U.S. v. Mohel, 1065

• Decision Date: 31 July 1979
• Docket Number: No. 1065,D,1065
• Citation: 604 F.2d 748
• Parties: 4 Fed. R. Evid. Serv. 972 UNITED STATES of America, Appellee, v. Michael MOHEL, Defendant-Appellant. ocket 79-1019.
• Court: U.S. Court of Appeals — Second Circuit

Page 748

604 F.2d 748

4 Fed. R. Evid. Serv. 972

UNITED STATES of America, Appellee, v. Michael MOHEL, Defendant-Appellant.

No. 1065, Docket 79-1019.

United States Court of Appeals Second Circuit.

Argued May 25, 1979.

Decided July 31, 1979.

Phylis Skloot Bamberger, The Legal Aid Society, Federal Defender Services Unit, New York City, for defendant-appellant.

Michael Ross, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., David C. Patterson, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before MANSFIELD, GURFEIN, Circuit Judges, and MISHLER, Chief Judge. ^*

MANSFIELD, Circuit Judge:

Michael Mohel appeals from a judgment of the United States District Court for the Southern District of New York entered on January 11, 1979, after a jury trial before Pierre N. Leval, Judge, convicting Mohel of distributing and possessing with intent to distribute cocaine on April 15, 1978, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). The conviction resulted from Mohel's second trial. The first trial, also before Judge Leval, ended in a mistrial when the jury was unable to reach a verdict. The only claim on appeal is the improper admission of evidence of a prior similar act. We reverse.

The evidence against the defendant at trial consisted mainly of the testimony of Nelson Griffith. Griffith testified that he had known Mohel for roughly two years, having been introduced to him by a person identified only as "Eric", and that he had on occasion purchased cocaine from Mohel in amounts of one-half ounce for $700. On April 15, 1978, Griffith drove to Mohel's apartment. He parked outside the building and called Mohel on a public telephone, and the defendant came downstairs to open the door. The two men then went up to Mohel's apartment, where the defendant gave Griffith two sample "blows" of cocaine. Griffith found the sample to be good and purchased a quantity wrapped inside two plastic bags for $700 in cash. ¹ Griffith left the apartment soon thereafter and was almost immediately arrested by agents of the FBI and DEA.

Griffith cooperated with the Government and made a taped telephone call to Mohel from DEA headquarters that day. ² Several days later, unknown to the Government agents, Griffith called Mohel and arranged for them to meet at Griffith's house. Griffith told Mohel about the arrest. Over defense counsel's vigorous objection, Griffith testified that he also told Mohel that "Eric told me that he (Mohel) had got ripped off by two guys that were in jail and the guys that were testifying against him and the agents, they were looking for him, and you know, a lot of other things, that I don't quite remember at the moment. And Michael (Mohel) told me that most of it was not true, but if he didn't get ripped off he would have been something." ³ Griffith then asked Mohel for either money or cocaine to help pay for a lawyer, but appellant said that he had nothing to give Griffith.

Griffith met again with the Government agents and told them that he had talked with Mohel. Griffith then placed another recorded telephone call to Mohel from DEA The testimony of Griffith was corroborated to some extent by that of the Government agents. Agent Swint of the FBI testified that he had seen Griffith and Mohel meet at Griffth's apartment twelve days before the transaction charged in the indictment. On April 15, 1978, Swint saw Griffith drive up to Mohel's apartment building, place a call from a public telephone, meet the defendant at the door of the building, and leave roughly thirty minutes later. Swint also testified concerning the arrest of Griffith soon after Griffith left the defendant's apartment building.

                headquarters.  4  The two agreed to meet in person later, but such a meeting never took place
                

Swint stated that he arrested Mohel on May 2, 1978. At DEA headquarters, after reading the defendant his rights, Swint "told him I didn't ask, I told him that I was aware that he had been ripped off for a large quantity of cocaine in the past." In response, Mohel told Swint, " 'I don't know how I can help you in that area. The two individuals that I was fronting for are no longer in the country.' " Swint stated that a short time later, at the end of the interview, Mohel said, as if he were talking to himself, " 'I could have been the biggest.' " ⁵

DISCUSSION

Appellant contends that the trial court committed reversible error in admitting into evidence the testimony concerning his two "ripped off" statements. We agree.

