USCA1 Opinion

February 12, 1993

UNITED STATES COURT OF APPEALS
For The First Circuit
____________________
No. 92-1858
UNITED STATES OF AMERICA,
Appellee,
v.
OLGIVIE O'BRIEN WILLIAMS,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. John J. McNaught, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
James L. Sultan for appellant.
_______________

Robert L. Ullmann, First Assistant U.S. Attorney, with whom

__________________
John Pappalardo, United States Attorney, was on brief for appellee.
_______________
____________________
February 12, 1993
____________________

COFFIN, Senior Circuit Judge.

______________________________
Williams
possess

appeals
cocaine

his conviction
with intent

with intent to distribute,

drug trafficking crime.

Defendant Olgivie

on

charges

to distribute,

O'Brien

of conspiracy

to

possessing cocaine

and using or carrying a

firearm in a

We affirm.
I.

We begin

with a brief synopsis

of the facts,

taken in the

light most supportive of the verdict, United States v. Karas, 950

_____________
_____
F.2d 31, 35 (1st Cir. 1991), and the prior proceedings.
From December 1986

to April 1987,

Williams and eleven

co-

conspirators participated
Boston.
three

They operated
apartments.

in

a cocaine

a packaging center and retail

On

March 5,

1987,

outlet, the conspirators caught Herbert

building,

spying

on

them as

tallying their profits.

conspirators'
informer

bathtub.

bound

and

they

at the

Westmore Street

Beeche, a tenant in

were

weighing

Williams accused
to

kill

gagged

him.

Beeche

in

outlets in

the

cocaine and

That night, Beeche was summoned

apartment.

and threatened

conspirator

distribution scheme

Beeche of

to the

being an

Williams

and

placed

him

in the

and

co-

Williams then shot Beeche in the thigh.

Later that month, the Boston police executed search warrants

at

two of the conspirators'

small

quantity of

ammunition.

Williams
1988.1
Beeche

At

cocaine,

outlets.
drug

The

searches uncovered a

paraphernalia, firearms,

and

Eight of the conspirators ultimately were arrested.

and
trial,

six

co-conspirators were

the government

and Lisa Gray, a

tried

presented

girlfriend of one

jointly

in

the testimony

of

of the co-defendants

during part of

the conspiracy.

Both witnesses testified

the drug preparation and transactions

various

outlets

conspirators,

and

stated that

including

they had witnessed at

they

Williams,

about

had

seen

routinely

many of
carrying

the

the

and

displaying firearms during these transactions.

The
him.2

jury convicted

Williams

Williams raises two claims

trial was admitted

court

on all

three counts

on appeal:

improperly against him and

improperly limited

his

against

that testimony

at

that the district

cross examination

of

Gray.

We

discuss each issue in turn.

II.

Williams contends that the district court permitted the jury

to hear evidence from Gray of

past conduct that should have been

____________________
1

One of the six co-defendants received a severance during

trial and later pleaded guilty to the one count against him. All
five of the remaining co-defendants also were convicted, and four
of them appealed.
This court affirmed their convictions in
United States v. Walters, 904 F.2d 765 (1st Cir. 1990). Williams
_____________
_______
raises issues on appeal that were not advanced in Walters.
_______
Another conspirator, who was tried separately, also was convicted
and had his conviction affirmed.
United States v. Green, 887
_____________
_____
F.2d 25 (1st Cir. 1989).
2

Williams's trial counsel indicated at sentencing that he

file a notice of appeal but did not.
In 1991, Williams
a habeas corpus petition in district court, seeking, in
______ ______
effect, the right to appeal his conviction.
On June 11, 1992,
Williams's prior judgment was vacated and his original sentence
re-imposed. Williams's new counsel then filed a timely notice of
appeal.
would
filed

-3-

excluded

under Fed. R. Evid.

404(b).3

Gray

testified that, in

December 1986, Williams had told her that "he had killed a couple
of people."

Tr. Vol.

conference, the
explanation.

III at 66.

district

Following a

court admitted

Williams argues

that the

the

lengthy sidebar
evidence

sole purpose

without

of Gray's

testimony, especially in light of its repetition to the jury, id.

