U.S. v. Brooke
| Decision Date | 20 September 1993 |
| Docket Number | No. 92-10330,92-10330 |
| Citation | 4 F.3d 1480 |
| Parties | 37 Fed. R. Evid. Serv. 1019 UNITED STATES of America, Plaintiff-Appellee, v. Susan BROOKE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Carmen L. Fischer, Phoenix, AZ, for defendant-appellant.
Frederick R. Petti, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona.
Before FLETCHER, REINHARDT, and NOONAN, Jr., Circuit Judges.
Susan Brooke appeals her conviction on charges of conspiracy, manufacture of a destructive device (26 U.S.C. Sec. 5861(f)), possession of a destructive device (26 U.S.C. Sec. 5861(d)), and malicious damage to property resulting in personal injury (18 U.S.C. Sec. 844(i)). At trial, the prosecution introduced extensive testimony that Brooke falsely told her friends and acquaintances that she suffered from and was undergoing treatment for cancer. Because the unfairly prejudicial nature of the false-cancer evidence substantially outweighed its limited probative value, and because we cannot say with fair assurance that its use by the government did not affect the jury's verdict, we reverse Brooke's conviction and remand.
Brooke's convictions stem from the manufacture and delivery by co-defendant Rocky Kearney of a packaged pipe bomb, containing nicotine poison, to the residence of Melinda Howell on December 7, 1987. Howell suffered serious burns to her hands and face when she opened the package and the pipe bomb exploded.
In prosecuting Brooke, the government contended that she paid Kearney $2000 to build and deliver the bomb to Howell. Howell was dating Charlie Burk, with whom Brooke had previously had a long-term romantic relationship. Kearney, who pleaded guilty under an agreement reached in the month prior to trial, was the key government witness; his testimony was the only direct evidence linking Brooke to the charged crimes. In addition to Kearney, several of Brooke's friends and acquaintances testified, describing her reaction to Burk's relationship with Howell, her efforts to obtain information about Howell and the relationship, and her abortive attempts to have other single men lure Howell away from Burk.
At trial, Brooke, who testified in her own behalf, contended that she hired Kearney, a private investigator, merely to help in determining whether Howell was responsible for several harassing telephone calls Brooke had received. Brooke further maintained that she neither knew of nor solicited the production and delivery of the pipe bomb.
On appeal, Brooke challenges the admission of evidence that she falsely claimed to have cancer. She also argues that the district court erred in limiting her cross-examination of Kearney, the main government witness.
In its trial brief, the government indicated its intention to "provide evidence of defendant's manipulative behavior concerning friends and acquaintances which was based on allegations that she suffered from terminal cancer," and stated that it would "establish that these allegations were nothing more than a cruel hoax designed to gain sympathy for the defendant while influencing her friends to cater to her needs."
Brooke moved in limine to exclude all evidence that she had cancer or that she informed others that she suffered from the disease. On the first day of trial, the district court granted the motion in part, excluding such evidence except "to the extent that it is involved as a means whereby the defendant may have sought sympathy from and/or favors from acquaintances of hers." Despite this putative limitation, the government introduced through several witnesses, both in its case in chief and on rebuttal, a significant amount of testimony that Brooke falsely claimed, both before and after the bombing, to have cancer.
Several of Brooke's acquaintances testified that she told them she had cancer; some testified that she later claimed to have been miraculously cured while others testified to having no knowledge of Brooke's supposed recovery. Government questioning and witnesses' answers conveyed the prosecution theory that the cancer claims were a "cruel hoax." Most of these acquaintances also testified to Brooke's efforts to obtain information about Howell. However, the government failed to elicit testimony from all but one or two of these witnesses that Brooke's cancer claims were made as part of an effort to obtain sympathy or to cause them to perform favors that they would not otherwise have performed. Kearney, on the other hand, did testify that, in addition to receiving a $2000 payment, sympathy for Brooke's "cancer story" played a role in his agreeing to build and deliver the bomb to Howell.
In its case in chief, the prosecution also introduced testimony that Brooke improperly used funds provided for cancer treatment to purchase airline tickets for her friends. Additional government evidence suggested that Brooke's claims of cancer were false, including the rebuttal testimony of medical records custodians from two facilities where Brooke claimed to have received treatment. The custodians testified to finding no record that Brooke had ever been a patient.
