U.S. v. Galyen
| Decision Date | 13 August 1986 |
| Docket Number | No. 85-5340,85-5340 |
| Citation | 798 F.2d 331 |
| Parties | 21 Fed. R. Evid. Serv. 649 UNITED STATES of America, Appellee, v. Scott GALYEN, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ralph A. Vinje, Bismarck, N.D., for appellant.
Jerome C. Kettleson, Bismarck, N.D., for appellee.
Before ARNOLD, FAGG and WOLLMAN, Circuit Judges.
Scott Galyen was convicted by jury of three counts of obtaining a controlled substance by misrepresentation or fraud, see 21 U.S.C. Sec. 843(a)(3) (1982), and of one count of possessing with an intent to distribute a controlled substance. See id. Sec. 841(a)(1). On appeal he alleges error in the admission of certain evidence and in the district court's 1 failure to grant his motion for acquittal. We affirm.
The controlled substance involved in this case is dilaudid, a painkiller. Galyen had had one leg amputated as a result of a hunting accident and part of the other leg amputated as a result of a motor vehicle accident; and in seeking continued treatment for his condition, he obtained prescriptions for dilaudid from Dr. Gerd Ebel on, among other occasions, January 9, March 9, and April 2, all in 1984. Dr. Ebel testified that he would not have issued these prescriptions had he known that Galyen was also receiving prescriptions for dilaudid from other doctors. Documentary evidence showed that between April 23, 1982, and June 15, 1984, a period of 784 days, Galyen had obtained 413 prescriptions for a total of 11,277 dilaudid tablets, or an average of more than fourteen tablets per day.
Galyen objects first to the admission of this series of prescriptions to the degree that they extend approximately eighteen months prior to the occurrence of the events on which the indictment was based. Second, Galyen objects to the testimony of a state undercover drug enforcement agent regarding a marijuana transaction he attempted to negotiate with Galyen in October 1982. The agent specifically testified that Galyen asked him if he was interested in purchasing dilaudid, that Galyen crushed a dilaudid tablet and injected it into the stump of his leg with a syringe, and that Galyen when he left their meeting carried a gun. Third, Galyen objects to the testimony of a convenience store clerk that Galyen asked her to go for a ride with him even though she was married and that Galyen made references to her about "getting high."
These evidentiary challenges all are based on Rule 404(b) of the Federal Rules of Evidence, which deals with proof of acts or crimes other than the crimes charged. Evidence of such other acts is admissible when it is relevant to an issue in question other than the character of the defendant, there is clear and convincing evidence that the defendant committed the prior acts, and the potential unfair prejudice does not substantially outweigh the probative value of the evidence. Williams v. Mensey, 785 F.2d 631, 638 (8th Cir.1986) (quoting United States v. Gilmore, 730 F.2d 550, 554 (8th Cir.1984)); United States v. McDaniel, 773 F.2d 242, 247 (8th Cir.1985). This circuit views Rule 404(b) as a rule generally of inclusion, and a trial court's broad discretion in admitting wrongful act evidence will not be disturbed unless the defendant can show that the proof in question "clearly had no bearing upon any of the issues involved." United States v. Estabrook, 774 F.2d 284, 287 (8th Cir.1985). Furthermore, because Galyen's objection to the store clerk's testimony was not renewed at trial, we review the admission of that evidence under the plain error standard. See United States v. Ferguson, 776 F.2d 217, 224 (8th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986).
The items of proof challenged by Galyen all suggest that he was involved in drug dealing, an activity which is directly relevant to the intent to distribute count and also suggests a motive for using misrepresentations to obtain controlled substances as alleged in the other counts. The testimony of the store clerk indicates that Galyen was basically functioning normally, which would be inconsistent with...
To continue reading
Request your trial
-
U.S. v. Brett
...shows joint control of that house, we find this evidence "clearly had bearing on issues presented to the jury." United States v. Galyen, 798 F.2d 331, 332 (8th Cir.1986). Hence, we cannot say that the district court abused its discretion in admitting this evidence.5 The district court exerc......
-
U.S. v. Johnson
...absent a showing by the defendant that the proof " 'clearly had no bearing upon any of the issues involved.' " United States v. Galyen, 798 F.2d 331, 332 (8th Cir.1986) (quoting United States v. Estabrook, 774 F.2d 284, 287 (8th Cir.1985)); United States v. DeLuna, 763 F.2d 897, 912-13 (8th......
-
Cerro Gordo Charity v. Fireman's Fund American Life Ins. Co.
...prior acts, and the potential unfair prejudice does not substantially outweigh the probative value of the evidence. United States v. Galyen, 798 F.2d 331, 332 (8th Cir.1986). The district court is given wide discretion as far as the admission of such evidence. United States v. Simon, 767 F.......
-
U.S. v. Holm
...circumstantial evidence of a source of income apart from the gifts and occasional jobs to which he testified. See United States v. Galyen, 798 F.2d 331, 333 (8th Cir.1986). Most importantly, Johnson gave Rainville specific information identifying Holm as the source of the seized drugs. He e......