U.S. v. Hodges

Decision Date12 September 1985
Docket NumberNo. 83-5236,83-5236
Citation770 F.2d 1475
Parties19 Fed. R. Evid. Serv. 364 UNITED STATES of America, Plaintiff-Appellee, v. Guinn Dutton HODGES, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Robert C. Bonner, U.S. Atty., Robert L. Brosio, Daniel J. Broderick, Asst. U.S. Attys., Los Angeles, Cal., for plaintiff-appellee.

Roger Agajanian, Barry A. Bisson, Huntington Beach, Cal., for defendant-appellant.

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

Before WALLACE, FLETCHER, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Appellant Guinn Hodges was convicted after a jury trial of conspiracy to defraud lending institutions in violation of 18 U.S.C. Sec. 371. Hodges appeals from his conviction alleging that: (1) the district court abused its discretion in denying his motion for a new trial based on newly discovered evidence; (2) his conviction was not supported by substantial evidence; (3) the prosecutor's closing argument contained prejudicial misstatements of material evidence; and (4) the district court committed reversible error in admitting evidence that Hodges had, subsequent to the alleged conspiracy, attempted to extort $5,000 from one of his co-conspirators. Although we find the evidence presented to be legally sufficient to support the jury's verdict, we agree with Hodges' claim that the admission of the testimony relating to the extortion attempt constituted reversible error.

I. FACTS

Hodges, along with four co-defendants, was accused of participating in a conspiracy to defraud federally insured savings and loan associations. The scheme was allegedly carried out as follows. Paula Johnson, a real estate agent, located the residential properties on which the trust deed loans were to be based. Alex Logan and Deborah Toler posed as borrowers for each of the loans. Donald Fisher, a mortgage broker, selected the lending institutions and obtained the necessary loan applications. The indictment alleged that Fisher, Logan, and Toler knowingly provided false information on the loan applications. The indictment accused Hodges of agreeing to verify the false information contained in the loan applications if requested by the lending institutions. The indictment alleged that the acts in furtherance of the conspiracy were committed during the period "[b]eginning on or about November 1, 1981, and continuing to and including April 14, 1982." No overt act in connection with the conspiracy was alleged to have occurred subsequent to April 14, 1982.

Johnson, Logan, Toler, and Fisher each pled guilty to the charges listed in the indictment and testified at Hodges' jury trial. Johnson and Fisher testified that Hodges knowingly and actively participated in the conspiracy by: (1) assisting in the forgery of credit approval forms and of a particular profit and loss statement that were submitted to the banks in support of the loan applications; (2) delivering the fraudulent loan documents to the lenders and the fictitious borrowers; and (3) receiving over $5,000 from the loan proceeds for agreeing to verify the false information in the loan applications if requested by the banks.

Hodges' principal defense was that he was ignorant of the fraudulent nature of the scheme being carried out around him. He testified that although he had procured the necessary credit approval forms, delivered the loan documents, and answered a telephone as directed, he performed each of these acts without any knowledge of the illegal nature of the loan operation.

After a four-day jury trial, Hodges was found guilty of the conspiracy offense for which he was charged. The district court denied his motion for a new trial. Hodges appeals.

II. DISCUSSION
A. Sufficiencv of the Evidence

Hodges contends that the evidence produced at trial was insufficient, as a matter of law, to sustain his conviction. We address this claim before examining Hodges' specific allegations of trial error because "the Double Jeopardy Clause bars retrial after reversal for evidentiary insufficiency, but not after reversal for trial error." United States v. Harmon, 632 F.2d 812, 814 (9th Cir.1980) (per curiam); see also Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2217, 72 L.Ed.2d 652 (1982); Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978). We have recognized that the existence of other grounds for reversal does not relieve an appellate court of the need to first review the sufficiency of the evidence. See United States v. Bibbero, 749 F.2d 581, 586 (9th Cir.1984); see also Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 104 S.Ct. 1805, 1820-21, 80 L.Ed.2d 311 (1984) (Brennan, J., concurring) ). Thus, if we were to agree with Hodges' allegation of evidentiary insufficiency, the case could not properly be remanded for a new trial and it would be unnecessary to examine Hodges' claims of trial error.

