
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 96-1070                                    UNITED STATES,                                      Appellee,                                          v.                               ALBERTO MORLA-TRINIDAD,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                           Selya and Stahl, Circuit Judges,                                            ______________                             and Torres,* District Judge.                                          ______________                                 ____________________            Stephen H. Mackenzie on brief for appellant.            ____________________            Jay P. McCloskey,  United States Attorney, Margaret D.  McGaughey,            ________________                           ______________________        Assistant United  States Attorney,  and George T.  Dilworth, Assistant                                                ___________________        United States Attorney, on brief for appellee.                                 ____________________                                   November 8, 1996                                 ____________________        ____________________        *Of the District of Rhode Island, sitting by designation                      STAHL, Circuit Judge.  A  jury convicted defendant-                      STAHL, Circuit Judge.                             _____________            appellant Alberto Morla-Trinidad of conspiring  to distribute            and possess with intent to  distribute crack cocaine.  Morla-            Trinidad now seeks  a new trial,  claiming that the  district            court erred when  it permitted the prosecutor  to impeach his            testimony  with  cross-examination   and  rebuttal   evidence            concerning a prior  arrest of the defendant in which evidence            was illegally obtained.  We affirm.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                      On  September 4,  1994, police in  Lewiston, Maine,            stopped a vehicle in which Morla-Trinidad was a passenger and            Melvin  "Bubba" Lagasse  ("Bubba  Lagasse")  was the  driver.            Incident to  that stop,  the police officers  searched Morla-            Trinidad for weapons and discovered cash and small amounts of            marijuana and  crack cocaine.  Subsequent  state drug charges            against Morla-Trinidad were dismissed after a Maine  Superior            Court judge  ruled that the officers  lacked justification to            search him and suppressed the seized evidence.                      Pursuant  further   investigation,  federal  agents            arrested Morla-Trinidad in Lewiston on  April 18, 1995.  That            same  day,  a  grand  jury returned  a  one-count  indictment            charging  Morla-Trinidad and Ruth  Peabody with conspiring to            traffick drugs  from  July  to  December 1994  in  Maine  and                                         -2-                                          2            Massachusetts.    Peabody  eventually  pleaded  guilty  while            Morla-Trinidad proceeded to trial.                                         II.                                         II.                                         ___                                     Trial Events                                     Trial Events                                     ____________                      Because  Morla-Trinidad  does  not   challenge  the            sufficiency of the evidence,  we describe the pertinent trial            evidence  in  a neutral  manner  to provide  context  for the            claimed  error.  See United  States v. Procopio,  88 F.3d 21,                             ___ ______________    ________            23-24 (1st Cir. 1996).   Generally, the government sought  to            show that, throughout  the indictment period,  Morla-Trinidad            traveled  between  Lawrence,  Massachusetts,   and  Lewiston,            Maine,  to manage  sales of  crack cocaine  out of  Peabody's            Lewiston residence.                      In its case in  chief, the government presented six            witnesses who testified  about their involvement with  Morla-            Trinidad.  Raul Baez testified that  Morla-Trinidad initially            sold drugs for him in Lawrence, but then became interested in            selling in  Lewiston, another locale in  which Baez conducted            his drug business.   Baez  stated that  although he  rejected            Morla-Trinidad's offer  to become  a partner in  his Lewiston            business,  he did  drive Morla-Trinidad  to Lewiston  to meet            Peabody;  to  Baez's  dismay,  Morla-Trinidad then  began  to            compete with him in the Lewiston drug trade.                      Most of the other witnesses testified that they saw            Morla-Trinidad  in Peabody's  residence  (where  they  bought                                         -3-                                          3            crack  cocaine), and/or  that they  bought the  drug directly            from Morla-Trinidad at that location.  In particular, Marlane            Driggers testified  that she first met  Morla-Trinidad in May            1994  in Lawrence,  at  which  time  she  drove  him  to  her            apartment in Lewiston.   