U.S. v. Hegwood, s. 91-30189

• Citation: 977 F.2d 492
• Decision Date: 13 October 1992
• Docket Number: Nos. 91-30189,91-30204,s. 91-30189
• Parties: 36 Fed. R. Evid. Serv. 1391 UNITED STATES of America, Plaintiff-Appellee, v. Lavell Ray HEGWOOD; Fred Wilson, Jr., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 492

977 F.2d 492

36 Fed. R. Evid. Serv. 1391

UNITED STATES of America, Plaintiff-Appellee, v. Lavell Ray HEGWOOD; Fred Wilson, Jr., Defendants-Appellants.

Nos. 91-30189, 91-30204.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 19, 1992.

Decided Oct. 13, 1992.

Roger J. Rosen, Los Angeles, Cal., for defendant-appellant Lavell Hegwood.

Ben W. Pesta II, Sandler, Rolnick & Morse, Los Angeles, Cal., for defendant-appellant Fred Wilson.

Steven E. Skrocki, Asst. U.S. Atty., Anchorage Alaska, for plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska.

Before: HUG, NELSON, and NELSON, Circuit Judges.

D.W. NELSON, Circuit Judge:

Defendants Lavell Hegwood and Fred Wilson appeal their convictions for possession of cocaine with intent to distribute and conspiracy to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846, and use of the mails to facilitate the possession of cocaine, in violation of 21 U.S.C. § 843(b). On appeal, defendants challenge the sufficiency of the evidence on each of the counts, the adequacy of the court's opening and closing instructions to the jury, and the court's admission of evidence of other crimes committed by the defendants. We affirm.

I. The Conspiracy Instruction

In its opening charge to the jury, the district court defined "conspiracy" as requiring "an agreement between two or more persons to commit a crime, of which either or both Defendants become a member Defense counsel did not object to the initial charge when it was given. In the absence of such an objection, we review jury instructions for "plain error," and we will reverse only in "exceptional circumstances." United States v. Marsh, 894 F.2d 1035, 1039 (9th Cir.1989), cert. denied, 493 U.S. 1083, 110 S.Ct. 1143, 107 L.Ed.2d 1048 (1990).

                knowing at least one of its objects, and at least one member performs at least one overt act to carry out the conspiracy."   The government concedes that this statement of the law was inaccurate because it omitted intent to commit the substantive crime as an element of conspiracy.   See United States v. Indelicato, 800 F.2d 1482, 1483 (9th Cir.1986).   However, the government contends that any error was cured because the district court gave a correct instruction to the jury at the end of the trial
                

Such exceptional circumstances are not present here. Where the instruction challenged is given at the beginning of trial, reversal is unwarranted unless the defendant can prove prejudice or that the jury was materially misled. Guam v. Ignacio, 852 F.2d 459, 461 (9th Cir.1988). Specifically, we held in Ignacio that "[b]ecause the trial judge used the correct instruction at the end of trial, and because the correct instruction was the only instruction given to the jury to take with them to the jury room, it is presumed that the jury followed the correct instruction." Id.; see also United States v. Hayes, 794 F.2d 1348, 1351-52 (9th Cir.1986) (proper subsequent instructions cured erroneous initial charge), cert. denied, 479 U.S. 1086, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987). That is the case here. The district court's error in its initial instruction was cured by its subsequent instruction. ¹

II. The Interstate Commerce Instruction

The district court's instruction to the jury regarding 21 U.S.C. § 843(b) read as follows:

In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt, that the defendant used the mail to help bring about the conspiracy to distribute cocaine charged in count I of the indictment or that the defendant used the mail to help bring about possession of cocaine with the intent to distribute charged in count II. Section 843(b) of Title 21 of the United States Code provides in part that it shall be unlawful for any person, knowingly or intentionally, to use any communication facility in committing or in causing or facilitating commission of any act or acts constituting a felony.

(Emphasis added). That part of the instruction which instructs the jury on the necessity of finding that the defendant "used the mail" essentially follows the language contained in the Manual of Model Criminal Jury Instructions for the Ninth Circuit 9.04E, at 278 (1992). The district court then supplemented the model instruction by adding language which apparently was derived from the statute itself.

