U.S. v. Ayers

Decision Date03 April 1991
Docket NumberNos. 89-10306,89-10321,s. 89-10306
Citation924 F.2d 1468
Parties32 Fed. R. Evid. Serv. 742 UNITED STATES of America, Plaintiff-Appellee, v. Eddie L. AYERS, and Gregory R. Ayers, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Janet Sherman, and Victor Sherman (argued), Santa Monica, Cal., for defendant-appellant Eddie Ayers.

Jerrold M. Ladar, and Erik J. Sivesind (argued), San Francisco, Cal., for defendant-appellant Gregory R. Ayers.

Rory K. Little, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before ALDISERT *, ALARCON, and BRUNETTI, Circuit Judges.

ALARCON, Circuit Judge:

Gregory Ayers appeals from his conviction for conspiracy to defraud the United States in the collection of income taxes in violation of 18 U.S.C. Sec. 371. Eddie Ayers appeals from his conviction and sentence for three counts of income tax evasion in violation of 26 U.S.C. Sec. 7201. They were tried jointly before a jury in the district court for the Northern District of California. They raise numerous challenges to their convictions on appeal. The appeals have been consolidated for our review. We affirm.

PERTINENT FACTS

Gregory Ayers and his father, Eddie Ayers, were indicted in a four-count indictment on April 28, 1988. Gregory and Eddie Ayers (the Ayers) were charged in Count One with conspiring to defraud the United States in the collection of income taxes. Eddie Ayers was charged in Counts Two, Three, and Four with income tax evasion for three separate years. The jury found Gregory Ayers guilty on Count One. Eddie Ayers was convicted on Counts Two, Three, and Four. The jury was unable to reach a verdict on the charge of conspiracy against Eddie Ayers.

The Ayers appeal from numerous rulings made during the proceedings in the district court. They both appeal from (1) the admission of evidence concerning subsequent acts committed by Gregory Ayers, (2) the admission of Gregory Ayers' tax returns, and (3) the district court's refusal to give their proposed instruction regarding the government's duty to produce evidence regarding an alleged Bahamian bank loan.

Eddie Ayers individually appeals from the denial of his motion to suppress evidence obtained from his house during the execution of a search warrant on February 28, 1985, and the consideration of his alleged drug-related activities in the imposition of his sentence.

Gregory Ayers also appeals from the denial of his motion for acquittal based on insufficient evidence, and the denial of his motion for a bill of particulars.

DISCUSSION
I. Admissibility of Evidence of Subsequent Acts

The Ayers contend that evidence regarding Gregory Ayers' subsequent acts of uncharged conduct was inadmissible. The district court's decision to admit evidence of other bad acts is reviewed for abuse of discretion. United States v. Lewis, 837 F.2d 415, 418-419 (9th Cir.), cert. denied, 488 U.S. 923, 109 S.Ct. 304, 102 L.Ed.2d 323 (1988).

Mollie Taylor testified that Gregory Ayers paid her $2500 on two specific occasions to take a suitbag to Florida. Gregory Ayers told her to contact a man in Miami and give him the suitbag. Taylor looked inside the bag on the first trip and saw money in different denominations. On each occasion, Taylor contacted the man when she arrived in Miami. He came to the airport and took the suitbag. Later he returned the suitbag to her. Taylor returned the suitbag to Gregory Ayers when she returned to California.

Taylor could not recall the specific dates when she made these trips to Miami. She testified that she agreed to make the trips in order to alleviate the financial problems she had encountered in making her house payments. When asked what year she encountered these financial difficulties, Taylor initially stated, "I don't know if it was in '85 or '86...." Later Taylor testified, "say it was '85." The indictment charged that the alleged conspiracy lasted "through in or about March, 1985...."

The district court denied Gregory Ayers' objection to the admission of evidence that on February 1, 1987, Gregory Ayers submitted a false customs declaration alleging that he was carrying less than $10,000 in cash on his return trip from Nassau, Bahamas. Upon a search of Gregory's bags, a customs officer discovered $10,370. 1

Evidence of each of these subsequent acts was admitted pursuant to Rule 404(b) of the Federal Rules of Evidence for the limited purpose of proving Gregory Ayers' intent. The jury was instructed that the evidence could be considered "only to prove defendant Gregory Ayers acted with the necessary intent and not through accident or mistake."

