U.S. v. Dixon, s. 76-1426

• Decision Date: 22 December 1976
• Docket Number: Nos. 76-1426,76-1347,s. 76-1426
• Citation: 547 F.2d 1079
• Parties: 2 Fed. R. Evid. Serv. 256 UNITED STATES of America, Plaintiff-Appellee, v. Sammie Jud DIXON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Adolph GREENLEAF, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1079

547 F.2d 1079

2 Fed. R. Evid. Serv. 256

UNITED STATES of America, Plaintiff-Appellee, v. Sammie Jud DIXON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Adolph GREENLEAF, Defendant-Appellant.

Nos. 76-1426, 76-1347.

United States Court of Appeals, Ninth Circuit.

Dec. 22, 1976.

Samuel G. Jackson, Jr., Deputy Federal Public Defender (argued), Los Angeles, Cal., for Adolph Greenleaf.

Joan Celia Lavine (argued), Los Angeles, Cal., for Sammie Jud Dixon.

Wilfred H. Hearn, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

Before CHAMBERS and KENNEDY, Circuit Judges, and JAMESON, ^* District Judge.

ANTHONY M. KENNEDY, Circuit Judge:

Appellants Greenleaf and Dixon, along with codefendant Feazel, were tried and convicted by a jury for conspiring to distribute heroin, a violation of 21 U.S.C. §§ 846 and 841(a)(1). This appeal followed.

Porter, a government informant, and appellant Greenleaf had known each other for about two years. The alleged conspiracy began when Greenleaf met with Porter at a beauty college where the latter was a student. Porter testified that at this meeting Greenleaf displayed a few balloons of heroin and asked him if he knew anyone who might purchase the narcotic. Porter responded that he could introduce Greenleaf to some out-of-town buyers.

Porter introduced Greenleaf to Agent Talton of the Drug Enforcement Administration, who posed as the out-of-town narcotics purchaser. Following a series of negotiations, the parties met on a residential street in Los Angeles. Talton and two other agents, Thornton and Smith, were to complete the purchase while a surveillance team waited nearby to make the arrest. The agents remained in their automobile as appellants Greenleaf and Dixon and codefendant Feazel approached. Dixon asked the agents for the money and through the car window handed Smith a brown paper sack containing a clear plastic bag. Agent Talton gave a signal to the surveillance team to make the arrest, but they failed to respond. After repeatedly requesting the purchase money, Dixon became suspicious and grabbed the paper sack containing the plastic bag from Agent Smith, and the defendants left the scene. The surveillance team arrested the defendants shortly afterwards, but the brown sack and its contents were never recovered.

At trial, Agent Smith testified that he had examined the contents of the plastic bag and had found a brown, powdery substance; from its texture, color, and odor, he concluded that it was heroin. Defendants contended they were not guilty of conspiracy to distribute heroin since they were only trying to defraud the purchasers by selling a harmless substitute. The jury did not believe their story and returned a verdict of guilty.

Appellants claim that there was insufficient evidence to sustain the conspiracy conviction. We disagree. Considered in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the evidence discloses sufficient facts on which the jury could conclude beyond a reasonable doubt that appellants had conspired to sell heroin. The testimony of the government agents about events leading up to the appellants' arrest sufficiently demonstrates that a sale of heroin was planned. The failure to recover the bag containing the brown substance does not mandate a contrary conclusion. Nor is it material that the narcotic transaction was not actually consummated. A conspiracy "does not require 'mission accomplished,' only 'mission attempted.' An overt act by the conspirators in an effort to accomplish the mission satisfies the requirement of the statute." United States v. Root, 366 F.2d 377, 383 (9th Cir. 1966), cert. denied, 386 U.S. 912, 87 S.Ct. 861, 17 L.Ed.2d 784 (1967); United States v. Croxton, 482 F.2d 231 (9th Cir. 1973).

Appellants next contend that the trial judge erred in excluding certain impeachment evidence. The first witness called by the defense was the informant, Porter, who had not been called by the prosecution. Before Porter testified, defense counsel advised the trial court that they intended to impeach Porter with evidence of four prior convictions: a 1967 conviction for robbery, a 1967 conviction for forgery, a 1970 conviction for forgery, and a 1971 conviction for distribution of narcotics. Over defense objection, the court ruled that only the 1971 conviction for distribution of narcotics could be admitted to impeach Porter. The district court excluded the 1967 convictions on the ground that they were too remote. It is unclear from the record whether the trial court excluded the 1970 forgery conviction because it was too remote or because it involved a misdemeanor. We conclude that these rulings were error.