The applicable legal doctrines are well settled. "Other-crime" evidence ⁶ is not admissible to show that a defendant has a bad character or propensity to commit the crime at issue, although it may be admissible for other relevant purposes. Fed.R.Evid. 404(b). See United States v. DeVaughn,601 F.2d 42, 45 (2d Cir. 1979); United States v. Williams, 596 F.2d 44, 50 (2d Cir. 1979); United States v. Lyles, 593 F.2d 182, 193 (2d Cir. 1979); United States v. Manafzadeh, 592 F.2d 81, 86 (2d Cir. 1979); United States v. Papadakis, 510 F.2d 287, 294 (2d Cir.), Cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975). The evidence must be relevant to an actual issue in the case, and its probative value on that issue must not be outweighed by its unfair prejudice to the defendant. United States v. DeVaughn, supra, 601 F.2d at 45; United States v. Williams, supra, 596 F.2d at 50; United States v. Lyles, supra, 593 F.2d at 193; United States v. Manafzadeh, supra, 592 F.2d at 86, and cases collected there. See also Fed.R.Evid. 403.

There is no presumption that other-crime evidence is relevant. United States v. DeVaughn, supra, 601 F.2d at 45; United States v. Manafzadeh,supra, 592 F.2d at 86. "(C)aution and judgment are called for, and a trial judge faced with an other crimes evidence problem should require the Government to explain why the evidence is relevant and necessary." United States v. O'Connor, 580 F.2d 38, 43 (2d Cir. 1978), Quoted in United States v. Manafzadeh, supra, 592 F.2d at 86; United States v. DeVaughn, supra, 601 F.2d at 46. Otherwise, "the accused might be convicted because of his participation in the other crimes rather than because he is guilty beyond a reasonable doubt of the crime alleged." United States v. Manafzadeh, supra, 592 F.2d at 86. See also United States v. Papadakis, supra, 510 F.2d at 294.

In the present case, the Government argues that the other-crime evidence was admissible to show Mohel's intent and knowledge. The Government contends as well that the evidence was admissible under a corroboration theory. Judge Leval admitted the testimony concerning Mohel's two "ripped off" statements only on the issues of intent and knowledge; ⁷ in his charge to the jury, however, Judge Leval also instructed the jury that "(t)he government contends that if you believe Agent Swint's testimony concerning the defendant's statement, and if you find that it was similar to the statement concerning which Griffith testified, you may take Swint's testimony as corroboration of Griffith's testimony on that point." ⁸

There is no doubt from the record that defense counsel sought to remove the issues of intent and knowledge from the case. The theory of the defense was that Griffith, the only witness to the alleged sale, was a liar who was trying to set up Mohel in order to avoid punishment himself. The cross-examination of Griffith was lengthy and vigorous. ⁹ In short, the defense was not that Mohel thought he was selling some other, legal substance; the defense was that the alleged sale was a total fabrication on the part of Griffith. Cf. United States v. Manafzadeh, supra, 592 F.2d at 87; United States v. O'Connor, supra, 580 F.2d at 41; United States v. Benedetto, 571 F.2d 1246, 1249 (2d Cir. 1978).

Defense counsel repeatedly offered to stipulate to the necessary knowledge and intent if the jury found that Mohel had in fact sold the cocaine to Griffith. At a pretrial conference, the defendant took the position that "the issue of wilfulness and whether the defendant did what he did knowingly is really too confusing and irrelevant," and he wanted the court to delete intent and knowledge from the charge to the jury even "if it takes a stipulation or a concession on our part that if the jury believes beyond a reasonable doubt that the transaction alleged did take place, and that Exhibit 1 was the merchandise transferred during the transaction, then they couldn't go into this business of whether it was knowingly or whether it was wilful, to simplify it." Again on the first day of trial, before the jury was empaneled, defense counsel informed the court that "I have now stated in the first trial and I have repeated it since, that the defendant was not going to put knowledge and intent in issue here, basically concede that if the transaction of April 15th took place, then it could be inferred from that transaction that he knew what he was doing." Again, prior to opening statements, defense counsel made his position clear. "I would say at trial I will make it absolutely clear that I am not placing intent and knowledge in issue at all, whether each transaction took place, so those (two other-crime) statements won't even be admissible on the issue of knowledge and intent, which is the only basis on which your Honor admitted them at the first trial."

The opening statement by defense counsel was clear in its focus. The jury was informed that "(w)hat is to come in part, I promise you, is a case in which everything rests on one witness, one witness. You will hear more than one witness, but essentially you will come to the point where if you have but a reasonable doubt concerning whether it is so that on April 15th of this year this defendant Michael Mohel sold a certain Exhibit 1 to Nelson Griffith, then it will be your duty to acquit Michael Mohel, regardless of what any of the other witnesses might say." Defense counsel then stressed the central theme of...