938 F.

2d 1078
33 Fed. R. Evid. Serv. 794

UNITED STATES of America, Plaintiff-Appellee,

v.
Jesus MARTINEZ, Defendant-Appellant.
No. 90-1037.

United States Court of Appeals,

Tenth Circuit.
July 8, 1991.

Robert Justin Driscoll, Denver, Colo., for defendant-appellant.

Robert D. Clark, Asst. U.S. Atty., Denver, Colo. (Michael J. Norton, U.S.
Atty., with him on the brief), for plaintiff-appellee.
Before HOLLOWAY, Chief Judge, BARRETT and McKAY, Circuit
Judges.
HOLLOWAY, Chief Judge.

Defendant-appellant Martinez was found guilty by a jury of distribution of

cocaine and aiding and abetting in the distribution of cocaine (21 U.S.C. Sec.
841(a)(1) and 18 U.S.C. Sec. 2), and conspiracy to distribute cocaine (21 U.S.C.
Sec. 846). On appeal, Martinez challenges two evidentiary rulings of the district
judge who admitted in evidence certain items seized at two homes in the
Denver, Colorado area, including money found on the person of one individual.
Martinez contends that the judge abused her discretion under Fed.R.Evid. 403
in concluding that the probative value of this evidence, which included one-half
pound of cocaine, a semiautomatic MAC-11 submachine gun, and large
amounts of cash, was not substantially outweighed by its prejudicial effect. We
affirm.

* Martinez' arrest and conviction stem from an undercover drug operation

carried out in the summer of 1989 by the Drug Enforcement Administration
(DEA). Posing as a drug dealer from Wyoming, DEA Special Agent Montoya

made two separate purchases in July 1989 of one ounce of cocaine from Ruben
Romero (a co-defendant) at Bubba's Restaurant in Commerce City, Colorado.
Following these purchases, Agent Montoya commenced discussions with
Romero regarding the purchase of larger quantities of cocaine. Romero
indicated that he had a supplier of cocaine, and that he was able to obtain
kilogram quantities of the drug. Agent Montoya arranged to purchase two
kilograms from Romero. On August 15, 1989 at approximately 3:00 p.m.,
Montoya met Romero at Bubba's to discuss the two-kilogram purchase. At the
meeting, Romero told Montoya that he did not have the cocaine with him and
that he would have to go get it. Romero said that he would deliver the cocaine
to Montoya at approximately 4:00 p.m. at a nearby motel.
3

Romero left the meeting at Bubba's and went to his home in Denver. Montoya
contacted him there by telephone at approximately 3:30 p.m., and Romero
indicated that he was on his way to get the cocaine. Romero then drove to the
home of Martinez in Denver. Together, in Romero's 1965 Dodge Dart sedan,
the two traveled to a spot near the suburb of Lakewood, Colorado. There
Romero was let out of the car, and Martinez proceeded alone to a home at 1330
Chase Street in Lakewood.

Martinez entered the Chase Street home and remained inside for five to ten
minutes, and then returned to Romero's car. A DEA Agent had him under
surveillance at the time. From what the Agent could observe one-half a block
away, Martinez did not exit the home carrying any items. However, the Agent's
vision of the area below Martinez' waist was allegedly obstructed by Romero's
car. Martinez drove the car back to the general area where he had dropped off
Romero, who was then proceeding east on foot. Traveling east as well,
Martinez apparently came within eyesight of Romero but did not stop to pick
him up. Soon thereafter, a black Mustang, which had been parked on a side
street, began to follow Martinez. Martinez made a U-turn and, without exiting
the car, waved and spoke briefly with the driver of the Mustang. Then he
proceeded west to a gas station where he met Romero. Romero had arrived at
the station on foot.

Romero assumed operation of his car and, alone, drove to the motel to meet
Montoya. He arrived at approximately 4:30 p.m. When he presented Montoya
with the promised two kilograms of cocaine, Romero was arrested. Martinez
was also arrested soon thereafter. He was some three miles away from the
motel, riding in a black Mustang which had picked him up at the gas station.
The driver of the Mustang was Nicholas Meza, the lessee of the home at 1330
Chase Street.

