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______________
_____________
Espinosa, Senior Litigation Counsel, were on brief for appellee.
________
____________________
December 7, 1994
____________________
COFFIN,
appeals
his
intent to
sufficiency
Hector Julio
jury
trial
Felix Montas
for possession
distribute
cocaine.
He raises
three
of the
evidence to
support the
jury
issues:
with
the
verdict, the
by airplane
drug couriers.
While we are
given pause by
__________
On June
checked
of
in
the
name
identification tags
was
Rivera
("Rivera")
and
Miguel
The
flight from
detected
Customs
therein.
This
third
bag
bore
but no
also had
an
consecutive claim
that Felix
by defendant's address.
tag numbers.
Airline
All
records indicated
bags, at the
same time.
three bags
checked in,
been
flight gate
to locate Rivera
and Felix.
Defendant
"Felix,
Though
found defendant
being held and was told "because the dog has detected the odor of
narcotics on your bags."
went to search the
stay
and watch
pants pocket.
watching
several
piece
take his
paper
fall
from
mine."
that they
he looked
had in
hands in
he thought
This prediction
defendant
Ramos to
what he
and
out of
his pockets
described as
defendant's
back.
a crumpled
Ramos
Ramos picked
up the crumpled
said,
That's
two of which
contained the
custody, where he
cocaine.
was found to
Defendant
was taken
be in possession of
into
a Dominican
of Hector
is conflicting evidence
on what happened
Irizarry and
another Customs
next.
The
official
____________________
-3-
entered the
was
aboard.
it
took off
with the
in New
by DEA
at a preliminary hearing.
after defendant
officials
New
other passengers
the scene
also
testified that, by
Rios,
who arrived on
that Customs
He
were contacted in
In any event,
jury's guilty verdict, we read the record and draw all reasonable
inferences
therefrom
in
the
light
most
favorable
to
the
prosecution.
1994).
We must affirm
way, a
could have
found defendant
Though the
guilty
Id.
___
in this
bags containing
cocaine
to sustain the
were checked
to
Rivera's hand-written
name, the record shows that defendant was linked to these bags in
-4-
several ways.
arrival
because
they
in New
York.
"represent
luggage," is sufficient to
luggage itself.
1410
(1st
Possession
[the]
legal
of such
right
to
1992).
threw away
them up
claim checks,
reclaim
the
Cir.
intentionally
Second,
the claim
when
he
checks.
was
Such
1406,
detained,
he
evidence is
Rivera bought
and checked
their
bags together.
checked in
This could
show
more than that the two men were co-travellers, but, when
together with
the other
Third,
evidence, it
supports the
were cohorts
also
in a
smuggling endeavor.
In
any event,
argues that
all
with innocence.
He
clipped both
of this
evidence is
perfectly
submits that
he possessed
the
containing cocaine
only because
the
his and
Rivera's checks
onto
his ticket
check in
together.
only after
being told
"his" bags.
-5-
He
He says
that the
he
odor of
he then realized
for
the
first
narcotics.
time
that
Throwing away
Rivera's
bags
must
have contained
simply a
involved.
He
identifications
also
tags showed
stresses
that
that
the
that he
handwritten
the cocaine-filled
bags were
argument
fails for
two basic
reasons.
First, even
F.2d 788,
innocence."
790 (1st
United
______
Cir. 1992).
the evidence
showed nothing
co-traveller
with
Rivera
evidence
more than
--
to the
to make
that he
jury.
was an innocent
Because
reasonable a
finding of
there was
guilt, the
sufficient
jury was
of a
fair
trial.
See, e.g.,
___ ____
United States
_____________
v.
Wilensky, 757 F.2d 594, 598 (3d Cir. 1985) (criminal trial unfair
________
when "the judge's role loses its color of neutrality and tends to
Corgain, 5
F.3d 5,
9 (1st Cir.
1993).
The judge's
______
_______
a prosecution
manner
reflecting
adversely
on
defendant's
case.
We
have
of a "mere umpire."
(quoting Quercia
_______
United States v.
_____________
Desjardins v. Van
__________
___
1992) (per
U.S. 466,
469
United States v. Paz Uribe, 891 F.2d 396, 400-401 (1st Cir. 1989)
_____________
_________
(quoting Llach
_____
Cir. 1984)).
of asserted
v. United States,
_____________
An
improper conduct
isolated incidents in
by a
light of
1329-1330 (8th
reverse because
"consider
so as
to
setting.'"
