U.S. v. Halbert

• Decision Date: 06 March 1981
• Docket Number: No. 78-3278,78-3278
• Citation: 640 F.2d 1000
• Parties: 7 Fed. R. Evid. Serv. 1678 UNITED STATES of America, Appellee, v. Gary HALBERT, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1000

640 F.2d 1000

7 Fed. R. Evid. Serv. 1678

UNITED STATES of America, Appellee, v. Gary HALBERT, Appellant.

No. 78-3278.

United States Court of Appeals, Ninth Circuit.

Argued Sept. 4, 1979.

Submitted Jan. 28, 1980.

Decided March 6, 1981.

Gerald F. Uelmen, Los Angeles, Cal., for appellant; Harold A. Abeles, Abeles & Markowitz, Beverly Hills, Cal., on brief.

Bert H. Deixler, Asst. U.S. Atty., Los Angeles, Cal., for appellee; Thomas D. Farrell, Asst. U.S. Atty., Los Angeles, Cal., on brief.

Appeal from the United States District Court for the Central District of California.

Before ELY and POOLE, ^* Circuit Judges, and HOFFMAN, ^** District Judge.

PER CURIAM:

Halbert, the appellant, together with codefendants Bucklan and Culbertson, was indicted on 16 counts of mail fraud charging violations of 18 U.S.C. §§ 1341, 1342, in connection with a scheme to market items commemorating the Nation's Bicentennial. Halbert asserts several claims of error, most of which are without merit. Each of Halbert's claims, and the facts necessary to evaluate them, are considered in the subsections below. His principal claim is that it was prejudicial error to allow the prosecution to introduce evidence that his codefendants had pleaded guilty to the offense for which Halbert stood trial. We conclude that although the challenged evidence was admissible for certain purposes, the trial court failed to give the jury a sufficiently clear instruction limiting the proper use of such evidence and the judgment must therefore be reversed.

I.

After initially pleading not guilty, Culbertson changed his plea to guilty on one count of mail fraud and testified against Halbert at trial. Bucklan, who originally pleaded guilty to mail fraud, also testified against Halbert. Both codefendants were asked by the prosecutor, during direct examination, about their guilty pleas to the conspiracy. Over objection, both were allowed to tell the jury that they pleaded guilty to the conspiracy for which Halbert stood trial. The prosecutor reiterated information about Bucklan's plea on redirect examination, made brief reference to both pleas in closing argument, and copies of the plea agreements of both Bucklan and Culbertson were introduced, though neither document was read to the jury. Halbert claims disclosure of the guilty pleas was prejudicial error requiring reversal.

A.

As a principle of general acceptance, the guilty plea or conviction of a codefendant may not be offered by the government and received over objection as substantive evidence of the guilt of those on trial. Baker v. United States, 393 F.2d 604, 614 (9th Cir.) cert. denied, 393 U.S. 836, 89 S.Ct. 110, 21 L.Ed.2d 106 (1968). While the evidence may not be used to establish a defendant's guilt, it may properly be considered by the jury in evaluating witness credibility. See United States v. King, 505 F.2d 602 (5th Cir. 1974); Isaac v. United States, 431 F.2d 11 (9th Cir. 1970). Admissibility of the plea turns on the purpose for which it is offered. When that purpose is to further the jury's difficult task of evaluating credibility, it is relevant and admissible without reference to the identity of the offering party. See United States v. Whitehead, 618 F.2d 523, 529 (4th Cir. 1980) (prosecutorial questioning about a codefendant/witness' guilty plea need not be limited to the scope of defendant's stated intended inquiry about the plea); United States v. Anderson, 532 F.2d 1218, 1230 (9th Cir. 1976) (preventing prosecutorial questioning on direct about a codefendant's guilty plea creates a false impression with the jury of prosecutorial concealment). This and other circuits have consistently recognized that, under proper instruction, evidence of a guilty plea may be elicited by the prosecutor on direct examination so that the jury may assess the credibility of the witnesses the government asks them to believe. See, e. g., United States v. Whitehead, supra, 618 F.2d at 529; United States v. Romeros, 600 F.2d 1104, 1105 (5th Cir. 1979) (per curiam); United States v. Veltre, 591 F.2d 347, 349 (5th Cir. 1979); United States v. Anderson, supra, 532 F.2d at 1230; United States v. Bryza, 522 F.2d 414, 424-25 (7th Cir. 1975); United States v. King, supra, 505 F.2d at 602; United States v. Binger, 469 F.2d 275, 276 (9th Cir. 1972); Isaac v. United States, supra, 431 F.2d at 11; Baker v. United States, supra, 393 F.2d at 614. ¹

It is manifestly apparent that evidence of the plea is relevant to credibility regardless whether government or defendant initiates inquiry about it. For example, the defense may produce a codefendant as a witness in support of the defendant's case. Then the plea of guilty may be drawn from the witness as an introduction to the testimony exculpating defendant. Here the evidence of credibility is designed to enhance the witness' helpful testimony, as the witness has taken responsibility for an offense which the defendant denies committing.

