ORLANDO MARTINEZ, PETITIONER V. UNITED STATES OF AMERICA No. 90-6464 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 Tenth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-8) is not reported. JURISDICTION The judgment of the court of appeals was entered on September 7, 1990. The petition for a writ of certiorari was filed on December 3, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether evidence of petitioner's recent drug transactions was properly admitted under Fed. R. Evid. 404(b) to show that he was aware of, and intentionally possessed, drugs found in his car. 2. Whether the evidence was sufficient to support a two-level increase under Sentencing Guidelines Section 3B1.1(c) based upon petitioner's supervision of another person in the course of committing the offenses of which he was convicted. STATEMENT After a jury trial in the United States District Court for the District of Colorado, petitioner was convicted of possession with intent to distribute cocaine (Count One) and possession with intent to distribute heroin (Count Two), in violation of 21 U.S.C. 841(a)(1). He received a total prison sentence of 63 months, to be followed by a three-year term of supervised release. 1. The evidence at trial showed that, on August 17, 1988 in Denver, Colorado, petitioner knowingly possessed with intent to distribute more than 32 grams of heroin and 75 grams of cocaine seized from a car he owned. Petitioner was arrested that day on a state warrant authorizing his arrest for receiving stolen goods. At the time of his arrest, petitioner was a passenger in his car, which was driven by Reggie Owens. On his person, petitioner was carrying $1,334 in cash, Sno-sneals (used for packaging cocaine), balloons (used for packaging heroin), and numerous baggies. A subsequent search of the car and trunk pursuant to a warrant revealed cocaine and heroin (worth approximately $13,000) hidden inside false-bottomed cans on the floorboard of the car, additional drug paraphernalia, a "Metalert" device used for valuing jewelry, a man's gold and diamond ring, and documents establishing petitioner's possession and control of the car. Pet. App. 2-3; Gov't C.A. Br. 3-4. At trial, Owens testified under a grant of immunity that he had driven petitioner around to various locations the day of the arrest, and that petitioner had engaged in drug transactions. Owens testified that he also had served as petitioner's driver the previous day, for which petitioner had paid him $400.00. According to Owens, the contraband and other items seized from the car had all been there when petitioner picked him up at the start of the day and none belonged to him. Gov't C.A. Br. 4-5. In order to establish petitioner's awareness of the drugs in the car and his intentional possession of them, the government was allowed to introduce evidence, pursuant to Fed. R. Evid. 404(b), of two other drug transactions conducted by petitioner during the month before his arrest. An undercover Denver police detective testified that, on July 28, 1988, he had purchased one gram of cocaine from petitioner in exchange for a videocassette recorder, and that petitioner had advised him that he preferred to trade cocaine for jewelry. Pet. App. 3. The same detective testified that, on August 1, 1988, petitioner once again expressed his interest in receiving rings and other jewelry and had sold the detective three grams of cocaine in exchange for gold chains. /1/ As requested, the district court gave the jury a limiting instruction that evidence of these other transactions could only be considered to establish petitioner's "state of mind or intent, motive, identity, or (the) absence of mistake or accident." Ibid. Gov't C.A. Br. 5-6. Petitioner was convicted, and the district court sentenced him under the Federal Sentencing Guidelines to 63 months' imprisonment. Although petitioner claimed his total offense level should have been 18 (which, coupled with his Criminal History Category IV, would yield a Guideline range of 41-51 months' imprisonment), the court determined that an additional two-level increase (yielding a Guideline range of 51-63 months' imprisonment) was warranted under Guidelines Section 3B1.1(c) to account for the fact that petitioner had supervised Owens during the offense of conviction. Gov't C.A. Br. 12-13. 2. The court of appeals affirmed. Pet. App. 1-8. The court rejected petitioner's challenge to the Rule 404(b) evidence, holding that it was properly admitted for each of the purposes identified by the district court and that the district court correctly balanced probative value against the risk of unfair prejudice. Id. at 4-6. Since the previous transactions revealed petitioner's "preferred method of dealing (drugs) for jewelry," and drugs as well as jewelry and jewelry devices were found in the car, the court of appeals held that "the record clearly supports the observation that these two prior transactions contained common characteristics with the charged transaction." Id. at 4. The court also rejected petitioner's contention that the evidence should have been excluded in light of his proffered conditional stipulation. /2/ The court noted that the government never accepted this conditional stipulation and, furthermore, that, "(a)lthough (petitioner) stipulated concerning intent, he specifically contested that the drugs were his and * * * that puts the issue of intent squarely in the case." Id. at 5. The court of appeals also rejected petitioner's claim that a two-point adjustment had improperly been imposed under Sentencing Guidelines Section 3B1.1(c). The court deemed the evidence "sufficient to demonstrate that (petitioner) supervised Mr. Owens, the driver, in the offense of conviction" and held that such evidence satisfies Section 3B1.1(c). Pet. App. 6 (citing United States v. Herrera, 878 F.2d 997, 1000-1002 (7th Cir. 1989)). /3/ ARGUMENT Petitioner renews his challenge to the admission of the Rule 404(b) evidence and to the increase of his sentence based on his role as a supervisor of another person during the criminal offense. These fact-bound challenges are without merit. Accordingly, further review is not warranted. 