USCA1 Opinion

April 21, 1994

[NOT FOR PUBLICATION]

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 93-1780
UNITED STATES,
Plaintiff, Appellee,
v.
MAURICIO CARRERA NOVOA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________
George Garfinkle with
_________________

whom Richard N. Ivker

__________________

was on

brief

appellant.
William F. Sinnott, Assistant United States Attorney, with w
___________________
Donald K. Stern, United States Attorney, was on brief for appellee.
_______________
____________________
____________________

Per Curiam.
Per Curiam.
____________
Mauricio

Carrera

Pimental,

challenges

possession
U.S.C.

of

In this

Novoa,
his

cocaine with

appeal, defendant-appellant

a/k/a

John

conviction
intent

to

Pimental
for

one

and

Jose

count

of

distribute, see
___

21

841(a)(1), and the sentence of incarceration imposed

therefor.
we affirm.

After carefully considering defendant's arguments,

In asserting that his conviction should be reversed

or,

in

the

defendant

alternative,

makes five

that he

should

arguments.

None

be

resentenced,

requires

extensive

discussion.
1.

Defendant

first contends

that

the district

court erred in finding that the arresting agents had probable

cause

to search

seized.

gym bag

from

which the

in

court

supportably

conducting

their

found that
initial

relying upon trustworthy information from

informants indicating,
one

inter alia,
_____ ____

of whose aliases was

scale cocaine ring from an

in

here,

typically

that

was

(ii)
removed

that (i) an

individual,
ran a largeAvenue

Pimental's brother,
the

drugs

from

the
this

that defendant

a gray Mitsubishi;

shipment of

were

three confidential

apartment at 131 Coolidge

known to operate

a multi-kilogram

arresting

surveillance,

apartment for transportation elsewhere; (iii)

John/Jose was

the

Jose Louis Pimental,

Watertown, Massachusetts;

defendant

cocaine

We do not agree with this contention.

The

agents,

the

cocaine was

and (iv)

expected to

arrive at this apartment prior to March 25, 1992.

The

court

morning of March

also

supportably

25, 1992,

found

one or more

that,

of the

on the

surveilling

agents observed, inter alia, (a) a gray Mitsubishi, which was

_____ ____
registered to a Jose
Coolidge

Avenue; (b) defendant exit

the building's
time

Pimental, drive into the garage

elevators; and

later carrying a bag

and bulky (and

arresting agents, had an

which appeared to

a short

be quite heavy

estimation of the

experienced

appearance consistent with a method

of transporting

large quantities

these

are

findings

the car and walk toward

(c) defendant return

which, in the

at 131

more

of drugs).

than sufficient

In
to

our view,

sustain

the

district court's determinations, in light of the totality-ofthe-circumstances, see United States v. Torres-Maldonado, 14
___ ______________
________________
F.3d 95,
both to

105 (1st

Cir. 1994),

arrest defendant

United States
_____________

for possession of

v. Figueroa,
________

1987) (probable cause to

that probable cause

818 F.2d

contraband, see
___
1023 (1st

arrest attaches when the

circumstances within the knowledge

which they

1020,

existed

facts and

of police officers and of

have trustworthy information are

"`sufficient to

warrant a prudent person in believing that the defendant

committed or

was committing

Cir.

an offense'") (quoting

had

Beck v.
____

Ohio, 379 U.S. 89, 91 (1964)), and to remove the bag from the
____
Mitsubishi's trunk and

search it, see Illinois v. Gates, 462

___ ________

_____

-33

U.S. 213, 238 (1983) (probable cause

to search attaches when

there is "a fair probability that contraband or evidence of a

crime

will

be

found

in a

particular

California v.
__________

Acevedo, 111 S. Ct. 1982,

_______

officers

search

without

may

a warrant

any

container

so long

as they

place");

see
___

also
____

1991 (1991) (police

within

an

automobile

have probable

cause to

believe the container contains contraband).

Accordingly,

the

court

did

not err

in

denying

defendant's motion to suppress.1

2.

Defendant next argues that

the district court

abused its discretion in allowing the government to introduce

evidence

against

him

relating

search of Apartment #624

day

of his arrest.

evidence
its

to

value

In so

was

warrant-authorized

at 131 Coolidge Avenue on

doing, he contends

was not relevant; and (2)

probative

the

the same

(1) that the

in the alternative, that

substantially

outweighed by

its

prejudicial

effect upon the jury.

We reject these claims as

well.
The
evidence

--

district court
the fact

that

determined that
defendant

the contested

possessed

a key

to

Apartment #624 at the time of his arrest; the fact that eight
kilograms of cocaine seized

from the apartment were packaged

____________________
1. In so ruling, we obviously reject defendant's contention
that the arresting agents' relative lack
of knowledge
regarding (1) defendant's physical description, and (2) the
exact time the narcotics would be taken from the apartment,
deprived them of probable cause to arrest and search.
-44

in the same distinctive manner as the twelve kilograms seized

from defendant's bag; and the fact that defendant's brother's
bank
found

statement, a

ledger,

and approximately

$18,600

were

in the apartment -- was evidence of a drug trafficking

operation of

which the

was

a part.

The court further determined that this evidence

was

relevant

to,

cocaine seized from

inter
_____

alia,
____

the

defendant's bag

contested

issue

of

defendant's

intent

in

possessing

determinations were well within

United States
______________

v. Sepulveda,
_________

the

cocaine.

These

the court's discretion.

15 F.3d

1161, 1193

See
___

(1st Cir.

