U.S. v. Kehm, s. 84-3028

• Decision Date: 26 August 1986
• Docket Number: Nos. 84-3028,85-2156,s. 84-3028
• Parties: 21 Fed. R. Evid. Serv. 339 UNITED STATES of America, Plaintiff-Appellee, v. Charles H. KEHM, III, and Steven M. Greenberg, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 354

799 F.2d 354

21 Fed. R. Evid. Serv. 339

UNITED STATES of America, Plaintiff-Appellee, v. Charles H. KEHM, III, and Steven M. Greenberg, Defendants-Appellants.

Nos. 84-3028, 85-2156.

United States Court of Appeals, Seventh Circuit.

Argued May 7, 1986.

Decided Aug. 26, 1986.

William T. Grimmer, Asst. U.S. Atty., Hammond, Ind., for defendants-appellants.

Gary B. Kromelow, Sinnott & Kromelow, Chicago, Ill., Rhoda A. Brofman, Davis, Brofman, Zipperman & Dirschenbaum, Atlanta, Ga., for plaintiff-appellee.

Before COFFEY and EASTERBROOK, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

EASTERBROOK, Circuit Judge.

Ronald Markowski organized a smuggling ring to import drugs from South America via the Bahamas. Forty-one participants were indicted in Indiana. Most of the cases have been concluded. See United States v. Markowski, 772 F.2d 358 (7th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1202, 89 L.Ed.2d 316 (1986); United States v. Molt, 772 F.2d 366 (7th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1458, 89 L.Ed.2d 715 (1986). Today we deal with two of the participants in Markowski's organization, Charles Kehm and Steven Greenberg. The evidence allowed the jury to find that Kehm managed a resort in the Bahamas where he helped other importers transship drugs and that he was the captain of a boat on which drugs were carried. Greenberg was a lawyer. The jury could have found that he organized Marlowe Corp., through which Markowski and his henchmen rented an airplane used to carry drugs, and that Greenberg also alerted members of the gang when they were too "hot" to visit the Bahamas. In separate trials, Kehm and Greenberg were convicted of conspiring to import and distribute marijuana and cocaine, in violation of 21 U.S.C. Secs. 841, 846, 952(a), and 963. Kehm received consecutive terms adding to eight years' imprisonment; Greenberg was sentenced to concurrent terms of two years' imprisonment.

I

Kehm's principal argument concerns a videotape of a discussion with two undercover agents. During the discussion Kehm offered his services as a smuggler and told the agents he could hide the operation by using a resort as a cover. The tape also contains Kehm's boasts about his past crimes. The district court initially excluded this videotape, which concerns new crimes as well as the ones for which Kehm stood accused, on the ground that this other-crime evidence would unduly injure Kehm's defense. See Fed.R.Evid. 403. The court allowed agent Munson, one of the agents seen on the videotape, to testify to Kehm's admissions concerning the Markowski smuggling ring.

Kehm put on fourteen witnesses. Twelve testified that they had not seen Kehm smuggle anything. Many also testified that Kehm was busy running his bustling resort; counsel pressed the implication that Kehm would not have had time to smuggle anything. After this defense had been presented the prosecutor renewed his request to use the videotape, arguing that the tape showed a "plan" within the meaning of Fed.R.Evid. 404(b): Kehm's proposal on the tape, like the operation of which he was accused, involved the use of a resort as a cover for a smuggling operation. The district judge agreed and admitted the tape on rebuttal. Kehm now says that the tape does not show a plan within the meaning of Rule 404(b) and is unduly prejudicial and confusing under Rule 403.

No doubt the tape was prejudicial. Kehm brags about his role in earlier smuggling ventures, including this one. The boasts are admissions under Fed.R.Evid. 801(d)(2)(A). This is a permissible kind of prejudice. And there is another, undesirable kind. Kehm says that the tape shows him to be "a big-talking, high-rolling, profane drug smuggler. Nothing could have been more prejudicial". Yet the defendant's manner of speech could not be separated from the content of the conversation, which was itself admissible--not necessarily to show a "common plan" but because the tape as a whole was an "admission" within the meaning of Rule 801(d)(2)(A). The core of the defense was that Kehm was too busy running his resort to smuggle. The conversation with the agents, during which Kehm proposed to use a resort as a cover for smuggling, is an admission that an operator of the kind of resort Kehm ran in the Bahamas is not too busy to smuggle. That sort of admission may be used as evidence.

