drug  Enforcement  Administration ("DEA"),            Jaime Echevarria was arrested on  two separate occasions:  in            1990 for drug  trafficking and in  1991 as part of  a federal            drug  conspiracy  sting.   Both  times,  the charges  against            Echevarria were  dismissed.  In particular,  the 1991 charges            were  dismissed after  a finding  of no  probable cause  by a            United   States  Magistrate   Judge.1     Echevarria's  wife,            Beatrice Lopez, was  also arrested  in the 1991  sting.   Her            indictment was  not dismissed, however, and  she subsequently            pleaded guilty  to a  charge  of conspiracy  to possess  with            intent to distribute cocaine.                                               ____________________            1.  The record  before us provides no  further elaboration on            the grounds for dismissal.                                         -2-                                          2                      Some  days after  Echevarria's  1991  charges  were            dismissed, he was approached by DEA agents offering financial            compensation  and  a  promise  to  consider  reducing Lopez's            sentence in exchange for  Echevarria's work as a confidential            informant.   Echevarria  agreed.   In  his first  assignment,            Echevarria posed  as a  drug buyer in  Lowell, Massachusetts,            where  he negotiated  to buy  ten kilograms  of  cocaine from            defendant  and  two  others.   As  a  result  of Echevarria's            cooperation, defendant was arrested and brought to trial.                      Echevarria was the  government's principal  witness            at  trial.     Prior  to  defendant's   cross-examination  of            Echevarria,  the government,  in accordance  with  the Jencks                                                                   ______            Act2,  provided  defendant  with a  summary  of  Echevarria's            ___            criminal  history and  all inducements.   At  this time,  the            government  also  sought,  through  a motion  in  limine,  to                                                          __  ______            prevent defendant  from  asking Echevarria  about  his  prior            unprosecuted  arrests.  Before  the trial court  ruled on the            motion,  defendant's attorney  stated to  the court  that she            would not  ask Echevarria about unprosecuted arrests provided            that the government's  decision not to prosecute was  not the            product  of an  agreement to  cooperate.   At this  time, the            government reiterated the information contained in the Jencks                                                                   ______            Act  materials  by  assuring  both defense  counsel  and  the            ___                                            ____________________            2.  See  18 U.S.C.   3500  et seq.; Jencks  v. United States,                ___                             ______     _____________            353 U.S. 657 (1957).                                         -3-                                          3            district court that the dismissal of the 1991 charges against            Echevarria resulted  from a  lack of probable  cause and  not                                                                      ___            from any such agreement.                        Nonetheless,  before  cross-examining   Echevarria,            Corrales  requested (and  was  granted) a  voir  dire of  the            witness.   In  response  to  counsel's questions,  Echevarria            emphatically denied any collusion  between the government and            himself  regarding  the 1991  dismissal.   Echevarria further            stated  that  he  had  not  been  approached  by  DEA  agents            concerning  his possible  cooperation  until days  after  the            charges  were dropped.  At  the conclusion of  the voir dire,            the government again declared that  the dismissal of the 1991            charges  against Echevarria  resulted  from a  finding of  no            probable cause by a Magistrate Judge.                      Following  voir  dire,  defendant's counsel  cross-            examined  Echevarria about the  circumstances leading  to his            wife's  indictment.    After  denying  knowledge  of specific            events,  Echevarria explained  that he  was not aware  of his            wife's  actions because  he  was "innocent  of [her  crime]."            Counsel  then  attempted  to  impeach  this  proclamation  of            innocence  by  questioning  Echevarria in  detail  about  the            substance of a  phone call  between Lopez and  her cousin  --            evidence  which   apparently   served  as   the   basis   for            Echevarria's wife's indictment.  The government objected  and            the following bench conference ensued:                                         -4-                                          4                      [Defense Counsel]:  I think I am entitled                      to  ask him  about his  activities around                      drugs   and   his  information   and  his                      knowledge, and it is  an exception to the                      conviction; because, your Honor, I am not                      introducing it  for  the purpose  of  bad                      character, which is why  only convictions                      are allowed.                      