
USCA1 Opinion

	




          February 4, 1993                              UNITED STATES COURT OF APPEALS                                   FOR THE FIRST CIRCUIT                                   ____________________          No. 92-1427                                      UNITED STATES,                                         Appellee,                                            v.                                      JOSE A. GARCIA,                                   Defendant, Appellant.                                   ____________________          No. 92-1428                                      UNITED STATES,                                         Appellee,                                            v.                                     PABLO H. GARCIA,                                   Defendant, Appellant.                                   ____________________                       APPEALS FROM THE UNITED STATES DISTRICT COURT                             FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Ronald R. Lagueux, U.S. District Judge]                                                ___________________                                   ____________________                                          Before                                    Breyer, Chief Judge,                                            ___________                              Bownes, Senior Circuit Judge,                                       ____________________                                 and Selya, Circuit Judge.                                            _____________                                   ____________________              John M. Cicilline, for defendant-appellant Jose A. Garcia.              _________________              Francis J. Gillan, III, for defendant-appellant Pablo H. Garcia.              ______________________              Zechariah  Chafee,  Assistant United  States  Attorney, with  whom              _________________          Lincoln C. Almond, United States Attorney, was on brief, for appellee.          _________________                                 ____________________                                 ____________________                      BOWNES,  Senior  Circuit Judge.    Defendants Pablo                               _____________________            Garcia and Jose  Garcia (no relation) were tried  jointly and            convicted by a jury in  federal district court for possession            of cocaine  with intent to distribute, in  violation of Title            21 U.S.C.   841(a)(1), and conspiracy to possess cocaine with            intent  to distribute, in violation of Title 21 U.S.C.   846.            On  appeal, defendants-appellants  both argue:  (1) that  the            evidence  was  insufficient to  support the  convictions; (2)            that the  district judge  erred in vacating  the magistrate's            order   compelling   the  attendance   of   the  government's            confidential informant at a suppression hearing; and (3) that            the  district  judge erred  in  failing  to suppress  certain            evidence.   In addition,  defendant Pablo Garcia  argues that            the district judge  erred in admitting evidence  of his prior            arrest pursuant to Fed. R. Evid. 404(b).  We affirm.                                          I.                                          I.                                      Background                                      Background                                      __________                      On February 6, 1991, the Providence police executed            a  search  warrant for  narcotics  and related  items  in the            second floor apartment of  a three-story tenement building at            93-95 Gallatin Street.  The  search warrant had been obtained                                                pursuant  to information  the police  received to  the effect            that drug  trafficking was being conducted  in the apartment.            The  police had  confirmed  the information  by conducting  a            "controlled  buy."   In  executing  the  warrant, the  police            announced their presence,  waited approximately ten  seconds,            and receiving  no response,  proceeded forcibly to  enter the            apartment.    Upon their  entry,  the  police found  the  two            defendants and  a woman holding a child  in the front room of            the apartment.  The woman, Altagracia Lopez, shared the front            room of  the  apartment  with  Oscar Quinones,  who  was  not            present at the time of the defendants' arrest.                      Defendants were made to lie on the  floor while the            police initiated  a search  of the  apartment.   INS  Special            Agent  Bernstein testified  that  he gave  defendants Miranda                                                                  _______            warnings in Spanish.  In the  closet of the back bedroom, the            police  found approximately  ten  and  one-half  ounces  (295            grams) of suspected cocaine in one of several opaque  plastic            bags  on the  closet's  floor.   The  substance later  tested            positive  as  cocaine, and  was  valued  between $13,650  and            $16,800.   Also in the  closet were articles  of clothing and            scattered  papers,  including  a  bill  of  sale  and  a  car            registration in  the name of  Pablo Garcia registered  to the            address  of 93-95 Gallatin Street.   Under a  mattress in the            front room, the police discovered a passport for Pablo Garcia            and a number of  notebooks with figures and names  that a DEA            agent testified were  records of narcotics  dealing.  In  the            box spring  under the  mattress, the  police found  $1,308 in            cash.   Finally,  on the  kitchen counter,  police discovered            plastic ziploc  bags that had  been cut,  and a candle  and a                                         -3-            strainer.  At  trial, DEA  agents testified  that these  were            packaging materials for cocaine distribution.                       The police took Pablo  and Jose separately into the            room where the cocaine had been found, and asked each of them            to identify a piece of clothing that belonged to them.  Pablo            picked out a shirt and jacket (later revealed to be a woman's            jacket).   Jose picked out a  shirt.  Also in  that room were            two  mattresses, one of  which was propped  against the wall.            The  closet in the  back bedroom was  the only  closet in the            apartment.                      Both   defendants  took  the  stand  at  trial  and            testified in  their own defense.   While admitting  that they            both slept in the room  in which the cocaine was  found, they            denied  knowing that there was  cocaine in the  closet.  Both            also  denied  knowing  of  the  presence  of  the other  drug            paraphernalia  in the  apartment or  of any  drug trafficking            operation.                        Defendants  presented  different  explanations  for            their presence in the apartment.   Jose Garcia testified that            he had lived in the back room at  93-95 Gallatin Street since            the previous August or  September.  He said that  he had been            in  Santo Domingo  from December 23,  1990 until  January 23,            1991,  and that he  had spent a  few days in  New York before            returning  to Providence.    He returned  to find  that Pablo            Garcia, whom  he had never  met, was  staying in the  room he                                         -4-            rented.   He testified that  he had been trying  to move from            the apartment when the arrest took place, and that he already            had moved many of his belongings to a friend's home.                      Pablo Garcia  testified that he lived  in New York,            but had come to Providence in February to stand trial for his            arrest,  in  December 1990,  for  cocaine  trafficking.   The            district judge had, before Pablo testified, admitted evidence            of this  prior arrest  as probative of  defendant's knowledge            and  intent  to  commit   the  offenses  at  issue.     Pablo            acknowledged  that  he was  a friend  of Oscar  Quinones, but            maintained that he did not know  Jose Garcia, and that he had            no real control over the room or the apartment because he was            only temporarily residing there.                                           II.                                         II.                             Sufficiency of the Evidence                             Sufficiency of the Evidence                             ___________________________                      Defendants   both  appeal   the  denial   of  their            respective  motions for  judgment of  acquittal.1   Both were            convicted of  possessing and  conspiring  to possess  cocaine            with the intent  to distribute.   Defendants assert that  the            prosecution failed to prove,  beyond a reasonable doubt, both            knowing possession of the  cocaine and their participation in            a conspiracy to possess cocaine.                                            ____________________            1  Pablo  Garcia  and  Jose  Garcia  have  each  adopted,  by            reference, the other's brief.  See F.R.A.P. 28(i).                                           ___                                         -5-                      The   standards  governing   a  challenge   to  the            sufficiency of the evidence are familiar and oft-quoted:                      The challenges to  the sufficiency of the                      evidence and to the  denial of the motion                      for judgments of acquittal raise a single                      issue.  We assess the  sufficiency of the                      evidence  as  a   whole,  including   all                      reasonable inferences, in the  light most                      favorable to the verdict,  with a view to                      whether  a rational  trier of  fact could                      have  found the defendant guilty beyond a                      reasonable  doubt.     We  do  not  weigh                      witness  credibility,   but  resolve  all                      credibility  issues  in   favor  of   the                      verdict.   