
USCA1 Opinion

	




                                       UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1613                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   RALPH H. CARTY,                                 Defendant-Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                          Torruella and Cyr, Circuit Judges,                                             ______________                             and Keeton,* District Judge.                                          ______________                                 ____________________             John F. Cicilline for appellant.             _________________             Zechariah  Chafee,  Assistant United  States Attorney,  with whom             _________________        Lincoln C. Almond, United States Attorney, was on brief for appellee.        _________________                                 ____________________                                     May 28, 1993                                 ____________________                                  __________________             *Of the District of Massachusetts, sitting by designation.                    CYR, Circuit  Judge.  On July 30,  1990, the Providence                    CYR, Circuit  Judge.                         ______________          Police executed a state-court search  warrant at the residence of          appellant Ralph  Carty and seized  several firearms  and a  small          quantity  of cocaine.    Carty was  tried  and convicted  on  two          firearms  charges  but  acquitted  on a  cocaine  charge.   Carty          contends  on appeal that (1) the evidence seized at the residence          should have  been suppressed  because the warrant  affidavit con-          tained  false  statements; (2)  at  the  suppression hearing  the          district  court improperly  restricted  cross-examination of  the          affiant;  and  (3)  the  court improperly  admitted  "other  act"          evidence at trial.  We affirm.                                          I                                          I                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Suppression Hearing          A.   Suppression Hearing               ___________________               1.  Franks v. Delaware               1.  Franks v. Delaware                   ______    ________                    The warrant  affidavit, provided by  Detective Nicholas          Cardarelli  of  the  Providence  Police  Department,  formed  the          primary  focus of the  Franks hearing1 conducted  before the dis-                                 ______          trict court.2            Although the Cardarelli affidavit, dated                                        ____________________               1At the Franks hearing, see Franks v. Delaware, 438 U.S. 154                       ______          ___ ______    ________          (1978), the court also received evidence concerning Carty's post-          arrest statements to the police.               2The Cardarelli affidavit stated in pertinent part:                         Within the  past few days . . . my reli-                    able and confidential informant  . . . stated                    . . . that Ralph and Pamela [Carty] are stor-                    ing  and  selling   illegal  [c]ocaine   from                    [their] house located at 34 Adelaide Ave. 1st                    floor  apartment,  garage  area and  basement                    area, Providence, RI. . . .          July 30, 1990, indicated that the controlled buy had taken  place          within the preceding "few  days," Cardarelli subsequently learned          that Carty and his family  were on vacation during that time  and          had not returned to their residence until the evening of July 29.          At the  suppression hearing,  Cardarelli testified that  the con-                                        ____________________                         Within the past few days  this confiden-                    tial informant  . . . agreed  to make a  pur-                    chase of cocaine from  Ralph H. Carty from 34                    Adelaide Ave.  first floor  apartment. .  . .                    [A]ffiant met this  informant at [a]  pre-ar-                    ranged  location  [where]  the informant  was                    searched by your affiant and after finding no                    contraband the informant  was given a sum  of                    U.S. currency  for the purpose  of purchasing                    suspected cocaine  from  the Ralph  H.  Carty                    subject at 34 Adelaide  Ave.  [T]he informant                    was driven into the  area of 34 Adelaide Ave-                    nue and . . . was then observed by your affi-                    ant walking over to 34 Adelaide Avenue. . . .                    [T]he informant was  observed knocking on the                    front door  . . . and then . . . entered this                    location.   A short  time later the informant                    was . . . observed . . .  walking back to our                    pre-arranged location.  Never losing sight of                    this  informant[,] the informant met your af-                    fiant   back   at   the  pre-arranged   loca-                    tion. . . .   [A]t  this time  the  informant                    handed over to your affiant a bag of suspect-                    ed  cocaine. . . .   [A]  field   test  . . .                    proved positive. . . .                         . . . [T]he informant who  has purchased                    cocaine  several times  from either  Ralph or                    Pamela  Carty  stated  to  your  affiant that                    cocaine was being  stored in the garage  area                    and  in the  basement area.    This informant                    purchased cocaine from Ralph on  one occasion                    when the informant observed Ralph go into the                    basement  area  and came  up  with  a bag  of                    cocaine.   On another  occasion the informant                    observed  Ralph go  into the garage  area and                    return with a  bag of  cocaine. . . .   [T]he                    informant stated that Ralph hides the cocaine                    in  different areas of  his house  and garage                    areas so that the police will not be  able to                    find the  large quantity of  cocaine if  they                    . . . raid the house.                                          3          trolled buy took place between 2:00 and 4:00 p.m. on July 30.  He                                                            __          explained that it was  normal police procedure not to  reveal the          exact date of the controlled buy so as to protect the identity of          the confidential  informant.  Cardarelli testified  that he drove          the  informant to the tenement  in which Carty  occupied a first-          floor apartment, observed the  informant enter and emerge shortly          thereafter  with  a  small  baggie containing  a  substance  that          appeared  to be  cocaine, returned  to the  Special Investigation          Bureau ("SIB") office,  and performed  a field test  on the  sub-          stance.  As  the test  indicated the presence  of cocaine,  Card-          arelli drafted the affidavit and obtained a search warrant from a          state court  judge.    At  approximately 8:00  p.m.  on  July 30,          Cardarelli and other  officers executed the search warrant at the          Carty residence.                    Detective Stephen  Berarducci corroborated Cardarelli's          testimony.  He testified that he saw Cardarelli at the SIB office          on  July 30 at about 2:00 p.m.  and was aware that Cardarelli was          going  to  attempt  a  controlled buy  at  the  Carty  residence.          According to Berarducci, Cardarelli returned to the office around          4:00 p.m.  and performed a field  test on a small  plastic bag of          cocaine, which  Cardarelli said had  been purchased at  the Carty          residence.  Berarducci  also testified that  he received a  check          the following day from Sergeant Dennis Lambert,  the SIB evidence          control  officer,  which  was used  to  pay  for  the informant's          services.  A photocopy of the check was admitted into evidence.                    Sergeant Lambert testified that he could locate neither                                          4          a log book entry, nor a "controlled buy form," reflecting a  drug          transaction on July  30 conducted by Detective  Cardarelli or any          other officer.3  Lambert testified that his records  documented a          controlled  buy of  heroin  on July  25  or 26  at  the apartment                              ______          building in which Carty lived, but that it occurred on the second                                                                     ______          floor of the building and was unrelated to any  controlled buy at          _____          the Carty apartment on the first floor.                    Two of Carty's co-workers testified that he was at work          on July 30  between 9:00 a.m. and 7:00  p.m.  Mrs. Carty provided          similar testimony and submitted receipts reflecting Carty's wages          for  the day.   She further testified  that no one  came to their          residence between 2:00 p.m. and 4:00 p.m. on July 30.  Two  other          individuals  testified  that they  were  at  the Carty  residence          throughout the day on July 30  and that no one came to  the house          between 2:00 p.m. and 4:00 p.m.                    At  the  conclusion  of the  suppression  hearing,  the          district court declined to  suppress the evidence seized pursuant                                        ____________________               3Sergeant  Lambert described  the  procedure used  after  an          investigating officer has directed an informant to purchase drugs          with police  funds:  The  investigating officer performs  a field          test  on the drugs, then fills out a controlled buy form reflect-          ing the date  and location of the  controlled buy, the  number of          the  check used  to finance  the purchase,  a description  of the          items  purchased, and the name of the investigating officer.  The          officer  attaches the controlled buy form to the drugs, and drops          the narcotics (controlled buy form attached) through  a slot into          a  safe.   The officer logs  on the  control sheet  the amount of          money spent  on the drugs.   Lambert transcribes  the information          from the control sheets into  a log book each week.   Every month          or so, he opens  the safe containing the narcotics,  compares the          controlled  buy form attached to  each bag of  narcotics with the          log book, removes and retains the form, and delivers the drugs to          the state health department for destruction.                                          