Court:  You are trying to establish --                      [Defense Counsel]:  He     himself    was                      involved.                      Court:    If  you  can establish  he  was                      involved, that is something else again.                                        [Defense  Counsel]:    I  believe   I  am                      entitled  to  that, because,  although he                      was not convicted of  a drug crime, it is                      not being offered for purposes of proving                      his  bad character,  which  is  what  the                      hearsay rule is for.                      Court:  What is the relevance then?                      [Defense  Counsel]:  The  relevance is it                      shows a motive for him.                      Court:  His motive  may be to protect his                      wife.  You can establish that, but on the                      record he has already been dismissed from                      any  accusation, and that  controls.  You                      don't  have a good-faith basis for trying                      to ask  the question  so  he will  scream                      out,  "I  recall.    I made  a  mistake."                      There is no good-faith basis for that.                      You  are entitled, I  think, to establish                      the severity of  the offense against  the                      wife  and  his   interest  in  trying  to                      cooperate.  That is legitimate.            Without  further  discussion,  defense  counsel  resumed  her            cross-examination of  Echevarria.   She neither  attempted to            present  to the court  any evidence suggesting  that the 1991            dismissal was tied to an agreement between Echevarria and the                                         -5-                                          5            government, nor did she attempt to suggest that she possessed            evidence to  show that  Echevarria had been  involved in  the            1991 conspiracy.  Instead, counsel concentrated on  eliciting            the exact terms of Echevarria's agreement with the government            and wholly  abandoned any  attempt to  ask about  his alleged            involvement  in his  wife's  crime.   In response  to defense            counsel's questions, Echevarria acknowledged that he had been            paid  $10,800 in  cash for  his cooperation  in the  case and            further admitted that he hoped his cooperation would inure to            the benefit  of his wife  who had been  convicted of a  drug-            related crime and was awaiting sentencing.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      Defendant contends that the district court violated            his  Sixth  Amendment  right  to  confrontation  by  limiting            defense  counsel's cross-examination  of  Echevarria.    More            specifically,  defendant  claims  that  the  district court's            evidentiary ruling prevented his attorney from fully exposing            Echevarria's   motive   to  testify,   and   from  impeaching            Echevarria  on the collateral issue of his involvement in his            wife's 1991 drug activities.                        We  begin  by  noting  that   a  defendant's  Sixth            Amendment right to cross-examine witnesses against him or her            is  "fundamental  and  demanding  of  great  respect," United                                                                   ______            States v. Twomey, 806 F.2d 1136,  1139 (1st Cir. 1986).  This            ______    ______                                         -6-                                          6            right, however, is  not without limits.   "`On the  contrary,            trial   judges   retain   wide   latitude   insofar  as   the            Confrontation Clause is concerned to impose reasonable limits            on  . .  . cross-examination based  on concerns  about, among            other things, harassment, prejudice, confusion of the issues,            the witness'  safety, or interrogation that  is repetitive or            only marginally relevant.'"  United States v. Carty, 993 F.2d                                         _____________    _____            1005,  1009-10  (1st  Cir.  1993) (quoting  Delaware  v.  Van                                                        ________      ___            Arsdall, 475 U.S. 673, 679  (1986)).  On appeal, we review  a            _______            trial  court's  limitations upon  cross-examination  under an            abuse  of discretion standard.  See Twomey, 806 F.2d at 1140.                                            ___ ______            "In  order  to establish  that  the  trial judge  abused  his            discretion  in limiting cross-examination, the defendant must            show that the restriction  imposed were clearly prejudicial."            Id.  Defendant makes no such showing.            ___                      A  review of the  record reveals  that Echevarria's            motives for testifying were fully disclosed.  As noted above,            during  cross-examination  of  Echevarria,   defense  counsel            unearthed the exact terms of the agreement between Echevarria            and the government.   