U.S. v. Goodapple

• Decision Date: 16 March 1992
• Docket Number: No. 90-3819,90-3819
• Citation: 958 F.2d 1402
• Parties: 35 Fed. R. Evid. Serv. 422 UNITED STATES of America, Plaintiff-Appellee, v. Michael F. GOODAPPLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1402

958 F.2d 1402

35 Fed. R. Evid. Serv. 422

UNITED STATES of America, Plaintiff-Appellee, v. Michael F. GOODAPPLE, Defendant-Appellant.

No. 90-3819.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 3, 1991.

Decided March 16, 1992.

Byron G. Cudmore, Asst. U.S. Atty., Office of U.S. Atty., Springfield, Ill., argued, for plaintiff-appellee.

Charles M. Shaw, James J. Knappenberger (argued), Shaw, Howlett & Knappenberger Clayton, Mo., for defendant-appellant.

Before WOOD, Jr., ^* and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

Michael F. Goodapple appeals his convictions on one count of conspiracy to transfer machine guns in violation of 18 U.S.C. § 371, four counts of transfer of an unregistered machine gun in violation of 26 U.S.C. § 5861(e), four counts of distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1) and one count of possession with the intent to distribute a controlled substance also in violation of 21 U.S.C. § 841(a)(1) as set forth in a superseding indictment. Since the facts leading up to Goodapple's indictment are not at issue in this appeal, we dispense with our usual summary of the background facts and directly address each of Goodapple's claims of error. For the following reasons, we affirm.

First, Goodapple asserts that his fifth amendment right to remain silent at trial and his fifth amendment right to be free of comment on his right to remain silent were violated when the trial court read to potential jurors a list of those who would possibly testify at trial, including Goodapple's name. The court had already introduced Goodapple as the defendant and advised the jury of the criminal charges. Goodapple says the court's comment effectively compelled him to testify and called the jury's attention to whether or not he would testify or remain silent. The government answers that Goodapple "invited" any error because the defendant's own witness list contained his name. The government's "invited error" argument is not persuasive since the trial court's local rules may be interpreted to require counsel to file with the court a list of potential witnesses without any exception for a defendant. That may be because the judges who approved the rules did not anticipate what happened in this case. See Rule 17, United States District Court Central District of Illinois, Standing Order for Final Pre-Trial on Prisoner Cases (April 1, 1987). In any event the defense cannot clearly be said to have invited error when the local rules may be interpreted to require submission of a list of potential witnesses that might include a defendant.

Goodapple correctly states that Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), prohibits both the court and the prosecution from making a comment on a defendant's failure to testify and inviting the jury to infer guilt from the failure. A direct comment on the defendant's failure to testify is clearly a fifth amendment violation. See Griffin, 380 U.S. at 614, 85 S.Ct. at 1232. But, if the comment is indirect, there is a fifth amendment violation only if the comment causes the jury to necessarily and naturally draw the inference of the defendant's guilt from his failure to testify. United States ex rel. Adkins v. Greer, 791 F.2d 590, 598 (7th Cir.), cert. denied, 479 U.S. 989, 107 S.Ct. 584, 93 L.Ed.2d 586 (1986). Judge Mills's naming Goodapple as a possible witness at trial is neither a direct nor an indirect comment on Goodapple's right to remain silent. Although it is subject to misinterpretation the reading of the list does not appear intended to be a remark on the accused's failure to testify or the defendant's right to remain silent. See United States v. Flannigan, 884 F.2d 945, 954 (7th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3277, 111 L.Ed.2d 786 (1990). Even if we were to characterize the trial court's statement as an indirect comment on Goodapple's fifth amendment right to remain silent, Goodapple's claim would not succeed since the comment must be examined in context. The court read the list of names, including Goodapple's, to potential jurors in order to determine whether any one of them was acquainted with any potential witness, i.e., to ensure that an impartial jury was chosen. The trial court's focus was directed toward a juror's possible relationship with witnesses, not whether the defendant would or would not testify. Goodapple suggests that the trial court should have simply asked potential jurors if they were acquainted with him instead of naming him as a potential witness. Goodapple's suggestion is a prudent one and the customary procedure, but Goodapple did not make this suggestion in the trial court. In criminal cases the trial court for good reason does not ordinarily mention the defendant as a possible witness. Nor is it unreasonable to expect the government, provided it had the list of witnesses in advance, to question the inclusion of the defendant's name on that list before it was read to the jury. That might have avoided the issue we now have here. Any relationship a potential juror may have with the defendant may be separately and adequately explored as part of the general voir dire without any suggestion that the defendant may testify. It is not only unnecessary to include the defendant on a list of possible witnesses for voir dire purposes, it is flirting with error. Nevertheless, in the context of this case the fact that Goodapple's name was read does not rise to a constitutional violation requiring reversal of Goodapple's convictions.

