United States v. Sanchez ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4215
CARLOS SANCHEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-95-338-A)
Argued: April 10, 1997
Decided: June 30, 1997
Before RUSSELL and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by published opinion. Senior Judge Phillips wrote the opin-
ion, in which Judge Russell and Judge Luttig joined.
_________________________________________________________________
COUNSEL
ARGUED: Joel Barry Simberg, MOFFITT, ZWERLING & KEM-
LER, P.C., Alexandria, Virginia, for Appellant. James L. Trump,
Assistant United States Attorney, Alexandria, Virginia, for Appellee.
ON BRIEF: Helen F. Fahey, United States Attorney, Alexandria,
Virginia, for Appellee.
_________________________________________________________________
OPINION
PHILLIPS, Senior Circuit Judge:
Carlos Sanchez was convicted, following a jury trial, of conspiracy
to possess with intent to distribute cocaine and to distribute cocaine,
in violation of 21 U.S.C. § 846, and with distribution of cocaine, in
violation of 21 U.S.C. § 841. He challenges five rulings of the district
court and seeks reversal of his conviction. We find no prejudicial
error among those assigned and affirm his conviction.
I
The evidence in the light most favorable to the Government
revealed the following facts. Sanchez first met Alberto Espinosa in
1991 or 1992 at an Arlington, Virginia, restaurant where Espinosa
worked. Espinosa, Sanchez, and others often discussed their various
drug trafficking businesses at the restaurant. During this time, San-
chez and Espinosa would occasionally provide drugs for one another
when supply was short. Espinosa participated in four specific transac-
tions with Sanchez in 1992; on two of those occasions Sanchez sup-
plied Espinosa with 125 grams of cocaine, and on two occasions
Espinosa provided Sanchez with the same quantity.
Sometime in 1992, Espinosa left the country for 14 months and
when he returned he reestablished contact with Sanchez. The two
conducted more cocaine transactions in 1994, in and around Arling-
ton. Espinosa participated in four specific drug transactions with San-
chez after Espinosa's return to the United States. Two of those
transactions involved half-kilograms of cocaine.
In 1994, Sanchez introduced Espinosa to his brother-in-law,
Orlando, and told Espinosa that Orlando could provide him with
cocaine for distribution. Orlando and Espinosa conducted three multi-
kilogram deals together and Sanchez received a commission of $250
per kilogram for arranging the deals. Orlando would not sell cocaine
directly to Sanchez because Sanchez took too long to pay, so after
arranging the deals, Sanchez purchased his cocaine from Espinosa.
2
Another participant in these drug operations was Amparo Lindner,
a Colombian woman who helped Espinosa by delivering drugs and
picking up money. Lindner delivered cocaine to Sanchez from
Espinosa on three occasions from October 1994, until the end of the
year. Lindner was also a cocaine dealer on her own behalf. She had,
on three occasions, sold cocaine to Virgil Ayala. In 1995, when
Espinosa was in need of a new source of cocaine, Lindner introduced
Ayala to Espinosa. Espinosa planned to buy five kilograms of cocaine
from Ayala. However, unbeknownst to Espinosa, Ayala was an
undercover Drug Enforcement Agency (DEA) agent and he arrested
Espinosa in January 1995.
In the meantime, Sanchez himself was still dealing cocaine which
he obtained from other drug dealers. In 1995, he contacted Margaret
Everett, the wife of an acquaintance, to sell her cocaine. Sanchez had
learned from Jon Rivera that Everett was in the market for 250 grams
of cocaine. Sanchez and Everett spoke twice to arrange the drug deal
and Rivera was also involved in the planning. On January 24, 1995,
Everett and Sanchez, with Rivera as a middleman, exchanged $6000
for 189 grams of cocaine. Unbeknownst to Sanchez, Everett was in
fact an undercover DEA agent and Rivera was a confidential infor-
mant cooperating with law enforcement.