In response to the government's exploration of the issue, Brooke presented testimony to prove that she had in fact suffered from cancer. Among the witnesses she called was her accountant, who testified to the medical expenses reflected in her 1987 tax return. In cross-examination of the accountant and of Brooke herself, the government elicited testimony that Brooke had undergone breast augmentation surgery during 1987, and that she wrongfully deducted that expense on her tax return. 1
Brooke argues that evidence that she feigned cancer is character or propensity evidence, inadmissible under Fed.R.Evid. 404. 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 action in conformity therewith," but permits the admission of other-acts evidence for purposes other than showing character or propensity. Furthermore, like all evidence, in order to be properly admitted, other-acts evidence must be relevant, and its probative value must not be substantially outweighed by unfair prejudice. See Fed.R.Evid. 401 advisory committee note (Rule 404 is "illustration[ ] of the application of the present rule as limited by the exclusionary principles of Rule 403"); United States v. Bailleaux, 685 F.2d 1105, 1110 (9th Cir.1982). 2
Thus, we must determine whether the false-cancer testimony has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. We do so in light of Rule 404's dictate that the evidence must be probative of an issue other than character or propensity. See Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988). If the evidence passes the initial test, we must then consider both its probative value and its prejudicial effect, and determine whether the district court abused its discretion in deciding that the former was not substantially outweighed by the latter. See, e.g., United States v. Herrera-Medina, 609 F.2d 376, 379 (9th Cir.1979) (standard of review).
At trial, the government must show how evidence is relevant; "specifically, it must articulate precisely the evidential hypothesis by which a fact of consequence may be inferred from the other acts evidence." United States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir.1982); see also United States v. Arambula-Ruiz, 987 F.2d 599, 602-03 (9th Cir.1993) (quoting Mehrmanesh ). Because the district court heard argument on Brooke's cancer-evidence motion off the record in chambers, the trial transcript does not show clearly the government's evidential hypothesis. However, Brooke does not contend that the government failed to make the required "precise articulation." Despite the absence of a complete record of that articulation, our review of the district court record and trial transcript suggests two bases offered by the government for admission of the false-cancer evidence. We consider each in turn.
We begin by addressing the propriety of admitting the false-cancer evidence as bearing on Brooke's credibility. At the end of the trial, the government focused its arguments to the jury upon the impeachment value of the false-cancer evidence. However, the Federal Rules of Evidence foreclose any government theory that the false-cancer evidence was properly admitted to impeach Brooke's credibility.
Despite its in limine ruling on the limited relevance of the cancer testimony, the district court instructed the jury that it could consider evidence regarding Brooke's cancer and cancer treatment in "deciding whether or not to believe the defendant's testimony, and how much weight to give it." Consistent with this instruction, in closing argument and summation, the government emphasized the cancer evidence in vigorously attacking Brooke's credibility. For example, in specific reference to the medical records testimony offered in its rebuttal case, the government argued to the jurors that "you wanted that proof and you wanted to find out from these hospitals if in fact this woman was lying to you, because that plays a big role in how much credibility you are going to attach to her testimony." 3 "Cancer and credibility" was the recurrent theme in the government's argument to the jury. This strategic focus was sensible because, despite seven days of trial and the testimony of numerous witnesses, the trial evolved into a credibility contest between Brooke and Kearney. Kearney's testimony was the most significant prosecution evidence--the only direct evidence--and Brooke unequivocally contradicted his testimony.
Nonetheless, the law is...
To continue reading
Request your trial
-
U.S. v. White
...98 F.3d 619, 628 (D.C.Cir.1996), cert. denied, --- U.S. ---- - ----, 117 S.Ct. 1279-80, 137 L.Ed.2d 355 (1997); United States v. Brooke, 4 F.3d 1480, 1484 (9th Cir.1993); United States v. Lopez, 944 F.2d 33, 38 (1st Cir.1991). Accordingly, Hughes's counsel could have asked Sergeant Sutherla......
- Noyes v. Grossmont Union High School Dist.
-
Silva v. Woodford, 99-99009.
...a full and fair cross-examination of government witnesses whose testimony is important to the outcome of the case." United States v. Brooke, 4 F.3d 1480, 1489 (9th Cir.1993). Our cases confirm that the suppression of material impeachment evidence, particularly for key state witnesses, may r......
-
U.S. v. Bruce
...v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (reaffirming the Kotteakos standard); United States v. Brooke, 4 F.3d 1480, 1488 (9th Cir.1993) (stating that the standard for nonconstitutional error on direct review is governed by Kotteakos). In rejecting the pre......
-
Just What Evidence of Witness Misdeeds Does Federal Evidence Rule 608(b) Exclude?-imwinkelried vs. Rothstein
...(1st Cir. 2006), cert. denied 549 U.S. 1294 (2007); United States v. Martz, 964 F.2d 787, 788-89 (8th Cir. 1992); United States v. Brooke, 4 F.3d 1480, 1484 (9th Cir. 7. See United States v. James, 609 F.2d 36, 46 (2d Cir. 1979); Rothstein, supra note 3 at 440, 445, 446; Federal Rules of Ev......
-
§ 11.01 INTRODUCTION
...States v. Curtin, 489 F.3d 935, 943 (9th Cir. 2007) ("The 'acts' described need not be 'bad' acts. . . ."); United States v. Brooke, 4 F.3d 1480, 1483 (9th Cir. 1993) (other-act was feigning terminal cancer).[4] See infra § 11.03[A] (discussing proof of identity; modus operandi).[5] E.g., U......