That night law enforcement officers obtained a warrant to search the Chase
Street home. They found there $69,000 in cash, a semiautomatic MAC-11
submachine gun, one-half pound of cocaine, and a triple-beam scale. The
officers also conducted a consent search that night of Martinez' home in Denver
and found there $6,730 in cash. A visitor to Martinez' home at the time of the
search, Oscar Mendoza, consented to a search of his person and the officers
discovered $1,980 on him.1

II
7

Martinez was charged along with Romero with conspiring to distribute cocaine
on or about August 15, 1989, and distributing and aiding and abetting in the
distribution of cocaine on or about the same date. In addition, Romero was
charged with two counts of distribution of cocaine relating to his two sales in
July to Agent Montoya. Romero pleaded guilty to the three distribution counts,
and the government dismissed the conspiracy count as to him. Accordingly,
Martinez stood for trial alone.

At trial, Romero testified for the government. 2 He said that Martinez supplied
him with the two kilograms of cocaine that he distributed to Agent Montoya.
More specifically, Romero testified that Martinez obtained the cocaine on
August 15, after letting Romero out of his Dodge, and brought the cocaine back
to him. He explained that Martinez traveled alone to get the cocaine because
Martinez' associates, who were in possession of the cocaine, did not know
Romero well and were wary of having contact with him.

Over Martinez' objection, the government also sought to introduce in evidence

the various items seized from the Chase Street home and the $8,710 seized
from Martinez' home and the person of Oscar Mendoza, the visitor. The
government argued that the jury should be allowed to infer from the presence at
the Chase Street home of the cocaine, machine gun, cash, and scales (what it
called the "standard tools of drug trafficking") that the Chase Street home was a
"stash house"--that is, "a house where drugs were stored and out of which drugs
were delivered and money was taken." IV R. 106, 112-13.

10

In view of Martinez' stop at the Chase Street home, the government reasoned
that this inference would support its theory that Martinez was the supplier of
the two kilograms of cocaine at issue. The jury could find, said the
government, that the Chase Street home was the source of the cocaine, as it was
the only significant stop Romero's car made after he informed Agent Montoya
at Bubba's that he was departing to get the drug. Also, apparently relying on the

alleged drug-trafficking association of large sums of cash, the government

argued that the $6,730 seized from Martinez' home and the $1,980 found on
Oscar Mendoza were admissible, relevant evidence.
11

In oral rulings from the bench, the district judge generally accepted the
government's arguments and admitted all the contested evidence. As to the
Chase Street items, the judge specifically found that there was a sufficient
connection between the Chase Street home and Martinez to admit these items in
evidence based on Martinez' five to ten minute visit to the home. However, she
ruled that the items were only admissible for the limited purpose of shedding
light on "the nature of th[e] home." IV R. 115-16. And, when the items were
initially admitted, the court gave the jury an express limiting instruction to this
effect.3 Id. at 148. As for the cash seized from Martinez' home and the person
of Oscar Mendoza, the judge noted that in cases involving suspected drug
activity such evidence is admissible, and she found that there had been a
sufficient showing by means of circumstantial evidence that Martinez was
involved in drug dealings. Further, she said that inferences could be drawn from
the fact that a person carrying large sums of cash is visiting an alleged drug
dealer, and that Martinez was free to call Mendoza to explain what he intended
to do with the money. Martinez, however, did not call Mendoza to testify.

12

Martinez did testify on his own behalf. He denied selling illegal drugs, and
specifically refuted Romero's account of the events of August 15. 4 Also,
Martinez testified that, while they were both in jail pending trial, Romero told
him that he would arrange for Martinez' release in exchange for money.
Martinez allegedly explained to Romero that he did not have any money.
Moreover, Martinez testified regarding the source of the money seized from his
home. He noted that he was in the business of buying and selling cars, and said
that the seized cash had been forwarded to him by an associate to buy two car
engines.

13

The jury found Martinez guilty on the conspiracy and distribution charges. He
was sentenced to concurrent prison terms of 78 months, a four-year term of
supervised release, and special assessments amounting to $100. This appeal
followed.