Aggarwal v.
________
Ponce School
____________
never objected
United States
_____________
v. Gonzalez-Torres,
_______________
only.
We
Fed. R. Crim.
791
-7-
must show
that it
1776-78 (1993).
is `so
shocking that
fairness
and
below.'"
basic
integrity
of
the
the fundamental
proceedings
conducted
first
questioning
alleged
of
examination.
impropriety
prosecution
Sandra Roman,
concerns
witness
who worked
during
for
the
court's
her
cross-
the airline
as a
ticket agent at the San Juan airport, testified that she sold two
tickets
in the
names
of Miguel
Rivera
and Pedro
Felix,
and
On cross-examination,
and
was allowed to
disembark there.
asked
area, okay?
list.
whether
work
He handed
the people
plane.
at
in an ambiguous
on
the
Roman answered:
the
on the
Roman
on that
manner2 and
"passenger
list"
"This is
not my
counter, so
work
with
____________________
2 The transcript shows she answered by stating "aha."
-8-
to
take off
Roman replied
boarded the
the
in
list, the
inquiring further
about the
persisted
court finally
asked
Roman replied:
counsel
eliciting
with luggage,
are
testimony
clipped to
was obviously
continued
that,
when
sometimes
one
to
cross-examine
two
both of
passenger's
helpful
passengers
Roman,
check
their baggage
ticket
to defendant
in
claim
jacket.
This
because it
made
The
redirect
suggesting that,
by
since
the bags
were
theory on
checked in
in
clipped
On recross-examination,
the defense
checks
rebutted this
may be clipped to
regardless of
suggestion by eliciting
one of the
which passenger
that baggage
actually checked
the bags.
The
the
THE WITNESS:
One
person can buy
ticket[s] he wants.
THE COURT:
THE WITNESS:
No.
Later, during
however
number
[of]
jury's presence on
judgment of acquittal,
of
prosecutor
Roman
the prosecution.
for failing
In
essence,
to produce
the "on
the court
list" to
chided the
which Ms.
testify that
The court
explained that
it thought
this evidence
was crucial
not to use
Customs
it."
inspector
testified
that no
Miguel
Rivera
ever
MS. CASTRO:
Okay.
-10-
THE COURT:
We
find
questions
concerning
the "passenger
list"
appropriate.
The
defense tried to
prove
was on the
list.
list under review may not have been the "on list," i.e., the list
of
those who
effect
had made
of
the
reservation for
court's
questioning
at 401.
premise
to
a list of
Thus,
clarify
the
the true
of course,
judicial bias
of defendant's theory,
inheres in
the fact
that the
that Rivera's
name on
the list
meant he boarded the plane, was shown to be more dubious than the
defense wanted the jury to believe.
With
court's questions
regarding the
possibility of checking
absence.
in for
side had
broached this
confusion
ambiguity
of
the
jury
required
testimony
the
judge
elicited
or
clarification.
Further,
in
the
the
mind
____________________
apparently did
Rivera was
for
little more
possibility that
checked
in
pieces of
for himself
and Rivera,
and
name --
checked in
the three
a theory that,
as we
by the
defendant's
First,
right to
than the
judge,
a fundamentally
fair trial
not
think
was affected.
guilt or innocence.
testimony, the
judge did
partiality
or tip
about Rivera's
Paz Uribe, 891
__________
significant
not expressly
his hand
to the
in eliciting
display an attitude
jury concerning
F.2d at 400-401.
Nor
do we think
this
of
his belief
See
___
there was a
Second,
instruction to the
jury, at the
say, nothing
did
not believe Rivera was ever at the airport took place outside the
jurors' presence
verdict.
Further,
in
the
context
of
the
court's
overall
little.
on this score
were not
the type of
The
the
reversal, and
defendant
complains
that,
by
pointing
out the
her benefit.
But this
argument ignores that the court expressly ruled that it would not
allow
the
deficiency.
government
There was,
to
re-open
its
case
to
correct
the
offered by
expert testimony
under
Fed. R.
Evid.
702 because
given by
agent, DEA
it
The
Agent
Q:
The Court:
A:
Yes, ma'am.
Q.
A.
Yes, Ma'am.
where suitcases
are
Q.
The Court:
Grounds?
We
are
dealing
with
this
interception.
Were
they
interceptions that were unrelated
to this case?
If
that's the
situation, I object.
