                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-17-2003

USA v. Cruz
Precedential or Non-Precedential: Precedential

Docket 02-2634




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"USA v. Cruz" (2003). 2003 Decisions. Paper 581.
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                                  PRECEDENTIAL

                                              Filed April 17, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 02-2634


                UNITED STATES OF AMERICA
                                  v.
                     LUIS WILFREDO CRUZ
                            a/k/a
                            WILLIE
                           Sergio Cruz
                        (whose true name
                     is Luis Wilfredo Cruz),
                                                  Appellant

     On Appeal from the United States District Court
               for the District of New Jersey
  District Judge: Honorable John W. Bissell, Chief Judge
                (D.C. Crim. No. 01-00292-2)

                   Argued February 28, 2003
       Before: SCIRICA, GREENBERG, and GIBSON*,
                      Circuit Judges

                     (Filed: April 17, 2003)




* Honorable John R. Gibson, Senior Judge of the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
                             2


                      Henry E. Klingeman (argued)
                      Klingeman Turano LLC
                      230 Main Street, 2nd Floor
                      Madison, NJ 07940
                        Attorneys for Appellant
                      Christopher J. Christie
                      United States Attorney
                      George S. Leone
                      Chief, Appeals Division
                      Sabrina G. Comizzoli (argued)
                      Assistant United States Attorney
                      970 Broad Street
                      Newark, NJ 07102-2535
                        Attorneys for Appellee


                OPINION OF THE COURT

GREENBERG, Circuit Judge:
   This matter comes on before this court on Luis Wilfredo
Cruz’s (“Cruz”) appeal from a judgment of conviction and
sentence entered in this criminal case on June 4, 2002.
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231 and we have jurisdiction under 28 U.S.C. § 1291.
  The circumstances leading to this appeal are as follows.
On April 30, 2001, a grand jury charged Cruz and two co-
defendants, Eladio Cruz (“Eladio”), Cruz’s father, and Efrain
Montalvo (“Montalvo”), in a one-count indictment with
conspiracy to distribute and possession with intent to
distribute more than 50 grams of cocaine base (crack
cocaine) in violation of 21 U.S.C. § 846. The indictment
arose from an investigation conducted by the Drug
Enforcement     Administration     (“DEA”)    involving    an
undercover DEA agent and a confidential source into a
narcotics organization Cruz led in Newark, New Jersey. The
confidential source assisted the undercover agent in
arranging crack cocaine transactions with Cruz’s
organization which included an April 4, 2001 transaction in
which the undercover agent met with Eladio and Montalvo
                             3


and purchased approximately 100 grams of cocaine base
and an April 11, 2001 transaction in which the confidential
source met with Cruz to negotiate the purchase of
approximately 150 grams of cocaine base, which was
delivered later that day to the undercover agent by
Montalvo as arranged for by Cruz. Shortly before Montalvo
delivered the drugs, the confidential source dropped off
Cruz for a meeting with his parole officer. Soon after
delivering the drugs, Montalvo met with Cruz and delivered
the proceeds of the drug deal to him. On April 26, 2001,
the DEA arrested Cruz and the two co-defendants. The two
co-defendants pleaded guilty in September 2001 but Cruz
went to trial and was found guilty.
  In a pretrial in limine ruling, the district court, after
having received written submissions from both parties,
determined that the government could offer evidence that
Cruz was on parole at the time of the conspiracy alleged,
stating:
      [T]he Government may introduce evidence in a
    general way to establish that, at the time of the instant
    offense, [Cruz] was on parole. The Court agrees that
    this evidence would go to [Cruz’s] motive or reasons to
    deal with and through the co-defendants (or others if so
    established) rather than risk being busted as a parole
    violator due to more overt conduct. This evidence is
    admissible under [Fed. R. Evid.] 404(b), and survives
    [Fed. R. Evid.] 403 scrutiny.
App. at 14.
  During the trial the jury heard testimony regarding
Cruz’s parole status from the undercover agent in that he
said that on April 11, 2001, the confidential source had
informed him that he “had gone to drop [Cruz] off at
probation” prior to meeting the undercover agent in North
Newark. App. at 67. The confidential source also testified to
the same effect. In addition, parole officer Aretha Hughes,
who had supervised Cruz on parole from June 2000
through April 2001, testified. Before Hughes testified,
defense counsel requested that the district court revisit its
pretrial ruling on the admissibility of evidence of Cruz’s
parole status. At that time the government stated that it
                                    4