III
14

Under Fed.R.Evid. 403, a trial judge must determine whether the probative
value of evidence is substantially outweighed by the danger of unfair prejudice.
Evidence is not unfairly prejudicial simply because it is damaging to an
opponent's case. See United States v. Chalan, 812 F.2d 1302, 1308 (10th

Cir.1987); Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983).
Rather, the evidence must have "an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one."
Fed.R.Evid. 403 advisory committee's note. A trial judge's discretion under
Rule 403 in balancing the probative value of evidence against its potential
prejudicial effect is broad, and reversal is appropriate only on a showing of
abuse. See United States v. Sullivan, 919 F.2d 1403, 1417 (10th Cir.1990);
United States v. Cuch, 842 F.2d 1173, 1175 (10th Cir.1988).
15

* Martinez first contends that the district judge abused her discretion under
Rule 403 by admitting in evidence the items seized at 1330 Chase Street,
specifically, $69,000 in cash, a semiautomatic MAC-11 submachine gun, onehalf pound of cocaine, and a triple-beam scale.

16

He says that the Chase Street evidence was of no probative value because no
connection was established between this evidence, the charged offenses, and
him, yet the evidence was highly prejudicial. Martinez notes that the
government did not charge him with any offense involving the firearm, the
cash, or the half pound of cocaine taken from the house. Nor was there any
allegation that Martinez was involved in a conspiracy with the occupants of the
Chase Street home. Martinez underscores the fact that he was only inside the
home for five to ten minutes. He notes that the government failed to present
any testimony of occupants of the Chase Street home indicating that he even
knew these items were present, and that government witnesses acknowledged
that the items were hidden. See Brief of Appellant at 6. Lastly, Martinez points
out that the government presented no witness who observed him exiting the
home with two kilograms of cocaine, despite the fact that an officer had him
under surveillance.5

17

We find no abuse of discretion. In other circuits, courts have often held in the
context of drug distribution offenses that items like those at issue here-firearms, large sums of cash, weighing scales, and uncharged quantities of
illegal drugs--are sufficiently probative to warrant admission under Fed.R.Evid.
403. See, e.g., United States v. Nixon, 918 F.2d 895, 904 (11th Cir.1990)
(firearms); United States v. Bernal, 719 F.2d 1475, 1477-78 (9th Cir.1983)
(weighing scales and $8,600 in cash); United States v. Miroyan, 577 F.2d 489,
494-95 (9th Cir.) (firearm and small quantity of marijuana), cert. denied, 439
U.S. 896, 99 S.Ct. 258, 58 L.Ed.2d 243 (1978).6 But cf. United States v. Chen,
629 F.Supp. 263, 272 (S.D.N.Y.1986) (noting that defendant's possession of
firearms was "at best marginally probative of his ability to engage in narcotics
trafficking").

18

Such items have generally been viewed as "tools of the trade"--that is, means
for the distribution of illegal drugs. See, e.g., United States v. Wiener, 534 F.2d
15, 18 (2d Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976).
Accordingly, they have been held to be probative of an accused's participation
in the drug distribution business and, more specifically, his or her participation
in the charged distribution offenses. See United States v. Savinovich, 845 F.2d
834, 837 (9th Cir.), cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102 L.Ed.2d 358
(1988); United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987), cert. denied,
486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988); 1 C. Torcia,
Wharton's Criminal Evidence Sec. 96, at 351-52 (14th ed. 1985) (noting that an
accused's possession of a weapon or implement "suitable to the commission of
the crime charged ... is always a proper ingredient of the case for the
prosecution").

19

It is basically immaterial to the admissibility inquiry in cases like these whether

the accused has been charged with an offense directly related to his or her
possession of a "tool of the trade." See United States v. Ariza-Ibarra, 605 F.2d
1216, 1224-25 (1st Cir.1979). In particular, in admitting firearms and large
amounts of cash, courts have recognized the high level of violence that is not
uncommonly associated with the drug distribution business and the prevalence
in this business of large-scale cash transactions.7 See United States v. Wood,
834 F.2d 1382, 1386 (8th Cir.1987); United States v. Marino, 658 F.2d 1120,
1123 (6th Cir.1981).

