Appeal from a judgment of the District Court for the Eastern District of New York (Thomas C. Platt, Jr., Judge), after a jury trial, convicting appellants of narcotics offenses in violation of 21 U.S.C. §§ 841(a)(1), 846. Reversed and remanded for new trial.
Before Moore, Oakes, and Newman, Circuit Judges.
This criminal appeal concerns primarily the admissibility of prior crime evidence in a multi-defendant trial. Jose Figueroa, Angel Lebron, and Ralph Acosta were convicted after a two-day trial in the United States District Court for the Eastern District of New York (Thomas C. Platt, Jr., Judge) upon jury verdicts finding them guilty of conspiracy to possess and distribute heroin in violation of 21 U.S.C. § 846 (1976) and the substantive offense of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1976).
The Government's evidence disclosed the following. On October 5, 1978, an informant of the Drug Enforcement Administration (DEA) placed two telephone calls from a DEA office to Figueroa. In these calls the informant arranged for the purchase of eight ounces of heroin. The conversations, conducted in Spanish, were tape recorded by a DEA agent with the informant's consent, and translated transcripts were introduced into evidence only against Figueroa.
Later that day, DEA agent Victor Aponte accompanied the informant to a meeting with Figueroa. Figueroa discussed the proposed transaction with Aponte, counted the $8,500 that Aponte displayed, and agreed to take Aponte to the place where the heroin was kept. After the group was joined by Lebron and Acosta, Aponte was told that they were going to "La Teresa," a social club managed by Lebron. Aponte drove to the club while the others proceeded on foot. Upon entering the club, which was located on the second floor of a building, Acosta looked out the window and told Lebron that everything was clear. Lebron then went into the club's bar area and emerged with a brown paper bag, which Lebron, accompanied by Aponte and the informant, took into an office. There, Lebron emptied eight cellophane packets from the paper bag onto a desk. Aponte opened one of the packets and noted a brown powdery substance with a vinegar-like odor, which he concluded was brown rock heroin.
Aponte told Lebron he wished to conclude the deal outside the club. He left to get the $8,500 from his car, instructing Lebron to have Acosta meet him with the heroin outside the building entrance. Returning from his car, Aponte saw Acosta outside the building, next to the informant. The informant had taken off his coat, a pre-arranged signal that the person next to him was carrying heroin. Aponte testified he could see a portion of the brown paper bag sticking out of Acosta's jeans pocket and could see the outline of some of the cellophane packets inside the bag, which was inside the pocket. Aponte asked Acosta if they were going ahead with the deal and was told no. When Acosta began to walk away, Aponte went to his car to pursue him. Finding Acosta on a nearby street, Aponte got out of his car and identified himself as a police officer. According to Aponte, Acosta then reached into the pocket that contained the brown paper bag. As Aponte grabbed Acosta and wrestled him to the ground, Acosta pulled the bag out of his pocket and threw it into a crowd of passers-by who had gathered to watch the arrest. The bag and its contents were never found.
For virtually all the critical events the conversations concerning heroin, Lebron's display of the heroin, and Acosta's throwing the paper bag on the street, the only witness was Aponte. Only the fact of the two telephone calls and the identification of the voices of the informant and Figueroa on the tape recordings were testified to by another DEA agent. The informant was identified by name, and his last known address disclosed, but he was not located by either side and did not testify. The defendants called no witnesses.
The principal claim of all three appellants concerns the introduction into evidence of a 1968 conviction of Acosta for selling heroin. Since that claim presents different issues with respect to Acosta and his co-defendants, separate consideration is required.
In a series of recent cases, this Court has endeavored to clarify the standards that apply and the procedure to be followed when the Government offers evidence of a defendant's similar crimes or acts. To be admissible the evidence must be relevant to some disputed issue in the trial, Fed.R.Evid. 404(b), and its probative value must not be substantially outweighed by the risk of unfair prejudice. Fed.R.Evid. 403; United States v. Mohel, 604 F.2d 748 (2d Cir. 1979); United States v. Lyles, 593 F.2d 182 (2d Cir. 1979); United States v. Manafzadeh, 592 F.2d 81 (2d Cir. 1979); United States v. O'Connor, 580 F.2d 38 (2d Cir. 1978); United States v. DeVaugn, 579 F.2d 225 (2d Cir. 1978); United States v. Benedetto, 571 F.2d 1246 (2d Cir. 1978). The procedure for determining admissibility depends on the grounds on which the Government offers the evidence. If the evidence is offered to prove that the defendant committed the act charged in the indictment, for example, by proving identity or common scheme, the evidence may be offered during the prosecution's case-in-chief, unless the defendant's commission of the act is not a disputed issue. On the other hand, if the evidence is offered to prove the defendant's knowledge or intent, the offer of similar acts evidence should await the conclusion of the defendant's case and should be aimed at a specifically identified issue. This enables the trial judge to determine whether the issue sought to be proved by the evidence is really in dispute and, if so, to assess the probative worth of the evidence on this issue against its prejudicial effect. United States v. Danzey, 594 F.2d 905 (2d Cir.), cert. denied, 441 U.S. 951, 99 S. Ct. 2179, 60 L. Ed. 2d 1056 (1979); United States v. Halper, 590 F.2d 422 (2d Cir. 1978); United States v. Benedetto, supra; United States v. Leonard, 524 F.2d 1076, 1092 (2d Cir. 1975), cert. denied, 425 U.S. 958, 96 S. Ct. 1737, 48 L. Ed. 2d 202 (1976).
