United States v. Aguilar Aronceta ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2346
UNITED STATES,
Appellee,
v.
ESPERANZA AGUILAR-ARANCETA,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. P rez-Gim nez, U.S. District Judge]
Before
Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Rachel Brill, by Appointment of the Court, for appellant.
Esther Castro-Schmidt, Assistant United States Attorney,
with whom Guillermo Gil, United States Attorney, and Jos A.
Quiles-Espinosa, Senior Litigation Counsel, were on brief for
appellee.
July 13, 1995
TORRUELLA, Chief Judge. Esperanza Aguilar-Aranceta
TORRUELLA, Chief Judge.
("Aguilar-Aranceta") was convicted for possession of cocaine with
intent to distribute, in violation of 21 U.S.C. 841(a)(1). She
now appeals. For the following reasons, we reverse.
I. STATEMENT OF FACTS
I. STATEMENT OF FACTS
On September 22, 1990, Aguilar-Aranceta went to pick up
two parcels at the United States Post Office in Old San Juan,
Puerto Rico. Two yellow slips had been left in her mail box
prior to that date notifying her that there were two registered
parcels addressed to her at the post office.1 Addressing
Aguilar-Aranceta in English, the window clerk at the post office
counter asked for identification to verify the signature on the
two slips. Aguilar-Aranceta responded by immediately retrieving
a Puerto Rican driver's license from her purse. After verifying
the signatures, the window clerk brought her two packages with
return addresses from Medell n, Colombia. Both packages were
addressed to Esperanza Aguilar, P.O. Box 5739. Box 5739 was
rented to Aguilar-Aranceta. Aguilar-Aranceta pointed at the
return addresses on the packages and stated "no me (sic) family,"
to which the attendant replied that it was up to her if she
wanted to take them or not. The window clerk left the packages
on the counter and once again the defendant said "no me (sic)
family," and once again the clerk replied that it was up to her
if she wanted to take them or not. Defendant then proceeded to
1 These yellow slips were the second set of slips placed in
defendant's mail box. The first set of slips were recovered from
defendant's purse after her arrest.
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take the two packages. Immediately upon exiting the lobby of the
Post Office defendant was detained and placed under arrest. The
two packages she was carrying had been intercepted by a mail
specialist earlier and found to contain approximately 224 grams
of cocaine. Aguilar-Aranceta never opened the packages.
On September 26, 1990, a federal grand jury in San
Juan, Puerto Rico, returned a two count indictment against
defendant, charging her with unlawful possession of approximately
224 grams of cocaine with the intent to distribute, in violation
of 21 U.S.C. 841(a)(1) (count one); and with importation of the
same cocaine to the United States from Medell n, Colombia, in
violation of 21 U.S.C. 952(a) (count two). Aguilar-Aranceta
entered pleas of not guilty as to both counts. The jury returned
a verdict of not guilty as to the importation count, but was
unable to reach a unanimous verdict as to the count alleging
possession with intent to distribute. The district court
declared a mistrial as to count one and subsequently granted the
government's request for a new trial.2
After a second jury trial in June 1993, Aguilar-
Aranceta was convicted for possession of cocaine with the intent
to distribute. Aguilar-Aranceta now appeals.
2 On March 18, 1991, defendant filed a motion to dismiss count
one on the grounds that a second prosecution would constitute a
violation of her fifth amendment right not to be twice put in
jeopardy for the same conduct. The district court denied this
motion, a ruling we affirmed on appeal. See United States v.
Aguilar-Aranceta, 957 F.2d 18 (1st Cir.), cert. denied, 113 S.
Ct. 105 (1992).
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II. DISCUSSION
II. DISCUSSION
To convict Aguilar-Aranceta under 21 U.S.C.
841(a)(1), the government was required to show beyond a
reasonable doubt that she knowingly possessed a controlled
substance with the intent to distribute.3 United States v.
Bergodere, 40 F.3d 512, 518 (1st Cir. 1994), cert. denied, 115 S.
Ct. 1439 (1995). The government presented evidence concerning
Aguilar-Aranceta's prior conviction for possession of cocaine.
