U.S. v. Green
| Decision Date | 15 April 1981 |
| Docket Number | Nos. 79-1410,79-1411,s. 79-1410 |
| Citation | 648 F.2d 587 |
| Parties | 8 Fed. R. Evid. Serv. 707, 8 Fed. R. Evid. Serv. 88 UNITED STATES of America, Plaintiff-Appellee, v. Michael Lewis GREEN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Judith Catherine GREEN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joseph A. Milchen, Howard B. Frank, Frank & Milchen, San Diego, Cal., for defendant-appellant.
Stephen G. Nelson, Asst. U. S. Atty., argued, James Lorenz, U. S. Atty., Roger W. Haines, Asst. U. S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before ALARCON and NELSON, Circuit Judges and JAMESON, * District Judge.
Michael and Judith Green appeal from convictions for conspiracy to obstruct justice, conspiracy to make false statements, and conspiracy to violate citizens' civil rights. They contend that the district court committed reversible error in permitting the Government, both in its case in chief and on rebuttal, to introduce evidence concerning appellants' alleged uncharged prior misconduct and that they were subjected to improper cross-examination concerning both their alleged prior misconduct and contraband seized from their Florida home several days after their arrest in California. We reverse the convictions and remand for a new trial.
On May 17, 1977, appellants were charged in California state court, with co-defendants Frederick Messenger and Edgar Allard, with conspiracy to manufacture and distribute LSD. The conspiracy involved a company called Bio-Dyne Industries which was designed to operate as a "cover" for the illegal manufacturing of controlled substances and as the purchasing agent for the components of the drugs to be manufactured. Charges were dismissed against Allard and Messenger, and a tentative agreement was reached between the appellants and the state prosecutor whereby Michael would plead guilty, charges against Judith would be dropped, and the State's position with respect to Michael's sentence would depend upon what "information" he could provide.
Appellants then launched upon an investigation of Allard and Messenger in an effort to get information which might benefit appellants' case. They retained Richard Shepard, who had been involved with the Greens in the business of manufacturing and distributing illegal drugs in the early 1970s. Shepard's investigation led him to Technichem, a drug manufacturing company superficially similar to Bio-Dyne, which employed Allard. He was unable to verify Michael Green's belief that Technichem was a "front" for illicit drug activities, however, and he disclosed to Allard that Allard's activities were under investigation by the Greens.
Shepard's "investigation" proceeded without success for a few months. After several meetings and conversations with the Greens and their attorney, Louis Rimbach, 1 Shepard was directed to "plant" drugs on the Technichem premises. The Greens were later informed by Shepard that Technichem was ready to be raided. Armed with this "information" the Greens negotiated a deal with the state prosecutor whereby charges in the state action would be dropped against both Michael and Judith Green in exchange for information to be provided by the Greens with respect to Technichem. Pursuant to information then received a consent search of Technichem was conducted. No illegal drug activity was discovered.
While Shepard was ostensibly investigating Technichem for the Greens, he was disclosing the substance of his contacts with them to Allard and other Technichem officials. Under their direction he had recorded several telephone calls to both Rimbach and the appellants, in which the parties had discussed the Greens' drug planting scheme. The recordings were ultimately turned over to the United States attorney, who then began to investigate the Greens. This investigation resulted in the convictions at issue here.
Shepard was called as a Government witness at appellants' trial. In addition to testimony regarding the 1977-78 events described above, he testified that Michael Green had hired him in 1972 to construct a machine for tableting LSD and to help the Greens corner the LSD market. He testified as to continuing involvement with the Greens in their drug operations throughout 1973 and 1974, and about problems he had with Michael in 1975-76 when a batch of LSD he purchased from Michael turned out to be "bad." Shepard's wife Sharon testified that in 1972 the Greens had suggested the Shepards join their drug operation, that in 1973 they did begin tableting LSD and doing other drug related work for the Greens, that Judith Green had referred to Michael as "the Acid King of California ," and that a big argument between the Shepards and Greens had come about in 1975 as a result of refunds necessary after distribution of the "bad" batch of LSD.
Edgar Allard testified concerning appellants' drug-related activities in the early 1970's. He stated that in 1971 he and Michael Green began synthesizing the base chemicals for LSD, converting those chemicals into LSD, tableting and distributing the drugs. These operations continued until 1973.
The Greens testified in their own defense. Judith restricted her testimony to those events occurring in 1977-78, but the Government cross-examined her not only with respect to those events, but also as to the early 1970's drug activities. Testimony was also elicited that her husband had not conspired with Shepard, but in fact had avoided contacts with Shepard out of concern for the terms of his probation on unrelated tax evasion charges. His probation had been mentioned by Judith's attorney in his opening argument and by Michael's attorney in his cross-examination of Judith.
