U.S. v. McCollum

• Decision Date: 14 October 1986
• Docket Number: No. 85-5153,85-5153
• Parties: 21 Fed. R. Evid. Serv. 1178 UNITED STATES of America, Plaintiff-Appellee, v. James Dean McCOLLUM, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 344

802 F.2d 344

21 Fed. R. Evid. Serv. 1178

UNITED STATES of America, Plaintiff-Appellee, v. James Dean McCOLLUM, Sr., Defendant-Appellant.

No. 85-5153.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 1986.

Decided Oct. 14, 1986.

David Katz, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Hector C. Perez, Shipley & Perez, Santa Ana, Cal., for defendant-appellant.

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

Before KENNEDY, BEEZER, and HALL, Circuit Judges.

KENNEDY, Circuit Judge:

James Dean McCollum, Sr., appeals his convictions for mail fraud and the use of a fictitious name in violation of 18 U.S.C. Secs. 1341, 1342. McCollum argues that the admission at trial of expert testimony regarding mail fraud in general and false directory schemes in particular was error. He also argues that the district court admitted hearsay statements by codefendant Del Swann in violation of the Confrontation Clause, that the supplemental jury instruction defining knowledge was erroneous, and that the evidence of his knowing participation in the fraudulent directory schemes was insufficient to support his convictions. We resolve these issues in favor of the government, and we affirm.

The decision to admit expert testimony is committed to the discretion of the trial judge and is not disturbed unless manifestly erroneous. United States v. Fleishman, 684 F.2d 1329, 1335 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982). Assuming, without deciding, that the defendant entered a timely objection to the relevance and prejudicial impact of the expert testimony, its admission here was not error. Expert testimony regarding the typical structure of mail fraud schemes could help the jury to understand the operation of the scheme and to assess McCollum's claim of noninvolvement. See United States v. Johnson, 735 F.2d 1200, 1202 (9th Cir.1984) (expert testimony regarding general practice of criminals admitted to establish modus operandi); Fed.R.Evid. 702 (expert testimony admissible where helpful to jury). The probative value of the testimony was not so outweighed by prejudice to McCollum that exclusion was required. See Fed.R.Evid. 403 (relevant evidence may be excluded where its probative value is substantially outweighed by its prejudicial effect).

The admission of out-of-court statements by Swann did not violate McCollum's rights under the Confrontation Clause. While the record does not disclose under what rationale the district court admitted the statements, they properly could have been admitted against McCollum under Federal Rule of Evidence 801(d)(2)(E). There was independent proof of the existence of a conspiracy involving the defendant and Swann. See United States v. Perez, 658 F.2d 654, 658 (9th Cir.1981). There was, for instance, testimony that McCollum made payments to Swann connected with the directory scheme, instructed his son to cash checks received as part of the scheme, and filed a bank signature card for Energy Reports using an assumed name. There was also defendant's own admission at the time of his arrest that he knew Swann was engaged in a directory scheme, though he was not aware of its scope. Further, there is little doubt that Swann's statements--made in the course of obtaining Russell's participation in the schemes--were made in the course of and in furtherance of the fraudulent directory schemes. See id.

Given that the statements were properly admissible under Rule 801(d)(2)(E), the Confrontation Clause imposes no requirement that the declarant be shown to be unavailable before his out-of-court statements are introduced. United States v. Inadi, --- U.S. ----, 106 S.Ct. 1121, 1129, 89 L.Ed.2d 390 (1986). The government argues that Inadi permits us to dispense with any independent analysis of the reliability of the statements as well; we need not consider this argument, however, since we find the statements sufficiently reliable under the standards currently employed in this circuit. See United States v. Ordonez, 737 F.2d 793, 802-03 (9th Cir.1983) (identifying four factors to consider when assessing the reliability of out-of-court statements under the Confrontation Clause). The challenged statements by Swann describing the scheme were not statements of past fact, and did not present a serious risk of faulty recollection. They do not misrepresent McCollum's role in the directory scheme; in fact, they do not refer to McCollum at all. Finally, Swann's participation in the scheme suggests that he had personal knowledge of its design. In light of these indicia of reliability, we reject McCollum's confrontation claim.

McCollum next argues that the definition of knowledge in the supplemental jury instruction was erroneous. McCollum did not object to the definition when the instruction was given, but only to the giving of the instruction at all. In fact, counsel specifically told the court he was sure there was "no problem with the definition of the word knowledge." Consequently, we review the giving of the instruction only for plain error. See, e.g., United States v. Vincent, 758 F.2d 379, 383 (9th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 116, 88 L.Ed.2d 95 (1985). Plain error is " 'highly prejudicial error affecting substantial rights.' " United States v. Krasn, 614 F.2d 1229, 1235 (9th Cir.1980) (quoting United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979)).

In its general instructions, the district court told the jury that in order to find McCollum participated in a fraudulent scheme in violation of section 1341 he must have "willfully and knowingly devised or participated in a scheme to defraud." The court defined a fraudulent statement as one "known...