U.S. v. Feinman

• Decision Date: 15 April 1991
• Docket Number: No. 90-3721,90-3721
• Citation: 930 F.2d 495
• Parties: 32 Fed. R. Evid. Serv. 831 UNITED STATES of America, Plaintiff-Appellee, v. David Shew FEINMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 495

930 F.2d 495

32 Fed. R. Evid. Serv. 831

UNITED STATES of America, Plaintiff-Appellee, v. David Shew FEINMAN, Defendant-Appellant.

No. 90-3721.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 31, 1991.

Decided April 15, 1991.

Thomas M. Bauer, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Cleveland, Ohio, for plaintiff-appellee.

Matthew Fortado (argued), Akron, Ohio, for defendant-appellant.

Before MARTIN and BOGGS, Circuit Judges, and BELL, District Judge. ^*

BOGGS, Circuit Judge.

David Shew Feinman appeals his jury conviction for conspiring to possess marijuana and possession of marijuana with intent to distribute, in violation of 21 U.S.C. Secs. 846, 841(a)(1), 841(b)(1)(B), and 18 U.S.C. Sec. 2. We find no error requiring reversal of Feinman's conviction, but must remand the case to the district court for the limited purpose of increasing Feinman's offense level by two.

I

On March 1, 1990, Michael Watson was stopped for speeding while heading east on Interstate 70 in the state of Utah. Watson consented to a search of his vehicle, which uncovered 732 pounds of marijuana. Watson was arrested and taken into custody. After questioning, Watson agreed to cooperate with authorities by making a "controlled delivery." Watson told authorities that he was transporting marijuana from California to Akron, Ohio on behalf of David Feinman. Watson indicated that his instructions were to drive to his mother's house in Akron and call Feinman.

On March 5, 1990, the controlled delivery took place. Both Watson and Feinman were under surveillance by federal and state authorities. Watson called his mother, Patricia Watson, and advised her that he was in town; she relayed this message to Feinman. Feinman was observed near his mother's house in a blue Chevy van, driven by Steve Lewis. The two men drove to Patricia Watson's house located on the other side of Akron. Feinman entered the house for a brief period. Feinman then proceeded to get into Watson's truck and both he and Lewis drove off. The vehicles were stopped approximately four blocks away from Watson's house and the two men were arrested.

Both Feinman and Lewis were indicted for conspiring to possess marijuana and possession with intent to distribute marijuana. After the first day of the trial of Lewis and Feinman, Lewis informed the court that he wished to enter a guilty plea. The jury was dismissed and a new trial date was scheduled for Feinman. Feinman was later convicted of both counts and was sentenced to seventeen years in prison and fined $150,000.

II

On appeal, Feinman raises a number of issues. First, Feinman contends that the government's conduct in arranging the controlled delivery was so outrageous as to violate due process. See, e.g., United States v. Robinson, 763 F.2d 778, 785 (6th Cir.1985); United States v. Brown, 635 F.2d 1207 (6th Cir.1980). We have articulated four factors to be considered in determining whether the conduct of police officers is so outrageous as to violate due process: (1) the need for the conduct as shown by the type of criminal activity; (2) whether the criminal enterprise preexisted the police involvement; (3) whether the government agent directs or controls the enterprise; and (4) the impact of the police activity on the commission of the crime. Robinson, 763 F.2d at 785; United States v. Norton, 700 F.2d 1072 (6th Cir.), cert. denied, 461 U.S. 910, 103 S.Ct. 1885, 76 L.Ed.2d 814 (1983). There is nothing in this record to show that the agents became so intertwined with the conspiracy as to violate due process. No agent became part of the conspiracy; nor did any agent initiate or control any aspect of the conspiracy. They merely enlisted the aid of one member of the conspiracy in order to expose the entire conspiracy.

During the course of direct examination of the government's first witness, Michael Watson, the Assistant United States Attorney inquired as to how Watson agreed to make this particular delivery:

Q: Now, specifically looking at February of 1990 tell us about this particular job that you accepted with him [Feinman] delivering marijuana.

A: He had had a deal, and he wanted me to work for him, but then he told me no because he was going to go to Hawaii. And we had talked about it and eventually decided, he told me just to take care of it.

So, he went to Hawaii and there was a 200 pound deal that I went and picked up in northern California. And I brought it home and had a couple of people bring it to Ohio. And then I thought that would be it. And then I was contacted again and told there was more marijuana up there.

