985 F.

2d 634
37 Fed. R. Evid. Serv. 1111

UNITED STATES of America, Appellee,

v.
Olgivie O'Brien WILLIAMS, Defendant, Appellant.
No. 92-1858.

United States Court of Appeals,

First Circuit.
Argued Dec. 7, 1992.
Decided Feb. 12, 1993.

James L. Sultan, Boston, MA, for defendant, appellant.

Robert L. Ullmann, First Asst. U.S. Atty., with whom A. John Pappalardo,
U.S. Atty., Boston, MA, was on brief, for appellee.
Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and
CYR, Circuit Judge.
COFFIN, Senior Circuit Judge.

Defendant Olgivie O'Brien Williams appeals his conviction on charges of

conspiracy to possess cocaine with intent to distribute, possessing cocaine with
intent to distribute, and using or carrying a firearm in a drug trafficking crime.
We affirm.

I.
2

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 in a cocaine distribution scheme in Boston. They operated a
packaging center and retail outlets in three apartments. On March 5, 1987, at

the Westmore Street outlet, the conspirators caught Herbert Beeche, a tenant in
the building, spying on them as they were weighing cocaine and tallying their
profits. That night, Beeche was summoned to the conspirators' apartment.
Williams accused Beeche of being an informer and threatened to kill him.
Williams and a co-conspirator bound and gagged Beeche and placed him in the
bathtub. Williams then shot Beeche in the thigh.
4

Later that month, the Boston police executed search warrants at two of the
conspirators' outlets. The searches uncovered a small quantity of cocaine, drug
paraphernalia, firearms, and ammunition. Eight of the conspirators ultimately
were arrested.

Williams and six co-conspirators were tried jointly in 1988.1 At trial, the
government presented the testimony of Beeche and Lisa Gray, a girlfriend of
one of the co-defendants during part of the conspiracy. Both witnesses testified
about the drug preparation and transactions they had witnessed at the various
outlets and stated that they had seen many of the conspirators, including
Williams, routinely carrying and displaying firearms during these transactions.

The jury convicted Williams on all three counts against him. 2 Williams raises
two claims on appeal: that testimony at trial was admitted improperly against
him and that the district court improperly limited his cross examination of
Gray. We discuss each issue in turn.

II.
7

Williams contends that the district court permitted the jury to hear evidence
from Gray of past conduct that should have been 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. III at 66. Following a lengthy sidebar
conference, the district court admitted the evidence without explanation.
Williams argues that the sole purpose 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 court has adopted a two-part test to analyze Rule 404(b) evidence. United
States v. Nickens, 955 F.2d 112, 123-24 (1st Cir.1992); United States v. Oppon,
863 F.2d 141, 146 (1st Cir.1988). First, the district court must determine
whether the evidence has any "special relevance" to a material issue, such as
motive, intent, or plan. Nickens, 955 F.2d at 123. If so, it must determine,

pursuant to Fed.R.Evid. 403,4 whether the probative value of the evidence

outweighs the risk of unfair prejudice. Id. at 124. We review the district court's
decision to admit the evidence for abuse of discretion. Karas, 950 F.2d at 36;
Walters, 904 F.2d at 768. Having done so, we agree with Williams that the
evidence was admitted improperly.
9

At trial, the government virtually admitted that it offered the statement for its
value as evidence of criminal propensity. During the sidebar conference, the
government argued that the statement was relevant because Williams and a coconspirator "talk about how bad they are. How tough they are." Tr. Vol. III. at
70. In essence, the government offered the evidence so that the jury would infer
that, because Williams was or claimed to be a murderer, he was more likely
than not also to be a cocaine trafficker who uses guns in his business. The use
of "other acts" evidence to demonstrate criminal propensity is specifically
forbidden by Rule 404(b). Accordingly, the district court erred in admitting the
statement.

10

On appeal, the government characterizes the evidence of Williams's prior

wrongdoing as evidence of his plan to 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 near the Westmore Street outlet. The government
claims that Williams's revelation that he was a murderer is admissible under
Rule 404(b) to illustrate his use of both "carrot" and "stick" to locate an
apartment from which to sell cocaine.

11

Neither the law nor the record supports the government's argument. Evidence of
modus operandi is admissible under Rule 404(b) to prove identity, see generally
22 C.A. Wright, A.R. Miller, & E.H. Cooper, Federal Practice and Procedure
("Wright & Miller") 5246, at 512-13 (1978), but identity is not disputed in
this case.5 Moreover, at trial, the government made no effort to link the "carrot"
and the alleged plan to the "stick."

12

The manner in which the government conducted Gray's direct examination

manifests the disjunction between the attempt to rent an apartment from her
mother and Williams's statement to Gray. After eliciting testimony regarding
the failed attempt, the government switched to a line of questions regarding the
Nelson Street outlet. It next solicited the in-court identification of two coconspirators. Only then did it begin the exploration of Williams's and some of
the other conspirators' backgrounds, which produced the other-acts evidence.
Having introduced the challenged statement, the government did not connect it
to the attempt to rent an apartment. Nor did it suggest that Williams had made

the statement to intimidate Gray or her mother or that 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.
13

The finding of error does not, however, conclude our inquiry. 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 [jurors'] judgment was not substantially swayed
by the error.' " United States v. Burke, 948 F.2d 23, 27 (1st Cir.1991) (quoting
United States v. Mazza, 792 F.2d 1210, 1216-17 (1st Cir.1986) (quoting
Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed.
1557 (1946))).

14

Williams's possible status as a murderer was offered to the jury through other
properly admitted evidence. Beeche testified without objection that he, too,
knew that Williams claimed to be a murderer. Gray testified that she had
overheard Williams threatening to kill a co-conspirator when money from
cocaine sales began to come up short. Under the circumstances, we conclude
that the admission of Williams's statement to Gray had little prejudicial impact
on the jury's judgment.