The  evidence may  be entirely                      circumstantial,  and   need  not  exclude                      every reasonable hypothesis of innocence;                      that is, the  factfinder may decide among                      reasonable    interpretations   of    the                      evidence.            United States v. Batista-Polanco, 927  F.2d 14, 17 (1st  Cir.            _____________    _______________            1991) (citations  omitted).  See also United States v. Lopez,                                         ___ ____ _____________    _____            944 F.2d 33, 39 (1st Cir. 1991).                          A.  Substantive Offense            A.  Substantive Offense                ___________________                      The charge of possession with intent to  distribute            cocaine requires, in the context of this case, proof beyond a            reasonable doubt that the cocaine found  in the closet within            the room shared by defendants was knowingly and intentionally            possessed by them  for purposes of distribution.   See United                                                               ___ ______            States  v.  Vargas,  945  F.2d  426,  428  (1st  Cir.  1991).            ______      ______            "Possession may  be actual  or constructive, sole  or joint."            United  States v. Wight, 968 F.2d 1393, 1397 (1st Cir. 1992);            ______________    _____            United  States  v. Vargas,  945  F.2d at  428.   Constructive                                                                         ______________     ______                                         -6-            possession is proved when a person  "`knowingly has the power            and  intention  at a  given  time  to  exercise dominion  and            control over an object,  either directly or through others.'"            United States  v. Ocampo-Guarin, 968 F.2d  1406, 1409-10 (1st            _____________     _____________            Cir.  1992) (quoting United States  v. Lamare, 711  F.2d 3, 5                                 _____________     ______            (1st Cir. 1983)).  See also United States v. Vargas, 945 F.2d                               ___ ____ _____________    ______            at  428 (constructive  possession found  where defendant  was            sole tenant  and occupant  of apartment immediately  prior to            police raid); United States  v. Barnes, 890 F.2d 545,  549-50                          _____________     ______            (1st   Cir.  1989)   (constructive  possession   found  where            defendant leased  apartment that  was  jointly occupied  with            others), cert. denied, 494 U.S. 1019 (1990); United States v.                     _____ ______                        _____________            Calle-Cardenas, 837  F.2d 30,  32 (1st Cir.)  (reasonable for            ______________            jury to  find defendant  exercised dominion and  control over            area where contraband was  found because three occupants were            dressed similarly and all three names appeared on door at the            time of the raid),  cert. denied, 485 U.S. 1024 (1988).   The                                _____ ______            government may show  constructive possession through  the use            of either  direct or circumstantial evidence.   Mere presence            or association with another  who possessed the contraband is,            however, insufficient to  establish constructive  possession.            United  States v. Wight, 968  F.2d at 1397;  United States v.            ______________    _____                      _____________            Batista-Polanco, 927 F.2d at 18.            _______________                      This  case  is very  similar  to  United States  v.                                                        _____________            Vargas, 945 F.2d 426, and the analysis flows accordingly.  In            ______                                         -7-            Vargas,  a  search   warrant  was  executed  at   defendant's            ______            apartment when defendant was playing cards in a kitchen with,            among  others,   an  alleged  co-conspirator.     The  search            uncovered:  one kilogram of cocaine concealed behind a wooden            baseboard in  a bedroom  with the co-conspirator's  passport;            drug ledgers on top of a bureau and $2,400 in a jacket pocket            in the only other  bedroom, and a narcotics notebook  in open            view in the kitchen.  We affirmed both the possession and the            conspiracy charges.                        On the  possession charge,  we held that  there was            sufficient evidence from which the jury could have found that            defendant  enjoyed  either  exclusive or  joint  dominion and            control of the apartment during the days preceding the police            raid.  We found that  there was ample circumstantial evidence            for a finding that the cocaine was intended for distribution:            from the quantity it was reasonable to infer that the cocaine            was not  merely for  personal consumption and  such inference            was  buttressed  by the  large amount  of  cash and  the drug            records  in open view.  In language directly apposite to this            case, we  concluded that,  "it would be  reasonable to  infer            that no non-occupant,  other than a confidant  of the tenant,            would  deposit a valuable cache of contraband in a bedroom of            an unsuspecting tenant's apartment from which retrieval would            be much more difficult at best, and the risk of discovery and            loss  far  greater, than  if  a more  accessible  and closely                                         -8-            controlled location were used or the  secret were shared with            the  tenant."  United States  v.  Vargas,  945  F.2d at  429.                           _____________      ______            Similarly, the evidence in this case was sufficient to permit            a  rational  jury to  find that  both  Pablo Garcia  and Jose            Garcia  constructively possessed  the  cocaine.    They  both            shared  dominion and control over the  area where the cocaine            was found.   Both men admitted to living  in the second floor            apartment and to jointly occupying the rear bedroom where the            cocaine was found; Jose exclusively for the prior five or six            months,  and  both Pablo  and Jose  for the  week immediately            preceding the raid.  At the time of the search, both told the            police  that the apartment was  where they lived.   After the            search uncovered cocaine, both were separately taken into the            bedroom and asked  to pick  out an article  of clothing  that            belonged to them, which they did.  Also found on the floor of            the  closet  along with  the  cocaine  were various  personal            papers belonging  to Pablo, including  car registration forms            registered to  93-95 Gallatin  Street.  In  addition, Pablo's            passport, concealed along  with a large  amount of money  and            records of drug sales, was also found during  the search.  As            we stated in Vargas, "[e]vidence sufficient to establish that                         ______            the accused  shared dominion and control of  the premises can            serve  as   a  sufficient  basis  for   inferring  a  knowing            possession of  contraband where the  evidence indicates  that            the  accused,  either alone  or  jointly  with  one  or  more                                         -9-            persons,  intended  to facilitate  the  possession."   United                                                                   ______            States v. Vargas, 945 F.2d at 428.              ______    ______                      There was  also ample evidence from  which the jury            could  find  that the  cocaine  discovered  was intended  for            distribution.  The quantity of cocaine (295 grams), the large            amount of  cash, the drug records,  and cocaine paraphernalia            in  plain view, were  all links in  a chain of  evidence from            which intent  to  distribute cocaine  could  be found.    See                                                                      ___            United States v. Desmarais, 938 F.2d 347, 352 (1st Cir. 1991)            _____________    _________            (intent to distribute reasonably inferable from possession of            controlled substance and related paraphernalia).            B.  Conspiracy            B.  Conspiracy                __________                      "The gist of conspiracy  is an agreement to disobey            or to disregard the law."  United States v. Drougas, 748 F.2d                                       _____________    _______            8,  15 (1st  Cir.  1984).   The  government must  prove  both            "intent  to  agree  and  intent  to  commit  the  substantive            offense."   Id.  "Due  to the clandestine  nature of criminal                        ___            conspiracies, the law  recognizes that the illegal  agreement            may  be either 'express or tacit' and that a `"common purpose            and  plan may be inferred  from a development and collocation            of circumstance." ' "  United States v. Sanchez, 917 F.2d 607                                   _____________    _______            (1st Cir.  1990) (citations omitted), cert.  denied, ___ U.S.                                                  _____  ______            ___, 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991).  See also United                                                          ___ ____ ______            States v. Tejeda, 974 F.2d 210, 212 (1st Cir. 1992).  Thus, a            ______    ______            conspiracy   may   be   established  through   circumstantial                                         -10-            evidence,  United States v. Ocampo, 964 F.2d 80, 82 (1st Cir.                       _____________    ______            1992),  and to prove its  case the government  is required to            demonstrate   only   a   tacit  understanding   between   the            conspirators.  United States v. Olivo-Infante, 938 F.2d 1406,                           _____________    _____________            1410 (1st  Cir. 1991).  But  mere presence at the  scene of a            crime is  insufficient to  prove membership in  a conspiracy.            