Thus, the jury was  afforded sufficient            information   to   make   a   discriminating   appraisal   of            Echevarria's  motives and  bias.  See  id.; United  States v.                                              ___  ___  ______________            McLaughlin, 957 F.2d 12, 17 (1st Cir. 1992).   In the absence            __________            of  any  evidence  to  suggest  that  there  were  additional            agreements made  between Echevarria  and  the government,  we                                         -7-                                          7            disagree  with defendant's  assertion that  he was  denied an            opportunity  to  fully  expose  Echevarria's   motivation  to            testify.                           Defendant's  argument  that   the  district   court            improperly  limited cross-examination  regarding Echevarria's            involvement   in  the   1991  drug   conspiracy  is   equally            unpersuasive.   Trial judges may "limit  impeachment evidence            on matters that are deemed collateral or irrelevant."  United                                                                   ______            States  v. Walker, 930 F.2d 789, 791-92 (10th Cir. 1991); see            _________________                                         ___            also  United States  v. Moore,  923 U.S.  910, 913  (1st Cir.            ____  _____________     _____            1991)   (stating   that  the   district   court  "has   broad            discretionary authority to  prohibit cross-examination  where            that   cross-examination  would   introduce  into   the  case            collateral matters  that could  confuse the jury,  that would            require   later   introduction   of  otherwise   unnecessary,            additional,  potentially clarifying  evidence, or  that might            prejudice one of  the parties").   As the  trial court  aptly            noted,  the only evidence remotely suggesting that Echevarria            had  been  involved  in  the  1991 conspiracy  was  his  1991            unprosecuted  arrest.   Yet,  charges from  this arrest  were            dismissed for  lack of  probable cause.   Moreover, defendant            failed  below, and  has  failed  on  appeal, to  proffer  any            additional  evidence of Echevarria's  involvement in the 1991            conspiracy.  Without such a proffer, the district court acted            well  within its discretion to  hold that defendant was bound                                         -8-                                          8            by Echevarria's proclamation  of "innocence,"  and could  not            further  question  Echevarria  about  this  collateral matter            without demonstrating a good faith basis for the inquiry.3                        Finally,  defendant appears  to argue, albeit  in a            perfunctory  manner,   that,  under  Fed.  R.  Evid.  608(b),            evidence of  Echevarria's prior  drug involvement  should not            have been  excluded because  it was relevant  to Echevarria's            character for truthfulness.   We need not delay long  on this            _________            complaint.  As we noted  in Pinkham v. Maine Cent. R.R.  Co.,                                        _______    _____________________            874  F.2d  875,  879  (1st  Cir.  1989)  (collecting  cases),            evidence  of a  witness's drug  involvement is  generally not            admissible for character  impeachment purposes.  Accordingly,            we see no error here.                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For the foregoing reasons, the judgment below is                                             ____________________            3.  Defendant alternatively argues that, under Fed. R.  Evid.            404(b),  the evidence  of prior  drug involvement  should not            have been excluded.  Without reaching defendant's dubious and            unsupported assertion  that Fed. R. Evid.  404(b) is relevant            to a  discussion of impeachment  of a government  witness, we                                                              _______            note  that  "other act"  evidence  "must  have some  `special            relevance' to  a material issue such  as motive, opportunity,                             ________            intent, preparation, plan, or knowledge."  Carty, 993 F.2d at                                                       _____            1011 (emphasis  supplied).   Admission of other  act evidence            under  Fed.  R.  Evid.  404(b)  "is  committed  to  the sound            discretion of  the district court,  and we review  its ruling            only for abuse  of discretion."  Id.  Not  only has defendant                                             ___            failed  to demonstrate  a  good faith  basis for  questioning            Echevarria  about prior  drug involvement,  he has  not shown            that this  nonexistent evidence bears  some special relevance            to a material issue in the case.                                         -9-                                          9                 Affirmed.                 Affirmed.                 _________                                         -10-                                          10
