U.S. v. Bradshaw

• Decision Date: 19 October 1982
• Docket Number: No. 82-1017,82-1017
• Citation: 690 F.2d 704
• Parties: 11 Fed. R. Evid. Serv. 1458 UNITED STATES of America, Plaintiff-Appellee, v. David Leon BRADSHAW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 704

690 F.2d 704

11 Fed. R. Evid. Serv. 1458

UNITED STATES of America, Plaintiff-Appellee, v. David Leon BRADSHAW, Defendant-Appellant.

No. 82-1017.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 15, 1982.

Decided Oct. 19, 1982.

Stevan Noxon, Asst. Federal Public Defender, Fresno, Cal., for defendant-appellant.

Phillip S. Cronin, Asst. U. S. Atty., Fresno, Cal., for plaintiff-appellee.

On Appeal from the United States District Court for the Eastern District of California.

Before WISDOM ^* and DUNIWAY, Senior Circuit Judges, and NORRIS, Circuit Judge.

WISDOM, Senior Circuit Judge:

Convicted by a jury of kidnapping in violation of 18 U.S.C. § 1201(a), David Leon Bradshaw argues on appeal that the trial court abused its discretion in admitting evidence of other crimes, improperly interrogated a witness, and erred in denying defense counsel's motion that he be examined concerning his competency to stand trial. The appellant further maintains that the evidence was insufficient to support the verdict. Finding no merit in any of his claims, we AFFIRM.

I.

The victim in this case, Charles "Cory" Shults, was a nine-year-old boy. David Leon Bradshaw, the defendant/appellant, was the maintenance man at, and later the manager of, the Delano Motel in Delano, California, where the victim and his mother lived off and on from the summer of 1979 until July 29, 1981, when the mother moved from the motel and her son ran away with the appellant.

Cory, his older brother, Billy, and his mother, Alice Faye Estrella, first moved into the Delano Motel in the summer of 1979. The appellant was then a resident of the motel and employed as its maintenance man. Ms. Estrella remained with her sons at the motel for six or seven months while she looked for appropriate living arrangements in town. Shortly after leaving the motel, however, she returned with Cory on December 29, 1980, and rented a room adjacent to Bradshaw's. The older son was left with his grandparents. The victim was at this time nine years old, and Bradshaw was serving as the motel's manager.

During the next six months, Bradshaw spent a great deal of time with Cory. The two went to Disneyland and the Fresno Zoo together, and on several camping trips. When school was in session, Cory spent every other weekend, including nights, with the defendant. Ms. Estrella later testified that she then believed her son and Bradshaw had a "father-son type of relationship".

In early July 1981, a few weeks before Ms. Estrella planned to depart the motel for a second time, she arranged for Cory to stay with his aunt, Theresa Crumb, in Pixley. Evidence was presented at trial that her reason for sending the boy to stay with his aunt was a doubt about the nature of his relationship with Bradshaw. This doubt was in part prompted by her observation of bite marks, or "hickeys", on Cory's neck once or twice after his trips with the appellant. Despite Ms. Estrella's insistence that he not see Bradshaw after the move, Cory continued to meet with the appellant.

On July 29, 1981, while Cory's mother was moving her belongings from the motel to a new home, Cory visited Bradshaw in his room, and Bradshaw suggested that they move to Oklahoma together. The appellant told the boy that the two of them would be gone for a long time, until the child turned eighteen or at least nine years, and that he was not to mention their plans to his aunt. Later, after packing the boy's clothes, Bradshaw met Cory in an appointed location, and the two began their journey. The appellant drove with the boy through Nevada and Texas to Durant, Oklahoma. There, and at motels along the way, the two engaged in mutual sodomy and oral copulation. Bradshaw also supplied the boy with drugs, specifically marijuana and speed capsules, and attempted to dye the child's hair.

The appellant was arrested on August 4 and indicted on August 21, 1981 for kidnapping in violation of 18 U.S.C. § 1201(a). ¹ At his November 1981 jury trial in the District Court for the Eastern District of California, defense counsel moved under 18 U.S.C. § 4244 to determine Bradshaw's competency to stand trial. This motion was denied. At the conclusion of the prosecution's case, the defendant moved for a mistrial, but this motion was also denied. After three days of trial, the jury convicted Bradshaw, and five days later he renewed his motion for a determination of competency. After denying the motion, the district court sentenced Bradshaw to 30 years in custody pursuant to 18 U.S.C. § 4205(a).

