U.S. v. Blankenship

• Citation: 775 F.2d 735
• Decision Date: 25 October 1985
• Docket Number: No. 84-3737,84-3737
• Parties: 19 Fed. R. Evid. Serv. 63 UNITED STATES of America, Plaintiff-Appellee, v. John Charles BLANKENSHIP, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 735

775 F.2d 735

19 Fed. R. Evid. Serv. 63

UNITED STATES of America, Plaintiff-Appellee, v. John Charles BLANKENSHIP, Defendant-Appellant.

No. 84-3737.

United States Court of Appeals Sixth Circuit.

Argued July 11, 1985.

Decided Oct. 25, 1985.

Richard J. Marco, argued, Medina, Ohio, for defendant-appellant.

Thomas Bauer, U.S. Atty. Office, Akron, Ohio, Roger M. Synenberg, argued, Cleveland, Ohio, for plaintiff-appellee.

Before LIVELY, Chief Judge and MERRITT and CONTIE, Circuit Judges.

LIVELY, Chief Judge.

The principal issue raised by this appeal is the extent to which the government may use evidence of "other crimes, wrongs, or acts" to establish predisposition on the part of a defendant who admits the acts charged in the indictment but relies on a defense of entrapment. The appeal also raises the question of when a trial court may permit the prosecution to reopen its case after it has rested. Finally, the appeal raises the issue of sufficiency of the evidence to support a conviction on the charge of dealing in firearms.

I.

John Charles Blankenship was found guilty by a jury on all four counts of an indictment charging firearms offenses. One count charged him with receiving a firearm while under a disability as a previously convicted felon, two counts charged him with possessing a firearm while under the same disability and a fourth count charged him with engaging in the business of dealing in firearms. Blankenship pled not guilty but never denied the transactions upon which the charges were based. Though the defendant did not testify, his attorney maintained from the outset that the activities of an agent of the Bureau of Alcohol, Tobacco and Firearms (ATF) and an informant constituted entrapment.

A.

The evidence disclosed that the Wadsworth, Ohio police were investigating a series of burglaries and called in the ATF because firearms were involved. Agent John Berareducci of the ATF acted in an undercover role and Ron Carter was the ATF case agent. Carter testified that he met the informant Albert Thompson at the Wadsworth police headquarters. Thompson was under investigation in connection with the Wadsworth burglaries and agreed to cooperate upon being promised he would not be subjected to a federal prosecution on charges stemming from the burglaries.

Thompson was fitted out with a body microphone on November 21, 1983 and dispatched to find and talk with one of the burglary suspects. He testified that as he passed Blankenship's trailer on the way to the suspect's residence, Blankenship "waved me down." Thompson did not stop, but continued on his way. The person he was seeking was not at home and Thompson returned by the same route. He stated that on the way back Blankenship "flagged me down again." Though Thompson had not anticipated seeing Blankenship, the officers who were monitoring his recorder from a nearby automobile advised him to stop.

Thompson and Blankenship then engaged in a lengthy conversation which was recorded. Blankenship was unemployed, but traded in various kinds of property and bought and sold at flea markets. Much of the discussion concerned "junk" which Blankenship had on the premises, but there were many references to firearms. Blankenship told Thompson that before it got "hot" in the area he was getting 10 or 15 guns a week. When Thompson said he might be able to get some guns, Blankenship replied that it might take about two days to get rid of them. There were no transactions that day, but just before Thompson left, Blankenship told him to come back in a few days because "stuff may be back from West Virginia."

The tape of the November 21 meeting also contained statements by Blankenship that he had bought roto tillers knowing they were stolen and had stolen several power lawn mowers and a load of lumber. When this tape was offered in evidence together with a transcript of its contents, Blankenship's attorney objected, arguing that much of the material on the tape was not relevant and was highly prejudicial since it related to other unrelated crimes. The court reminded defense counsel that he had possession of copies of the tapes for a month and had made no request for redaction. Thus the court had not had a prior opportunity to consider the objection in light of the tape's contents. Without ruling specifically that there had been a waiver, the district court overruled the objection. The tape was played in its entirety for the jury who were also provided transcripts of the contents.

The prosecution then offered recordings of taped conversations between Thompson and Blankenship which took place on December 15, 1983 and January 11 and 17, 1984. Counsel for Blankenship objected, citing specific references in the tapes to proposals by Blankenship that Thompson and Berareducci might steal valuable coin collections from homes which he could identify for a cut of the proceeds. In response the prosecutor argued that such evidence was relevant to the issue of Blankenship's predisposition to deal in firearms. The objections were overruled and the tapes were played. In addition, over defense objections, Thompson and Berareducci were permitted to testify at length concerning the conversations with Blankenship about possible burglaries. Both testified that Blankenship told them about silver coin collections and pointed out the houses where they were kept as the three rode around in Blankenship's van. These witnesses also testified that Berareducci purchased three weapons from Blankenship on January 11 and a shotgun on January 17.

B.

To establish Blankenship's disability to receive or possess firearms the government introduced fingerprints of a John Charles Blankenship taken on June 7, 1974. The witness was a deputy sheriff of Medina County, Ohio, the officer who had taken the prints. The next witness, a deputy United States Marshal, produced fingerprints which he took of a "John C. Blankenship" on January 31, 1984 in connection with the charges in the present case. He identified the defendant as the person whose prints he had taken. A fingerprint identification officer from the Akron Police Department then testified that the 1974 and 1984 prints were from the same person.

Before closing the government introduced several documents. Among the documents was an authenticated copy of a journal entry of April 14, 1975 from the Medina Court of Common Pleas which showed that "Charles Blankenship" was charged with theft, pled no contest and was found guilty of receiving stolen property and given a suspended sentence of one to five years. Counsel objected on the ground that the document did not identify the defendant. Another document was an arrest record of John Charles Blankenship on a charge of grand theft. Defense counsel again objected on the ground that the record failed to disclose a conviction. Both exhibits were admitted and the prosecution rested.

Defense counsel then made a motion for a judgment of acquittal pursuant to Rule 29(a), Fed.R.Crim.P.:

(a) Motion Before Submission to Jury. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the government is not granted, the defendant may offer evidence without having reserved the right.

Counsel argued that the evidence was insufficient on the three counts of receiving and possessing firearms because no previous felony conviction had been established and on the remaining count because no course of "dealing" in firearms had been proven. In response the prosecutor argued that the evidence had shown that Blankenship was convicted of receiving stolen property and that there was abundant evidence of Blankenship's "dealing" activities. Nevertheless, before the district court ruled on the motion for acquittal the government attorney made a motion to be permitted to reopen his case.

All of the foregoing, including the announcement that the government rested its case, took place out of the presence of the jury. Over strenuous objection, the district court granted the government's motion to reopen. The government then presented three witnesses who identified Blankenship as the person convicted in the Medina court following his arrest on June 7, 1974. The district court denied a renewed motion for acquittal after the government announced in the presence of the jury that it rested. The jury conviction on all four counts of the indictment followed after the defendant chose not to testify or present evidence.

II.

A.

The Federal Rules of Evidence permit the admission of evidence of prior crimes and other bad acts of a defendant for a number of purposes, but not "to prove the character of a person in order to show that he acted in conformity therewith." Rule 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.

This is actually a rule of inclusion rather than exclusion, since only one use is forbidden and several permissible uses of such evidence are identified. The list of permissible uses is not exclusive. Courts have recognized other permissible uses of such evidence; for example, to show a common scheme or plan. United States v. Burkley, 591 F.2d 903, 920 (D.C.Cir.1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1516, 59 L.Ed.2d 782 (1979).

When the prosecution claims such evidence...