On February 25, 1995, Sanchez was arrested while using a pay
phone. At the time of his arrest, Sanchez was standing near a car in
which he had just been a passenger. A search of that car revealed a
plastic bag containing two ounces, or sixty-seven grams, of cocaine.
His trial and conviction on the charges indicated then followed, and
Sanchez now appeals.
II
Sanchez first argues that the district court improperly admitted evi-
dence of illegal acts not charged in the conspiracy, in violation of
Federal Rules of Evidence 404(b) and 403. Specifically, the govern-
ment introduced evidence that Sanchez had conducted drug deals with
Espinosa as early as 1992 and that the defendant was arrested near a
car containing 67 grams of cocaine. According to Sanchez, these
pieces of evidence did not directly prove the conspiracy charged. San-
3
chez argues that the 1992 drug sales fall outside the time frame
charged in the conspiracy. He further argues that there is no evidence
that the cocaine found in the car at the time of his arrest came from
suppliers involved in the charged conspiracy. Therefore, he argues,
both pieces of evidence should have been excluded under Rule
404(b). We hold that the district court did not abuse its discretion in
admitting the contested evidence at Sanchez's trial. See United States
v. Mark, 943 F.2d 444, 447 (4th Cir. 1991) (employing the abuse of
discretion standard of review for admissibility of"other acts" evi-
dence).
Rule 404(b) provides:
Other crimes, wrongs, or acts. 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, pro-
vided that upon request by the accused, the prosecution in
a criminal case shall provide reasonable notice in advance
of trial, or during trial if the court excuses pretrial notice on
good cause shown, of the general nature of any such evi-
dence it intends to introduce at trial.
We have long treated 404(b) as an inclusionary rule, permitting intro-
duction of all evidence except that which proves only criminal dispo-
sition. See Mark, 943 F.2d at 447. We have also made clear that
404(b)'s specific list of acceptable grounds for admission of evidence
is not exhaustive. See United States v. Rawle , 845 F.2d 1244, 1247
(4th Cir. 1988). Rather, evidence is admissible under 404(b) if it is
"(1) relevant to an issue other than character, (2) necessary, and (3)
reliable." Id.; see also Mark, 943 F.2d at 447.
In this case, given our very inclusive interpretation of Rule 404(b),
the contested pieces of evidence easily satisfy the test for admissibil-
ity on several grounds. Sanchez's prior dealings with Espinosa prove
his knowledge of the drug trade and suggest that he was an inten-
tional, rather than unwitting, participant in the conspiracy. The early
drug deals also establish the mechanics of the indicted conspiracy and
4
show the relationships between the parties. Similarly, the cocaine
found near Sanchez at the time of his arrest is relevant to his knowl-
edge of the drug trade and the mechanics of his distribution scheme.
As the government points out, the cocaine found was a package and
quantity similar to that sold in the indicted conspiracy, and the arrest
and cocaine seizure happened within the time-frame charged in the
conspiracy. The arrest also occurred within the geographic area of the
conspiracy. The presence of the cocaine helped prove that Sanchez
was involved in a distribution network when he was arrested.1
Further, all the evidence at issue is admissible to prove Sanchez's
criminal intent. A not-guilty plea puts one's intent at issue and
thereby makes relevant evidence of similar prior crimes when that
evidence proves criminal intent. See Mark, 943 F.2d at 448; United
States v. Brewer, 1 F.3d 1430, 1434 (4th Cir. 1993). Moreover,
although Sanchez never formally sought to use an entrapment
defense, he repeatedly suggested that he had been set up by the infor-
mant. During argument and examination of witnesses, Sanchez hinted
to the jury that he had been a reluctant participant in the deal with
Everett and that he "was not a drug dealer." The evidence of the prior
and subsequent drug transactions, therefore, supported the govern-
ment's position that Sanchez was intentionally engaged in the illegal
drug activity charged. Sanchez's suggestion that he had been set up
made the government's evidence of other deals relevant, indeed nec-
essary, to its case.
