Theobald v. United States, No. 20928.
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | BARNES, JERTBERG, and BROWNING, Circuit |
| Citation | 371 F.2d 769 |
| Parties | George Peter THEOBALD, Appellant, v. UNITED STATES of America, Appellee. |
| Docket Number | No. 20928. |
| Decision Date | 19 January 1967 |
371 F.2d 769 (1967)
George Peter THEOBALD, Appellant,
v.
UNITED STATES of America, Appellee.
No. 20928.
United States Court of Appeals Ninth Circuit.
January 19, 1967.
Harry D. Steward, of Steward & Murphy, San Diego, Cal., for appellant.
Manuel L. Real, U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief Crim. Div., Phillip W. Johnson, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before BARNES, JERTBERG, and BROWNING, Circuit Judges.
BROWNING, Circuit Judge:
Appellant was convicted of conspiring with Martin Gold and others to import marihuana into the United States illegally, and aiding and abetting Mr. Gold in such importation.
Mr. Gold testified that at appellant's behest he smuggled forty-four pounds of marihuana belonging to appellant into the United States from Mexico on April 13, 1963. Appellant denied any participation in the transaction and sought to establish an alibi.
I
Over appellant's objection, Ronna Adrian was permitted to testify that during the month of April, on a date "very close" to the time of the illegal importation, she and appellant had a discussion about Miss Adrian buying marihuana from appellant.
This evidence was offered to show motive — that appellant had reason to import a substantial quantity of marihuana because he was engaged in the sale of marihuana. The testimony was relevant for this purpose.
The testimony was not necessarily inadmissible because it revealed reprehensible conduct by appellant other than that with which he was charged. Moore v. United States, 150 U.S. 57, 61, 14 S.Ct. 26, 37 L.Ed. 996 (1893). However, it should have been excluded if its probative value was outweighed by prejudice attributable to the disclosure of misconduct unrelated to the charge. De Vore v. United States, 368 F.2d 396 (9th Cir. 1966).
The testimony was no doubt highly prejudicial since it tended to show that appellant was a commercial dealer in marihuana. But this prejudice was inherent in any proof of the charge since the quantity of marihuana allegedly imported (44 pounds) necessarily implied commercial rather than personal use.1 And the evidence was important to the government, for without it the prosecution's case rested largely upon the uncorroborated
The testimony was admissible despite the fact that it concerned a sale of marihuana rather than a conspiracy to smuggle, or aiding and abetting illegal importation. The requirement that other offenses sought to be proved be similar to the offense charged applies only where the likeness gives the evidence its probative value — as where the repeated commission by the accused of crimes similar to that charged is offered to prove intent by negating the possibility of innocent mistake. See...
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Com. v. Hall
...374 U.S. 23, 42, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (occupant of apartment might distribute or hide drugs); Theobald v. United States, 371 F.2d 769 (9th Cir. 1967) (people inside the room might destroy the evidence); Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970) (arme......
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Cohen v. United States, No. 20807.
...prejudice to appellant from its admission did not outweigh the value of the evidence to the government's case. Theobald v. United States, 371 F.2d 769 (9th Cir. 1967); DeVore v. United States, 368 F.2d 396 (9th Cir. Finally, Hochfeld testified that he engaged in the same course of activity ......
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People v. Clements
...374 U.S. 23, 42, 83 S.Ct. 1623, 10 L.Ed.2d 726 occupant of apartment might distribute or hide drugs; Theobald v. United States, 9 Cir., 371 F.2d 769, people inside the room might destroy the evidence; Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385, armed fugitive believed to be......
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Rodriguez v. Butler, No. 598
...448 F.2d 298, 304 (9th Page 988 Cir.1971); United States v. Singleton, 439 F.2d 381, 385-86 (3d Cir.1971); Theobald v. United States, 371 F.2d 769 (9th Cir.1967); United States v. Burruss, 306 F.Supp. 915, 921 (E.D.Pa. 1969) (each indicating possible destruction of evidence justifies unanno......
-
Com. v. Hall
...374 U.S. 23, 42, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (occupant of apartment might distribute or hide drugs); Theobald v. United States, 371 F.2d 769 (9th Cir. 1967) (people inside the room might destroy the evidence); Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970) (arme......
-
Cohen v. United States, No. 20807.
...prejudice to appellant from its admission did not outweigh the value of the evidence to the government's case. Theobald v. United States, 371 F.2d 769 (9th Cir. 1967); DeVore v. United States, 368 F.2d 396 (9th Cir. Finally, Hochfeld testified that he engaged in the same course of activity ......
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People v. Clements
...374 U.S. 23, 42, 83 S.Ct. 1623, 10 L.Ed.2d 726 occupant of apartment might distribute or hide drugs; Theobald v. United States, 9 Cir., 371 F.2d 769, people inside the room might destroy the evidence; Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385, armed fugitive believed to be......
-
Rodriguez v. Butler, No. 598
...448 F.2d 298, 304 (9th Page 988 Cir.1971); United States v. Singleton, 439 F.2d 381, 385-86 (3d Cir.1971); Theobald v. United States, 371 F.2d 769 (9th Cir.1967); United States v. Burruss, 306 F.Supp. 915, 921 (E.D.Pa. 1969) (each indicating possible destruction of evidence justifies unanno......