U.S. v. Herre, 90-5139
| Decision Date | 06 May 1991 |
| Docket Number | No. 90-5139,90-5139 |
| Citation | 930 F.2d 836 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Mark HERRE, Defendant-Appellant. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Jay M. Levy, Hershoff & Levy, Miami, Fla., for defendant-appellant.
Dexter W. Lehtinen, U.S. Atty., Kathleen M. Salyer, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT, Chief Judge, and ANDERSON and CLARK, Circuit Judges.
Defendant Mark Herre appeals from his conviction for knowingly and willfully, and in disobedience and resistance to a lawful order and command of the district court, failing to give testimony before a grand jury as ordered. 731 F.Supp. 1051. See 18 U.S.C. Sec. 401(3) (1988).
As a result of his arrest in October 1988 by state authorities for transporting a large quantity of marijuana in the Florida Keys, Herre was subpoenaed by a federal grand jury investigating marijuana smuggling in that area. At his first appearance before the grand jury on March 28, 1989, Herre invoked his fifth amendment privilege against self-incrimination and refused to answer any substantive questions. The district court subsequently entered an order granting Herre use immunity and compelling his testimony before the grand jury.
Herre next appeared before the grand jury on April 4, 1989 and again refused to answer any questions, despite the fact that he was warned that he had been granted use immunity and could no longer refuse to testify. The district court issued a second order compelling Herre to testify which he refused to obey, and the court subsequently found Herre in civil contempt and ordered him incarcerated. He remained incarcerated for four and one-half months until just before the grand jury disbanded. Herre was subsequently indicted and convicted for criminal contempt.
On appeal, Herre raises two issues. He initially contends that the district court committed reversible error in allowing the government to admit evidence at trial of his previous arrest for possession of marijuana by state authorities because such evidence was irrelevant. As the government notes, however, the evidence of Herre's prior arrest was inextricably intertwined with the evidence of the charged offense. The proffered evidence was essentially a part of "the chain of events explaining the context, motive, and set-up of the crime" and was properly admitted "to complete the story of the crime for the jury." See United States v. Williford, 764 F.2d 1493, 1498-99 (11th Cir.1985). The evidence presented the jury with necessary background information showing why Herre had been subpoenaed and provided the jury with some basis to understand the reasons behind the charged offense. As a result, the evidence was essentially part of the charged offense, and the district court did not abuse its discretion in admitting evidence of the arrest. 1 See United...
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