Although we conclude that the contested evidence is admissible
under Rule 404(b), we must still assess it under Rule 403, which
excludes evidence the probative value of which is substantially out-
_________________________________________________________________
1 Sanchez argues that the cocaine seized during his arrest is not relevant
because the government cannot show that the drugs came from, or were
going to be sold to, another member of the conspiracy. We do not agree.
First, we note that the cocaine was in so many ways similar to the
cocaine the conspirators sold that a jury could reasonably infer it came
from the same network of drug dealing. Second, the indictment charges
that Sanchez conspired with persons "known and unknown" to the grand
jury. We do not agree that, simply because no evidence was presented
about the source of and planned buyer for the January 24 drugs, those
drugs cannot have been part of the charged conspiracy.
5
weighed by its prejudicial effect.2 In this case, the prior cocaine deals
and the cocaine seized at the time of arrest are both clearly probative.
While the evidence is undeniably "prejudicial" in the way that all
inculpatory evidence is, it is no more so than the tape recordings of
drug deals and other strong evidence introduced against Sanchez at
trial. The strong probative value of the contested evidence is simply
not "substantially outweighed." Therefore, we conclude that the dis-
trict court did not abuse its discretion by admitting the evidence at
issue.
III
Sanchez argues that the district court impermissibly limited his
cross-examination of Agents Everett and Ayala regarding Jon Rivera,
a confidential informant in this case. The jury heard testimony that
Rivera arranged Sanchez's January 24 deal with Agent Everett and
that he was paid for his cooperation. Sanchez was allowed some
cross-examination of the agents regarding Rivera's involvement, but
limitations were placed upon that line of questioning. Sanchez argues
that he was improperly prohibited from asking two specific questions
regarding Rivera. He sought to ask the agents whether Rivera had vio-
lated his cooperation agreement with the government by conducting
a personal, non-investigative drug deal while he was a paid informant.
He also sought to ask how much Rivera had been paid for his partici-
pation in the January 24 deal. The court did not allow either of these
lines of questioning because neither was relevant to any issue in the
case. We review limitations placed upon cross-examination by the
district court for abuse of discretion. See United States v. McMillon,
14 F.3d 948, 955-56 (4th Cir. 1994).
For several reasons, Sanchez's arguments regarding the limitations
placed on his right to cross-examine the agents about Rivera are with-
out merit. It is important to note at the outset that Rivera did not tes-
_________________________________________________________________
2 Rule 403 provides:
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair preju-
dice, confusion of the issues, or misleading the jury, or by con-
siderations of undue delay, waste of time, or needless
presentation of cumulative evidence.
6
tify against Sanchez; the government did not call Rivera as a witness
and, although Rivera was under subpoena and in the courthouse
throughout the trial, Sanchez also did not call him to testify. There-
fore, Rivera's general dishonesty and credibility, to which details of
his cooperation might be relevant, were not at issue in this case.
The evidence sought by Sanchez was also not relevant to any other
issue properly before the jury. Sanchez argues that he wanted to intro-
duce the evidence of Rivera's broken agreement with the government
to show that the government did not have firm control over Rivera;
Sanchez would then argue that Rivera improperly set him up to do the
January 24 deal with Everett. This contention is not persuasive. Rive-
ra's involvement in no way undermines the government's proof of the
cocaine conspiracy and the January 24 drug transaction. Sanchez's
account of being set up by Rivera is only legally relevant in the con-
text of a formal entrapment defense. However, Sanchez, on several
different occasions, made clear to the court and the government that
he was not raising an entrapment defense. The district court did not,
therefore, abuse its discretion by prohibiting the defense from intro-
ducing an entrapment theory "through the back door" by raising ques-
tions about Rivera.
Similarly, we can think of no way in which the amount of money
paid to Rivera was relevant to an issue at trial. Sanchez, in neither his
brief nor oral argument, has offered any suggestion about the rele-
vance of that evidence to his defense. We are therefore satisfied that
the district court did not abuse its discretion in limiting Sanchez's
questions regarding Rivera's cooperation with the government.
