USCA1 Opinion

United States Court of Appeals

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

No. 96-1070

UNITED STATES,

Appellee,

v.

ALBERTO MORLA-TRINIDAD,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

___________________

____________________

Before

Selya and Stahl, Circuit Judges,

______________
and Torres,* District Judge.
______________

____________________

Stephen H. Mackenzie on brief for appellant.

____________________
Jay P. McCloskey,
________________
Assistant United

United States Attorney, Margaret D. McGaugh

____________________

States Attorney,

and George T. Dilworth, Assist

___________________

United States Attorney, on brief for appellee.

____________________

November 8, 1996
____________________

____________________

*Of the District of Rhode Island, sitting by designation

STAHL, Circuit Judge.

STAHL, Circuit Judge.

jury convicted defendant-

_____________

appellant Alberto Morla-Trinidad of conspiring

and possess with intent to

Trinidad now seeks

court erred when

testimony

with

distribute crack cocaine.

a new trial,

claiming that the

it permitted the prosecutor

cross-examination

concerning a prior

to distribute

and

Morla-

district

to impeach his

rebuttal

evidence

arrest of the defendant in which evidence

was illegally obtained.

We affirm.

I.
I.
__

Background
Background
__________

On

September 4,

1994, police in

Lewiston, Maine,

stopped a vehicle in which Morla-Trinidad was a passenger and

Melvin

"Bubba" Lagasse

("Bubba

Lagasse")

was the

driver.

Incident to

that stop,

the police officers

searched Morla-

Trinidad for weapons and discovered cash and small amounts of

marijuana and

crack cocaine.

Subsequent

state drug charges

against Morla-Trinidad were dismissed after a Maine

Court judge

ruled that the officers

Superior

lacked justification to

search him and suppressed the seized evidence.

Pursuant

further

investigation,

federal

arrested Morla-Trinidad in Lewiston on

April 18, 1995.

same

one-count

day,

charging

grand

jury returned

Morla-Trinidad and Ruth

traffick drugs

from

July

to

agents

That

indictment

Peabody with conspiring to

December 1994

in

Maine

and

-22

Massachusetts.

Peabody

eventually

pleaded

guilty

not

challenge

while

Morla-Trinidad proceeded to trial.

II.
II.
___

Trial Events
Trial Events
____________

Because

Morla-Trinidad

does

the

sufficiency of the evidence,

evidence

in

claimed

a neutral

error.

manner

show that, throughout

Maine,

to provide

context

See United States v. Procopio,

___ ______________
________

23-24 (1st Cir. 1996).

traveled

we describe the pertinent trial

between

to manage

for the

88 F.3d 21,

Generally, the government sought

the indictment period,

Lawrence,

sales of

Massachusetts,

crack cocaine

to

Morla-Trinidad

and

Lewiston,

out of

Peabody's

Lewiston residence.

In its case in

witnesses who testified

Trinidad.

chief, the government presented six

about their involvement with

Raul Baez testified that

Morla-

Morla-Trinidad initially

sold drugs for him in Lawrence, but then became interested in

selling in

Lewiston, another locale in

which Baez conducted

his drug business.

Baez

Morla-Trinidad's offer

business,

Peabody;

he did

to

stated that

to become

a partner in

drive Morla-Trinidad

Baez's

dismay,

although he

rejected

his Lewiston

to Lewiston

Morla-Trinidad then

to meet

began

to

compete with him in the Lewiston drug trade.

Most of the other witnesses testified that they saw

Morla-Trinidad

in Peabody's

residence

-33

(where

they

bought

crack

cocaine), and/or

that they

bought the

from Morla-Trinidad at that location.

In particular, Marlane

Driggers testified

that she first met

1994

at

in Lawrence,

which

apartment in Lewiston.

200

it

in

they sold

stayed

she

drove

on that trip,

Lewiston.

thereafter, she

Morla-Trinidad in May

Driggers

She

in their living room

to

her

at least

intending that she

testified

moved into Peabody's apartment

crack cocaine.

him

She stated that he carried

bags of crack cocaine

sell

time

drug directly

that

soon

out of which

indicated that Morla-Trinidad

at least three

days a week and

that, two or three times during each of those days, she would

obtain from

him a batch

of twenty bags of

crack cocaine to

sell.

Michael

Lagasse,

told

Lagasse testified that

him

that

Peabody's residence.

Peabody's

that he

operated

out

stated that Morla-Trinidad

of

was at

residence at least two or three times per week and

bought crack cocaine many

at that location.