The district court admitted this evidence as relevant to the
issue of whether Aguilar-Aranceta was in knowing possession of
cocaine when she was arrested at the Old San Juan Post Office in
1990. Aguilar-Aranceta contends that all evidence pertaining to
her prior conviction serves no other purpose than to demonstrate
a propensity for criminal activity and should therefore have been
excluded under Federal Rule of Evidence 404(b).
A. Admissibility of Prior Bad Acts
A. Admissibility of Prior Bad Acts
This circuit is no stranger to the problems surrounding
the admissibility of extrinsic act evidence under Rule 404(b).4
3 21 U.S.C. 841(a)(1) provides, in pertinent part:
[I]t shall be unlawful for any person
knowingly or intentionally . . . [to]
possess with intent to manufacture,
distribute, or dispense, a controlled
substance.
4 Federal Rule of Evidence 404(b) provides, in relevant part:
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
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See, e.g., United States v. Guyon, 27 F.3d 723, 728-29 (1st Cir.
1994); United States v. Fields, 871 F.2d 188, 195-99 (1st Cir.
1989); United States v. Mateos S nchez, 864 F.2d 232, 234-38 (1st
Cir. 1988); United States v. Oppon, 863 F.2d 141, 144-48 (1st
Cir. 1988). We have adopted a two-part test to determine the
admissibility of such evidence. Oppon, 863 F.2d at 146. First,
the trial judge must determine whether the evidence in question
is offered for any purpose other than solely to prove that the
defendant had a propensity to commit the crime in question.
United States v. Garc a, 983 F.2d 1160, 1172 (1st Cir. 1992);
United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982). That
is, the judge must determine whether the evidence has some
"special" probative value. United States v. Arias-Montoya, 967
F.2d 708, 709 (1st Cir. 1992). Prior bad acts may be "specially
relevant" if they are probative of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident. See, e.g., Guyon, 27 F.3d at 728; Garc a, 983 F.2d at
1172.
If the judge is satisfied that the proffered evidence
has "special relevance," the focus shifts to the second part of
the test, which applies Rule 403 to determine whether the
probative value of the evidence is "substantially outweighed by
proof of motive, opportunity, intent,
preparation, plan, knowledge, identity,
or absence of mistake or accident . . . .
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the danger of unfair prejudice."5 Fed. R. Evid. 403; Guyon, 27
F.3d at 728-29; Garc a, 983 F.2d at 1172. On appeal, we review
the Rule 404(b) determination for abuse of discretion. Guyon, 27
F.3d at 728-29; United States v. Cassiere, 4 F.3d 1006, 1022 (1st
Cir. 1993); see also Garc a, 983 F.2d at 1172.
B. Special relevance under Rule 404(b)
B. Special relevance under Rule 404(b)
Applying these principles to the facts at hand, we
first must determine whether the district court abused its
discretion in finding that Aguilar-Aranceta's 1986 conviction for
misdemeanor possession of cocaine was specially relevant to the
issue of knowledge in the present case. Although the law
regarding prior bad acts as evidence of knowledge is well
settled, it is complex and merits some discussion.
In prosecutions for "possession" offenses,6 the
central issue is often whether the defendant was in knowing
possession. The knowledge element is difficult to prove, and
defendants commonly claim that they were merely innocent
bystanders or unwitting participants. Where the evidence is
5 Fed. R. Evid. 403 states:
Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of
time, or needless presentation of
cumulative evidence.
6 Possession offenses include, inter alia, possession of
narcotics, possession of stolen merchandise, and possession of
firearms.
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susceptible to the explanation that the acts alleged to
constitute the crime were innocently performed and the crucial
issues of intent and knowledge are keenly disputed, we have held
that it is within the judge's discretion to permit the government
to introduce evidence of prior similar offenses to demonstrate
the unlikeliness that the defendant was merely an innocent and
unknowing bystander. For example, in United States v. Spinosa,
982 F.2d 620 (1st Cir. 1992), we held that evidence concerning
the defendant's history of cocaine possession and dealing was
probative of his knowledge and intent to participate in cocaine
transaction charged because it directly contradicted his defense
that he was involved only by accident or mistake.