United States v. Ocampo, 964 F.2d at 82 (citing United States            _____________    ______                         _____________            v. Francomano, 554 F.2d 483, 486 (1st Cir. 1987)).                __________                      The evidence viewed in  the light most favorable to            the verdict,  together with  all reasonable inferences  to be            drawn  therefrom,  permitted a  rational  jury  to find  both            defendants guilty beyond a  reasonable doubt of conspiracy to            possess cocaine with  the intent to  distribute.  See  United                                                              ___  ______            States v. Tejeda, 974 F.2d at 212.            ______    ______                                         III.                                         III.                         District Judge's Decision to Vacate                         District Judge's Decision to Vacate                         ___________________________________                            Order Compelling Attendance of                            Order Compelling Attendance of                            ______________________________                          Confidential Informant at Hearing                          Confidential Informant at Hearing                          _________________________________                      Defendant  Pablo Garcia  argues  that the  district            court   erred  in   vacating  the   magistrate-judge's  order            compelling the attendance of the confidential informant at an            evidentiary hearing to be  held by the district judge.2   The            magistrate first  issued a  pretrial order on  June 11, 1991,                                            ____________________            2  Although  we  treat this  issue  and  the following  issue            involving motions  to suppress  as arguments  presented below            and on  appeal  by Pablo  Garcia,  we acknowledge  that  Jose            Garcia has adopted the arguments.  See footnote 1.                                                ___                                         -11-            which  required that  the  government  arrange  communication            between the  confidential informant  and the defense  "to the            extent  that said person is willing to communicate."  On July            9, defendant Pablo Garcia filed a motion with the  magistrate            asking  that the  government be  ordered to  comply with  the            pretrial  order.   On  September 5,  the magistrate  issued a            second order stating, in pertinent part, that,                      the  person  who  bought  cocaine  at  95                      Gallatin Street, 2nd  Floor on behalf  of                      the  police,  be  served  by  the  United                      States   Marshal  Service,   through  the                      United  States Attorney,  with a  copy of                      this order  to compel attendance  of this                      witness  at a Motion  to Suppress hearing                      to be  held by  Judge Lagueux at  a date,                      time and  place to be fixed and specified                      by  Judge  Lagueux.    Counsel   for  the                      Defendant shall be  allowed to meet  with                      such witness just  prior to said hearing.            The government  appealed this  second motion to  the district            court  judge.3   The  district judge  held  a hearing  on the            government's appeal.  He determined that the defendant failed            to make  the preliminary  showing as  required  by Franks  v.                                                               ______            Delaware,  438 U.S.  154 (1978),  in order  for the  court to            ________            conduct  an evidentiary hearing on the validity of the search            warrant.   The  judge  explained that  it  appeared that  the            magistrate's order assumed that  the district judge was going                                            ____________________            3    Local Rule  32(b)(2)  provides in  pertinent  part that,            "[a]ny  party may  appeal from  a magistrate's  determination            made under this rule within 10 days after the issuance of the            magistrate's order."                                            -12-            to  conduct a hearing, that the  defense had failed to make a            proper  case for  the hearing,  and  that, absent  a hearing,            there was no  requirement that  the informant appear.   At  a            later hearing on October 31, 1991, the judge refused to grant            defendant a  subpoena ex parte, and  delayed determination of                                  __ _____            whether  the   informant  could   be  subpoenaed   until  the            appropriate time at  trial.  Pablo  Garcia never renewed  his            motion for a subpoena at trial.                       A magistrate's  discovery  order may  be set  aside            where  the  order is  clearly erroneous  or contrary  to law.            Fischer  v. McGowan,  585 F.  Supp.  978, 984  (D.R.I. 1984);            _______     _______            Pascale v. G.D. Searle & Co., 90 F.R.D. 55, 59 (D.R.I. 1981);            _______    _________________            28 U.S.C.   636 (b)(1)(A); Local Rule 32(b)(2).  The district            judge  determined that  the  magistrate's  order was  clearly            erroneous because it compelled the  confidential informant to            attend a suppression  hearing when the district judge had not            yet determined whether he  would conduct such a hearing.   We            find   that   the  district   court   properly  vacated   the            magistrate's order.                                         IV.                                         IV.                               The Suppression Motions                                The Suppression Motions                                _______________________            A.  Probable Cause            A.  Probable Cause                ______________                      Defendant  Pablo  Garcia  challenges  the  district            court's  denial of  his  motion to  suppress evidence  seized            during the search of  the apartment on the ground  that there                                         -13-            was no probable cause for the officers to execute the search.            In particular,  he asserts that the  affidavit underlying the            search  warrant  upon  which   the  search  team  relied  was            deficient.   The search warrant  was issued by  a state court            judge for the  state of  Rhode Island upon  the affidavit  of            Detective Zammarelli.   That  affidavit, in  essence, stated:            that Detective Zammarelli had reason to believe that a large-            scale  drug operation was  being conducted out  of the second            floor  apartment of 93-95 Gallatin Street; that he met with a            reliable  confidential  informant  who  told  him  that   two            Hispanic  persons were  storing and  selling drugs;  that the            informant had seen large amounts of cocaine in the apartment;            and   that,  to   corroborate  this   information,  Detective            Zammarelli executed a "controlled buy" through the informant.            The   affidavit  fully   described   the  "controlled   buy."            Detective Zammarelli reported  searching the informant  prior            to the  buy and finding no contraband on him.  He stated that            he gave the informant a sum of U.S. currency, followed him to            the  apartment,  watched him  enter the  front door  of 93-95            Gallatin  Street, and observed  him exit a  few minutes later            from  the same door.   Next, he stated  in the affidavit that            the informant then handed  Detective Zammarelli a quantity of            cocaine, reporting  that he had purchased  the substance from            the Hispanic male who resided in the second floor apartment.             Detective Zammarelli  stated that  he made another  search of                                         -14-            the informant and found  no contraband.  Later,  upon testing            the substance,  Detective  Zammarelli confirmed  that it  was            cocaine.                      The   district  court  determined  that  there  was            sufficient  probable   cause  stated  on  the   face  of  the            affidavit,  finding  that  the information  provided  therein            would lead a  reasonable person to  believe that cocaine  was            being sold from the second floor apartment.                            We  review the district  court's decision to uphold            the  warrant only for clear error.  United States v. Nocella,                                                _____________    _______            849 F.2d 33, 39  (1st Cir. 1988); United States  v. Figueroa,                                              _____________     ________            818  F.2d  1020, 1024  (1st Cir.  1987).   In  evaluating the            sufficiency of  an affidavit, we afford great  deference to a            magistrate's determination  of probable  cause.   Illinois v.                                                              ________            Gates, 462  U.S. 213, 236  (1983) (citing Spinelli  v. United            _____                                     ________     ______            States, 393 U.S. 410, 419 (1969)).            ______                      The standard applied in determining the sufficiency            of an  affidavit is a  "totality of the  circumstances" test.            Illinois  v. Gates, 462 U.S. at 238.   The affidavit is to be            ________     _____            interpreted in  a common-sense rather than  a hypothetical or            hypertechnical manner.  See  id.; United States v. Ventresca,                                    ___  ___  _____________    _________            380 U.S. 102, 109 (1965); United States v. Cochrane, 896 F.2d                                      _____________    ________            635,  637 (1st  Cir.),  cert. denied,  496  U.S. 929  (1990);                                    _____ ______            United States v. Calle-Cardenas, 837 F.2d at 31.             _____________    ______________                                         -15-                      Defendant argues that  the affidavit is  inadequate            because the detective failed  to establish the reliability of            the confidential  informant.  