would offer Hughes’s testimony that Cruz was on parole at
the time of the April 2001 drug transactions because his
parole status gave him an incentive to insulate himself from
law enforcement scrutiny by using others, such as the co-
defendants Montalvo and Eladio, to engage in hand-to-hand
street transactions so that he could reduce the risk of being
charged with parole violation. The court accepted the
government’s argument as it ruled that Hughes’s testimony1
regarding Cruz’s parole status had probative value that was
not outweighed by the danger of unfair prejudice.
Furthermore, the court found that her testimony would not
be “unduly cumulative” of prior testimony. Therefore, the
court allowed the government to offer Hughes’s evidence
and use it in its closing argument in support of its theory
that Cruz “had a motive to insulate himself from direct
contact with such things as customers.” App. at 862.
  The only issue raised on this appeal is whether the
district court erred when, after applying Fed. R. Evid. 403
and 404(b), it admitted into evidence testimony establishing
that Cruz was on parole at the time of the charged
conspiracy. We make a de novo determination of whether
evidence falls within the scope of Rule 404(b). See United
States v. Givan, 320 F.3d 452, 460 (3d Cir. 2003). But if
the evidence could be admissible in some circumstances,
we review the district court’s determination allowing it to be
admitted for abuse of discretion. See United States v.
Console, 13 F.3d 641, 658-59 (3d Cir. 1993). In making
these determinations we agree with the district court that
evidence of Cruz’s parole status should be considered
evidence of other crimes for purposes of Rule 404(b). See
United States v. Manarite, 44 F.3d 1407, 1418 (9th Cir.
1995).
  Fed. R. Evid. 404(b) provides in relevant part that:
“Evidence of other crimes, wrongs or acts is not admissible
to prove the character of a person in order to show action

1. Hughes testified that, as a condition of parole, Cruz was prohibited
from engaging in any drug activity. She also testified that he reported to
her regularly, including on April 11, 2001 - the date of the second
alleged transaction. In total, her direct testimony consisted of four pages
of an approximately 1,125 page trial transcript.
                             5


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. . . .” We have recognized that Rule
404(b) is a rule of inclusion rather than exclusion. See
United States v. Jemal, 26 F.3d 1267, 1272 (3d Cir. 1994).
We favor the admission of evidence of other crimes, wrongs,
or acts if such evidence is “relevant for any purpose other
than to show a mere propensity or disposition on the part
of the defendant to commit the crime.” United States v.
Long, 574 F.2d 761, 765 (3d Cir. 1978) (quoting United
States v. Stirone, 262 F.2d 571, 576 (3d Cir. 1958), rev’d on
other grounds, 361 U.S. 212, 270, 80 S.Ct. 270 (1960)).
  In Huddleston v. United States, 485 U.S. 681, 108 S.Ct.
1496 (1988), the Supreme Court set out a four-part test for
admission of Rule 404(b) evidence: (1) the evidence must
have a proper purpose; (2) it must be relevant; (3) its
probative value must outweigh its potential for unfair
prejudice; and (4) the court must charge the jury to
consider the evidence only for the limited purposes for
which it is admitted. Id. at 691-92, 108 S.Ct. at 1502. See
United States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002).
  To meet the first requirement and show a proper
evidentiary purpose, the government must “clearly
articulate how that evidence fits into a chain of logical
inferences without adverting to a mere propensity to
commit crime now based on the commission of crime then.”
United States v. Mastrangelo, 172 F.3d 288, 295 (3d Cir.
1999) (internal quotation marks omitted). Here the
government articulated the logical inferences that render
Cruz’s parole status relevant to establishing Cruz’s motive,
intent and method of concealing his illegal drug activity in
order to avoid the risk of parole revocation. A defendant’s
parole status has been held to be probative of why a
defendant would take extra steps to hide his criminal
activity. See Manarite, 44 F.3d at 1418-19. Cruz’s parole
status provided an explanation for why he used the co-
defendants    to   perform     the    hand-to-hand    street
transactions. See United States v. Paredes, 176 F. Supp. 2d
192, 195 (S.D.N.Y. 2001). The evidence that Cruz was on
parole at the time of the conspiracy charged is therefore
probative of a material issue other than Cruz’s character.
                              6