The justification often advanced for admitting evidence
of other crimes to prove knowledge is that no inference as to the
defendant's character is required. See United States v. Ferrer-
Cruz, 899 F.2d 135, 138 (1st Cir. 1990); see also 22 Charles A.
Wright & Kenneth A. Graham, Jr., Federal Practice and Procedure,
5245 (1978). Rather, the probative value emanates from the law
of probabilities. We consider the following example illustrative
of the permissible inferential chain:
The fact that an illegal alien was
previously found stowed away under the
hood of defendant's car does not prove
that a second alien found there did not
creep in undetected while the car was
parked. However, it does seem unlikely
that the same person could be twice
victimized in this fashion, particularly
when a reasonable person who had
previously gotten into trouble in this
way would probably take care to see that
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he had only an engine under the hood
before heading for the border.
22 Wright & Graham, supra, 5245. Along these lines, we also
have explained that jurors might permissibly hypothecate that the
defendant's repetitive involvement in criminal conduct is
unlikely to have left her oblivious to the true character of the
acts in question. See, e.g., Ferrer-Cruz, 899 F.2d at 138(noting that "[s]ince one who has previous experience with drugs
is more likely to see 'car switching' as part of drug sale
technique than one who has no such experience, . . . the
inferences at issue do not involve character"); United States v.
Simon, 842 F.2d 552 (1st Cir. 1988); United States v. Estabrook,
774 F.2d 284, 288 (8th Cir. 1985).
"There is, however, a danger that the supposed
inferences to knowledge will be obscured by the forbidden
inference to propensity, particularly in cases in which the
theory of knowledge is the probability that the defendant would
have obtained knowledge in the course of repetitive involvement
in criminal conduct." Wright & Graham, supra, 5245. It is,
therefore, important to explain what inferences are
impermissible. It is impermissible to suggest that a defendant's
prior conviction for possession of cocaine somehow makes her more
likely to have acted in a similar manner in the context of the
present possession charges. Similarly, a prosecutor may not
argue that the defendant's prior conviction for a drug offense
demonstrates her propensity for involvement in drug trafficking.
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Moving to the present case, we note that the
circumstances surrounding Aguilar-Aranceta's 1986 conviction are
similar to those of the present charges in several significant
aspects. We have held that similarity between the prior act and
the current charges is often the predominant factor or touchstone
in the test for special relevance as to defendant's knowledge.
See United States v. Arias-Montoya, 967 F.2d at 712-13(summarizing circumstances which would constitute "special
relevance," including that prior bad acts (1) closely mirrored
the newly charged crime, (2) were part of a common scheme or a
course of continuous dealing, or (3) provided the context for the
newly charged crime); see also United States v. Hadfield, 918
F.2d 987, 994 (1st Cir. 1990) (upholding admission of evidence
concerning prior drug involvement in a drug trafficking case
because the past actions were "proximate in time and closely
allied with the type of crimes for which appellants were being
tried"), cert. denied, 500 U.S. 936 (1991). Here, both cases
involved packages containing cocaine that had been shipped to
Aguilar-Aranceta's post office box at the Old San Juan Post
Office. In both instances, the packages were addressed to
Aguilar-Aranceta with return addresses indicating that they had
been sent from Medell n, Colombia. The cases differ with regard
to the circumstances of arrest. In 1986, the authorities
followed Aguilar-Aranceta from the Old San Juan Post Office and
arrested her at her home. In the present case, Aguilar-Aranceta
was arrested before she left the Post Office Building. In both
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cases Aguilar-Aranceta had not opened the packages at the time of
her arrest. In the 1986 case, the unopened packages had been in
her possession for several hours.
With regard to whether the prior conviction clears the
special relevance hurdle, it is a close call. We are
particularly concerned with the four-year period between her
prior conviction and the facts leading to the present charges as
well as the fact that the packages were unopened in both
instances. Nevertheless, we do not find that the district court
abused its discretion in concluding that the 1986 conviction is
so similar that it is relevant to the issue of knowledge in the
present case. A jury could have permissibly made the following
inferential analysis: many people in the general population have
little or no knowledge of how narcotics traffickers use the mail
system to ply their trade, and for this reason might unwittingly
accept two packages sent to them from an unfamiliar address in
Medell n, Colombia. Aguilar-Aranceta's prior conviction for
possession of cocaine that had been mailed to her from Medell n,
Colombia suggests that she cannot plausibly make this claim. See
United States v. Nickens, 955 F.2d 112, 124-25 (1st Cir.)
