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United States v. Lopez

August 11, 2003

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

Before: Barry and Rosenn, Circuit Judges, and POLLAK,*fn1 District Judge

The opinion of the court was delivered by: Pollak, District Judge.

PRECEDENTIAL

As modified August 12, 2003.

Argued April 10, 2003

OPINION OF THE COURT

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.

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 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, ...


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