U.S. v. Ellis

• Decision Date: 02 July 1998
• Docket Number: No. 97-30238,97-30238
• Citation: 147 F.3d 1131
• Parties: 49 Fed. R. Evid. Serv. 1018, 98 Cal. Daily Op. Serv. 5263, 98 Daily Journal D.A.R. 7385 UNITED STATES of America, Plaintiff-Appellee, v. Randy Gean ELLIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1131

147 F.3d 1131

49 Fed. R. Evid. Serv. 1018, 98 Cal. Daily Op.

Serv. 5263,

98 Daily Journal D.A.R. 7385

UNITED STATES of America, Plaintiff-Appellee, v. Randy Gean ELLIS, Defendant-Appellant.

No. 97-30238.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 7, 1998.

Decided July 2, 1998.

Mark Bennett Weintraub, Assistant Federal Public Defender, Eugene, Oregon, for defendant-appellant.

Kristine Olson, United States Attorney, Portland, Oregon, for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief District Judge, Presiding. D.C. No. CR-96-60137-1-MRH.

Before: HAWKINS, THOMAS, and SILVERMAN, Circuit Judges.

MICHAEL DALY HAWKINS, Circuit Judge:

Randy Gean Ellis ("Ellis") appeals his conviction and sentence for receiving and concealing stolen explosives, see 18 U.S.C. § 842(h), ¹ and knowingly receiving or possessing explosives after being convicted of a felony, see 18 U.S.C. § 842(i)(1). ²

FACTS

In June 1993, employees of Klamath Pacific Corp. discovered certain explosive materials missing from the company's gravel pit in Klamath Falls, Oregon. The materials consisted of nonelectric caps, brown cap boosters, high explosives, connecting wire, lead-in line and ammonium nitrate.

Three months later, Ellis, while in Kern County Jail on other charges, contacted and was then interviewed by the FBI. Ellis explained that he had information regarding the Klamath explosives and that a man named "Joe" had the explosives. Ellis was later re-interviewed and drew a diagram mapping out the location where the materials had been taken.

Rodney Bortis had earlier informed local authorities that Ellis and one Richard Depew came to his apartment in May 1993 and borrowed a copy of The Anarchist Cookbook, a self-described primer for the student of "individual actions of destruction" that contains chapters titled "Drugs," "Electronics, Sabotage, and Surveillance," "Natural, Nonlethal, and Lethal Weapons," and "Explosives." Ellis and Bortis had with them a bag of white crystals they described as containing 100 pounds of ammonium nitrate, and explained that they were looking for a way to turn it into a bomb.

Richard Depew eventually agreed to cooperate with law enforcement officers, and named Ellis as his accomplice in the theft of the explosives. Deputies later searched the home of Ellis's parents and found a spool of lead-in line that was traced to the explosive materials missing from the Klamath gravel pit. In the course of the search, a deputy photographed the tires of a truck parked at the house and noticed the tire tread was similar to the tracks left at Klamath.

At Ellis's jury trial, an immunized Richard Depew testified he had been with Ellis when the explosive materials were stolen and had helped Ellis load them into the back of a truck. Depew recounted how Ellis drove back to his parents' house, leaving the pickup and explosive materials there. Ellis later threatened to kill Depew if he told anyone about the theft.

Ellis was convicted of both receiving and concealing stolen explosives and knowingly receiving or possessing explosives after being convicted of a felony, and was sentenced to 103 months imprisonment. He appeals both his conviction and sentence. ³

ANALYSIS

I. Admission of Evidence

A. Bortis Statements

Rodney Bortis was allowed, over the hearsay objection of Ellis, to testify that when he attempted to obtain explosives from one Terry Grossarth, Grossarth had responded that "the people with the explosives ('Randy [the defendant] and Rich') were in jail."

The government concedes that this statement would normally constitute hearsay, but argues that it is nonetheless admissible under United States v. Collicott, 92 F.3d 973 (9th Cir.1996). Fed.R.Evid. 801(d)(1)(B) provides that a witness's statement otherwise constituting hearsay may be admitted if it is "offered to rebut a charge of 'recent fabrication or improper influence or motive.' " ⁴ Collicott, 92 F.3d at 978-79 (quoting Rule 801(d)(1)(B)). Additionally, under the opened door doctrine, we noted in Collicott that "[a]fter a witness has been impeached with prior inconsistent statements, we have admitted the entire conversation or document from which the impeachment statements were drawn if it has significant probative force bearing on credibility ... by placing the inconsistencies in a broader context, demonstrating that the inconsistencies were a minor part of an otherwise consistent account." Id. at 980 (citations and internal quotation marks omitted).

