U.S. v. Batts, 76-2308

• Decision Date: 03 June 1977
• Docket Number: No. 76-2308,76-2308
• Citation: 558 F.2d 513
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Courtney BATTS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 513

558 F.2d 513

UNITED STATES of America, Plaintiff-Appellee, v. William Courtney BATTS, Defendant-Appellant.

No. 76-2308.

United States Court of Appeals Ninth Circuit.

June 3, 1977.

As Amended Aug. 2, 1977.

Murray B. Guterson, Seattle, Wash., argued, for defendant-appellant.

Peter Mair, Asst. U.S. Atty., Seattle, Wash., argued, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before KENNEDY and ANDERSON, Circuit Judges, and VAN PELT, ^* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

Batts and one Michael Heiges were charged in a two-count indictment with the importation of hashish in violation of 21 U.S.C. §§ 952, 960(a)(1) and 960(b) (2) and 18 U.S.C. § 2 and for possession of hashish with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2. Mr. Heiges, not wishing to test the fact-finding process, fled the jurisdiction and is still at large. Batts was tried by a jury and was convicted on both counts. Batts appeals and we affirm.

The sole issue presented for review is whether it was error to allow the government to introduce, in its rebuttal case, evidence of prior criminal activity of the appellant.

The facts taken in the light most favorable to the government reveal that Batts and Heiges arrived in Heiges' El Camino truck at the port of entry near Lynden, Washington. A subsequent search at the port of entry disclosed 15 bricks of hashish hidden in the wall of the truckbed. The concealed compartment in the wall of the truckbed was covered by a metal plate secured by phillips head screws. A set of tools which contained numerous phillips head screwdrivers was also found in the truck.

A detailed account of what occurred at trial is necessary to understand how the issue unfolded. Immigration Inspector Bunch, the initial inspection officer on the scene, was the first witness to testify. He testified that after asking the routine preliminary questions, he inspected the interior of the El Camino and found marijuana seeds. He then directed the truck to the secondary search area. He testified that the two occupants were "overly nervous and overly helpful." (R.T. 9) He then testified as to the occurrences surrounding the search and eventual discovery of the hashish. He also testified that he had discovered the set of tools in the bed of the El Camino.

The next person to testify was Customs Inspector Barnes. He testified that since he owned an El Camino and was familiar with its construction, he assisted Officer Bunch in his search of the vehicle. He testified as to his discovery of the hashish in the concealed compartment in the wall of the truckbed. He testified that appellant had told him that the set of tools found was appellant's. He testified that he had personally searched appellant and found a silver trinket around appellant's neck. He testified that appellant told him that it was a coke spoon. ¹ At this time, Exhibit 10, the coke spoon, was admitted without objection. He testified further as to comments by appellant regarding the "luckiness" of the search ² and to appellant's request for photos of the hashish. ³

The next witness pertinent to our discussion was DEA Agent McClary. He testified that during his interview of appellant, appellant told him he was the driver of the vehicle. He also testified that Mr. Heiges did not have a valid driver's license and that appellant did have a valid driver's license. DEA Agent Brant was next to testify and he testified as to the chain of custody of the coke spoon and how the coke spoon was used. All of this testimony was adduced without objection. Upon the conclusion of his testimony, the government rested.

The first witness to testify for the defense was the appellant. He testified as to his personal history and background, including his family situation, education, and employment record. He identified the box of tools and testified that they were his, and that he did not permit anyone to use his tools unless he was personally present. He testified as to his acquaintanceship with Mr. Heiges and the reasons why he accompanied him on the trip to Canada. He described the sojourn into Canada and denied that he was driving the El Camino when it arrived at the port of entry. He also testified that he asked Inspector Barnes if the discovery of the hashish was just lucky, ⁴ and that he had requested photos of the seizure. ⁵ Appellant also denied any knowledge that the hashish was hidden in the car.

During cross-examination, and without objection, the following colloquy took place:

"Q. You are being handed No. 10, the spoon; what is that, Mr. Batts?

A. That's a necklace that was given to me by my girlfriend.

Q. And what is it supposed to be?

A. Well, I used it for cleaning the dirt out from under my fingernails. I don't know what they use it for.

Q. You don't know what it is?

A. Well, I had an idea when they were asking me, 'Well, don't you use this for sniffing coke?' and I said, 'No, I do not.'

