U.S. v. Bailleaux

Decision Date14 December 1982
Docket NumberNo. 81-1219,81-1219
Citation685 F.2d 1105
Parties11 Fed. R. Evid. Serv. 1300 UNITED STATES of America, Plaintiff-Appellee, v. Paul Rowton BAILLEAUX, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

H. Dean Steward, San Diego, Cal., for defendant-appellant.

Raymond J. Coughlin, Jr., Asst. U. S. Atty., argued; M. James Lorenz, U.S. Atty., Raymond J. Coughlan, Jr., Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before SCHROEDER and REINHARDT, Circuit Judges, and THOMPSON, * Senior District Judge.

REINHARDT, Circuit Judge.

Appellant Paul Rowton Bailleaux was convicted after a jury trial on three counts of a five count indictment. He was convicted of one count of conspiracy to interfere with commerce by threats or violence in violation of 18 U.S.C. § 1951 and two counts of substantive violations of 18 U.S.C. § 1951 arising out of attempted extortions in the San Diego and Palm Desert areas in California. Bailleaux appeals from his conviction alleging that (1) the trial court committed an abuse of discretion in denying his motion for a change of venue due to extensive pretrial publicity concerning the crimes charged; (2) the trial court abused its discretion in admitting evidence relating to appellant's prior criminal conduct and conviction in Oregon; and (3) it was reversible error for the district court to admit evidence of a taped conversation between appellant and his former business associate because appellant was not advised of the existence of the tape until after he had testified on direct examination.

We affirm the judgment of the district court.

I

Appellant's first contention is that he should have been granted a change of venue because the jury was prejudiced by adverse pretrial publicity concerning the crimes with which he was charged. A motion for a change of venue is committed to the sound discretion of the district court, and a denial of such motion should be reversed only upon a showing of a clear abuse of discretion. United States v. Pry, 625 F.2d 689 (5th Cir. 1980), cert. denied, 450 U.S. 925, 101 S.Ct. 1379, 67 L.Ed.2d 355 (1981). Appellant has made no such showing.

It is not all publicity that causes prejudice to a defendant, but only that publicity that operates to deprive the defendant of a fair trial. United States v. Mandel, 415 F.Supp. 1033, 1073 (D.Md.1976). The most common form of publicity that deprives the defendant of a fair trial is "the type that proclaims the defendant's guilt in advance of trial and prejudices the minds of the public against the defendant to such an extent that most people are unable to weigh the evidence objectively." Id. At oral argument, the appellant acknowledged that most of the publicity in this case focused on the crimes themselves rather than on the guilt or innocence of the appellant. Moreover, to the extent that the publicity did focus on an individual suspect, it was directed in part to another individual who was initially indicted for the same offenses. The charges against that individual were dismissed prior to appellant's indictment.

The district court found that the media coverage of the crimes themselves was basically factual and neutral, and that much of it occurred more than a year prior to the date on which appellant's jury was selected. The coverage was not of such a nature as to preclude a reasonable juror from independently assessing appellant's guilt on the basis of the evidence produced at trial. Indeed, appellant was convicted on only three counts of a five count indictment. Thus, appellant does not appear to have been subject to publicity of the type that so prejudices the minds of the public that "most people are unable to weigh the evidence objectively."

Appellant argues, however, that because a public opinion poll he commissioned demonstrated that over 80% of the general public had heard or read about the crimes and because virtually all of the veniremen indicated that they had heard of the crimes, it was impossible to assemble a fair and impartial jury in the Southern District of California. The fact that a juror has heard or read about a crime does not mean that he or she cannot render an impartial verdict. In conducting the voir dire the district court was sensitive to appellant's claim that he had been prejudiced by extensive pretrial publicity and made careful inquiries of the prospective jurors as to their ability to render a fair and impartial verdict. Those jurors who voiced any doubt as to their ability to decide the case in an impartial manner were excused. Finally, the district court announced its willingness to reconsider appellant's motion for a change of venue if it appeared after voir dire that an impartial jury could not be assembled. Under these circumstances, we cannot say that the district court abused its discretion in denying appellant's motion for a change of venue.