15

Furthermore, the record contains ample evidence to prove Williams's

involvement in a drug conspiracy and use of a firearm in connection with it.
Beeche testified that Williams shot him in the thigh for being an informer. Gray
testified that Williams was responsible for delivering cocaine to the retail
outlets and collecting the proceeds. Both Gray and Beeche testified that
Williams routinely was armed while cocaine was being packaged and sold. A
videotape portrayed Williams brandishing a gun while a co-conspirator counted
money on a kitchen counter bearing cocaine. In light of this evidence, we think
it extremely unlikely that the improperly admitted evidence 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).

16

Because we find the admission of this evidence to be harmless, we do not reach

the question of whether the court committed an abuse of discretion in admitting
the evidence under Rule 403. Karas, 950 F.2d at 38; United States v.
Hernandez-Bermudez, 857 F.2d 50, 54 (1st Cir.1988). Nor is it necessary to
review the court's failure to issue a limiting instruction, especially where trial
counsel did not request one. See United States v. De La Cruz, 902 F.2d 121,

124 (1st Cir.1990) (stating general rule that failure of trial court sua sponte to
issue limiting instruction is not reversible error).
17

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
other bad acts. Williams's statement was unrelated to the offenses charged and
was highly inflammatory. To infect and jeopardize a prosecution with such
evidence is unwise and unjustifiable. It comes with ill grace to introduce
marginally justifiable evidence and then to defend its use by arguing that there
was so much evidence of guilt that any error would be harmless. Courts, in
turn, should remain vigilant to whether other-acts evidence serves a genuinely
probative purpose that substantially outweighs the risk of unfair prejudice.6
Hernandez-Bermudez, 857 F.2d at 54. At a minimum, courts routinely may
wish to issue an instruction limiting the use of Rule 404(b) evidence, Oppon,
863 F.2d at 147, or to ascertain whether defense counsel desires one.III.

18

Defendant also contends that the district court erred in limiting his cross
examination of Gray. Defendant sought to inquire into Gray's knowledge
regarding the preparation and use of cocaine and her brother's alleged cocaine
dealing to demonstrate that she was induced to cooperate with the government
to protect herself or her brother.

19

The Sixth Amendment to the Constitution guarantees a criminal defendant the

right to confront the witnesses against him. An essential component of this right
is the defendant's prerogative to establish the biases, prejudices, or ulterior
motives of these witnesses through cross examination. Davis v. Alaska, 415
U.S. 308, 315-17, 94 S.Ct. 1105, 1109-11, 39 L.Ed.2d 347 (1974); United
States v. Kepreos, 759 F.2d 961, 965 (1st Cir.1985). The trial court, therefore,
must permit sufficient cross examination to enable the jury " 'to make a
discriminating appraisal of the possible biases and motivations of the witness.' "
Niziolek v. Ashe, 694 F.2d 282, 289 (1st Cir.1982) (quoting United States v.
Tracey, 675 F.2d 433, 437 (1st Cir.1982)).

20

So long as it satisfies this standard, the district court retains wide discretion to
impose reasonable limits to avoid prejudice, confusion of the issues,
harassment, repetition, and inquiry into marginally relevant issues. Delaware v.
Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986);
United States v. Twomey, 806 F.2d 1136, 1139 (1st Cir.1986). "If the jury has
sufficient evidence before it bearing on the witness'[s] bias, the court need not
permit unending excursions into each and every matter touching upon
veracity." Kepreos, 759 F.2d at 965 (citation omitted).

21

To establish that the district court has abused its discretion, the defendant must
show that the limitations imposed were clearly prejudicial. Twomey, 806 F.2d
at 1140. Williams has not carried this burden. We, therefore, find that the
decision to exclude certain testimony fell within the court's discretion.

22

The district court allowed all defense counsel, including Williams's, ample
opportunity to undermine Gray's credibility by probing her bias and motive for
testifying. See generally Tr. Vol. IV at 30-158. The court did not preclude any
defendant from exploring Gray's involvement with the cocaine trade but barred
only a few questions of marginal relevance. Its decisions did not harm
defendant because the relevant information reached the jury through the
interrogation by his and the other defense counsel.

23

The intensive cross examination thoroughly delved into Gray's unsavory

connection with narcotics. It exposed her cocaine use, her sale of marijuana, her
knowledge of cocaine trafficking, and her involvement with and knowledge of
her brother's drug trafficking. Gray admitted that she had 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 resulting from this arrest subsequently were dismissed. She
also admitted that she was testifying under immunity from the government.

24

Gray's cross examination thus provided an extensive "record from which to

argue why [she] might have been biased or otherwise lacked that degree of
impartiality expected of a witness at trial." Davis, 415 U.S. at 318, 94 S.Ct. at
1111 (emphasis in original). From this record, various defense counsel,
including Williams's, argued plausibly that Gray was implicated in a cocaine
trafficking ring and that her cooperation with the government stemmed from her
desire to protect herself from prosecution and to divert police attention from
that drug ring.

25

The jury had more than enough information to appraise Gray's credibility.
Accordingly, we find that the exclusion of certain questions about Gray's
familiarity with cocaine and with her brother's drug trade was not an abuse of
the court's discretion.

26

Affirmed.

27

TORRUELLA, Circuit Judge (concurring).

28

I agree with the analysis and result of this case. I write separately simply to

express my exasperation at the repeated abuse of Rule 404(b) by government

prosecutors.

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)

Williams's trial counsel indicated at sentencing that he would file a notice of

appeal but did not. In 1991, Williams filed 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

Rule 404(b) provides:

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.

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.

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

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)