United States v. Pitre

960 F.2d 1112 (2d Cir. 1992)



Fed. R. Evid. 404(b) provides that prior act evidence is not admissible to prove the character of a person in order to show action in conformity therewith, but may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Under the inclusionary approach to the rule followed by this circuit, such evidence is admissible for any purpose other than to show a defendant's criminal propensity. However, under Fed. R. Evid. 403, such evidence, although relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.


On August 3, 1989, the government filed a three-count indictment against each of the appellants and three other individuals, Wai Yip Lin, a/k/a "Sonny", Anan Peter Peechaphand, and Mark Larotonda. Count One, the only count in which the four appellants were named, charged all seven defendants with conspiring to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. § 846. The indictment alleged that on July 13, 1989, near South and John Streets in Manhattan, Lin and Peechaphand met with an undercover agent of the Drug Enforcement Administration ("DEA") and discussed a proposed heroin transaction. According to the indictment, that same day, defendants. Lin, Peechaphand, Richard Pitre, Edwyn Pitre, Joseph Pitre, Otero, and Larotonda drove to the area of Orchard and Division Streets in Manhattan, where Richard Pitre displayed approximately $ 630,000 in cash to a DEA agent in the presence of each defendant except Larotonda.


Could evidence of prior drug transactions be used to convict defendants?




The court held that evidence of prior drug transactions was admissible pursuant to Fed. R. Evid. 404(b) to show the development of the conspiracy and to show intent or knowledge. The court held that the evidence was sufficient to support the convictions of defendants and to show that the defendants were knowing participants in the charged conspiracy and not mere bystanders to a narcotics transaction. The court held that the prosecutor did not improperly comment on the failure of one of the defendant's failure to testify. The court also held that the prosecutor could comment on one of the defendant's refusal to answer a question after he was arrested because that defendant waived his right to remain silent by answering questions and had not reasserted his right to remain silent when he refused to answer a question. The court also held that the trial court properly applied U.S. Sentencing Guidelines Manual §§ 3B1.1(a) and 3B1.2.

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