II

Appellant next contends that the district court abused its discretion by (1) allowing the Government to offer evidence of the fact of appellant's prior conviction for a similar offense in Oregon, and (2) allowing the Government to offer substantive evidence of the acts on which the Oregon conviction was based. Courts must be extremely careful to guard against the danger that defendants will be convicted because they have previously committed a serious criminal offense rather than because the Government has introduced evidence sufficient to prove beyond a reasonable doubt that they are guilty of the offense for which they are being tried. This danger exists whenever a jury is advised of the fact of a prior conviction, or evidence relating to earlier criminal conduct is admitted. For that reason, the use of such evidence must be narrowly circumscribed and limited. See generally Fed.R.Evid. 403, 404; United States v. Powell, 587 F.2d 443, 448-49 (9th Cir. 1978) (use of marijuana conviction to raise inference that defendant was disposed to commit marijuana offenses is prohibited); United States v. Calvert, 523 F.2d 895, 907 (8th Cir. 1975), cert. denied, 424 U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976) (if evidence of other crimes is admitted, court should give limiting instruction indicating narrow purpose for which evidence may be used).

Evidence of prior criminal conduct is not admissible to show that the defendant has a "bad character" and is therefore likely to have committed the crime charged. Such evidence is admissible, however, for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, and identity. Fed.R.Evid. 404(b). Before evidence of prior criminal conduct may be admitted for these other purposes, the following prerequisites must be met: (1) proof that the defendant committed the other crime must be clear and convincing; (2) the prior criminal conduct must not be too remote in time from the commission of the crime charged; (3) the prior criminal conduct must, in some cases, be similar to the offense charged; 1 and (4) the prior criminal conduct must be introduced to prove an element of the charged offense that is a material issue in the case. See United States v. Herrera-Medina, 609 F.2d 376 (9th Cir. 1979); United States v. Myers, 550 F.2d 1036 (5th Cir. 1977); United States v. Frederickson, 601 F.2d 1358 (8th Cir.), cert. denied, 444 U.S. 934, 100 S.Ct. 281, 62 L.Ed.2d 193 (1979). Once these prerequisites have been satisfied, the evidence is admissible for those purposes permitted by Rule 404(b) if the court determines that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403. This balancing is committed to the sound discretion of the district court. United States v. Federico, 658 F.2d 1337 (9th Cir. 1981).

Appellant first claims that the prejudice created by the admission into evidence of his prior conviction outweighs any probative value that it may have had. However, we need not determine whether the four part test was met with respect to that evidence nor whether the appellant was unfairly prejudiced by its admission. It was appellant himself who first offered the evidence of the prior conviction while testifying on direct examination. If any prejudice resulted from the admission of his conviction, it is directly attributable to appellant. Moreover, having opened the subject in his direct testimony, appellant may not object to the Government's subsequent inquiries into the relevant aspects of his prior conviction. The Government contends that it was necessary to cross-examine appellant regarding the conviction to negate the inference that appellant confessed to the Oregon crimes because he was guilty, but denied the San Diego crimes because he was innocent. We agree that the Government's inquiry into appellant's prior conviction on cross-examination was proper.

The appellant also contends that the trial court abused its discretion in allowing the Government to introduce, in its case-in-chief, substantive evidence of the crimes appellant was convicted of in Oregon. The similarities between the offenses charged in this case and the crimes of which appellant was convicted in Oregon are dramatic. Each incident involved a bizarre extortion attempt based on the poisoning of a food item in a store and a subsequent demand for diamonds to forestall further poisonings. There were other striking similarities in the way in which the crimes were carried out-the wording of the extortion notes, the method for contacting the extortionist via a local radio station, the type of poison used, and the procedure for dropping off the extortion payment. The Government argues that the evidence was independently admissible as evidence of conspiracy, modus operandi and identity under Federal Rule of Evidence...

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