USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 96-1070
UNITED STATES,
Appellee,
v.
ALBERTO MORLA-TRINIDAD,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Selya and Stahl, Circuit Judges,
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and Torres,* District Judge.
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Stephen H. Mackenzie on brief for appellant.
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Jay P. McCloskey, United States Attorney, Margaret D. McGaughey,
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Assistant United States Attorney, and George T. Dilworth, Assistant
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United States Attorney, on brief for appellee.
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November 8, 1996
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*Of the District of Rhode Island, sitting by designation
STAHL, Circuit Judge. A jury convicted defendant-
STAHL, Circuit Judge.
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appellant Alberto Morla-Trinidad of conspiring to distribute
and possess with intent to distribute crack cocaine. Morla-
Trinidad now seeks a new trial, claiming that the district
court erred when it permitted the prosecutor to impeach his
testimony with cross-examination and rebuttal evidence
concerning a prior arrest of the defendant in which evidence
was illegally obtained. We affirm.
I.
I.
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Background
Background
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On September 4, 1994, police in Lewiston, Maine,
stopped a vehicle in which Morla-Trinidad was a passenger and
Melvin "Bubba" Lagasse ("Bubba Lagasse") was the driver.
Incident to that stop, the police officers searched Morla-
Trinidad for weapons and discovered cash and small amounts of
marijuana and crack cocaine. Subsequent state drug charges
against Morla-Trinidad were dismissed after a Maine Superior
Court judge ruled that the officers lacked justification to
search him and suppressed the seized evidence.
Pursuant further investigation, federal agents
arrested Morla-Trinidad in Lewiston on April 18, 1995. That
same day, a grand jury returned a one-count indictment
charging Morla-Trinidad and Ruth Peabody with conspiring to
traffick drugs from July to December 1994 in Maine and
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Massachusetts. Peabody eventually pleaded guilty while
Morla-Trinidad proceeded to trial.
II.
II.
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Trial Events
Trial Events
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Because Morla-Trinidad does not challenge the
sufficiency of the evidence, we describe the pertinent trial
evidence in a neutral manner to provide context for the
claimed error. See United States v. Procopio, 88 F.3d 21,
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23-24 (1st Cir. 1996). Generally, the government sought to
show that, throughout the indictment period, Morla-Trinidad
traveled between Lawrence, Massachusetts, and Lewiston,
Maine, to manage sales of crack cocaine out of Peabody's
Lewiston residence.
In its case in chief, the government presented six
witnesses who testified about their involvement with Morla-
Trinidad. Raul Baez testified that Morla-Trinidad initially
sold drugs for him in Lawrence, but then became interested in
selling in Lewiston, another locale in which Baez conducted
his drug business. Baez stated that although he rejected
Morla-Trinidad's offer to become a partner in his Lewiston
business, he did drive Morla-Trinidad to Lewiston to meet
Peabody; to Baez's dismay, Morla-Trinidad then began to
compete with him in the Lewiston drug trade.
Most of the other witnesses testified that they saw
Morla-Trinidad in Peabody's residence (where they bought
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crack cocaine), and/or that they bought the drug directly
from Morla-Trinidad at that location. In particular, Marlane
Driggers testified that she first met Morla-Trinidad in May
1994 in Lawrence, at which time she drove him to her
apartment in Lewiston. She stated that he carried at least
200 bags of crack cocaine on that trip, intending that she
sell it in Lewiston. Driggers testified that soon
thereafter, she moved into Peabody's apartment out of which
they sold crack cocaine. She indicated that Morla-Trinidad
stayed in their living room at least three days a week and
that, two or three times during each of those days, she would
obtain from him a batch of twenty bags of crack cocaine to
sell.
Michael Lagasse testified that his brother, Bubba
Lagasse, told him that Morla-Trinidad operated out of
Peabody's residence. He stated that Morla-Trinidad was at
Peabody's residence at least two or three times per week and
that he bought crack cocaine many times from Morla-Trinidad
at that location. Three other witnesses, Bruce Moody, Scott
Poulin, and Karla Schools, testified that they regularly
purchased crack cocaine out of Peabody's apartment and that
they either bought directly from Morla-Trinidad or they saw
him there when they bought from Peabody.
There was testimony to the effect that Morla-
Trinidad would exchange crack cocaine for travel between
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Lawrence and Lewiston. Driggers testified that she drove
Morla-Trinidad from Lawrence to Lewiston at least five times
and that various people, including Bubba Lagasse, Peabody and
Schools, also drove him to and from Lawrence and Lewiston.
Moody testified that he drove Morla-Trinidad twice to
Lawrence from Maine. Schools testified that on two occasions
she picked up Morla-Trinidad in Lawrence and transported him
to Lewiston, where, she said, he would stay for about a week.