By proffering the evidence of Porter's prior convictions, the defendants sought to impeach the credibility of their own witness. Before enactment of the Federal Rules of Evidence, that practice was generally not permitted. See C. McCormick, Evidence § 38 (1st ed. 1954). ¹

Since the trial took place in January 1976, however, the proceedings and the court's evidentiary rulings were governed by the Federal Rules of Evidence, Pub.L. 93-595 § 1, 88 Stat. 1929 (1975). The Federal Rules abrogate the former practice and instead provide: "The credibility of a witness may be attacked by any party, including the party calling him." Fed.R.Evid. 607. Hence, the appellants could impeach Porter.

Fed.R.Evid. 609 controls the admissibility of evidence of prior convictions for impeachment purposes. ² Rule 609(a)(1) allows impeachment of a witness by evidence of prior convictions if the crime was punishable by death or imprisonment for over a year, provided the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the defendant. Rule 609(a)(2) permits impeachment by evidence of a prior conviction if the crime involved dishonesty or false statement, regardless of the punishment. ³

Rule 609(b) provides a mechanism for dealing with remote convictions. It declares that evidence of a conviction over ten years old is inadmissible for impeachment purposes unless at trial the court determines, by standards set forth in the rule, that the ten year bar should be lifted. The juxtaposition of Rule 609(a) and Rule 609(b) leads us to conclude that all convictions for crimes of the type described in Rule 609(a) offered for impeachment purposes must be admitted if such convictions are less than ten years old, subject only to the stated exception to Rule 609(a)(1) requiring exclusion of Rule 609(a)(1) convictions where their probative value is outweighed by their prejudicial effect to the defendant. ⁴

In the instant case, appellants first sought to impeach Porter with the 1967 robbery conviction. The trial court excluded the evidence as too remote. Since the conviction was less than ten years old, the evidence could not be excluded under Rule 609(b). Nor could it be excluded under Rule 609(a)(1) unless the remoteness of the conviction caused its prejudicial effect to the defendants to outweigh its probative value. Here, however, the defense itself proffered the evidence. It is quite clear that the effect, if any, of the evidence on the jury could only have benefited the defendants. The prejudice exception of Rule 609(a)(1), therefore, could not apply, and the trial court erred in excluding this evidence.

The defense further sought to introduce evidence of two forgery convictions, the first of which occurred in 1967, the second in 1970. These convictions should also have been admitted to impeach Porter. Since forgery is a crime involving "dishonesty or false statement," see, e. g., United States v. DiLorenzo, 429 F.2d 216 (2d Cir. 1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1609, 29 L.Ed.2d 120 (1971), and since the convictions were less than ten years old, their admissibility at the trial is governed by Rule 609(a)(2).

By its terms, Rule 609(a)(2) affords the trial court no discretion to exclude evidence of convictions of a crime involving dishonesty or false statement. Given the scheme set up in Rule 609(b), we doubt that the trial court can ever exclude Rule 609(a)(2) convictions as remote where such convictions are less than ten years old. This conclusion is buttressed by Congress' belief that crimes involving dishonesty or false statements are always highly probative on the issue of a witness' credibility. H.R.Rep.No.93-1597, 93rd Cong., 2d Sess. 9 (1974), reprinted in 20 U.S.S.Ct. Digest 231 (Appendix 3). In any event, since crimes of the type covered in Rule 609(a)(1) may be excluded only upon a showing of prejudice to the defendant, it follows a fortiori that any conceivable exception to Rule 609(a)(2) must involve a showing of prejudice to the defendant which is at least as strong. In view of the foregoing, it is apparent that neither the 1967 nor the 1970 forgery conviction could be excluded as remote.

If the 1970 conviction was excluded because it was a misdemeanor, that too was incorrect. Rule 609(a)(2) applies to all crimes involving dishonesty or false statement, irrespective of whether the conviction was for a felony or a misdemeanor.

The Government argues that even if exclusion of the evidence constituted error, the error was harmless. We disagree. The Government's case-in-chief did not depend on evidence obtained from the informant. Appellants may indeed have called the informant to the stand, for reasons known only to them, solely to elicit incriminating testimony from him and then impeach his credibility. If appellants' trial strategy in calling Porter was limited to such a meaningless purpose, we might have found the error harmless. But a more plausible interpretation of the defense strategy was that the informant was called to support various defense theories, however tenuous or inconsistent. The informant's testimony could conceivably have supported appellants'...