U.S. v. Manganellis

• Citation: 864 F.2d 528
• Decision Date: 28 December 1988
• Docket Number: No. 88-1140,88-1140
• Parties: 27 Fed. R. Evid. Serv. 1063 UNITED STATES of America, Plaintiff-Appellee, v. Cesar L. MANGANELLIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 528

864 F.2d 528

27 Fed. R. Evid. Serv. 1063

UNITED STATES of America, Plaintiff-Appellee, v. Cesar L. MANGANELLIS, Defendant-Appellant.

No. 88-1140.

United States Court of Appeals, Seventh Circuit.

Argued May 25, 1988.

Decided Dec. 28, 1988.

Mark A. Eisenberg, Madison, Wis., for defendant-appellant.

Grant C. Johnson, Asst. U.S. Atty., Madison, Wis., for plaintiff-appellee.

Before WOOD, Jr., FLAUM, Circuit Judges, and WILL, Senior District Judge. ^*

WILL, Senior District Judge.

Cesar L. Manganellis, defendant-appellant ("Manganellis"), was indicted on six counts of "knowingly and unlawfully distribut[ing]" cocaine (between seven grams and one ounce for each count), in violation of 21 U.S.C. Sec. 841(a)(1) (1982) ("section 841(a)(1)"). ¹ Manganellis filed several pre-trial motions, among them requesting the following: (1) severance of Counts II-VI from Count I, (2) a jury instruction regarding the credibility of a witness who is a cocaine addict, and (3) precluding the admission of extrinsic evidence concerning his alleged prior bad acts. ² The district court adopted the magistrate's recommendations and denied Manganellis' motions. ³

The jury convicted Manganellis on all six counts. He was sentenced to six years incarceration on each count to be served

concurrently followed by three years of special parole. Manganellis appeals his conviction, arguing that: (1) evidence of alleged prior bad acts was improperly admitted, (2) there was insufficient evidence to support the jury's verdict with respect to Counts II-VI, (3) the district court improperly denied his motion for severance of counts, causing undue prejudice, and (4) the district court improperly denied his request for a jury instruction about witnesses who are addicts. For the reasons stated below, we affirm Manganellis' conviction on all counts.

BACKGROUND

The government's case-in-chief included the following evidence. Special Agent Timothy Schultz, an employee of the Wisconsin Department of Justice, Division of Criminal Investigation, testified that operating in an undercover capacity he met Manganellis on May 1, 1987 at the home of Leylon Hale in Eau Claire, Wisconsin. During this meeting, a transaction allegedly occurred between Schultz and Manganellis. John Nied, a Wisconsin State Crime Laboratory drug expert, identified the substance allegedly exchanged on May 1, 1987 as cocaine. This transaction is the basis for Count I.

At trial, Schultz identified records (notations on a pocket calendar) maintained by Hale, which were also later identified by Hale, of various cocaine deals she had allegedly made with Manganellis from April 1, 1987 through April 18, 1987 (the calendar is for 1986 but dates are changed apparently to conform to 1987). Hale was paid $2,400 by Schultz for arranging the subsequent May 1, 1987 deal with Manganellis and agreeing to testify against him.

FBI agent Charles Southworth testified that on May 1, 1987, someone driving a car belonging to Roberto Rivera approached Hale's residence. A white male walked out of the car, went into Hale's home, got back into the car and drove to Rivera's residence. Police reports describing this incident did not identify the white male by name, but simply referred to a "suspect." At trial, however, Southworth indicated that "suspect" referred to Manganellis. In addition, Southworth identified Manganellis at trial as the person he observed on May 1st driving Rivera's car.

Hale, testifying under a grant of immunity, stated that she and Manganellis met in January 1986 and during the summer of 1986 they discussed possible marijuana transactions. At some point, Manganellis and Hale became intimate. She also testified that Manganellis sold cocaine to her on five separate occasions during April 1987. These transactions are those alleged in Counts II-VI.

Hale's testimony regarding these five transactions was based on her recollection and her notes described above. She also stated that on each of the five occasions she personally used the substance exchanged and, based on her own experience, believed that the substance was in fact cocaine. No controlled substance allegedly distributed with respect to Counts II-VI was recovered or introduced at trial. As a result, the government did not introduce any expert testimony to establish that the substance allegedly exchanged with respect to Counts II-VI was cocaine. Hale testified that her sister flushed some of Hale's cocaine down a toilet on April 26, 1987.

