U.S. v. Simtob

• Citation: 901 F.2d 799
• Decision Date: 26 April 1990
• Docket Number: No. 86-3188,86-3188
• Parties: 30 Fed. R. Evid. Serv. 1243 UNITED STATES of America, Plaintiff/Appellee, v. Solomon Bitton SIMTOB, Defendant/Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 799

901 F.2d 799

30 Fed. R. Evid. Serv. 1243

UNITED STATES of America, Plaintiff/Appellee, v. Solomon Bitton SIMTOB, Defendant/Appellant.

No. 86-3188.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 4, 1987.

Decided April 26, 1990.

Eugene G. Iredale, San Diego, Cal., for defendant/appellant.

Byron H. Dunbar, U.S. Atty., Carl E. Rostad, Asst. U.S. Atty., Great Falls, Mont., for plaintiff/appellee.

Appeal from the United States District Court for the District of Montana.

Before SCHROEDER ^*, POOLE and CANBY, Circuit Judges.

POOLE, Circuit Judge:

Appellant Solomon Simtob appeals his conviction on one count of distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Simtob's defense at trial was entrapment.

He contends on appeal that the failure of the district judge, after the close of evidence, to admit into evidence a tape recording which allegedly established perjury by the government's main witness on the issue of predisposition violated Simtob's sixth amendment rights to confrontation and compulsory process. He also challenges the trial court's admission of twelve- and thirteen-year old convictions on similar charges of drug distribution which the prosecutor argued were probative of predisposition, and contends that certain prosecutorial misconduct during examination of witnesses denied him a fair trial. We reverse the conviction.

FACTS AND PROCEEDINGS

After his arrest for possession of cocaine and marijuana in March 1985, a drug dealer, Mick Benson, began to work for the Drug Enforcement Administration (DEA) as an informant in the area of Shelby, Montana. Because Benson had no personal relationship with defendant-appellant Solomon Simtob, he asked a mutual friend, Larry Francum, to inquire of Simtob whether he would sell Benson an ounce of cocaine. At a mid-May meeting with Benson surreptitiously recorded by the DEA, Simtob refused to "have anything to do with coke." Two weeks later, however, on May 31, Simtob spoke again with Benson, and, on June 3, provided the informant with one ounce of cocaine for $2,200.

At another meeting on June 12, also monitored, Benson asked Simtob whether he could obtain a pound of cocaine. Simtob told him that he wanted to quit, and urged Benson to get out of the business of dealing drugs. Nevertheless, at a June 17 meeting, Benson arranged with Simtob a buy of another ounce of cocaine for $2,300, which transaction took place on the 25th of June.

In February 1986, a two-count indictment was filed in the District of Montana, charging Simtob with two counts of cocaine distribution in violation of 21 U.S.C. Sec. 841(a)(1). After an evidentiary hearing, the district court denied Simtob's pre-trial motion to dismiss the indictment because of "outrageous governmental misconduct," and the case was tried before a jury on July 15-18, 1986.

It is not disputed that Simtob distributed cocaine to a government informant, as charged in the indictment; Simtob's defense at trial was entrapment. The trial judge found sufficient evidence of inducement to warrant an instruction on entrapment, and correctly instructed the jury that, the defense having been raised, it was the government's burden to prove either 1) that the defendant was not induced or persuaded to commit the crimes charged or 2) that the defendant was predisposed to commit the crimes charged before the government's attempts to persuade him to do so.

The first count of the indictment was dismissed as a result of jury deadlock; Simtob was convicted on count II and sentenced to ten years in the custody of the Attorney General, pursuant to 18 U.S.C. Sec. 4205(b)(2), and to a special probation term of six years. Simtob now challenges his conviction on the basis of various assignments of error at trial, the circumstances of which are discussed separately below.