5          to the warrant as Carty had failed to produce sufficient evidence          to undermine the  Cardarelli affidavit.4  Carty  contends that he                                        ____________________               4The district court explained its findings as follows:                         Now, turning to  the contention that the                    allegations in the warrant are willful false-                    hood[s], I must say  this is a bold assertion                    but  nevertheless  tinged  with a  degree  of                    suspicion as  to  the accuracy  of  Detective                    Cardarelli's testimony.  However,  the suspi-                    cion is not evidence and certainly not strong                    enough to destroy credibility sufficiently to                    declare the search illegal.                         . . .  It is  strange  indeed [that]  no                    [record of the  controlled buy] could  be lo-                    cated.  This  would have clearly  established                    the date of the purchase. . . .                         The detective asserts the buy  was defi-                    nitely made on the 30th.  The affidavit indi-                    cates it  was made  within the past  few days                    . . .  of the 30th.  I agree the semantics of                    the  affidavit lead to an interpretation that                    the buy was made prior to the 30th.                         However,  the   officer  explained  that                    preciseness of dates was purposefully avoided                    when  controlled buys  are made  in order  to                    safeguard the identity of the informant and I                    am constrained to accept this.                         . . . [W]hether or  not Ralph Carty made                    the   alleged  sale   to  the   informant  on                    September 30  [sic] really isn't a vital fact                    to  be  resolved in  order  to  rule on  this                    motion.  The affidavit premising the issuance                    of the search warrant did not turn on a  pur-                    chase  being made  strictly from  Ralph Carty                    nor does  it say  it was purchased  from him.                    The crucial fact in the affidavit [is] that a                    purchase  was made  from  Adelaide Avenue  on                    September 30 [sic].                         I  can  understand  [defense  counsel's]                    argument here but it would be asking too much                    of  the  Court  to  conclude  that  Detective                    Cardarelli  is a bold-face perjurer, not only                    in this courtroom but was at the time that he                    made the  affidavit and  at the time  that he                    presented  it to  the  State  District  Court                    Judge for  the issuance of the  warrant.  And                    so I  feel constrained  and I do  hereby deny                    the [suppression] motions. . . .                                          6          demonstrated that  the controlled buy could not  have occurred as          described in the Cardarelli affidavit.   Without the false state-          ments,  he argues,  the affidavit  was insufficient  to establish          probable  cause.  See Franks,  438 U.S. at  156 (If the defendant                            ___ ______          proves perjury or "reckless disregard," by a preponderance of the          evidence, and  the untainted content of the affidavit is insuffi-          cient  to establish probable cause, the fruits of the search must          be excluded "to the same extent  as if probable cause was lacking          on the face of the affidavit.").                    We  review the  district court's  findings of  fact for          clear error; its  conclusion of law  de novo.   United States  v.                                               __ ____    _____________          Garcia, 983 F.2d 1160, 1167 (1st Cir. 1993) (citing United States          ______                                              _____________          v. Sanchez,  943 F.2d 110, 112  (1st Cir. 1991)).   Its denial of             _______          the suppression motion will be upheld if supported by any reason-          able view of the evidence.  Id.                                      __                    Although  we find  it  troubling, as  did the  district          court, that there is no record of a controlled cocaine buy during          the entire relevant period, our review of the suppression hearing          transcript reveals nothing inherently contradictory or incredible          in  Cardarelli's   testimony,   as  corroborated   by   Detective          Berarducci.  First and foremost, Cardarelli's suppression hearing          testimony as to the exact date of the controlled buy (July 30) is          not inconsistent  with  the time  period  ("within the  past  few          days") he gave in the warrant  affidavit; July 30 at 2:00 to 4:00          p.m. was "within the  past few days" of  Cardarelli's preparation               ___          of the warrant affidavit, which occurred late in the afternoon or                                          7          early in the  evening of July  30.  Thus,  the affidavit was  not          necessarily  inconsistent with  Cardarelli's testimony.   Second,          the district court, before  whom Cardarelli and Berarducci testi-          fied, credited Cardarelli's explanation  that it was customary to          avoid  precise specification of  the dates of  controlled buys in          order  to protect  the identity  of informants.   