U.S. v. Nolan

• Decision Date: 22 March 1977
• Docket Number: No. 76-1177,76-1177
• Citation: 551 F.2d 266
• Parties: 1 Fed. R. Evid. Serv. 784 UNITED STATES of America, Appellee, v. Charles Wallace NOLAN, Jr., Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 266

551 F.2d 266

1 Fed. R. Evid. Serv. 784

UNITED STATES of America, Appellee, v. Charles Wallace NOLAN, Jr., Appellant.

No. 76-1177.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Jan. 25, 1977.

Decided March 22, 1977.

Jon K. Sargent, Asst. U. S. Atty., District of Kansas, Wichita, Kan. (E. Edward Johnson, U. S. Atty., Wichita, Kan., on the brief), for appellee.

C. Rabon Martin of Baker, Baker & Martin, Tulsa, Okl., for appellant.

Before LEWIS, Chief Judge, and PICKETT and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Charles Wallace Nolan (Nolan) appeals from a jury conviction on charges stemming from an indictment alleging that he imported controlled substances into the United States in violation of 21 U.S.C.A. § 952(a).

On July 3, 1975, an air waybill was executed in New Delhi, India, by Paul Edward Donegan, pertaining to a crate consigned to Nolan in Emporia, Kansas. Nolan had been in India approximately one month before the crate was shipped. While in India, Nolan had purchased certain musical instruments contained in the crate.

When the crate arrived in the United States, the Customs Director sent a notice to Nolan at Emporia directing him to pick up the package at the airport in Wichita, Kansas. The Customs Director then ran a computer check with the Department of the Treasury for information regarding Nolan. The computer provided information that Nolan had been convicted of a drug importation violation in the Commonwealth of Great Britain in 1973. This prompted the Customs Agent to conduct a careful examination of the crate. By drilling holes in the crate, he determined that it was hollow and that it contained a controlled substance, i. e., marijuana.

After Nolan arrived at the Wichita airport to receive the package, he pointed to the crate with the sitar and drums at its side and remarked "I see you have got my stuff." He said that he had gone to India for about six weeks to learn to play the sitar. Nolan was then arrested, whereupon he said that he had "never been to India" and that he knew nothing of the controlled substance in the crate.

Nolan moved for a suppression of the controlled substance. The motion was denied following a full hearing.

At trial, the government offered the testimony of the Customs Director regarding Nolan's British conviction originally revealed by the Treasury Department computer, to show a justifiable basis for the search. The government also presented the testimony of the British Customs Agent who had apprehended Nolan for importing various contraband materials into the Commonwealth in 1973, ostensibly for the purpose of showing knowledge, intent, motive, common plan and scheme. The British Agent testified about custodial admissions of Nolan, the court proceedings, the pre-sentence investigation and the judicial disposition. The government showed the "street value" of the marijuana and argued to the jury that Nolan hoped to reap great profits from it. Nolan did not present any evidence. The trial court instructed, inter alia, that one of the jury's functions was to find the defendant guilty or innocent (as compared to the normal standard of not guilty).

Nolan was sentenced to three years imprisonment, followed by a two year probationary term.

On appeal Nolan argues that the court erred (1) in admitting testimony dealing with the prior British conviction; (2) in admitting evidence and argument regarding Nolan's forthcoming distribution of the contraband; (3) in upholding the verdict inasmuch as the evidence was not sufficient to support a conviction; and (4) in instructing the jury.

I.

Nolan contends that the court erred in admitting testimony regarding Nolan's prior British conviction for the importation of hashish.

In 1973, when Nolan was en route from New Delhi, India, to the United States he landed at a London airport. During that stop, a British Customs Agent discovered contraband on Nolan's person and in the base of some wooden lamps he was carrying. The British Customs Agent was allowed to testify about a confession Nolan made to him in Britain and that Nolan was charged with and pled guilty to violation of the British importation laws. We hold that this testimony is admissible.

A.

Nolan contends that an alien criminal conviction is inadmissible, per se, in a United States federal criminal proceeding; and, in the alternative, that before admitting such a criminal conviction, it must be shown that each and every United States constitutional safeguard afforded criminal defendants was complied with in the foreign country where the conviction was obtained.

The government asserts that this issue was not raised at trial and therefore the appellate court should not consider it. In reviewing the record we find, however, that the issue was raised at trial and thus preserved for our consideration. (R., Vol. III, p. 115.)

