U.S. v. Currier

• Decision Date: 22 June 1987
• Docket Number: 86-1909,Nos. 86-1908,s. 86-1908
• Citation: 821 F.2d 52
• Parties: 23 Fed. R. Evid. Serv. 515 UNITED STATES of America, Appellee, v. Raymond Leon CURRIER, Defendant, Appellant. UNITED STATES of America, Appellant, v. Raymond Leon CURRIER, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 52

821 F.2d 52

23 Fed. R. Evid. Serv. 515

UNITED STATES of America, Appellee, v. Raymond Leon CURRIER, Defendant, Appellant.

UNITED STATES of America, Appellant, v. Raymond Leon CURRIER, Defendant, Appellee.

Nos. 86-1908, 86-1909.

United States Court of Appeals, First Circuit.

Argued April 9, 1987.

Decided June 22, 1987.

Murrough H. O'Brien, Portland, Me., for Raymond Leon Currier.

Paula D. Silsby, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., Portland, Me., was on briefs, for U.S.

Before CAMPBELL, Chief Judge, TORRUELLA, Circuit Judge, and MALETZ, ^* Senior Judge.

MALETZ, Senior Judge.

Raymond Leon Currier appeals from a judgment of conviction, after a jury trial in the District of Maine, finding him guilty of being a felon in unlawful possession of a firearm shipped in interstate commerce. 18 U.S.C. App. Sec. 1202(a)(1) (1982). He seeks reversal of his conviction, contending that the district court improperly admitted evidence and compounded that error by failing to give a requested limiting instruction. The government cross-appeals, challenging the district court's determination, 644 F.Supp. 228 (1986), that Currier was not a "dangerous special offender" for purposes of imposing an enhanced sentence. 18 U.S.C. Sec. 3575 (1982). We affirm the conviction but remand for resentencing.

I.

The government's evidence consisted primarily of the testimony of Anthony Carey, a government informant, and tape recordings of two conversations between Carey and the defendant which occurred on December 7, 1985.

Carey first met the defendant, Currier, in 1977 and saw him once a week until 1978, during which period the defendant had a gun dealership. ¹ On Labor Day weekend, 1985, Carey, who had by then become an undercover informant, next saw the defendant. He testified that the defendant told him at that time that he still had his gun business going and that he was supplementing his income by making minor cocaine deals. He further testified that a short time later the defendant telephoned him and offered to sell him some cocaine. Subsequently, the defendant came to Carey's house, again to try to sell him drugs. ²

In early December, 1985, Carey arranged with law enforcement officers that he would contact the defendant and represent that he needed a weapon to convince somebody to pay him money he was owed. In furtherance of this arrangement, Carey telephoned the defendant on December 7, 1985 and asked about the availability of a pistol and whether it could be fixed with a silencer. The defendant replied "You can blow him away and throw it away," and added that he had a ".22 here for a hundred bucks." Further in the conversation, the defendant observed how he thought the "hit" should be made. This telephone call was recorded, introduced into evidence, and played for the jury.

At trial, the defendant objected to and sought redaction of the portions of the telephone recording in which he made references to "blowing somebody away" and making a "hit" as being inadmissible "other crimes" evidence under Rule 404(b) and unduly prejudicial under Rule 403. He argued that these statements depicted him as an illegal gun dealer who conspired with his customers to commit murder and that the statements served no prosecutorial purpose since the indictment alleged a simple possessory crime. The district court overruled the objection, finding that those statements by the defendant were relevant to the issue of whether or not the defendant possessed the firearm and that this discussion between Carey and the defendant placed the crime in context.

Several hours after this telephone call, Carey, wearing a body wire, went to the defendant's apartment. There, he had a discussion with the defendant which was recorded and shortly thereafter he exited, having purchased a .357 Smith & Wesson for $150. During this conversation, Carey raised the issue of buying some valium from the defendant. The defendant responded that he had some "five thousand" valiums "right here," to which Carey exclaimed, "No shit. Jesus Christ." The tape of this conversation was introduced into evidence and played for the jury.

The defendant objected to and sought to redact the portion of the tape which pertained to a possible sale of valium on the grounds that it was impermissible evidence of "other crimes" under Rule 404(b) and unfairly prejudicial under Rule 403. The district court overruled the objection on the basis that the challenged portion of the tape was part of the overall conversation and not unfairly prejudicial because of the earlier unobjected-to testimony about possible drug transactions, and because the statements were voluntarily made.

