
USCA1 Opinion

	




          February 12, 1993                            UNITED STATES COURT OF APPEALS                                For The First Circuit                                 ____________________        No. 92-1858                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              OLGIVIE O'BRIEN WILLIAMS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. John J. McNaught, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            James L. Sultan for appellant.            _______________            Robert L.  Ullmann, First  Assistant U.S. Attorney,  with whom  A.            __________________                                              __        John Pappalardo, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                  February 12, 1993                                 ____________________               COFFIN,  Senior Circuit  Judge.   Defendant Olgivie  O'Brien               ______________________________          Williams  appeals  his conviction  on  charges  of conspiracy  to          possess  cocaine  with intent  to distribute,  possessing cocaine          with intent to distribute,  and using or carrying a  firearm in a          drug trafficking crime.  We affirm.                                          I.               We begin  with a brief synopsis  of the facts,  taken in the          light most supportive of the verdict, United States v. Karas, 950                                                _____________    _____          F.2d 31, 35 (1st Cir. 1991), and the prior proceedings.               From December 1986  to April 1987,  Williams and eleven  co-          conspirators participated  in  a cocaine  distribution scheme  in          Boston.  They operated  a packaging center and retail  outlets in          three  apartments.   On  March 5,  1987,  at the  Westmore Street          outlet, the conspirators caught Herbert  Beeche, a tenant in  the          building,  spying  on  them as  they  were  weighing  cocaine and          tallying their profits.   That night, Beeche was summoned  to the          conspirators'  apartment.   Williams accused  Beeche of  being an          informer  and threatened  to  kill  him.    Williams  and  a  co-          conspirator  bound  and  gagged  Beeche  and  placed  him  in the          bathtub.  Williams then shot Beeche in the thigh.               Later that month, the Boston police executed search warrants          at  two of the conspirators'  outlets.  The  searches uncovered a          small  quantity of  cocaine,  drug  paraphernalia, firearms,  and          ammunition.  Eight of the conspirators ultimately were arrested.               Williams  and  six  co-conspirators were  tried  jointly  in          1988.1   At  trial,  the government  presented  the testimony  of          Beeche  and Lisa Gray, a  girlfriend of one  of the co-defendants          during part of  the conspiracy.   Both witnesses testified  about          the drug preparation and transactions  they had witnessed at  the          various  outlets  and  stated that  they  had  seen  many of  the          conspirators,   including   Williams,   routinely  carrying   and          displaying firearms during these transactions.                 The  jury convicted  Williams  on all  three counts  against          him.2  Williams raises two claims  on appeal:  that testimony  at          trial was admitted  improperly against him and  that the district          court  improperly limited  his  cross examination  of  Gray.   We          discuss each issue in turn.                                         II.               Williams contends that the district court permitted the jury          to hear evidence from Gray of  past conduct that should have been                                        ____________________               1   One of the six co-defendants received a severance during          trial and later pleaded guilty to the one count against him.  All          five of the remaining co-defendants also were convicted, and four          of  them  appealed.   This  court affirmed  their  convictions in          United States v. Walters, 904 F.2d 765 (1st Cir. 1990).  Williams          _____________    _______          raises  issues  on appeal  that  were  not advanced  in  Walters.                                                                   _______          Another conspirator, who was tried separately, also was convicted          and had his  conviction affirmed.   United States  v. Green,  887                                              _____________     _____          F.2d 25 (1st Cir. 1989).                 2  Williams's trial counsel  indicated at sentencing that he          would  file a notice  of appeal but  did not.   In 1991, Williams          filed  a habeas  corpus petition in  district court,  seeking, in                   ______  ______          effect, the right to  appeal his conviction.   On June 11,  1992,          Williams's prior  judgment was vacated and  his original sentence          re-imposed.  Williams's new counsel then filed a timely notice of          appeal.                                           -3-          excluded  under Fed. R. Evid.  404(b).3  Gray  testified that, in          December 1986, Williams had told her that "he had killed a couple          of people."   Tr. Vol.  III at 66.   Following a  lengthy sidebar          conference, the  district  court admitted  the  evidence  without          explanation.   Williams argues  that the  sole purpose  of Gray's          testimony, especially in light of its repetition to the jury, id.                                                                        __          at 107, was to demonstrate that he had a bad character which made          him  more likely to  commit the drug-related  offenses charged in          the indictment.                 This  court  has adopted  a  two-part test  to  analyze Rule          404(b)  evidence.  