She stated that he carried  at least            200  bags of crack cocaine  on that trip,  intending that she            sell  it   in  Lewiston.     Driggers  testified   that  soon            thereafter, she  moved into Peabody's apartment  out of which            they sold  crack cocaine.  She  indicated that Morla-Trinidad            stayed  in their living room  at least three  days a week and            that, two or three times during each of those days, she would            obtain from  him a batch  of twenty bags of  crack cocaine to            sell.                      Michael  Lagasse testified that  his brother, Bubba            Lagasse,  told  him  that  Morla-Trinidad   operated  out  of            Peabody's residence.   He  stated that Morla-Trinidad  was at            Peabody's  residence at least two or three times per week and            that he  bought crack cocaine many  times from Morla-Trinidad            at that location.  Three other  witnesses, Bruce Moody, Scott            Poulin,  and Karla  Schools,  testified  that they  regularly            purchased crack  cocaine out of Peabody's  apartment and that            they either  bought directly from Morla-Trinidad  or they saw            him there when they bought from Peabody.                      There  was  testimony  to  the  effect  that Morla-            Trinidad  would  exchange crack  cocaine  for travel  between                                         -4-                                          4            Lawrence  and Lewiston.   Driggers  testified that  she drove            Morla-Trinidad from Lawrence to  Lewiston at least five times            and that various people, including Bubba Lagasse, Peabody and            Schools, also drove  him to and  from Lawrence and  Lewiston.            Moody  testified   that  he  drove  Morla-Trinidad  twice  to            Lawrence from Maine.  Schools testified that on two occasions            she picked up Morla-Trinidad  in Lawrence and transported him            to Lewiston, where, she said, he would stay for about a week.                      On the  second  day of  his  trial,  Morla-Trinidad            testified in his own defense.1   Defense counsel began Morla-            Trinidad's  direct examination  with the  following question:            "Alberto, yesterday there were  six witnesses that  testified            directly  about your  supposed involvement  in a  crack ring.            We'll go through this list and ask you whether you know these            people  in any  way."   In  response to  counsel's subsequent            questions,  Morla-Trinidad testified:   "Of the witnesses who            testified yesterday, I can assure you, I can swear before God            that I have only seen two of them, [Driggers and Baez]."                      As to Driggers, he testified that the first time he            saw her was in prison after his April 1995 arrest.  He stated            that the  events to which Driggers  testified "didn't happen"            and that  he never gave or sold crack cocaine  to her.  As to                                            ____________________            1.  Before Morla-Trinidad  took the stand, the district court            personally  informed  him that,  if he  testified in  his own            defense, the government would  have the opportunity to cross-            examine him and  might be permitted to introduce  the subject            of the September 1994 arrest.                                         -5-                                          5            Baez,  he  stated that,  although  he had  seen  Baez several            times, he neither sold crack cocaine for him nor knew that he            was  "involved  in this  kind  of  business."   Additionally,            Morla-Trinidad  denied  knowing   either  Bubba  Lagasse   or            Peabody, his indicted co-conspirator.                      Concerning  his  whereabouts during  the indictment            period (July to December 1994), Morla-Trinidad testified that            he  split his time between New York  and Lawrence.  He stated            that,  during this  time,  he was  devoted  full-time to  his            business of promoting  Hispanic music in  the New York  area.            When  asked if he went to Maine during the indictment period,            Morla-Trinidad replied  that he  traveled there only  once to            see his  attorney.   When  asked if  he  had any  friends  or            associates  in Lewiston,  he  replied that  he  had a  "woman            friend" there.                      During cross-examination by the  prosecutor, Morla-            Trinidad  maintained that he  did not know  Bubba Lagasse and            that he  traveled to Lewiston only once during the indictment            period  -- to  meet only  with his  attorney.   When pressed,            however, he  acknowledged that  he traveled to  Lewiston once            again during that time,  again to see his attorney,  and that            he also once went to a  fast food restaurant near Lewiston to            meet his woman friend.  