20

We are persuaded by the rationale of these cases. Indeed, we have recently

described such items in similar terms. See United States v. McDonald, 933 F.2d
1519, 1522 (10th Cir.1991) (noting that a loaded pistol, a single-edge razor
blade, and a pager can "best be described as a drug dealer's tools of trade," and
calling the drug trade "a cash-and-carry business"). Moreover, the view of this
case is consistent with our decision in Fitzgerald, supra. There, we noted that
weighing scales and a large quantity of narcotics, which were seized following
the arrest of defendant, supported the proposition that defendant was engaged
in narcotics distribution, and specifically held that the admission of the seized
narcotics was not improper under Rule 403. 719 F.2d at 1070-71. See also
United States v. Mabry, 809 F.2d 671, 687 (10th Cir.) (finding no abuse of
discretion under Fed.R.Evid. 404(b) in the admission of evidence of defendant's
purchase and possession of a large quantity of gold and silver), cert. denied, 484
U.S. 874, 108 S.Ct. 33, 98 L.Ed.2d 164 (1987).

21

In challenging the admission of the submachine gun, Martinez relies on the

Ninth Circuit's decision in United States v. Green, 648 F.2d 587 (9th Cir.1981)

(per curiam). We do not believe, however, that Green suggests a different

result. There the court held that it was error under Rule 403 to admit evidence
of defendant's possession of firearms, noting that weapons are generally held to
be inadmissible where they are unrelated to the charged offenses and the
charged offenses are not dependent on their use or ownership. 648 F.2d at 59495. However, the offenses in Green were a conspiracy to obstruct justice, to
make false statements, and to violate the civil rights of United States citizens.
Id. at 589. Here, on the contrary, the offenses at issue involve the distribution
of illegal drugs. Violence is not an uncommon feature of the drug trade and
weapons are often viewed as necessary tools to facilitate it. Indeed, in drug
distribution cases, the Ninth Circuit has allowed the admission of evidence of
firearms under Rule 403. See Savinovich, 845 F.2d at 837; Miroyan, 577 F.2d
at 495. Here Martinez' reliance on Green is misplaced.8
22

Furthermore, we find little substance in Martinez' position that no connection

was established between the Chase Street evidence and him. The government
did not allege nor seek to prove that Martinez owned the Chase Street home or
that he exercised dominion and control over all of its contents. Instead, in
introducing the Chase Street items in evidence, the government sought to
establish a key point in support of its evidentiary hypothesis that Martinez
acquired the two kilograms of cocaine from the Chase Street home and
supplied it to Romero--namely, that the Chase Street home was a "stash" house.
Generally speaking, this was not improper. Cf. 1 J. Weinstein & M. Berger,
Weinstein's Evidence, p 401, at 401-33 (noting that "[e]vidence that can assist
the trier of fact in evaluating the validity of an evidential hypothesis may be
admissible even though it may not directly relate to a consequential fact").

23

It was Martinez that lent probative force to this key point by his stop at the
Chase Street home. To be sure, the stop was a brief one of five to ten minutes.
However, we feel that it was permissible to draw the inference that this period
was sufficient for Martinez to acquire the two kilograms of cocaine.
Accordingly, we believe that no further showing of Martinez' contact with the
home (such as his involvement in a conspiracy with its occupants) was
necessary to support the admission of the evidence. Lastly, there was evidence
suggesting a plausible explanation for why the government Agent did not
observe Martinez removing the cocaine from the Chase Street home, if in fact
he did so (i.e., the obstruction of the Agent's view by Romero's car).
Accordingly, we uphold the district judge's admission of the Chase Street
evidence.

24

Martinez also contends that the district judge abused her discretion under Rule
403 in admitting evidence of the $8,710 in cash seized from his home and the
person of Oscar Mendoza. He notes that the government failed to establish that
the $8,710 in cash was fruit of the charged offenses and, in this connection,
underscores the fact that in the August 15 transaction involving Montoya, no
money changed hands. Further, Martinez analogizes the introduction of the
$8,710 in evidence to the admission of bad character materials, which is
prohibited, because the jury may have been led to believe that since it was
unlikely that a person in his financial position could possess or be associated
with that much money, he must be guilty of the charged offenses.9

