The opinion of the court was delivered by: DENISE COTE, District Judge
Christian Paulino (the "defendant") was convicted on October 23,
2003, following a three-day jury trial, of possessing with intent to
distribute a controlled substance in violation of Title 21, United
States Code, Section 841(b)(1)(C). The defendant now moves for a new
trial pursuant to Rule 33, Fed.R.Crim.P. For the reasons set forth
below, his motion is denied.
The issues raised by the defendant require descriptions of the trial,
the Government's summation, the rendering of a verdict
by a jury of eleven persons, the destruction of one page of handwritten
notes made by a law enforcement agent during the defendant's arrest, and
the exclusion of testimony about an out-of-court statement made by the
defendant's father. A description of the factual background for each of
these issues follows. To place the issues in context, however, a summary
of the opening statements, trial evidence, and summations is presented
The trial commenced on October 20. In its opening statement, the
Government informed the jury that cocaine had been seized from the
defendant's bedroom closet and from a hallway closet in the apartment in
which the defendant lived with his parents and sister. The Government
asserted that the evidence would show that the cocaine found in the
defendant's bedroom closet belonged to the defendant, and that the drugs
in the hallway closest belonged to the defendant's father. The Government
noted that Adolfo Paulino had immediately assumed responsibility for the
cocaine found in the hallway closet, but "did not take responsibility"
for the cocaine found in his son's bedroom.
In its opening statement, defense counsel asserted that "the government
has the wrong man." The defendant did not possess the cocaine in his
bedroom closet. "He did not have control over that cocaine. It did not
belong to him." Instead, the cocaine belonged solely to the defendant's
father, Adolfo Paulino.
"[O]nly he controlled it." The defense argued that Adolfo Paulino
stored drug paraphernalia throughout the apartment, and that the
defendant "had no more" to do with the cocaine found in the defendant's
closet than his mother or sister did. Defense counsel continued, "How
will you be sure that all of the cocaine in Adolfo Paulino's apartment
belong to him and only to him? The evidence will show that Adolfo
Paulino admitted to the police that the cocaine was his."
The following facts were established at trial. On or about November
2002, the defendant's father, Adolfo Paulino, was indicted in the
District of Connecticut for conspiracy to possess with intent to
distribute more than 120 kilograms of cocaine. A warrant for Adolfo
Paulino's arrest had issued, but drug enforcement agents had been unable
to locate him. Eventually, the United States Marshals Service ("Marshals
Service") traced Adolfo Paulino to an apartment in the Bronx. Adolfo
Paulino was living in the apartment with his wife and two children, the
defendant and the defendant's sister.
On May 7, 2003, in the early morning hours, agents and officers from
the Drug Enforcement Agency ("DEA"), the Marshals Service, and the
Connecticut Police Department (collectively, "agents") executed an arrest
warrant for Adolfo Paulino at the Bronx apartment. The DEA agents from
Connecticut and the Connecticut police officers participated in the
arrest because it
was their investigation which had culminated in Adolfo Paulino's
indictment. The Marshals Service was present because it had assisted
in locating Adolfo Paulino.
Immediately upon being admitted into the apartment, the agents
conducted a protective sweep in order to identify all of the residents
and to prevent any destruction of evidence. They found Adolfo Paulino in
the master bedroom, and placed him under arrest. In the defendant's
bedroom, agents saw in plain view a small measuring scale covered with
traces of a powdery residue, glassines, plastic sandwich baggies and
razor blades. The defendant was escorted into the living room, where the
defendant's mother and sister were being held during the protective
After receiving Adolfo Paulino's written consent to search the
apartment, the agents proceeded to conduct a more thorough search of the
residence. Two cell phones, two pagers, and approximately $700.00 in cash
were recovered from Adolfo Paulino's bedroom. In the hallway closet,
which was opened with a key from Adolfo Paulino, the agents found a
Domino sugar bag containing cocaine, as well as additional bags of
cocaine stored inside pairs of shoes. It was later determined that the
cocaine in the hallway closet was 46 percent pure and totaled
approximately 295 grams. Adolfo Paulino told a DEA agent that "the drugs
in the hall closet were his," "that he had no other drugs in the
apartment," and that uno one else was involved in the drugs." The Court
instructed the jury that this conversation
between Adolfo Paulino and the agent was not being admitted for its
truth, but rather to aid the jury in understanding the course of events
that unfolded that day.
The same DEA agent proceeded to question the defendant on what he knew
about the cocaine found in the hallway closet. After receiving his
Miranda rights, the defendant stated that the hallway closet and its
contents belonged to his father, and he "had nothing to do with that
closet, the hall closet." The defendant stated that he had no knowledge
of any other drugs in the apartment.
The agent obtained permission from the defendant and his sister to
search their respective bedrooms. In the defendant's sister's bedroom,
the agents found approximately $2,000.00 in cash hidden inside her socks.