Next, Goodapple says that the government's informant in this case, Chris Davis, should not have been allowed to testify during the government's case-in-chief concerning drug transactions between himself and Goodapple that occurred prior to the date of the incidents in this case. Specifically, Goodapple argues that Davis's testimony is barred by Fed.R.Evid. 404(b) and Fed.R.Evid. 403. The government counters that Davis's testimony is not barred because it is relevant to predisposition, which the government was required to prove beyond a reasonable doubt since Goodapple raised the affirmative defense of entrapment in his opening statement. Furthermore, the government maintains that Count 10 of the indictment charging possession with the intent to distribute Valium is a specific intent offense, and the government is therefore entitled to introduce the prior transactions under Fed.R.Evid. 404(b) to prove intent. Finally, the government argues that Goodapple's prior dealings with Davis were inextricably intertwined with the charged crimes. ¹

Fed.R.Evid. 404(b) reads: "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ² Evidence of other bad acts is also admissible to prove predisposition in an entrapment case. United States v. Swiatek, 819 F.2d 721, 728 (7th Cir.), cert. denied, 484 U.S. 903, 108 S.Ct. 245, 98 L.Ed.2d 203 (1987) (citations omitted). In order to be admitted under Rules 404(b) and 403, evidence of prior bad acts must satisfy a four-part test: (1) the proffered evidence must be relevant to a matter in issue other than the defendant's propensity to commit the charged crime; (2) the prior bad act must be similar in nature and close in time to the crime charged; (3) the prosecution must establish that the defendant in fact committed the prior bad act; (4) the probative value of the evidence must not be outweighed by its prejudicial effect. United States v. Monzon, 869 F.2d 338, 344 (7th Cir.), cert. denied, 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989). The fourth prong of the test covers Rule 403, which provides for exclusion of relevant evidence on grounds of prejudice, confusion or waste of time.

Goodapple maintains that Davis's testimony was admitted over his objection for the precise purpose prohibited by Rule 404(b). Goodapple first argues that Davis testified to incidents that occurred several years before the incidents charged in this case. Next, Goodapple says that the government should not have been allowed to introduce Davis's testimony in its case-in-chief to prove Goodapple's predisposition simply because Goodapple referred to the issue of entrapment in his opening statement. Last, Goodapple urges us to apply Rule 403 if we should find Davis's testimony admissible under Rule 404(b), as the testimony was clearly unduly prejudicial when weighed against its murky and uncertain probative value.

In previous cases we have allowed the prosecution to introduce in its case-in-chief evidence of a defendant's predisposition. See United States v. Parkin, 917 F.2d 313, 316 (7th Cir.1990) (stating that government could introduce evidence of other drug transactions to rebut the entrapment defense that was raised in Parkin's opening statement); see also, United States v. Rivera-Espinoza, 905 F.2d 156, 159 (7th Cir.1990) (rejecting defendant's objection to evidence of his predisposition being introduced during the government's case-in-chief in absence of plain error). In this case, the record shows that Goodapple's counsel made more than a passing reference to the affirmative defense of entrapment in his opening statement. His counsel even stated his belief that the jury would receive an instruction on entrapment at the end of the case. At the end of the trial the jury received an instruction on entrapment for each of the ten counts in the indictment. Undoubtedly, the circumstances here are not analogous to the situation presented in a case such as United States v. McGuire, 808 F.2d 694 (8th Cir.1987). In McGuire the court stated that it was error for the district court to allow the government to...