1. In Huddleston v. United States, 485 U.S. 681, 691-692 (1988), this Court outlined the determinations a district court must make and the procedures it must follow in admitting evidence under Rule 404(b). The district court in this case followed each of the requisite procedures before admitting evidence of petitioner's recent drug transactions: it determined the issues to which the evidence was relevant, it balanced the probative value of the evidence against the danger of unfair prejudice, and it gave an appropriate limiting instruction. Although petitioner does not challenge the procedures followed by the district court in admitting the evidence, he does challenge the court's substantive determination that the evidence was relevant to a contested issue in this case. As the court of appeals correctly concluded, however, the district court was clearly within its discretion in concluding that evidence of two very recent transactions in which petitioner distributed cocaine was relevant to establishing that he knew that his car was carrying drugs. See, e.g., United States v. Molinares-Charris, 822 F.2d 1213, 1220 (1st Cir. 1987) ("(e)vidence of (defendants') prior involvement in smuggling controlled substances, even though the operations occurred several years earlier, tended to disprove claim of 'mere presence,' and was, therefore, probative of state of mind"); United States v. Tussa, 816 F.2d 58, 68 (2d Cir. 1987) (prior drug transactions relevant to show defendant's knowledge of drugs in car). Petitioner nevertheless claims (Pet. 12-14) that, because he offered to stipulate to his intent to distribute in the event the jury determined the drugs were his, /4/ the court of appeals committed "grave error" in holding that the prior transactions were relevant to establish intent. But, although petitioner's conditional stipulation might have relieved the government of having to prove intent to distribute the drugs, it in no way affected the need to prove that petitioner had knowledge of the drugs in the car and intentionally possessed them. In other words, the other acts evidence was still relevant to establishing petitioner's "intent" with regard to the substantial quantity of drugs in his car, his "knowledge" of the drugs, and the "absence of mistake or accident" in the use of his car to carry drugs. There is no merit to petitioner's claim that the court's holding conflicts with United States v. Ortiz, 857 F.2d 900, 903-904 (2d Cir. 1988), cert. denied, 489 U.S. 1070 (1989) and other cases of the courts of appeals (Pet. 13-14). In the cases upon which petitioner relies, the defendant claimed to have no involvement whatsoever in the charged act. E.g., Ortiz, 857 F.2d at 904 (claim of "mistaken identity"). Here, in contrast, there is no question that petitioner was connected with a drug transaction (he was present in and owned a car carrying drugs); the dispute at trial was over whether petitioner had knowledge of the drugs and intentionally possessed him. Summarizing many of the cases upon which petitioner relies, the Second Circuit has explained that "(o)ur cases thus have recognized a distinction between defense theories that claim that the defendant did not do the charged act at all, and those that claim that the defendant did the act innocently or mistakenly, with only the latter truly raising a disputed issue of intent." United States v. Colon, 880 F.2d 650, 657 (2d Cir. 1989). Here, as the court of appeals noted, petitioner "specifically contested that the drugs involved were his." Pet. App. 5. That is, he claimed that his possession of the drugs was innocent or inadvertent, that he had no "knowledge" of their presence, and did not "intend" to possess them. It is plain that petitioner's conditional stipulation as to intent to distribute did not obviate the government's need to prove his knowing presence in a drug-filled car and his intentional possession of those drugs. Petitioner's claim (Pet. 14-18) that only acts with a "signature-like or handiwork quality" are admissible under Rule 404(b) overstates the degree of singularity required of such evidence. In Huddleston, for example, this Court twice indicated that the extrinsic acts need only be "similar" to the charged offense. 