On the second day of his trial, Morla-Trinidad
testified in his own defense.1 Defense counsel began Morla-
Trinidad's direct examination with the following question:
"Alberto, yesterday there were six witnesses that testified
directly about your supposed involvement in a crack ring.
We'll go through this list and ask you whether you know these
people in any way." In response to counsel's subsequent
questions, Morla-Trinidad testified: "Of the witnesses who
testified yesterday, I can assure you, I can swear before God
that I have only seen two of them, [Driggers and Baez]."
As to Driggers, he testified that the first time he
saw her was in prison after his April 1995 arrest. He stated
that the events to which Driggers testified "didn't happen"
and that he never gave or sold crack cocaine to her. As to
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1. Before Morla-Trinidad took the stand, the district court
personally informed him that, if he testified in his own
defense, the government would have the opportunity to cross-
examine him and might be permitted to introduce the subject
of the September 1994 arrest.
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Baez, he stated that, although he had seen Baez several
times, he neither sold crack cocaine for him nor knew that he
was "involved in this kind of business." Additionally,
Morla-Trinidad denied knowing either Bubba Lagasse or
Peabody, his indicted co-conspirator.
Concerning his whereabouts during the indictment
period (July to December 1994), Morla-Trinidad testified that
he split his time between New York and Lawrence. He stated
that, during this time, he was devoted full-time to his
business of promoting Hispanic music in the New York area.
When asked if he went to Maine during the indictment period,
Morla-Trinidad replied that he traveled there only once to
see his attorney. When asked if he had any friends or
associates in Lewiston, he replied that he had a "woman
friend" there.
During cross-examination by the prosecutor, Morla-
Trinidad maintained that he did not know Bubba Lagasse and
that he traveled to Lewiston only once during the indictment
period -- to meet only with his attorney. When pressed,
however, he acknowledged that he traveled to Lewiston once
again during that time, again to see his attorney, and that
he also once went to a fast food restaurant near Lewiston to
meet his woman friend. The prosecutor then inquired, "And on
any of these occasions that you went to Lewiston in 1994 to
see your lawyer . . . did you possess crack cocaine?"
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At this point, defense counsel objected and a
sidebar conference was held. Anticipating that the question
would lead to further inquiry into the September 1994
Lewiston arrest (during which evidence was unlawfully
seized), counsel argued that the subject was "very
prejudicial" and, in any event, irrelevant to the charged
conspiracy. The district court disagreed, stating, "It's
certainly relevant to the question of conspiracy." The
prosecutor then voiced his intention to introduce the subject
of the September 1994 arrest. Defense counsel objected,
contending that the previously-suppressed evidence was of
little probative value and unduly prejudicial.
The district court ruled in favor of the
government, finding that, although the tainted evidence would
be inadmissible as part of the government's case in chief, it
was admissible to impeach Morla-Trinidad's testimony. The
court observed:
This defendant has taken the stand. He's
denied knowing Bubba Lagasse, he
certainly denied having any involvement
in the . . . crack cocaine conspiracy
during July to December [1994].
And so this is material and relevant
evidence to show that his testimony is
false. [T]he suppression issue [is] no
longer relevant. So far as the relevance
issue is concerned, this bears directly
on his testimony.
The court acknowledged that the evidence was prejudicial, but
found that it was not unfairly so.
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Subsequently, the following exchange took place
before the jury with Morla-Trinidad on the witness stand:
Q. [By the prosecutor] Mr. Trinidad,
when you visited Lewiston, Maine, in
1994, did you ever possess crack cocaine?
A. Never, sir.
Q. Never once?
A. Never.
The prosecutor then elicited Morla-Trinidad's acknowledgment
that he was stopped in September 1994, with another man, by
Lewiston police; Morla-Trinidad stated, however, that he did
not know the other man as "Bubba Lagasse." Morla-Trinidad
denied that the police found a plastic baggie in his pocket,
then stated that he did not know the baggie contained crack
cocaine. He did acknowledge that the police discovered some
$1,800 in his possession.
In its rebuttal case, the government called a
police officer to testify about the events surrounding the
September 1994 arrest, including the illegal seizure of cash
and drugs. The government also called a state chemist who
identified the seized drugs as crack cocaine. The drugs were
admitted into evidence.
The jury convicted Morla-Trinidad of the charged
conspiracy and the district court subsequently sentenced him
to 324 months' imprisonment. This appeal ensued.
III.
III.
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Discussion
Discussion
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Morla-Trinidad contends that the impeachment of his
testimony by the cross-examination and subsequent testimony
concerning the tainted evidence obtained at the time of the
September 1994 arrest constituted prejudicial error because
his testimony on direct examination neither "opened the door"
to this topic nor reasonably suggested inquiry into it on
cross-examination. He argues that his testimony on direct
regarding his alleged drug activities concerned only Driggers
and Baez and did not fairly implicate the September 1994
arrest.
