UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 92-5530

United States of America,

Plaintiff-Appellee,

VERSUS

Augustin Mora Carrillo,

Defendant-Appellant.

Appeal from the United States District Court For the Western District of Texas (January 12, 1993)

Before WISDOM, JOLLY, and DEMOSS, Circuit Judges. DEMOSS, Circuit Judge:

A jury found the defendant guilty of distribution of heroin

and cocaine based on an undercover officer's testimony that he

purchased a narcotics-filled balloon from the defendant. At trial,

the defendant's alibi was mistaken identity: he claimed that the

police officer misidentified him as the seller. The district court

allowed the government to present evidence of two other sales of

controlled substances by the defendant as modus operandi to help

establish his identity as the drug seller in the present case.

Carrillo challenges the admission of those extrinsic acts under the

identity exception of Federal Rule of Evidence 404(b). Because we hold that those acts do not bear a sufficient degree of similarity

to the charged offense to mark it as the handiwork of the

defendant, we vacate the conviction and remand for a new trial.

I. FACTS AND PROCEDURAL HISTORY

Detective Leo Alonzo (Alonzo), an undercover officer with the

San Antonio police department, testified that at approximately

10:00 a.m. on January 8, 1991, he was approached while standing

near the Three Kings Lounge on West Commerce by a man who asked

what he wanted. Alonzo had received a tip from a confidential

informant that a man named "Tito" was selling heroin in the area,

and so replied that he was looking for "Tito." The man pointed to

another man walking down Commerce Street and told Alonzo that the

man was "Tito."

As Alonzo approached "Tito," who Alonzo later identified as

Augustin Mora Carrillo, Carrillo asked Alonzo what he wanted and

Alonzo replied that he needed a "veinte," a street term meaning

twenty dollars' worth of narcotics. Alonzo gave Carrillo twenty

dollars and Carrillo took a balloon, which contained cocaine and

heroin, from his mouth and handed it to Alonzo. Alonzo took the

drugs and kept walking.1

1 The January 8 transaction occurred very quickly; Alonzo saw the seller for approximately thirty seconds. No other officer observed the sale. The police did not photograph or videotape the transaction. The serial numbers on the bills used to pay for the heroin were not recorded. During a four-year period prior to January 8, 1991, Carrillo participated in between 300 and 500 undercover drug buys, and on a prior occasion had misidentified a narcotic's seller.

-2- After the sale, Alonzo received information that the man who

had sold him the heroin was named Augustin Carrillo and that he

lived on Barney Street. He advised his partner, Detective Barbe,

of that information and Barbe retrieved a photograph of Carrillo

from the police files. Later that day, Alonzo identified the man

in the photograph--Carrillo--as the person that sold him the drugs.

Carrillo was arrested and charged with distribution of cocaine and

heroin in violation of

(1992).

Before trial, Carrillo filed a motion in limine seeking to

exclude any evidence of other crimes, wrongs, or acts, specifically

that evidence of his two extrinsic acts of selling heroin. The

district court denied the motion, ruling that if Carrillo raised

the issue of identity, then it would allow the government to call

the two police officers to testify about the details of Carrillo's

prior offenses to show that Carrillo was the seller. Thus, when

Carrillo claimed as an alibi defense that he was at the

intersection of San Marcos and Buena Vista streets, a few blocks

from where the drug transaction that Detective Alonzo participated

in took place, the district court ruled that Carrillo had raised

the issue of identity and allowed the government to call the two

police officers as witnesses.

The government called San Antonio Police Detective Manuel

Garcia, who testified that while working undercover on April 9,

1990, he purchased two balloons of heroin from Carrillo at a house

about four blocks from the Three Kings Lounge--near where Detective

-3- Alonzo's buy took place. He said that he was third or fourth in

line to buy drugs from Mr. Carrillo, and that Carrillo sold drugs

to everybody who was at the house. Additionally, Detective Michael

Peters testified that on March 28, 1991, he arrested Carrillo for

heroin possession at a location near the Three Kings Lounge after

observing Carrillo conducting a drug transaction with a pregnant

woman. Peters testified that Carrillo possessed several balloons

filled with heroin when he arrested him.

The jury found Carrillo guilty and the judge sentenced him to

serve 168 months in prison with a five-year term of supervised

release and ordered him to pay a $50 special assessment. Carrillo

filed a timely notice of appeal raising one issue--the admission of

the extrinsic act evidence.

II. DISCUSSION

A. "The Test"

A district court's decision to admit evidence under Rule

404(b) is reviewed under an abuse of discretion standard. United

States v. Anderson,

(5th Cir. 1991).

"Nevertheless, . . . [this court's] review of evidentiary rulings

in criminal trials is necessarily heightened."

Federal Rule

of Evidence 404(b), in issue here, states:

[e]vidence 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,

-4- knowledge, identity, or absence of mistake or accident. . . .

The admissibility of extrinsic act evidence under Rule 404(b)

is determined by application of the two-part test enunciated by

this court in United States v. Beechum,

(5th Cir.

1978), cert denied,

,

,

(1979). "First, it must be determined that the extrinsic offense

evidence is relevant to an issue other than the defendant's

character."

. "Second, the evidence must possess

probative value that is not substantially outweighed by its undue

prejudice and must meet the other requirements of [Fed. R. Evid.]

403."2 Beechum,

. Character evidence is not

excluded because it has no probative value, but because it

sometimes may lead a jury to convict the accused on the ground of

bad character deserving punishment regardless of guilt. United

States v. Anderson,

(5th Cir. 1991).