More generally,  he argues that            this affidavit is the sort of "bare bones" affidavit that the            Supreme Court criticized  in United States v.  Leon, 468 U.S.                                         _____________     ____            at 915.  We disagree with both of these contentions.                        Detective Zammarelli confirmed the information with            which the confidential informant provided him by carrying out            a carefully-executed "controlled buy."  Given   its  greatest            force,  defendant's argument  against this  corroboration was            that  one  and  the same  informant  was  the  source of  the            information and the  actor in the "controlled  buy," and that            the  informant might  have stashed  cocaine elsewhere  in the            building  out   of  the  sight   of  the  detective.     This            possibility, defendant  posits, undercuts the  reliability of            the informant.  Although defendant's argument is possible, it            is  not  probable and  strains  credulity  on a  common-sense            reading.  We find that both the issuing state court judge and            the district  judge drew  a reasonable inference  of probable            cause that  there was  drug trafficking in  the second  floor            apartment  of 93-95 Gallatin Street.  We affirm the denial of            the motion to  suppress the evidence  seized pursuant to  the            warrant.            B.  Execution of Warrant            B.  Execution of Warrant                ____________________                                         -16-                      Pablo  Garcia  next challenges  the  denial  of his            motion  to  suppress  certain  statements  made and  evidence            seized  during the search of the apartment on the ground that            the execution  of the search warrant  was unlawful, resulting            in an unconstitutional search and seizure.                       In reviewing  a denial of a  suppression motion, we            must  uphold the  district court's  findings unless  they are            clearly erroneous; the court's ultimate  conclusion, however,            is  subject to plenary review.  United States v. Sanchez, 943                                            _____________    _______            F.2d 110, 112 (1st  Cir. 1991) (citations omitted).   We will            uphold the denial of the motion to suppress if any reasonable            view  of the evidence supports it.  Id. (citing United States                                                ___         _____________            v.  Veillette, 778  F.2d  899,  902  (1st Cir.  1985),  cert.                _________                                           _____            denied, 476 U.S.  1115 (1986)).   See also  United States  v.            ______                            ___ ____  _____________            Cruz Jimenez, 894 F.2d 1, 7 (1st Cir. 1990) (district court's            ____________            choice between two competing interpretations of  the evidence            cannot be clearly erroneous).                      At the time of the execution of the search warrant,            defendants were watching television in the  front room of the            apartment with co-tenant, Altagracia Lopez.  Detectives Della            Ventura  and Zammarelli were part  of the search  team at the            apartment's front door.   Detective  Della Ventura  testified            that  he knocked  loudly  on the  door  and shouted  "Police,            search warrant, open the door."   After waiting approximately            ten   seconds   without  receiving   a   response  (Detective                                         -17-            Zammarelli estimated ten to fifteen seconds), the search team            forcibly  entered the apartment.   Upon  entering, defendants            were immediately restrained.                      At  the hearing,  defendant Pablo Garcia  sought to            suppress all evidence seized from  the apartment on the basis            that the execution of the warrant was conducted  in violation            of  the "knock  and announce"  rule, 18  U.S.C.    31094, and            such  violation rendered  the subsequent  search warrantless.            Pablo   Garcia  argued,  alternatively,   that  no  knock  or            announcement  was  made at  all;  that  the announcement  was            inadequate when considering  the purpose of the rule;  or, if            the  announcement  was adequate,  that  the  ten second  wait            before  forcibly entering was, as  a matter of  law, not long            enough.                      After  hearing  the  testimony  of the  two  police            officers who executed  the warrant and  of Pablo Garcia,  the            district  judge found that  the police  did loudly  knock and            announce  their presence  and purpose  as required,  and that            they entered the apartment  when they believed that  they had            been  refused admission.   The  district judge  was satisfied                                            ____________________            4 18 U.S.C.   3109 states in pertinent part:                      The officer  may break open any  outer or                      inner door  or window of a  house, or any                      part of a house, or  anything therein, to                      execute  a  search  warrant,   if,  after                      notice of his  authority and purpose,  he                      is refused admittance  or when  necessary                      to  liberate himself  or a  person aiding                      him in the execution of the warrant.                                         -18-            that,  in the context of a  drug raid where contraband can be            disposed  of within seconds,  the ten to  fifteen second wait            was  a reasonable period of time, and that the officers fully            complied with the "knock and announce" rule.                        The  district  court's  findings  are  not  clearly            erroneous.   Under the circumstances,  a wait of  ten seconds            after knocking  combined with  an announcement  before forced            entry, was reasonable.  The  occupants of the apartment  were            reasonably believed  to possess cocaine, a  substance that is            easily and quickly hidden or destroyed.  See United States v.                                                     ___ _____________            One  Parcel  of  Real Property,  873  F.2d  7,  9 (1st  Cir.)            ______________________________            (shorter wait [five to ten seconds] before entry justified by            fact that  officers had  probable cause to  believe occupants            possessed  cocaine, a  substance that  is easily  and quickly            removed  down a toilet), cert. denied  sub nom, Latreverse v.                                     _____ ______  ___ ___  __________            United States, 493 U.S. 891 (1989).             _____________            C.  Adequacy of Miranda Warnings            C.  Adequacy of Miranda Warnings                ____________________________                      Finally with regard to the  district court's denial            of  his motions  to suppress,  defendant Pablo  Garcia argues            that  the  law  enforcement  officials  failed  to adequately            apprise him of his rights in violation of Miranda v. Arizona,                                                      _______    _______            384 U.S. 436 (1966).                      Upon  entering the apartment, the police restrained            the defendant  and placed him face down on the floor.  As the            search  commenced,  INS  Special  Agent  Bernstein  gave  the                                         -19-            defendant Miranda warnings in Spanish.  He specifically asked                      _______            defendant if  he understood each right as it was read to him.            After   each   such   question,   the   defendant   responded            affirmatively.   After advising  defendant of his  rights and            being told  by the defendant  that he understood  them, Agent            Bernstein asked  the defendant if  he was  willing to  answer            some  questions   without  the   presence  of   an  attorney.            Defendant  agreed  and  told  the  officer  he  would  answer            questions.    Agent  Bernstein  then  asked  defendant  basic            informational questions, such as where he lived.  The answers            to some of the questions were incriminating.                        After  the discovery  of  the cocaine  in the  rear            bedroom, Agent Bernstein took  the defendant, alone, into the            bedroom  and  asked him  if  any  clothing belonged  to  him.            Defendant  responded  affirmatively.   Agent  Bernstein  then            asked  him  to  point out  something  that  was  his.   Being            handcuffed, defendant motioned with his head to a shirt and a            jacket.   Agent Bernstein identified the shirt and jacket and            asked  defendant  if  they   were  his;  defendant   answered            affirmatively.5                      At the suppression hearing, Pablo Garcia had sought            to suppress the incriminating  statements and actions he made            during  the search of the  apartment on the  ground that they                                            ____________________            5  Special Agent  Bernstein's  treatment of  Jose Garcia  was            substantially the same, and the same analysis applies.                                          -20-            were  made  without an  intelligent,  knowing,  and voluntary            waiver  of his Fifth Amendment rights.  Defendant argued that            the officer was required to  specifically advise him that his            answers to the informational  questions could be used against            him, and because he was never  so advised, he could not  have            knowingly waived  his rights.  In  addition, defendant argued            that the warnings were  inadequate because the officer should            have  advised defendant that  anything he  did could  be used                                                       ___            against  him, and  that defendant  had a  right to  refuse to            point out such clothing that belonged to him.                      