1993).2
The district

court, after

engaging in the

proper

balancing process, also concluded that the probative value of

this evidence

was not

substantially outweighed by

that it might cause unfair prejudice.

Defendant

provides

no

specific

a danger

See Fed. R. Evid. 403.

___

argument

(other than

his

general complaint that the court erred in so concluding) that

this
record

conclusion was erroneous.

reveal

Thus, the

a legitimate

court's ruling

Nor does our

basis

for

in this regard

review of the

any such

argument.

must be

affirmed.

____________________
2. Defendant also argues that because he lacked standing to
contest the search of the apartment on Fourth Amendment
grounds, the government should be required "to meet an
extraordinary burden in its showing of relevance." Without
in any way endorsing defendant's dubious proposition, we note
that, in our view, the contested evidence was extremely
relevant and was therefore, under any putative relevance
standard, properly admitted.
-55

See Pinkham v. Burgess,

___ _______
_______
(noting the
trial

933 F.2d 1066, 1071 (1st

extraordinarily

court's

on-the-spot

broad discretion
judgment

as

Cir. 1991)

we

to

afford

whether

a
the

probative value of certain relevant evidence is substantially

outweighed by the danger of unfair prejudice).
Accordingly, the court did not err in admitting the
aforementioned evidence against defendant.
3.

Defendant's third

argument -- similar

to his

second -- is that the district court abused its discretion in

allowing

the government

defendant's

prior

to

drug-related

Defendant contends that this

show his propensity to
R. Evid. 404(b).
As we
this

introduce

arrest

and

conviction.

commit a crime, in violation

of Fed.

Once more, we are not persuaded.

Indeed,

it

was a contested

appears

that

issue in

challenging

government to prove intent beyond a reasonable

of

concerning

evidence only was introduced to

have said, intent

case.

evidence

the

doubt was one

the primary trial strategies engaged in by defendant.

light

of this fact, there is no

court's

finding

admissible to
States v.
______

that the

Rivera-Sola, 713
___________

(defendant's

attorney's

basis for us to disturb the

evidence

prove intent

of

under Rule
F.2d

In

the conviction
404(b).

866, 871

statements

and

was

See United
___ ______

(1st Cir.

1983)

cross-examination,

designed
basis

to contest

the

issue of

for the introduction of

intent, provided

proper

Rule 404(b) evidence to prove

-66

intent); cf. United States v.

___ ______________

Karas, 950 F.2d

_____

31, 37

(1st

Cir. 1991) (defendant's attorney's opening statement alone is

insufficient basis for admitting Rule 404(b) evidence).
After conducting the balancing
by

Rule 403,

the

probative

value

outweighed

by

again,

district court
of

this

evidence

its potential

defendant

has not

for

was

court erred

again, our review

reveals no

concluded that
not

unfair

presented

argument that the

argument.

also

analysis prescribed

us

the

substantially

prejudice.
with any

in so concluding.
legitimate basis

Once

specific
And

once

for such

an

admit

the

See Pinkham, 933 F.2d at 1071.

___ _______
Accordingly,

it

was

not

error

to

aforementioned evidence against defendant.

4.
clear

Defendant next

argues that the court committed

error, see United States v. Bradley, 917 F.2d 601, 605

___ _____________
(1st Cir. 1990),

_______

in determining, by

a preponderance of

the

evidence, see United States v. Valencia-Lucena, 988 F.2d 228,

___ _____________
_______________
232 (1st
seized
part

that the

from Apartment
of

seized

Cir. 1993),

the same

#624 were,

scheme or

from defendant's

however, reveals no
evidence which

eight
for

plan

bag.

Our

error in this

linked defendant

made these eight kilograms

kilograms of

cocaine

sentencing purposes,

as the

twelve kilograms

review

of the

determination.
to the apartment

record,
The

same

and which

of cocaine admissible against him

-77

at trial provides a more than sufficient basis to support the

challenged sentencing finding.
Accordingly, the

court did not err

in taking this

evidence into account at sentencing.

5.
in

Finally, defendant asserts that the court erred

allowing his prior drug-related conviction

to be used to

enhance
his

his sentence.

His

argument is two-fold:

conviction was not "final"

841(b)(1)(A)3 because,

although

offense, he failed to appear at

and (2) that

his conviction was

for purposes of
he pleaded

(1) that
21 U.S.C.

guilty

to

the

sentencing for that offense;

constitutionally defective.

The problem with this argument is that the district court did
not use the prior conviction to enhance defendant's sentence;
instead,
that

the sentencing

the district

under
States

transcript reveals

court sentenced

the 210-262 month range

Sentencing

subsequent

defendant to

made applicable by the United

Guidelines.

The

district

841(b)(1)(A)

court's

the sentence, and

was patently superfluous, did not

was made solely

to protect the

____________________
3.

246 months

finding that defendant's conviction was final for

purposes of
influence

beyond question

In pertinent part,

841(b)(1)(A) states:

If any person commits such a violation

after a prior conviction for a felony
drug offense has become
final, such
person shall be sentenced to a term of
imprisonment which may not be less than
20 years
and
not more
than
life
imprisonment . . . .
-88

interests
imposed

of

the United

somehow was

Accordingly,

all

constitutionality

States in

otherwise unlawful
questions
of

regarding

defendant's

immaterial to this appeal.

Affirmed.
Affirmed.
________

the event

the sentence

(which it
the

prior

is not).

finality

and

conviction

are

-99