IV
Sanchez asserts that he should have been allowed to cross-examine
Amparo Lindner, a cooperating co-conspirator, about a polygraph test
she had failed in the course of her cooperation and that he should
have been allowed to mention the failed test in his arguments to the
jury. The district court did not allow Sanchez to explore the polygraph
test at all on the grounds that it was not relevant to Sanchez's case
and that polygraph evidence is inadmissible in this circuit. The court
ruled correctly.
7
The rule of this circuit is that polygraph evidence is never admissi-
ble to impeach the credibility of a witness. See United States v.
Chambers, 985 F.2d 1263, 1270 (4th Cir. 1993); United States v. A
& S Council Oil Co., 947 F.2d 1128, 1133 (4th Cir. 1991). This is so
whether the government or the defendant is seeking to introduce the
evidence. See A & S Council, 947 F.2d at 1134 (refusing to create an
exception to the general prohibition against polygraph evidence for
cases in which such evidence is exculpatory).
Sanchez correctly points out, and we have expressly noted, see A
& S Council, 947 F.2d at 1134 & n.4, that some other circuits have
begun to retreat from comparable rules of absolute exclusion. The
rule remains, however, in this circuit, and is binding upon us in this
case, as the district court rightly found it binding upon that court.3 We
observe that in any event we would find any error in excluding this
evidence harmless as having no significant relevance to any material
issue going to Sanchez's guilt.
V
Sanchez next argues that the government improperly vouched for
the credibility of its witnesses in its closing arguments. There having
been no objection to the alleged vouching at trial, we review only for
plain error. See United States v. Adam, 70 F.3d 776, 780 (4th Cir.
1995) (reviewing closing arguments for plain error when defense
failed to object at trial); see generally United States v. Olano, 507
U.S. 725 (1992) (addressing conduct of plain error review under Fed.
R. Crim. P. 52(b)).
Reviewing for plain error under Olano's directive, we find none.
At trial, Sanchez sought to impeach Alberto Espinosa, a cooperat-
ing co-conspirator, with statements Espinosa had made to DEA agents
following his arrest and guilty plea. Sanchez's counsel repeatedly
_________________________________________________________________
3 In United States v. Toth, No. 95-5191, 91 F.3d 136 (4th Cir. July 31,
1996) (unpub'd), we recently suggested that it is possible to change our
prohibition against polygraph evidence without approval of the en banc
court in light of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579
(1993). However, we declined to reach the issue in that case.
8
showed Espinosa copies of DEA reports of the interviews in an effort
to refresh his recollection, but did not introduce those reports into evi-
dence. During this cross-examination, Sanchez made misleading ref-
erences about the content of those reports and was corrected by the
court for those references. After Sanchez's questioning of Espinosa,
the government moved the DEA reports at issue into evidence, with
no objection from Sanchez.
During closing arguments, Sanchez told the jury at least twice that
Espinosa was a liar and that the government knew he lied and ignored
it. In support of these assertions, Sanchez asked the jury to look at the
inconsistencies in the DEA reports that were now in evidence. In its
closing rebuttal, the government also invited the jury to look at the
DEA reports to which the defense had referred. The government then
said, "[t]he United States moved them into evidence because there is
nothing to hide in these reports." The government went on to admit
that there were inconsistencies in Espinosa's stories but said that
those small errors were natural given the detail Espinosa was being
asked to recall. It is the statement that the reports contain nothing to
hide which Sanchez challenges as improper vouching.
It is impermissible for a prosecutor to vouch for or bolster the testi-
mony of government witnesses in arguments to the jury. United States
v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993). Vouching occurs when
a prosecutor indicates a personal belief in the credibility or honesty
of a witness; bolstering is an implication by the government that the
testimony of a witness is corroborated by evidence known to the gov-
ernment but not known to the jury. See id. While vouching and bol-
stering are always inappropriate, "[i]mproper remarks during closing
argument do not always mandate retrial. The relevant question is
whether the prosecutors' comments so infected the trial with unfair-
ness as to make the resulting conviction a denial of due process."
