Filed: Mar. 18, 1993
Latest Update: Feb. 21, 2020
Summary: and Cyr, Circuit Judge., Brian T. O'Connor, Assistant United States Attorney, with whom A., John Pappalardo, United States Attorney, was on brief for appellee. United States v. Berrio-Londono, 946 F.2d 158, (1st Cir.substantially outweigh the probative value of the evidence.
March 18, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 90-1465
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE ELIECER AGUDELO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Selya, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Cyr, Circuit Judge.
Charles W. Rankin, with whom Rankin & Sultan was on brief for
appellant.
Brian T. O'Connor, Assistant United States Attorney, with whom A.
John Pappalardo, United States Attorney, was on brief for appellee.
March 18, 1993
ALDRICH, Senior Circuit Judge. Defendant Jorge
Eliecer Agudelo appeals from his November 29, 1989 conviction
for possession with intent to distribute five kilograms or
more of cocaine, 21 U.S.C. 841(a)(1), and for conspiracy to
do the same. 21 U.S.C. 846. Three co-defendants, Hildardo
Alvarez, Antonio Palacio Calle, and Jorge Ivan Berrio-Londono
were also so charged. The jury convicted Alvarez, but the
district court directed mistrials for Calle and Berrio-
Londono after the jury failed to reach a verdict.1 On
appeal, Agudelo alleges that the court erred in allowing
Special Agent Lemon to testify regarding a 1986 seizure of
cash from the defendant and in allowing him to provide expert
opinion testimony on the same. We affirm.
The story, taking it most favorably to the
government, United States v. Echeverri, 982 F.2d 675 (1st
Cir. 1993), unfolds as follows. Drug Enforcement
Administration ("DEA") agents learned that a Lear jet had
been hired to fly empty from Detroit to Boston to pick up
several passengers. The itinerary called for a limousine to
pick up the passengers at room 160 of a local Holiday Inn,
the driver to ask for Steve. Upon arrival at Logan Airport
the pilot presented the $4,000 rental fee to the agents, and
their trained dog alerted to a narcotics residue. The DEA
1. Calle has since pleaded and Berrio-Londono has been tried
and convicted. United States v. Berrio-Londono, 946 F.2d 158
(1st Cir. 1991), cert. denied,
112 S. Ct. 1223 (1992).
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agents replaced the limousine driver with police Sgt.
Tomassi, who proceeded to room 160 and knocked. Agudelo
opened the door, and the three co-defendants were inside.
Walking down the corridor to leave, Agudelo told Alvarez to
"go get the bag," and Alvarez left by a side exit while the
others proceeded to the limousine outside the main entrance.
On their reaching it Agudelo and the other two co-defendants
were confronted by the agents, and Alvarez was thereafter met
carrying a partially unzipped duffel bag. Inside were 12
kilograms of cocaine in wrapped packages. Investigation
showed that the hotel room had been checked into by Calle and
Berrio-Londono at 8 p.m. that evening. A search found it
empty but for a scrap of paper with Alvarez's phone number.
After his arrest, Agudelo told the police that
Calle and Berrio-Londono were soccer friends whom he had not
seen for years until a happenstance encounter earlier that
afternoon. He added that he had agreed to meet them at the
hotel just to "say hello and bye-bye." This explanation was
contradicted by boarding passes found on Calle and Berrio-
Londono for the 6 p.m. Trump shuttle from New York to Boston.
These were verified by a Trump Shuttle recordkeeper who also
provided their validated flight coupons.
At trial, DEA Special Agent Lemon testified, over
objection, regarding his seizing $50,000 cash from Agudelo in
1986. Lemon testified that as Agudelo was passing through
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the airport security clearance area, Lemon stopped and
questioned him. Agudelo responded that he carried $500 in
cash, but, after a search, Lemon found $50,000 in small
denomination bills in his clothing and gym bag. Agudelo then
claimed that he had received the money from a Rafael Sanchez
at a restaurant, though he could not provide the name or
location of the restaurant or Sanchez's phone number. A dog
trained in drug detection "alerted" to the presence of
unidentified drug traces on the money. It was seized and
ultimately forfeited when Agudelo, even though he had been
given a receipt, failed to apply for its return. Again over
objection, Agent Lemon testified that he believed the cash
was "proceeds from a drug transaction." Counsel for Agudelo
declined the district court's offer to provide a limiting
instruction.
To be admissible, evidence of a prior conviction or
other wrongdoing under Fed. R. Evid. 404(b)2 must survive a
two part test. First, the past incident must have some
relevance other than to show the defendant's character or
propensity to commit the crime. United States v. Ferrer-
Cruz, 899 F.2d 135, 137 (1st Cir. 1990). Second, even if
2. "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 or mistake or accident. . . ."
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specially relevant, the danger of prejudice cannot
substantially outweigh the probative value of the evidence.
Id. at 138; Fed. R. Evid. 403.
The special relevance question has arisen numerous
times in relation to a defendant's claim that he was unaware
of drugs stored in a variety of mundane or, hopefully, secret
places, including defendants' car trunk,3 car floor,4
checked or carry-on baggage,5 or under his chicken coop and
frozen dog food.6 For a recent collection of cases see
United States v. Arias-Montoya, 967 F.2d 708 (1st Cir. 1992).
It is true that the circumstances in 1986 and the present are
widely different, but, if the jury believed defendant had
been in a drug transaction then, this might cast substantial
doubt on his testimony that his exercising control over the
commandeered bag was innocent. United States v. Nickens, 955
F.2d 112, 124 (1st Cir.), cert. denied,
113 S. Ct. 108 (1992).
This was not a case of drugs hidden where a defendant might
readily claim ignorance. Shedding this light outweighs any
resulting unfair prejudice. Correspondingly, if the jury did
3. E.g., United States v. Arias-Montoya, post.
4. E.g., United States v. Ferrer-Cruz, ante.
5. E.g., United States v. Nickens, post; United States v.
Simon, 842 F.2d 552 (1st Cir. 1988).
6. United States v. Moccia, 681 F.2d 61 (1st Cir. 1982).
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not give an unfavorable interpretation to the 1986 evidence
it would not have been prejudicial.
We reject the government's claim that the 1986
evidence was admissible simply on the issue of impeachment,
to contradict defendant's 1989 denial that he had ever been
found to have $50,000 on his person. Fed. R. Evid. 608(b).
However, on the broader issue, we think the jury could have
found that the 1986 incident cast light on defendant's intent
in 1989.
This sharpens up, however, defendant's objection to
the admission of the agent's opinion that the 1986 $50,000
"was proceeds from a drug transaction." While expert opinion
is, of course, admissible on such an issue, normally the
expert should have some special qualifications or knowledge
that would cause his opinion to add something of value. Fed.
R. Evid. 702. Here we see nothing; there was, for example,
nothing in the trade that he interpreted or illuminated. See
United States v. Echeverri, ante, and cases cited. The
admission was error.
Although with some hesitation,7 we have concluded
that it was not prejudicial. We agree with defendant that a
jury, if it finds an expert credible, may believe he had
7. This is not to forget our complaint in United States v.
Williams, No. 92-1858 (1st Cir. 2/12/93), about giving the
government two bites at the apple: push for evidence
believed to be damning, and then say it was meaningless.
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special grounds for his opinion. Here there was no
suggestion that he had such. The witness had stated the full
basis for his conclusion, which the jury knew, equally: the
dog's alert, and the singularly powerful fact that defendant
was willing to forego asking for the $50,000's return. Under
the circumstances we regard the agent's opinion as merely
cumulative, and adding nothing substantial.
Finding no prejudicial error, we affirm.
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