DISCUSSION

I. Exclusion of a Tape Recorded Telephone Conversation.

By way of proving inducement, Simtob presented evidence at trial that he had in fact refused both Benson and Francum on numerous occasions, that Benson had induced him to procure the drug through repeated entreaties and by providing Simtob, who had overcome a cocaine addiction in the past, with a quantity of cocaine for Simtob's personal use, and by exploiting Simtob's difficult financial situation. In rebuttal, the government called Greg Nesbo to testify as to Simtob's predisposition. Nesbo, who had previously pleaded guilty to a drug offense and who testified pursuant to his plea agreement with the United States, stated on direct examination that Simtob had supplied him with cocaine for almost three years, that he had purchased cocaine from Simtob approximately twenty On cross-examination, Nesbo admitted that he had been approached by Benson before he was due to testify, and that Benson had spoken with him about his forthcoming testimony. Although apparently acting on his own and not at the request of the government, Benson had indicated to Nesbo that if he in any way deviated from "earlier statements" to the government, DEA agent Mountsier, in charge of the investigation of Simtob, would be able to increase Nesbo's sentence, would in fact do so, and that "it[ ] [had] already been worked out." Defense counsel was also able to elicit that Nesbo, who weighed over 500 pounds and was serving his sentence out of prison as a part of his plea bargain, had an extreme fear of incarceration because he would be unable to receive necessary medical attention in prison.

times over that period, and that, on at least one occasion, he had purchased the drug from Simtob in the basement of Simtob's home, at which time he had seen a safe filled with packages of white powder.

Nesbo's was the final testimony at trial. He was the government's primary witness on the issue of predisposition, and his credibility was very much at issue.

The night following Nesbo's testimony and before the final arguments to the jury, Simtob telephoned Nesbo, and, when the latter returned his call, tape recorded the conversation. ¹

Made aware of this conversation, counsel for appellant listened to the tape the following day and that morning described its contents to the court in camera. Counsel's offer of proof suggested that the tape contained evidence of perjury by Nesbo, or at least of inconsistency bearing directly on Nesbo's credibility; he requested permission either to play the tape to the jury or to recall Simtob so that he could testify as to the content of his conversation with Nesbo. Counsel also suggested recalling Nesbo to The court denied appellant's motion. Apparently because he decided the tape would be cumulative of the previous day's cross-examination, ² the court declined either to listen to the tape in camera, or to have a transcript made until after the argument was over. ³

further cross examine him by confronting him with the tape.

Simtob contends that the tape was "new evidence" containing "admissions of perjury on the part of the chief and only rebuttal witness and the major witness on the issue of predisposition," and that in denying him the opportunity either to present the evidence or confront and cross-examine the witness further, the court violated Simtob's sixth amendment rights to compulsory process and confrontation.

The government contends that defendant's counsel had ample opportunity to cross-examine Nesbo, to test the witness's credibility, and to challenge extensively Nesbo's motives for his testimony. The government also suggests that reception of the evidence so late in the trial would have imbued it with distorted importance, and that, because the court was not prepared to allow further surrebuttal by the United States, admission of the tape without an adequate opportunity to rebut the evidence would have unfairly prejudiced the government's case.

Federal Rule of Evidence 611 provides that:

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time....

We review the trial court's decision whether to reopen a case for abuse of discretion. United States v. McQuisten, 795 F.2d 858 (9th Cir.1986). United States v. Dupuy, 760 F.2d 1492 (9th Cir.1985). To the extent that the court's ruling constituted a limitation on cross-examination, it too is reviewed for abuse of discretion. United States v. Benny, 786 F.2d 1410, 1419 (9th Cir.) cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986). Our inquiry on an appeal asserting abuse of discretion in such matters is whether the court's decision was rendered on a consideration of relevant factors, and whether a clear error of judgment has been made. See United States v. Campbell, 774 F.2d 354, 356 (9th Cir.1985).

When the tape was originally discussed at Simtob's motion to reopen the evidence before argument, the trial court was informed of its content but did not review it. Indeed, the trial court apparently never reviewed the tape, even in response to Simtob's post-trial motions for mistrial. Under the circumstances of this case, where the tape was represented as containing information important to the ascertainment of the truth, the trial court clearly erred in failing at least to make some personal review of its content in camera. The trial judge, in effect, declined to exercise his discretion at all; his determination of the tape's cumulative nature or, alternatively, of its value to the defense, was therefore made without a proper "consideration of relevant factors," and constituted an abuse of discretion.

Further, we cannot adjudge the error to be harmless. Our review of the tape convinces us that it contained information bearing sufficiently on the credibility of the prime prosecution witness that it might well have affected the outcome of the case. While we recognize the limitations of the tape...