United States v. Nickens, 955 F.2d 112, 123-24                             _____________    _______          (1st Cir. 1992);  United States v. Oppon, 863  F.2d 141, 146 (1st                            _____________    _____          Cir. 1988).  First, the district court must determine whether the          evidence has any "special relevance" to a material issue, such as          motive,  intent, or plan.   Nickens, 955 F.2d at 123.   If so, it                                      _______          must  determine,  pursuant to  Fed.  R. Evid.  403,4  whether the                                        ____________________               3  Rule 404(b) provides:               Evidence  of  other  crimes,  wrongs, or  acts  is  not               admissible to  prove the character of a person in order               to  show  action  in  conformity therewith.    It  may,               however,  be  admissible for  other  purposes,  such as               proof  of  motive,  opportunity,  intent,  preparation,               plan, knowledge,  identity,  or absence  of mistake  or               accident.               4  Rule 403 provides:               Although  relevant,  evidence may  be  excluded  if its               probative  value  is  substantially  outweighed  by the               danger of unfair prejudice, confusion of the issues, or               misleading  the jury,  or  by  considerations of  undue               delay,  waste  of  time,  or  needless  presentation of               cumulative evidence.                                         -4-          probative value  of the  evidence  outweighs the  risk of  unfair          prejudice.  Id. at  124.  We review the district court's decision                      __          to admit the evidence for  abuse of discretion.  Karas, 950  F.2d                                                           _____          at 36; Walters, 904 F.2d  at 768.  Having done so,  we agree with                 _______          Williams that the evidence was admitted improperly.               At trial, the government  virtually admitted that it offered          the statement for its  value as evidence of  criminal propensity.          During  the sidebar  conference, the  government argued  that the          statement  was relevant  because  Williams  and a  co-conspirator          "talk  about how bad they  are.  How  tough they are."   Tr. Vol.          III. at 70.   In essence, the government offered the  evidence so          that the jury would  infer that, because Williams was  or claimed          to  be a  murderer, he  was more  likely than  not also  to be  a          cocaine  trafficker who uses  guns in his  business.   The use of          "other  acts"  evidence  to demonstrate  criminal  propensity  is          specifically forbidden by Rule 404(b).  Accordingly, the district          court erred in admitting the statement.               On appeal,  the  government characterizes  the  evidence  of          Williams's prior wrongdoing as evidence of his plan to  establish          and operate a cocaine distribution business by means of his modus                                                                      _____          operandi  of  intimidation.    Gray earlier  had  testified  that          ________          Williams unsuccessfully had offered her mother double rent for an          apartment  located   near  the  Westmore  Street   outlet.    The          government  claims  that  Williams's  revelation that  he  was  a          murderer is admissible under Rule 404(b) to illustrate his use of                                         -5-          both  "carrot" and "stick" to  locate an apartment  from which to          sell cocaine.                 Neither  the law  nor the  record supports  the government's          argument.  Evidence  of modus operandi  is admissible under  Rule                                  _____ ________          404(b) to  prove  identity, see  generally 22  C.A. Wright,  A.R.                                      ___  _________          Miller, &  E.H. Cooper, Federal Practice and Procedure ("Wright &                                  ______________________________          Miller")   5246, at  512-13 (1978), but identity is  not disputed          in  this case.5    Moreover, at  trial,  the government  made  no          effort to link the "carrot" and the alleged plan to the "stick."               The manner  in which the government  conducted Gray's direct          examination manifests the disjunction between the attempt to rent          an apartment  from her mother  and Williams's statement  to Gray.          After eliciting  testimony  regarding  the  failed  attempt,  the          government switched to a line  of questions regarding the  Nelson          Street outlet.   It next solicited the in-court identification of          two co-conspirators.  Only  then did it begin the  exploration of          Williams's and some of the other conspirators' backgrounds, which          produced   the  other-acts  evidence.     Having  introduced  the          challenged statement, the  government did not  connect it to  the          attempt to  rent an apartment.  Nor  did it suggest that Williams          had made the statement to intimidate  Gray or her mother or  that                                        ____________________               5  Even were identity disputed, the government's position is          untenable.   For conduct to be characterized as a modus operandi,                                                            _____ ________          it generally must be "`so unusual and distinctive as to be like a          signature.'"   22 Wright & Miller at 513 (quoting C.T. McCormick,          Evidence    190,  at  449  (1972)).    