U.S. v. Lillard

• Citation: 354 F.3d 850
• Decision Date: 02 December 2003
• Docket Number: No. 02-50264.,02-50264.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lonnie LILLARD, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

354 F.3d 850

UNITED STATES of America, Plaintiff-Appellee, v. Lonnie LILLARD, Defendant-Appellant.

No. 02-50264.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 4, 2003.

Filed December 2, 2003.

COPYRIGHT MATERIAL OMITTED

Robison D. Harley, Santa Ana, California, for the defendant-appellant.

Mark A. Young, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, Terry J. Hatter, District Judge, Presiding. D.C. No. CR-01-00091-TJH.

Before: B. FLETCHER, RYMER, and GRABER, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

Appellant Lonnie Lillard appeals his jury conviction and sentence for conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846. Lillard argues that his conviction should be reversed for three reasons: (1) the trial court abused its discretion by admitting character evidence in violation of Fed.R.Evid. 404(b) and 403; (2) the trial court committed plain error by failing to give an alibi instruction to the jury; and (3) he was denied effective assistance of counsel because his trial attorney failed to call available alibi witnesses. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

STANDARDS OF REVIEW

This court applies de novo review to the questions of whether particular evidence falls within the scope of a rule of evidence, United States v. Smith, 282 F.3d 758, 768(9th Cir.2002), and whether evidence is relevant to the conduct charged in the indictment or only to other acts, United States v. Mundi, 892 F.2d 817, 820 (9th Cir.1989). The district court's decision to admit or exclude evidence is reviewed for abuse of discretion. United States v. Danielson, 325 F.3d 1054, 1075 (9th Cir.2003) (Fed.R.Evid.404(b)); United States v. Gonzalez-Torres, 309 F.3d 594, 601 (9th Cir.2002) (Fed.R.Evid.403), cert. denied, 538 U.S. 969, 123 S.Ct. 1768, 155 L.Ed.2d 526 (2003). Because Lillard neither requested a jury instruction, nor made a contemporaneous objection when one was not given, we review the district court's omission of such an instruction for plain error. See Jones v. United States, 527 U.S. 373, 388, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); United States v. Franklin, 321 F.3d 1231, 1240 (9th Cir.), cert. denied, 540 U.S. 858, 124 S.Ct. 161, 157 L.Ed.2d 106 (2003). We decline to review ineffective assistance of counsel claims raised on direct appeal unless the record is adequately developed. United States v. Ross, 206 F.3d 896, 900 (9th Cir.2000).

BACKGROUND

In November 2000, Drug Enforcement Agency agents and task force officers began monitoring the cellular telephone conversations of German Duenez, who worked for Martin Dominguez, a transporter of narcotic drugs. Both Duenez and Dominguez were co-defendants of the appellant, Lonnie Lillard. In November and December 2000, Duenez made arrangements with Howard Hooper, another co-defendant and the apparent employer of Lillard, to have Lillard drive a shipment of drugs from McAllen, Texas to the East Coast. According to the conversations, Lillard was to be paid $20,000 for delivering the drugs to New Jersey.

Lillard arrived in McAllen, as arranged, to pick up the drugs. He later met with Dominguez' associates to have the drugs loaded onto the truck. During the trip from Texas to New Jersey, Lillard told Hooper that a couple of the boxes had burst open, and that the boxes contained cocaine. Upon delivery of the drugs in New Jersey, Duenez and other employees of Dominguez discovered that eight bundles of cocaine were missing from the shipment. After Dominguez complained about the eight missing bundles, Hooper agreed to accept half the agreed-upon fee and to transport another load of cocaine in order to settle the dispute. Lillard later showed approximately seven kilograms of cocaine to Hooper, and told him that it was the cocaine that he had stolen from the December shipment. Lillard sold the stolen cocaine and shared the proceeds with Hooper.

Lillard and eight co-defendants were charged with narcotics crimes by a federal grand jury in the Central District of California. In particular, Lillard was charged with conspiracy to distribute, and conspiracy to possess with intent to distribute, at least five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1). The indictment alleged that (1) Lillard conspired with his co-defendants to transport 150 kilograms of cocaine from McAllen, Texas to New Jersey in December 2000, and (2) he stole eight kilograms from that load.

