2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-12-2003

USA v. Lopez

Precedential or Non-Precedential: Precedential

Docket No. 02-1111P

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PRECEDENTIAL

Filed August 11, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-1111

UNITED STATES OF AMERICA,

v.

ALBERT LOPEZ,

Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

District Judge: Honorable William J. Nealon

D.C. No. 01-cr-00084-1

Argued April 11, 2003

BEFORE: BARRY and ROSENN, Circuit Judges,

and POLLAK,* District Judge

(Filed: August 11, 2003)

Daniel I. Siegel (Argued)

Office of the Federal Public Defender

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

Counsel for Appellant

* Honorable Louis H. Pollak, District Judge for the United States District

Court for the Eastern District of Pennsylvania, sitting by designation. 
Matthew E. Haggerty, Esq.

Christian A. Fisanick, Esq. (Argued)

Office of United States Attorney

Federal Building, P.O. Box 309

Scranton, PA 18501

Theodore B. Smith, III, Esq.

Office of United States Attorney

228 Walnut Street, P.O. Box 11754

Harrisburg, PA 17108

Counsel for Appellee

OPINION OF THE COURT

POLLAK, District Judge.

Albert Lopez, a federal prisoner, was convicted of (1)

possession of heroin, in violation of 18 U.S.C. § 844(a), and

(2) possession of contraband by an inmate, in violation of

18 U.S.C. § 1791(a)(1). On appeal, Lopez challenges two

evidentiary rulings of the District Court, as well as the

District Court’s ruling that the government’s voir dire

peremptory challenge of a black jury panelist was not keyed

to the impermissible factor of race. 

Because we agree with appellant Lopez that the

statements of two government witnesses that they had

“received information” that Lopez possessed heroin

constituted inadmissible hearsay, and that the District

Court’s erroneous admission of those statements was not

harmless, we reverse and remand for a new trial. 

I

In 1991, Lopez began serving a 140-month sentence for

participating in a conspiracy to distribute cocaine. After

periods of confinement in federal penitentiaries in

Leavenworth, Kansas, and Lompoc, California, Lopez in

1997 was transferred to the Federal Correctional Institution

Schuylkill (FCI Schuylkill), in Minersville, Pennsylvania,

where the events leading to the criminal conviction now

under review took place. 

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On June 7, 2000, prison officials received information

that inmate Lopez was in possession of heroin. Based on

that information, prison officials conducted a search of

Lopez’s cell, during which they recovered twenty small

packets of heroin from inside a sock, which was inside a

laundry bag located on the floor near Lopez’s bunk. A drug

screen submitted by Lopez later that day tested positive for

morphine, which is consistent with, though not conclusive

of, the use of heroin. 

Prison officials referred the matter to the FBI, and on

June 12, 2000, a federal agent arrived at FCI Schuylkill

and read Lopez his Miranda rights. Lopez declined to waive

his rights or to be interviewed. On March 13, 2001, a grand

jury returned a two-count indictment against Lopez,

alleging that he had possessed heroin in violation of 21

U.S.C. § 844(a), and that he had possessed contraband in

violation of 18 U.S.C. § 1791(a)(1).

After a two-day trial that began on August 20, 2001, a

jury convicted Lopez on both counts. On November 30,

2001, the Court sentenced Lopez to 37 months

imprisonment, followed by two years of supervised release.

II

Lopez presents three issues on appeal. The first concerns

the District Court’s ruling admitting, under Federal Rule of

Evidence 404(b), Lopez’s 1991 federal conviction for

conspiracy to distribute cocaine. We review a trial court’s

decision to admit evidence of a prior conviction for abuse of

discretion. See United States v. Saada, 212 F.3d 210, 220

(3d Cir. 2000). For the reasons stated below, we find that

the District Court did not abuse its discretion in admitting

evidence of Lopez’s 1991 conviction. The second issue

concerns the District Court’s ruling that the statements of

two prison officials that they had “received information”

that Lopez possessed heroin did not constitute inadmissible

hearsay. Whether the challenged third-party statements

were hearsay is a question of law subject to plenary review.

United States v. Sallins, 993 F.2d 344, 346 (3d Cir. 1993).

We conclude that those statements constituted hearsay and

that the District Court erred in admitting them. We further

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conclude that the District Court’s error was not harmless.