25

Again we find no abuse of discretion. Initially, we reject the notion that the
government must establish that seized cash was the fruit of the particular drug
distribution offenses at issue for that cash to be admissible under Rule 403. As
noted in relation to the Chase Street evidence, large-scale cash transactions are
a prevalent feature of the drug distribution business. Accordingly, evidence of a
defendant's association with sizeable amounts of cash may be probative of his
or her involvement in that business, and thus bear on the question of defendant's
guilt of the charged drug distribution offenses. See, e.g., United States v.
Newton, 891 F.2d 944, 948-49 (1st Cir.1989). As the Eighth Circuit noted in
rejecting a similar contention, "it is not necessary that every piece of evidence
admitted should be sufficient by itself to prove the crime alleged." Wood, 834
F.2d at 1386. Furthermore, the possibility that the seized cash was the product
of entirely lawful activities goes to the weight of the evidence, not its
admissibility. See Newton, 891 F.2d at 949.

26

To be sure, absent other evidence of an accused's participation in the charged

distribution offenses, large quantities of cash may have little (if any) probative
value. See United States v. Chagra, 669 F.2d 241, 256 (5th Cir.), cert. denied,
459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982); Tramunti, 513 F.2d at
1105. In the instant case, however, the government did adduce other evidence
that tended to show Martinez' participation in the charged offenses.
Accordingly, there was a foundation in the evidence for the admission of the
$8,710.

27

In argument, Martinez draws heavily on the analysis in United States v.

Zarintash, 736 F.2d 66 (3d Cir.1984). There, in a drug distribution case, the
court concluded that it was error to admit evidence of $32,960 in cash seized
from defendant's apartment. The trial judge had admitted the evidence under a
"tools of the trade" rationale, reasoning that the possession of such large sums
of cash was a necessary feature of the drug distribution business. 736 F.2d at

71. In finding error, the court in Zarintash noted that the money was seized
from defendant's apartment nearly one year after the charged distribution
conspiracy ended. Assuming, without deciding, that the possession of money
could be probative of participation in a drug conspiracy, the court of appeals
ruled that the defendant's possession of the $32,960 at that time was not
sufficiently probative to justify its admission as to defendant's alleged
involvement one year earlier in the terminated conspiracy. In fact, the court
said that, absent any ties to the conspiracy, the evidence was akin to proscribed
bad character evidence. Id. at 71-72.10
28

Whatever the merits of the Zarintash analysis, which focuses on the proximity
in time between the charged offenses and the possession of the money, we are
not persuaded that admission of the $8,710 was in error here. In contrast to
Zarintash, the seizure of the $8,710 was closely tied in temporal terms to
Martinez' involvement in the charged distribution offenses. Specifically, the
government presented evidence that tended to show Martinez' participation in
the offenses on August 15, 1989. And, on that same day, law enforcement
officers seized the $8,710 in cash from Martinez' home and the person of Oscar
Mendoza. Instead of providing a speculative foundation for the jury's verdicts
of guilt like bad character evidence, under the "tools of the trade" rationale, the
$8,710 in cash was probative with respect to the commission of the charged
offenses. Accordingly, we find Martinez' reliance on Zarintash to be misplaced.
We hold that the admission of evidence regarding the $8,710 was not error.

29

AFFIRMED.

There are discrepancies in the briefs with respect to the amount of cash
discovered in the search of the Chase Street home. Compare Brief of Appellant
at 2 ($69,000) with Brief of Appellee at 13 ($69,315). And they persist with
respect to the amount of cash discovered on the person of Oscar Mendoza.
Compare Brief of Appellant at 3 ($1,988) with Brief of Appellee at 14 ($1,980)
Unlike similar discrepancies in the briefs, the citations to the record do not
dispel the confusion. See, e.g., V R. 332 (testimony of DEA Special Agent John
Flaherty) (describing the money seized from Chase Street as amounting to "just
under $70,000"); IV R. 223 (testimony of DEA Special Agent Daniel Topper)
(noting that he discovered on the person of Mendoza "in excess of $1,900 in
cash"). We do not find these differences in numbers to be material to our
determination of the issues in this case. Because the briefs reflect that at least
$69,000, and $1,980 were discovered in the search of the Chase Street home
and the person of Mendoza, respectively, we make use of these figures here.

