U.S. v. Carleo, 77-1103

• Citation: 576 F.2d 846
• Decision Date: 12 May 1978
• Docket Number: No. 77-1103,77-1103
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Gerald CARLEO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 846

576 F.2d 846

UNITED STATES of America, Plaintiff-Appellee, v. James Gerald CARLEO, Defendant-Appellant.

No. 77-1103.

United States Court of Appeals,

Tenth Circuit.

Argued and Submitted April 19, 1978.

Decided May 12, 1978.

Edward L. Kirkwood, Denver, Colo. (Daniel J. Sears, Federal Public Defender, Dist. of Colorado, Denver, Colo., on brief), for defendant-appellant.

Edward D. Holmes, Kansas City, Mo. (Joseph F. Dolan, U. S. Atty., Dist. of Colorado, Denver, Colo., on brief), for plaintiff-appellee.

Before SETH, Chief Judge, and HOLLOWAY and McKAY, Circuit Judges.

McKAY, Circuit Judge.

This is a direct criminal appeal from a jury conviction in the United States District Court for the District of Colorado wherein the defendant, Mr. James G. Carleo, was convicted of conspiracy to obstruct justice, (18 U.S.C. § 371) obstruction of a criminal investigation (18 U.S.C. § 1510) and obstruction of justice (18 U.S.C. § 1503). We affirm.

Defendant does not challenge the sufficiency of the evidence. Since the facts are not critical to the disposition of the appeal, a brief summary of the relevant facts as they relate to the issues will suffice.

Defendant and one Samuel J. Danna were joint owners of a bar restaurant in Pueblo, Colorado. During the time in question, the Federal Bureau of Investigation (FBI) and the federal grand jury were investigating gambling activities in the Pueblo, Colorado area. Defendant's lounge was one target of the investigation. At trial the evidence disclosed that Mr. Robert Hull was employed by the defendant during the fall of 1975. During the course of his employment, Hull gained knowledge of certain bookmaking and other gambling activities which were occurring at the lounge.

On or about April 7, 1976, defendant and one Angelo went to Hull's hotel room and told Hull he was going to leave town. Hull testified that defendant made arrangements for him to travel to Las Vegas, Nevada, where he stayed with a Mr. Jim Roush for several days. Hull further testified that defendant called him in Las Vegas and stated that the FBI had learned of his whereabouts and asked him to leave Las Vegas. Hull then traveled to Portland, Oregon, where he contacted the FBI. Hull returned to Pueblo nine days after his departure and visited defendant at his bar. He ultimately went to Denver and testified before the grand jury. The criminal charges against defendant were based upon his order that Hull leave town and his less than subtle threat that it might be good for Hull's health not to say anything.

Defendant raises three issues on appeal: 1) whether the trial court erred in allowing the prosecution to introduce evidence of defendant's prior assault upon a suspected informer; 2) whether reversible error occurred when the prosecutor commented in front of the jury on defendant's opportunity to take the witness stand in his own defense; and 3) whether the opening and closing arguments of the prosecutor constituted character testimony regarding the credibility of defendant and Hull, thereby denying defendant his Sixth Amendment right to confrontation.

I.

In its opening statement, the government stated the evidence would show that a few months prior to the obstruction and conspiracy now in question defendant had beat up a man in the presence of Hull and then told Hull: "That's what we do to informers." Record, vol. 2, at 17-19. Defendant promptly objected and made a motion for mistrial which was denied. Hull, the potential grand jury witness, later testified at trial that defendant asked him to bring a man named Dickinson to defendant's bar. Hull's testimony was that immediately after defendant and his partner had severely beaten Dickinson, defendant warned Hull, "(T)hat's what happened to snitches." Record, vol. 2, at 104.

Dickinson was also called as a government witness. Anticipating the probable content of his testimony, the court called a recess to "give (defendant) a reasonable opportunity to object to the testimony before the jury in the event it should prove to be of questionable admissibility." Record, vol. 3, at 40. After hearing Dickinson relate how defendant and his bartender had hit and kicked him, the court ruled: "I'll treat that as an offer of proof and that it is relevant. It's relevant on the question of intent and motive." Id. at 47. The jury was called back and instructed: "Testimony is being received for the very limited purpose of shedding what light it may, if any, on the motive and intent of the defendant in your consideration of the charges made against him in this case." Id. at 44. Dickinson then testified that during the time he was being severely "beaten upon with a fist and kicked about the head and shoulders," defendant had threatened "if (he) wanted to be another Nance, they (that is defendant and his partner) could arrange that." Id. at 45. Further testimony disclosed that Nance was widely known as a former police informant who had been shot about two years earlier in Pueblo.