The government maintains that Bortis's statement was admissible because it was in response to defense counsel's attempt to impeach Bortis by implying that he had received lenient treatment in exchange for his cooperation with police, specifically, by agreeing to purchase explosives from Grossarth. This plainly does not meet Fed.R.Evid. 801(d)(1)(B)'s requirement of rebuttal to a charge of recent fabrication. Nor is this statement admissible under Collicott 's opened door doctrine, which allows the admission of an entire prior conversation in order to place another prior inconsistent statement within a broader context. Rather, it was simply a recollection of a related event.

Because the government admits that Bortis's statements were hearsay, and because his statements do not satisfy Collicott or Fed.R.Evid. 801(d)(1)(B) (and the government concedes no other hearsay exception applies), the admission of this statement was error.

Nevertheless, such an error may be considered harmless unless we have "grave doubt whether the erroneously admitted evidence substantially affected the verdict." ⁵ Collicott, 92 F.3d at 984. The potential harm from the admission of the Bortis testimony is that the jury learned that Ellis had been in jail on other charges prior to his indictment on the present charges. But one of the counts in Ellis's indictment charged him with knowingly receiving or possessing explosives after being convicted of a felony. In addition, two federal agents testified that Ellis had been incarcerated in October 1993. Because the error resulted in the admission of evidence that was properly before the jury, the potential that it affected the outcome of the trial was minimal and, standing alone, does not constitute a basis for reversal.

B. The Anarchist Cookbook

Ellis moved to exclude the government's proposed Exhibit 13, The Anarchist Cookbook ("the Cookbook"), prior to trial. ⁶ After the district court denied Ellis's motion, Ellis again unsuccessfully objected at trial "based on relevance grounds and also under [Fed.R.Evid.] 403," arguing that the book "contains a lot of irrelevant and inflammatory material about such things as drugs, revolutionary politics, sabotage and inflammatory material that just don't go to any issues in the case." The government responded that the book "contains several recipes for explosives and is relevant to the defendant's intent." The district court admitted the Cookbook in its entirety. ⁷

On appeal, Ellis reiterates his argument that the Cookbook was unfairly prejudicial under Fed.R.Evid. 403. We agree.

Fed.R.Evid. 403 provides:

Although relevant, ⁸ 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.

Although trial courts have fairly broad discretion under Fed.R.Evid. 403, see United States v. Spencer, 1 F.3d 742, 744 (9th Cir.1993), to admit or exclude relevant evidence, it should be excluded if its probative value is outweighed by unfair prejudice. ⁹ See United States v. Layton, 855 F.2d 1388, 1402 (9th Cir.1988), overruled on other grounds by Guam v. Ignacio, 10 F.3d 608 (9th Cir.1993). "Unfair prejudice" refers to an "undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one" or "evidence designed to elicit a response from the jurors that is not justified by the evidence." 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 403.04[b] (Joseph M. McLaughlin, ed., Matthew Bender 2d ed.1997).

In United States v. Giese, 597 F.2d 1170 (9th Cir.1979), while we ultimately approved of the admission of a potentially prejudicial book (From the Movement toward Revolution ), we emphasized the special circumstances of that case ¹⁰ and cautioned:

[W]e are not establishing a general rule that the government may use a person's reading habits, literary tastes, or political views as evidence against him in a criminal prosecution. In many cases such evidence would be clearly inadmissible.

Id. at 1185.

Similarly, in United States v. McCrea, 583 F.2d 1083, 1086 (9th Cir.1978), we emphasized that prejudicial books and manuals--there the OSS Sabotage and Demolition Manual--are normally inadmissible when they are "entirely unnecessary to support the charge of possession."

That is precisely the case here: Ellis was charged with mere receipt and possession of the stolen explosives. Intent was not an element of the charge; Ellis either knowingly had the explosive devices in his possession or did not. His possession of The Anarchist Cookbook was simply not relevant to the charge he faced:

[When] possession [i]s all the government ha[s] to prove[ ] the defendant's intent [is] immaterial. One cannot logically infer possession of firearms and explosives (as opposed to knowledge of how to use them) from mere possession of books about guns, bombs, and related subjects.

Giese, 597 F.2d at 1187 (emphasis in the original). In McCrea, we also emphasized that "[t]he prosecuting attorney need not have used [the Improvised Munitions Handbook and the OSS Sabotage & Demolition Manual ] as evidence [because these books were] entirely unnecessary to support the charge of possession of the unregistered destructive device."...