Romero did not testify under a plea agreement. IV R. 240. The government
obtained his testimony through a compulsion order issued by the district judge
under 18 U.S.C. Sec. 6003. The order immunized Romero from further
prosecution for any crimes related to his three cocaine distributions to Agent
Montoya. I R., Doc. 4, at 2; Brief of Appellee at 21. Romero, however, was not
entirely a reluctant witness. At the time he testified, Romero had not been
sentenced, and his counsel had asked the government to consider seeking some
form of reduction in his possible sentence based on his testimony. IV R. 24243. Romero acknowledged in open court that he hoped that his testimony would
lead to a reduction in his sentence. Id. at 271, 299

Although the subject of a limiting instruction with regard to the Chase Street
evidence was initially raised by the district judge, Martinez concurred in the
giving of such an instruction. IV R. 110, 113. On appeal, Martinez suggests that
because the judge did not repeat the limiting instruction in its final charge to the
jury, in addition to giving it when the evidence was initially admitted, the
limiting instruction may not have been adequate to cure any prejudice flowing
from the Chase Street evidence
Ordinarily it is a litigant's responsibility to request a limiting instruction, and
Martinez failed to do so with respect to the final charge. Accordingly, Martinez'
objection to the adequacy of the limiting instruction regarding the Chase Street
evidence is not well taken. See United States v. Record, 873 F.2d 1363, 1376
(10th Cir.1989); United States v. Cuch, 842 F.2d 1173, 1177 (10th Cir.1988).
Accord United States v. Adams, 759 F.2d 1099, 1109 (3d Cir.), cert. denied,
474 U.S. 971, 106 S.Ct. 336, 88 L.Ed.2d 321 (1985). We note, on the subject of
the cash seized from Martinez' home and the person of Oscar Mendoza, that
there is no indication in the record that Martinez requested a limiting
instruction at any point in the proceedings, and none was given by the district
judge.

Martinez said that Romero sold meat products, and on August 15 he met
Romero to pick up an order of lard. Romero allegedly asked Martinez to
accompany him in his car and Romero would deliver the lard to him. In
Lakewood, Romero allegedly told Martinez that he wished to leave the car in
Martinez' control and depart on foot to tell nearby friends of his upcoming trip
to Mexico
Romero was said to have asked Martinez to proceed to 1330 Chase Street and
pick up some irons for him. Martinez allegedly entered the Chase Street home
and made an unsuccessful attempt to discover the whereabouts of the irons (the
exact nature of which he was uncertain), and then left. He later reunited with
Romero, who departed in his car alone. At that point, to get home, Martinez

said he accepted a ride with a person driving a black Mustang. Soon thereafter,
he was arrested. See V R. 405-13.
5

Martinez further contends that he was prejudiced by the admission of the Chase
Street evidence because he was compelled to put on an expert witness in
rebuttal to refute misguided inferences of guilt flowing from his presence at the
Chase Street home. The expert's testimony was intended to demonstrate that it
was unlikely that Martinez could have exited the Chase Street home with the
cocaine, undetected by the Agent on surveillance. V R. 378-79; Brief of
Appellant at 9. According to Martinez, in part this rebuttal testimony had the
negative effect of highlighting the Chase Street evidence, which, due to its
limited probative value, should not have been before the factfinder in the first
place. Because we conclude below that the factfinder could properly consider
the Chase Street evidence, we find no foundation for Martinez' assertion that he
was prejudiced by having to rebut it

See also United States v. Newton, 891 F.2d 944, 948-49 (1st Cir.1989) (largescale cash purchases); United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.)
(firearm and weighing scales), cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102
L.Ed.2d 358 (1988); United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987)
(firearm), cert. denied, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988);
United States v. Dempewolf, 817 F.2d 1318, 1322 (8th Cir.) ($720 in cash),
cert. denied, 484 U.S. 903, 108 S.Ct. 245, 98 L.Ed.2d 203 (1987); Adams, 759
F.2d at 1109 (firearm); United States v. Tramunti, 513 F.2d 1087, 1105 (2d
Cir.) ($967,450 in cash), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50
(1975)