Poulin,

He

Morla-Trinidad

his brother, Bubba

Three other

and Karla

purchased crack

they either

Schools,

times from Morla-Trinidad

witnesses, Bruce Moody, Scott

testified

cocaine out of Peabody's

that they

regularly

apartment and that

bought directly from Morla-Trinidad

or they saw

him there when they bought from Peabody.

Trinidad

There

was

testimony

would

exchange crack

to

the

cocaine

effect

that Morla-

for travel

between

-44

Lawrence

and Lewiston.

Driggers

Morla-Trinidad from Lawrence to

testified that

she drove

Lewiston at least five times

and that various people, including Bubba Lagasse, Peabody and

Schools, also drove

Moody

testified

him to and

that

he

from Lawrence and

drove

Morla-Trinidad

Lewiston.

twice

to

Lawrence from Maine.

Schools testified that on two occasions

she picked up Morla-Trinidad

in Lawrence and transported him

to Lewiston, where, she said, he would stay for about a week.

On the

second

day of

testified in his own defense.1

Trinidad's

direct examination

"Alberto, yesterday there were

directly

about your

his

trial,

Morla-Trinidad

Defense counsel began Morla-

with the

following question:

six witnesses that

supposed involvement

in a

testified

crack ring.

We'll go through this list and ask you whether you know these

people

in any

questions,

way."

In

response to

Morla-Trinidad testified:

counsel's subsequent

"Of the witnesses who

testified yesterday, I can assure you, I can swear before God

that I have only seen two of them, [Driggers and Baez]."

As to Driggers, he testified that the first time he

saw her was in prison after his April 1995 arrest.

that the

events to which Driggers

and that

he never gave or sold crack cocaine

He stated

testified "didn't happen"

to her.

As to

____________________

1.

Before Morla-Trinidad

personally

informed

took the stand, the district court

him that,

defense, the government would

examine him and

if he

testified in

his own

have the opportunity to cross-

might be permitted to introduce

of the September 1994 arrest.

-55

the subject

Baez,

he

stated that,

although

he had

seen

Baez several

times, he neither sold crack cocaine for him nor knew that he

was

"involved

Morla-Trinidad

in this

kind

denied

knowing

of

business."

either

Bubba

Additionally,

Lagasse

or

Peabody, his indicted co-conspirator.

Concerning

his

whereabouts during

the indictment

period (July to December 1994), Morla-Trinidad testified that

he

split his time between New York

that,

during this

time,

business of promoting

When

he was

and Lawrence.

devoted

Hispanic music in

He stated

full-time to

the New York

his

area.

asked if he went to Maine during the indictment period,

Morla-Trinidad replied

see his

attorney.

associates

that he

When

in Lewiston,

traveled there only

asked if

he

he

had any

replied that

he

once to

friends

had a

or

"woman

friend" there.

During cross-examination by the

Trinidad

that he

period

maintained that he

did not know

prosecutor, Morla-

Bubba Lagasse and

traveled to Lewiston only once during the indictment

-- to

however, he

meet only

with his

acknowledged that

again during that time,

attorney.

he traveled to

When pressed,

Lewiston once

again to see his attorney,

and that

he also once went to a

fast food restaurant near Lewiston to

meet his woman friend.

The prosecutor then inquired, "And on

any of these occasions that

you went to Lewiston in

see your lawyer . . . did you possess crack cocaine?"

1994 to

-66

At

this

point,

defense

sidebar conference was held.

would

lead

Lewiston

seized),

to

further

arrest

counsel

(during

argued

counsel objected

and

Anticipating that the question

inquiry

which

that

into

the

evidence

the

September

was

subject

1994

unlawfully

was

"very

prejudicial"

and, in

conspiracy.

The

certainly

any event,

irrelevant to

district court

relevant

to the

the charged

disagreed, stating,

question

of

"It's

conspiracy."

The

prosecutor then voiced his intention to introduce the subject

of

the September

contending that

1994

the

arrest.

Defense counsel

previously-suppressed evidence

objected,

was

of

little probative value and unduly prejudicial.

The

district

court

ruled

in

favor

of

the

government, finding that, although the tainted evidence would

be inadmissible as part of the government's case in chief, it

was

admissible to impeach

Morla-Trinidad's testimony.

court observed:

This defendant has taken the stand.

denied

knowing

Bubba

Lagasse,

He's
he

The

certainly

denied having

in the

. .

any involvement

crack cocaine

conspiracy

during July to December [1994].