Finding nothing          inherently inconsistent in Cardarelli's testimony, and mindful of          the trial court's  superior vantage point, we are  satisfied that          there is  no sound  basis for second-guessing  its demeanor-based          credibility  determinations  at the  suppression  hearing.5   See                                                                        ___          Wainwright v. Witt,  469 U.S. 412, 428  (1985) (determinations of          __________    ____          demeanor and  credibility are  peculiarly within a  trial judge's          province); United States v. Portalla, 985 F.2d 621, 622 (1st Cir.                     _____________    ________          1993)  (recognizing  district  court's broad  power  to determine          witness  credibility); see  also Anderson  v. Bessemer  City, 470                                 ___  ____ ________     ______________          U.S.  564, 575 (1985) ("only the trial  judge can be aware of the          variations in demeanor and tone of voice that bear  so heavily on          the listener's understanding of and belief in what is said").6                                        ____________________               5Contrary to Carty's contention,  we find no indication that          the district  court imposed  a more  stringent standard  of proof          than  the  applicable "preponderance  of the  evidence" standard.          See Franks, 438 U.S. at 156.            ___ ______               6Appellant  claims  that the  Cardarelli  affidavit includes          statements made  with reckless disregard  for their truth,  as it          gave the erroneous impression  that Carty personally sold cocaine          to the informant.  We need not address the merits  of this claim.          As the  district court correctly  noted, Carty's presence  at the          time the undercover buy occurred was immaterial to the establish-          ment  of probable  cause  to search  the  residence.   Since  the          affidavit provided  probable cause to believe  that the informant          purchased cocaine at  the Carty residence, without regard  to the                            __  ___ _____ _________          identity of the  seller, the district  court properly denied  the                                          8               2.   Right to Confrontation               2.   Right to Confrontation                    ______________________                    Carty next  asserts that  his Sixth Amendment  right to          confront adverse witnesses was  infringed by the district court's          restrictions on cross-examination of Detective Cardarelli  at the          suppression hearing.  In the course of cross-examining Cardarelli          about  the perceived  discrepancy between  his testimony  and his          affidavit relating to  the date  of the  controlled buy,  defense          counsel  inquired:  "Tell  me, Detective Cardarelli,  why are you          represented  by Mr.  Bevilacqua?"   When  the  court refused,  on          relevancy  grounds,  to  direct  Cardarelli to  answer  over  the          government's objection,  defense counsel  responded by way  of an          offer of  proof:  "[I]t is  my belief that this  witness is being          investigated for corruption  in the police department."   Defense          counsel  hypothesized  that  Cardarelli  may  have  adjusted  the          asserted  date of  the  controlled buy  to  negate Carty's  alibi          evidence.  Counsel argued  that the proposed line  of questioning          was  intended to  determine  whether Cardarelli  was telling  the          truth.   Rebuffed by the  district court,7 defense  counsel urged                                        ____________________          motion to suppress.  See Franks, 438 U.S. at 156; see also United                               ___ ______                   ___ ____ ______          States v. Veillette,  778 F.2d  899, 904 (1st  Cir. 1985),  cert.          ______    _________                                         _____          denied, 476 U.S. 1115 (1986) (search warrant valid where support-          ______          ing affidavit established probable  cause independently of  false          statement).               7The district court responded:               I  am trying to give you as  much leeway as you want to               attack the man's credibility.  I think you are entitled               to it.   You have  cross-examined him vigorously  as to               the date of the purchase.  He has maintained that a buy               was made on  the 30th.   There is no  question how  the               affidavit  reads.  It's for me to decide whether that's               inconsistent with the affidavit.  Now, the fact that he                                          9          that he  be permitted to show Cardarelli's  bias, suggesting that          "if, in fact, the investigation  is being conducted . . .  by the          [f]ederal  [g]overnment,  then [Cardarelli]  has  an  interest in          making the [f]ederal  [g]overnment happy by  being a witness  who          testifies  consistently with  the  [g]overnment's theory  of this          case[, a]nd bias to that extent is a legitimate area of inquiry."          Concluding  that it  was not  "material to  the issue  here," the          court  remained steadfast in  its refusal to  permit inquiry con-          cerning the supposed investigation.                    Carty contends that  the proffer demonstrated that  the          putative federal investigation into possible corruption involving          Cardarelli was directly  related to  the events in  the case  and          probative of Cardarelli's  credibility and bias,  and, therefore,          that  the  district  court's  ruling deprived  him  of  his Sixth          Amendment right to confrontation.   "[A] primary interest secured          by [the Confrontation Clause of the Sixth Amendment] is the right          of cross-examination."   Douglas  v. Alabama, 380  U.S. 415,  418                                   _______     _______          (1965).  Cross-examination  is the "principal means  by which the          believability of a  witness and  the truth of  his testimony  are          tested."   Davis v. Alaska, 415 U.S.  308, 316 (1974).  Neverthe-                     _____    ______          less,  the right of cross-examination is not without limits.  "On                                        ____________________               may be involved in some corrupt practices does not bear               on this case at all nor can it bear on this case nor do               I know of any  rule of evidence which would  allow that               kind of impeachment of a  witness . . . where it  is so               far removed from the issue  at hand.  You just want  to               show he  is a  corrupt  man but  you can't  do that  by               trying the allegations that have been made against him.               We don't have a conviction here.                                          10          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."  Delaware v. Van Arsdall, 475 U.S. 673, 679                                 ________    ___________          (1986).   See Brown v. Powell,  975 F.2d 1, 3-4  (1st Cir. 1992);                    ___ _____    ______          United  States  v. Malik,  928 F.2d  17,  19-20 (1st  Cir. 1991);          ______________     _____          United States v. Rivera-Santiago, 872 F.2d 1073, 1084 (1st Cir.),          _____________    _______________          cert. denied, 492  U.S. 910 (1989) and cert. denied, 493 U.S. 832          _____ ______                           _____ ______          (1989).   We review district court  limitations on cross-examina-          tion for "abuse  of discretion."   United States  v. Boylan,  898                                             _____________     ______          F.2d  230,  254 (1st  Cir.), cert.  denied  498 U.S.  849 (1990);                                       _____  ______          Rivera-Santiago, 872 F.2d at 1084.          _______________                    A criminal defendant's right  to cross-examine for bias          is an important component of the constitutional right to confron-          tation.  Thus, the trial court may not limit cross-examination in          this area without according the defendant the latitude to conduct          a "minimum  threshold of inquiry" sufficient to  permit the fact-          finder  to make  the  requisite discriminating  appraisal of  the          biases  of the  witness.   Brown, 975  F.2d at 5  (quoting United                                     _____                           ______          States v. Jarabek,  726 F.2d  889, 902 (1st  Cir. 1984));  United          ______    _______                                          ______          States  v. Kepreos, 759 F.2d  961, 965 (1st  Cir.), cert. denied,          ______     _______                                  _____ ______          474  U.S. 901 (1985); United States v.  Tracey, 675 F.2d 433, 437                                _____________     ______          (1st Cir. 1982).  Otherwise, the  defendant's right to confronta-          tion will  have been infringed unless  the factfinder nonetheless                                          11          possessed  "sufficient other  information  . . . to  make a  dis-          criminating appraisal  of the possible biases  and motivations of          the witness[].'"  Brown, 975 F.2d at 5  (quoting Tracey, 675 F.2d                            _____                          ______          at 437).                    On  the  record  in  this case,  we  conclude  that the          district court acted well  within its discretion in declining  to          permit cross-examination to proceed  after considering the  offer          of  proof.   The court  recognized that  the conclusory  offer of          proof  simply  speculated  that an  investigation  into  possible          police corruption might be underway and might involve Cardarelli.          There was no indication as  to the source or basis of  the stated          belief, no substantiation, and no representation that the federal          government was involved in any such investigation.  Nor was there          any  suggestion that  the  supposed investigation  in any  manner          related to the  events at issue in this case.   Thus, the conten-          tion,  advanced  below and  on appeal,  that Cardarelli  may have          testified with a view to impressing the federal government is not          even  based on  a speculative  belief.   Absent any  such logical          linkage, the proposed  inquiry was irrelevant,  just as the  dis-          trict court found.  Moreover, as the district court was  also the          finder of fact  at the  suppression hearing, the  defense was  on          notice  that it  needed  to make  the  strongest offer  of  proof          possible to overcome the government's  objection to this line  of          inquiry.  Yet the  offer of proof was left (and remains) patently          deficient to enable the conclusion that the district court abused          its  discretion  by  ruling  the proffer  inadequate  to  warrant                                          12          further  inquiry over  the  government's objection.   Cf.  