If the prosecution first calls the codefendant, but does not mention that a guilty plea has been entered, the defense may, and often does, bring this fact out on cross examination. It may wish to "expose" the prosecution's implied concealment of the fact that its witness has already pleaded guilty. Or the defense may suggest that the witness, like Judas, is a perfidious erstwhile associate bent upon delivering the defendant into the hands of the prosecution. Or perhaps the defense may dwell on the benefits the witness expects to receive by favorable testimony and upon the motive and need for the witness to make good on his bargain with the prosecution. There are many ways in which the plea may be tactically used by the defense and skilled counsel will take advantage of any or all of them as judgment determines.

As a result of plea bargaining, it is often the prosecution which produces a codefendant and elicits testimony tending to show the substantive guilt of the defendant. This is, of course, admissible. As a part of that testimony, the trier of fact should know the witness' total connection to the defendant or to the event; such information may not have been learned from a reading of the indictment or in the opening statements of counsel. Thus, when the prosecution examines the codefendant as its witness in support of its case-in-chief, a question about the guilty plea is legitimate as the purpose is to support the reasonableness of the witness' claim to firsthand knowledge because of admitted participation in the very conduct which is relevant. The fact a witness has formally admitted personal responsibility enhances the circumstances adding up to that witness' believability.

The prosecutor may also wish to place the plea before the jury so as to blunt defense efforts at impeachment and dispel the suggestion that the government or its witness has something to hide. Or, and we engage in no delusions about prosecutorial altruism, the prosecution may simply want the jury to recognize who the witness is, take the testimony as it is, and give a fair evaluation, blemishes and all.

Recognizing the legitimate uses that may be made of the guilty plea evidence, we are nonetheless sensitive to the possibility of prejudice, and therefore both trial and reviewing courts have responsibility to insure that evidence of the plea is being offered by the prosecutor and used by the jury only for a permissible purpose. What may facially appear as a legitimate introduction of evidence of a plea becomes something else and on the level of prejudicial error when, for example, the prosecutor suggests in closing argument that the jury use the plea for a prohibited purpose, United States v. Miranda, 593 F.2d 590 (5th Cir. 1979), when the plea has been used improperly to vouch for the codefendant as a witness, United States v. Little Boy, 578 F.2d 211 (8th Cir. 1978), when the use of the plea involves aggravated circumstances known to the trial court, United States v. Harrell, 436 F.2d 606 (5th Cir. 1970), or when the plea is clearly offered as substantive evidence of guilt. Baker v. United States, supra, 393 F.2d at 614. Furthermore, introduction of the guilty plea as evidence of credibility requires that the plea be brought to the jury's attention, but does not sanction allowing the subject to be disproportionately emphasized or repeated.

B.

Applying the principles we have outlined to this case, the issues are two: (1) did the prosecution offer the evidence of the guilty pleas for a permissible purpose such as establishing witness credibility and (2) if the purpose was legitimate, did the trial court's instructions adequately explain to the jury the purpose for which the evidence could be used.

(1)

Reviewing the record here, we find that the prosecutor carefully limited his inquiries about the guilty pleas. On direct examination, questioning did no more than elicit the fact that guilty pleas were entered. No editorial comment or unnecessary elaboration occurred. The brief questioning about the existence of the pleas was clearly relevant as evidence bearing on the witnesses' credibility.

The prosecutor was also within his rights on this record in asking Bucklan on redirect again about his guilty plea. On cross examination, defense counsel had elicited numerous statements that Bucklan lacked intent to defraud and that he believed that he would be able to fulfill the promises he and Halbert had made to the customers they allegedly defrauded. On redirect, Bucklan admitted in response to the prosecutor's questions that he was aware that false statements were made to customers and he had pleaded guilty to a crime requiring such knowledge. This questioning was intended to dispel any impression of unwitting misrepresentation and the suggestion that the actions of defendant and the witness were innocent. This was not improper or undue reiteration of the guilty plea.

Similarly, reference to the pleas in the prosecution's closing argument was in response...