Where, as here, a defendant both challenges the sufficiency of the evidence and presents allegations of trial error, we consider all of the evidence presented at trial in evaluating the legal sufficiency of the evidence. Bibbero, 749 F.2d at 586 n. 3; Harmon, 632 F.2d at 814. In Harmon, we explained why an appellate court faced with a claim of insufficient evidence should not be limited to a consideration of only properly admitted evidence: "It is impossible to know what additional evidence the government might have produced had the faulty evidence been excluded at trial, or what theory the government might have pursued had the evidence before the jury been different." 632 F.2d at 814. Therefore, in reviewing Hodges' challenge to the sufficiency of the evidence, we examine all of the evidence presented in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See, e.g., United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir.1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ).

The essential elements of conspiracy are "an agreement between two or more persons to engage in criminal activity, coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying substantive offense." United States v. Abushi, 682 F.2d 1289, 1293 (9th Cir.1982). Hodges claims that he had no knowledge of the fraudulent nature of the loan operation. Two of his co-conspirators testified, however, that Hodges knowingly and wilfully participated in the conspiracy. The ultimate question before the jury was one of credibility--whether to accept Hodges' testimony or that of his co-conspirators. On appeal, Hodges vigorously attacks the credibility of his co-conspirators' testimony by pointing to numerous grounds of potential bias. Hodges' challenges to the veracity of the prosecution's witnesses are misplaced; questions of credibility are for the jury to decide and are generally immune from appellate review. See United States v. Awkard, 597 F.2d 667, 671 (9th Cir.), cert. denied, 444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116 and 444 U.S. 969, 100 S.Ct. 460, 62 L.Ed.2d 383 (1979); United States v. Barnard, 490 F.2d 907, 912 (9th Cir.1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). Our review is limited to a determination of whether, after viewing all of the evidence and inferences drawn therefrom in the light most favorable to the government, a rational trier of fact could have found that Hodges was aware of the illegal nature of the conspiracy at the time that he participated in it. Thus viewed, the government's evidence was sufficient to support the verdict.

B. The District Court Erred in Admitting Evidence of Hodges' Subsequent Wrongdoing

Hodges contends that the district court committed reversible error in admitting evidence that approximately five months after the last act of the conspiracy had ended he attempted to extort money from one of his alleged co-conspirators. Over Hodges' objection, the district court permitted Paula Johnson to testify regarding a September, 1982 conversation that he allegedly had with her. During that conversation Hodges allegedly attempted to extort $5,000 from Johnson by offering to provide favorable testimony regarding her involvement in the scheme to the FBI and to remove her name from a "hit list" he intended to supply to a group of his murdered brother's less savory friends. 1 In addition, Johnson's mother, who was in the restaurant where the meeting took place but did not hear the discussion, was permitted to testify that both she and her daughter were "terrified" by Hodges' extortionate threat. The district court's decision to permit the government to introduce evidence of Hodges' extortion attempt may not be disturbed on appeal absent an abuse of discretion. See, e.g., United States v. Soulard, 730 F.2d 1292, 1296 (9th Cir.1984). We find that such an abuse occurred here.

Evidence of other crimes, wrongs, or similar acts may not be introduced to show that the defendant has a "bad character" and is therefore likely to have committed the offense for which he is charged. Such evidence may, however, be introduced for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). 2 Although our decisions have recognized that Rule 404(b) is one of "inclusion," see United States v. Bradshaw, 690 F.2d 704, 708 (9th Cir.1982), cert. denied, 463 U.S. 1210, 103 S.Ct. 3543, 77 L.Ed.2d 1392 (1983); United States v. Rocha, 553 F.2d 615, 616 (9th Cir.1977) (per curiam), we have emphasized consistently that evidence of extrinsic acts may not be introduced unless the government establishes its relevance to an actual issue in the case. See, e.g., United States v....

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