U.S. v. Allain, 81-1653

Decision Date22 February 1982
Docket NumberNo. 81-1653,81-1653
Parties10 Fed. R. Evid. Serv. 71 UNITED STATES of America, Plaintiff-Appellee, v. Kent Steven ALLAIN, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Leland E. Shalgos, Chicago, Ill., for defendant-appellant.

Warren E. White, Asst. U. S. Atty., Danville, Ill., for plaintiff-appellee.

Before SWYGERT and PECK, * Senior Circuit Judges, and ESCHBACH, Circuit Judge.

SWYGERT, Senior Circuit Judge.

Defendant Kent Steven Allain was convicted by a jury of knowingly passing counterfeit currency in violation of 18 U.S.C. § 472, and was sentenced to five years imprisonment. In this appeal, he presents several alleged errors as grounds for reversal. For the reasons stated herein, we affirm the conviction.

I

On Monday, December 8, 1980, tellers at the City National Bank of Kankakee, Illinois, discovered forty-seven counterfeit $20 bills in the weekend deposit of K's Merchandise Mart, located in Bradley, Illinois. The manager of K's traced the bills to a particular sale of stereo equipment, and the clerk who made the sale identified defendant as the purchaser. Three of defendant's latent fingerprints were found on two of the bills.

On Sunday, December 14, 1980, more of these counterfeit $20 bills turned up in San Francisco, California. Police arrested Jeffrey Ballinger and Jesse Watkins when they attempted to pass these bills at a shopping center. Watkins confessed to Secret Service agents and told them that he had received the bills from Gregg Bartolomei. According to Watkins, Bartolomei had stated to him that he and "Arnie" (later determined to be Arnold Silva) got the counterfeit bills from someone in Illinois. On December 15, 1980, Watkins led the agents to Silva's home, where they arrested defendant after observing him leaving the house. Arnold Silva was arrested on December 18, 1980, after he passed three of the counterfeit bills at a toy store.

Both Silva and Bartolomei made several statements to Secret Service agents between the time of their arrest in December 1980 and the trial in March 1981. On December 19, 1980, Silva told agents that he had received the counterfeit money from the recent sale of a pound of high-quality marijuana (sinsemilla) for $2,000, and that he did not know that the bills were counterfeit. Bartolomei told the agents (in Silva's presence) that he had received $2,000 in counterfeit bills on consignment from defendant.

On February 19, 1981, Bartolomei surrendered himself at the Secret Service office in San Francisco in response to a subpoena. The next day he stated to an agent that he had lied in his statement of December 19, that in fact it was Silva who received the counterfeit money from defendant and that the amount was $16,000 rather than $2,000. On February 23, a Secret Service agent met with Bartolomei and Silva, who then gave more details of the dealings between themselves and defendant. The story they told then was basically the same one to which they testified at trial: On December 6, 1980, Silva and Bartolomei arrived at defendant's home in Kankakee to pick up a car that Silva had purchased from defendant. At that time, defendant paid Silva $2,000 for the pound of sinsemilla. After Bartolomei and Silva returned to California defendant spoke with Silva, offering to sell $16,000 of counterfeit money for a quantity of marijuana. According to Silva, defendant told him that he had passed counterfeit bills to purchase his new stereo, and that it was easy to pass the bills if they were wrinkled. Silva relayed this conversation to Bartolomei, and they found a source for eight pounds of marijuana at a price of $650 to $670 a pound. Defendant agreed to give Silva the $16,000 and let Silva hold the marijuana until enough counterfeit money had been passed to pay off the source. Silva then gave half of the counterfeit currency to Bartolomei.

Defense counsel first learned of these inconsistent statements at a pretrial hearing. Defense counsel also learned at that time that the counterfeiting charges against Watkins and Silva had been dismissed and that Bartolomei had received immunity in exchange for his testimony.

At the trial, Watkins, Silva, and Bartolomei testified for the prosecution. Evidence concerning marijuana transactions was first brought out before the jury by defense counsel during his cross-examination of Watkins. When the Government later elicited testimony about marijuana dealings between defendant and Silva, defense counsel made no objection.

