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January 30, 2004.


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 Page 2 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 first.

 Opening Statements

  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. Page 3 "[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."

 Trial Evidence

  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 Page 4 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 sweep.

  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 Page 5 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 Page 6 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.

 Rule 404(b)

  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 Page 7 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 final Page 8 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 witnesses.


  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 Page 9 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 his.
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. ...

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