On appeal, Bradshaw raises four issues. He contends, first, that the district court abused its discretion in admitting evidence of other crimes-the sex and drug activity-because its limited probative value was far outweighed by its prejudicial effect, and that, once it had admitted such evidence, the trial court should have given the requested cautionary instruction concerning the importance of considering only the offense charged. Second, he argues that the district court erred in denying defense counsel's motion for a mistrial based on improper and prejudicial questioning of a witness by the trial judge. Third, he claims that it was error for the lower court not to permit a psychiatric examination under section 4244. Finally, Bradshaw contends that the evidence was insufficient to support the judgment.

II.

A. Evidence of Sex and Drug Activity.

Bradshaw maintains that all evidence relating to his sexual activity with Cory, both before and during the journey to Oklahoma, and to any drugs which he may have supplied the boy, should have been excluded as irrelevant under Fed.R.Evid. 404(b), and even if relevant, as unduly prejudicial under Rule 403. We decline to accept that interpretation of these rules.

Rule 404(b) provides that "(e)vidence 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."

Rule 404(b) is "one of inclusion which admits evidence of other crimes or acts relevant to an issue in the trial, except where it tends to prove only criminal disposition." United States v. Rocha, 553 F.2d 615, 616 (9th Cir. 1977) (emphasis in original). See also 2 J. Weinstein & M. Berger, Weinstein's Evidence P 404(08) (1981). Rule 404(b), however, is subject to the balancing test of Rule 403. United States v. Sangrey, 586 F.2d 1312, 1314-15 (9th Cir. 1978). In admitting relevant evidence under the rule, therefore, "the trial court must balance the probative value of the evidence against the possibility that the jury would be prejudiced against the defendant because of his participation in other criminal conduct." United States v. Young, 573 F.2d 1137, 1140 (9th Cir. 1978). This determination is largely a matter for the discretion of the district court. United States v. Young, 573 F.2d at 1140; United States v. Hearst, 563 F.2d 1331, 1336 (9th Cir. 1977), reh. denied, 573 F.2d 579 (9th Cir. 1978), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978).

Bradshaw is correct when he points out that the district court did not fully articulate its reasoning when balancing the probative value of the sex and drug activity with its prejudicial effect. Nevertheless, we cannot now say, as this Court could not say in United States v. Potter, that "under the circumstances of this case the failure of the trial judge to formally articulate the balancing test constituted reversible error," 616 F.2d 384, 389 (9th Cir. 1979), cert. denied, 449 U.S. 832, 101 S.Ct. 101, 66 L.Ed.2d 37 (1980). Evidence of drug use and sexual relations with a nine-year-old boy was obviously prejudicial to the defendant. But it was also relevant to show Bradshaw's dominion over Cory. The contention that the victim consented to the trip, and, therefore, that he was not kidnapped, made the evidence of sex and drug activity occurring after the kidnapping admissible. See Holden v. United States, 388 F.2d 240, 242 (1st Cir. 1968), cert. denied, 393 U.S. 864, 89 S.Ct. 146, 21 L.Ed.2d 132 (1968).

The government also argues that the evidence of sexual relations was probative of Bradshaw's motive in taking the boy to Oklahoma. Relying on several decisions of this Court, the appellant responds that motive, or purpose, is not an element of the kidnapping charge. See Gawne v. United States, 409 F.2d 1399, 1403 (9th Cir. 1969), cert. denied, 397 U.S. 943, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970), reh. denied, 397 U.S. 1059, 90 S.Ct. 1368, 25 L.Ed.2d 680 (1970); Dawson v. United States, 292 F.2d 365 (9th Cir. 1961). Although it is true that motive need not be proved under 18 U.S.C. § 1201, it is far from irrelevant. Motive is evidence of the commission of any crime. This Court has previously held evidence of sexual relations admissible because of its relevance to motive in a kidnapping case. See United States v. Gibson, 625 F.2d 887 (9th Cir. 1980). It was pointed out in Gibson that while there may be no substantial issue of motive under section 1201(a), "the subsequent conduct does tend to present a picture, the whole of which indicates guilt.... The picture of a kidnapping is not complete unless all of the relationships of the defendant to the victims, from the beginning of the illegal detention to the end of it, are shown." Id. at 888. ²

Although the district court did not clearly articulate the balancing analysis called for by Rule 403, we are satisfied from our reading of the trial record that the probative value of the evidence of sex and drug activity occurring after the illegal detention was not "substantially outweighed by the danger of unfair prejudice". In response to defense counsel's motion in limine to exclude all references to other crimes, the district court did rule that the evidence was admissible. A more...