U.S. v. Davis, 85-8289

• Decision Date: 28 April 1986
• Docket Number: No. 85-8289,85-8289
• Citation: 787 F.2d 1501
• Parties: 20 Fed. R. Evid. Serv. 782 UNITED STATES of America, Plaintiff-Appellee, v. John David DAVIS, Robert Lee Anderson, Opry Felton Lowe, Ronnie Berg Mills, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1501

787 F.2d 1501

20 Fed. R. Evid. Serv. 782

UNITED STATES of America, Plaintiff-Appellee, v. John David DAVIS, Robert Lee Anderson, Opry Felton Lowe, Ronnie Berg Mills, Defendants-Appellants.

No. 85-8289.

United States Court of Appeals, Eleventh Circuit.

April 28, 1986.

Jim Whitmer, Gainesville, Ga., for Davis.

Jack E. Boone (Court-appointed), Augusta, Ga., for Mills.

Bobby Lee Cook, Summerville, Ga., for Anderson.

Jim Hudson, Athens, Ga., for Lowe.

J. Michael Faulkner, D. Gregory Weddle, Asst. U.S. Attys., Augusta, Ga., for the U.S.

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

Before VANCE, Circuit Judge, HENDERSON ^*, Senior Circuit Judge, and LYNNE ^**, Senior District Judge.

HENDERSON, Senior Circuit Judge:

On December 7, 1984, John David Davis, Robert Lee Anderson, Opry Felton Lowe and Ronnie Berg Mills were convicted by a jury in the United States District Court for the Southern District of Georgia of numerous charges arising out of a drug conspiracy. They challenge their convictions on numerous grounds, the most substantial being that the trial judge abused his discretion by admitting a prior conviction of John David Davis. We affirm.

The appellants were charged with participating in a drug smuggling scheme directed by Larry Douglas Evans. The government's case was based almost entirely on the testimony of co-conspirators convicted in the 1983 trial of United States v. Evans, et al., CR 182-41 (S.D.Ga.1983). Davis was the sheriff of Dawson County, Georgia at the time of his indictment. The government presented evidence that Davis participated in the importation of marijuana to the south Georgia area in June, 1981. Davis also made arrangements for Larry Evans to bribe Sheriff Charles Starrett of Elbert County, Georgia in return for his aid in the importation plan. Robert Lee Anderson was connected by the government's witnesses to the same drug transaction in June, 1981 and to numerous marijuana deals conducted with Larry Evans at a local restaurant. Opry Felton Lowe, a farmer, constructed several airstrips at Evans' behest which were used for drug importation. Ronnie Berg Mills, a former Georgia State Revenue Agent, acted as a lookout for Evans at an airstrip used by aircraft to fly in illegal drugs and also provided Evans with useful information concerning the surveillance activities of law enforcement officials. All of the appellants were convicted on every count of the indictment in which they were indicted.

The appellants claim that the district court committed reversible error by allowing the government to cross-examine Davis about a previous conviction. They argue that the admission of this evidence violated a stipulation entered into by all of the appellants and the government. They also contend that the court erred as a matter of law by not making an on-the-record finding that the probative value of the conviction outweighed its prejudicial impact.

Near the end of the government's case, all four appellants and the government entered into an agreement whereby the government assented not to offer into evidence Davis' prior 1966 conviction of conspiring to possess non-tax paid whiskey ¹ in return for Davis' promise not to call any character witnesses. In addition, the government agreed to refrain from introducing certain evidence of bad acts which had been previously held to be admissible in return for the defendants' concession to withdraw their objections to the introduction of a prior consistent statement made by Larry Evans to his attorney. ²

On direct examination, Davis was asked by his attorney whether he had "ever conspired with anybody to import, possess, or distribute any illegal substance?" Record on Appeal, Vol. 19 at 43. He answered the question negatively. Davis was also asked how often in the past he had seen Larry Evans and he responded "probably two or three times a year." Id. at 17. This testimony was untrue because Davis had seen Evans every day for a period of four months during the time when they were incarcerated together in a federal prison. Before the government began its cross-examination of Davis, the prosecutor notified the court that he intended to ask Davis about his prior conviction. The appellants objected, claiming that any discussion of that conviction violated the stipulation. The district court overruled the objection for the reason that Davis' misleading answers to the questions regarding his prior conviction and previous association with Larry Evans breached the stipulation.

Before us the appellants contend that Davis did not breach the agreement because his negative answer to the question relating to possession of an "illegal substance" was truthful because his previous conviction constituted a revenue law infraction rather than a possessory violation. We reject this distinction, however, and hold that the district court did not err by concluding that Davis' direct testimony created the false impression that he had never possessed an illegal substance when in fact he had previously been convicted for possession of non-tax paid liquor. Therefore, the court properly allowed the government to ask Davis about his prior conviction in order to correct that misstatement. ³ In addition, Davis' testimony that he only saw Evans two or three times a year was blatantly false and therefore the government had the right to inquire into his association with Evans in prison.

It is further asserted that the district court erroneously allowed the government to call witnesses to testify that they would not believe Davis under oath. The appellants claim that the parties stipulated that neither side would introduce any character evidence. The district court, however, found that admission of the evidence was proper because the appellants had previously breached the stipulation and because, in any event, nothing in the stipulation prohibited the government from calling witnesses to testify as to whether they would believe Davis under oath. Anderson's Record Excerpts, Tab 10 at p. 9-10. Although the record is ambiguous as to the exact scope of the agreement between the parties, we find that the district court's interpretation of the stipulation must be accorded great deference. Accordingly, we find that the court committed no error when it allowed the government to call witnesses to impeach Davis' truthfulness.

Error is also assigned for the failure of the district court to make a finding on the record that the probative value of Davis' conviction outweighed its prejudicial impact. The appellants rely on United States v. Preston, 608 F.2d 626 (5th Cir.1979) ⁴ to support this proposition. In Preston, the court held that before admitting a prior conviction into evidence for impeachment purposes under Fed.R.Evid. 609(a)(1), a district court must state on the record that its probative value exceeds its prejudicial impact. Davis' conviction fell under Fed.R.Evid. 609(b) because it was more than ten years old but the policies underlying the Preston decision seem to apply equally to rule 609(b) and the Fifth Circuit Court of Appeals recently cited Preston as authority in a case where the conviction was based on evidence admitted under Rule 609(b). United States v. Acosta, 763 F.2d 671 (5th Cir.1985). ⁵

Contrary to the appellants' assertion, Preston is not controlling here because Davis' prior conviction was not used for impeachment purposes but rather to establish the fact that Davis had previously possessed an illegal substance. In United States v. Watchmaker, 761 F.2d 1459 (11th Cir.1985), the court noted that "[e]vidence of past convictions need not be subjected to [the Preston ] restrictions ... if it is offered for purposes other than impeaching a witness ...." In this case, the government asked Davis about the conviction not to cast doubt on his credibility but to dispel the illusion that he gave the jury that he had never possessed an illegal substance. We hold that this use of a prior conviction falls outside the scope of the Preston decision. ⁶

Anderson urges that he was entitled to a severance of his trial once the district court allowed the conviction into evidence because he was not responsible for Davis' breach of the agreement yet he was penalized for that breach. Anderson claims that Davis' credibility was crucial to his case because Davis' testimony was favorable to him. The decision to deny a motion for a severance, however, lies within the sound discretion of the trial judge. United States v. Graziano, 710 F.2d 691, 694 (11th Cir.1983). To be entitled to a severance, a defendant must show that he will suffer compelling prejudice as a result of being tried with another defendant. United States v. Alvarez, 755 F.2d 830, 1857...