The prejudice remains, but the increase in prejudice comes from the fact that the videotape is vivid, not from the fact that it is slanted. The district court had to decide whether the prejudice was too much, and its decision is reviewed under a deferential standard. See United States v. Bressler, 772 F.2d 287 (7th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 852, 88 L.Ed.2d 892 (1986) (exclusion of videotape); United States v. Weisz, 718 F.2d 413 (D.C.Cir.1983), cert. denied, 465 U.S. 1027, 104 S.Ct. 1285, 79 L.Ed.2d 688 (1984) (admission of videotape). The court's decision here was reasonable. The evidence was highly probative and not unduly confusing. ¹ It was used only in rebuttal, and then only because the scheme Kehm proposed to the agents on tape contradicted his defense at trial. Kehm's counsel did not suggest any way the videotape could be redacted to spare the jury the worst of the profanity and braggadocio. Kehm brought use of the tape on himself by presenting the defense he did.

II

George Anthony (Tony) Hicks grew up in the Bahamas. A pilot for the smuggling ring, Hicks testified against both Kehm and Greenberg. The government promised Hicks that he would not be prosecuted, and he was placed in the witness protection program. As a protected witness, Hicks was paid a stipend and living allowance by the government. This and other information was disclosed to Kehm and Greenberg. At Kehm's trial, Hicks implied when answering one question that there was a further, undisclosed promise: that he would not be asked any questions tending to implicate Bahamians. Hicks said that he feared for the safety of his family, still living in the Bahamas, and that he did not want to hurt his friends there. This revelation is the basis for two arguments. Kehm says that he was the victim of unconstitutionally selective prosecution, because only non-Bahamians were prosecuted. Greenberg says that the prosecutor violated the due process clause of the fifth amendment by withholding material information that would have undermined Hicks's credibility.

Only one of the Bahamians who participated in this smuggling ring has been indicted, and the prosecutor does not plan to proceed against the one. The prosecutor filed an affidavit stating that this occurred because the case against each Bahamian would have depended on Hicks, who refused to testify voluntarily. The prosecutor continued: "[M]y decision not to recommend indicting Bahamians was not based on any promise made to George Anthony Hicks--because I made no such promise to him--but rather it was based on my professional evaluation of the facts and my experience as a prosecutor." Hicks confirmed that he had never been promised that no Bahamians would be prosecuted; he testified only that he had been promised that he would not be asked to inculpate Bahamians. So the prosecutor's position is: no voluntary evidence, low chance of conviction, no prosecution. This is a permissible choice. Cf. Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985); United States v. Kerley, 787 F.2d 1147 (7th Cir.1986). ² The category "all non-Bahamians, plus all Bahamians who can be convicted without the testimony of George Anthony Hicks"--the category the prosecutor will proceed against--is hardly a minority in need of protection from abusive prosecutorial choices. It does not violate the constitution to excuse from prosecution a group of criminals who share two features, a foreign nationality and a witness unwilling on that account to testify against them. We suppose a treaty could excuse Bahamians from prosecution in this country, but here it is enough that the unavailability of evidence accounts for the prosecutor's decision.

Greenberg's claim is that Hicks's unwillingness to testify could have been used effectively on cross-examination. The promise initially appears to be unlike promises of immunity, payment, and the other things the prosecutor must reveal under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and cases in the line currently ending at United States v. Bagley, --- U.S. ----, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). But Greenberg insists that the promise is significant, because it could show that Hicks had a reason to point the finger at innocent people. He had to testify against some people to earn his immunity from prosecution. If he would not testify against Bahamians--out of fear or friendship--and if only or predominantly Bahamians were involved in the crimes, then maybe Hicks had to tell some tall tales to keep out of prison. Greenberg also observes that Hicks testified that he began to cooperate because his "conscience had been bothering him"; the revelation that his conscience didn't bother him much about Bahamian criminals might affect his credibility.

Greenberg does not say that the prosecutor suborned perjury. Cf. United States v. Kaufmann, 783 F.2d 708 (7th Cir.1986). The failure to inform Greenberg stemmed from a belief that the promise is not pertinent. Although the information should have been provided to the defense, the omission requires a new trial only if the evidence is material under the standard of Bagley, 105 S.Ct. at 3384: "[The] evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." The district court reasonably concluded that the information is not material in this sense:

The...