__

at 107, was to demonstrate that he had a bad character which made

him

more likely to

commit the drug-related

offenses charged in

the indictment.
This
404(b)

court

evidence.

(1st Cir. 1992);

Cir. 1988).

has adopted

two-part test

to

analyze Rule

United States v. Nickens, 955 F.2d 112, 123-24

_____________
_______
United States v. Oppon, 863
_____________
_____

F.2d 141, 146 (1st

First, the district court must determine whether the

evidence has any "special relevance" to a material issue, such as

motive,
must

intent, or plan.

determine,

Nickens, 955 F.2d at 123.

_______

pursuant to

____________________
3

Rule 404(b) provides:

Fed.

R. Evid.

403,4

If so, it

whether the

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order
to show action in conformity therewith.
It may,
however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident.
4

Rule 403 provides:

Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.
-4-

probative value
prejudice.

of the

Id. at
__

evidence

124.

to admit the evidence for

at 36; Walters, 904 F.2d
_______

outweighs the

risk of

unfair

We review the district court's decision

abuse of discretion.
at 768.

Karas, 950
_____

Having done so,

F.2d

we agree with

Williams that the evidence was admitted improperly.

At trial, the government
the statement for its
During

the sidebar

statement
"talk

virtually admitted that it offered

value as evidence of
conference, the

was relevant

about how bad they

because
are.

government argued

Williams
How

criminal propensity.

and a

that the

co-conspirator

tough they are."

Tr. Vol.

III. at 70.

In essence, the government offered the

that the jury would

to

be a

"other

infer that, because Williams was

murderer, he

cocaine

was more

trafficker who uses

acts"

evidence so

evidence

likely than

guns in his

to demonstrate

specifically forbidden by Rule 404(b).

or claimed

not also

business.
criminal

to be

The use of

propensity

is

Accordingly, the district

court erred in admitting the statement.

On appeal,

the

government characterizes

the

evidence

Williams's prior wrongdoing as evidence of his plan to

of

establish

and operate a cocaine distribution business by means of his modus

_____
operandi
________

of

intimidation.

Gray earlier

had

testified

that

Williams unsuccessfully had offered her mother double rent for an

apartment

located

government

claims

near
that

the

Westmore

Williams's

Street

outlet.

revelation that

he

The
was

murderer is admissible under Rule 404(b) to illustrate his use of

-5-

both

"carrot" and "stick" to

sell cocaine.

locate an apartment

from which to

Neither

the law

nor the

record supports

argument.

Evidence

404(b) to

prove

Miller, &

E.H. Cooper, Federal Practice and Procedure ("Wright &

______________________________

Miller")

5246, at

in

this case.5

of modus operandi
_____ ________

the government's

identity, see
___

is admissible under

generally 22
_________

C.A. Wright,

512-13 (1978), but identity is

Moreover, at

trial,

Rule

A.R.

not disputed

the government

made

no

effort to link the "carrot" and the alleged plan to the "stick."
The manner

in which the government

conducted Gray's direct

examination manifests the disjunction between the attempt to rent

an apartment

from her mother

After eliciting

testimony

regarding

government switched to a line

Street outlet.

and Williams's statement

the

failed

to Gray.

attempt,

of questions regarding the

the

Nelson

It next solicited the in-court identification of

two co-conspirators.

Only

then did it begin the

exploration of

Williams's and some of the other conspirators' backgrounds, which

produced

the

other-acts

challenged statement, the

attempt to

evidence.

Having

government did not

rent an apartment.

Nor

had made the statement to intimidate

introduced

the

connect it to

the

did it suggest that Williams

Gray or her mother or

that

____________________

5 Even were identity disputed, the government's position is

untenable.
For conduct to be characterized as a modus operandi,
_____ ________
it generally must be "`so unusual and distinctive as to be like a
signature.'"
22 Wright & Miller at 513 (quoting C.T. McCormick,
Evidence
190, at 449 (1972)).
On this record, neither
________
Williams's boast of committing or actual commission of murder is
so distinctive a device as to prove his identity as the drug

trafficker in this case.

-6-

Gray's mother even knew of the statement.

Indeed, the government

did not place the evidence into any context, other than temporal,
related to the development or operation of the drug conspiracy.
The

finding

inquiry.

of

error

does

not,

however,

conclude

our

We still must determine whether the error was harmless.

