EDUARDIO BIBO-RODRIGUEZ, PETITIONER V. UNITED STATES OF AMERICA No. 90-7626 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-11a) is reported at 922 F.2d 1398. JURISDICTION The judgment of the court of appeals was entered on January 4, 1991, and the petition for a writ of certiorari was filed on April 4, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether evidence of a defendant's similar acts, occurring after the charged offense, may be admitted to prove knowledge and intent. STATEMENT After a conditional plea of guilty in the United States District Court for the Southern District of California, petitioner was convicted of importing cocaine into the United States, in violation of 21 U.S.C. 952. He was sentenced to 151 months' imprisonment. The court of appeals affirmed. Pet. App. 1a-11a. 1. On September 26, 1988, petitioner drove a truck from Mexico to the United States through the Otay Mesa Port of Entry. Customs agents stopped petitioner and directed him to a secondary inspection area, where he was searched. Meanwhile, other agents searched the truck by drilling a hole in its roof. The drill bit revealed a white powder that was identified as cocaine. The agents did not disclose their discovery to petitioner, and they allowed him to make his delivery. Petitioner left the truck in a parking lot in San Ysidro, California, and returned to Mexico. Continued surveillance of the truck led to the arrest of four individuals for possession of cocaine with intent to distribute it and the seizure of approximately 678 kilograms of cocaine that was hidden in the truck. A warrant was issued for petitioner's arrest. Pet. App. 4a. On December 2, 1988, petitioner was arrested in Los Angeles for possession of approximately 30 pounds of marijuana with intent to distribute it. The marijuana had been concealed in the side panels of a truck. After being read his Miranda rights, petitioner made incriminating statements to the arresting officer. He admitted his involvement in smuggling the 30 pounds of marijuana he was arrested for possessing. He also admitted that he routinely transported narcotics, both marijuana and cocaine, from Mexico into the United States, and that the smuggling operation used various kinds of trucks with concealed compartments for the drugs. Tr. 18-20 (testimony of Police Officer James Martin). Petitioner was arraigned on the marijuana charge, posted bail, and returned to Mexico. Pet. App. 4a, 5a. On June 12, 1989, petitioner was stopped as he attempted to drive another truck across the border at the Otay Mesa Port of Entry. A Customs agent noticed a marijuana cigarette in the bed of the truck and sent petitioner to the secondary inspection area. A record check revealed the outstanding warrant for petitioner's arrest based on the September 26, 1988, cocaine smuggling incident. When asked about the events that took place on that date, petitioner stated that a friend had paid him $50 to drive the truck from Mexico to California, and that he knew nothing about the cocaine. Petitioner was arrested and remained in custody pending his trial on the cocaine importation charge. Pet. App. 4a-5a. 2. Prior to trial, the government indicated its intention to prove that petitioner knew that the truck he drove on September 26, 1988, contained cocaine through the use of petitioner's December 2, 1988, arrest and his statements at that time to the arresting officer. Petitioner filed a motion in limine to exclude the "similar act" evidence. The government argued that this subsequent act evidence was admissible under Fed. R. Evid. 402 and 404(b) and that the incriminating statements petitioner made after his December 2 arrest were admissible as non-hearsay admissions under Fed. R. Evid. 801(d)(2)(A). Tr. 31-32. The district court ruled that all the evidence from the December 2 incident would be admissible as "similar act" evidence under Rule 404(b). After the district court's denial of petitioner's motion in limine, petitioner entered into a conditional guilty plea agreement with the government. C.A. App. 43-45. Petitioner admitted that on September 26, 1988, he drove the truck containing 678 kilograms of cocaine into the United States, and the parties stipulated that the sole issue in dispute -- had there been a trial -- would have been whether petitioner "knew there was cocaine (or a controlled substance) in the truck at the time he drove across the border." C.A. App. 44. Petitioner reserved his right to appeal the denial of his motion to exclude evidence of the events and statements he made on December 2, 1988. Ibid. The agreement provided that petitioner "acknowledges and agrees that if he loses his appeal as to any of the 'other act' evidence, he will not be allowed to withdraw his guilty plea." C.A. App. 45. 3. The court of appeals affirmed petitioner's conviction. The court ruled that the government was entitled to prove petitioner's knowledge that the truck driven across the border on September 26, 1988, contained a controlled substance through evidence of petitioner's involvement in a similar smuggling operation on December 2, 1988. Pet. App. 5a-11a. The court concluded that the fact that the similar act occurred after the charged offense was of no moment. The court observed that Rule 404(b) does not distinguish between prior and subsequent act evidence. Id. at 6a. While noting that some courts of appeals have disallowed the use of subsequent act evidence in specific instances, the court followed the Ninth Circuit's precedents allowing admission of subsequent act evidence to prove knowledge in an appropriate case. Ibid. The court of appeals held that the subsequent act evidence was admissible