A. Standard of Review
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Determining the scope of cross-examination is a
matter within the district court's discretion and will not be
disturbed absent abuse. United States v. Cassiere, 4 F.3d
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1006, 1019-20 (1st Cir. 1993); see O'Connor v. Venore Trans.
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Co., 353 F.2d 324, 326 (1st Cir. 1965) (extent to which a
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court allows counsel to test witness's credibility on cross-
examination will not be disturbed absent "plain abuse of
discretion").
B. Use of Tainted Evidence to Impeach
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It is well-settled that evidence obtained in
violation of the Fourth Amendment can be admitted for the
limited purpose of impeaching a testifying criminal
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defendant's credibility.2 Walder v. United States, 347 U.S.
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62, 65 (1954) (rejecting notion that a criminal defendant
"can turn the illegal method by which evidence in the
Government's possession was obtained to his own advantage,
and provide himself with a shield against contradiction of
his untruths"). The so-called "impeachment exception" to the
exclusionary rule reflects a balance of values underlying
that rule. See James v. Illinois, 493 U.S. 307, 311-12
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(1990) (acknowledging that the truth-seeking function of a
criminal trial is limited by the goal of discouraging lawless
searches and seizures). Thus, while defendants are "free to
testify truthfully on their own behalf . . . without opening
the door to impeachment," id. at 314, an "affirmative[]
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resort to perjurious testimony" may be exposed by impeachment
with illegally obtained evidence, Walder, 347 U.S. at 65.3
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When a defendant opens the door to impeachment
through his statements on direct, the government may try to
establish that his testimony is not to be believed through
cross-examination and the introduction of evidence, including
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2. Tainted evidence illegally obtained from a defendant may
not, however, be used to impeach trial witnesses other than
the testifying defendant. James v. Illinois, 493 U.S. 307,
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313 (1990).
3. This particular mode of impeachment falls within the
general category of "impeachment by contradiction," which is
not specifically treated in the Federal Rules of Evidence,
United States v. Cudlitz, 72 F.3d 992, 996 n.1 (1st Cir.
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1996), but is governed by common-law principles, United
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States v. Perez-Perez, 72 F.3d 224, 227 (1st Cir. 1995).
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tainted evidence, that contradicts the direct testimony.4
See Oregon v. Hass, 420 U.S. 714, 716-17, 721-22 (1975);
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Harris v. New York, 401 U.S. 222, 223-225 (1971); Walder, 347
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U.S. at 63, 65. When the assertedly false testimony is first
given on cross-examination, however, the trial judge must
gauge how closely the cross-examination is connected with
matters explored during direct before invoking the
impeachment exception to the exclusionary rule. See United
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States v. Havens, 446 U.S. 620, 626 (1980).
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In Havens, the Supreme Court held:
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a defendant's statements made in response
to proper cross-examination reasonably
suggested by the defendant's direct
examination are subject to otherwise
proper impeachment, albeit by evidence
that has been illegally obtained and that
is inadmissible on the government's
direct case, or otherwise, as substantive
evidence of guilt.
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4. Here, Morla-Trinidad's travel to Maine and his possession
of cocaine during that travel are "non-collateral" matters,
i.e., matters that are of consequence to this case. See
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United States v. Andujar, 49 F.3d 16, 26 (1st Cir. 1995).
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Typically, only non-collateral matters such as these may be
impeached (by contradiction) with extrinsic evidence. See
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Perez-Perez, 72 F.3d at 227; United States v. Pisari, 636
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F.2d 855, 859 (1st Cir. 1981). But see Charles A. Wright &
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Victor J. Gold, Federal Practice and Procedure 6096 at 546-
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49 (1990) (suggesting that extrinsic contradiction on a
collateral issue is permissible where a testifying criminal
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defendant opens the door to that issue); see also United
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States v. Havens, 446 U.S. 620, 624-25 (1980) (stating that
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impeachment of a defendant with illegally obtained evidence
is constitutionally permitted for non-collateral as well as
collateral matters, but not discussing the effect of other
evidentiary limitations).
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Id. at 627-28. Thus, the government may not "smuggle[] in"
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the impeaching opportunity with a cross-examination that has
"too tenuous a connection with any subject opened upon direct
examination." Id. at 625; see also United States v. Ruiz-
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Batista, 956 F.2d 351, 352 n.1 (1st Cir.), cert. denied, 506
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U.S. 834 (1992). Rather, the questions on cross must have
been "suggested to a reasonably competent cross-examiner" by
the defendant's direct testimony. Havens, 446 U.S. at 626.
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Whether or not the defendant's direct testimony
"reasonably suggests" inquiry on cross-examination about
events involving tainted evidence is necessarily case
specific. See, e.g., Havens, 446 U.S. at 628 (defendant's
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denial of involvement with the concealment of drugs
reasonably suggested cross-examination about specific
materials found for concealing the drugs); United States v.