B. "Application of the Test"

To support his contention that the district court erred in

admitting evidence of the extrinsic acts, Carrillo relies on the

case of United States v. Silva,

(5th Cir. 1978). In

Silva, the defendant was convicted for distributing heroin and

cocaine; he argued that testimony admitted by the trial court

2 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."

-5- concerning a subsequent negotiation for the sale of heroin3 was

inadmissible under the identity exception without a showing that it

bore such a high degree of similarity as to mark it as the

defendant's handiwork. The court agreed with the defendant:

"[t]he identity exception has a much more limited scope; it is used

either in conjunction with some other basis for admissibility or

synonymously with modus operandi." Silva. at 148. The court

stated an extrinsic offense is not admissible under 404(b) to show

identity "merely because it is similar, but only if it bears such

a high degree of similarity as to mark it as the handiwork of the

accused."

In the Silva case, the court held that "no such

handiwork was . . . shown."

Carrillo contends in the present

case that the district court erred in admitting evidence of the

extrinsic offenses because they were not so similar to the charged

offense as to mark it as his handiwork.

To refute Carrillo's contention, the government relies on the

case of United States v. Torres-Flores,

(5th Cir.

1987), where the court allowed evidence to be admitted showing that

the defendant, accused of assaulting a border patrol officer, had

previously been arrested at the same river checkpoint so as to

place the defendant at the scene of the crime. We believe that the

3 In Silva, the undercover agent who participated in the charged offense testified to a continuing series of meetings with the defendant, the purpose of which was to locate a source of supply. No further purchases were made, however, presumably because the agent was unable to provide the "front money."

-6- government's reliance on Torres-Flores, however, is misplaced

because that case did not involve the modus operandi method of

proving identity.4 In Torres-Flores, the defendant did not testify

and thus the only evidence to corroborate the border patrol

officer's testimony and place the defendant at the checkpoint

during the commission of the offense was the testimony that he had

been apprehended there twice before. The court did not hold that

the evidence was admissible based on the uniqueness or similarity

between the prior border crossings and the charged offense, but on

the fact that the defendant had crossed there before and therefore

was more likely to have been there on the day the charged offense

occurred. Conversely, in the present case showing that Carrillo

was in the area where the charged offense occurred adds little

weight to the evidence against him since he doesn't deny being in

the area--he claims that he was a few blocks away at the

intersection of San Marcos and Buena Vista.

In that regard, the Fifth Circuit has recognized that evidence

not constituting a signature or otherwise demonstrating a

particular, identical modus operandi may nonetheless be admissible

under the identity exception. United States v. Evans,

(5th Cir. 1988), modified on rehearing,

(5th

Cir. 1988); See, e.g., United States v. Aguirre Aguirre,

Although the defendant in Torres-Flores argued that the "prior apprehensions were dissimilar to and had nothing in common with the modus operandi of the assault," the court never addressed that argument.

.

-7- 293, 300 (5th Cir. 1983); United States v. Montemayor,

(5th Cir. 1982). In United States v. Evans,

(5th Cir. 1988)(quoting 22 C. Wright § K. Graham,

Federal Practice and Procedure § 5246, at 512 (1978)), modified on

rehearing,

(5th Cir. 1988), this court stated:

[t]he exception in Rule 404(b) for use of other crimes evidence will probably be used most often . . . `[t]o prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused.' This exception, often referred to as the `handiwork or signature exception' or the exception for `modus operandi' is, however, only one method by which other crimes can prove identity. It is important that courts recognize these different modes so as not to impose requirements, such as distinctive similarity, that apply only to the modus operandi method of identification, on different methods of using other crimes evidence to show identity.

While recognizing the different methods by which other crimes can

prove identity and that only the modus operandi method needs to

meet the handiwork or signature exception, here, it is abundantly

clear that the government sought to introduce the extrinsic acts to

prove identity by showing Carrillo's methods of selling heroin were

so similar to the method used in the charged offense and so

distinctive from the normal method as to mark it as his handiwork.

The government sought to avail itself of the modus operandi method;

and, as such, the government was required to show that evidence of

the extrinsic acts was sufficiently similar to the charged offense

and sufficiently unique from the common practice for it to do so.

-8- Carrillo's extrinsic offenses of selling heroin fail to satisfy

those requirements.

Detective Alonzo himself testified that drug dealers and users

frequent the area in which he made the drug purchase. He further

stated that it is "very common" for a street dealer to distribute

narcotics in a balloon; he explained that packaging the drug in

this way allows the dealer to swallow it if a police officer

approaches. Alonzo also testified that he had previously purchased

narcotics in undercover operations when a dealer distributed the

narcotics in a balloon. Alonzo did not testify to any

characteristics of the purchase that was unique or would tend to

mark the drug sale as the handiwork of the accused. In sum, the

January 8 sale was a typical drug sale in a drug-ridden urban

neighborhood where such transactions are commonplace. Thus, the

testimony of Garcia and Peters did not corroborate the identity of

the seller through unique or uncommon elements of the transaction.

The evidence, in our opinion, did no more than to illustrate

Carrillo's bad character and to show that he acted in conformity

with that character on January 8. Such is not permissible; and,

indeed, is the purpose behind the prohibition of propensity

evidence in Rule 404(b). Therefore we hold that the trial court

erred in admitting evidence of Carrillo's extrinsic offenses of

selling heroin.

-9- III. CONCLUSION

The extrinsic acts of Carrillo were not sufficient to mark

them as the handiwork of Carrillo and thus were not admissible

under the modus operandi method of identification. For the

foregoing reason, the conviction of Carrillo is VACATED and the

case REMANDED for a new trial.

c:br:opin:92-5530:mm