When an individual is taken into custody and before            interrogation,  Miranda  requires   that  the  individual  be                            _______            advised:   that  he  has the  right  to remain  silent;  that            anything he  says may be used  against him in court;  that he            has  the right  to  consult an  attorney  before being  asked            questions;  that   the   attorney  may   be  present   during            questioning;  and that if  he cannot afford  an attorney, one            will be appointed for him if he wishes.  Miranda v.  Arizona,                                                     _______     _______            384 U.S. at 444.  Once the warnings delineated in Miranda are                                                              _______            given and  acknowledged, all interrogation must  cease if the            individual indicates in any  manner, at any time prior  to or            during questioning, that he wishes to remain silent, or  that            he would like to seek the assistance of counsel.  Id. at 444-                                                              ___            45.                                           -21-                      After  being  advised of  his  Miranda  rights, the                                                     _______            accused  may validly waive his right to remain silent and his            right  to  counsel  and  respond to  questions.    See  North                                                               ___  _____            Carolina  v.  Butler, 441  U.S.  369,  372-76 (1979);  United            ________      ______                                   ______            States v.             ______            Eaton, 890 F.2d 511,  513 (1st Cir. 1989), cert.  denied, 495            _____                                      _____  ______            U.S. 906 (1990).  The determination of whether a valid waiver            of the right to  counsel or right to  remain silent was  made            depends on  whether the  waiver was knowing  and intelligent,            given  the  totality  of  the  circumstances  and  the  facts            surrounding the particular case, "`including  the background,            experience, and conduct  of the accused.'"   United States v.                                                         _____________            Butler, 441 U.S. at 374-75 (quoting Johnson v. Zerbst, 304             ______                              _______    ______            U.S. 458, 464 (1938)).  See also Edwards v. Arizona, 451 U.S.                                    ___ ____ _______    _______            477, 482-83 (1981); United States v. Ferrer-Cruz, 899 F.2d                                 _____________    ___________            135,  141 (1st Cir. 1990) ("The basic governing legal rule is            that  a  court,  in   considering  whether  a  defendant  has            voluntarily  relinquished his  Fifth  Amendment rights,  must            examine   the  `totality  of  circumstances  surrounding  the            interrogation.'").     An  express  waiver  is not  required.            United States v. Butler,  441 U.S. at 373.   What is required            _____________    ______            is a clear showing of the intention, intelligently exercised,            to relinquish  a known  and understood  right.   Patterson v.                                                             _________            Illinois, 487 U.S. 285, 292 (1988); United States  v. Porter,            ________                            _____________     ______            764 F.2d  1, 7 (1st Cir.  1985), cert. denied, 481  U.S. 1048                                             _____ ______                                         -22-            (1987) (Miranda requires the officer to  go further than just                    _______            asking accused if he understands his rights; the officer must            make sure  that the accused, knowing  his rights, voluntarily            relinquishes them).                      At  the  suppression  hearing,  the  district court            concluded  that the  defendant  was properly  advised of  his            rights,  understood them,  and  knowingly waived  them.   The            court  found no compulsion  in the questioning  or request to            pick  out an article of  clothing.  The  court concluded that            defendant voluntarily and with  full knowledge of his rights,            responded to the officer's request and effectively waived his            rights.   The record  supports the district  court's finding.            We note that the  incriminating statement which the defendant            sought  to suppress  was  never elicited  from the  arresting            officer at trial.                                         -23-                                          V.                                          V.                     The Admission of Pablo Garcia's Prior Arrest                     The Admission of Pablo Garcia's Prior Arrest                     ____________________________________________            A.  Background            A.  Background                __________                      This  final issue  is the most  difficult one.   It            involves  the  questions  of  whether,  and,  if  so,  how  a            defendant can  avoid  the  admission  of prior  bad  acts  by            stipulating that knowledge  and intent are not contested.  We            first  rehearse  in extenso  what  happened  in the  district                             __________            court.                      Prior to trial, defendant Pablo Garcia requested  a            ruling from the district  court as to whether it  would admit            evidence  under Fed. R. Evid. 404(b)6 of his prior arrest for            dealing in  cocaine.   The  court deferred  ruling until  the            evidence became relevant at trial.                      At the  start of the  trial, but before  the jurors            were in the courtroom, the attorney for Pablo Garcia (Francis            J. Gillan, III) requested that the government  not be allowed            to mention the 404(b)  evidence in its opening and  that none            of  the  witnesses be  allowed to  testify as  to defendant's            prior arrest until  the court had ruled on  the admissibility                                            ____________________            6 Fed. R. Evid. 404(b) provides that:                      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.                                         -24-            of  the evidence.    The prosecutor  stated  that he  had  no            intention of  referring to  the evidence in  his opening  and            that  he  would  instruct  his witness  not  to  mention  the            previous arrest.  The court then stated that there would be a            hearing on  the question  in the absence  of the jury  at the            time the prosecutor wished to introduce the evidence.                      Counsel  for the  defendant  Jose  Garcia (John  M.            Cicilline),  then informed the  court that  he might  want to            elicit  testimony as to the  prior arrest of  Pablo Garcia in            cross-examination of government witnesses.  The court  stated            that he would rule on the question at the appropriate time.                      After the trial had progressed, Attorney Cicilline,            counsel for Jose Garcia, informed the court that he wanted to            elicit testimony about Pablo  Garcia's prior arrest in cross-            examination of the next government witness, a DEA agent.  The            court  then  held a  hearing  on  the  admissibility  of  the            evidence.                      After hearing Attorney Cicilline on the question of            relevancy, the court heard argument by Attorney Gillan, Pablo            Garcia's attorney,  as  to why  the  evidence should  not  be            admitted.   The prosecutor then advised the court that he was            not  going to offer the  evidence through the  DEA agent, but            that he intended  to offer testimony on  Pablo Garcia's prior            arrest by  a detective  on the Providence  Police Department.            The detective would testify that, within the last six months,                                         -25-            he  had  arrested  Pablo Garcia  on  a  cocaine charge  after            personally  witnessing the transaction  in which Pablo Garcia            was involved.                      During the course of the argument by Pablo Garcia's            attorney, the court commented:                           Well, one of  the requirements  that                      the  government must prove  is that there                      was possession, number 1, and number two,                      that   it  was   was   [sic]  a   knowing                      possession.  So, doesn't this evidence go                      to   question   [sic]   of  whether   the                      possession was knowing?            After hearing further argument  by Pablo Garcia's counsel the            court ruled:                           Well, I  think the rule is clear, as                      has been explicated by the  First Circuit                      with  the one  exception that  I referred                      to,  that   this  kind  of   evidence  is                      admissible  as  proof of  motive, intent,                      plan, knowledge, in  this kind of  a case                      where there's a charge of possession with                      intent to distribute, and also,  a charge                      of  conspiracy. . .  .   It's admissible.                      The prosecution  can put  it in.   So, if                      the prosecution doesn't choose to  put it                      in, one of the other defendants can bring                      it out.                      Prior  to  the  introduction  of  the  Rule  404(b)            testimony that the court had ruled would be admissible, Pablo            Garcia's  attorney  tried again  to  have  it excluded.    He            stated, inter alia:                    _____ ____                           Number  1, your Honor  had said that                      this  evidence  was important  because it                      would   go   to   issue  of   intent   to                      distribute.    A  prior  sale  equals  an                      intent  to  distribute on  this occasion.                      With  that  in   mind,  your  Honor,  and                                         -26-                      reading Rubio Estrada  again last  night,                      where  the Court  had  said  that     had                      mentioned the facts [sic] that intent was                      important.  