Q. Is what you are saying is that you didn't know before they said anything that that is commonly known as a coke spoon?

A. No, I did not.

Q. You had no knowledge about that?

A. No, sir.

Q. No knowledge about cocaine use, are you saying no?

A. No." (R.T. 135)

Appellant then called as a witness his girlfriend, who testified that she had received the coke spoon from a friend and had given it as a gift to the appellant. This friend also testified and corroborated the girlfriend's testimony.

On rebuttal, over appellant's objection, the government introduced evidence showing that appellant had sold a large amount of cocaine to an undercover agent seven months previous to the incident in question. This sale did not result in a conviction as the cocaine was suppressed because of an admittedly illegal search and seizure. The trial court firmly and correctly instructed the jury that such evidence was admissible only to impeach appellant's credibility and to show knowledge and intent.

As we base our affirmance on the proper exercise of the trial court's discretion, we must attempt to view this matter from the perspective of the trial court as the issue unfolded before it. It must first be recognized that testimony about the coke spoon and the coke spoon itself had already been received in evidence without objection before appellant took the stand. On cross-examination, appellant testified that he had no knowledge of cocaine or the uses for the coke spoon. This line of inquiry was not objected to by appellant's counsel. At this point, only the trial court, sua sponte, could have ordered the testimony stricken. Such a procedure by the trial court would have been questionable since, as noted, evidence relating to the coke spoon had already been received in evidence and it was at least arguable that appellant had opened up the subject area by testifying to other contemporaneous events at the port of entry. ⁶

Had the trial court been faced with an objection, it was still within the court's power to admit the testimony. Rule 611(b), Federal Rules of Evidence, states, in pertinent part: "The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination." In light of the factors mentioned above, it would not appear to have been an abuse of discretion to allow this testimony. As there was no objection, the trial court was not faced with this issue.

On the basis of this testimony properly received by the trial court, the prosecutor stated:

"MR. MAIR: Again in light of Mr. Batts' flat denial of any knowledge of cocaine, I would introduce seek to introduce testimony of officers who would testify that Mr. Batts offered and negotiated a cocaine sale with them before this event." (R.T. 149)

The trial court was then squarely faced with the issue of whether to submit the case to the jury in its present false light or to allow the rebuttal evidence to put the jury on notice of all relevant factors necessary to perform its function of ascertaining the truth. More specifically, the trial court was faced with a confrontation of the "no extrinsic evidence rule" contained in Rule 608(b) ⁷ and the general purpose of the rules of evidence as stated in Rule 102. ⁸

We believe that the ultimate purpose of the rules of evidence should not be lost by a rigid, blind application of a single rule of evidence. Individual rules of evidence, in this instance Rule 608(b), should not be read in isolation, when to do so destroys the purpose of ascertaining the truth. This is especially so when a witness directly contradicts the relevant evidence which Rule 608(b) seeks to exclude.

This view is supported by Judge Weinstein, who, in speaking directly to Rule 608(b), stated:

"Rule 608 expresses the Advisory Committee's feeling that since the issue of credibility is often central, depriving the jury of relevant information about witnesses is unwarranted and unduly interferes with the law's basic emphasis on truth-finding. It recognizes, however, that a mechanical test of admission may be incapable of achieving justice in a particular case. Rule 608(b) should accordingly be interpreted in a manner consonant with the basic aims of the rules of evidence: to strike a balance between the needs of the judicial system and the needs of the individual witness as determined by the unique circumstances of the case in which he is appearing."

3 Weinstein's Evidence, § 608, at 608-24.

Judge Weinstein also sets forth Senator McClellan's position on the need for full cross-examination in conjunction with rule 608(b) as expressed in the Senator's letter of August 12, 1971, as follows:

"Of . . . concern to me is the apparent shift away from the sort of full and effective cross-examination envisioned by the Supreme Court in Michelson v. United States, 335 U.S. 469 (69 S.Ct. 213, 93 L.Ed. 168) (1949) by the substitution of the phrase 'clearly probative . . . and not...