And so this is material and relevant
evidence
false.

to show

that his

[T]he suppression

longer relevant.

testimony is
issue [is] no

So far as the relevance

issue is concerned,

this bears

directly

on his testimony.

The court acknowledged that the evidence was prejudicial, but

found that it was not unfairly so.

-77

Subsequently,

the

following

exchange took

place

before the jury with Morla-Trinidad on the witness stand:

Q.

[By the

when

you

prosecutor]
visited

Mr.

Lewiston,

Trinidad,
Maine,

in

1994, did you ever possess crack cocaine?

A.

Never, sir.

Q.

Never once?

A.

Never.

The prosecutor then elicited

that he was stopped

Lewiston police;

not know

denied

Morla-Trinidad's acknowledgment

in September 1994, with another

man, by

Morla-Trinidad stated, however, that he did

the other man

as "Bubba Lagasse."

Morla-Trinidad

that the police found a plastic baggie in his pocket,

then stated that he

did not know the baggie

contained crack

cocaine.

He did acknowledge that the

police discovered some

$1,800 in his possession.

In its

police officer

rebuttal

case,

to testify

drugs.

government

about the events

September 1994 arrest, including

and

the

The government

called

surrounding the

the illegal seizure of cash

also called a

state chemist who

identified the seized drugs as crack cocaine.

The drugs were

admitted into evidence.

The

conspiracy

jury convicted

Morla-Trinidad of

the charged

and the district court subsequently sentenced him

to 324 months' imprisonment.

This appeal ensued.

III.
III.
____

Discussion
Discussion

__________

-88

Morla-Trinidad contends that the impeachment of his

testimony

by the cross-examination

concerning the tainted

September 1994 arrest

and subsequent testimony

evidence obtained at the

time of the

constituted prejudicial error

because

his testimony on direct examination neither "opened the door"

to this

topic nor reasonably

cross-examination.

suggested inquiry

He argues

into it

that his testimony

on

on direct

regarding his alleged drug activities concerned only Driggers

and Baez

and did

not fairly

implicate

the September

1994

arrest.

A. Standard of Review
______________________

Determining

the scope

of

cross-examination is

matter within the district court's discretion and will not be

disturbed absent

abuse.

United States v. Cassiere,

______________
________

1006, 1019-20 (1st Cir. 1993); see O'Connor v.

___ ________

Co., 353
___

F.2d 324,

326 (1st Cir.

4 F.3d

Venore Trans.
_____________

1965) (extent to

which a

court allows counsel to

examination

will not

test witness's credibility on cross-

be

disturbed absent

"plain abuse

of

discretion").

B. Use of Tainted Evidence to Impeach

______________________________________

It

violation

limited

is

of the

purpose

well-settled

that

Fourth Amendment can

of

impeaching

-99

evidence

obtained

be admitted

testifying

in

for the

criminal

defendant's credibility.2

62,

65 (1954)

"can

turn

Government's

and provide

Walder
______

v. United States, 347 U.S.

_____________

(rejecting notion

the

illegal

method by

possession was

himself with

his untruths").

that a

which

criminal defendant

evidence

obtained to his

a shield against

in

the

own advantage,

contradiction of

The so-called "impeachment exception" to the

exclusionary

rule reflects

a balance

of values

underlying

that

See
___

Illinois,
________

493 U.S.

307, 311-12

(1990)

rule.

James v.
_____

(acknowledging that the

truth-seeking function

of a

criminal trial is limited by the goal of discouraging lawless

searches

testify

the

door

and seizures).

Thus, while defendants are "free to

truthfully on their own behalf . . . without opening

to impeachment,"

id.
___

at

314, an

"affirmative[]

resort to perjurious testimony" may be exposed by impeachment

with illegally obtained evidence, Walder, 347 U.S. at 65.3

______

When a

defendant

opens the

through his statements on direct,

establish that

his testimony is

door

to

impeachment

the government may try

not to be

to

believed through

cross-examination and the introduction of evidence, including

____________________

2.
not,

Tainted evidence illegally obtained from a

however, be used to

defendant may

impeach trial witnesses other than

the testifying defendant.

James v. Illinois,
_____
________

493 U.S. 307,

313 (1990).

3.

This

particular

mode of

impeachment

falls

within the

general category

of "impeachment by contradiction," which is

not specifically

treated in

United States v.
______________
1996),

but

is

the Federal Rules

Cudlitz, 72
_______
governed

by

F.3d 992,
common-law

of Evidence,

996 n.1

(1st Cir.

principles, United
______

States v. Perez-Perez, 72 F.3d 224, 227 (1st Cir. 1995).