United                                                                ___  ______          States v. Sutherland, 929 F.2d 765, 776-77 (1st Cir.) (limitation          ______    __________          on cross-examination  of witness did not  contravene Sixth Amend-          ment  right to confrontation  where defendant "demonstrated abso-          lutely no  basis  for suspecting  bias  other than  a  conclusory          allegation" that the witness hoped to receive favorable treatment          from the government in exchange for his testimony), cert. denied,                                                              _____ ______          ___ U.S. ___, 112 S. Ct. 83 (1991); Fed.  R. Evid. 103(a)(2).  We          find no Sixth Amendment violation.          B.   Trial          B.   Trial               _____               1.  "Other Act" Evidence               1.  "Other Act" Evidence                    ___________________                    Finally, Carty contends that  the trial court committed          reversible error  by admitting "other act"  evidence which should          have  been excluded under Federal Rule of Evidence 404(b) or 403.          The challenged  evidence consisted of  post-arrest admissions  by          appellant Carty relating to  a drug source.  At  trial, Detective          Cardarelli testified as follows:                    Mr.  Carty stated  to me that  he also  had a                    location on  Route 95  in Attleboro  where he                    would drive  his white  Camaro to meet  a so-                    called person, he didn't mention  any name or                    didn't give any description,  at a road  side                    rest  stop where this  person would  meet him                    and  leave drugs underneath a trash container                    at that  roadside stop and  he would retrieve                    the drugs and bring them back to  the City of                    Providence.  And I then asked him why did you                    go through  all that  trouble?  And  he says,                    because  this person  does not  want  to come                    into the City of Providence because there's a                    lot  of heat on drug activity  in the City of                    Providence.                                          13          Another police officer testified  that he overheard the conversa-          tion,  and  corroborated  Cardarelli's  testimony.    When  asked          whether Carty described what he was buying, the  officer replied,          "coke."                    Admissible  "other act" evidence  must survive scrutiny          under  Rules 403 and 404(b).   First, under the "absolute bar" of          Rule 404(b), the evidence  is inadmissible if relevant  solely to          show the  defendant's character  or propensity for  criminal con-          duct; it must have  some "special relevance" to a  material issue          such  as  motive,  opportunity,  intent,  preparation,  plan,  or          knowledge.  See United States v. Agudelo,  ___ F.2d ___, ___ (1st                      ___ _____________    _______          Cir.  1993), No.  90-1465, slip  op.  at 4-5  (1st Cir.  Mar. 18,          1993);  United States  v. Williams, 985 F.2d  634, 637 (1st  Cir.                  _____________     ________          1993);  United States  v. Donovan,  984 F.2d  507, 512  (1st Cir.                  _____________     _______          1993).   Second,  under Rule  403, the  trial court  must satisfy          itself that the probative  value of the evidence is  not substan-          tially outweighed  by the danger of  unfair prejudice, confusion,          or undue  delay.  See Agudelo, ___ F.2d  at ___, slip op. at 4-5;                            ___ _______          Donovan, 984 F.2d  at 512; United States v. Devin,  918 F.2d 280,          _______                    _____________    _____          286 (1st Cir. 1990).   The admissibility of "other  act" evidence          is committed to the  sound discretion of the district  court, and          we review its ruling only for abuse of discretion,  United States                                                              _____________          v. Garcia, 983  F.2d 1160, 1172 (1st Cir.  1993), bearing in mind             ______          that  Rule  404(b) is  a rule  of  inclusion, not  exclusion, see                                                                        ___          Donovan, 984 F.2d at 512; United States v.  Fields, 871 F.2d 188,          _______                   _____________     ______          196 (1st Cir.), cert. denied, 493 U.S. 955 (1989).                          _____ ______                                          14                    a.  Fed R. Evid. 404(b)                    a.  Fed R. Evid. 404(b)                        ___________________                    Notwithstanding  defense  counsel's  plaint   that  the          testimony indicated that Carty  was buying rather than distribut-          ing drugs, the district court admitted the challenged evidence on          the ground  that it "goes to  the possible intent and  shows that          [Carty]  was one  who did  distribute or planned  to distribute."          Carty  contends  that  the  district  court  improperly  ascribed          "special relevance" to the evidence.                    The court correctly ruled  that the evidence was proba-          tive of intent to  commit the charged offense of  possession with          intent to distribute, noting  that "you have to buy  [cocaine] to          sell it."  See, e.g., Garcia,  983 F.2d at 1173 (prior arrest for                     ___  ____  ______          dealing  in  cocaine admissible  to  show intent  to  possess and          distribute cocaine) (quoting United  States v. Hadfield, 918 F.2d                                       ______________    ________          987,  994  (1st Cir.  1990) (citing  cases)).   