We therefore remand the case for a new trial. In light of our

resolution of the second issue, we find it unnecessary to

address the third issue—namely, whether the District Court

erred in deciding that the government’s peremptory strike

of a black jury panelist did not contravene the Supreme

Court’s constitutional directive, in Batson v. Kentucky, 476

U.S. 79 (1986), prohibiting the exercise of peremptory

challenges on the basis of race. 

A

Prior to trial, Lopez filed a motion in limine urging that

his 1991 conviction for participating in a conspiracy to

distribute cocaine be excluded from evidence. Specifically,

Lopez contended that the conviction was irrelevant, that

any marginal relevance that it might possess was

outweighed by the potential for prejudice, and that it

constituted inadmissible character evidence under Rule

404(b). After defense counsel, Patrick Casey, raised the

issue at a conference immediately preceding trial, the

following exchange occurred: 

THE COURT: Why are you objecting to that?

MR. CASEY: That is, again, 404(b) evidence. If he

testifies, he will be open game for that

conviction, but the fact that he’s not . . .

THE COURT: They’re not offering it to impeach. They

are offering it to show general intent,

knowledge, absence of act of mistake

and opportunity to obtain.

MR. CASEY: Its simply prejudicial.

THE COURT: A lot of relevance, I suppose, could be

called prejudicial. 

The Court then overruled Lopez’s motion to exclude the

evidence. Later in the conference, the Court “put on the

record that [it had] concluded that [the 1991 conviction,

along with other contested evidence,] is relevant and the

probative value of the issue of intent, knowledge, absence of

incident1 or mistake and opportunity to obtain.

1. We presume that the phrase, “absence of incident,” reflects a

mistranscription, and that the passage instead should read, “absence of

4
Furthermore, I conclude that the probative value is not

substantially outweighed by prejudice to the Defendant.” 

The upshot of the Court’s ruling was that an FBI agent

was permitted to testify that, at the time the heroin was

discovered in his cell, Lopez was serving a sentence for

participating in a conspiracy to distribute cocaine. 

Rule 404(b) provides that “[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,

knowledge, identity, or absence of mistake or accident

. . . .” Fed. R. Evid. 404(b). For evidence of past bad acts to

be admissible, “(1) the evidence must have a proper

purpose under Rule 404(b); (2) it must be relevant under

Rule 402; (3) its probative value must outweigh its potential

for unfair prejudicial effect under Rule 403; and (4) the

Court must charge the jury to consider the evidence only

for the limited purpose for which it is admitted.” United

States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002) (citing

Huddleston v. United States, 485 U.S. 681, 691-92 (1988)).

Resolution of the present case turns on the first prong of

this admissibility inquiry—whether Lopez’s prior conviction

had a proper purpose under Rule 404(b).2

Lopez relies chiefly on this court’s decision in United

States v. Sampson, 980 F.2d 883 (3d Cir. 1992), the facts

of which are similar to those in the case at bar. At issue in

Sampson was the District Court’s decision permitting the

government to introduce evidence of the defendant’s prior

conviction for possession with intent to distribute cocaine,

for the purpose of proving that the defendant, who was in

state prison at the time, was guilty of possessing

marijuana. Prison officials had found several balloons filled

accident.” See Rule 404(b), which states that evidence of “other crimes,

wrongs, or acts” may be admissible to show, among other things,

“absence of mistake or accident.” 

2. Lopez has not raised as an issue in this appeal the third prong of the

Vega test. Therefore, we do not consider whether the prejudicial effect of

the prior bad act evidence might have outweighed its probativeness. 

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with marijuana in the defendant’s coat pocket, and

although defendant admitted that he owned the coat, he

denied knowledge of the balloons. In finding the prior

conviction admissible, the District Court noted only that it

was “inclined to think that this is the kind of incident

which does fall within the purview of the exceptions listed

in 404(b).” Id. at 885. 

As the Sampson court observed, “[t]here is no question

that, given a proper purpose and reasoning, drug

convictions are admissible in a trial where the defendant is

charged with a drug offense.” Id. at 887. “[W]here the

evidence only goes to show character, or that the defendant

had a propensity to commit the crime, it must be excluded.

Where, however, the evidence also tends to prove some fact

besides character, admissibility depends upon whether its

probative value outweighs its prejudicial effect.” Id. For

prior offense evidence to be admissible, however, the

government “must clearly articulate how that evidence fits

into a chain of logical inferences, no link of which can be

the inference that because the defendant committed drug

offenses before, he therefore is more likely to have

committed this one.” Id. Further, “[t]he district court . . .

must in the first instance . . . articulate reasons why the

evidence also goes to show something other than character.

