U.S. v. Benton, 79-5576

• Decision Date: 23 February 1981
• Docket Number: No. 79-5576,79-5576
• Citation: 637 F.2d 1052
• Parties: 7 Fed. R. Evid. Serv. 1173 UNITED STATES of America, Plaintiff-Appellee, v. Allen Clifton BENTON, Defendant-Appellant. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1052

637 F.2d 1052

7 Fed. R. Evid. Serv. 1173

UNITED STATES of America, Plaintiff-Appellee, v. Allen Clifton BENTON, Defendant-Appellant.

No. 79-5576.

United States Court of Appeals, Fifth Circuit.

Unit B

Feb. 23, 1981.

Rehearing and Rehearing En Banc Denied April 16, 1981.

Frank J. Petrella, Atlanta, Ga., for defendant-appellant.

William L. Harper, U. S. Atty., Richard H. Dean, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before MORGAN, ANDERSON and THOMAS A. CLARK, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

Appellant, Allen Clifton Benton, an inmate at the Atlanta Federal Penitentiary, was indicted and tried on three counts: for murdering another inmate, William Rhett Zambito, in violation of 18 U.S.C.A. § 1111; for conveying a weapon within a federal prison in violation of 18 U.S.C.A. § 1792; and for conspiring to murder Zambito in violation of 18 U.S.C.A. § 1117. The jury acquitted Benton of the first two charges but convicted him of the conspiracy charge and the district judge imposed a life sentence. Benton raises several alleged errors on appeal. Finding no reversible error, we affirm the conviction and sentence.

I. FACTS

Viewing the facts most favorable to the government, United States v. Glasser, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), they appear as follows.

Prior to and during March, 1978, appellant Benton was serving an 8-year sentence at the Atlanta Federal Penitentiary for narcotics trafficking. His conviction followed a guilty plea to various drug charges entered in the United States District Court for the Northern District of Georgia. Appellant's conviction was a direct result of cooperation by Rhett Zambito, appellant's partner in the drug business and the victim in this case.

Sometime before March 2, 1978, Benton learned that Zambito would be transferred to the Atlanta prison facility. He immediately set about to make plans to kill Zambito because he feared that Zambito would implicate him in a series of drug-related homicides in Florida. He associated several other inmates to assist in the murder plot. Among his cohorts were Bobby Mulholland, John Barradale, a/k/a John the Barber, Fred Fegel, a/k/a The Fly, Tommy Genovese and Harry Flamkin. Zambito arrived at the prison on March 22. Sometime between 6:30 and 6:35 a. m. on the following day, March 23, 1978, he was discovered in his bunk bleeding from fatal lacerations about the face and throat. He died shortly thereafter.

Inmates Fegel, Flamkin and Marion Pruitt testified for the government. Fegel testified that on several occasions Benton said words to the effect that he must kill Zambito so that he could not connect him with several Florida homicides. Fegel also testified that at one point he, Benton, Mulholland and John the Barber approached another inmate to acquire a knife. On the evening of March 22, Benton and the others followed Zambito's movement about the prison. At one point Benton stated that if Zambito comes back here, "I'll choke him until his eyes pop out of his head." (Record III, p. 207). The conspirators finally decided they would get Zambito early in the morning. On the morning of March 23 Benton approached Fegel and handed him a paper bag containing a shiny object. Still later that morning Benton advised Fegel not to worry, "(e)verything is taken care of." (Record III, p. 220). Fegel and Mulholland assisted prison employees in transporting Zambito from his cell to the hospital on a stretcher. Upon discovering that Zambito was still breathing, they purposely stalled for time in carrying the body in order that Zambito might expire before obtaining medical attention.