(holding that where defendant claimed to have been an innocent
dupe with regard to cocaine found in his luggage, his prior
narcotics conviction was relevant to issue of knowledge because a
jury might permissibly infer that someone who has experience
selling cocaine is more likely to know how drug smugglers
operate), cert. denied, 113 S. Ct. 108 (1992). Of course, her
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prior conviction does not conclusively prove that Aguilar-
Aranceta knew that the packages contained contraband.
Nevertheless, we think that the jury permissibly could have
inferred that someone with a previous mail-related narcotics
conviction would be reluctant to again accept mysterious packages
from Colombia, and that Aguilar-Aranceta's failure to reject the
packages given her prior experiences bears on the crucial issue
of knowledge. We think that these inferences might be even more
plausible given that Aguilar-Aranceta claims to have been an
unwitting pawn in the events that led to her guilty plea in
1986.7 Accordingly, we find that the district court did not
abuse its discretion in finding that Aguilar-Aranceta's prior
conviction was specially relevant to the issue of knowledge.
C. Rule 403 balancing
C. Rule 403 balancing
We now consider whether the district court should
nevertheless have excluded the evidence under Rule 403. The
tenets of Rule 403 balancing are familiar and often quoted: "If
the evidence brings unwanted baggage, say, unfair prejudice or a
7 Aguilar-Aranceta testified regarding the events surrounding
her 1986 conviction. She testified that Jos Perales
("Perales"), a man she had met while studying, asked to borrow
her post office box so he could receive some greeting cards from
Colombia. She testified that when the authorities arrived at her
home, she gave them the packages, which were unopened, and told
them about Perales. The authorities waited for a few hours to
see if Perales would arrive, and when he did not, they arrested
her.
She testified that she subsequently pled guilty to possession
of cocaine even though the packages were not hers because she was
in an advanced state of pregnancy and wanted to avoid jail time.
She was sentenced to two years probation.
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cognizable risk of confusing the jury, and if the baggage's
weight substantially overbalances any probative value, then the
evidence must be excluded." United States v. Rodr guez-Estrada,
877 F.2d 153, 155 (1st Cir. 1989). We note, however, that, "[b]y
design, all evidence is meant to be prejudicial; it is only
unfair prejudice which must be avoided." Id. at 156. Moreover,
"[t]he phrasing of Rule 403 makes it clear that the discretion to
exclude does not arise where the balance between the probative
worth and the countervailing factors is debatable; there must be
a significant tipping of the scales against the evidentiary worth
of the proffered evidence." Wright & Graham, supra, 5221 at
309-10. Accordingly, we review only for abuse of discretion.
United States v. Desmarais, 938 F.2d 347, 351 (1st Cir. 1991).
Aguilar-Aranceta argues that the legitimate probative
value of her prior conviction, if any, is completely overshadowed
by the danger of unfair prejudice. We agree. The prior
conviction is probative on the issue of knowledge only in an
attenuated manner, dependent on the following "once burned, twice
shy" chain of inferences: (1) someone who has a previous
conviction stemming from the receipt of cocaine-laden packages
would likely be reluctant to innocently and unwittingly accept
mysterious packages from Colombia; and (2) the fact that Aguilar-
Aranceta did in fact accept the packages despite her prior
conviction suggests that she knew their contents. While in some
circumstances this inferential chain might be strongly probative,
the circumstances here render it of limited value. First, we
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note the remoteness in time of her prior conviction. Common
sense dictates that the time span between the events bears
directly on the probative weight of the prior conviction vis-a-
vis the government's "once burned, twice shy" argument. Cf.