Unless the reason is apparent from the record, a mere list

of the purposes found in rule 404(b) is insufficient.” Id. at

888. Based on this standard, the Sampson court concluded

that because the District Court had neglected to construct

the requisite chain of inferences—instead merely noting

that the challenged evidence fell within the purview of the

404(b) exceptions—its admission of the prior conviction

amounted to an abuse of discretion. 

Although we agree with Lopez that the District Court in

the present case could have been more explicit in

articulating the chain of logical inferences warranting the

admission of Lopez’s prior conviction, that omission is not

dispositive of the admissibility question. “The prime inquiry

is whether the evidence is probative of a material issue

other than character.” United States v. Boone, 279 F.3d

163, 187 (3d Cir. 2002) (citing Huddleston, 485 U.S. at

687)). 

6
We are satisfied that, viewed in the full context of the oral

argument on the defendant’s various Rule 404(b) motions

to exclude, the District Court’s reasons for admitting

Lopez’s prior conviction are sufficiently apparent to warrant

upholding its ruling. It is clear from the record that when,

in announcing its ruling, the Court recited a number of

permissible Rule 404(b) purposes—the “mere list” on which

Lopez bases his objection—it was endorsing the

government’s position that the challenged evidence was

admissible for the purpose of rebutting the defendant’s

anticipated claim of innocent association with, and lack of

knowledge of, the heroin found near his bunk. That

position had been elaborated, largely in reference to the

defendant’s motion to exclude another piece of proffered

evidence, in an extended exchange immediately preceding

the Court’s prior-conviction ruling.3 The propriety of this

3. The exchange centered on the defendant’s Rule 404 motion to exclude

the results of two urine tests—one taken 15 months before, and one

taken immediately after, the heroin was discovered in Lopez’s cell—

showing that Lopez had used morphine, a result consistent with, but not

conclusive of, the use of heroin. With respect to the first urine test, the

prosecutor, AUSA Matthew Haggerty, stated: 

[T]he Third Circuit said in United States versus Butch, [256 F.3d

171 (3d Cir. 2001),] in cases of innocent association, which it’s the

only defense that could be made, . . . [that evidence of past drug

involvement is admissible.] There’s 180 cell mates on the cell floor.

[Lopez] had a cell mate, he has others that he’s friends with. The

fact that he’s found sleeping with a bag of heroin underneath his

bed, the only defense I could see is innocent association. It’s not

mine. It’s my cell mate’s, or it’s my friend’s or somebody that was in

the cell, and I didn’t know this was here. We’re saying he’s going to

say it’s not mine, and the Third Circuit says you can use prior

convictions and prior bad acts to show that, to refute that argument

of innocent association. 

Shortly thereafter, the Court pointed out to Mr. Casey that, according to

Butch, “such evidence is permissible to show criminal intent and absence

of innocent association.” After Mr. Casey then attempted to persuade the

Court that the factual circumstances did not present an issue of

innocent association, the Court inquired of him: “Assuming possession

is established, wouldn’t it be relevant to show knowledge that it was

heroin, . . . isn’t evidence that he had used the heroin in the

confinement of prison some year or so earlier, evidence that he knew

what was in that bag that he possessed was heroin?” 

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position is illustrated by recent decisions of this court

upholding the admission of evidence of prior drug

involvement for the purpose of rebutting defense claims of

innocent association, and to prove criminal intent. See

United States v. Givan, 320 F.3d 452, 461 (3d Cir. 2003);

United States v. Vega, 285 F.3d 256, 261-62 & n.2 (3d Cir.

2002); United States v. Butch, 256 F.3d 171, 177 n.5 (3d

Cir. 2001); Boone, 279 F.3d at 187-88. In light of the

foregoing, we cannot say that the District Court abused its

discretion in admitting evidence of Lopez’s prior conviction.

B

At trial, the government called as witnesses Officers

James Fosnot and Kenneth Gabrielson, the prison officials

who discovered the heroin during the search of Lopez’s cell.

The following exchange occurred during AUSA Matthew

Haggerty’s examination of Officer Fosnot: 

MR. HAGGERTY: Why did you search — why did you

search of the cell of Albert Lopez?