Schultz testified that Hale informed him she had sold marijuana from Manganellis on ten occasions between February and October 1986. At trial, Hale testified that she sold marijuana for him four times a week during the summer of 1986 through the end of August.

Hale also testified that she used cocaine supplied by Manganellis. On cross-examination it was brought out that her pre-trial and trial testimony regarding the number of times she had used cocaine was slightly inconsistent: two or seven times in total, perhaps twice a day. Hale's testimony as to when she last used cocaine was also inconsistent. She initially said that her last time was prior to April 17-19, 1987 and later that she took cocaine on April 25, 1987. Finally, she testified that she stopped using cocaine by May 1, 1987, when she and Manganellis apparently broke off their personal relationship.

Wendy Bridge also testified for the government under a grant of immunity. She stated that she lived with Hale during the time that Hale received cocaine from Manganellis and had observed Manganellis in possession of cocaine on several occasions while at their home. She described one occasion during which Manganellis allegedly came to their residence and spoke with Hale, in Bridge's presence, about selling cocaine and later presented cocaine to Bridge and Hale. She also testified that she was present when Manganellis came to their residence and Hale agreed to distribute cocaine for him. Bridge testified that Hale used marijuana and cocaine. She also testified that when Hale took cocaine she would use it five or six times per day, occasionally injecting it with a needle. Finally, Bridge testified that she twice received cocaine from Manganellis.

Gerald Robinson, Manganellis' brother-in-law, testified that on one occasion in April 1987 he observed an exchange of money ($1,000) between Manganellis and another individual. According to Robinson, Manganellis later told him that the money was exchanged for cocaine.

Darlene Karpe testified on behalf of Manganellis. She stated that she purchased cocaine from Hale as early as January 1987, as opposed to April 1987, the date Hale testified as to her initial cocaine dealing. Karpe also testified that Hale frequently injected herself and others with cocaine and that when Hale used cocaine she injected herself approximately every hour. Finally, Karpe testified that as of October 1987, Hale was still distributing cocaine.

Manganellis did not testify at trial. His defense as to Count I was that he did not do the alleged act and was mistakenly identified. Schultz, who did not see Manganellis at any other time prior to the trial than at their May 1, 1987 meeting, could not recall at trial whether or not Manganellis wore a mustache during the alleged transaction. Manganellis' defense as to Counts II-VI was that he did not commit the alleged acts and that Hale, his chief accuser, was a liar and a drug addict.

PRIOR BAD ACTS

Over the defendant's objections, the government was permitted to introduce the following extrinsic evidence noted above of Manganellis' prior bad acts: (1) Schultz testified that Hale told him that Manganellis had previously sold cocaine to Hale, (2) Hale testified that she and Manganellis had previously exchanged marijuana and discussed possible sales to other parties, and (3) Gerald Robinson testified that he saw Manganellis receive $1,000 from another individual and Manganellis told Robinson that the money was to purchase cocaine.

The evidence was admitted pursuant to Fed.R.Evid. 404(b) ("Rule 404(b)"), which states:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted 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.

In other words, under Rule 404(b), evidence of a defendant's prior bad acts may not be introduced to prove his propensity to commit the crime charged. Woodruff v. Lane, 818 F.2d 1369, 1373 (7th Cir.1987); Fuller v. Attorney General of Illinois, 589 F.Supp. 206, 212 (N.D.Ill.1984), aff'd 762 F.2d 1016 (7th Cir.1985). A jury may not infer that because a defendant committed an illegal act once, he must have also committed another alleged similar act. United States v. Daniels, 770 F.2d 1111, 1116 (D.C.Cir.1985); United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir.1985).

We have held that, in conjunction with Fed.R.Evid. 403 ("Rule 403"), evidence of prior bad acts may be admitted under Rule 404(b) only if:

(1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue ..., (3) the evidence is United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984) (citations omitted).

clear and convincing, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

The Supreme Court recently held that a preliminary showing that the evidence of prior bad acts is clear and convincing is not required. Instead, evidence of prior bad acts is admissible "if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act." Huddleston v....