U.S. v. Chilcote, 81-5813

• Citation: 724 F.2d 1498
• Decision Date: 13 February 1984
• Docket Number: No. 81-5813,81-5813
• Parties: 15 Fed. R. Evid. Serv. 33 UNITED STATES of America, Plaintiff-Appellee, v. Robert D. CHILCOTE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1498

724 F.2d 1498

15 Fed. R. Evid. Serv. 33

UNITED STATES of America, Plaintiff-Appellee, v. Robert D. CHILCOTE, Defendant-Appellant.

No. 81-5813.

United States Court of Appeals Eleventh Circuit.

Feb. 13, 1984.

Lawrence Rosen, Rosen & Rosen, P.A., Miami, Fla., for Chilcote.

Stanley Marcus, U.S. Atty., Nancy Worthington and Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before VANCE and JOHNSON, Circuit Judges, and PITTMAN ^*, District Judge.

JOHNSON, Circuit Judge:

Appellant, Robert D. Chilcote, challenges his conviction on charges of conspiracy to possess with intent to distribute cocaine, possession with intent to distribute cocaine and distribution of cocaine in violation of 21 U.S.C.A. Secs. 846, 841(a)(1) and 18 U.S.C.A. Sec. 2. Appellant also challenges his conviction, in a separate trial, on charges of assaulting a federal agent with a dangerous weapon, in violation of 18 U.S.C.A. Sec. 111, and knowingly and unlawfully using a firearm during the commission of a felony, in violation of 18 U.S.C.A. Sec. 924(c)(1). We affirm all convictions.

I.

Appellant, with co-defendants Steven Ross and Alvaro Robert, picked up co-defendant Donald Lewington at the Miami International Airport after Lewington met with undercover DEA and Canadian police agents to arrange for the sale of 10 kilograms of cocaine. Appellant, Ross, Robert and Lewington then drove to Robert's home, where according to plan they later met with two undercover agents to discuss further the drug deal arranged in the morning meeting at the airport. At this later meeting, appellant participated in the negotiations over the terms of payment for the cocaine.

Appellant also participated in the testing and weighing of the cocaine that was the subject of the negotiations. Appellant, Robert and DEA agent Matthews together went to the master bathroom in Robert's home to conduct the tests. Appellant provided agent Matthews with counterbalance weights to use in measuring the cocaine. Appellant took some of the cocaine out of its package, chopped it up and placed it under a microscope for Matthews' observation. Appellant later assisted Robert in repackaging the cocaine.

When the testing was completed, agent Matthews used the telephone in the master bedroom to call a waiting team of arrest officers, posing as money men, to come to the house. Appellant, Matthews and Robert then went back downstairs to join Lewington and the other undercover agent. Before the arrest team arrived, appellant again went upstairs.

When the undercover money couriers arrived, agent Matthews too went upstairs, with his gun drawn. Hearing what he believed to be the cocking or loading of an automatic pistol and seeing that the door to the master bedroom was open, he proceeded to the doorway and looked inside. Matthews saw appellant standing at an angle relative to the doorway, with his back and side facing Matthews, and leaning over a large black automatic weapon. Matthews pointed his gun at appellant and called out, "Police. Hold it. Hold it." Appellant swung around with the pistol in his hand. Matthews fired one round from his gun while jumping out of the doorway. His fire hit appellant in the upper arm and chest. A subsequent examination of appellant's gun revealed that it was loaded.

In this appeal, appellant challenges (1) the admission of evidence that he flew a DC-3 to Colombia, (2) the admission of co-defendant Lewington's guilty plea, (3) and his thirty-year-old fraud conviction, (4) the sufficiency of Count V of the indictment, and (5) the sufficiency of the evidence on the charge of assaulting a federal officer.

II.

When appellant and agent Matthews were engaged in weighing and analyzing the cocaine, they had a conversation in which Matthews asked appellant whether he was a pilot. Appellant replied that he was not a pilot, but that he had once flown a DC-3 to Colombia and back. This statement was admitted into evidence, and appellant now challenges the admission as error.

Appellant argues that the statement was inadmissible extrinsic act evidence under Federal Rule of Evidence 404(b). The statement gives no indication of the purpose of the flight to Colombia and therefore, appellant maintains, it cannot be determined whether the evidence is relevant to the issue of his intent with regard to the charged crime. Thus, appellant argues, it is inadmissible under Rule 404(b).