The prosecutor then inquired, "And on            any of these occasions that  you went to Lewiston in  1994 to            see your lawyer . . . did you possess crack cocaine?"                                         -6-                                          6                      At  this  point,  defense  counsel objected  and  a            sidebar conference was held.   Anticipating that the question            would  lead  to  further  inquiry  into  the  September  1994            Lewiston  arrest  (during   which  evidence  was   unlawfully            seized),   counsel  argued   that  the   subject   was  "very            prejudicial"  and, in  any event,  irrelevant to  the charged            conspiracy.   The  district court  disagreed, stating,  "It's            certainly  relevant  to the  question  of  conspiracy."   The            prosecutor then voiced his intention to introduce the subject            of  the September  1994  arrest.   Defense counsel  objected,            contending that  the  previously-suppressed evidence  was  of            little probative value and unduly prejudicial.                      The   district  court   ruled  in   favor  of   the            government, finding that, although the tainted evidence would            be inadmissible as part of the government's case in chief, it            was  admissible to impeach  Morla-Trinidad's testimony.   The            court observed:                      This defendant has taken the stand.  He's                      denied   knowing    Bubba   Lagasse,   he                      certainly  denied having  any involvement                      in the  .  . .  crack cocaine  conspiracy                      during July to December [1994].                           And so this is material and relevant                      evidence  to show  that his  testimony is                      false.   [T]he suppression  issue [is] no                      longer relevant.  So far as the relevance                      issue is concerned,  this bears  directly                      on his testimony.            The court acknowledged that the evidence was prejudicial, but            found that it was not unfairly so.                                          -7-                                          7                      Subsequently,  the  following  exchange took  place            before the jury with Morla-Trinidad on the witness stand:                      Q.  [By the  prosecutor]   Mr.  Trinidad,                      when  you  visited  Lewiston,  Maine,  in                      1994, did you ever possess crack cocaine?                      A.  Never, sir.                      Q.  Never once?                      A.  Never.            The prosecutor then elicited  Morla-Trinidad's acknowledgment            that he was stopped  in September 1994, with another  man, by            Lewiston police;  Morla-Trinidad stated, however, that he did            not know  the other man  as "Bubba Lagasse."   Morla-Trinidad            denied  that the police found a plastic baggie in his pocket,            then stated that he  did not know the baggie  contained crack            cocaine.  He did acknowledge that the  police discovered some            $1,800 in his possession.                      In its  rebuttal  case,  the  government  called  a            police officer  to testify  about the events  surrounding the            September 1994 arrest, including  the illegal seizure of cash            and  drugs.  The government  also called a  state chemist who            identified the seized drugs as crack cocaine.  The drugs were            admitted into evidence.                      The  jury convicted  Morla-Trinidad of  the charged            conspiracy  and the district court subsequently sentenced him            to 324 months' imprisonment.  This appeal ensued.                                         III.                                         III.                                         ____                                      Discussion                                      Discussion                                      __________                                         -8-                                          8                      Morla-Trinidad contends that the impeachment of his            testimony  by the cross-examination  and subsequent testimony            concerning the tainted  evidence obtained at the  time of the            September 1994 arrest  constituted prejudicial error  because            his testimony on direct examination neither "opened the door"            to this  topic nor reasonably  suggested inquiry  into it  on            cross-examination.   He argues  that his testimony  on direct            regarding his alleged drug activities concerned only Driggers            and Baez  and did  not fairly  implicate  the September  1994            arrest.            A.  Standard of Review            ______________________                      Determining  the scope  of  cross-examination is  a            matter within the district court's discretion and will not be            disturbed absent  abuse.  United  States v. Cassiere,  4 F.3d                                      ______________    ________            1006, 1019-20 (1st Cir. 1993); see O'Connor v.  Venore Trans.                                           ___ ________     _____________            Co., 353  F.2d 324,  326 (1st Cir.  1965) (extent to  which a            ___            court allows counsel to  test witness's credibility on cross-            examination  will not  be  disturbed absent  "plain abuse  of            discretion").            B.  Use of Tainted Evidence to Impeach            ______________________________________                      It  is  well-settled   that  evidence  obtained  in            violation  of the  Fourth Amendment can  be admitted  for the            limited  purpose   of   impeaching  a   testifying   criminal                                         -9-                                          9            defendant's credibility.2  Walder  v. United States, 347 U.S.                                       ______     _____________            62,  65 (1954)  (rejecting notion  that a  criminal defendant            "can  turn  the  illegal  method by  which  evidence  in  the            Government's  possession was  obtained to his  own advantage,            and provide  himself with  a shield against  contradiction of            his untruths").  The so-called "impeachment exception" to the            exclusionary  rule reflects  a balance  of values  underlying            that  rule.   See  James v.  Illinois,  493 U.S.  307, 311-12                          ___  _____     ________            (1990)  (acknowledging that the  truth-seeking function  of a            criminal trial is limited by the goal of discouraging lawless            searches  and seizures).  Thus, while defendants are "free to            testify  truthfully on their own behalf . . . without opening            the  door  to impeachment,"  id.  at  314, an  "affirmative[]                                         ___            resort to perjurious testimony" may be exposed by impeachment            with illegally obtained evidence, Walder, 347 U.S. at 65.3                                              ______                      When a  defendant  opens the  door  to  impeachment            through his statements on direct,  the government may try  to            establish that  his testimony is  not to be  believed through            cross-examination and the introduction of evidence, including                                            ____________________            2.  Tainted evidence illegally obtained from a  defendant may            not,  however, be used to  impeach trial witnesses other than            the testifying defendant.   James v. Illinois,  493 U.S. 307,                                        _____    ________            313 (1990).            3.  This  particular  mode of  impeachment  falls  within the            general category  of "impeachment by contradiction," which is            not specifically  treated in  the Federal Rules  of Evidence,            United  States v.  Cudlitz, 72  F.3d 992,  996 n.1  (1st Cir.            ______________     _______            1996),  but  is  governed  by  common-law  principles, United                                                                   ______            States v. Perez-Perez, 72 F.3d 224, 227 (1st Cir. 1995).            ______    ___________                                         -10-                                          10            tainted  evidence,  that contradicts  the  direct testimony.4            See  Oregon v.  Hass, 420  U.S.  714, 716-17,  721-22 (1975);            ___  ______     ____            Harris v. New York, 401 U.S. 222, 223-225 (1971); Walder, 347            ______    ________                                ______            U.S. at 63, 65.  When the assertedly false testimony is first            given  on cross-examination,  however, the  trial  judge must            gauge  how closely  the cross-examination  is connected  with            matters   explored  during   direct   before   invoking   the            impeachment exception  to the exclusionary rule.   See United                                                               ___ ______            States v. Havens, 446 U.S. 620, 626 (1980).            ______    ______                      In Havens, the Supreme Court held:                         ______                      a defendant's statements made in response                      to  proper  cross-examination  reasonably                      suggested   by  the   defendant's  direct                      examination  are   subject  to  otherwise                      proper  impeachment,  albeit by  evidence                      that has been illegally obtained and that                      is   inadmissible  on   the  government's                      direct case, or otherwise, as substantive                      evidence of guilt.                                            ____________________            4.  Here, Morla-Trinidad's travel to Maine and his possession            of cocaine  during that travel  are "non-collateral" matters,            i.e.,  matters that  are of  consequence to  this case.   See            ____                                                      ___            United States v.  Andujar, 49  F.3d 16, 26  (1st Cir.  1995).            _____________     _______            Typically, only  non-collateral matters such as  these may be            impeached (by  contradiction) with  extrinsic evidence.   