U.S. v. Davis
| Decision Date | 27 August 1981 |
| Docket Number | 80-5059,Nos. 80-5057,s. 80-5057 |
| Citation | 657 F.2d 637 |
| Parties | 8 Fed. R. Evid. Serv. 1396 UNITED STATES of America, Appellee, v. Roy Lee DAVIS, Appellant. UNITED STATES of America, Appellee, v. Arthur Earl CARTER, Jr., Appellant. UNITED STATES of America, Appellee, v. Ernest MAPLES, Jr., a/k/a Junior, Appellant. UNITED STATES of America, Appellee, v. Bernard Robert BASKERVILLE, a/k/a Pissy, Appellant. to 80-5061. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Kenneth L. Thompson, Saul Kerpelman and Charles Nutt, Baltimore, Md. (George Russell, Jr., Nelson Kandel and Richard Cremin, Baltimore, Md., on brief), for appellants.
D. Christopher Ohly, Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., on brief), for appellee.
Before BUTZNER, PHILLIPS and MURNAGHAN, Circuit Judges.
Ray Lee Davis, Arthur Earl Carter, Jr., Ernest Maples, Jr., and Bernard Robert Baskerville were convicted of conspiracy to distribute heroin between January, 1977 and June, 1979, in violation of 21 U.S.C. §§ 846 and 841(a)(1). In addition, Davis and Maples were convicted of having traveled in interstate commerce in aid of a racketeering enterprise, in violation of 18 U.S.C. § 1952(a)(3), and Baskerville was convicted of one count, and Carter of two counts, of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). Most of the arguments raised by the defendants concern the supposed insufficiency or inherent incredibility of the government's evidence against them. Carter additionally petitions for a new trial on the further ground that testimony extrinsic to the acts charged concerning alleged sales of heroin to 12 or 13 year old children that were made six to eleven years before the present conspiracy is alleged to have begun was erroneously admitted into evidence.
The credible evidence clearly supports findings of guilt against Davis, Maples, and Baskerville. We readily affirm their convictions. The special point raised by Carter, however, gives greater pause.
Much of the trial was devoted to proving that the defendants conspired to distribute large quantities of heroin in the Baltimore, Maryland metropolitan area during the 2 1/2 year period charged in the indictment, i.e., from January, 1977 through June of 1979. A key prosecution witness, one James Williams, about age 25 in January, 1977, testified over objection 1 that at age 12 or 13 he started to obtain heroin for resale from Carter. He stated that at that tender age he obtained as many as 800 heroin pills per week from Carter, which he sold for approximately $2.00 each, paying Carter from the receipts. Williams stated that he continued to sell for Carter "off and on" until his imprisonment in 1971 for armed robbery. Thus, the prior acts about which Williams was permitted to testify began eleven years and ended six years before the conspiracy on which the prosecution was based is alleged to have commenced. No cautionary instruction was asked or given.
The general rule is that the prosecution may not introduce evidence of extrinsic offenses to demonstrate the defendant's propensity to commit unlawful acts or to prove that the defendant committed the crime with which he is presently charged. United States v. Beechum, 582 F.2d 898, 910 (5th Cir. 1978) (en banc). 2 However, Rule 404(b) of the Federal Rules of Evidence provides that "evidence of other ... wrongs, or acts ... may ... be admissible ... as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." 3 Even if one of these exceptions apply, if the probative value of the extrinsic acts "is outweighed by the risk that its admission will create a substantial danger of undue prejudice to the accused," United States v. Woods, 484 F.2d 127, 134 (4th Cir. 1973), the evidence must be excluded. See Fed.R.Ev. 403. "In assessing probative value, the trial court must take into consideration not only relevance but also the necessity and reliability of the evidence." United States v. DizEnzo, 500 F.2d 263, 266 (4th Cir. 1974).
Rules 403 and 404 should have been applied by the trial court to exclude the testimony of sales by Carter so remote in time and so possessed of a propensity to prejudice. We reject the argument that the prior sales tended to prove Carter's "intent" to commit the present offenses. See United States v. Coades, 549 F.2d 1303, 1306 (9th Cir. 1977) (); cf. United States v. Beechum, 582 F.2d 898 (5th Cir. 1978). The district court erred when it allowed the testimony to be admitted.
The government also suggests that the Williams' testimony concerning the earlier sale of narcotics was admissible as part of "a pattern of dealings which is a course of (a) plan or scheme." However, the "pattern of dealings" exception to the general rule is generally invoked to admit evidence of contemporaneous extrinsic offenses rather than evidence of stale offenses. See, e.g., United States v. Masters, 622 F.2d 83, 85-88 (4th Cir. 1980) (). The government may not use evidence of misdeeds long past to prove that the defendant committed the crimes with which he is now charged. 4
Nevertheless, although the trial court erred in admitting the evidence, we are satisfied that, in the context of the case, the error was harmless. Fed.R.Crim.P. 52. The test for harmlessness for nonconstitutional error is whether it is probable that the error could have affected the verdict reached by the particular jury in the particular circumstances of the trial. United States v. Nyman, 649 F.2d 208 (4th Cir. 1980). See Kotteakos v....
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... ... We base our decision on the Fourth Circuit Court of Appeals decision in United States v. Davis, 657 F.2d 637 (4th Cir.1981). In Davis, the court found harmless error where the lower court admitted testimony concerning alleged sales of heroin ... Furthermore, neither the mother nor the psychologist added anything substantive to the children's testimony. It would cause us grave concern as to the propriety of the mother's testimony if the children gave a barebones or sketchy account of what occurred, and then the mother ... ...
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... ... denied, 449 U.S. 823, 101 S.Ct. 82, 66 L.Ed.2d 25 (1980). But see United States v. Davis, 657 F.2d 637, 639-40 (4th Cir.1981) (error to admit evidence that six to eleven years before, defendant sold heroin to children but error harmless ... Nor does Angelo's and Wiechert's failure to identify the correct point at which Angelo became a government informant enable us to say that the indictment should be set aside to serve the ends of fundamental fairness ... 6. Minster's Testimony ... The ... ...
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Brecht v. Abrahamson: harmful error in habeas corpus law.
...cannot say that the [error] did not reasonably have a substantial influence of [sic] the minds of the jurors" ; United States v. Davis, 657 F.2d 637, 640 (4th Cir. 1981) ("probable"). A few decisions apply something closer to a more probable than not" standard. See United States v. Lui, 941......