U.S. v. Crocker

• Decision Date: 09 April 1986
• Docket Number: No. 84-1849,84-1849
• Parties: 20 Fed. R. Evid. Serv. 875 UNITED STATES of America, Appellee, v. Gerald James CROCKER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 802

788 F.2d 802

20 Fed. R. Evid. Serv. 875

UNITED STATES of America, Appellee, v. Gerald James CROCKER, Defendant, Appellant.

No. 84-1849.

United States Court of Appeals, First Circuit.

Argued Sept. 5, 1985.

Decided April 9, 1986.

Jonathan Shapiro with whom Stern & Shapiro, Boston, Mass., was on brief, for defendant, appellant.

Victor A. Wild, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before BOWNES and BREYER, Circuit Judges, and CEREZO, ^* District Judge.

CEREZO, District Judge.

Gerald James Crocker was convicted by a jury on one count of a two-count indictment for conspiring to commit bank theft, 18 U.S.C. Sections 371 and 2113(b), and was sentenced to three years imprisonment. On appeal, he contends that the district court erred in admitting evidence of a 1977 arrest, of co-conspirator acts prior to the existence of the conspiracy, of recorded telephone conversations between a conspirator who turned informant and other co-conspirators and of co-conspirator acts not in furtherance of the conspiracy. He also attacks the sentence as retaliatory for having exercised his constitutional right to stand trial. The government argues that the evidence of the prior arrest was properly admitted under Fed.R.Evid. 404(b), that evidence of co-conspirators' acts occurring before and during the conspiracy was necessary to fully understand it and that the conspirators' recorded statements were properly admitted under the hearsay exception of Rule 801(d)(2)(E). It contends that there was ample, direct evidence connecting Crocker with the charge. The government's view on the sentence imposed is that there was no significant difference between the one imposed on defendant and the ones imposed on other co-conspirators who pleaded guilty. Although none of the evidentiary issues raised justify reversal, the sentence, however, must be vacated and the case remanded for resentencing.

This particular conspiracy consisted of cashing counterfeit checks in various banks in the New England area from on or about January 1984 to May 3, 1984. Defendant and other conspirators would obtain counterfeit blank checks from Charles Crocker, an indicted co-conspirator and brother of the defendant. Charles had obtained these checks seven or eight years before, some were stolen while others were printed. Those that were printed had the names of various corporations and were filled out by Gerald Crocker and other conspirators with false signatures and printed amounts. Besides obtaining and preparing checks, appellant's role was to drive a co-conspirator to the banks where the checks would be cashed and the proceeds split equally.

Crocker claims that the admission of evidence related to his 1977 arrest violated Fed.R.Evid. 404(b). This was brought up during redirect examination of co-conspirator Gaeta, the government's key witness. Crocker and Gaeta were arrested in 1977 for uttering counterfeit checks. The government argued at trial that this evidence was necessary since defendant had questioned Gaeta as to prior counterfeit check cashing activities but had limited his inquiry to those between Gaeta and defendant's brother. Whether or not the government was entitled to introduce this evidence because defendant opened the door to Gaeta's past activities, see United States v. Fortes, 619 F.2d 108, 121 (1st Cir.1980), the court properly admitted it. Rule 404(b) permits evidence of other crimes, wrongs or acts to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. The process of balancing, on the one side, the need for the other crimes evidence and its probative value in supporting an issue and on the other, the risk that its admission will result in unfair prejudice to the accused, is largely committed to the district court's sound discretion. United States v. Fosher, 568 F.2d 207, 212-13 (1st Cir.1978). The prior event and defendant's participation and involvement with co-conspirator Gaeta had sufficient similar elements with his participation and involvement in the conspiracy charged to make it relevant and highly probative of his criminal knowledge and intent. United States v. Indelicato, 611 F.2d 376, 386, 87 (1st Cir.1979). Defendant's "knowing" participation in the conspiracy was a crucial element which if not clearly established could have left the jury with the impression that defendant was merely driving his friend Gaeta to several New England banks. Cf. United States v. Zeuli, 725 F.2d 813-816 (1st Cir.1984) ("In every conspiracy case ... a not guilty plea renders the defendant's intent a material issue and imposes a difficult burden on the government.") The fact that defendant had been arrested before with co-conspirator Gaeta while in an automobile with counterfeit checks was highly probative of his knowledge that Gaeta's checks and his trips to the banks, were for an illicit purpose. The district court did not abuse its discretion in admitting this evidence after balancing its probative value against its potential prejudice. See United States v. Morris, 700 F.2d 427 (1st Cir.), cert. denied, Graham v. United States, 461 U.S. 947, 103 S.Ct. 2128, 77 L.Ed.2d 1306 (1983).