The defendant appeals, contending that the admission of these two tape recordings without the requested redactions constituted reversible error.

II.

At the outset, we note that our review is limited to determining whether or not the district court abused its discretion in admitting the challenged statements into evidence. ³ Because a district court can more easily assess dangers and probative value associated with proffered evidence, admissibility under Rules 403 and 404(b) is best left to the sound discretion of the trial judge, and we will interpose our judgment only if a complaining party can demonstrate that the district court's ruling did not fall within the ambit of reasonable debate. ⁴ United States v. Ranney, 719 F.2d 1183, 1188 (1st Cir.1983); United States v. Morris, 700 F.2d 427, 431 (1st Cir.), cert. denied, 461 U.S. 947, 103 S.Ct. 2128, 77 L.Ed.2d 1306 (1983); see generally 2 D. Louisell & C. Mueller, Federal Evidence Sec. 125 (1978); J. Weinstein & M. Berger, Weinstein's Evidence Sec. 401 (1986).

Rule 404(b) specifies 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." Fed.R.Evid. 404(b). However, "if such evidence is relevant to another, legitimate purpose it may be admitted if its probative value is not substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury." United States v. Barrett, 539 F.2d 244, 248 (1st Cir.1976); United States v. Anzalone, 783 F.2d 10, 11-12 (1st Cir.1986). Thus, evidence of prior or contemporaneous uncharged conduct may be admissible to complete the story of a crime by proving the immediate context of events near in time and place. United States v. D'Alora, 585 F.2d 16, 20 (1st Cir.1978). As this court has stated:

'[E]vidence of other criminal acts [is] admissible ... when [it is] so blended or connected with the one on trial as that proof of one incidentally involves the other; or explains the circumstances thereof; or tends logically to prove any element of the crime charged.'

Green v. United States, 176 F.2d 541, 543 (1st Cir.1949) (quoting Bracey v. United States, 142 F.2d 85, 87 (D.C.Cir.1944)); accord United States v. Hopkinson, 492 F.2d 1041, 1043 (1st Cir.1974).

Against this background, we conclude that the objected to statements on the telephone tape concerning the use of the gun for "blowing somebody away" were not improperly admitted. While it is true that the statements involved references to violent crimes that could be perpetrated with the gun, they were, in effect, recommendations regarding the use of the gun that the defendant was trying to sell. As such, they were closely intertwined with the charged offense of possession, providing both significant contextual material and proof that the defendant possessed the gun. Cf. United States v. Eatherton, 519 F.2d 603, 611 (1st Cir.1975) (evidence admissible which logically tended to associate appellant with crime). Since the statements were thus relevant for purposes other than proving criminal propensity, their admission was not barred by Rule 404(b).

We now consider whether the district court erred in determining, under Rule 403, that the probative value of these statements outweighed their prejudicial impact. In this context, we note that the government presented ample other proof that the defendant in fact possessed the gun, notably, the gun itself, which Carey turned over to law enforcement officials immediately after he left the defendant's apartment. Nonetheless, given the integral role these statements played in the negotiations for the sale of the gun, we cannot say that the court abused its discretion in admitting them in evidence. See United States v. Barrett, supra, 539 F.2d at 249 (task of balancing is committed primarily to the trial court); United States v. D'Alora, supra, 585 F.2d at 21 (balancing test is whether unfair prejudice substantially outweighs probative value). ⁵

By contrast, we find the statements on the "body" tape concerning valium were erroneously admitted. These statements were, at most, only tangentially probative on the issue of possession, ⁶ and were not necessary to complete the story of the crime. Certainly, the jury could have understood the gun transaction, which was in no way related to narcotics, without the references to valium. ⁷ Consequently, even assuming that these statements were to some degree relevant, their prejudicial impact far outweighed their probative value.

We are not persuaded by the government's argument that the statements were not impermissibly prejudicial because Carey had earlier testified to having discussions with the defendant about possible drug transactions. First, the earlier testimony concerned possible purchases of small amounts of cocaine, whereas the tape made reference to valium. Thus, the recorded statements were not merely duplicative of earlier, unobjected-to evidence. Rather, they made the defendant appear to be a large-scale distributor of different types of illegal drugs. Second, there is a considerable difference between the testimony of a paid informant, who arguably had a motive to lie, regarding a putative other crime of a defendant, and the far more...