U.S. v. Heater, 82-1419

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before HEANEY, Circuit Judge, and STEPHENSON and HENLEY; HENLEY
• Citation: 689 F.2d 783
• Parties: 11 Fed. R. Evid. Serv. 1573 UNITED STATES of America, Appellee, v. John Phillip HEATER, Appellant.
• Docket Number: No. 82-1419,82-1419
• Decision Date: 06 October 1982

Page 783

689 F.2d 783 11 Fed. R. Evid. Serv. 1573 UNITED STATES of America, Appellee,
v.
John Phillip HEATER, Appellant. No. 82-1419. United States Court of Appeals,
Eighth Circuit. Submitted Sept. 28, 1982.
Decided Oct. 6, 1982.

Page 784

Gene O'Daniel, Little Rock, Ark., for appellant.

George W. Proctor, U. S. Atty., Robert J. Govar, Asst. U. S. Atty., Little Rock, Ark., for appellee.

Before HEANEY, Circuit Judge, and STEPHENSON and HENLEY, Senior Circuit Judges.

HENLEY, Senior Circuit Judge.

John Phillip Heater appeals his conviction, following a jury trial, on drug conspiracy and substantive drug charges. We affirm.

In a three-count indictment filed in late 1981, appellant Heater was charged with a number of drug-related offenses. Count I alleged that from April 1, 1978 to October 29, 1979, Heater, Kimberly Carol Craig, and Robert David Hernandez ¹ conspired (1) to possess with intent to distribute and (2) to distribute cocaine, see 21 U.S.C. §§ 841(a), 846 (1981). Count II alleged that appellant sold cocaine on October 12, 1979, id. § 841(a), and Count III asserted that on August 8 and September 17, 1979, he aided one Gary Engster in the sale of cocaine, id. § 841(a); 18 U.S.C. § 2 (1969). At the end of the trial the district judge ² determined that the government had failed to make a submissible case on the charge of aiding the September 17 cocaine sale. All other

Page 785

charges were submitted to the jury. Appellant was subsequently convicted on Count I and on the remaining portion of Count III.

On appeal Heater challenges the admission of certain testimony. ³ First, he contends that testimony elicited during direct examination of prosecution witness Michael Wood, who had previously been convicted on a state charge involving an alleged purchase of cocaine from Heater in October, 1979, was irrelevant and prejudicial to his case. Over objection by defense counsel Wood testified as follows:

Q Had you ever purchased cocaine from John Heater prior to this occasion in October of 1979?

A No, sir.

Q Well, how did you know to contact him about it then?

A Been friends for a long time.

Q Had you bought any other drugs from him prior to that time?

At this point, defense counsel objected, stating: "We are in the cocaine business, not the other drugs...." After noting that the evidence was relevant on the issue of appellant's intent, an element of the offense of distributing cocaine, see 21 U.S.C. § 841(a) (1981), ⁴ the trial court overruled the objection. The testimony continued.

Q Had you purchased any other drugs from Mr. Heater prior to October of '79?

A Yes, sir.

Q What had you purchased from him?

A Marijuana is the only thing I can really remember.

Q When had you purchased marijuana from him?

A Back in high school.

Q When were you in high school?

A Graduated in 1972.

The admissibility of Wood's testimony under Federal Rule of Evidence 404(b) ⁵ to prove appellant's intent to distribute cocaine was doubtful at best. See, e.g., United States v. Davis, 657 F.2d 637 (4th Cir. 1981). Even if the admission of this evidence was error, however, in the circumstances presented here the error was harmless. Wood's statements related primarily to Count II of the indictment, which alleged a cocaine sale on October 12, 1979. Since appellant was acquitted of this particular offense, it is obvious that evidence of the alleged prior drug sale did not adversely influence the jury's verdict on this charge.

Notwithstanding the jury's clear rejection of this evidence and the corollary absence of any prejudice with respect to Count II, see, e.g., United States v. Barnes, 604 F.2d 121, 166 (2d Cir. 1979), cert. denied,

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446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980); United States v. Masterson, 529 F.2d 30, 31 (9th Cir.), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833 (1976), appellant alleges that the "other act" evidence had a carryover effect that tainted the jury's verdicts on the other charges, particularly the charge of aiding and abetting a cocaine sale contained in Count III of the indictment. Even assuming such a carryover effect, the strength of the other evidence supporting appellant's convictions on Counts I and III makes it quite unlikely that the evidence in question had more than slight, if any, effect on the jury's finding of guilt. The evidence on the conspiracy charge consisted of the testimony of several witnesses who personally observed the activities of appellant and his coconspirators, telephone records of hundreds of calls between the various residences of Craig and Hernandez in Miami, Florida and of appellant in Little Rock, Arkansas during the course of the conspiracy, the drugs seized, and a damaging statement by appellant at the time of his arrest. This evidence demonstrated that appellant played more than a bit part in the illegal scheme. Likewise, the testimony of Gary Engster clearly established appellant's role as an aider and abettor of the August 8, 1979 cocaine sale. In light of this strong evidence of guilt, we cannot say that the admission of the challenged evidence, even if error, was prejudicial. See, e.g., United States v. Slade, 627 F.2d 293 (D.C.Cir.), cert. denied, 449 U.S. 1034 (1980); United States v. Jackson, 588 F.2d 1046 (5th Cir.), cert. denied, 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979); United States v. Jones, 545 F.2d 1112 (8th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977).

Appellant also takes exception to testimony by Mary Beth Herndon Crotts, another government witness who, like Wood, was granted immunity from prosecution. The testimony to which he objects is as follows:

Q Are those the only two trips that you can recall when you brought drugs back from Miami?

A Yes, sir.

Q Now you mentioned (a) trip (to Miami) where you saw some bales of marijuana in a house, is that right?

A Yes.

Counsel for appellant interposed an objection at this juncture, stating that "there ha(d)n't been any charges as far as bales." In response to questioning by the trial court, the prosecutor explained that he was attempting to show a pattern of dealing. The court then advised that it would sustain the objection unless questioning by government counsel related directly to the charges in the indictment. The questioning continued.

Q Ms. Herndon, do you recall seeing other people at the home of (coconspirators) Bobby Hernandez and Kim Craig when you made some of these trips to Miami?

A There were other people ....

Q Do you recall a person who went by the name of Pete?

A I remember hearing the name Pete.

Q Would you describe Pete?

Defense counsel again objected, pointing out that "Pete" had never been mentioned during the course of all the proceedings in the case. The court allowed the...