The government argues that appellant's statement is not extrinsic act evidence, but rather is part of the res gestae. It is part of the story of the crime charged and is admissible as such. However, even if the statement is extrinsic act evidence, the government argues that it is admissible under Rule 404(b) because it is relevant to the issue of appellant's intent and its probative value substantially outweighs any prejudice resulting from its admission.

We reject the government's argument that appellant's statement is not extrinsic act evidence. " 'An act cannot be characterized as an extrinsic act when the evidence concerning that act and the evidence used to prove the crime charged are inextricably intertwined.' " United States v. McDowell, 705 F.2d 426, 429 (11th Cir.1983) (quoting United States v. Aleman, 592 F.2d 881, 885 (5th Cir.1979)). When a witness' testimony regarding the crime charged would be incomplete and confusing without the testimony regarding the past act, then the evidence of the past act cannot be characterized as extrinsic to the crime. See McDowell, supra, at 429; United States v. Costa, 691 F.2d 1358, 1361 (11th Cir.1982). In this case, agent Matthews' testimony about appellant's involvement in the crime charged would have been completely comprehensible without the testimony regarding appellant's claimed flight to Colombia. The evidence regarding the flight was entirely unrelated to the transaction at issue here and constitutes extrinsic act evidence subject to Rule 404(b).

Federal Rule of Evidence 404(b) provides that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In United States v. Beechum, 582 F.2d 898 (5th Cir.) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), ¹ the former Fifth Circuit interpreted Rule 404(b) to require a district court to undertake the following analysis:

First, it must determine that the extrinsic offense evidence is relevant to an issue other than defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by the undue prejudice....

Id. at 911, cited with approval in United States v. Edwards, 696 F.2d 1277, 1280 (11th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 1884, 76 L.Ed.2d 813 (1983). The trial court is afforded broad discretion in determining the admissibility of extrinsic act evidence, and its decision will not be reversed absent an abuse of discretion. 696 F.2d at 1280. Moreover, error in the admission of extrinsic act evidence will not require reversal if appellant suffers no prejudice from the error. Fed.R.Crim.P. 52(a); see United States v. Dothard, 666 F.2d 498, 505 (11th Cir.1982); United States v. Guerrero, 650 F.2d 728, 736 (5th Cir.1981).

We conclude that the trial court in this case erred in admitting the extrinsic act evidence because it did not determine that the evidence was relevant to appellant's intent to commit the crimes charged here. Extrinsic act evidence is relevant to a defendant's intent to commit the crime charged only if the extrinsic act and the charged offense require the same intent. ² Guerrero, supra, at 733; Dothard, supra, at 502-03. Because no evidence was offered to elucidate the purpose of appellant's flight to Colombia, it cannot be determined that his intent in making the trip was the same as his intent in committing the offenses involved in this appeal, and, therefore, it cannot be determined that the extrinsic act evidence was relevant to the issue of appellant's intent. Failing this initial hurdle of the Beechum test, the evidence was inadmissible under Rule 404(b).

Although we find error in the admission of the evidence, we conclude that it is harmless because other substantial evidence supports appellant's conviction, and appellant suffered no prejudice by reason of the error. Direct evidence of his involvement in the negotiation and execution of the cocaine sale is sufficient to sustain the conviction without consideration of the extrinsic act evidence.

III.

Appellant called as a witness co-defendant Lewington, who testified to his own participation in the drug transaction and denied any participation by appellant. At the time that he testified, Lewington had plead guilty to the charges against him, but he had not yet been sentenced. On cross-examination, the government sought to impeach Lewington's testimony with evidence of his guilty plea. ³ Appellant did not object ⁴ when the evidence was introduced. On appeal, he raises as error the introduction of the guilty plea.

When the opponent of evidence fails to object to its admission and thus denies the trial court an opportunity to cure immediately any error created by the admission, the Court on appeal does not apply the usual abuse of discretion standard of review, see United States v. Russell, 703 F.2d 1243, 1249 (11th Cir.1983), but rather employs the plain error standard of Federal Rule of Criminal Procedure 52(b). Id. at 1248. "Plain error consists of error which, when examined in the context of the entire case, is so obvious that failure to notice it would seriously affect the fairness, integrity and public reputation of the judicial proceedings." Id. We do not find such...