U.S. v. Bramble, 80-1343
| Decision Date | 09 March 1981 |
| Docket Number | No. 80-1343,80-1343 |
| Citation | 641 F.2d 681 |
| Parties | 7 Fed. R. Evid. Serv. 1186 UNITED STATES of America, Plaintiff-Appellee, v. Ronald Lee BRAMBLE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
B. E. Bergesen, III, Berkeley, Cal., for defendant-appellant.
Joseph Burton, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of California.
Before MERRILL and HUG, Circuit Judges, and WILKINS, * District judge.
Appellant, Ronald Lee Bramble, appeals his conviction of three counts of violating Title 21 U.S.C. § 841(a)(1), for distributing cocaine and possessing cocaine with intent to distribute. He does not dispute the fact that on January 8, 1980, he sold cocaine to one Spaulding, an acquaintance who, unbeknownst to him, was a paid informer for the Drug Enforcement Agency (DEA), and to two DEA agents. His defense was that he had been entrapped; that he had never sold cocaine before and that the sole reason he agreed to sell it on January 8 was to halt Spaulding's unrelenting requests for the drug, made in a series of harassing and upsetting phone calls to appellant over a period of weeks.
Appellant raises three issues on this appeal: (1) that evidence of a prior conviction was improperly admitted; (2) that he did not freely and voluntarily consent to the search of his car and that evidence from that search should therefore have been suppressed; and (3) that an Allen charge was improperly given to the jury.
Appellant contends that it was reversible error for the judge to admit into evidence a 1978 conviction for possession of marijuana. (Appellant had been cultivating 21 marijuana plants in a hot house in his back yard.) He contends that this conviction was irrelevant for the purpose for which it was offered: showing predisposition to sell cocaine. In the alternative, he asserts that even if the prior conviction were relevant, it does not appear on the record that the district court made any determination under Rule 403, Federal Rules of Evidence, 1 as to whether the probative value of the earlier conviction was substantially outweighed by the danger of unfair prejudice.
The government's purpose in offering the earlier offense in evidence was made plain in its argument to the jury. It argued that the possession and cultivation of marijuana gave rise to a rational inference that it was possession for purposes of sale; that from the fact so inferred a rational inference arose that appellant was predisposed to sell cocaine; and that with such predisposition, the entrapment defense collapsed.
The rule in this circuit is that "where entrapment is in issue evidence of prior crimes is not relevant unless it tends to prove that defendant was engaged in illegal operations in some way similar to those charged in the indictment." United States v. Segovia, 576 F.2d 251, 252 (9th Cir. 1978), quoting De Jong v. United States, 381 F.2d 725, 726 (9th Cir. 1967).
In the case before us the earlier conviction was for the crime of possession of marijuana. Appellant was not convicted of distribution, nor of possession with intent to distribute. In Enriquez v. United States, 314 F.2d 703 (9th Cir. 1963), this court considered the use of a previous drug offense in a subsequent trial for another crime. At page 717, we quoted Dean Wigmore:
2 Wigmore on Evidence § 302 (3d Ed. 1940). We held in Enriquez that possessing marijuana is not a similar offense to selling heroin, and that it was therefore reversible error to admit into evidence an earlier conviction of possession of marijuana for the purpose of proving intent to sell heroin.
It follows that appellant's conviction of possession of marijuana is not probative of his predisposition to sell cocaine. 2
The question remains whether, from appellant's cultivation of 21 marijuana plants, predisposition can be inferred as argued by the government. The record is barren of any evidence as to the precise amount of usable marijuana appellant's planting would yield, or the amount of marijuana, if any, used by appellant, or by an average user, or the extent of planting necessary for a commercial operation. To some segments of the population these facts might be said to be common knowledge. They are not to the members of this panel, and judicial notice cannot be taken one way or the other as to the purpose of a planting of this size. In absence of evidence that the planting was of commercial quantity, no rational inference can be drawn from the fact of cultivation that it was for the purpose of sale. It was thus error to admit this evidence, and reversal and remand are in order.
If, on new trial, probative value is established, then under Rule 403, ...
To continue reading
Request your trial
-
US v. Bramble
...officers to proceed to a warrant search in his absence. It does not lie with him now to complain that the search was without warrant. 641 F.2d at 683. Nor did anyone ever tell Bramble that his refusal to give his consent to search would be a futile gesture. Based upon these circumstances, w......
-
U.S. v. Moschiano
...... We affirm the convictions of both defendants. . We also have before us the appeal of respondent Stephen M. Komie, counsel for Bishop, who was found guilty of criminal ... See, e.g., United States v. Bramble, 641 F.2d 681 (9th Cir.1981); United States v. Jimenez, supra. . 16 Rule 14 of the Federal Rules ......
-
State v. Gibbons
...of drugs is sufficiently similar to the distribution of drugs to show a predisposition to distribute. Compare United States v. Bramble, 641 F.2d 681, 683 (9th Cir.), cert. denied, 459 U.S. 1072, 103 S.Ct. 493, 74 L.Ed.2d 635 (1981) (prior conviction for possession of marijuana irrelevant to......
-
U.S. v. Vizcarra-Martinez, VIZCARRA-MARTINE
...it has "little probative value ... to prove any of the purposes listed in Rule 404(b)" (emphasis added)); cf. United States v. Bramble, 641 F.2d 681, 682 (9th Cir.1981) (emphasizing the distinction between being convicted of possession and being convicted of distribution or possession with ......
-
§ 44.03 TYPES OF FACTS SUBJECT TO NOTICE: FRE 201(B)
...§ 2571(1) (3d ed. 1940) ("notorious" facts); Unif. R. Evid. 9(1) (1953) ("universally known" facts).[30] See United States v. Bramble, 641 F.2d 681, 683 (9th Cir. 1981) (that twenty-one marijuana plants make up a commercial crop for inference of "intent to sell").[31] 194 F.3d 18, 22 (1st C......
-
§ 44.03 Types of Facts Subject to Notice: FRE 201(b)
...§ 2571(1) (3d ed. 1940) ("notorious" facts); Unif. R. Evid. 9(1) (1953) ("universally known" facts).[31] See United States v. Bramble, 641 F.2d 681, 683 (9th Cir. 1981) (that twenty-one marijuana plants make up a commercial crop for inference of "intent to sell").[32] 194 F.3d 18, 22 (1st C......