551 F.2d 266 (10th Cir. 1977), 76-1177, United States v. Nolan

Docket Nº:76-1177.
Citation:551 F.2d 266
Party Name:UNITED STATES of America, Appellee, v. Charles Wallace NOLAN, Jr., Appellant.
Case Date:March 22, 1977
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 266

551 F.2d 266 (10th Cir. 1977)

UNITED STATES of America, Appellee,

v.

Charles Wallace NOLAN, Jr., Appellant.

No. 76-1177.

United States Court of Appeals, Tenth Circuit

March 22, 1977

Argued and Submitted Jan. 25, 1977.

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Jon K. Sargent, Asst. U. S. Atty., District of Kansas, Wichita, Kan. (E. Edward Johnson, U. S. Atty., Wichita, Kan., on the brief), for appellee.

C. Rabon Martin of Baker, Baker & Martin, Tulsa, Okl., for appellant.

Before LEWIS, Chief Judge, and PICKETT and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Charles Wallace Nolan (Nolan) appeals from a jury conviction on charges stemming from an indictment alleging that he imported controlled substances into the United States in violation of 21 U.S.C.A. § 952(a).

On July 3, 1975, an air waybill was executed in New Delhi, India, by Paul Edward Donegan, pertaining to a crate consigned to Nolan in Emporia, Kansas. Nolan had been in India approximately one month before the crate was shipped. While in India, Nolan had purchased certain musical instruments contained in the crate.

When the crate arrived in the United States, the Customs Director sent a notice to Nolan at Emporia directing him to pick up the package at the airport in Wichita, Kansas. The Customs Director then ran a computer check with the Department of the Treasury for information regarding Nolan. The computer provided information that Nolan had been convicted of a drug importation violation in the Commonwealth of Great Britain in 1973. This prompted the Customs Agent to conduct a careful examination of the crate. By drilling holes in the crate, he determined that it was hollow and that it contained a controlled substance, i. e., marijuana.

After Nolan arrived at the Wichita airport to receive the package, he pointed to the crate with the sitar and drums at its side and remarked "I see you have got my stuff." He said that he had gone to India for about six weeks to learn to play the sitar. Nolan was then arrested, whereupon he said that he had "never been to India" and that he knew nothing of the controlled substance in the crate.

Nolan moved for a suppression of the controlled substance. The motion was denied following a full hearing.

At trial, the government offered the testimony of the Customs Director regarding Nolan's British conviction originally revealed by the Treasury Department computer, to show a justifiable basis for the search. The government also presented the testimony of the British Customs Agent who had apprehended Nolan for importing various contraband materials into the Commonwealth in 1973, ostensibly for the purpose of showing knowledge, intent, motive, common plan and scheme. The British Agent testified about custodial admissions of Nolan, the court proceedings, the pre-sentence investigation and the judicial disposition. The government showed the "street value" of the marijuana and argued to the jury that Nolan hoped to reap great profits from it. Nolan did not present any evidence. The trial court instructed, inter alia, that one of the jury's functions was to find the defendant guilty or innocent (as compared to the normal standard of not guilty).

Nolan was sentenced to three years imprisonment, followed by a two year probationary term.

On appeal Nolan argues that the court erred (1) in admitting testimony dealing with the prior British conviction; (2) in admitting evidence and argument regarding Nolan's forthcoming distribution of the contraband; (3) in upholding the verdict inasmuch as the evidence was not sufficient to support a conviction; and (4) in instructing the jury.

I.

Nolan contends that the court erred in admitting testimony regarding Nolan's prior

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British conviction for the importation of hashish.

In 1973, when Nolan was en route from New Delhi, India, to the United States he landed at a London airport. During that stop, a British Customs Agent discovered contraband on Nolan's person and in the base of some wooden lamps he was carrying. The British Customs Agent was allowed to testify about a confession Nolan made to him in Britain and that Nolan was charged with and pled guilty to violation of the British importation laws. We hold that this testimony is admissible.

A.

Nolan contends that an alien criminal conviction is inadmissible, per se, in a United States federal criminal proceeding; and, in the alternative, that before admitting such a criminal conviction, it must be shown that each and every United States constitutional safeguard afforded criminal defendants was complied with in the foreign country where the conviction was obtained.

The government asserts that this issue was not raised at trial and therefore the appellate court should not consider it. In reviewing the record we find, however, that the issue was raised at trial and thus preserved for our consideration. (R., Vol. III, p. 115.)

Nolan admits that he does not have any authority directly in point. He relies on Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). His reliance on Burgett, supra, is misplaced. The Court there held that a conviction violative of the constitutional right to counsel cannot be introduced "to support guilt or enhance punishment." 389 U.S., at 115, 88 S.Ct., at 262. The British conviction was not introduced "to support guilt or enhance punishment." It was introduced solely for the purpose of showing intent, design, a continuing course of conduct, guilty knowledge, mental disposition, capacity, habit, plan, motive or identity. Therefore, Burgett, supra, is inapplicable.

We have repeatedly held that evidence of uncharged crimes, wrongs or alleged prejudicial acts may be received for purposes proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. United States v. Freeman, 514 F.2d 1184 (10th Cir. 1975); United States v. Parker, 469 F.2d 884 (10th Cir. 1972); United States v. Pickens, 465 F.2d 884 (10th Cir. 1972); United States v. Pauldino,443 F.2d 1108 (10th Cir. 1971), cert. denied, 404 U.S...

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