U.S. v. Buchanan, 84-1558

Decision Date18 March 1986
Docket NumberNo. 84-1558,84-1558
Citation787 F.2d 477
Parties20 Fed. R. Evid. Serv. 402 UNITED STATES of America, Plaintiff-Appellee, v. Jessie BUCHANAN, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Ronald H. Mook, Tulsa, Okl. (Thomas E. Salisbury, Sand Springs, Okl., was also on brief), for defendant-appellant.

Sara Criscitelli, Atty., Dept. of Justice, Washington, D.C. (Donn F. Baker, Acting U.S. Atty., E.D. of Okl., was also on brief), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and McWILLIAMS and DOYLE, * Circuit Judges.

HOLLOWAY, Chief Judge.

The defendant, Jessie Buchanan, timely appeals his conviction for manufacture and possession of an unregistered firearm, 26 U.S.C. Sec. 5861(d) & (f); 1 and for conspiracy to commit these offenses, 18 U.S.C. Sec. 371 (1982). We affirm.

I

The factual background

This case arises from an explosion at Joann Huffman's trailer home in Broken Bow, Oklahoma, on September 3, 1982. According to the Government's evidence, Eric Elrod and John Omstead burned the house at the defendant's instructions. Considered in the light most favorable to the Government at this juncture, the record tends to show the following facts:

Elrod was driving Omstead and another companion, Kathy Bunch, in his father's truck on September 1, 1982. The defendant Buchanan saw them outside a convenience store and invited Elrod into his car. Elrod got in and talked with the defendant. During that conversation, the defendant offered Elrod $800 to burn Huffman's trailer. Elrod accepted, receiving $400 as a down-payment. Tr. 128, 130-31, 139, 201.

A few minutes later, Elrod left the car and rejoined his friends in the truck. Elrod waved the money in Omstead's face, telling him that they were going to do a job for the defendant. Tr. 138-39, 233, 318-19. As Kathy Bunch later testified, the job involved "something like [the] flick of a light switch and then blow something." Tr. 319.

Two days later, Elrod drove Omstead to Bonnie Hyslope's house. The two men went in her backyard and built a firebomb, which consisted of a plastic milk container filled with gasoline and charcoal fluid. Tr. 148-49, 238. Elrod sealed the device with a fuse made out of rags. They placed the device in the truck and drove to Huffman's trailer. Tr. 151, 238. Elrod knocked on the door to see if she was home, and Omstead checked with her neighbors. Satisfied that the trailer was unoccupied, Elrod lit the bomb and dropped it through a broken window. Tr. 153-54, 238, 240. They drove away as the trailer burned.

The defendant Buchanan took the stand and denied having offered money to Elrod or Omstead, or suggesting that Huffman's trailer be burned. He thus vigorously denied his guilt in any transactions charged in the three counts of the indictment.

On appeal, the defendant argues that the trial court erred: (1) by failing to dismiss the entire jury panel after it was exposed to prejudicial remarks by a venireman and denying a mistrial; (2) by allowing the Government to attack the defendant's character during its case-in-chief; (3) by failing to dismiss the indictment due to an Assistant United States Attorney's misstatements of law to the grand jury that returned the indictment; (4) by failing to order a judgment of acquittal due to insufficient evidence; (5) by improperly admitting hearsay testimony under the co-conspirator exception of Fed.R.Evid. 801(d)(2)(E); (6) by refusing to strike Kathy Bunch's testimony after she admitted discussing the case with other witnesses who had been sequestered under Fed.R.Evid. 615; (7) by allowing a Government witness to testify regarding a legal conclusion that the explosive device was a "firearm" requiring registration; and (8) by failing to order a mistrial due to prosecutorial and judicial misconduct.

II

Comments by the juror during voir dire

During voir dire of the jury, the court asked a panel member whether he "kn[e]w of any reason [he] couldn't be fair and impartial in this matter." Tr. 38. He answered "yes," explaining as follows: "In the last five years my mobile home has been vandalized three times and I have had real estate burned." Tr. 38. There was some laughter by spectators. Defense counsel moved for a mistrial, arguing at the bench that prejudice from the remarks was irreparable. The trial judge denied the motion for a mistrial, excusing the venireman for cause and admonishing the remaining panel members to disregard his statement. Tr. 39.