United States v. Lynn, 856 F.2d 430 (1st Cir. 1988) (noting that
six year period between the prior conviction and the instant
offense significantly diminishes the probative value of the prior
conviction). Second, we note that Aguilar-Aranceta apparently
spoke little or no English. She testified that she was expecting
a letter from her sister and became confused when the window
clerk produced packages with unfamiliar return addresses. She
testified further that she eventually accepted the packages
because the window clerk kept insisting that the packages were
hers even though she repeatedly tried to explain that the
packages were not from her family. Third, we note that the
window clerk was aware that Aguilar-Aranceta would be arrested if
she took the packages, which suggests that he might have been
especially zealous in encouraging her to take the packages. We
think these circumstances limit the probative value of the prior
conviction evidence.
Against the marginal relevance of the prior conviction
evidence, we weigh the danger that it unfairly prejudiced the
jury. Here, we cannot escape the conclusion that the most
powerful inference that the jury was likely to make from the
prior conviction is also the forbidden one: that because she was
previously convicted under nearly identical circumstances, she
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must be guilty here. The specter of impermissible character
evidence is likely to have significantly overshadowed any
legitimate probative value. We find this especially likely given
that there was virtually no other evidence suggesting that
Aguilar-Aranceta was in knowing possession of cocaine. Leaving
aside her previous conviction, the evidence pertaining to the
defendant's state of mind was equivocal. The government points
out that although Aguilar-Aranceta was poor and was able to
receive mail at her home, she kept a post office box at the Old
San Juan Post Office. Nevertheless, Aguilar-Aranceta was
apparently in no hurry to get the packages. In fact, nine days
passed between the time the first set of claim slips were placed
in Aguilar-Aranceta's box and the time that Aguilar-Aranceta went
to pick up the packages. Similarly, her behavior at the counter
was of uncertain significance. The window clerk could only state
that since she did not expressly refuse the packages, he
continued to leave them on the counter. The government's
argument that Aguilar-Aranceta's demonstrated reluctance was
merely a smokescreen to conceal her knowledge of the contents of
the packages is dubious, especially in light of the fact that the
window clerk could have taken back the packages at any time.
Perhaps because the government's evidence was weak with respect
to the current charges (particularly so because it arrested
Aguilar-Aranceta before she had a chance to open the packages),
it focused the jury's attention on her prior conviction. In any
case, we think that the amount of evidence introduced with
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respect to her prior conviction dramatically increased the
likelihood that the jury convicted Aguilar-Aranceta on the basis
of the 1986 conviction alone rather than on a fair assessment of
the evidence.
The gravity of the unfair prejudice is even more
apparent when one considers that the prior conviction was not
merely one part of the government's attempt to establish Aguilar-
Aranceta's state of mind. It was the entire case. The offense
of possession with intent to distribute cannot be "established by
proof merely that a package containing drugs was mailed from
outside this country and was received and opened by the addressee
of the package inside this country. The threat this would pose
to innocent victims of mere mistake or actual set-ups is
obvious." United States v. Samad, 754 F.2d 1091, 1096 (4th Cir.
1985). This logic applies with equal or greater force to someone
with a previous conviction for narcotics trafficking. In
essence, admitting Aguilar-Aranceta's prior conviction allowed
the jury to convict her upon facts that would likely have been
insufficient to convict a similarly situated defendant without a
prior conviction. In sum, we think that evidence of Aguilar-
Aranceta's prior conviction should have been excluded because its
marginal probative value, coupled with the scarcity and equivocal
nature of the other evidence relating to the Aguilar-Aranceta's
state of mind, created an unacceptable risk that the jury would
assume that Aguilar-Aranceta had a propensity for narcotics
trafficking and convict on that basis alone.
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D. Harmless error
D. Harmless error
A non-constitutional evidentiary error under Rule
404(b) will be treated as harmless only if it is "highly
probable" that the error did not contribute to the verdict.
Arias-Montoya, 967 F.2d at 714 (citing United States v. Garc a-
Rosa, 876 F.2d 209, 222 (1st Cir. 1989)). Given the scarcity of
other evidence pertaining to Aguilar-Aranceta's state of mind, we
think it is highly probable that the evidentiary error did affect
the verdict. Accordingly, we find that the district court's
error was not harmless.8
Reversed.
8 Because we reverse on the 404(b) error, we decline to reach
the other issues raised by Aguilar-Aranceta.
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