And David called me from Hawaii and I told him what was happening. And he said he didn't want to hear nothing about it. He just told me to take care of it. So, I picked up the rest of marijuana.

Feinman argues that Watson's reference to a "200 pound deal" requires a new trial. We disagree. Watson's reference to Feinman's involvement in a "200 pound deal" was not solicited and, strictly speaking, was not responsive to the question. The government did not claim at trial, or does it claim now, that any evidence of Feinman's previous involvement in a "200 pound deal" was admissible as uncharged misconduct under Fed.R.Evid. 404(b). The witness appeared to volunteer this reference to the marijuana because, in his judgment, it was integral to his discussion on how he became involved in this particular delivery. The government did not solicit the "200 pound deal" reference and did not pursue the matter further. We find that, given the force of the other evidence of Feinman's guilt, direct and circumstantial, Watson's unresponsive reference to Feinman's involvement in a "200 pound deal," while improper, was harmless. Fed.R.Crim.P. 52(a).

In presenting the government's case, there was testimony from a number of witnesses relating to Feinman's involvement in a prior shipment of marijuana being transported into the Akron area from California. Feinman contends that this testimony regarding the prior marijuana shipment was not admissible under Fed.R.Evid. 404(b). Specifically, Feinman claims that the probative value of this evidence was outweighed by its prejudicial impact and therefore should have been excluded by the district court. We disagree.

This issue is raised regularly and a review of procedure seems appropriate. A trial court must employ a two-step analysis in determining the admissibility of evidence offered under Fed.R.Evid. 404(b). First, the trial court must ascertain whether the proffered evidence is relevant and admissible for a proper purpose. United States v. Zelinka, 862 F.2d 92, 98 (6th Cir.1988). To be relevant, "the evidence must relate to a matter which is 'in issue,' and must deal with conduct substantially similar and reasonably near in time to the offenses for which the defendant is being tried." United States v. Blankenship, 775 F.2d 735, 739 (6th Cir.1985) (citations omitted). To determine whether the proffered evidence is admissible for a proper purpose, the trial court must decide, "whether that evidence is probative of a material issue other than character." Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988).

Finally, the court must determine whether the probative value of the evidence is "substantially outweighed by the danger of unfair prejudice." Fed.R.Evid. 403; Huddleston, 485 U.S. at 687, 108 S.Ct. at 1500. The district court has broad discretion in balancing probative value against potential prejudicial impact. United States v. Dabish, 708 F.2d 240, 243 (6th Cir.1983). We review a district judge's balancing of prejudicial impact and probative value under Fed.R.Evid. 404(b) under an abuse of discretion standard. United States v. Holloway, 740 F.2d 1373, 1377 (6th Cir.), cert. denied, 469 U.S. 1021, 105 S.Ct. 440, 83 L.Ed.2d 366 (1984).

The testimony relating to Feinman's involvement in the prior marijuana shipment was properly admitted under Fed.R.Evid. 404(b). This testimony was introduced to illustrate that Feinman was involved in an ongoing scheme to transport large amounts of marijuana from California to Akron, Ohio. This information was highly probative in evaluating Feinman's claim that he was unaware that the truck he was driving when arrested contained over 700 pounds of marijuana. Furthermore, this prior act was similar to, and sufficiently near in time to, the offenses charged in the indictment. This particular transaction took place approximately two months prior to the offence charged in the indictment. See United States v. Ismail, 756 F.2d 1253, 1260 (6th Cir.1985) (similar acts that occurred two to four years prior were held to be sufficiently near in time to offense charged in the indictment). This transaction also involved the same participants and involved the same mode of operation as was charged in the indictment. With respect to potential prejudice, the district court minimized any possible prejudicial effect by giving a limiting instruction to the jury before this testimony was introduced. As noted, a trial judge's discretion in balancing the probative value of evidence against its potential for unfair prejudice is very broad. Dabish, 708 F.2d at 243. In the present case, we decline to substitute our judgment for that of the district court.

Feinman also argues that Watson's reference to a "200 pound deal" coupled with the evidence concerning his involvement in a prior drug transaction had the effect of creating a "variance" between the indictment and the proof at trial. The indictment charged Feinman with involvement in a drug conspiracy from February 25, 1990 to March 5, 1990. A variance occurs when the proof introduced at trial differs materially from the facts alleged in the indictment. United States v. Beeler, 587 F.2d 340 (6th Cir.1978). Not every variation between indictment and proof at trial creates reversible error; only those variances that create "a substantial...