Appellant also objects to the admission of certain co-conspirator statements as not made in furtherance of the conspiracy. He challenges the recorded conversations where co-conspirator Gaeta, working now as a government agent, is heard talking to co-conspirator Charles Crocker about the possibility of continuing the criminal enterprise. The district court made the necessary findings as to the government's proof of the existence of the conspiracy as more likely than not before admitting these statements, see United States v. Petrozziello, 548 F.2d 20 (1st Cir.1977). Defendant does not question that these statements were made during the conspiracy or that the existence of a conspiracy had been established. His objections rest solely on the assumption that the conversations did not further the conspiracy because they did not result in any criminal activity and were only idle talk elicited by a conspirator-informant in an effort to have Charles Crocker incriminate his own brother. These recorded statements were more than idle chatter. These conversations identified the participants in the conspiracy and revealed their disposition and availability to continue with the counterfeit check cashing activity. In fact, they were so revealing of the conspiracy's development and the conspirators' participation that one of them resulted in the arrest of defendant and co-conspirator Healy while on their way to another counterfeit check cashing trip. Even though the statements were "elicited" by a co-conspirator who had turned government agent, the situation in our case is not similar to the one in United States v. Howard, 752 F.2d 220 (6th Cir.1985). ¹ Compare United States v. Mitlo, 714 F.2d 294, 297-98 (3rd Cir.), cert. denied, 464 U.S. 1018, 104 S.Ct. 550, 78 L.Ed.2d 724 (1983). The co-conspirator acting as agent in the present case did not "create" incriminating statements of little probative value or about some far removed, different conspiracy. The references to defendant in these particular statements was only a fraction of the evidence presented at trial, the greater part of which established Gerald Crocker's participation in the conspiracy. The statements revealed acts and transactions which were part of the conspiracy and which occurred independently of any inducement by the co-conspirator turned agent. Whether they furthered the conspiracy, it should be noted that once the conspiracy is established, statements by co-conspirators which do not actually achieve some of the conspiracy's goals but which reveal an intention to promote its objectives have been admitted as being "in furtherance of" the conspiracy, within the meaning of the hearsay exception. See United States v. Guerro, 693 F.2d 10, 13 (1st Cir.1982). Statements of a conspirator identifying a fellow co-conspirator have also been considered as made in furtherance of the conspiracy. United States v. Handy, 668 F.2d 407, 408 (8th Cir.1982). The district court did not commit reversible error in considering these statements as being in furtherance of the conspiracy and admitting them under the Petrozziello standard.

As to the admission of certain acts by other co-conspirators, defendant argues that the district court should have excluded the evidence related to Gaeta and Charles Crocker's counterfeit check transaction during the latter part of December 1983 since the indictment fixed the onset of the conspiracy in January 1984. The indictment, however, does not pin the conspiracy onset at any specific day but merely states that it commenced "on or about" January 1984. It is well established that approximate dates in an indictment are not controlling, see United States v. Brody, 486 F.2d 291 (8th Cir.1973) cert. denied, 417 U.S. 949, 94 S.Ct. 3077, 41 L.Ed.2d 670 (1974); cf. United States v. Morris, 700 F.2d 427 (1st Cir.), cert. denied, Graham v. United States, 461 U.S. 947, 103 S.Ct. 2128, 77 L.Ed.2d 1306 (1983) (where particular date is not substantive element of crime charged strict chronological accuracy is not required and variance with date alleged and date proved is permitted), and that co-conspirators' acts, as distinguished from their statements, are admissible to establish the nature and objective of the conspiracy regardless of whether they were made during the course of the conspiracy. Anderson v. United States, 417 U.S. 211, 219, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974); Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953). The general criteria to apply to this type of evidence is relevance. United States v. Hickey, 360 F.2d 127 (7th Cir.), cert. denied, 358 U.S. 928, 87 S.Ct. 284, 17 L.Ed.2d 210 (1966). Evidence of acts prior to a conspiracy's...