Nolan admits that he does not have any authority directly in point. He relies on Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). His reliance on Burgett, supra, is misplaced. The Court there held that a conviction violative of the constitutional right to counsel cannot be introduced "to support guilt or enhance punishment." 389 U.S., at 115, 88 S.Ct., at 262. The British conviction was not introduced "to support guilt or enhance punishment." It was introduced solely for the purpose of showing intent, design, a continuing course of conduct, guilty knowledge, mental disposition, capacity, habit, plan, motive or identity. Therefore, Burgett, supra, is inapplicable.

We have repeatedly held that evidence of uncharged crimes, wrongs or alleged prejudicial acts may be received for purposes proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. United States v. Freeman, 514 F.2d 1184 (10th Cir. 1975); United States v. Parker, 469 F.2d 884 (10th Cir. 1972); United States v. Pickens, 465 F.2d 884 (10th Cir. 1972); United States v. Pauldino,443 F.2d 1108 (10th Cir. 1971), cert. denied, 404 U.S. 882, 92 S.Ct. 212, 30 L.Ed.2d 163 (1971); United States v. Eagleston, 417 F.2d 11 (10th Cir. 1969). The evidence in question in each of the above cited cases was not that of a criminal conviction, but it was that of criminal activity. It follows, then, that the evidence introduced under this exception need not be a constitutionally valid criminal conviction. Even if Nolan's British conviction should not meet our federal constitutional demands, it is still admissible under this exception. Furthermore, Fed.Rules of Evid. Rule 404(b), 28 U.S.C.A. supports this conclusion by reference to admission of evidence of "Other crimes, wrongs or acts." That rule does not require proof of a conviction such as that required under Rule 609 of the Federal Rules of Evidence.

We need not decide if a British conviction is admissible to prove guilt or enhance punishment. That issue is not before us.

We hold that an alien conviction is admissible for the purpose of proving a common plan, motive, opportunity, intent, knowledge, identity or absence of mistake if relevant and material to the charges and issues raised in the federal prosecution. The proof of Nolan's British conviction was used for these purposes in the instant case.

B.

In a related issue, Nolan contends that evidence of his prior British conviction was inadmissible under Fed.Rules of Evid. Rules 404(b) and 403, 28 U.S.C.A.

A British Customs Agent was allowed to testify as to the importation of contraband into England by Nolan two years before the instant incident. The agent stated: that the contraband was shipped from New Delhi, India, in the base of wood lamps; that Nolan told the British agent that he paid a man in New Delhi to put the contraband in the wooden lamps, and that he intended to smoke part of it; that Nolan pled guilty to the British charge; that Nolan was fined $250.00 and that a prison sentence was defaulted because Nolan left the country. The trial court instructed the jury that this evidence was not admissible for proof of the crime charged, nor for proof that Nolan acted in conformity with his bad character, and further that the evidence should not be considered as constituting a separate or additional crime. The jury was specially instructed that this evidence was admissible exclusively for purposes going to proof of motive, opportunity, intent, preparation, plan, knowledge, identity, and for absence of mistake or accident. The jurors were instructed to consider same entirely within these confines.

The general rule is that evidence of illegal activities other than those charged is ordinarily inadmissible. There are, however, several well-recognized exceptions to the rule, including receipt of such evidence in order to prove motive, opportunity, identity, absence of mistake or accident. United States v. Freeman, supra; United States v. Burkhart, 458 F.2d 201 (10th Cir. 1972); United States v. Pauldino, supra.

We note that Rule 404(b), supra, is not exclusionary in the sense of the above rule of our Court. Rather, it would allow the admission of uncharged illegal acts unless the only purpose for their admission is to prove the criminal disposition of the defendant. We hold that under either rule, however, the evidence of Nolan's prior conviction is admissible.

The probative value of proof of the commission of the prior crime must outweigh the prejudice. Rule 403, supra. This determination is properly within the trial judge's discretion. United States v. Drumright, 534 F.2d 1383 (10th Cir. 1976), U.S. Appeal Pending; United States v. Baca, 444 F.2d 1292 (10th Cir. 1971), cert. denied, 404 U.S. 979, 92 S.Ct. 347, 30 L.Ed.2d 294 (1971). A critical issue in the case at hand was Nolan's intent and knowledge. Proof of the British conviction was very relevant in the proof of those elements of the crime. In view of its obvious probative value, we hold that the trial court did not abuse its...