in this case. Pet. App. 9a-10a. The court explained that the evidence was relevant to petitioner's knowledge on September 26 -- the material point at issue -- because petitioner's uncontested knowing involvement in a smuggling operation occurring only nine weeks later would logically support an inference that he was knowingly engaged in both smuggling operations. Ibid. The court rejected petitioner's argument that the different drugs and participants involved in the two incidents made the December 2 conduct too dissimilar to the offense charged to be relevant. It reasoned that the distribution of commercial quantities of a controlled substance was the relevant similarity between the events. Id. at 10a. The court also ruled that the statements petitioner made to the arresting officer on December 2 were admissible as non-hearsay admissions under Fed. R. Evid. 801(d)(2)(A). Pet. App. 8a. ARGUMENT 1. Petitioner incorrectly suggests (Pet. 5) that Rule 404(b), Fed. R. Evid., bars the admission of subsequent act evidence for any purpose. /1/ As the court of appeals noted, Rule 404(b) allows the admission of similar act evidence where it is used for a proper purpose -- such as proving knowledge or intent -- and it does not by its terms distinguish between prior and subsequent act evidence. Pet. App. 6a. And as this Court observed in Huddleston v. United States, 485 U.S. 681 (1988), the courts are not at liberty to create additional limitations on the admissibility of similar act evidence that are not contained in the Federal Rules. 485 U.S. at 688. /2/ Hence, there is no warrant for a per se rule that subsequent act evidence is inadmissible. 2. Petitioner further contends (Pet. 5-6) that the courts of appeals disagree as to whether subsequent act evidence is ever admissible under Fed. R. Evid. 404(b). He relies on decisions of the First, Third, and Fifth Circuits that have disallowed the admission of such evidence in particular circumstances. See United States v. Garcia-Rosa, 876 F.2d 209, 221 (1st Cir. 1989), vacated on other grounds, 111 S. Ct. 377 (1990); United States v. Jimenez, 613 F.2d 1373, 1376 (5th Cir. 1980); United States v. Boyd, 595 F.2d 120, 126 (3d Cir. 1978). Those decisions, however, do not adopt a per se rule excluding subsequent act evidence under Rule 404(b). Each of the decisions merely excludes the particular subsequent act evidence at issue for failing to meet the requirements of the Federal Rules, while preserving the possibility that subsequent act evidence might be admissible in an appropriate case. See Garcia-Rosa, 876 F.2d at 221 ("We do not imply that all subsequent act evidence is inadmissible under Rule 404(b)"); Jimenez, 613 F.2d at 1376 ("(W)e do not suggest that subsequent extrinsic offense evidence could never be admitted under rule 404(b)"); Boyd, 595 F.2d at 127 (Hunter, J., concurring) ("I would make clear that I do not read the court as holding that evidence of subsequent crimes is, under all circumstances, inadmissible"). The other courts of appeals that have considered the issue all hold that, in an appropriate case, subsequent act evidence is admissible. See, e.g., United States v. Khorrami, 895 F.2d 1186, 1193-1194 (7th Cir.), cert. denied, 111 S. Ct. 522 (1990); United States v. Ramirez, 894 F.2d 565, 569 (2d Cir. 1990); United States v. Hurley, 755 F.2d 788, 790 (11th Cir. 1985); United States v. Cook, 745 F.2d 1311, 1317 (10th Cir. 1984), cert. denied, 469 U.S. 1220 (1985). There is, in short, no conflict among the courts of appeals on that issue. 3. Petitioner also argues (Pet. 6-7) that the subsequent act evidence is this case should have been excluded as irrelevant. The courts below correctly rejected that assertion. The evidence is probative on the question of petitioner's knowledge on September 26, 1988, because the fact that petitioner knowingly engaged in similar conduct on December 2, 1988, plainly makes "more probable" a finding that petitioner knowingly engaged in transporting controlled substances in both instances. See Fed. R. Evid. 401. Thus, the court of appeals and the district court properly ruled that the evidence is relevant, and therefore would be admissible, under Rules 402 and 404(b). /3/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General RICHARD A. FRIEDMAN Attorney JUNE 1991 /1/ As a threshold matter, petitioner's claim that Rule 404(b) bars the admission of his December 2, 1988, conduct is rendered largely academic by the unchallenged admissibility, under Rule 801(d)(2)(A), of petitioner's admissions on that date that he routinely transported drugs from Mexico to the United States using trucks with concealed compartments. In light of those admissions, there is little question that a judge or jury would have disbelieved petitioner's claim that he did not know that the truck used on September 26 was carrying a controlled substance. /2/ Indeed, the similar act evidence in Huddleston included evidence of conduct occurring both prior and subsequent to the offense charged. See 485 U.S. at 683. The petitioner in Huddleston did not dispute the admissibility of the subsequent act evidence. See id. at 686 n.3. /3/ This Court is not the proper forum for petitioner's claim (Pet. 7) that the ground upon which the court of appeals ruled the evidence admissible allows petitioner to withdraw his guilty plea. In any event, his claim has no merit in light of the government's assertion of that ground for admission before the district court (see Tr. 31-32) and the plain statement in petitioner's plea agreement that "if he loses his appeal as to any of the 'other act' evidence, he will not be allowed to withdraw his guilty plea" (C.A. App. 45).