On  this  record,  neither          ________          Williams's boast of committing or actual commission of  murder is          so  distinctive a  device as  to prove his  identity as  the drug          trafficker in this case.                                           -6-          Gray's mother even knew of the statement.  Indeed, the government          did not place the evidence into any context, other than temporal,          related to the development or operation of the drug conspiracy.               The  finding  of  error  does  not,  however,  conclude  our          inquiry.  We still must determine whether the error was harmless.          Karas, 950  F.2d at 37-38.  We hold that it was.  Having reviewed          _____          the entire record and considered the probable impact of the error          on  the minds of the  jurors, we conclude  "`with fair assurance,          after pondering all that happened without stripping the erroneous          action  from the  whole,  that  the  [jurors'] judgment  was  not          substantially swayed by the error.'"  United States v. Burke, 948                                                _____________    _____          F.2d 23, 27 (1st Cir. 1991) (quoting United States v. Mazza,  792                                               _____________    _____          F.2d  1210, 1216-17 (1st Cir.  1986) (quoting Kotteakos v. United                                                        _________    ______          States, 328 U.S. 750, 765 (1946))).            ______               Williams's possible  status as a murderer was offered to the          jury through other properly  admitted evidence.  Beeche testified          without  objection that he, too, knew that Williams claimed to be          a  murderer.   Gray  testified that  she  had overheard  Williams          threatening  to kill  a  co-conspirator when  money from  cocaine          sales  began to  come  up short.    Under the  circumstances,  we          conclude  that the admission of Williams's  statement to Gray had          little prejudicial impact on the jury's judgment.               Furthermore,  the record  contains ample  evidence to  prove          Williams's  involvement in a drug conspiracy and use of a firearm          in connection with it.   Beeche testified that Williams  shot him          in the thigh for being an informer.  Gray testified that Williams                                         -7-          was responsible for delivering cocaine to the retail outlets  and          collecting the  proceeds.   Both Gray  and Beeche  testified that          Williams routinely was armed while cocaine was being packaged and          sold.  A videotape  portrayed Williams brandishing a gun  while a          co-conspirator  counted  money  on  a  kitchen  counter   bearing          cocaine.   In  light  of this  evidence,  we think  it  extremely          unlikely that  the improperly admitted evidence  swayed the jury.          See Mazza, 792 F.2d at 1221 (fair assurance standard satisfied if          ___ _____          it is highly probable  that the challenged action did  not affect          the judgment).               Because  we  find  the  admission of  this  evidence  to  be          harmless,  we  do not  reach the  question  of whether  the court          committed an abuse  of discretion in admitting the evidence under          Rule  403.  Karas,  950 F.2d at  38; United  States v. Hernandez-                      _____                    ______________    __________          Bermudez, 857 F.2d  50, 54 (1st Cir. 1988).   Nor is it necessary          ________          to review the  court's failure to  issue a limiting  instruction,          especially where trial counsel  did not request one.   See United                                                                 ___ ______          States v. De La Cruz, 902  F.2d 121, 124 (1st Cir. 1990) (stating          ______    __________          general  rule that  failure of  trial court  sua sponte  to issue                                                       ___ ______          limiting instruction is not reversible error).                 Our finding of harmless error does not lessen our continuing          conviction that the government and the courts must exercise great          caution in  handling  evidence of  other  bad acts.    Williams's          statement was  unrelated to the  offenses charged and  was highly          inflammatory.  To infect  and jeopardize a prosecution  with such          evidence is unwise and unjustifiable.  It comes with ill grace to                                         -8-          introduce marginally justifiable evidence  and then to defend its          use by  arguing that there was so much evidence of guilt that any          error would be harmless.  Courts, in turn, should remain vigilant          to  whether  other-acts  evidence  serves  a genuinely  probative          purpose  that   substantially  outweighs  the   risk  of   unfair          prejudice.6  Hernandez-Bermudez, 857  F.2d at 54.  At  a minimum,                       __________________          courts routinely may  wish to issue  an instruction limiting  the          use  of Rule  404(b)  evidence, Oppon,  863 F.2d  at  147, or  to                                          _____          ascertain whether defense counsel desires one.                                         III.               Defendant  also contends  that the  district court  erred in          limiting  his cross  examination  of Gray.   Defendant  sought to          inquire into  Gray's knowledge regarding the  preparation and use          of  cocaine   and  her  brother's  alleged   cocaine  dealing  to          demonstrate that she was induced to cooperate with the government          to protect herself or her brother.               The  Sixth  Amendment  to  the   Constitution  guarantees  a          criminal defendant  the right  to confront the  witnesses against          him.  