The  evidence was          probative  of opportunity as well.   Thus, since  the "other act"          evidence permitted at least  one relevant non-propensity and non-          character based inference, see United States v. Nickens, 955 F.2d                                     ___ _____________    _______          112,  124 (1st Cir.), cert. denied, ___  U.S. ___, 113 S. Ct. 108                                _____ ______          (1992), it satisfied the requirements of Rule 404(b).                    b.  Fed. R. Evid. 403                    b.  Fed. R. Evid. 403                        _________________                    Appellant  contends that  the  probative value  of  the          evidence was greatly outweighed by its prejudicial effect, as the          government did not link  the "other act" evidence to  the cocaine          seized from  Carty's garage, nor  did it  establish the  quantity          previously purchased or  show that  it was part  of a  continuing                                          15          scheme or conspiracy.                    Only  in exceptional  circumstances will  we reverse  a          trial  court's evidentiary  ruling  in the  face  of a  Rule  403          challenge.   Garcia, 983 F.2d  at 1173; United  States v. Garcia-                       ______                     ______________    _______          Rosa, 876 F.2d  209, 221 (1st Cir. 1989), cert.  denied, 493 U.S.          ____                                      _____  ______          1030 (1990).  Appellant has not shown that the probative value of          the  "other act"  evidence  was substantially  outweighed by  its          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  exclud-          ed,  [or]  there would  be  precious little  left in  the  way of          probative evidence in any case").  As Carty's  post-arrest state-          ments relating to a  cocaine source were probative of  his intent          and opportunity to possess and distribute cocaine, see supra Part                                                             ___ _____          I.B.1.a., and  there was no  "unfair prejudice,"8 Rule  403 posed          no barrier to their admission in evidence.9                    Affirmed.                    Affirmed.                    ________                                        ____________________               8Although  Carty  suggests  that  the  "slightest prejudice"          resulting  from improper  admission of  the "other  act" evidence          might  have caused the jury  to disbelieve a  defense witness who          testified that  he, rather than  Carty, owned the  weapons seized          from  the  Carty residence,  we are  hard-pressed to  discern any                                                                        ___          harm.  Since  the jury acquitted Carty  on the cocaine  charge to          which the "other  act" evidence related, we consider  the sugges-          tion far-fetched.               9Finally,  Carty argues that  the court erred  by not giving          limiting instructions to the  jury either contemporaneously or in          its charge.   Carty waived  the objection by  requesting neither.          See Fed.  R. Crim. P. 30 & 52(b).   Moreover, as we are confident          ___          that the lack of limiting instructions  did not "seriously affect          the fundamental fairness and basic integrity of the proceedings,"          there was no plain error.  See United States v. Barnett, ___ F.2d                                     ___ _____________    _______          ___, ___ (1st Cir. 1993), No. 91-1890, slip op at 25-26 n.14.                                          16          Dissent follows.          Dissent follows.          _______ _______                                                                                      ____________                    TORRUELLA,  Circuit  Judge  (Dissenting).    I  dissent                    TORRUELLA,  Circuit  Judge  (Dissenting).                                ______________          because  the so-called "other  act" evidence  relating to  a drug          source  unconnected to the facts of the present case and admitted          under  Federal  Rules of  Evidence 404(b),  is nothing  more than          improper  propensity or character  evidence.  I  disagree with my          colleagues in  the majority  that it  is "far-fetched"  that this          evidence influenced the jury in any way because Carty was acquit-          ted  of  the cocaine  charge.   Ante, at  16  n.9.   The objected                                          ____          evidence branded him  as a  drug dealer, not  necessarily as  the          possessor  of  the small  amount of  cocaine  found.   As  such a          nefarious person, the jury could very well have believed that the          firearms were his  tools of  the trade.   The improper  character          evidence easily could  have carried the  day for the  Government,          considering  the  highly contradictory  nature  of  the proof  it          presented.  Ante, at 3-5.   In view of the  constitutional burden                      ____          required of the Government in a criminal case, I fail  to see why          all the speculation  regarding what the  jury did or  did not  do          with this  improper evidence,  should be weighted  against defen-          dant.                    Appellant should be granted a new trial.                                          17