21 U.S.C. § 843(b) provides that "[i]t shall be unlawful for any person knowingly or intentionally to use any communication facility in committing ... a felony." On appeal, the defendants object to the instruction on the grounds that it improperly relieves the government of the burden of proving intent. Again, because no objection was raised in the district court, we review the instruction for plain error, and Had the district court merely read the model jury instruction, it would have committed plain error, since that instruction makes no reference whatsoever to knowledge or intent. See Sandstrom v. Montana, 442 U.S. 510, 521, 99 S.Ct. 2450, 2457, 61 L.Ed.2d 39 (1979) (error to relieve government of burden of proving each element of the crime beyond a reasonable doubt). However, the district court went on to instruct the jury from the language of the statute itself that defendants' use of the mails must be knowing or intentional. While the resulting instruction in its entirety may be less than artful, it is sufficient to inform the jury that they must find knowledge or intent. ² The instruction taken as a whole does not rise to the level of plain error.

will reverse only in exceptional circumstances. Marsh, 894 F.2d at 1039.

III. Evidence of Other Crimes

At trial, the government introduced evidence from witnesses Patricia Brundage and John Sherald that Hegwood and Wilson had used cocaine the night before and on the day of their arrest, that Wilson had sold cocaine to Brundage and Sherald in the recent past, and that Wilson had put Brundage in touch with a cocaine dealer when they first met, some five years ago. Defendants contend that admission of this evidence over their objection violates Fed.R.Evid. 404(b), which provides that:

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.

The district court's decision to admit evidence under Rule 404(b) is reviewed for abuse of discretion. United States v. Conners, 825 F.2d 1384, 1390 (9th Cir.1987).

Evidence of Wilson's conduct five years ago was not introduced by the government during its direct examination of Brundage. However, on cross-examination, counsel for Wilson asked Brundage "Do you know Fred Wilson to be a drug dealer?" Brundage then testified that Wilson had referred her to a cocaine dealer when they first met, five years before. On redirect, Brundage testified about four other people she knew who had purchased drugs from Wilson.

Ordinarily, five-year-old evidence of drug sales will not be particularly probative of intent to sell drugs today. United States v. Alfonso, 759 F.2d 728, 740 (9th Cir.1985). However, when the defendant "opens the door" to testimony about an issue by raising it for the first time himself, he cannot complain about subsequent government inquiry into that issue. United States v. Bailleaux, 685 F.2d 1105, 1110 (9th Cir.1982). Because Wilson's attorney asked Brundage about Wilson's character as a drug dealer, the government was entitled to put on evidence about his character. United States v. Segal, 852 F.2d 1152, 1155 (9th Cir.1988). Furthermore, the testimony of Brundage and Sherald about Wilson's more recent drug sales is clearly admissible to prove intent and knowledge with regard to the current sale. See, e.g., United States v. Mehrmanesh, 689 F.2d 822, 832 (9th Cir.1982); United States v. Sinn, 622 F.2d 415, 416 (9th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980).

There remains defendants' objection to the evidence that they had used cocaine the day of and the night before their arrest. Ordinarily, we have held that evidence of prior drug use is not admissible under Rule 404(b) to prove a charge of possession with intent to distribute. See United States v. Hill, 953 F.2d 452, 456-58 (9th Cir.1991); Mehrmanesh, 689 F.2d at 831-32. In this case, however, the evidence was relevant to two issues other than character. First, the defense theory at trial was that the defendants did not know what was in the package. Evidence of prior involvement with drugs is relevant to prove absence of mistake or accident in this circumstance. See Marsh, 894 F.2d at 1038-39 (drug paraphernalia admissible to contradict defendant's claim that she was uninvolved in her husband's drug sales); United States v. Winn, 767 F.2d 527, 529-30 (9th Cir.1985) (prior conviction for smuggling aliens admissible to prove defendant's familiarity with alien-smuggling operations).

Second, both Brundage and Sherald testified that Wilson brought the cocaine which all four smoked the day of the arrest, and Brundage testified that Hegwood may have brought the cocaine the night before. We have consistently held that evidence of prior possession or sale of cocaine is relevant under Rule 404(b) to issues of intent, knowledge, and absence of mistake or accident in a prosecution for "possession of, importation of, and intent to distribute narcotics." Mehrmanesh, 689 F.2d at 832; Sinn, 622 F.2d at 416. Thus, the evidence of Wilson and Hegwood's drug use immediately prior to their arrest was admissible both as proof of prior possession and to rebut their defense of mistake.

IV. Sufficiency of the Evidence

Both Wilson and Hegwood challenge the sufficiency of the evidence to convict them of each count....