U.S. v. Williams

• Decision Date: 10 May 1990
• Docket Number: No. 89-3494,89-3494
• Citation: 900 F.2d 823
• Parties: 30 Fed. R. Evid. Serv. 477 UNITED STATES of America, Plaintiff-Appellant, v. James WILLIAMS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 823

900 F.2d 823

30 Fed. R. Evid. Serv. 477

UNITED STATES of America, Plaintiff-Appellant, v. James WILLIAMS, Defendant-Appellee.

No. 89-3494.

United States Court of Appeals Fifth Circuit.

May 10, 1990.

Mervyn Hamburg, Atty., Justice Dept., Washington, D.C., Lawrence Benson, Robert J. Boitman, Asst. U.S. Atty., John P. Volz, U.S. Atty., New Orleans, La., for plaintiff-appellant.

John Wilson Reed, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

BEFORE WISDOM, POLITZ, and JOHNSON, Circuit Judges.

WISDOM, Circuit Judge:

I

A three-count indictment filed on May 12, 1989 charged defendant/appellee Williams with conspiracy to possess 670 grams of cocaine with intent to distribute, use of the mails to facilitate drug trafficking, and use of a person under eighteen years of age to assist in avoiding detection for drug trafficking. The essence of the offenses charged is that the defendant arranged for a package of cocaine to be mailed by someone in Los Angeles to an address in New Orleans, and that the defendant caused Keokuk Jackson, a person under the age of eighteen, to take delivery of the package from the postal service.

On May 30, 1989, the government advised defense counsel of its intent to offer proof of a series of nineteen mailings that occurred in January and February 1989 and that were similar to the March 7 mailing referred to in the indictment. The defendant filed a motion to exclude that evidence. The district court granted the motion to exclude and denied a motion for reconsideration of its exclusion order. We REVERSE.

II

Prior to the hearing held by the district court on the motion to exclude, the government provided the court with a list of the nineteen mailings at issue. In addition, the government informed the court that: 1) all nineteen prior mailings, like the March 7 mailing, bore ficticious Los Angeles return addresses; 2) a notebook found in the possession of the defendant contained the names or addresses of all of the delivery locations except one; 3) the defendant stated at the time of his arrest that he resided at 3507 Audubon Ct., the address to which two of the prior mailings were addressed; 4) one of those two packages mailed to 3507 Audubon is known to have contained cocaine; and 5) two or three individuals handwrote the mailing labels on all of the packages in question.

At an exclusion hearing on June 1, 1989, the government explained the background of the case as follows. On January 12, 1989, peculiar circumstances incident to a package mailed from Los Angeles to New Orleans aroused the suspicion of a postal worker. Government agents checked the Los Angeles return address on the package and found it to be ficticious. Under a warrant, that package was opened and found to contain cocaine. An investigation revealed that, during that month of January 1989, four similar packages had been sent to New Orleans from fictitious Los Angeles addresses.

During the remainder of January and February 1989, an additional fifteen similar packages were sent from Los Angeles to New Orleans and were identified by investigators. Certain peculiarities tended to link the defendant to these other packages. One package was delivered to a woman using an alias and claiming to be the addressee, "Cherry Wilson." A photograph of that woman was found among the belongings of the defendant. Another of the packages was accepted by Keokuk Jackson, the individual under eighteen years of age referred to in the indictment. Ms. Jackson furnished to the postal employee who delivered the package a torn page containing the name of the sender and the airbill number of the package. The notebook from which the page had been torn was later found in the possession of the defendant. ¹ Yet another of the packages was delivered to an address on Reynes Street. Shortly after the package was delivered there, the defendant arrived at that address and left that house carrying the package.

The final package in the series is the one referred to in the indictment. It was express-mailed from Los Angeles on March 6 to "Shaw Williams" at a New Orleans address. The New Orleans postal inspectors investigating the case secured warrants to open this package and to search the residence to which it was addressed. Inside the package the inspectors found 670 grams of crack cocaine. That cocaine was removed and replaced with sham crack, after which the package was delivered. Keokuk Jackson accepted delivery. Shortly, the defendant arrived at the house to which the package had been delivered. The inspectors then executed the warrant to search the house. They found Keokuk Jackson and the defendant in the house, and the package open on the kitchen table. The defendant admitted having opened the package and said that he had expected to receive a shipment of jogging suits for resale. A search of the defendant's car uncovered the notebook that contained the delivery addresses and from which the page that Keokuk Jackson gave the postal employee had been torn.

Based on written submissions and the exclusion hearing, the district court granted the defendant's motion to exclude evidence regarding the nineteen mailings before the March 7 mailing from the defendant's upcoming trial on the three count indictment. The government appeals from that exclusion order.

III

The proper test to apply in deciding the admissibility of "similar acts" or "other acts" evidence depends upon whether the evidence in question is "intrinsic" or "extrinsic" evidence. "Other act" evidence is "intrinsic" when the evidence of the other act and the evidence of the crime charged are "inextricably intertwined" or both acts are part of a "single criminal episode" or the other acts were "necessary preliminaries" to the crime charged. See United States v. Torres, 685 F.2d 921, 924 (5th Cir.1982). See also, U.S. v. Stovall, 825 F.2d 817, 825 (5th Cir.1987). The district court correctly found that the other-acts evidence sought to be presented in the instant case did not constitute intrinsic evidence. The various mailings were distinct and distinguishable events none of which constituted a necessary preliminary for another.

The admissibility of extrinsic evidence is governed by Fed.R.Evid. 404(b) which states that,

[e]vidence of other crimes, wrongs, or acts, is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunities, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Interpreting that rule, this court has stated that,

[w]hat the rule calls for is essentially a two-step test. First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of rule 403....

United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc).

In the present case, the extrinsic evidence regarding the nineteen mailings would be presented not as evidence of the defendant's character but, rather, to show that the defendant had knowledge of the contents of the package and intent to perpetrate the crimes charged in the indictment. The extrinsic evidence sought to be presented in this case, if indeed it is relevant to knowledge and intent, passes the first part of this court's two-part Beechum test for admissibility of extrinsic evidence.

Evidence is relevant if it makes the existence of any fact at issue more or less probable than it would be without the evidence. In the instant case, the...