We must first consider whether this evidence was relevant to any issue at trial, and therefore properly admitted under Rule 404(b). Rule 404(b) provides:

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.

We have construed Rule 404(b) as being "a rule of inclusion." Heath v. Cast 813 F.2d 254, 259 (9th Cir.), cert. denied, 484 U.S. 849, 108 S.Ct. 147, 98 L.Ed.2d 103 (1987). Evidence of other crimes or acts is admissible under Rule 404(b), " 'except where it tends to prove only criminal disposition.' " United States v. Sangrey, 586 F.2d 1312, 1314 (9th Cir.1978) (quoting United States v. Rocha, 553 F.2d 615, 616 (9th Cir.1977)). We apply the following four-part test to determine whether evidence was properly admitted under Rule 404(b): (1) sufficient evidence must exist for the jury to find that the defendant committed the other acts; (2) the other acts must be introduced to prove a material issue in the case; (3) the other acts must not be too remote in time; and (4) if admitted to prove intent, the other acts must be similar to the offense charged. United States v. Spillone, 879 F.2d 514, 518-520 (9th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 210, 112 L.Ed.2d 170 (1990). We are persuaded by our review of the record that the district court did not abuse its discretion in admitting evidence of subsequent acts to prove Gregory Ayers' intent.

The evidence was sufficient to prove that Gregory Ayers committed the subsequent acts. Taylor testified that Gregory Ayers gave her a suitbag containing money before her trips to Miami. She returned the suitbag to him after each trip. She further testified that Gregory Ayers paid her $2500 for each trip.

Evidence of Gregory Ayers' subsequent acts was introduced to prove a material issue in this matter. To prove a conspiracy, the government must show that the defendant possessed the requisite intent to commit the underlying substantive crime. United States v. Indelicato, 800 F.2d 1482, 1483 (9th Cir.1986). Thus, the government was required to prove that Gregory Ayers had the intent to defraud the United States by concealing income to evade the payment of taxes.

The Ayers argue that subsequent acts are not admissible to prove a defendant's state of mind during the commission of a prior offense. They rely on United States v. Hodges, 770 F.2d 1475 (9th Cir.1985), for this proposition. In Hodges, we held that the district court committed reversible error in admitting evidence regarding an alleged act of extortion which occurred five months after the conspiracy ended. Id. at 1478. We did not reach this conclusion based solely on an application of Rule 404(b). Instead, we stated that "[b]ecause we are of the firm conviction that the testimony relating to Hodges' extortion attempt is both of slight probative value and highly and unfairly prejudicial, we conclude that it should have been excluded." Id. at 1480. Here, Gregory's subsequent acts of concealing large amounts of cash are highly probative of an intent to defraud the United States in the collection of income taxes.

We have previously held that "acts both prior and subsequent to the indictment period may be probative of the defendant's state of mind." United States v. Voorhies, 658 F.2d 710, 715 (9th Cir.1981). While most of the cases addressing other acts evidence, admitted pursuant to Rule 404(b), involve prior crimes or acts of misconduct, it is clear that evidence of subsequent crimes or acts of misconduct is admissible if it is relevant to an issue at trial. See, e.g., United States v. Mehrmanesh, 689 F.2d 822 (9th Cir.1982) (evidence that defendant continued to sell drugs after his arrest was admitted to show that he intended something more than the mere personal use of heroin); United States v. McDonald, 576 F.2d 1350 (9th Cir.) (when defendant claimed no knowledge of fraudulent activities, testimony that he subsequently participated in other land fraud schemes was admitted to show knowledge and intent), cert. denied, 439 U.S. 830, 99 S.Ct. 105, 58 L.Ed.2d 124 (1978); United States v. Young, 573 F.2d 1137 (9th Cir.1978) (testimony regarding defendant's subsequent narcotics transactions admitted in trial for conspiracy to possess cocaine with intent to distribute); United States v. Hearst, 563 F.2d 1331 (9th Cir.1977) (evidence of defendant's participation in a crime occurring one month after the crime charged admitted to prove defendant's intent to rebut the defense of duress), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978).

Gregory Ayers' subsequent acts of concealment were not too remote in time. The alleged conspiracy ended on or about March of 1985. The subsequent acts occurred between late 1985, when Taylor made her first trip to Miami at Gregory Ayers' request, and February 1987, when the violation of the customs laws occurred.

Finally, the subsequent acts are similar to Gregory Ayers' conduct during the...

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