
USCA1 Opinion

	




          April 21, 1994        [NOT FOR PUBLICATION]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1780                                    UNITED STATES,                                 Plaintiff, Appellee,                                          v.                               MAURICIO CARRERA NOVOA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            George  Garfinkle with  whom Richard  N.  Ivker  was on  brief for            _________________            __________________        appellant.            William F.  Sinnott, Assistant United  States Attorney, with  whom            ___________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                 ____________________                      Per  Curiam.   In this  appeal, defendant-appellant                      Per  Curiam.                      ____________            Mauricio   Carrera  Novoa,  a/k/a   John  Pimental  and  Jose            Pimental,  challenges   his  conviction  for   one  count  of            possession  of  cocaine with  intent  to  distribute, see  21                                                                  ___            U.S.C.   841(a)(1), and the sentence of incarceration imposed            therefor.  After carefully considering defendant's arguments,            we affirm.                      In asserting that his conviction should be reversed            or,  in  the  alternative,  that he  should  be  resentenced,            defendant  makes five  arguments.   None  requires  extensive            discussion.                      1.    Defendant  first contends  that  the district            court erred in finding that the arresting agents had probable            cause  to search  the  gym bag  from  which the  cocaine  was            seized.  We do not agree with this contention.                      The  court  supportably  found that  the  arresting            agents,   in  conducting  their  initial  surveillance,  were            relying upon trustworthy information from  three confidential            informants indicating,  inter alia,  that (i) an  individual,                                    _____ ____            one  of whose aliases was  Jose Louis Pimental,  ran a large-            scale cocaine ring from an  apartment at 131 Coolidge  Avenue            in  Watertown, Massachusetts;  (ii)  Pimental's brother,  the            defendant  here,  typically  removed  the  drugs   from  this            apartment for transportation elsewhere; (iii)  that defendant            John/Jose was  known to operate  a gray Mitsubishi;  and (iv)            that  a multi-kilogram  shipment of  cocaine was  expected to            arrive at this apartment prior to March 25, 1992.                      The  court  also  supportably  found  that,  on the            morning of March  25, 1992,  one or more  of the  surveilling            agents observed, inter alia, (a) a gray Mitsubishi, which was                             _____ ____            registered to a Jose  Pimental, drive into the garage  at 131            Coolidge  Avenue; (b) defendant exit  the car and walk toward            the building's  elevators; and  (c) defendant return  a short            time  later carrying a bag  which appeared to  be quite heavy            and bulky (and  which, in the  estimation of the  experienced            arresting agents, had an  appearance consistent with a method            of transporting  large quantities  of drugs).   In  our view,            these  findings  are  more  than sufficient  to  sustain  the            district court's determinations, in light of the totality-of-            the-circumstances, see United  States v. Torres-Maldonado, 14                               ___ ______________    ________________            F.3d 95,  105 (1st  Cir. 1994),  that probable cause  existed            both to  arrest defendant  for possession of  contraband, see                                                                      ___            United States  v. Figueroa,  818 F.2d  1020,  1023 (1st  Cir.            _____________     ________            1987) (probable cause to  arrest attaches when the  facts and            circumstances within the knowledge  of police officers and of            which they  have trustworthy information are  "`sufficient to            warrant a prudent person in believing that the defendant  had            committed or  was committing  an offense'") (quoting  Beck v.                                                                  ____            Ohio, 379 U.S. 89, 91 (1964)), and to remove the bag from the            ____            Mitsubishi's trunk and  search it, see Illinois v. Gates, 462                                               ___ ________    _____                                         -3-                                          3            U.S. 213, 238 (1983) (probable cause  to search attaches when            there is "a fair probability that contraband or evidence of a            crime  will  be  found  in a  particular  place");  see  also                                                                ___  ____            California v.  Acevedo, 111 S. Ct. 1982,  1991 (1991) (police            __________     _______            officers  may  search  any  container  within  an  automobile            without  a warrant  so long  as they  have probable  cause to            believe the container contains contraband).                      Accordingly,  the  court  did  not err  in  denying            defendant's motion to suppress.1                      2.   Defendant next argues that  the district court            abused its discretion in allowing the government to introduce            evidence  against  him  relating  to  the  warrant-authorized            search of Apartment #624  at 131 Coolidge Avenue on  the same            day  of his arrest.   In so  doing, he contends  (1) that the            evidence  was not relevant; and (2)  in the alternative, that            its  probative  value  was  substantially  outweighed by  its            prejudicial  effect upon the jury.  We reject these claims as            well.                      The  district court  determined that  the contested            evidence  --  the fact  that  defendant  possessed  a key  to            Apartment #624 at the time of his arrest; the fact that eight            kilograms of cocaine seized  from the apartment were packaged                                            ____________________            1.  In so  ruling, we obviously reject defendant's contention            that  the  arresting  agents'  relative  lack   of  knowledge            regarding (1)  defendant's physical description, and  (2) the            exact time the  narcotics would be taken from  the apartment,            deprived them of probable cause to arrest and search.                                         -4-                                          4            in the same distinctive manner as the twelve kilograms seized            from defendant's bag; and the fact that defendant's brother's            bank  statement, a  ledger,  and approximately  $18,600  were            found  in the apartment -- was evidence of a drug trafficking            operation of  which the  cocaine seized from  defendant's bag            was  a part.  The court further determined that this evidence            was  relevant   to,  inter  alia,  the   contested  issue  of                                 _____  ____            defendant's  intent  in   possessing  the  cocaine.     These            determinations were well within  the court's discretion.  See                                                                      ___            United  States  v. Sepulveda,  15 F.3d  1161, 1193  (1st Cir.            ______________     _________            1993).2                      The district  court, after  engaging in the  proper            balancing process, also concluded that the probative value of            this evidence  was not  substantially outweighed by  a danger            that it might cause unfair prejudice.  See Fed. R. Evid. 403.                                                   ___            Defendant  provides  no  specific  argument  (other than  his            general complaint that the court erred in so concluding) that            this  conclusion was erroneous.   Nor does our  review of the            record  reveal  a legitimate  basis  for  any such  argument.            Thus, the  court's ruling  in this regard  must be  affirmed.                                            ____________________            2.  Defendant also argues that  because he lacked standing to            contest  the  search of  the  apartment  on Fourth  Amendment            grounds,  the  government  should  be required  "to  meet  an            extraordinary burden  in its showing of  relevance."  Without            in any way endorsing defendant's dubious proposition, we note            that,  in  our view,  the  contested  evidence was  extremely            relevant  and was  therefore,  under any  putative  relevance            standard, properly admitted.                                         -5-                                          5            See Pinkham v. Burgess,  933 F.2d 1066, 1071 (1st  Cir. 1991)            ___ _______    _______            (noting the  extraordinarily  broad discretion  we  afford  a            trial  court's   on-the-spot  judgment  as   to  whether  the            probative value of certain relevant evidence is substantially            outweighed by the danger of unfair prejudice).                      Accordingly, the court did not err in admitting the            aforementioned evidence against defendant.                      3.   Defendant's third  argument -- similar  to his            second -- is that the district court abused its discretion in            allowing  the government  to  introduce  evidence  concerning            defendant's   prior   drug-related  arrest   and  conviction.            Defendant contends that this  evidence only was introduced to            show his propensity to  commit a crime, in violation  of Fed.            R. Evid. 404(b).  Once more, we are not persuaded.                      As we  have said, intent  was a contested  issue in            this  case.     Indeed,  it  appears   that  challenging  the            government to prove intent beyond a reasonable  doubt was one            of  the primary trial strategies engaged in by defendant.  In            light  of this fact, there is no  basis for us to disturb the            court's  finding  that the  evidence  of  the conviction  was            admissible to  prove intent  under Rule  404(b).   See United                                                               ___ ______            States v.  Rivera-Sola, 713  F.2d  866, 871  (1st Cir.  1983)            ______     ___________            (defendant's  attorney's  statements  and  cross-examination,            designed  to contest  the  issue of  intent, provided  proper            basis  for the introduction of  Rule 404(b) evidence to prove                                         -6-                                          6            intent); cf. United  States v.  Karas, 950 F.2d  31, 37  (1st                     ___ ______________     _____            Cir. 1991) (defendant's attorney's opening statement alone is            insufficient basis for admitting Rule 404(b) evidence).                      After conducting the balancing  analysis prescribed            by  Rule 403,  the  district court  also  concluded that  the            probative  value  of  this  evidence  was  not  substantially            outweighed  by  its potential  for  unfair  prejudice.   Once            again,  defendant  has not  presented  us  with any  specific            argument that the  court erred  in so concluding.   And  once            again, our review  reveals no  legitimate basis  for such  an            argument.  See Pinkham, 933 F.2d at 1071.                       ___ _______                      Accordingly,  it  was  not   error  to  admit   the            aforementioned evidence against defendant.                      4.  Defendant next  argues that the court committed            clear  error, see United States v. Bradley, 917 F.2d 601, 605                          ___ _____________    _______            (1st Cir. 1990),  in determining, by  a preponderance of  the            evidence, see United States v. Valencia-Lucena, 988 F.2d 228,                      ___ _____________    _______________            232 (1st  Cir. 1993),  that the  eight  kilograms of  cocaine            seized  from Apartment  #624 were,  for  sentencing purposes,            part  of  the same  scheme or  plan  as the  twelve kilograms            seized  from defendant's  bag.   Our  review  of the  record,            however, reveals no  error in this  determination.  The  same            evidence which  linked defendant  to the apartment  and which            made these eight kilograms  of cocaine admissible against him                                         -7-                                          7            at trial provides a more than sufficient basis to support the            challenged sentencing finding.                      Accordingly, the  court did not err  in taking this            evidence into account at sentencing.                      5.  Finally, defendant asserts that the court erred            in  allowing his prior drug-related conviction  to be used to            enhance  his sentence.  His  argument is two-fold:   (1) that            his  conviction was not "final"  for purposes of  21 U.S.C.              841(b)(1)(A)3 because,  although  he pleaded  guilty  to  the            offense, he failed to appear at  sentencing for that offense;            and (2) that  his conviction was  constitutionally defective.            The problem with this argument is that the district court did            not use the prior conviction to enhance defendant's sentence;            instead,  the sentencing  transcript reveals  beyond question            that  the district  court sentenced  defendant to  246 months            under  the 210-262 month range  made applicable by the United            States  Sentencing   Guidelines.     The   district   court's            subsequent  finding that defendant's conviction was final for            purposes of   841(b)(1)(A)  was patently superfluous, did not            influence  the sentence, and  was made solely  to protect the                                            ____________________            3.  In pertinent part,   841(b)(1)(A) states:                      If  any person  commits such  a violation                      after  a prior  conviction  for a  felony                      drug  offense  has  become   final,  such                      person  shall be sentenced  to a  term of                      imprisonment which  may not be  less than                      20  years   and   not  more   than   life                      imprisonment . . . .                                         -8-                                          8            interests  of  the United  States in  the event  the sentence            imposed  somehow was  otherwise unlawful  (which it  is not).            Accordingly,  all   questions  regarding  the   finality  and            constitutionality   of   defendant's  prior   conviction  are            immaterial to this appeal.                      Affirmed.                      Affirmed.                      ________                                         -9-                                          9