In the defendant's bedroom, they found another scale and additional drug
packaging paraphernalia. Inside the defendant's closet, underneath
clothes and other possessions, the agents uncovered a plastic grocery
bag, inside of which was a freezer bag containing approximately 190 grams
of cocaine. Tests later revealed the defendant's fingerprints on the
grocery bag and on the first plastic bag on the roll of sandwich baggies
found in his bedroom. Tests also showed that the cocaine found in the
defendant's bedroom closet was approximately 3.9 percent pure.
The Connecticut DEA agents advised Adolfo Paulino that narcotics had
been found in his son's bedroom closet. After contacting his office, a
New York DEA agent determined that the
defendant would be placed under arrest for possession of the cocaine
found in his bedroom closet. The defendant was taken into the hallway, a
few feet away from Adolfo Paulino, handcuffed and placed under arrest.
Neither at that time, nor at any other time during that day, did Adolfo
Paulino take responsibility for any drugs found in the apartment except
for the cocaine found in the hallway closet.
The final piece of evidence offered by the Government was evidence that
the defendant had been convicted in 2000 of a sale of crack cocaine. In a
September 29 pre-trial submission, the Government had moved to introduce
evidence at trial pursuant to Rule 404(b), Fed.R. Evid., in order to show
the defendant's knowledge and intent to possess cocaine with intent to
distribute it. Specifically, the Government sought to put into evidence
(1) the testimony of law enforcement officers who had arrested the
defendant on April 9, 2003, less than a month before the search of the
apartment. The Government sought to introduce the officers' observations
that led them to conclude that the defendant was managing a street level
drug "spot" and taking money from those he was supervising for the drugs
that they sold; (2) the defendant's conviction on February 4, 2000, for
criminal sale of a controlled substance in the third degree in New York
Supreme Court, Bronx County; and, (3) the defendant's conviction on
December 3, 1999, for attempted criminal sale of a controlled
substance in the third degree in New York Supreme Court, Bronx County.
The controlled substance in all of the defendant's prior criminal acts
was crack cocaine.
The defendant had opposed the admission of the 404(b) evidence on the
grounds, inter alia, that the evidence was not relevant to any issues in
dispute since the defendant would not raise lack of knowledge or lack of
intent as a defense at trial. According to defense counsel, the
defendant's theory would be that the cocaine found in his bedroom closet
in fact belonged solely to his father.
Prior to the trial, the Court had issued a preliminary ruling admitting
one similar act, either the 2000 conviction or the facts surrounding the
2003 arrest, since the crime of possession (as well as the crime of
aiding and abetting)*fn1 included as elements the issues of the
defendant's knowledge and intent, and the defendant had not sufficiently
removed those issues from the case as of that time. The Court reserved a
decision until the end of the presentation of the evidence. The defendant
submitted that the admission of the 2000 conviction would be preferable.
Near the close of the Government's case-in-chief, the Court ruled that
the defendant had not sufficiently removed knowledge and intent from the
case, and that the 2000 conviction for the sale of crack cocaine was
admissible to show the defendant's knowledge and intent both on the
possession charge as well as on the charge of aiding and abetting.
On October 22, at the close of its case, the Government read to the
jury an excerpt from the defendant's plea allocution for the 2000
conviction, and put into evidence a copy of the defendant's judgment of
conviction. The parties stipulated that the controlled substance referred
to in the plea allocution and judgment of conviction was crack cocaine.
The Government rested its case. The defendant did not call any
In its summation, the Government asserted that the drugs found in the
defendant's bedroom closet belonged to him and addressed the defendant's
argument, made in its opening statement and through the cross examination
of the Government's witnesses, that Adolfo Paulino controlled those
drugs. The Government argued that the evidence not only showed that the
defendant controlled his bedroom closet, but also that there was no
evidence to support the assertion in the defendant's opening
statement that Adolfo Paulino had claimed responsibility for the
drugs with which his son was charged.
[The] defense rested on their opening by saying, `The
evidence will show you that Adolfo Paulino admitted to
the police the cocaine was his. Adolfo Paulino told
them no one else was involved in the cocaine. . . .'
That is simply incorrect. The evidence you heard was
that Adolfo Paulino admitted to the cocaine found in
the locked hallway closet. He never admitted to police
that any other cocaine found in the apartment was
The defense did not object to any statements made by the Government
during its summation.
In her summation, defense counsel contended that the defendant had been
falsely arrested. She argued that the drugs found in the defendant's
bedroom closet in fact belonged to his father, who "stored his drugs and
the tools of his drug trade throughout, all over that apartment." Defense
counsel argued that the agents assumed from the time they entered the
apartment that the defendant was a criminal, and "from that lens . . . the
officers in this case interpreted every piece of evidence to support the
conclusion they had already formed in their mind." Defense counsel
maintained that Adolfo Paulino's assumption of responsibility for the
drugs found in the hallway closet extended to all the drugs found in the
apartment, including those with which the defendant was charged. ...