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Brandon, 847 F.2d 625, 628-29 (10th Cir.) (denial of bringing
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of drugs into motel room triggered inquiry and introduction
of defendant's bag, found in room, bearing traces of
cocaine), cert. denied, 488 U.S. 973 (1988); United States v.
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Grubbs, 776 F.2d 1281, 1286-87 (5th Cir. 1985) (assertion of
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legitimacy of insurance services "opened door" to impeachment
with conversation implicating illegitimacy of business deal);
United States v. Palmer, 691 F.2d 921, 922 (9th Cir. 1982)
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(assertion that cocaine was used for legitimate dental
purposes permitted impeachment with personal-use cocaine
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paraphernalia); see also United States v. LeAmous, 754 F.2d
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795, 798 (8th Cir.) ("By painting a picture of himself, on
direct examination, as a protector of young girls who
encouraged alternatives to prostitution, the defendant
invited cross-examination concerning particular instances of
his conduct to the contrary during the relevant time frame.")
(reviewing case not involving tainted evidence), cert.
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denied, 471 U.S. 1139 (1985).
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Here, Morla-Trinidad testified on direct that he
had seen only two of the government's witnesses previously,
and, with regard to those two (Baez and Driggers), he
specifically denied any drug-related activity. He also
denied knowing his indicted codefendant, Peabody, or Bubba
Lagasse, the person with whom he was stopped during the
September 1994 arrest. Morla-Trinidad also stated on direct
that, during the period of the charged conspiracy, he spent
most of his time in Massachusetts and New York and traveled
to Maine only once to see his attorney. He maintained that
his only associate in Lewiston was a "woman friend."
Morla-Trinidad's testimony could be reasonably
construed as both a contradiction of the government
witnesses' testimony and a denial of any involvement in the
crack cocaine ring underlying the charged conspiracy. See
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Havens, 446 U.S. at 628 (reasoning that defendant's testimony
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"could easily be understood as a denial of any connection
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with [incriminating evidence] and as a contradiction of
[government witness's] testimony"). We think, and Morla-
Trinidad concedes as much, that the prosecutor reasonably
brought attention to Morla-Trinidad's direct testimony by
exploring, on cross-examination, when and how often he
traveled to Maine, with whom he met there, and for what
purposes.
Morla-Trinidad's direct testimony also clearly
implied a denial that he ever traveled to Lewiston carrying
crack cocaine for distribution. Thus, the disputed question
on cross-examination, "when you visited Lewiston, Maine, in
1994, did you ever possess crack cocaine?", was reasonably
suggested by that implied denial. His subsequent categorical
denial of the foregoing question subjected his testimony to
proper impeachment, including the probing questions on
further cross and the rebuttal testimony about the illegally
seized crack cocaine and cash. See United States v. Wood,
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982 F.2d 1, 4 (1st Cir. 1992) (explaining that the trial
judge enjoys discretion in deciding whether to admit rebuttal
evidence).
Morla-Trinidad also suggests that the impeaching
evidence was unfairly prejudicial and that the district court
abused its considerable discretion under Fed. R. Evid. 403
when admitting it. See Espeaignnette v. Gene Tierney Co., 43
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F.3d 1, 5 (1st. Cir. 1994) (noting court's "considerable
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latitude" in determining the relative weight of probative
value versus unfair effect). We disagree. The evidence was
of undoubted probative value to Morla-Trinidad's credibility
on issues material to the case. Moreover, the district court
alleviated the danger of unfair prejudice by (1) insuring
that information about the seized marijuana from the
September 1994 arrest would not be conveyed to the jury, and
(2) instructing the jury, on the government's suggestion,
that it was to use the disputed evidence only to consider
Morla-Trinidad's credibility, not as substantive proof of the
crime charged,5 see United States v. Tejada, 974 F.2d 210,
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214 (1st Cir. 1992) (finding no abuse in trial judge's Rule
403 balancing, "particularly in light of the careful limiting
instruction given by the district court").
In sum, we conclude that the district court did not
abuse its discretion in permitting the government to impeach
Morla-Trinidad's testimony with questions about the September
1994 arrest and the tainted evidence obtained therefrom.
Thus, we do not reach Morla-Trinidad's additional arguments
that the evidence was also inadmissible under Fed. R. Evid.
404(b), and that the asserted error was not harmless.
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5. In an apparent misreading of Havens, the government on
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appeal asserts that this limiting instruction was unnecessary
and suggests that the evidence could have been used for
substantive purposes. The assertion is clearly wrong. See
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Havens, 446 U.S. at 627-628; see also James v. Illinois, 493
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U.S. at 313 n.3 (approving similar instruction).
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IV.
IV.
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Conclusion
Conclusion
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For the reasons stated above, we affirm the
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judgment of the district court.
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