U.S. v. Brown
| Decision Date | 06 October 1977 |
| Docket Number | 76-2932,76-2930,Nos. 76-2925,76-2933 and 77-2094,76-2931 and 77-2101,s. 76-2925 |
| Citation | 562 F.2d 1144 |
| Parties | 2 Fed. R. Evid. Serv. 741 UNITED STATES of America, Plaintiff-Appellee, v. Howard BROWN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Frances NICKEL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert "Larry" MAYES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles MARTS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles McEVOY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David F. Stobaugh and James L. Vonasch, Seattle, Wash., argued for defendants-appellants.
Donald M. Currie, Asst. U. S. Atty., Seattle, Wash., argued for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before CARTER and CHOY, Circuit Judges, and HOFFMAN, * District Judge.
This is an appeal by five defendants of their convictions by a jury for conspiracy to distribute and possession with intent to distribute a controlled substance (heroin), in violation of 21 U.S.C. §§ 841(a)(1) and 846. Nickel and Mayes also separately appeal from the denial of their motions for a new trial.
Appellants argue that the trial court erred in permitting the jury to consider evidence of a dismissed possession charge without a cautionary instruction. They also contend that the government was obligated to disclose certain material facts about its principal witness. Marts, Mayes, and Nickel suggest that statements from one of the co-defendants were improperly received as evidence since they were made after the conclusion of the conspiracy. Brown argues that the government should have disclosed the identity of the informant prior to trial. McEvoy contends a chemical expert should have been appointed to examine heroin quality. Nickel lastly argues that the trial court should have granted discovery of certain records of the Bureau of Prisons under the Freedom of Information Act.
We affirm.
During the months of January through March, 1976, appellants Marts and McEvoy were cellmates at McNeil Island Federal Penitentiary in Washington. Appellants Brown, Mayes, and Nickel were residents of California. Nickel is Marts' mother and Brown's aunt. Mayes resided with Nickel during this time, which was the period of the conspiracy charged in Count I of the indictment.
The first overt evidence of a conspiracy surfaced during a routine "shake-down" at McNeil on January 24, 1976. McEvoy was found to be in possession of a small quantity of heroin, which he attempted to hide during the search by throwing it to Marts.
In February, Brown, Mayes, and Nickel traveled from California to Tacoma. They unwittingly invited a government informant, Cindy Dickerson, along on the trip. During the trip, Dickerson learned that the three were taking a quantity of heroin up to Marts and McEvoy for the purpose of distributing it through Marts' "organization" in the prison. The three discussed the relative ease with which contraband could be smuggled into the facility by receipt from a relative in the visiting room.
Upon their arrival in Tacoma, Brown and Nickel discovered that one ounce of heroin was missing. An argument ensued in which Brown and Nickel accused Mayes of taking the heroin. Cindy Oyler, at whose residence the three were staying, overheard an argument regarding something which was missing, but did not hear what it was.
The remaining ounce of heroin was placed in balloons and taken to the institution the next day. The three appellants and Dickerson went to visit Marts and McEvoy with the balloons concealed in their undergarments. Once appellants were in the visiting room, the balloons were given to Marts, who in turn gave them to McEvoy. McEvoy then went to the restroom within the visiting room and concealed the balloons in his rectum. During this visit, appellants discussed the distribution of the heroin within the prison.
Mayes and Brown obtained another ounce of heroin while in Washington. This ounce was taken into the prison by Dickerson later in the week. Dickerson also accompanied Nickel to the prison to obtain money from Marts and McEvoy. Approximately $2,000 was received during the four day period. At the time of Nickel's arrest, she was in possession of over $1,000 in cash, including a $100 bill specifically identified by Dickerson.
Dickerson learned from Marts and McEvoy that they "stashed" their heroin in an empty coke can which appeared full and unopened. Dickerson described this "stash" and reported on her trip to officers when she arrived back in California. Based on this information, Marts' and McEvoy's cell was searched and 14 grams of heroin were found in a community locker. Inmate Ron Perrin testified at trial that the heroin was in fact his. Inmate Stanley Skakow corroborated this claim.
Appellants were indicted on May 18, 1976. Count I alleged a conspiracy between the five to distribute the heroin. Counts II and III alleged the substantive crimes of possession with intent to distribute. Count II was based on the January incident in the prison during which heroin was discovered on McEvoy. Count III was based on the March possession and transfer of heroin into the facility.
Trial began on July 19, 1976. At the close of the evidence, the court dismissed Count II of the indictment. The jury returned verdicts of guilty on the remaining counts for all defendants. Each defendant was sentenced to seven years imprisonment plus three years parole.
The original indictment charged defendants with two counts of possession of heroin with intent to distribute. Count II was based on the January 24, 1976, incident at McNeil in which heroin was found in McEvoy's possession. The government introduced substantial evidence during trial in support of this allegation, including the testimony of six government witnesses. At the close of evidence, the court dismissed Count II.
However, the court stated that the evidence admitted regarding Count II could be used by the jury in deciding Counts I and III. The jury was instructed as follows:
Appellants Brown and McEvoy objected to this instruction.
Appellants argue that the court erred in permitting the jury to consider evidence on Count II. They claim that such evidence was highly prejudicial and irrelevant. The government counters, however, that the evidence was used to prove knowledge on the part of appellants, especially since Marts and McEvoy protested their ignorance of the heroin discovered in their cell. 1
Rule 404(b) of the Federal Rules of Evidence provides:
This rule codifies prior case law. See Parker v. United States, 400 F.2d 248, 252 (9 Cir.), cert. denied, 393 U.S. 1097, 89 S.Ct. 892, 21 L.Ed.2d 789 (1968).
The rule represents 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. Riggins, 539 F.2d 682, 682 (9 Cir. 1976). The question on appeal is whether the district court abused its discretion when it decided that the tendency of the evidence in question to prove the essential element of knowledge outweighed its potential prejudice. United States v. Perez, 491 F.2d 167, 172 (9 Cir.), cert. denied, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974).
Evidence showing that the inmates possessed heroin in January clearly tends to show that they knew about heroin found in their cell in March. On both occasions, the element in dispute is exactly the same: knowledge about heroin. Therefore, the important test of similarity is met. See United States v. Satterfield, 548 F.2d 1341, 1346 (9 Cir. 1977).
Recent decisions of this court have permitted the introduction of evidence of a prior similar act involving drugs to show knowledge and intent in the crime charged. See, e. g., United States v. Marshall, 532 F.2d 1279, 1283-84 (9 Cir. 1976); United States v. Marshall, 526 F.2d 1349, 1360-61 (9 Cir. 1975). Very recently, the court permitted the introduction of possession, which resulted in a prior acquittal to show knowledge in a marijuana case. See United States v. Rocha, 553 F.2d 615 (9 Cir. 1977). The admissibility of the evidence is thus clear.
The more problematical question in this case is whether the court did not go far enough in protecting against prejudice by giving a cautionary instruction on the limited use to which the evidence could be put. The court's instruction contained no limitation whatsoever.
Appellants are correct in observing that most cases approving the admissibility of evidence of other wrongs have pointed to the limiting instructions as important. However, none say that the evidence would not have been admissible but for the instruction. They say instead that such instructions reduced or eliminated the prejudice that might otherwise have occurred. See, e. g., United States v. Buck, 548 F.2d 871, 877 (9 Cir. 1977); United States v. Marshall, supra, 532 F.2d at 1283; United States v. Marshall, supra, 526 F.2d at 1360-61. The giving of a limiting instruction is but one factor in deciding whether there has been an abuse of discretion.
This case is different from the usual one where evidence of...
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