THE WITNESS: We received information —

MR. CASEY: Objection, hearsay.

THE COURT: Overruled.

THE WITNESS: We received information that Inmate

Lopez might be carrying drugs on his

person or in his cell.

Later, the following exchange occurred during Mr.

Haggerty’s examination of Officer Gabrielson: 

MR. HAGGERTY: And on June 7th of 2000, did you

have reason to search the cell of

Albert Lopez?

THE WITNESS: Yes, sir.

MR. HAGGERTY: And why did you do that?

THE WITNESS: I received information that —

MR. CASEY: Objection, hearsay.

THE COURT: Overruled. It’s just information. 

8
. . .

THE WITNESS: I received information that Albert

Lopez was in possession of heroin

and that he was keeping that heroin

on his person, and when I received

that information, I took the

information to the SIS Lieutenant,

which is Joseph Reed, and he

instructed myself —

MR. CASEY: Objection, hearsay.

THE COURT: Overruled. Were you instructed just

to search the cell? 

. . .

THE WITNESS: Yes, that’s what we continued to do.

Finally, Mr. Haggerty invoked the above-excerpted

testimony during his closing argument:

If I could for a minute, I would like to go over some

of the evidence that is presented here, kind of from the

beginning to the end, and kind of see what I think is

important. The things that you heard from this witness

stand, if you will recall, we called James Fosnot and

Ken Gabrielson, two of the officers that had searched

Albert Lopez’s cell on June 7th. 

They testified that they had information that Albert

Lopez was in possession of heroin. It wasn’t a random

search. They weren’t walking by and decided to go in.

They had information that he had heroin in the cell. So

what did they do? They . . . went to Albert Lopez’s cell

on June 7th to search it for this heroin. 

Hearsay is “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” Fed. R.

Evid. 801(c). The question of “[w]hether evidence is hearsay

is a question of law subject to plenary review.” United

States v. Sallins, 993 F.2d 344, 346 (3d Cir. 1993). 

Our analysis is guided by our opinion in Sallins. The

defendant in Sallins, who previously had been adjudged

9
guilty of a felony, was convicted of possessing a firearm.

Under review was the District Court’s decision to admit,

over defense counsel’s objection, the arresting officer’s

testimony that when he encountered the defendant he was

searching for a person described in a police radio dispatch

as a “black male wearing all black clothing carrying a gun

on the 2500 block of North Franklin Street.” Id. at 345. At

issue was whether the prosecutor had offered this

testimony merely as “background information,” in order to

explain the officer’s presence at the site of the arrest, as the

government claimed, or rather to prove the truth of the

matter asserted—that is, that the defendant had possessed

a firearm. This court acknowledged in Sallins that “[s]everal

courts have admitted testimony by police officers or

government agents revealing information received out-ofcourt for the limited purpose of establishing background for

the officers’ actions,” but observed that the use of such

statements for that purpose had been subject to

“widespread abuse.” Id. at 346. “If the hearsay rule is to

have any force,” we cautioned, “courts cannot accept

without scrutiny an offering party’s representation that an

out-of-court statement is being introduced for a material

non-hearsay purpose.” Id. 

In Sallins, this court conducted a searching evaluation of

the government’s purported need to introduce the thirdparty suspect description, and concluded that the content,

if not the fact, of the radio dispatch was unnecessary either

to account for the presence of the arresting officers at the

scene of the arrest, or to explain why the officers had

pursued and arrested the defendant (one of the officers saw

the defendant throw what he thought may have been a gun

underneath a car). “Not only was the testimony regarding

the radio call inadmissible to show background,” we

observed, “it clearly was not offered for that purpose. The

absence of a tenable non-hearsay purpose for offering the

contents of the police radio call establishes that the

evidence could have been offered only for its truth value.”

Id. at 347. 

Finally, the government’s closing argument, in which the

prosecutor repeatedly asked rhetorically whether it could be

“just a coincidence” that the defendant matched the

10
suspect description in the radio dispatch, “dispell[ed] any

conceivable doubt as to the true evidentiary purpose of the

disputed testimony.”

4

Id. Because the details of the radio

call were thus “offered for their truth value,” the court

concluded, “the testimony was hearsay and should have

been excluded.” Id.