Karas, 950
_____

F.2d at 37-38.

We hold that it was.

Having reviewed

the entire record and considered the probable impact of the error
on

the minds of the

jurors, we conclude

"`with fair assurance,

after pondering all that happened without stripping the erroneous

action

from the

whole,

that

the

substantially swayed by the error.'"

[jurors'] judgment

was

United States v. Burke, 948

_____________
_____

F.2d 23, 27 (1st Cir. 1991) (quoting United States v. Mazza,

_____________
_____
F.2d

1210, 1216-17 (1st Cir.

not

792

1986) (quoting Kotteakos v. United

_________
______

States, 328 U.S. 750, 765 (1946))).

______
Williams's possible

status as a murderer was offered to the

jury through other properly

admitted evidence.

Beeche testified

without
a

objection that he, too, knew that Williams claimed to be

murderer.

Gray

threatening
sales

to kill

began to

conclude

testified that
a

come

she

had overheard

co-conspirator when
up short.

money from

Under the

that the admission of Williams's

Williams

cocaine

circumstances,

we

statement to Gray had

little prejudicial impact on the jury's judgment.

Furthermore,
Williams's

the record

contains ample

evidence to

prove

involvement in a drug conspiracy and use of a firearm

in connection with it.

Beeche testified that Williams

in the thigh for being an informer.

shot him

Gray testified that Williams

-7-

was responsible for delivering cocaine to the retail outlets

collecting the

proceeds.

Both Gray

and Beeche

and

testified that

Williams routinely was armed while cocaine was being packaged and
sold.

A videotape

co-conspirator
cocaine.

In

unlikely that

portrayed Williams brandishing a gun

counted
light

money

of this

on

kitchen

evidence,

counter

we think

the improperly admitted evidence

it

while a

bearing

extremely

swayed the jury.

See Mazza, 792 F.2d at 1221 (fair assurance standard satisfied if

___ _____
it is highly probable

that the challenged action did

not affect

the judgment).
Because
harmless,

we

we

find

do not

the

admission of

reach the

this

question

evidence

of whether

to

be

the court

committed an abuse

of discretion in admitting the evidence under

Rule

950 F.2d at

403.

Karas,
_____

Bermudez, 857 F.2d

________
to review the

50, 54 (1st Cir. 1988).

court's failure to

especially where trial counsel

States v. De La Cruz, 902
______
__________
general

38; United States v. Hernandez______________

__________

rule that

Nor is it necessary

issue a limiting

instruction,

did not request one.

See United
___ ______

F.2d 121, 124 (1st Cir. 1990) (stating

failure of

trial court

sua sponte
___ ______

to issue

limiting instruction is not reversible error).

Our finding of harmless error does not lessen our continuing

conviction that the government and the courts must exercise great
caution in

handling

evidence of

statement was

unrelated to the

inflammatory.

To infect

other

bad acts.

offenses charged and

and jeopardize a prosecution

evidence is unwise and unjustifiable.

-8-

Williams's

was highly

with such

It comes with ill grace to

introduce marginally justifiable evidence

use by

arguing that there was so much evidence of guilt that any

error would be harmless.

to

and then to defend its

whether

purpose

other-acts

that

prejudice.6

Courts, in turn, should remain vigilant

evidence

substantially

serves

outweighs

Hernandez-Bermudez, 857
__________________
wish to issue

use

evidence, Oppon,
_____

404(b)

the

risk

F.2d at 54.

courts routinely may

of Rule

a genuinely

probative
of

At

unfair

a minimum,

an instruction limiting
863 F.2d

at

147, or

the

to

ascertain whether defense counsel desires one.

III.
Defendant
limiting

also contends

his cross

that the

examination

district court

of Gray.

Defendant

inquire into

Gray's knowledge regarding the

of

and

cocaine

her

brother's

alleged

erred in

sought to

preparation and use

cocaine

dealing

to

demonstrate that she was induced to cooperate with the government

to protect herself or her brother.
The

Sixth

Amendment

criminal defendant
him.

An

the right

essential component

prerogative
motives

to

to

establish the

the

Constitution

to confront the
of this right
biases,

308, 315-17 (1974);

witnesses against
is the

defendant's

prejudices, or

ulterior

examination.