See                                                                      ___            Perez-Perez, 72  F.3d at  227; United States  v. Pisari,  636            ___________                    _____________     ______            F.2d  855, 859 (1st Cir. 1981).   But see Charles A. Wright &                                              ___ ___            Victor J. Gold, Federal Practice and Procedure   6096 at 546-                            ______________________________            49  (1990)  (suggesting  that extrinsic  contradiction  on  a            collateral issue is  permissible where a  testifying criminal                                                                 ________            defendant opens  the door  to that  issue);  see also  United            _________                                    ___ ____  ______            States v. Havens,  446 U.S. 620, 624-25  (1980) (stating that            ______    ______            impeachment  of a defendant  with illegally obtained evidence            is constitutionally  permitted for non-collateral as  well as            collateral matters,  but not  discussing the effect  of other            evidentiary limitations).                                         -11-                                          11            Id. at 627-28.   Thus, the government may not  "smuggle[] in"            ___            the impeaching opportunity with a cross-examination  that has            "too tenuous a connection with any subject opened upon direct            examination."   Id. at 625;  see also United  States v. Ruiz-                            ___          ___ ____ ______________    _____            Batista,  956 F.2d 351, 352 n.1 (1st Cir.), cert. denied, 506            _______                                     _____ ______            U.S.  834 (1992).  Rather,  the questions on  cross must have            been "suggested to a  reasonably competent cross-examiner" by            the defendant's direct testimony.  Havens, 446 U.S. at 626.                                               ______                      Whether  or not  the  defendant's direct  testimony            "reasonably  suggests"  inquiry  on  cross-examination  about            events   involving  tainted  evidence   is  necessarily  case            specific.   See, e.g., Havens,  446 U.S. at  628 (defendant's                        ___  ____  ______            denial  of   involvement  with   the  concealment   of  drugs            reasonably   suggested   cross-examination   about   specific            materials found  for concealing the drugs);  United States v.                                                         _____________            Brandon, 847 F.2d 625, 628-29 (10th Cir.) (denial of bringing            _______            of drugs  into motel room triggered  inquiry and introduction            of  defendant's  bag,  found   in  room,  bearing  traces  of            cocaine), cert. denied, 488 U.S. 973 (1988); United States v.                      _____ ______                       _____________            Grubbs,  776 F.2d 1281, 1286-87 (5th Cir. 1985) (assertion of            ______            legitimacy of insurance services "opened door" to impeachment            with conversation implicating illegitimacy of business deal);            United  States v. Palmer, 691  F.2d 921, 922  (9th Cir. 1982)            ______________    ______            (assertion  that  cocaine  was  used  for  legitimate  dental            purposes  permitted  impeachment  with  personal-use  cocaine                                         -12-                                          12            paraphernalia); see  also United States v.  LeAmous, 754 F.2d                            ___  ____ _____________     _______            795,  798 (8th Cir.) ("By  painting a picture  of himself, on            direct  examination,  as  a  protector  of  young  girls  who            encouraged  alternatives  to   prostitution,  the   defendant            invited cross-examination concerning particular  instances of            his conduct to the contrary during the relevant time frame.")            (reviewing   case  not  involving  tainted  evidence),  cert.                                                                    _____            denied, 471 U.S. 1139 (1985).            ______                      Here,  Morla-Trinidad testified  on direct  that he            had seen  only two of the  government's witnesses previously,            and, with  regard  to  those  two  (Baez  and  Driggers),  he            specifically  denied any  drug-related  activity.    He  also            denied knowing  his indicted  codefendant, Peabody,  or Bubba            Lagasse,  the person  with  whom he  was  stopped during  the            September 1994 arrest.   Morla-Trinidad also stated on direct            that,  during the period of  the charged conspiracy, he spent            most of his time  in Massachusetts and New York  and traveled            to Maine only  once to see his attorney.   He maintained that            his only associate in Lewiston was a "woman friend."                      