I would  respectfully suggest                      that if intent was at issue, based on the                      testimony we heard  from Detective  Della                      Ventura  and  thus  far   from  Detective                      Zammarelli, I wouldn't contest  intent to                      distribute, insofar as there is more than                      ample  evidence  that  whoever  possessed                      that  cocaine,  possessed  it   with  the                      intent to distribute.  So, if the  404(b)                      evidence goes to the intention of someone                      to  distribute  that  cocaine,   I  would                      suggest, your  Honor,  that if  the  jury                      finds  beyond  a  reasonable  doubt  that                      Pablo  Garcia  possessed,  did   in  fact                      possess  that  cocaine,   then  I   would                      stipulate  that they can find from there,                      that  he did  so  with  the intention  to                      distribute that cocaine.                      After   counsel's   further   argument  on   unfair            prejudice the following colloquy took place:                           THE COURT:   It may be.   It may be.                      And  people in  your  position  say  it's                      unfair  prejudice.    I  say,  it's  fair                      prejudice  because   it's  fair  evidence                      against  this  defendant  because  he  is                      being  charged  with knowing  possession,                      and that's  an issue in this  case.  He's                      going  to tell  us, and  you're going  to                      argue  to the jury, that he just happened                      to  be  there, wrong  place at  the wrong                      time, doesn't know anything about cocaine                      trafficking.                           Mr.   GILLAN:  No, I  don't say that                      he  doesn't  know anything  about cocaine                      trafficking, just that he's  not involved                      in this enterprise.                           THE  COURT:    Well,  this  evidence                      indicates that he is.                           MR. GILLAN:  Thank you, your Honor.                                         -27-                           THE  COURT:   And  that's  why  it's                      relevant,  and  that's why  it's properly                      admissible under the  rule because  there                      is an issue of knowing possession . . .                      Detective  Zammarelli  testified  that, two  months            prior to the arrest  of Jose Garcia and Pablo  Garcia, he and            Detective  Della Ventura  (also  involved in  the arrests  of            Pablo  and Jose)  arrested Pablo  Garcia  in Providence  at a            different location.   Detective Zammarelli testified  that he            observed, through a large glass window, three men engaged  in            discussion.   One  of the  men handed  money to  another, who            began  to  speak with  the third  man,  Pablo Garcia.   Pablo            Garcia then  walked out  of Detective Zammarelli's  view, and            returned to hand  a bag of suspected cocaine  to the man from            whom  he obtained  money.   Detective Zammarelli,  along with            Detective Della Ventura, then arrested the  three men.  Pablo            Garcia  was charged  with  unlawful delivery  of cocaine  and            conspiracy.                      Immediately   after   this  testimony,   the  court            instructed the jury:                      . .  .  Mr.  Foreman and  members of  the                      jury,  sometimes  evidence is  admissible                      for  one purpose, but it's not admissible                      for another  purpose.  So, the  Court has                      to allow  the  evidence in  because  it's                      relevant on some point  in the case.  But                      I have to advise you, as jurors, that you                      can't consider it on some other  point in                      the case.                           The rule of evidence that's involved                      is  rule  404(b) which  relates  to other                      crimes or wrongs, prior bad  acts as it's                                         -28-                      often  referred  to.   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.                      That's the rule.   What it means is that,                      in a  criminal trial  for an  offense you                      can't   bring   in   evidence  of   other                      offenses, just to show that the defendant                      is  a bad  person and  is likely  to have                      committed  this  offense.     That's  not                      admissible for that purpose.  However, it                      is admissible to show knowledge or intent                      or motive or plan.                             I have  ruled that this  evidence is                      admissible  in  this  case against  Pablo                      Garcia because two  of the issues in  the                      case  relate  to  his knowledge  and  his                      intent.   First  of all,  he has  to have                      knowing possession of the cocaine in this                      case, and  also, he is  charged with  not                      only  knowing  possession but  possession                      with  intent to distribute.  And so, this                      evidence relates to  his knowledge  about                      cocaine   and    whether   he   knowingly                      possessed   it   in  that   apartment  on                      Gallatin   Street,   and   also,  if   he                      possessed  it,  whether  he possessed  it                      with intent to distribute.                           So, you may  consider this  evidence                      or  prior  acts by  the  defendant, Pablo                      Garcia,  only  on  the  question  of  his                      knowledge  and intent  in this  case; and                      the  government has the burden of proving                      those elements beyond a reasonable doubt.            This  instruction  was given  in  abridged form  in  the jury            charge.   It  is  to be  noted  that the  prosecutor did  not            mention the prior arrest in his closing argument.                                         -29-                      On appeal, defendant argues that the district court            erred  in  admitting the  404(b)  evidence  for two  reasons.            First, defendant contends that it was impermissible  evidence            of  bad  character  and  that it  was  unfairly  prejudicial.            Second, defendant argues that  the district court should have            accepted his  attempt to foreclose admission  of the evidence            by  offering to concede the issues of intent and knowledge to            which  the evidence was directed.  We begin by addressing the            admissibility of the evidence.             B.  Admissibility of the Evidence              B.  Admissibility of the Evidence                _____________________________                      Evidence of  prior bad acts is admissible, pursuant            to   Fed.  R.  Evid. 404(b),  when  it satisfies  a  two-part            inquiry by the trial court.  The trial judge first determines            whether  the  evidence  has  some "special"  probative  value            showing intent, preparation, knowledge or absence of mistake.            See United States  v. Flores Perez, 849  F.2d 1, 4 (1st  Cir.            ___ _____________     ____________            1988)  (quoting from United States  v. Scelzo, 810  F.2d 2, 4                                 _____________     ______            (1st. Cir. 1987));   United States v. Moccia, 681 F.2d 61, 63                                 _____________    ______            (1st  Cir. 1982).   This evidence must  overcome the absolute            bar  of  Fed.  R.  Evid.  404(b),  excluding  evidence  which            demonstrates  only that  the defendant  has a  bad character.            See United States v. Ferrer-Cruz, 899 F.2d 135, 137 (1st Cir.            ___ _____________    ___________            1990); United  States v. Rubio-Estrada, 857  F.2d 845, 846-47                   ______________    _____________            (1st  Cir. 1988).   Next,  the judge  balances  the probative                                         -30-            value of the evidence against the danger of unfair prejudice,            pursuant  to  Fed.  R. Evid.  403.7    See  United States  v.                                                   ___  _____________            Ferrer-Cruz, 899 F.2d at 138; United States v. Rubio-Estrada,            ___________                   _____________    _____________            857  F.2d at  847; United States  v. Scelzo,  810 F.2d  at 4;                               _____________     ______            United States v. Moccia, 681 F.2d at 63.            _____________    ______                      The admission  of 404(b)  evidence is  committed to            the sound discretion of the trial judge.  We will reverse  on            appeal  only for abuse of  discretion.  See  United States v.                                                    ___  _____________            Flores  Perez, 849 F.2d  at 4.  In  Flores Perez, we observed            _____________                       ____________            that where the  404(b) evidence is  probative of issues  like            intent  and knowledge,  the prohibition against  admission of            character  evidence is construed broadly.  Id.  In this case,                                                       ___            the district  judge admitted  the evidence of  Pablo Garcia's            prior arrest  for dealing cocaine  as relevant to  intent and            knowledge.                      When   he  first  ruled   that  the   evidence  was            admissible,  the district judge  relied on  what he  called a            clear rule in this  circuit of admitting prior acts  evidence            as  proof  of knowledge,  intent,  etc.,  in cases  involving            possession  and  conspiracy.   