United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993) (internal
quotation marks and citations omitted).
In addressing a claim of improper vouching we must first decide
whether the comments made in fact constituted vouching or bolster-
ing. If so, we must next determine whether the comments prejudi-
cially affected the defendant by considering (1) the degree to which
the comments could have misled the jury; (2) whether the comments
9
were isolated or extensive; (3) the strength of proof of guilt absent the
inappropriate comments; and (4) whether the comments were deliber-
ately made to divert the jury's attention. See Mitchell, 1 F.3d at 241;
Adam, 70 F.3d at 780.
We hold that the single challenged comment about the DEA inves-
tigative reports did not constitute any sort of error, plain or otherwise.
First, the comment could not properly be considered"vouching." In
making it, the prosecutor did not suggest any personal belief about the
credibility of any witness or even the credibility of its evidence.
Rather the prosecutor simply said that it introduced the DEA reports,
after several misstatements of their contents by Sanchez, because the
reports "had nothing to hide." See, e.g. , Lewis, 10 F.3d 1086 (finding
a government statement about investigative procedures during closing
argument did not constitute improper vouching). The government
acknowledged that the reports contained discrepancies and invited the
jury to make up its own mind about the reports and Espinosa's credi-
bility. Sanchez points us to no case in which similar comments have
been deemed improper vouching.
Even were we to accept that this single comment did constitute a
form of forbidden "vouching," it could not have unfairly prejudiced
Sanchez, much less seriously affected the "fairness, integrity or public
reputation of judicial proceedings" so as to constitute plain error
under Rule 52(b)'s stringent standard. See Olano, 507 U.S. at 736.
The comment expressly invited jurors to make their own assessment
after closely reviewing the very piece of evidence at issue. It was a
single comment in an otherwise unobjectionable argument by the
government. The proof of Sanchez's guilt was quite strong and the
comment being contested was, at best, peripheral to the credibility of
one single source of incriminating evidence. We are satisfied that it
could not unfairly have affected the jury's decision in any way given
the other persuasive evidence against Sanchez.
VI
Sanchez finally challenges the instructions given to the jury regard-
ing the presumption of innocence. He argues that by including in
those instructions a statement that a defendant begins a criminal trial
with a "clean slate," the court unfairly minimized the depth and
10
importance of the presumption of innocence. We find no merit in that
contention.
The instruction in whole, as largely derived from§ 12.10 of Devit's
Federal Jury Practice and Instructions, was:
Now, as you know, this is a criminal case. There are three
basic rules about a criminal case that you must keep in
mind. First, the defendant is presumed innocent until proven
guilty. The indictment against the defendant brought by the
government is only an accusation, nothing more. It is not
proof of guilt or anything else. The defendant, therefore,
starts out with a clean slate.
Second, the burden of proof is on the government until
the very end of the case. The defendant has no burden to
prove his innocence or to present any evidence or to testify.
...
Third, the government must prove the defendant's guilt
beyond a reasonable doubt. And I will give you further
instructions on this point later. But bear in mind, in this
respect, that a criminal case is different from a civil case.
J. A. at 81.
We can find no error in these instructions. Sanchez points to no
decision finding error in comparable "clean slate" references. Indeed,
instructions incorporating such a reference have been expressly
upheld by several other circuits. See United States v. Littlefield, 840
F.2d 143, 146 (1st Cir. 1988); United States v. Walker, 861 F.2d 810,
813 nn. 7 & 8 (5th Cir. 1988); United States v. Hollister, 746 F.2d
420, 424 (8th Cir. 1984); United States v. Cummings, 468 F.2d 274,
280 (9th Cir. 1972). We agree with those circuits that the reference
in the context made could not constitute reversible error.
AFFIRMED
11