U.S. v. McLister

• Decision Date: 21 November 1979
• Docket Number: No. 78-3077,78-3077
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank C. McLISTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 785

608 F.2d 785

UNITED STATES of America, Plaintiff-Appellee, v. Frank C. McLISTER, Defendant-Appellant.

No. 78-3077.

United States Court of Appeals, Ninth Circuit.

Nov. 21, 1979.

Richard B. Mazer, San Francisco, Cal., for defendant-appellant.

Floy E. Dawson, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

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

Before HUFSTEDLER and GOODWIN, Circuit Judges, and JAMESON, ^* District Judge.

JAMESON, District Judge:

A jury found Frank C. McLister guilty of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and acquitted him of conspiring to distribute cocaine in violation of 21 U.S.C. § 846.

Factual Background

McLister and three codefendants, John Irwin, Sharon Baker, and Thane Rucker were arrested after participating in a transaction in which a pound of cocaine was sold to an undercover government agent. ¹ McLister does not deny his participation or his knowledge that the sale involved cocaine. Rather, he contends that he lacked the requisite criminal intent.

The events leading to the arrests began in Denver, Colorado, where Irwin was arrested by the Denver Police Department in December, 1977, for possession of cocaine. In exchange for a dismissal of the criminal charge against him, Irwin agreed to become an informant for the Police Department. In February, 1978, Irwin met Darrell Wisdom, a Drug Enforcement Administration (DEA) agent, who was posing as a large scale drug dealer. Wisdom was aware of Irwin's status, but Irwin did not know that Wisdom was a DEA agent. In subsequent negotiations, Wisdom began to suspect that Irwin was "double dealing", i. e., acting as an informant and continuing to deal in the illegal distribution of drugs.

On March 6 Irwin told Wisdom that he had set up a transaction in San Francisco for the purchase of a pound or two of cocaine. Irwin and his girl friend, Sharon Baker, flew to San Francisco later that day, and Wisdom followed on March 7. After making final arrangements for the purchase of the cocaine, Wisdom met Irwin and Baker in the lobby of the Hilton Hotel. Shortly thereafter McLister and Rucker arrived in McLister's camper. After Wisdom entered the camper, Irwin and McLister produced the cocaine and gave it to Wisdom. Shortly thereafter, Wisdom and other agents arrested the four defendants.

At the trial Irwin testified that he had participated in the cocaine sale solely in furtherance of his plea agreement with the Denver Police and that he had intended to turn the participants over to the authorities. He claimed that McLister supplied the cocaine. On the other hand, McLister testified that prior to the transaction Irwin told him that he and Baker were acting as undercover agents for the Denver Police and that he reluctantly agreed to assist them in arranging for the arrest of a narcotics trafficker (Wisdom). McLister testified further that the cocaine he handed to Wisdom in the trailer belonged to either Irwin or Baker, who had placed it in the camper the night before with his permission.

Contentions on Appeal

Appellant contends that the district court erred in (1) restricting appellant's cross-examination of his codefendant Irwin and Denver Police Detective Meyer; (2) permitting the prosecutor to cross-examine appellant concerning a misdemeanor conviction for possession of marijuana; and (3) instructing the jury that it would consider evidence that appellant had used cocaine; and (4) that the acquittal of appellant on the conspiracy charge was inconsistent with its verdict of guilty on the substantive charge.

Inconsistent Verdicts

We find no merit in appellant's last contention that his acquittal on the conspiracy count precluded his conviction on the substantive count of distribution of cocaine. See, E. g., United States v. Livengood, 427 F.2d 420, 423 (9 Cir. 1970), where the jury acquitted the defendants on conspiracy charges to commit mail fraud, but convicted them on substantive counts of overt acts included in the conspiracy count. This court rejected the contention that a reversal was required and followed the general rule "that consistency between the several counts of an indictment or information is not necessary where a defendant is convicted upon one or some of the counts but acquitted on another or others and that the conviction will be sustained even though rationally incompatible with the acquittal." Id. at 423 (citing Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932)).

We conclude, however, that the combination of other alleged errors requires a reversal, even though each by itself might constitute harmless error.