The Court:
Overruled.
The Court:
Overruled.
A.
Q.
A.
Q.
A.
Q.
A.
On
summation,
the
prosecutor
"99 percent"
of the
emphasized
the
similarity
drug smugglers
caught in
his previous
cases:
And then you remember the testimony of the case agent
in this case, Mr. Ivan Rios. He told you he's been -he's intervened in
many airport cases
involving
suitcases.
He also told you, ladies and gentlemen,
that in 99 percent of
the cases in which he's
intervened, the person is travelling under an assumed
name, like the defendant here, P. Felix, when in fact
his name is Hector Julio Felix Montas.
objected to
Agent Rios's
testimony, he
and -- as
objection -- relevance.
At no
did so
best we
time did
expert testimony
it was unfairly
under Fed. R.
Evid. 702
R. Evid.
403.
or
No
on
summation.
only.
Thus, we
review these
matters for
plain error
583 n.27
"scientific, technical,
knowledge" if it "will
or other
of fact to
As the
889
L. Rev.
F.2d 1191,
1194 (1st
Cir.
United States
_____________
1989).
A district
the context
overall trial,
of the
enjoys
hand in
broad discretion
of expert testimony; an
v.
in
appellate
manifest abuse
of discretion.
United States v.
_____________
Echeverri, 982
_________
admissible under
testimony still
outweighed
by the
risk
of
unfair prejudice
it
v.
-16-
creates.
See
___
Castiello,
_________
915 F.2d
at
Castillo, 924
________
inquiry
F.2d
1227, 1232
n.9
(2d Cir.
1991).
403
The
extraordinarily
Rico, Ltd. v.
___________
(quoting
_______
compelling
circumstances."
Rubbermaid Inc., 20
_______________
rarely -- and
Newell Puerto
______________
F.3d 15, 21
of the
crime.
See Echeverri,
___ _________
982 F.2d at
680
and explain
(statement
its
phrased
in drug
comprehensible to the
by a
contents"); Castiello,
_________
world
jargon "was
915
F.2d at
not
so readily
bear elucidation
world");
1990) (expert
criminal
activities is
family's "extensive
helpful
to jury
certain roles in
because
criminal organization . .
of the
crime
., the complexity
jargon
by
defendants
in
their
conversations");
that
United States
______________
v. Ladd,
____
been at a
885 F.2d
954,
loss to understand");
959-60 (1st
Cir. 1989)
drugs is
consistent with
distributive intent,
not personal
F.2d
956, 973-75
defendants
assisted
were
jury in
close
(1st
Cir. 1988)
associates
light of
of
(expert
testimony that
organized
family's complex
Angiulo,
_______
crime
family
structure); United
______
States v. Rivera Rodriguez, 808 F.2d 886, 888 (1st Cir. 1986) (to
______
________________
found
in
defendant's possession,
expert
may
at 38 (since "smuggling
tons of marijuana is a
expert
drug smugglers'
testimony about
complex matter,"
methods would
help the
case is distinguishable.
that were
readily intelligible.
name
of
"P.
Felix" without
airline drug
smugglers check
under
names to
false
Weiner,
______
expert
their bags
avoid detection.
testimony
that
tickets
testimony of "a routine inference that the jury could draw on its
own").
Indeed, in
a telling
slip
of the
tongue, the
expert
-18-
himself belied
the claim:
when
asked why
smugglers would
use
bounds of a jury's
probative value.
is real.
stamp of approval on
the government's
the
theory, such
influence
See Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir.
___ _____
_____________________
1986)
(expert
testimony
is
unfairly
prejudicial
"when
the
____________________
deciding whether to
403.
We believe that
and probably
Rules 702
We
and
beyond -- what
is acceptable.
But
as also noted,
See Olano, 113 S. Ct. at 1776-78 (plain error requires error that
___ _____
was clear or obvious
we
find
the relevant
assess the
inquiries --
was
the jury
First,
competent to
what is the probative weight of the testimony, what are the risks
of
obvious
and clear.
important
bases
is greater -- to
Indeed,
it is particularly
opportunity
minimizing the
to
carefully
consider
risks associated
so that the
them.
Second,
without
we cannot
say
that its
admission was
affect[ed] the
proceedings
"`so shocking
fundamental fairness
conducted below.'"
that [it]
seriously
Ortiz, 23
_____
F.3d
at 26.
of the
The
in this case.
Affirmed.
_________
-20-