   The second Rule 404(b) requirement for admissibility
under Fed. R. Evid. 402, i.e., relevance, is met here
because, as the district court found, the evidence was
offered to show a reason for Cruz’s delegation of the hand-
to-hand street transactions to others. This evidence was
especially relevant given that Cruz’s defense at trial was
that his physical absence from negotiations and
transactions was proof that he had no involvement in the
conspiracy. According to the government’s theory of the
case, Cruz used the co-defendants to perform his
transactions because it exposed them rather than him to
the risk of law enforcement activity, which was especially
important given his parole status. Therefore, Cruz’s parole
status is relevant to explain his decision to run his
business in the manner the government alleged. See
Paredes, 176 F. Supp. 2d at 195.
  The district court also properly found that the evidence
met the third requirement of admission under Rule 404(b),
passing a Rule 403 balancing test. The district court
explicitly weighed the probative value of the evidence
against its prejudicial effect and found that its probative
value was not outweighed by the danger of undue
prejudice. In addition, the district court was very careful in
assuring that the possibility of any unfair prejudice was
minimized. For example, the jury was never given any hint
as to what type of crime Cruz committed that led to his
parole status, whether it was a felony, or what length of
time, if any, he may have served in prison. The government
did not, as Cruz asserts, “get in through the back door”
Cruz’s prior 1997 drug conviction. Br. of Appellant at 8.
   We have emphasized that the “trial judge, not the
appellate judge, is in the best position to assess the extent
of the prejudice caused a party by a piece of evidence.”
Long, 574 F.2d at 767. We also have stated that “[i]f judicial
self-restraint is ever desirable, it is when a Rule 403
analysis of a trial court is reviewed by an appellate
tribunal.” Id. Therefore, we cannot find that the district
court abused its discretion under Rule 403 in this case.
  Finally, the district court met the fourth requirement for
admission of Rule 404(b) evidence by carefully providing the
jury with limiting instructions both immediately after
                                    7


Hughes’s testimony2 and also during the jury charge.3 The

2. Immediately after Hughes’s testimony, the district court instructed the
jury:
      I’d just like to give you a brief instruction about the testimony that
    you just heard from the parole officer and how you may or may not
    consider it in your deliberations.
      The government has introduced evidence that the defendant was
    on parole at the time of the conspiracy charged in the indictment.
    The government has offered the evidence to show that the defendant
    intended to act with and through co-conspirators rather than risk
    engaging in more overt conduct himself.
      I caution you, that you may only consider this evidence for the
    limited purpose I just described and not to prove that defendant is
    a bad person and thus he was predisposed to do bad things, such
    as participate in the charged conspiracy. Further, you may not
    discuss, speculate, or consider why the defendant was on parole
    during your deliberations. In other words, you should consider the
    evidence that the defendant was on parole only for the specific,
    limited purpose I have described and in conjunction with my other
    instructions. To consider this evidence for any other purpose would
    be improper.
      I will be repeating that instruction also as part of my general
    instructions but I felt it was appropriate to give it to you now so you
    perhaps have better awareness right away of the relevance of the
    testimony you heard.
App. at 881-82.
3. When charging the jury the district court stated:
      The government has introduced evidence that the defendant was
    on parole at the time of the conspiracy charged in the indictment.
    The government has offered the evidence to show that the defendant
    intended to act with and through co-conspirators rather than risk
    engaging in more overt conduct himself.
      I caution you that you may only consider this evidence for the
    limited purpose I just described and not to prove that the defendant
    is a bad person and thus he was predisposed to do bad things, such
    as participate in the charged conspiracy. Further, you may not
    discuss, speculate, or consider why the defendant was on parole
    during the deliberations. In other words, you should consider the
    evidence that the defendant was on parole only for the specific,
    limited purpose I have described and in conjunction with my other
    instructions. To consider this evidence for any other purpose would
    be improper.
App. at 1086-87.
                               8


court twice instructed the jury that it should consider the
evidence for the “limited purpose” that Cruz “intended to
act” through co-conspirators rather than overtly, app. at
881, 1086, and that the evidence should not be considered
as proof that Cruz is a bad person or had a propensity to
engage in illegal conduct. Cruz argues that “the jury
undoubtedly engaged in its own improper speculation as to
the nature of Cruz’s prior conviction.” Br. of Appellant at
13. This argument is unavailing, however, as we presume
that the jury followed the limiting instruction that the
district court gave and considered evidence of Cruz’s parole
status only for the limited purposes offered. See United
States v. Givan, 320 F.3d at 462.
  Overall, we find that the district court did not commit an
error of law or abuse its discretion in admitting evidence of
Cruz’s parole status.
  The judgment of conviction and sentence entered June 4,
2002, will be affirmed.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