In the instant case, as in Sallins, the absence of any

direct evidence that Lopez possessed the prohibited object—

that is, the heroin—informs our evaluation of the purported

purpose for which the government offered the challenged

statements. Lopez’s defense centered on his attempt to

develop reasonable doubt about whether the heroin

belonged to him. To that end, defense counsel sought at

trial to raise the possibility that the laundry bag in which

the heroin had been found belonged to Lopez’s cell mate, or

that the heroin had been placed in the bag by one of the

more than one hundred members of the defendant’s prison

unit who allegedly had access to Lopez’s cell. Lopez also

notes that defense counsel established at crossexamination that government investigators “lost possession”

of the laundry bag during the course of the investigation,

thus further compromising the prosecution’s effort to

assign possession. Because the question of possession itself

was the principal issue in dispute, the prospect that the

out-of-court statements were used to prove the truth of the

matter demands close scrutiny. 

Further, there clearly were alternative means available to

the government to establish the factual context of the

officers’ search of Lopez’s cell. As the Sallins court

4. The prosecutor stated: 

[C]ould it be just a coincidence that the defendant is wearing dark

clothing, that matches the description on the radio call? Could it be

just a coincidence that the defendant is a black male? That also

matches the description of the radio call. Could it be just a

coincidence that the defendant is on the 2500 block of North

Franklin Street? That’s the location that was put in on the radio

call. . . . Was it just a coincidence that the defendant was there

about a minute after the call was put in? . . . Could that just be a

coincidence? 

Id. 

11
suggested, “testimony that [an officer] acted ‘upon

information received,’ or words to that effect, should be

sufficient.” Id. at 346 (quoting McCormick On Evidence

§ 249, at 104 (4th ed. 1992)). In the present case, the

government could have accounted for the search of Lopez’s

cell in similarly general terms. 

Finally, the government’s emphatic invocation of the

officers’ testimony during closing argument could only have

served to strengthen the jury’s perception that the officers’

“information that Albert Lopez was in possession of heroin”

was itself a datum in the construction of the government’s

substantive case. Specifically, the prosecutor reminded the

jury that Officers Fosnot and Gabrielson had “testified that

they had information that Albert Lopez was in possession of

heroin. It wasn’t a random search. They weren’t walking by

and decided to go in. They had information that he had

heroin in the cell.” We thus conclude that the challenged

statements constituted inadmissible hearsay, and that their

introduction at trial was improper. 

Having concluded that the District Court erred in

overruling defense counsel’s hearsay objection, we now

inquire whether that error nevertheless was harmless. “The

inquiry cannot be merely whether,” notwithstanding the

error, “there was enough to support the [conviction].”

Government of the Virgin Islands v. Toto, 529 F.2d 278, 283

(3d Cir. 1976) (quoting Kotteakos v. United States, 328 U.S.

750, 765 (1946)). Rather, “if one cannot say . . . that the

judgment was not substantially swayed by the error, it is

impossible to conclude that substantial rights were not

affected.” Id. See also Sallins, 993 F.2d at 348 (“An

evidentiary error is harmless only if it is highly probable

that the improperly admitted evidence did not contribute to

the jury’s judgment of conviction.”). In the case at bar, the

government did introduce substantial evidence apart from

the improperly admitted hearsay that Lopez possessed

heroin, foremost among which was the fact that Lopez

tested positive for morphine shortly after the heroin, which

is broken down into morphine in the body, was discovered

in his cell. The dispositive question, however, is not

whether, in the absence of the inadmissible hearsay

evidence, the jury nevertheless could have convicted Lopez.

12
Rather, the question is whether the improperly admitted

statements may have helped to “cement[ ] the government’s

case by adding an invisible, presumably disinterested

witness” to corroborate the government’s position. Sallins,

993 F.2d at 348. Notwithstanding the incriminating results

of Lopez’s urine test, there is no direct evidence that Lopez

possessed heroin on the day prison officials discovered it

near his bunk. For that reason, and in light of the defense’s

not implausible argument that the heroin could have been

placed there by any of the more than one hundred inmates

who had relatively unrestricted access to Lopez’s cell, we

are not confident that the improperly admitted hearsay

statements did not help to “cement” the jury’s judgment of

conviction. We therefore conclude that the District Court’s

error was not harmless. Accordingly, we reverse appellant’s

conviction and remand for a new trial. 

Finally, costs should not be taxed against the United

States in this criminal appeal.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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