______
___________

-1010

tainted

See
___

evidence,

Oregon v.
______

that contradicts

Hass, 420
____

U.S.

the

direct testimony.4

714, 716-17,

721-22 (1975);

Harris v. New York, 401 U.S. 222, 223-225 (1971); Walder, 347
______
________
______

U.S. at 63, 65.

When the assertedly false testimony is first

given

on cross-examination,

gauge

how closely

matters

explored

however, the

trial

the cross-examination

during

impeachment exception

direct

is connected

before

invoking

to the exclusionary rule.

States v. Havens, 446 U.S. 620, 626 (1980).

______
______

In Havens, the Supreme Court held:

______

a defendant's statements made in response

to

proper

suggested
examination

cross-examination
by
are

the

reasonably

defendant's
subject

to

judge must

direct

otherwise

with

the

See United
___ ______

proper

impeachment,

albeit by

evidence

that has been illegally obtained and that

is

inadmissible

on

the

government's

direct case, or otherwise, as substantive

evidence of guilt.

____________________

4.

Here, Morla-Trinidad's travel to Maine and his possession

of cocaine
i.e.,
____

during that travel

matters that

United States v.
_____________
Typically, only
impeached (by

are of

consequence to

Andujar, 49
_______

F.3d 16, 26

this case.
(1st Cir.

non-collateral matters such as

contradiction) with

Perez-Perez, 72
___________
F.2d

are "non-collateral" matters,

F.3d at

(1990)

(suggesting

collateral issue is
defendant opens
_________
States v. Havens,

that extrinsic

to that

See
___
636

But see Charles A. Wright &

___ ___

permissible where a

the door

these may be

v. Pisari,
______

Victor J. Gold, Federal Practice and Procedure

______________________________
49

1995).

extrinsic evidence.

227; United States

_____________

855, 859 (1st Cir. 1981).

See
___

contradiction

on

testifying criminal
________

issue);

446 U.S. 620, 624-25

6096 at 546-

see also
___ ____

United
______

(1980) (stating that

______

______

impeachment

of a defendant

with illegally obtained evidence

is constitutionally

permitted for non-collateral as

collateral matters,

but not

discussing the effect

well as
of other

evidentiary limitations).

-1111

Id. at 627-28.
___

Thus, the government may not

"smuggle[] in"

the impeaching opportunity with a cross-examination

that has

"too tenuous a connection with any subject opened upon direct

examination."

Batista,
_______

U.S.

Id. at 625;
___

see also United States v. Ruiz___ ____ ______________

_____

956 F.2d 351, 352 n.1 (1st Cir.), cert. denied, 506
_____ ______

834 (1992).

Rather,

been "suggested to a

the questions on

reasonably competent cross-examiner" by

the defendant's direct testimony.

Whether

"reasonably

events

specific.

denial

or not

suggests"

involving

of

reasonably

the

inquiry

tainted

involvement

suggested

Havens, 446 U.S. at 626.

______

defendant's direct

on

evidence

See, e.g., Havens,

___ ____ ______

materials found

cross must have

with

cross-examination

is

446 U.S. at

the

testimony

necessarily

for concealing the drugs);

case

628 (defendant's

concealment

cross-examination

about

about

of

drugs

specific

United States v.
_____________

Brandon, 847 F.2d 625, 628-29 (10th Cir.) (denial of bringing

_______

of drugs

of

into motel room triggered

defendant's

bag,

found

in

inquiry and introduction

room,

bearing

traces

of

cocaine), cert. denied, 488 U.S. 973 (1988); United States v.

_____ ______
_____________

Grubbs,
______

776 F.2d 1281, 1286-87 (5th Cir. 1985) (assertion of

legitimacy of insurance services "opened door" to impeachment

with conversation implicating illegitimacy of business deal);

United States v. Palmer, 691

______________
______

(assertion

purposes

that

cocaine

permitted

F.2d 921, 922

was

used

impeachment

-1212

with

for

(9th Cir. 1982)

legitimate

personal-use

dental

cocaine

paraphernalia); see
___

795,

direct

also United States v.

____ _____________

798 (8th Cir.) ("By

examination,

encouraged

as

alternatives

LeAmous, 754 F.2d

_______

painting a picture

to

protector

of

prostitution,

of himself, on

young

the

invited cross-examination concerning particular

girls

who

defendant

instances of

his conduct to the contrary during the relevant time frame.")