In upholding the admission of evidence of the possession or expenditure of

large sums of cash, some courts have characterized drug distribution offenses as
crimes where "pecuniary gain is the usual motive for or natural result of" their
perpetration. United States v. Chagra, 669 F.2d 241, 256 (5th Cir.), cert.
denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982); see United States v.
Wood, 834 F.2d 1382, 1386 (8th Cir.1987). Cf. United States v. Jackskion, 102
F.2d 683, 684 (2d Cir.) (a bootlegging case), cert. denied, 307 U.S. 635, 59
S.Ct. 1032, 83 L.Ed. 1517 (1939). As such, drug distribution offenses are akin
to larceny and similar crimes, where it has been held that the sudden acquisition
of money by an accused renders the view that the money was acquired
dishonestly "a natural and prominent hypothesis." 1A J. Wigmore, Evidence
Sec. 154, at 1764 (1983); see Chagra, 669 F.2d at 256. Cf. Jackskion, 102 F.2d
at 684. While we do not quarrel with this characterization of drug distribution
offenses, our focus here is more precisely on the "cash-and-carry" nature of the
drug trade. United States v. McDonald, 933 F.2d at 1522 (10th Cir.1991)

We note that our decision in United States v. Warledo, 557 F.2d 721 (10th
Cir.1977), is distinguishable for similar reasons. In Warledo, we held that it
was error to admit an automatic rifle in evidence, reasoning in part that the rifle
was not relevant to the crimes charged. Id. at 725-26. The offenses at issue
were arson, extortion, and possession of an incendiary device. Although these
offenses may not be free from violence, in Warledo it is clear that we did not
perceive them as closely associated with the use of firearms and other weapons,
in contrast to the situation with drug distribution offenses. See United States v.
Marino, 658 F.2d 1120, 1123 n. 3 (6th Cir.1981) (noting that "the defendant in
Warledo did not need the weapons to protect his contraband as in the drug
conspiracy cases"); 1 J. Weinstein & M. Berger, Weinstein's Evidence p 401, at
401-71 (1989) (citing Warledo, and noting that courts have held that weapons
not used in the charged crime should be excluded where, generally, the offense
does not "suggest a clear possibility of the need for dangerous weapons")

Martinez also objects to the admission of the $8,710 on the ground that the
government has not charged him with any offenses that are based on the receipt
of money. As noted in connection with the Chase Street evidence, this
objection is without merit. See United States v. Ariza-Ibarra, 605 F.2d 1216,
1224-25 (1st Cir.1979)

10

The Third Circuit in Zarintash looked to Williams v. United States, 168 U.S.
382, 18 S.Ct. 92, 42 L.Ed. 509 (1897) for support. There, in a prosecution for
extorting money from Chinese immigrants, the Supreme Court held that the
trial court erred in admitting in evidence affidavits attesting to defendant's
financial condition and bank books tending to show that deposits were made on
defendant's behalf during the period of the alleged extortion, as there was no
"necessary or natural connection" between this evidence and the charged
offenses. 168 U.S. at 395-97, 18 S.Ct. at 96-98. The Court observed:
The manifest object and the necessary effect of this evidence was merely to
give color to the present charges, and to cause the jury to believe that the
accused had in his possession more money than a man in his condition could
have obtained by honest methods, and, therefore, he must be guilty of extorting
the two sums in question.
Id. at 396, 18 S.Ct. at 97 (emphasis in original).
We note that a number of circuit courts have concluded that Williams did not
"establish a general rule of evidence but instead simply constituted a narrow
ruling on the particular facts of that case." Chagra, 669 F.2d at 256 n. 21; see
Ariza-Ibarra, 605 F.2d at 1225 n. 11; Tramunti, 513 F.2d at 1105 n. 21;
Jackskion, 102 F.2d at 684. See also 1A J. Wigmore, Evidence Sec. 154, at

1764 n. 3 (1983) (severely criticizing the reasoning in Williams ). In any event,

we believe that admission of the $8,710 was not improper under Williams
because a "necessary or natural connection" was established here between the
money, the charged cocaine distribution offenses, and Martinez. See Chagra,
669 F.2d at 256 n. 21.