Michael likewise limited his testimony to the relevant 1977-78 events but was cross-examined concerning his early 1970's drug activities. During cross-examination the Government also developed facts surrounding the seizure of several firearms and drugs from appellants' Florida residence. Possession of these items constituted probation violations.
During rebuttal the Government produced testimony regarding the firearms and cocaine seized in the search of the appellants' Florida residence and introduced several firearms and the cocaine into evidence. This evidence was offered to rebut Judith's testimony about Michael's concern for the terms of his probation. Also introduced were pictures of drugs and other items seized from the Florida home, as well as a hand written LSD formula Michael had identified during cross-examination. The Government also produced a witness, Adelle White, who testified that she received LSD from Michael several times during 1971.
For the reasons discussed infra, we conclude that evidentiary errors, when considered cumulatively, require reversal. We include a specific discussion of some of the points raised to provide guidance to the district court upon retrial.
Appellants contend that the testimony in the Government's case in chief with respect to appellants' involvement in the tableting and marketing of LSD between 1972 and 1975 was erroneously admitted and does not come within any of the exceptions of Fed.Rule of Evid. 404(b); and even if relevant, was unfairly prejudicial under Rule 403. Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted 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
Rule 404(b) is "one of inclusion which admits evidence of other crimes or acts relevant to an issue in the trial, except where it tends to prove only criminal disposition." United States v. Rocha, 553 F.2d 615, 616 (9 Cir. 1977). This "inclusionary rule", however, is subject to the balancing test of Rule 403. 3 United States v. Sangrey, 586 F.2d 1312, 1314 (9 Cir. 1978).
The Government argues that the contested evidence was properly admitted to show appellants' knowledge, and their plan and motive to "frame" Allard and Messenger. Neither party has discussed "opportunity" as a basis for admissibility, which we consider more pertinent under the facts of this case.
The appellants were convicted of conspiracy to obstruct justice, conspiracy to violate citizens' rights, and conspiracy to make false statements to a government agency. In sum, they were convicted of conspiring to "frame" the members of Technichem. This required a combination of talents and associations a working knowledge of illicit drug operations, an awareness of the components of and procedures for making LSD, knowledge of persons in a position and of a character which subjected them to suspicion of drug violations, and connections with a "reliable" person educated in the illegal drug business who was personally inclined and capable of carrying out the actual "planting" of the drugs in a convincing manner. Without this specialized background neither of the appellants would have had the capacity, i. e., an opportunity, to commit the crimes charged. 4
"Opportunity" is an express exception of Rule 404(b). Though the word has been little used by the courts it evidently is intended to cover all or a part of a category called "capacity" (see 22 Wright & Graham, Federal Practice and Procedure: Evidence § 5241 at p. 485 (1978); Wigmore, Code of Evidence §§ 386, 400 (3d ed. 1942), 5 and has been applied in similar circumstances. For example, in United States v. McPartlin, 595 F.2d 1321, 1343 (7 Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43 (1979), the court found that evidence that a defendant charged with...
To continue reading
Request your trial
-
Jernigan v. Edward, Case No.: 15cv2793 BTM (RBB)
...is sufficiently prejudicial, "the cumulative effect of multiple errors may still prejudice a defendant[]" (citing United States v. Green, 648 F.2d 587 (9th Cir. 1981))). Where "there are a number of errors at trial, 'a balkanized, issue-by-issue harmless error review' is far less effective ......
-
Hernandez v. Martel, Case No. CV 90–4638 RSWL.
...errors that occurred at petitioner's trial. United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir.1996) (citing United States v. Green, 648 F.2d 587, 597 (9th Cir.1981)); see also Kwan Fai Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir.1992) (per curiam) (“We need not [ ] decide whether thes......
-
U.S. v. Mehrmanesh, 81-1318
...acts evidence is admissible whenever relevant to an issue other than the defendant's criminal propensity. See United States v. Green, 648 F.2d 587, 592 (9th Cir. 1981) (per curiam); United States v. Rocha, 553 F.2d 615, 616 (9th Cir. 1977) (per curiam); United States v. Riggins, 539 F.2d 68......
-
U.S. v. Kincaid-Chauncey, 06-10544.
...be impeached by contradiction only if "the statements in issue [have] been volunteered on direct examination." United States v. Green, 648 F.2d 587, 596 n. 12 (9th Cir.1981) (emphasis added). In Castillo, we read our cases to hold that "extrinsic evidence may not be admitted to impeach test......