Defendant was convicted by the jury of knowingly passing counterfeit currency, and was sentenced to five years imprisonment. This appeal followed.

II

Defendant's first allegation of error is that the trial court improperly admitted testimony of other criminal acts committed by defendant. Defendant refers specifically to the testimony of Watkins, Silva, and Bartolomei about marijuana dealings with defendant. He contends that the district court should not have admitted that testimony because it was highly prejudicial and the prosecution had alternative means by which it could have established defendant's knowledge and intent.

Rule 404(b) of the Federal Rules of Evidence provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted 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.

The advisory committee notes state that:

The rule does not require that the evidence be excluded. No mechanical solution is offered. The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403.

The issue of the admissibility of the marijuana transactions was raised initially during the pretrial hearing. The Government argued that the testimony was admissible under rule 404(b) to prove knowledge and intent. As the prosecutor stated at the hearing, the consideration for the counterfeit currency was marijuana, and the amount paid in counterfeit bills was substantially above the market price in legitimate currency for marijuana. After hearing the evidence presented at the pretrial hearing, the district judge concluded that the transactions had in fact taken place and that they were probative of knowledge and intent to defraud. Regarding the risk of prejudice, the court stated:

(I)f the defendant would move that I exclude what the transaction was about, that it was to buy controlled substances, I would have to give that very strong consideration because Allain is not on trial for being a dealer in controlled substances, he is on trial for passing counterfeit bills. But I don't know that you want to do that, (defense counsel), because it is a two-edged sword. You want to show the unsavory character of Silva and Bartolomei, that they are controlled substance dealers, but I leave it up to you.... I certainly would consider limiting the Government and not allowing them to say that the defendant in these other transactions was engaging in deals in controlled substances because of the ... tendency that the jury would give that undue weight.

Later in the hearing, the following colloquy took place between the court and defendant's attorney:

The Court: (D)o you want to move the Court ... to exclude testimony of the dealings in controlled substances?

Defense counsel: I would, of course, move that if the Court's ruling allowed me to bring up the fact that Silva and Bartolomei are narcotic dealers. (T)hat is impeachment anyway and I don't think it's really relevant to the case.

The Court: If you bring that out, for instance, on cross-examination, I turn right around and let (the prosecutor) come on re-direct and tell the whole story of what went on because you would open the door.

Defense counsel stated to the court that he preferred to "let everything hang out."

The Government argues persuasively that defendant waived the right to raise this issue on appeal by deliberately failing to move to exclude this evidence, despite the district court's express receptiveness to such a motion, and by failing to object to the testimony when brought out by the Government at trial. Defendant contends that the trial court erred when it presented him with an "impossible choice": either use the evidence of drug dealing to impeach the Government's witnesses but thereby "open the door" for the Government to bring in the evidence that defendant traded the counterfeit currency for marijuana, or exclude the evidence of drug dealing as to defendant and the Government's witnesses. Defense counsel chose the former.

First, we note that if defense counsel believed that the district court was wrong as a matter of law in its ruling on the admissibility of the evidence relating to the drug transactions, then he should have objected to the introduction of the Government's evidence or moved to exclude the evidence in order to preserve the issue for appeal. See United States v. Gulley, 404 F.2d 534, 536 (7th Cir. 1968). Defendant does not contend, and we cannot conclude, that the plain-error doctrine is applicable here; see Fed.R.Civ.P. 52(b); therefore, defense counsel's deliberate tactical decision not to object or move to exclude the testimony operates as a waiver. See Campbell v. United States, 355 F.2d 394, 395 (7th Cir.), cert. denied, 385 U.S. 922, 87 S.Ct. 234, 17 L.Ed.2d 145 (1966).

Further, we believe that the trial court correctly found that if defense counsel impeached the Government's witnesses by asking them about their drug transactions, then the door was opened for the prosecutor to elicit the whole story of the exchange of counterfeit currency for illegal drugs between defendant...

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