US v. Garcia
Case Date: 02/04/1993
Court: United States Court of Appeals
Docket No: 92-1427
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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, |