Harry Flamkin testified that he was acquainted with Benton. Flamkin would do favors and jobs for Benton. Several days before Zambito's death, defendant asked Flamkin to obtain some gloves from the prison hospital to keep fingerprints off the knife or whatever weapon was used to kill Zambito. Benton told Flamkin that he intended to kill Zambito. Benton also told Flamkin that he had hidden a knife in Flamkin's mattress. Although Flamkin never saw the knife, he did feel it in his mattress. Flamkin also testified that he did not think that the knife in his mattress was the weapon used to kill Zambito. Rather, he stated that Tommy Genovese gave Benton a knife the night before Zambito was stabbed to death. On the morning of Zambito's death, Benton ordered Flamkin to stand in the "cutoff" in the cell block where Zambito was housed and to divert the attention of any guard who might happen into the cellblock.

Marion Pruitt was Zambito's cellmate. On the morning of the killing, Pruitt was sleeping in the bunk beneath Zambito. He was awakened by sounds of activity in the cell. He testified that he was familiar with Benton and that Benton was standing next to the bunk. He heard Zambito say "Oh my God, no" and felt the bunk jerk as Zambito was attacked.

In addition to the statements by Benton that he had to kill Zambito to keep him from implicating Benton in Florida homicides, the government introduced the Florida indictment of Zambito for murder. The government also read into evidence, over appellant's general objection that the probative value of the evidence was outweighed by its prejudicial effect, a portion of the transcript of Benton's sentencing hearing wherein the judge advised Benton that he was under investigation for two homicides in Florida.

Benton took the stand in his own defense. He testified that he was working in the bakery at the time of the killing and denied participation in any conspiracy. John Barradale, Bobby Mulholland and Tommy Genovese all denied any participation in a conspiracy and each admitted to only a passing acquaintance with one another, Benton, Fegel and Flamkin, the alleged conspirators.

The jury acquitted Benton of the charges of murder and conveying a weapon on federal property but found him guilty of conspiracy to murder Zambito. The trial judge, apparently relying upon evidence in the presentence investigation report that Benton had participated in several drug-related homicides in Florida, sentenced him to life, the maximum possible sentence for the offense.

II. DISCUSSION

A. Admission of evidence of the Florida homicides.

Appellant argues that the district court erred in admitting the evidence of the Florida homicides in two respects. First, the district court failed to hold a hearing to determine the admissibility of the evidence. Second, he alleges that the district court erred in admitting the evidence under the standards for admissibility of prior crimes established in United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), cert. denied 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), in that the probative value of the evidence was substantially outweighed by its prejudicial effect.

1. Rule 104(c) hearing.

Appellant urges reversal on the ground that the district court failed to conduct an evidentiary hearing out of the jury's presence on the admissibility of the evidence of other homicides. Clearly Fed.R.Evid. 104(c) and our decision in United States v. Beechum, supra, require such a hearing; however, it appears that the district court heard from counsel on the question in chambers before the trial and permitted appellant to file a brief. These events may well satisfy the hearing requirement. In any event, "the trial court's failure to conduct a preliminary hearing is not reversible error, since this court will make a determination as to admissibility on appeal." United States v. Black, 595 F.2d 1116, 1117 (5th Cir. 1979).

2. Admissibility of prior crimes.

Fed.R.Evid. 404(b) 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 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.

Although evidence of other crimes may be relevant for such purposes as showing intent, motive, etc., its relevancy may be outweighed by its prejudicial effect. Accordingly, all evidence is subject to Fed.R.Evid. 403:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

In United States v. Beechum, supra, this court announced a two-step test for determining admissibility of evidence of other crimes.

First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of Rule 403.

582 F.2d at 911 (footnote omitted). The resolution of these questions lies within the sound discretion of the trial judge, and the decision to admit extrinsic evidence can be disturbed only for an abuse of discretion. See United States v. McMahon, 592 F.2d 871, 873 (5th Cir.), cert. denied 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 289 (1979). The government tendered the evidence of the Florida homicides for the purpose of showing Benton's motive for wanting Zambito killed, and the trial judge admitted the evidence for that purpose. Upon applying the Beechum test to our own review of the record, we conclude that the district court did not abuse its discretion in admitting the evidence. ¹

First, the evidence was relevant to the question of motive. Motive has been defined as "the reason that nudges the will and prods the mind to indulge the criminal intent." United States v. Beechum, 582 F.2d at 915 n. 15 quoting Slough & Knightly, Other...