As  we  explained recently  in                                            ____________________            7  Fed. R. Evid. 403 provides that:                      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.                                         -31-                                          31            United States v. Hadfield, 918 F.2d 987, 994 (1st Cir. 1990),            _____________    ________            cert. denied,  ___ U.S. ___, 111  S. Ct. 2062, 114  L. Ed. 2d            _____ ______            466  (1991),  we frequently  have  "upheld  the admission  of            evidence of prior  narcotics involvement in  drug trafficking            cases  to prove  knowledge  and intent."    See e.g.,  United                                                        ___ ____   ______            States v.  Ferrer-Cruz,  899  F.2d  at 138  (1st  Cir.  1990)            ______     ___________            (introduction   of  prior  convictions  of  drug  trafficking            admissible to prove defendant's  knowledge that bags found in            car  contained cocaine); United  States v. Rubio-Estrada, 857                                     ______________    _____________            F.2d  at   850  (introduction  of   prior  drug   trafficking            conviction  admissible  to  prove  knowledge  where defendant            claimed  he  did not  know that  cocaine  was in  his house);            United States v. Molinares Charris, 822 F.2d 1213, 1220  (1st            _____________    _________________            Cir. 1987)  (prior involvement with drug  smuggling tended to            refute claim of mere presence on boat carrying  drugs), cert.                                                                    _____            denied sub  nom, Pimienta-Redondo v. United  States, 493 U.S.            ______ ___  ___  ________________    ______________            890 (1989).                       In this  case, there is  a close nexus  between the            past  act and the current charges.  Pablo Garcia was arrested            only two months earlier by two of the  same officers who made            the arrest  precipitating the current charges.   The previous            arrest  was for dealing in  cocaine, an act  which is similar            and has  special relevance to  the charge of  possession with            intent to distribute cocaine.   We find that the  trial judge                                                        was correct  in concluding  that Pablo Garcia's  prior arrest                                         -32-                                          32            for dealing in cocaine could provide the basis for reasonable            inferences going  to  defendant's knowledge  and intent  that            were not based solely on bad character.  Cf. United States v.                                                     ___ _____________            Francesco,  725   F.2d  817,  822  (1st   Cir.  1984)  (prior            _________            conviction for selling cocaine  admissible to show  knowledge            and intent to possess and distribute cocaine).                       We also  find that the prior  arrest was admissible            because its probative value was  not substantially outweighed            by  the danger of  unfair prejudice.  See  Fed. R. Evid. 403.                                                  ___            We afford "considerable  leeway" to a  district court in  its            Rule  403 balancing, United States v. Simon, 842 F.2d at 555,                                 _____________    _____            and  we will  reverse a  district court's  balancing only  in            "exceptional circumstances."   United States v.  Garcia-Rosa,                                           _____________     ___________            876  F.2d  209, 221  (1st Cir  1989),  cert. denied  sub nom,                                                   _____ ______  ___ ___            Alvarez  v. United States, 493  U.S. 1030 (1990).   This case            _______     _____________            does not present any such exceptional circumstances.                      We  note  that  the  evidence  involved  an arrest,            rather  than  a  conviction, and  involved  two  of  the same            officers  who  participated  in  the arrest  leading  to  the            charges  at  issue.    These circumstances  might  well  have            exaggerated the prejudicial effects of the evidence, a factor            not   explicitly   addressed    by   the   district    court.            Nevertheless,  Rule  404(b) covers  prior  acts,  and is  not                                                       ____            limited  to convictions.  From  our review of  the record, we            are satisfied that there  was sufficient evidence linking the                                         -33-                                          33            defendant  to the prior act.   Moreover, the  fact that Pablo            Garcia  was only arrested, and  had not been   convicted, was            explained to the jury.                          Lastly, the district  court handled the  prior acts            evidence  with  care,  providing  the jury  with  a  limiting            instruction  after  the  evidence  was  admitted,  and  again            instructing the jury of  the scope of prior acts  evidence in            his final charge.              C.  Defendant's Offers to Concede Knowledge and Intent            C.  Defendant's Offers to Concede Knowledge and Intent                __________________________________________________                      Having found the prior acts evidence admissible, we            now  address  defendant's  argument  that,   because  he  had            conceded  the elements of  knowledge and intent  to which the            evidence  was directed,  the  evidence should  not have  been            admitted.  In support  of his claim, defendant points  to two            statements  made by defense counsel prior to the admission of            the  evidence.   With  respect  to  the issue  of  knowledge,            defendant   highlights  an  unelaborated  statement  made  in            response to the court's  discussion of the prejudicial impact            of the evidence  that, "No, I don't say that  he doesn't know            anything about cocaine trafficking. . . ."   With  respect to            the issue of intent, defendant points to  his counsel's offer            to stipulate to  the intent  to distribute in  the event  the            jury found that Pablo Garcia, in fact, possessed the cocaine.            (We excerpted the context surrounding these statements in our            discussion  of the  background on  this issue,  supra.)   The                                                            _____                                         -34-                                          34            combination   of  these  two  statements,  defendant  argues,            constituted  a  clear  offer  to  concede  that  he  had  the            requisite knowledge  and intent  to possess the  cocaine, and            the  specific  intent to  distribute  it,  if the  government            proved that he possessed it.  For the reasons that follow, we            find  that  the  defendant   failed  sufficiently  to  remove            knowledge  and intent from the case, and that the trial judge            did not err in admitting the evidence despite the defendant's            stated concessions.                      Defendant relies upon our decision in United States                                                            _____________            v.  Ferrer-Cruz,  899 F.2d  at 139,  in  which we  examined a                ___________            similar claim "in light of"  the Second Circuit's decision in            United  States  v. Figueroa,  618  F.2d 934  (2d  Cir. 1980).            ______________     ________            Figueroa held that a defendant may remove issues of knowledge            ________            and intent from a case by  telling the court that he will not            dispute those issues:                      provided that he expresses himself to the                      _________________________________________                      court with sufficient clarity  to justify                      _____________________________                      the   court   in   (a)  disallowing   any                      `subsequent  cross-examination   or  jury                      argument  that  seeks  to   raise'  those                      issues, and  (b) `charging the  jury that                      if they find all  other elements beyond a                      reasonable  doubt,  they can  resolve the                      issue against the defendant because it is                      not disputed.'            United States v. Ferrer-Cruz,  899 F.2d at 139 (quoting  from            _____________    ___________            United States v. Figueroa,  618 F.2d at  942).  The court  in            _____________    ________            Figueroa  explained   that  a  formal  stipulation   was  not            ________            required.  Id.  The offer, however, must be unequivocal.  Id.                       ___                                            ___                                         -35-                                          35            See  also United States v. Colon,  880 F.2d 650, 659 (2d Cir.            ___  ____ _____________    _____            1989); United States  v. Mohel,  604 F.2d 748,  754 (2d  Cir.                   _____________     _____            1979).                        In Figueroa  the court found ample  evidence in the                         ________            record that the defense counsel  had spoken with clarity, and            had  removed, not  merely  certain inferences  that might  be            drawn as to the  defendant's intent, but the entire  issue of            intent.  Counsel had addressed  each of the court's  concerns            and  had stated  "unequivocally,"  "'[t]here is  no issue  of            intent.'" United States  v. Figueroa,  618 F.2d at  940.   By                      _____________     ________            contrast,   in  Ferrer-Cruz,   we  determined   that  defense                            ___________            counsel's  response to the judge that he was not arguing mere            presence  did not  amount  to  a  clear offer  to  stipulate.            United  States v. Ferrer-Cruz, 899 F.2d at 139.  In addition,            ______________    ___________            we found that,  far from  having removed the  issue from  the            case, the defense counsel  had actually argued mere presence.            