Davis v.
_____

United States v.
_____________

Kepreos,
_______

of these witnesses through cross

Alaska, 415 U.S.

______

guarantees

____________________
6

We recognize,

however, that express

findings regarding

the challenged evidence are not necessary so long as the record

indicates that the district court did weigh the balance between
the probative value and the prejudicial effect.
See United
___ ______
States v. Santagata, 924 F.2d 391, 394 (1st Cir. 1991) (citing De
______
_________
__
La Cruz, 902 F.2d at 123 n.1).
_______
-9-

759 F.2d 961,

965 (1st Cir. 1985).

The trial court, therefore,

must permit sufficient cross examination

make

discriminating

motivations
289

appraisal

of the witness.'"

(1st Cir. 1982) (quoting

to enable the jury "`to

of the

possible

Niziolek v. Ashe,
________
____
United States v.
_____________

biases

and

694 F.2d 282,

Tracey, 675 F.2d

______

433, 437 (1st Cir. 1982)).

So long as
retains

it satisfies this

wide discretion

prejudice, confusion
inquiry

into

1136, 1139 (1st

evidence before

impose reasonable

relevant

issues.

it bearing

on the

avoid

repetition, and
Delaware
________

679 (1986); United States v.

_____________
Cir. 1986).

court

limits to

of the issues, harassment,

marginally

Arsdall, 475 U.S. 673,

_______
F.2d

to

standard, the district

"If the jury

v.

Van
___

Twomey, 806
______

has sufficient

witness'[s] bias, the

court

need

not permit unending

touching upon

excursions into each

veracity."

Kepreos, 759
_______

and every matter

F.2d

at 965

court

has

(citation

omitted).
To

establish

that

the

district

discretion, the defendant must

were
has

clearly prejudicial.
not carried

decision

this

to exclude

abused

its

show that the limitations imposed

Twomey,
______

burden.

806 F.2d at

We,

1140.

therefore, find

certain testimony

fell within

Williams
that

the

the court's

discretion.
The district

court allowed

all defense

Williams's, ample opportunity to undermine

probing
Vol IV

her bias and motive

at 30-158.

counsel, including

Gray's credibility by

for testifying.

See generally Tr.

___ _________

The court did not preclude any defendant from

-10-

exploring Gray's
only

a few questions of

not harm
jury

involvement with

marginal relevance.

defendant because the relevant

through

counsel.

the cocaine trade

the interrogation

by

but barred

Its decisions did

information reached the

his and

the

other defense

The
Gray's

intensive
unsavory

cocaine

and

brother's drug

examination

connection

use, her

trafficking,

cross

sale of
her

with

narcotics.

marijuana,

involvement

trafficking.

thoroughly

into

exposed

her

her knowledge

with and

Gray

It

delved

of cocaine

knowledge

admitted that

of

she had

her

been

arrested in December 1987 at her mother's house for possession of

cocaine, that a search of the house uncovered cocaine, marijuana,

drug paraphernalia,

and a

gun, and

that the charges

from this arrest subsequently were dismissed.

resulting

She also admitted

that she was testifying under immunity from the government.

Gray's cross examination thus

provided an extensive "record

from which to argue why [she] might have been biased or otherwise
___
lacked

that degree

trial."
this

impartiality expected

Davis, 415 U.S.

_____

record,

argued

of

various

plausibly

trafficking

defense

that

ring and

at 318

Gray

that her

stemmed from her desire to

of

a witness

(emphasis in original).
counsel,
was

including

implicated

cooperation with

in

at

From

Williams's,
a

cocaine

the government

protect herself from prosecution

and

to divert police attention from that drug ring.

The jury had more than enough information to appraise Gray's

credibility.

Accordingly, we find that the exclusion of certain

-11-

questions

about Gray's

familiarity

with cocaine

and with

her

brother's drug trade was not an abuse of the court's discretion.

Affirmed.
________
Concurrence follows.

-12-

TORRUELLA,
analysis

Circuit Judge
_____________

(Concurring).

and result of this case.

express my exasperation at
government prosecutors.

I agree

with the

I write separately simply to

the repeated abuse of Rule

404(b) by

-13-