U.S. v. Brown
| Decision Date | 10 April 1984 |
| Docket Number | Nos. 80-1175,s. 80-1175 |
| Citation | 720 F.2d 1059 |
| Parties | 14 Fed. R. Evid. Serv. 1592 UNITED STATES of America, Plaintiff-Appellee, v. Irving BROWN, Ronald Louis Crawford, Allen Lewis Crutchfield, Freddie Harris, Sherman Edward Jackson, Bobby Joe Moore, Conway Waddy, Diana Wallace, Kerry Woods, Defendants and Appellants. to 80-1180 and 80-1199 to 80-1201. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jack C. Wong, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.
Jack Ransom, Ransom, Rogers & Blackman, Portland, Or., for Brown.
Frank Noonan, Winfree & Noonan, Portland, Or., for Crawford.
Paul J. DeMuniz, Garrett, Seideman, Hemann, Robertson & DeMuniz, P.C., Salem, Or., for Crutchfield.
John M. Burgess, Salem, Or., for Harris.
Phillip M. Margolin, Portland, Or., for Jackson.
Diane E. White, Tigard, Or., for Moore.
Stephen Gilbert, Los Angeles, Cal., for Waddy.
Edward Jones, Oregon City, Or., for Wallace.
Levi Smith, Portland, Or., for Woods.
Appeal from the United States District Court for the District of oregon.
Before BROWNING, Chief Judge, POOLE and REINHARDT, Circuit Judges.
The defendants appeal the judgments and sentences entered and pronounced against them upon verdicts of a jury after trial in the district court on an indictment charging them with conspiracy to distribute a controlled substance (heroin) in violation of 21 U.S.C. Secs. 812, 841(a)(1), and 846, and various related substantive offenses.
In general, the Government's case charged the existence of an ongoing conspiracy set in motion by the principal defendants for the distribution of narcotics in the Portland, Oregon area utilizing the assistance and cooperation of numerous lesser persons as agents and couriers. Some of the latter were named co-conspirators and charged with specific substantive overt offenses. As set forth later, the cases of certain defendants were severed and they either pleaded guilty to specified counts or turned witness for the prosecution in exchange for reduced charges and punishment.
The indictment originally named 20 persons as defendants and contained 21 counts. The major charge, Count I, alleged a conspiracy involving all 20 defendants. It contained 41 overt acts which tracked the outlines of the conspiratorial activity and of the 20 additional substantive counts. A summary of the charges appears in Appendix A, post.
Prior to trial, on the Government's motion, defendants Phillip Tyrone Stephens and Johnny R. Williams, Jr., were ordered severed. They testified as principal government witnesses and their testimony formed the most substantial foundation of the prosecution case. Three others, Daniel Harvey, Rothey Alvin Manus, and Aaron G. Mosley, entered negotiated guilty pleas before trial. A fourth, Jerome H. Woods, pleaded guilty after the first day to conspiracy and to four substantive charges (two of travel in interstate commerce for "racketeering" purposes, to distribute the proceeds of unlawful activity, and two of use of a telephone to facilitate distribution of a controlled substance). At the conclusion of the prosecution case in chief, the court granted severances to defendants Larry Earl Crawford, Norman J. Moore, and Barry A. Wallace and their cases were dismissed after the trial. The court also ordered acquittal of Paul Dedric Jones of conspiracy (his only charge), and acquittal of Allen Louis Crutchfield as to one of several substantive charges against him.
Ten defendants remained. After a protracted jury trial, nine persons--the appellants on this appeal--were each convicted of the major conspiracy count and individually of various other charges. Appellants are: Irving Brown, Ronald Lewis Crawford, Diana Wallace, Kerry Woods, Allen Louis Crutchfield, Sherman Edward Jackson, Bobby Joe Moore, Freddie Lee Harris, and Conway D. Waddy. The jury could not agree on a verdict as to Roy Ray Washington who was charged only with conspiracy, and it disagreed on Count VI (distribution of heroin) as to Sherman Edward Jackson. Mistrials were granted as to those counts and they were ultimately dismissed.