Id.            ___                      To prevent  the admission  of bad acts  evidence, a            defendant's offer to concede  knowledge and/or intent  issues            must  do two things.   First, the offer  must express a clear            and unequivocal intention to remove  the issues such that, in                            _________            effect  if not in form, it constitutes an offer to stipulate.            Second,  notwithstanding  the  sincerity  of  the defendant's            offer, the  concession must cover  the necessary  substantive            ground  to remove the issues  from the case.   See generally,                                                           ___ _________                                         -36-                                          36            United  States v.  Colon, 880  F.2d at  658 (where  the court            ______________     _____            determined that the stipulation the defendant presented, even            if proffered  with sincerity, failed  to remove the  issue of            intent from the case).                      We begin  our analysis  by noting  that it  was not            only the  government which  requested the admission  of Pablo            Garcia's prior  arrest, but  defendant Jose Garcia,  as well.            The  two  statements of  concession raise  somewhat different            concerns, and we address each in turn.                      We  do  not  believe  that  the  defense  counsel's            statement as to Pablo  Garcia's knowledge of drug trafficking            amounted to an attempt  to stipulate, nor do we  believe that            it removed knowledge from the case.  First, the statement did            not rise to the level of  a clear offer to concede knowledge.            It was no  more than a  single response, among others,  in an            ongoing  discussion  with  the  court  about the  prejudicial            impact of  the  evidence.   By contrast  with the  successful            defendants in  both Figueroa  and Mohel, defense  counsel did                                ________      _____            not pursue this concession  with the court at that  time, nor            did  he raise it  again.  See United  States v. Figueroa, 618                                      ___ ______________    ________            F.2d  at 940  (where defense  counsel vigorously  pursued his            concessions with the court); United States v. Mohel, 604 F.2d                                         _____________    _____            at   752  (where  defense   counsel  repeatedly   offered  to            stipulate).   At  best,  defense counsel's  statement may  be            construed  as an  offer not  to argue  that defendant  had no                                    ___  __ _____                                         -37-                                          37            knowledge of the  workings of drug  trafficking.  In  Ferrer-                                                                  _______            Cruz, we observed that defense counsel's  comments suggesting            ____            that the defendant  would not argue an  issue (mere presence)            were "quite different from saying that the judge may instruct            the  jury that,  should it  find such  presence, the  defense            w[ould]  not dispute  the 'knowledge'  or 'intent'  needed to            support the  conviction."  United States  v. Ferrer-Cruz, 899                                       _____________     ___________            F.2d at 139.8                       Second,  defense  counsel's   statement  of   Pablo            Garcia's relative knowledge about cocaine trafficking was not            the sort of concession which the trial judge reasonably could            be  expected  to assume  would  remove  the entire  issue  of            knowledge from this case.  At most, it was a limited offer to                                            ____________________            8 Courts which  permit the foreclosure of 404(b)  evidence by            concession   or  stipulation   generally  require   that  the            defendant  be willing to accept  a jury charge  to the effect            that the issue  has been  removed from the  case.  See  e.g.,                                                               ___  ____            United States  v. Colon, 880 F.2d  at 659;  United  States v.            _____________     _____                     ______________            Figueroa,  618 F.2d at  942.  Exactly  who has  the duty, the            ________            defense counsel or the court, to suggest such an instruction,            however, remains unclear.  Figueroa seems to suggest that, so                                       ________            long  as  the  defendant  raises the  issue  with  sufficient            clarity,  the judge must then remove the issue from the case,            by disallowing  subsequent cross-examination,  and by  a jury            charge.  See United States v. Figueroa, 618 F.2d at 942.  Our                     ___ _____________    ________            decision in Ferrer-Cruz places the burden more clearly on the                        ___________            defendant, as evident  in the above-cited  excerpt.  In  this            case, we do not need to  reach the issue because we find that            defendant's  statement  was  not  a  clear  offer  to  remove            knowledge from the case.  We merely instruct that an offer to            concede  an  issue which  also asks  for  a jury  charge will            appear  more sincere  and unequivocal,  and will  assist both            trial and reviewing courts in assessing such concession.                                           -38-                                          38            foreclose certain  inferences that the jury  might have drawn            as to knowledge.                        Finally, knowledge  remained a focal  issue in  the            case, and  one vigorously contested by the  defendant.  Pablo            Garcia's defense was  that he did not know of the presence of                                          ___ ___ ____            the cocaine in  the closet of the  room he inhabited.   Pablo            Garcia also argued that  he did not  know of the presence  of            the drug paraphernalia that was  openly visible in the  small            apartment.                          We  turn   next  to  defense   counsel's  offer  to            stipulate  to intent to distribute.  By contrast with defense            counsel's   statement  as   to   knowledge,  this   statement            constituted a clear and unequivocal offer to stipulate to one            essential  element  of the  case:    the specific  intent  to            distribute.  Conceding the  specific intent to distribute did            not, however, affect  the relevance of  the evidence to  show            defendant's  knowledge and  intent  to possess  the  cocaine.            Defense  counsel conceded  intent to  distribute if  the jury            found  possession.    Because there  remained  an independent            basis for admission of the            evidence--the defendant's knowledge and intent to possess            the cocaine--the district court did not err in its failure to            consider the defendant's offer to stipulate in this instance.                                         -39-                                          39                      The  effect  of stipulations  on  the  admission of            404(b)  evidence  is confronting  us  more  frequently.   We,            therefore,  proffer some  guidance in  this area.   We  note,            first of all, that a serious offer to concede or stipulate to            issues of intent  and/or knowledge should be  explored by the            district court.  In the final analysis, however, whether such            an offer is accepted  remains in the sound discretion  of the            district  judge.  If the  judge determines that  the offer is            acceptable, the  judge should take  steps to assure  that the            defendant  is aware of the contents of the stipulation and of            its  implications  before  directing  the jury  that  it  may            resolve the issue against the defendant.                        Second,   from  a   survey  of   the  circuits   on            stipulations  in  the  area   of  404(b)  evidence,  we  have            ascertained  a  preference  for  handling the  matter  before            trial,  or  early in  the trial  process.   See  e.g., United                                                        ___  ____  ______            States  v.   Cardenas,  895   F.2d  1338,  1342   (11th  Cir.            ______       ________            1990)(noting that  the defendant did nothing  before trial to            alert the government that it would not need to prove intent);            United States v. Manner,  887 F.2d 317, 322 (D.C.  Cir. 1989)            _____________    ______            (relying  in part  on the  fact that  the defendant  "had not            offered  explicitly in  any pretrial  hearings or  motions to            stipulate or  concede the  intent issue"), cert.  denied, 493                                                       _____  ______            U.S.  1062 (1990); United States v.  Franklin, 704 F.2d 1183,                               _____________     ________            1188  (10th  Cir.) (noting  the  absence  of any  enforceable                                         -40-                                          40            pretrial assurance  that the  issue would not  be contested),            cert.  denied, 464  U.S. 845  (1983).   Cf. United  States v.            _____  ______                           ___ ______________            Miller,  974 F.2d  953,  960 (8th  Cir.  1992) (declining  to            ______            overturn  the district  court  on the  basis of  "defendant's            ambiguous, last minute suggestion" to enter into an agreement            with the government on  intent).  Although we are  mindful of            the   importance of some  flexibility in this  area, we favor            the practice of handling stipulations  either pretrial, which            is preferable, or shortly  after the trial has begun  for the            sake of clarity both at trial and on review.                       Affirmed.                       Affirmed.                      ________                                                      -41-                                          41