Morla-Trinidad's  testimony   could  be  reasonably            construed  as   both  a   contradiction  of   the  government            witnesses' testimony  and a denial of any  involvement in the            crack cocaine  ring underlying  the charged conspiracy.   See                                                                      ___            Havens, 446 U.S. at 628 (reasoning that defendant's testimony            ______            "could easily  be understood  as a  denial of any  connection                                         -13-                                          13            with  [incriminating  evidence]  and  as a  contradiction  of            [government witness's]  testimony").   We  think, and  Morla-            Trinidad  concedes as  much,  that the  prosecutor reasonably            brought  attention  to Morla-Trinidad's  direct  testimony by            exploring,  on  cross-examination,  when  and  how  often  he            traveled  to  Maine, with  whom he  met  there, and  for what            purposes.                      Morla-Trinidad's  direct   testimony  also  clearly            implied a denial that  he ever traveled to Lewiston  carrying            crack cocaine for distribution.   Thus, the disputed question            on cross-examination, "when  you visited Lewiston,  Maine, in            1994, did  you ever  possess crack cocaine?",  was reasonably            suggested by that implied denial.  His subsequent categorical            denial of  the foregoing question subjected  his testimony to            proper  impeachment,  including   the  probing  questions  on            further cross and the  rebuttal testimony about the illegally            seized  crack cocaine and cash.   See United  States v. Wood,                                              ___ ______________    ____            982  F.2d 1,  4 (1st  Cir. 1992)  (explaining that  the trial            judge enjoys discretion in deciding whether to admit rebuttal            evidence).                      Morla-Trinidad  also  suggests that  the impeaching            evidence was unfairly prejudicial and that the district court            abused its  considerable discretion  under Fed. R.  Evid. 403            when admitting it.  See Espeaignnette v. Gene Tierney Co., 43                                ___ _____________    ________________            F.3d  1, 5  (1st.  Cir. 1994)  (noting court's  "considerable                                         -14-                                          14            latitude"  in  determining the  relative weight  of probative            value  versus unfair effect).  We disagree.  The evidence was            of undoubted probative  value to Morla-Trinidad's credibility            on issues material to the case.  Moreover, the district court            alleviated  the danger  of unfair  prejudice by  (1) insuring            that  information   about  the  seized  marijuana   from  the            September  1994 arrest would not be conveyed to the jury, and            (2)  instructing  the jury,  on the  government's suggestion,            that it was  to use  the disputed evidence  only to  consider            Morla-Trinidad's credibility, not as substantive proof of the            crime  charged,5 see United  States v. Tejada,  974 F.2d 210,                             ___ ______________    ______            214 (1st Cir. 1992)  (finding no abuse in trial  judge's Rule            403 balancing, "particularly in light of the careful limiting            instruction given by the district court").                      In sum, we conclude that the district court did not            abuse its discretion in  permitting the government to impeach            Morla-Trinidad's testimony with questions about the September            1994  arrest  and the  tainted  evidence obtained  therefrom.            Thus, we do not  reach Morla-Trinidad's additional  arguments            that the evidence  was also inadmissible under Fed.  R. Evid.            404(b), and that the asserted error was not harmless.                                            ____________________            5.  In an  apparent misreading  of Havens, the  government on                                               ______            appeal asserts that this limiting instruction was unnecessary            and  suggests  that the  evidence  could have  been  used for            substantive  purposes.  The assertion is  clearly wrong.  See                                                                      ___            Havens,  446 U.S. at 627-628; see also James v. Illinois, 493            ______                        ___ ____ _____    ________            U.S. at 313 n.3 (approving similar instruction).                                         -15-                                          15                                         IV.                                         IV.                                         ___                                      Conclusion                                      Conclusion                                      __________                      For  the  reasons  stated  above,  we  affirm   the                                                             ______            judgment of the district court.                                         -16-                                          16