485 U.S. at 685, 686. The Court in that case upheld the admission of evidence of the defendant's previous sales of stolen televisions and appliances as tending to prove that he knowingly sold stolen videocassette tapes as charged in the indictment. See id. at 691. Here, the "other acts" of offering to exchange drugs for jewelry are connected to the simultaneous discovery of drugs, jewelry, and a "Metalert" device in petitioner's car. The association of jewelry and drugs belies petitioner's claim that the only similarities between his "other acts" and the alleged offenses is that "drugs were involved" (Pet. 15, 18). The officers' testimony also tends to establish a motive for the sale of drugs -- to obtain jewelry. Moreover, evidence that petitioner had recently dealt in drugs directly undercuts his defense that he was unaware of a substantial quantity of drugs in his own car. For the above reasons, the district court correctly exercised its discretion in admitting Rule 404(b) evidence that tended to show that petitioner had knowledge of the drugs inside his car and intentionally possessed them. Nevertheless, seizing upon the court of appeals' acknowledgement that "each of the purposes identified by the trial court in its limiting instruction must independently fulfill the requirements of Rule 404(b) under the facts of this case" (Pet. App. 4), petitioner separately addresses the issues of "intent" (Pet. 12-14), "absence of mistake" (Pet. 15-16), "identity" (Pet. 16-19), and "motive" (Pet. 19-20). At least in this case, however, there are only semantic differences between using the evidence to establish petitioner's "intent" in being in the drug-filled car, his "knowledge" of the drugs, the "absence of mistake" on his part, his "identity" as a person responsible for the drugs, and his "motive" in being present in the car. Cf. 2 J. Weinstein & M. Berger, Weinstein's Evidence Paragraph 404 (13), at 404-98 (1990) (noting that "(k)nowledge and intent are commonly lumped together by the courts"). But even assuming there were some substantive difference between these terms as applied to this case, and even assuming one or more of the purposes were not satisfied, reversal still would not be warranted. It is plain that at least one of the permissible purposes of Rule 404(b) was satisfied, so that the evidence was not admitted for the impermissible purpose of proving his bad "character." Given the district court's limiting instruction that the extrinsic acts could not be considered for such an improper purpose, any error in the description of the evidentiary purposes clearly was harmless. 2. There is also no merit in petitioner's challenge (Pet. 20-23) to the two-level increase under Guidelines Section 3B1.1(c) on account of his aggravated role in the offense. The increase applies where "the defendant was an organizer, leader, manager, or supervisor in any criminal activity * * * ." See United States v. Herrera, 878 F.2d 997, 1000-1002 (7th Cir. 1989) (two-level increase upheld where husband supervised wife in possessing with intent to distribute cocaine). Petitioner claims (Pet. 23), however, that "(t)here was no evidence that Mr. Owens was involved in any criminal activity, much less the offense for which Petitioner was charged." The court of appeals correctly rejected this fact-specific claim, holding (Pet. App. 6) that "the evidence is sufficient to demonstrate that (petitioner) supervised Mr. Owens, the driver, in the offense of conviction." This conclusion is amply supported by the testimony that petitioner enlisted Owens to drive his car while he conducted drug transactions, that Owens observed at least two such transactions, and that petitioner paid Owens $400 for one day's driving. See Gov't C.A. Br. 13. The district court's findings of fact are not "clearly erroneous" (18 U.S.C. 3742(e)), and were properly accepted by the court of appeals. /5/ 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 SEAN CONNELLY Attorney FEBRUARY 1991 /1/ The district court refused to allow testimony about a third meeting between the undercover detective and petitioner on August 8, 1988. Gov't C.A. Br. 6. /2/ Petitioner offered to stipulate to his intent to distribute, but only if the jury concluded that the drugs were his. Pet. 12-13. Petitioner does not seek further review of any of these issues. /3/ The court of appeals also considered, and summarily rejected, 16 other issues raised by petitioner in a separate pro se brief. Pet. App. 6-8. /4/ Petitioner's premise, that a defendant may stipulate away the government's presentation of proof, is undercut by substantial authority. See, e.g., United States v. O'Shea, 724 F.2d 1514, 1516 (11th Cir. 1984); United States v. Williams, 612 F.2d 735, 740 (3d Cir. 1979), cert. denied, 445 U.S. 934 (1980); United States v. Brickey, 426 F.2d 680, 686 (8th Cir.), cert. denied, 400 U.S. 828 (1970); Parr v. United States, 255 F.2d 86, 88 (5th Cir.), cert. denied, 358 U.S. 824 (1958). In any event, as discussed in the text, infra, at 7-8, it would still have been necessary for the government to prove intent and knowledge of the drugs even if petitioner's conditional stipulation had been accepted. /5/ Petitioner errs in claiming (Pet. 22-23) that a conflict exists between the holding in this case and United States v. Williams, 891 F.2d 921, 926 (D.C. Cir. 1989), where the court held that the sentence of a defendant who pleaded guilty solely to possessing an unregistered sawed-off shotgun (26 U.S.C. 5861(d)) could not be increased on the basis of his separate role as the manager of a crack house. Here, however, unlike Williams, petitioner's role-in-offense adjustment was based upon his role in supervising Owens during the same offense for which he was convicted. Contrary to petitioner's contention (Pet. 22), there is no legal requirement (and nothing in Williams to suggest) that Owens must have been formally charged as an aider-and-abetter under 18 U.S.C. 2 in order for Guidelines Section 3B1.1(c) to apply.