Despite the frequency with which these principles have been expressed and the reversals that have occurred when they have not been followed, United States v. Mohel, supra; United States v. Manafzadeh, supra; United States v. O'Connor, supra; United States v. DeVaugn, supra, the Government persists in jeopardizing convictions by offering evidence of similar crimes or acts either in disregard of the standards or without assisting the trial judge to make sure that they are correctly applied.
In this case, the Government offered evidence of defendant Acosta's 1968 conviction for sale of narcotics. The offer was made at the conclusion of the prosecution's case-in-chief, but before it had been ascertained that the defendants would rest without presenting evidence.*fn1 More significantly, the prosecutor neglected to inform the trial judge of the issue to which the evidence was claimed to be relevant.*fn2 When Acosta's counsel then endeavored to oppose the offer because of both its timing and inadmissibility, the trial judge undertook to suggest a basis for admissibility. Referring to an issue raised during the cross-examination of Agent Aponte as to whether the evidence that Lebron had displayed to Aponte was really heroin, Judge Platt observed: "(W)hen there is a question here of the substance and you all challenged the substance I would think the evidence was highly probative that this man has been convicted of the prior sale of the very substance." (Tr. 230).
Contrary to Judge Platt's suggestion, the issue as to whether the substance was heroin had been raised in the cross-examination of Aponte only by counsel for Lebron and Figueroa, and not by counsel for Acosta. Figueroa's lawyer had initially probed Aponte's training and other qualifications for identifying narcotic substances. He then asked Aponte whether the substance looked like coffee grains or like instant coffee and received negative answers. It appears that one purpose of these inquiries was to attack Aponte's credibility by confronting him with his grand jury testimony. In describing brown Mexican heroin to the grand jury and comparing it to white heroin from France, Aponte had said that the brown heroin "looks like Maxim Coffee. . . . . It has that appearance" (Tr. 130). Figueroa's lawyer not only pressed Aponte on the inconsistency but also used Aponte's comparison to coffee as the basis for suggesting that the substance may not have been heroin. When Aponte maintained that the substance was identifiable as heroin in part because of its vinegary odor, Figueroa's counsel asked whether Aponte had ever seen "brown sugar that was submerged in vinegar?" (Tr. 137). Lebron's lawyer pursued the point more directly with two questions: "Is it fair to say that on occasion substances are sold as narcotics which are not, in fact, narcotics?" and "Is it fair to say that people are constantly ripping each other off?" (Tr. 146). Aponte agreed that this occurs. By contrast, Acosta's lawyer asked no questions suggesting that the substance was coffee or anything other than heroin.
Confronted with Judge Platt's suggestion that the prior crime evidence was admissible because of a defense suggestion that the substance may not have been heroin, Acosta's counsel responded, "That is not my position. . . . I have never taken the position that these were coffee grinds. . . . I have never taken a position, nor will I take the position that my man was involved in any plan, in any ripoff . . . ." (Tr. 231). Acosta's counsel made clear that his defense was denial that the alleged conduct of his client had occurred at all. He did not claim that Acosta threw away something other than heroin nor did he claim that Acosta threw away heroin, unaware of what it was. He claimed that Aponte was fabricating the episode alleged to have occurred on the street. When Judge Platt insisted that the issue was "whether there was an intent to deal in narcotics here or whether there was an intent to deal in coffee grinds or some other brown substance," (Tr. 234), Acosta's counsel unequivocally stated, "There is no issue of intent." (Tr. 235).
It was error to admit Acosta's prior conviction. His counsel's cross-examination had raised no issue concerning his intent, and his counsel had sufficiently removed that issue from the case. The Government has things backwards when it depicts Acosta as "on the one hand enjoying the benefit of a defense of lack of intent because it was raised by a co-defendant, but on the other hand seeking to exclude relevant evidence of a past conviction simply by stating that he, after all, was not the one raising the defense." (Appellee's Br. 17). It is the Government that is trying to enjoy the benefit of having put Acosta on trial with two co-defendants and then offering evidence against him on grounds available, if at all, only as to his co-defendants. The advantages to the prosecution of a joint trial do not include that maneuver. Cf. United States v. DeCicco, 435 F.2d 478, 483 (2d Cir. 1970) (condemning prosecution's evidence of a defendant's prior similar act as a basis for inferring the intent of a co-defendant).
Moreover, Acosta's prior conviction would not have been admissible even if he had been claiming that the Government's evidence proved at most a "rip-off," i. e., a sale of a substance the defendants knew was not heroin. Evidence of similar acts or crimes is relevant to the issue of intent, not to the issue of the nature of the substance that was in the cellophane bag. No one in the case claimed that the trio was unwittingly selling Aponte heroin, thinking it was some other substance. Their point was that the prosecution had failed to prove what was in the bag, not what was in their minds. While the prosecution is entitled to prove that a substance is heroin without producing either the substance or a chemical analysis, United States v. Bermudez, 526 F.2d 89 (2d Cir. 1975), cert. denied, 425 U.S. 970, 96 S. Ct. 2166, 48 L. Ed. 2d 793 ...