(reviewing

case

not

involving

tainted

evidence),

cert.
_____

denied, 471 U.S. 1139 (1985).

______

Here,

had seen

and, with

Morla-Trinidad testified

only two of the

regard

specifically

September 1994 arrest.

that,

those

with

to Maine only

(Baez

and

Driggers),

activity.

He

codefendant, Peabody,

whom he

was

he

also

or Bubba

stopped during

the

Morla-Trinidad also stated on direct

during the period of

most of his time

two

drug-related

his indicted

the person

that he

government's witnesses previously,

denied any

denied knowing

Lagasse,

to

on direct

the charged conspiracy, he spent

in Massachusetts and New York

once to see his attorney.

and traveled

He maintained that

his only associate in Lewiston was a "woman friend."

Morla-Trinidad's

testimony

could

be

reasonably

construed

as

both

witnesses' testimony

crack cocaine

contradiction

and a denial of any

ring underlying

of

the

government

involvement in the

the charged conspiracy.

See
___

Havens, 446 U.S. at 628 (reasoning that defendant's testimony

______

"could easily

be understood

as a

-1313

denial of any

connection

with

[incriminating

evidence]

[government witness's]

Trinidad

brought

concedes as

attention

exploring,

traveled

on

to

and

as a

testimony").

much,

We

that the

to Morla-Trinidad's

cross-examination,

Maine, with

whom he

when

met

contradiction

think, and

of

Morla-

prosecutor reasonably

direct

and

testimony by

how

there, and

often

he

for what

purposes.

Morla-Trinidad's

implied a denial that

direct

on cross-examination, "when

you ever

also

he ever traveled to Lewiston

crack cocaine for distribution.

1994, did

testimony

carrying

Thus, the disputed question

you visited Lewiston,

possess crack cocaine?",

suggested by that implied denial.

clearly

Maine, in

was reasonably

His subsequent categorical

denial of

proper

the foregoing question subjected

impeachment,

including

further cross and the

seized

982

the

4 (1st

probing

questions

on

rebuttal testimony about the illegally

crack cocaine and cash.

F.2d 1,

his testimony to

See United States v. Wood,

___ ______________
____

Cir. 1992)

(explaining that

the trial

judge enjoys discretion in deciding whether to admit rebuttal

evidence).

Morla-Trinidad

also

suggests that

the impeaching

evidence was unfairly prejudicial and that the district court

abused its

considerable discretion

when admitting it.

F.3d

1, 5

(1st.

under Fed. R.

Evid. 403

See Espeaignnette v. Gene Tierney Co., 43

___ _____________
________________

Cir. 1994)

(noting court's

"considerable

-1414

latitude"

value

in

determining the

versus unfair effect).

of undoubted probative

relative weight

We disagree.

that

the danger

information

The evidence was

value to Morla-Trinidad's credibility

on issues material to the case.

alleviated

of probative

Moreover, the district court

of unfair

about

the

prejudice by

seized

marijuana

(1) insuring

from

the

September

(2)

1994 arrest would not be conveyed to the jury, and

instructing

that it was

the jury,

to use

on the

government's suggestion,

the disputed evidence

only to

consider

Morla-Trinidad's credibility, not as substantive proof of the

crime

charged,5 see United States v. Tejada,

___ ______________
______

214 (1st Cir. 1992)

974 F.2d 210,

(finding no abuse in trial

judge's Rule

403 balancing, "particularly in light of the careful limiting

instruction given by the district court").

In sum, we conclude that the district court did not

abuse its discretion in

permitting the government to impeach

Morla-Trinidad's testimony with questions about the September

1994

arrest

and the

Thus, we do not

tainted

evidence obtained

reach Morla-Trinidad's additional

therefrom.

arguments

that the evidence

was also inadmissible under Fed.

R. Evid.

404(b), and that the asserted error was not harmless.

____________________

5.

In an

apparent misreading

of Havens, the
______

government on

appeal asserts that this limiting instruction was unnecessary

and

suggests

substantive
Havens,
______

that the
purposes.

evidence

could have

The assertion is

been

used for

clearly wrong.

See
___

446 U.S. at 627-628; see also James v. Illinois, 493

___ ____ _____
________

U.S. at 313 n.3 (approving similar instruction).

-1515

IV.
IV.
___

Conclusion
Conclusion
__________

For

the

reasons

stated

judgment of the district court.

above,

we

affirm
______

the

-1616