An  essential component  of this right  is the  defendant's          prerogative  to  establish the  biases,  prejudices, or  ulterior          motives  of these witnesses through cross  examination.  Davis v.                                                                   _____          Alaska, 415 U.S.  308, 315-17 (1974);  United States v.  Kepreos,          ______                                 _____________     _______                                        ____________________               6   We recognize,  however, that express  findings regarding          the challenged evidence are  not necessary so long as  the record          indicates that the district  court did weigh the  balance between          the  probative value  and  the prejudicial  effect.   See  United                                                                ___  ______          States v. Santagata, 924 F.2d 391, 394 (1st Cir. 1991) (citing De          ______    _________                                            __          La Cruz, 902 F.2d at 123 n.1).          _______                                         -9-          759 F.2d 961,  965 (1st Cir. 1985).   The trial court, therefore,          must permit sufficient cross examination  to enable the jury "`to          make  a  discriminating  appraisal  of the  possible  biases  and          motivations  of the witness.'"   Niziolek v. Ashe,  694 F.2d 282,                                           ________    ____          289  (1st Cir. 1982) (quoting  United States v.  Tracey, 675 F.2d                                         _____________     ______          433, 437 (1st Cir. 1982)).                 So long as  it satisfies this  standard, the district  court          retains  wide discretion  to  impose reasonable  limits to  avoid          prejudice, confusion  of the issues, harassment,  repetition, and          inquiry  into  marginally  relevant  issues.    Delaware  v.  Van                                                          ________      ___          Arsdall, 475 U.S. 673,  679 (1986); United States v.  Twomey, 806          _______                             _____________     ______          F.2d  1136, 1139 (1st  Cir. 1986).   "If the jury  has sufficient          evidence before  it bearing  on the  witness'[s] bias, the  court          need  not permit unending  excursions into each  and every matter          touching upon  veracity."   Kepreos, 759  F.2d  at 965  (citation                                      _______          omitted).                 To  establish  that  the   district  court  has  abused  its          discretion, the defendant must  show that the limitations imposed          were  clearly prejudicial.  Twomey,  806 F.2d at  1140.  Williams                                      ______          has  not carried  this  burden.   We,  therefore, find  that  the          decision  to exclude  certain testimony  fell within  the court's          discretion.               The district  court allowed  all defense  counsel, including          Williams's, ample opportunity to undermine  Gray's credibility by          probing  her bias and motive  for testifying.   See generally Tr.                                                          ___ _________          Vol IV  at 30-158.  The court did not preclude any defendant from                                         -10-          exploring Gray's  involvement with  the cocaine trade  but barred          only  a few questions of  marginal relevance.   Its decisions did          not harm  defendant because the relevant  information reached the          jury  through  the interrogation  by  his and  the  other defense          counsel.                 The  intensive  cross  examination  thoroughly  delved  into          Gray's  unsavory  connection  with  narcotics.   It  exposed  her          cocaine  use, her  sale of  marijuana,  her knowledge  of cocaine          trafficking,  and  her  involvement  with and  knowledge  of  her          brother's drug  trafficking.   Gray  admitted that  she had  been          arrested in December 1987 at her mother's house for possession of          cocaine, that a search of the house uncovered cocaine, marijuana,          drug paraphernalia,  and a  gun, and  that the charges  resulting          from this arrest subsequently were dismissed.   She also admitted          that she was testifying under immunity from the government.                 Gray's cross examination thus  provided an extensive "record          from which to argue why [she] might have been biased or otherwise                              ___          lacked  that degree  of  impartiality expected  of  a witness  at          trial."   Davis, 415 U.S.  at 318  (emphasis in original).   From                    _____          this  record,  various  defense  counsel,  including  Williams's,          argued  plausibly   that  Gray   was  implicated  in   a  cocaine          trafficking  ring and  that her  cooperation with  the government          stemmed from her desire to  protect herself from prosecution  and          to divert police attention from that drug ring.                 The jury had more than enough information to appraise Gray's          credibility.   Accordingly, we find that the exclusion of certain                                         -11-          questions  about Gray's  familiarity  with cocaine  and with  her          brother's drug trade was not an abuse of the court's discretion.               Affirmed.               ________                                             Concurrence follows.                                         -12-               TORRUELLA,  Circuit Judge  (Concurring).   I agree  with the                           _____________          analysis  and result of this case.   I write separately simply to          express my exasperation at  the repeated abuse of Rule  404(b) by          government prosecutors.                                           -13-