Each appellant, except Diana Wallace, was sentenced to prison for terms ranging from three to twenty-two years. 1 Wallace's Appellants have raised numerous claims of error, challenging the overall conduct of the trial. We dispose of most with short comment since we find them without merit or that none constituted reversible error. Particularly, we find that, apart from the errors discussed below, the evidence was sufficient to support the verdicts. We do however hold that two major specifications of prejudicial error are substantial.
sentence was suspended and she was placed on five years probation. In addition to the prison sentences, there was imposed upon each defendant so sentenced, a special parole term of varying length. Crawford's imposed special parole term was set aside before appeal. Under Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 204 (1980), it was error to impose special parole terms upon the conspiracy convictions and they are invalid.
First, we are convinced that it was error for the court to permit the prosecution to introduce the testimony of Police Sergeant John McNabb. That testimony consisted entirely of the presentation of a highly volatile and inflammatory description of statements elicited from appellant Sherman Edward Jackson during an unrelated street confrontation between the policeman and the appellant while the latter was under arrest in connection with an alleged traffic incident. We conclude that this testimony was inadmissible under Miranda v. Arizona, 384 U.S. 436, 437, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and other authorities; that its prejudicial impact outweighed its probative value; and that its admission by the trial court was an abuse of discretion under Rule 403 of the Federal Rules of Evidence.
This evidence, together with other evidence regarding the flamboyant lifestyles of the band of alleged co-conspirators, presented a serious potential for prejudice. We find it unnecessary, however, to decide whether its consequential impact was alone sufficient to require reversal, because it did not stand alone. The court also erroneously admitted into evidence the full texts of plea bargain agreements which the Government struck with three key prosecution witnesses. Each agreement featured provisions by which the witness agreed to tell the truth and testify truthfully and to have their continuing veracity confirmed by polygraph or "lie detector" tests at the Government's option. The impropriety of this evidence was compounded by the prosecution's final arguments which skillfully tied the strands of witness credibility to the bonds of the plea bargain contract, the essence of which was that continuous monitoring of the witnesses' reliability was available to the
Government by means of the polygraph. We conclude that the result was impermissible witness "vouching" which substantially prejudiced the rights of all appellants to fair trial. Accordingly, we reverse the judgments and set aside the convictions.
I.
The McNabb Testimony 2
The prosecution called Police Sergeant John McNabb as a witness. He presented no substantive evidence as to any allegation of the indictment. His sole function was to repeat to the jury statements of appellant Jackson, made during his detention for a possible "hit-run" vehicular violation, in which Jackson allegedly confessed to having "some dope," in response to the witness' inquiry. The prosecutor carefully elicited that while holding Jackson in custody, the policeman had called him a "pimp and doper;" had accused him of "sell[ing] dope to little black children;" and that in return Jackson had screamed that he "sell[s] dope to honkies and white bitches and whores." The court overruled defense objections that direct or indirect questioning of Jackson was forbidden by the Miranda rule against custodial interrogation; and that the testimony was collateral and excludable in that its manifest prejudice outweighed its limited probative value.
A review of the record shows that McNabb and Jackson knew and mutually disliked each other. Early on the morning of March 20, 1978, while driving in his police vehicle, McNabb overheard a radio transmission from a nearby traffic officer, Cotton, that he was stopping a Cadillac on a possible property damage "hit-run." McNabb came to the scene and immediately recognized Jackson as the driver of the car. Another police car arrived with other officers. Officer Cotton conferred with the other police and sent one of them back to attempt to locate a taxicab into which Jackson's car had reportedly "backed," while McNabb maintained custody of Jackson. The disposition of that particular charge was not revealed and the incident itself had no relation to the charges in the indictment under which Jackson and his co-defendants were being tried.
Protesting his detention, Jackson demanded to be told why he was accused and being held and pointed to the absence of collision marks on his own vehicle. McNabb testified that Jackson carried on a "verbal tirade."
McNabb testified that he "ordered [Jackson] to wait and not get back in his car," and gave him other orders from which the district court assumed, and the prosecutor conceded, that Jackson was legally in custody and not free to leave. 3 Sarcastically, Jackson asked if there was "anything else" that McNabb wanted. McNabb testified that he replied:
At that time, I replied, and I'm quoting, "Oh, I don't know, you got any dope." (Emphasis supplied). He became...
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