Lillard filed a motion in limine to exclude evidence of his theft of the eight kilograms of cocaine, arguing that evidence of this theft had no probative value, and was unfairly prejudicial. The district court denied the motion to exclude, and the parties proceeded to trial. On the second day of the trial, defense counsel informed the court that a witness he intended to call would provide an alibi for Lillard. The court allowed Lillard to call this witness — Georgina Penny Lorraine Harder, the defendant's fiancée — who testified that she had called Lillard almost every day at his mother's house in Chicago during the time period the government alleged he was in Texas collecting the cocaine.

At the conclusion of trial, both the government and the defense submitted proposed jury instructions. Defense counsel did not request an alibi instruction, and did not object to the court's failure to include one. He did, however, discuss Harder's testimony regarding Lillard's alibi during his closing argument. The jury convicted Lillard of conspiracy to possess and distribute cocaine.

DISCUSSION

I. Admission of evidence of the eight-kilogram theft

Lillard's argument that Fed R. Evid. 404(b) prohibited the admission of evidence of his theft of the eight kilograms of cocaine is unavailing. Rule 404(b) prevents the admission of "other crimes, wrongs, or acts" to prove the character or criminal propensity of a defendant, but permits such evidence to be used for the limited purposes of proving "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." This rule is inapplicable, however, where the evidence the government seeks to introduce is directly related to, or inextricably intertwined with, the crime charged in the indictment. See United States v. Williams, 989 F.2d 1061, 1070 (9th Cir.1993) ("Evidence should not be considered `other crimes' evidence when the evidence concerning the other act and the evidence concerning the crime charged are inextricably intertwined.") (internal quotation marks and citations omitted).

Evidence of Lillard's theft of the cocaine was inextricably intertwined with the conspiracy charge. As we noted in Williams, "[t]he policies underlying rule 404(b) are inapplicable when offenses committed as part of a single criminal episode become other acts simply because the defendant is indicted for less than all of his actions." Id. (internal quotation marks and citation omitted). Lillard stole the cocaine from the very shipment that provided the basis for his involvement in the conspiracy to possess and distribute cocaine. See United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012(9th Cir.1995) (evidence is "inextricably intertwined" if "it constitutes a part of the transaction that serves as the basis for the criminal charge"). Telephone conversations among Duenez, Dominguez, and Hooper discussing the missing eight bundles of cocaine all identify Lillard as the driver of the December shipment. Lillard's subsequent admissions to Hooper concerning the theft provide additional evidence of identity, but more importantly serve to establish another element of the conspiracy, namely Lillard's knowledge of the contents of the illegal December shipment.

Moreover, the district court's admission of the evidence did not violate Fed.R.Evid. 403, which provides that even 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." Both parties agree that the trial judge did not engage in an explicit Rule 403 analysis, but note correctly that it is sufficient if a review of the record shows that the court considered the rule's requirements before admitting the evidence. See United States v. Jackson, 84 F.3d 1154, 1159 (9th Cir. 1996) (finding that the court implicitly found that the disputed evidence's probative value outweighed its prejudicial effect because "immediately before the court's initial decision to admit the evidence, [defendant]'s counsel argued repeatedly that it was unduly prejudicial"); United States v. Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir.1992) (finding that the district court had implicitly evaluated Rule 403's requirements because the government's trial memorandum "reminded the judge of the necessity of weighing probative value and prejudice").

In this case, Lillard's counsel specifically and repeatedly argued for the exclusion of the evidence on the grounds that it was "highly prejudicial to the defense," and that the evidence "ha[d] no probative value and[was] unfairly prejudicial under F.R.E. 403." Given these facts, we conclude that the district court implicitly balanced the probative value of the evidence against its prejudicial effect, and therefore did not abuse its discretion in deciding to admit the evidence.

II. Failure to give an alibi jury instruction

As noted above, because Lillard did not object to the district court's failure to give an alibi instruction at the time of trial, we review this claim for plain error.

[B]efore an appellate court can correct an error not raised at trial, there must be (1) "error," (2) that is "plain," and (3) that "affect[s] substantial rights." If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error "seriously affect[s] the...