Defendant objected to Dickinson's testimony as being in violation of Rule 403 of the Federal Rules of Evidence. He now complains that the admission of this testimony violates Rules 402, 403, and 404.

Violations of 18 U.S.C. §§ 1503 and 1510 both require proof of a specific intent to obstruct justice. See, e. g., United States v. Lippman, 492 F.2d 314 (6th Cir. 1974), cert. denied, 419 U.S. 1107, 95 S.Ct. 779, 42 L.Ed.2d 803 (1975) (§ 1510); United States v. Ryan, 455 F.2d 728 (9th Cir. 1972) (§ 1503); see Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419 (1893). Thus it cannot be said that the trial court abused its discretion in finding the evidence relevant under Rule 402. We agree that testimony of defendant's assault upon Dickinson, with the accompanying warning to Hull, was probative of defendant's intent and motivation when, only a short time later, he told Hull to leave town and threatened "it might be good for (Hull's) health if (Hull) didn't say anything." Record, vol. 2, at 110, 115.

We recognize, however, that even relevant evidence should be excluded under Rule 403 "if its probative value is substantially outweighed by the danger of unfair prejudice." While trial courts have discretion in striking the balance between probative value and unfair prejudice, United States v. Nolan, 551 F.2d 266, 271 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977), and cases cited, they must be particularly sensitive to the potential prejudice that is always inherent in evidence of an accused's prior uncharged crimes or wrongs. See United States v. Burkhart,458 F.2d 201 (10th Cir. 1972) (en banc). Although Rule 403 provides broad umbrella protection from unfair or undue prejudice, the specific provision in Rule 404(a) prohibiting evidence of uncharged crimes to show bad character or tendencies toward criminality not only reflects the special danger of other crimes evidence but should alert trial courts to be particularly careful in admitting such evidence. See id. at 204 and n. 3.

We are convinced that the trial court here acted with the sensitivity and caution that considerations of other crimes evidence require. The court called a recess in order carefully to consider the nature and purpose of the proffered evidence outside the presence of the jury before it was introduced. Moreover, the jury was instructed immediately prior to the introduction of the testimony that it was "being received for the very limited purpose of shedding what light it may, if any, on the motive and intent of the defendant in the (jury's) consideration of the charges made against him in this case." Record, vol. 3, at 41. The court also cautioned the prosecution not to go into the details of Dickinson's beating, and the government did not attempt to go beyond the scope of inquiry delineated by the court.

We commend the trial court for the manner in which he handled the offer of proof and introduction of this evidence. We hold the court did not abuse his discretion in determining that the probative value of the evidence was not "substantially outweighed by the danger of unfair prejudice." His determination is supported by the explicit provisions of Rule 404(b) which, inter alia, allow evidence of other crimes, wrongs, or acts as proof of motive or intent. See United States v. Nolan, 551 F.2d at 270, and cases cited.

II.

Defendant's second contention arises out of an incident that occurred during the government's redirect examination of one of its witnesses. Defendant elected to represent himself although, the court provided an appointed attorney who sat in the courtroom and occasionally consulted with him. Defendant apparently made some body movements which indicated agreement or disagreement with the testimony being given. The government interrupted its questioning and, in the presence of the jury, stated, "Excuse me, Your Honor, if Mr. Carleo wishes to testify, I have no objection, but he's nodding his head whenever the witness is getting ready to answer and I think that's not proper." Record, vol. 2, at 68. It appears the trial court also observed defendant's body movements, for he immediately admonished: "That isn't proper, Mr. Carleo. I'm sure its inadvertent. . . . Please try not to do it, just watch." Id.

Defendant complains the prosecutor's comment violates the rule of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which essentially prohibits any prosecutorial comment on an accused's failure to testify. The test followed by this court in determining whether a comment will be considered a reference to a defendant's failure to testify is "whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955). See United States v. Walton, 552 F.2d 1354, 1362 (10th...