Cross-examination of Irwin and Meyer

The alleged errors in the cross-examination of codefendant Irwin and Gregory Meyer, a Denver Police Department detective, resulted in large part from the conflicting contentions of the defendants, i. e., Irwin and Baker claiming that McLister owned the cocaine, and McLister claiming that it was owned by Irwin or Baker, and that he was simply assisting them in arranging for the sale to a narcotics trafficker, assuming that Irwin and Baker were under-cover agents.

(a) Cross-examination of Meyer

Meyer, called as a witness by codefendant Baker, testified during direct examination that in February, 1978, he did not believe Irwin was double dealing in his negotiations with agent Wisdom, despite DEA conclusions to the contrary. On cross-examination Meyer was asked by counsel for McLister if he then believed Irwin had been double dealing. The court sustained the Government's objection that Meyer's opinion was irrelevant. In an offer of proof McLister claimed that Meyer would have testified that at the time of trial he believed Irwin had been double dealing, contrary to his previous opinion. Appellant argues that this testimony should have been permitted because it related to a subject raised on direct examination and supports his defense.

It is probably true, as the Government argues, that Meyer's answer might have "caused prejudicial harm to Irwin". We cannot agree, however, that it could not have benefited McLister. Meyer's testimony on direct examination might well have left the impression that at the time of trial, Meyer continued to believe that Irwin was not double dealing and his participation in the transaction was solely to assist the Denver police. This would affect McLister's defense, which in part required the jury to believe that Irwin was acting on his own and was the owner of the cocaine. To prevent a possible half truth, detrimental to appellant, it was proper and relevant for him to cross-examine detective Meyer on his current opinion on whether Irwin had been double dealing. See United States v. Brady, 561 F.2d 1319, 1320 (9 Cir. 1977). The question was directed specifically to testimony developed by Irwin and the trial court on direct examination. See United States v. Alvarez-Lopez, 559 F.2d 1155, 1158 (9 Cir. 1977).

(b) Cross-examination of Irwin

On April 4, 1978, Wisdom, without Irwin's knowledge, taped a telephone conversation in which Irwin admitted that he had been double dealing in San Francisco. Following a pretrial hearing the district court granted Irwin's motion to suppress this conversation, under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

At trial the court refused to allow appellant to question Irwin concerning the April 4 conversation on the ground that the post-arrest conversation was irrelevant. ² Appellant argues that the conversation would have (1) shown Irwin's bias, prejudice and interest in naming the appellant as the source of the cocaine, (2) impeached Irwin's credibility, and (3) supported appellant's defense.

Irwin testified that he acted solely to further his plea agreement with the Denver police, and that McLister had furnished the cocaine. It was necessary to appellant's defense that the jury find that Irwin had been double dealing and also that appellant had assumed that Irwin was acting as an undercover agent. Appellant had a right to impeach Irwin's credibility. The evidence was relevant and might have been helpful to appellant's defense. The fact that Irwin was not called as a witness by the Government is immaterial. See United States v. Dixon, 547 F.2d 1079, 1084 (9 Cir. 1976).

The Government argues that any error in refusing to permit appellant to examine Irwin was, in any event, harmless error. It is true that in finding Irwin guilty of both conspiracy and distribution, the jury must have believed that he was double dealing. It is difficult, however, to determine what effect, if any, this testimony would have had upon appellant's defense. If this were the only error, we might well conclude that it was harmless in view of other evidence of McLister's guilt. As noted Supra, however, we conclude that combined with other errors, reversal is required. ³

Prior Marijuana Conviction

The district court, over objection, permitted the Government to cross-examine McLister with regard to a misdemeanor conviction nine years earlier involving possession of one cigarette. As the Government notes in its brief, the evidence was offered as a "misdemeanor conviction involving moral turpitude" under Rule 609(a), Federal Rules of Evidence. The court, however, did not accept the evidence under that theory and later instructed the jury that the conviction could be considered "only in the light of the characterization of . . . (appellant's) life style as one that might normally have been expected to exclude the use of such substances".

(a) Admissibility under Rule 609(a)

Rule 609(a), Federal Rules of Evidence provides:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of...