Absent an abuse of discretion, the trial court's determination of the qualifications of jurors will not be disturbed. E.g., United States v. Wilburn, 549 F.2d 734, 739 (10th Cir.1977); United States v. Mason, 440 F.2d 1293, 1298 (10th Cir.), cert. denied, 404 U.S. 883, 92 S.Ct. 219, 30 L.Ed.2d 165 (1971). We do not think a showing of abuse of discretion has been made here. The venireman's remark did not constitute an opinion on the defendant's guilt or the veracity of anyone involved in the case. See United States v. Teqzes, 715 F.2d 505, 508 (11th Cir.1983); United States v. Vargas-Rios, 607 F.2d 831, 837 (9th Cir.1979). The trial judge admonished the other panel members to disregard the remark. See United States v. Warren, 594 F.2d 1046, 1049 (5th Cir.1979). Under these circumstances, we think the trial court did not err in refusing to grant a mistrial. 2

III

Evidentiary rulings

The defendant challenges four evidentiary rulings by the trial court.

A.

Character evidence

First, the defendant argues that the trial court improperly admitted evidence regarding his character. The evidence in question was introduced during the direct examination of Gwen Whitten and her mother. The two women testified generally about the defendant's hostility toward them. Tr. 60, 62, 73, 83, 102. They also testified about three incidents that occurred shortly before Huffman's trailer was burned, including the spanking of his step-daughter. 3 The defendant argues that the evidence was an inadmissible effort to show a criminal disposition and unduly prejudicial. We reject both contentions.

Evidence regarding prior misconduct, other than that charged, is inadmissible to show that the defendant had a criminal disposition. Fed.R.Evid. 404(b); 4 see Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 218, 93 L.Ed. 168 (1948). The rule does not require exclusion, however, when the evidence is also probative of the defendant's motive or intent. Fed.R.Evid. 404(b); see, e.g., United States v. Haskins, 737 F.2d 844, 848 (10th Cir.1984). The court relied on this exception in admitting evidence of the defendant's prior misconduct. Tr. 575. We think the ruling was within the trial court's discretion.

The trial court was also justified in holding that the evidence was more probative than prejudicial. See United States v. Shepherd, 739 F.2d 510, 512 (10th Cir.1984) (evidence admitted under Fed.R.Evid. 404(b) must also satisfy balancing test contained in Fed.R.Evid. 403). The threats against Ms. Huffman had substantial probative value, for they had some relevance to the defendant's alleged solicitation of Elrod. See United States v. Naranjo, 710 F.2d 1465, 1468 (10th Cir.1983) (evidence that defendant previously beat ex-wife properly admitted in murder prosecution); United States v. Bufalino, 683 F.2d 639, 647 (2d Cir.1982) (extortion threat properly admitted), cert. denied, 459 U.S. 1104, 103 S.Ct. 727, 74 L.Ed.2d 952 (1983). The prior misconduct occurred within one year of the fire. 5 See United States v. Franklin, 704 F.2d 1183, 1189 (10th Cir.1983) (misconduct occurring over three years earlier not too remote), cert. denied, 464 U.S. 845, 104 S.Ct. 146, 78 L.Ed.2d 137 (1983). Further, the trial court instructed the jury that the evidence was relevant only insofar as it shed light on the defendant's "intent, motive, knowledge, plan, absence of mistake or accident." Tr. 575. We think the admonition alleviated any danger that the jury would consider the evidence as relevant to the defendant's criminal disposition.

We conclude that the trial court acted within its discretion in admitting the evidence here regarding the defendant's prior misconduct.

B.

Hearsay evidence

The defendant argues that the trial court improperly allowed Elrod and Omstead to give hearsay testimony. We will consider the claims of error separately.

First, defendant says that over his objection on hearsay grounds, Elrod was permitted to testify about statements he had made to Omstead outside of the defendant's presence. Tr. 132-38; Brief of Appellant at 28. Elrod had earlier testified that the defendant Buchanan had called Elrod over to his car several nights before the fire, told him he wanted Elrod to burn Huffman's trailer, promised to give him $800 for this job, and then gave him $400. Tr. 125-31.

When Elrod turned to testifying about returning to his truck and his statements made to Omstead and Bunch, specifically the prosecuting attorney asked Elrod whether he had told Omstead and Bunch about how much money he had gotten, and at that point defense counsel objected that this would be hearsay. Tr. 132. After argument for some time on the law, the trial judge made findings and announced his ruling. He found that there was substantial evidence that it is more likely than not that a conspiracy existed, that the declarant Elrod and the defendant against whom the co-conspirator's statement was offered were members of the conspiracy, and that the statement was made during the course of and in furtherance of the objects of the conspiracy. The court ruled that the evidence could be presented. Then Elrod related that he had told Omstead and Bunch that he had gotten $40 from the defendant, and Elrod said that he had put the money in his pocket. Tr. 139.

After the evidence was concluded, the trial judge stated that no motion had been made (for further findings), but that he had earlier found as a factual matter that the Government had shown by a preponderance of the...

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