U.S. v. Bakke
| Decision Date | 23 August 1991 |
| Docket Number | Nos. 90-1978,90-1979,90-1998 and 90-1999,s. 90-1978 |
| Citation | 942 F.2d 977 |
| Parties | 34 Fed. R. Evid. Serv. 749 UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Irwin BAKKE (90-1978), Richard Rau (90-1979), Dirck Morris (90-1998), and Frederic Devries (90-1999), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Mark V. Courtade, Asst. U.S. Atty. (briefed), Grand Rapids, Mich., for the U.S.
Paul L. Mitchell (briefed), Grand Rapids, Mich., for Jeffrey Irwin Bakke.
Robert N. Swartz (briefed), Grand Rapids, Mich., for Richard Rau.
Timothy R. Newhouse (argued and briefed), Visser & Bolhouse, Grandville, Mich., for Dirck Morris.
Lawrence J. Phelan (argued and briefed), Grand Rapids, Mich., for Frederic Devries.
Before KENNEDY and SUHRHEINRICH, Circuit Judges, and LIVELY, Senior Circuit Judge.
Four defendants appeal their convictions, following a joint jury trial, for conspiracy to possess and distribute marijuana. 21 U.S.C. §§ 841 and 846. The indictment contained 26 counts and named other defendants who are not appellants.
The principal issue concerns the district court's admission of evidence that one defendant, Dirck Morris, was arrested and pled guilty to a charge of possessing marijuana subsequent to the time covered by the indictment. Morris contends that admission of evidence of the arrest and surrounding circumstances, including his statements and items seized by the arresting officers, violated Fed.R.Evid. 404(b). The other defendants-appellants argue that they were prejudiced by the "spill-over effect" of this evidence.
All defendants also assert that the district court committed prejudicial error by permitting the government to use "flow charts" as demonstrative evidence. Only Morris argues that he was entitled to a judgment of acquittal on his Rule 29 motion at the close of the case.
The indictment charged a conspiracy that ran from about December 1983 through October 1987. The leaders of the conspiracy from early 1984 were John Campau and Douglas Nyhuis. They arranged for the transportation from Florida to Michigan of large quantities of marijuana and then sold the marijuana in Michigan. They employed a group of people who drove automobiles loaded with marijuana from Florida to Michigan. These same drivers, and others, then took money to Florida either by car or plane, and paid the suppliers of the marijuana.
In April 1988, prior to the indictment but subsequent to the period of the conspiracy as alleged in the indictment, New Jersey state police stopped a pickup truck in which Morris was riding on a New Jersey highway. In a search of the truck and occupants, the police found and confiscated $428,000 in cash, numerous documents and a quantity of marijuana, cocaine and diazepam. Morris filed a motion in limine to prevent any testimony concerning the arrest and Morris's pleas of guilty to possession of an illegal drug that followed the arrest. Morris relied on Fed.R.Evid. 404(b), which provides:
(b) Other crimes, wrongs, or acts. Evidence 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, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Denying the motion in limine, the district court stated:
The government here has alleged, and I believe shown, that the proposed evidence is probative as to the involvement--not involvement--as to his intent, preparation, plan, identity, absence of mistake or accident, as well as motive and opportunity, which is exactly what the rule talks about. The second question is does the probative value outweigh the prejudicial effect. I believe that the probative value outweighs the prejudicial effect.
The government called one of the New Jersey officers who had arrested Morris as its final witness. Over Morris's renewed objection, the officer testified that he conducted a search of both the truck and Morris. In the truck he found over $428,000 in cash which, according to the witness, neither Morris nor the driver claimed as their own. A police report prepared by another officer, which was not introduced into evidence but was used to refresh the witness's recollection, apparently indicated that the driver stated that the money belonged to him. The officer also testified that he found in Morris's wallet numerous documents with numbers on them that he believed to be narcotics ledgers. He stated that one document contained the notation "Larry." 1 The government also introduced into evidence through this witness its Exhibit 23, which was a photocopy of a page from a personal telephone book found in the truck. The page contained the name and telephone number of Richard Rau, although several of the numbers had been crossed out and apparently corrected with new numbers. The court also admitted at this time Government's Exhibit 43, which Nyhuis had earlier testified was in his handwriting. Exhibit 43 contained the notation "RR," followed by a telephone number, but Nyhuis could not confirm that this referred to Richard Rau's phone number. In an effort to link the New Jersey arrest circumstantially with the charged conspiracy, the officer testified that the phone number on Exhibit 43 was the same as the one that appeared on Exhibit 23.
The witness also stated that Morris told him the money represented part of the proceeds from a sale of 465 pounds of marijuana and that he and the driver were returning to New Jersey to pay the supplier of this marijuana. Morris also stated, according to the witness, that he and the Following this testimony, the district court gave an instruction limiting the scope of the jury's use of the trooper's testimony. The court stated that the evidence of the arrest and the money was only being offered against defendant Morris and was not to be used as evidence again the other defendants. The court also stated:
driver intended to go on to Michigan with 200 pounds of marijuana.
Evidence that he may have committed an act at one time or on one occasion is not admissible to prove the character of him in order to show that he acted in conformity therewith on the occasion in the indictment. However, you as a jury may consider evidence as to the alleged subsequent act--this occurred after the period in the indictment, in 1988--you may consider evidence as to the alleged subsequent act of a like nature as evidence of his state of mind, his knowledge, or intent with which the accused did the act contained in the indictment, and it may be considered as evidence of any common plan or scheme of the defendant.
Therefore, you may consider it for one purpose but not for the other purpose as I have just told you....
Six defendants, including the four appellants in this case, were tried together. The government presented the testimony of both indicted and unindicted co-conspirators. Because of the complexity of the conspiracy, the government also prepared and used a series of seven charts designed to assist the jury in sorting out the various marijuana transactions. The proffered exhibits included one chart each for the calendar years 1984, 1985, and 1986, two charts detailing specific transactions in December 1986 and the summer of 1987, a general flow chart entitled "Typical Scenario," and a map of Florida. The "Typical Scenario" chart consisted of a map of the eastern third of the United States and on it were arrows showing the flow of marijuana between "supplier," "load car driver," "retailers," and Nyhuis. Other charts more specifically depicted the various transactions between co-conspirators by lines drawn between their names. The district court initially required the government to remove green marijuana leaves and gold police shields from the charts, which it viewed as prejudicial. The court permitted the government to use the "sanitized" charts as demonstrative evidence throughout the trial. The government also employed the charts during trial by asking various co-conspirators, following their testimony, to initial the transactions depicted on the chart in which they had testified they were involved. The district court denied the government's request to admit the charts into evidence.
Morris contends that the only question presented to the jury by the indictment and his not guilty plea was whether he was a member of the Campau-Nyhuis conspiracy. He argues that none of the purposes for which Rule 404(b) permits the admission of "other crimes" evidence was present in this case. The records seized from Nyhuis and his testimony, as well as that of Phyllis Moore, a co-conspirator, indicated that Morris had sold marijuana to the Nyhuis ring in 1985 and 1986, but he was not identified as a driver or handler of marijuana as it was transported from Florida to Michigan, nor as one who returned money to Florida. Thus, he maintains, the fact that he was arrested in New Jersey in 1988 with records of unrelated drug transactions and proceeds from the sale of marijuana has no relevance to the charge of membership in the conspiracy between 1983 and 1987. Therefore, he argues that admission of this evidence violated Rule 404(b) and was...
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