U.S. v. Noti

• Decision Date: 17 April 1984
• Docket Number: No. 83-5064,83-5064
• Citation: 731 F.2d 610
• Parties: , 15 Fed. R. Evid. Serv. 423 UNITED STATES of America, Plaintiff-Appellee, v. Michael NOTI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 610

731 F.2d 610

77 A.L.R.Fed. 111, 15 Fed. R. Evid. Serv. 423

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

No. 83-5064.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 9, 1984.

Decided April 17, 1984.

Daniel J. Gonzalez, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Norman D. James, Heaney, James & Hearn, Los Angeles, Cal., for defendant-appellant.

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

Before CHOY, NELSON and CANBY, Circuit Judges.

NELSON, Circuit Judge:

Michael Noti appeals from convictions for conspiracy to import, possess, and distribute cocaine, and substantive counts of importation and possession with intent to distribute cocaine. Noti argues that the district court: 1) improperly excluded evidence relating to the government informant's motive to testify; 2) improperly failed to suppress Noti's post-arrest statements; 3) improperly failed to dismiss the indictment due to abuse of grand jury proceedings; and 4) improperly denied Noti's motion to sever his trial from that of codefendant Charles Edwards. We reverse and remand for a new trial.

FACTS AND PROCEDURAL BACKGROUND

James Higgins and Ben Martin were pilots employed by Pioneer Aviation, a company owned by Howard Pearl and housed at the Van Nuys Airport in Los Angeles. In March 1982 Martin asked Higgins to help locate an airplane to be used by Pioneer clients to scout for movie locations in Central and South America. Higgins was told that the plane would be piloted by Martin and co-piloted by Michael Noti, Pioneer's chief flight instructor. Suspicious of Martin's intentions, Higgins contacted the Los Angeles Police Department (LAPD), which instructed him to cooperate with Martin and report developments. Higgins provided the bulk of the testimony against Noti.

In April 1982 Pearl asked Higgins to replace Martin as pilot of the mission. Pearl later admitted to Higgins that the true purpose of the trip was not as originally represented, but rather to deliver money from South America to a location off the coast of Mexico. Pearl assured Higgins that no violation of United States law would occur. After consulting with the LAPD, Higgins agreed to join the venture for the $5000-$6000 Pearl offered.

Higgins participated in a series of summer planning sessions with Noti, Martin, and Pearl. He also met Richard Ongania and Calum Innes at that time. As part of its preparations, the group selected a private plane and specially equipped it with extra fuel tanks to increase its flying range.

On July 24, 1982, Higgins and Noti set off for Acapulco. At this point, the object of the trip was clear: to smuggle cocaine by concealing it under the floorboards of the plane. Ongania was waiting in Acapulco to join them for the trip south to Peru, where Innes was preparing for the cocaine's delivery. After various delays, the group headed for Lima, Peru with a stopover in Ecuador.

Higgins, Noti, and Ongania intended to fly from Peru to Chile to establish a cover for their South American voyage. They inadvertently flew over a restricted area of Peru, however, and were escorted by the authorities back to Lima. From Lima, they attempted to fly to Paramunga, Peru, the appointed delivery site, but apparent military maneuvers on the ground forced them to continue on to Ecuador. Later discovering that the maneuvers were unrelated to their plans, the group returned to Lima. Higgins, Noti, and Ongania then flew to Paramunga, where the plane was loaded with cocaine, and continued on to Ecuador and Panama. They left Ongania in Acapulco because he was known to U.S. Customs in San Diego. Higgins and Noti cleared Customs on September 4, 1982, and flew to Van Nuys Airport, where Ongania was waiting for delivery of the cocaine.

Higgins initially received $4000 for his efforts. Noti told Higgins that he had received cocaine rather than cash for his participation and that he was distributing this cocaine. These "distributions" were corroborated by an LAPD trash can search revealing words such as "COCAINE BUSINESS", "8 oz.," "acct," and "cash" on order forms in Noti's handwriting.

In November 1982, Higgins introduced Michael Moren, an undercover Drug Enforcement Administration (DEA) pilot to Pearl as a "drug hauler." Pearl told Moren that he needed financial backing for a repeat performance of the previous South American voyage. Later, however, when it became clear that Noti would not pilot the plane for less than $50,000, Pearl asked Moren to fly with Higgins. As consideration, Moren would get both cocaine and assistance in distributing it.

On November 27, 1982, Moren, Higgins, and DEA Special Agent Janet Moulster flew to Acapulco, picked up Ongania, and continued on to Panama and Peru. This trip substantially mirrored the first. In Peru, Moren met Innes, who described a duffel bag containing $100,000 as "Chuck Edwards' dirty laundry." Moren subsequently met Charles Edwards, who greeted Ongania with obvious recognition. Moren was introduced to Edwards as "Michael Smith," an undercover name, "not Michael Noti." Ongania mentioned that Edwards could easily conceal money below his generous stomach, and that he had in fact done so for the "last trip."

On December 12, the group returned with the cocaine to the United States. The next day, Noti's residence was searched pursuant to a search warrant and 30 grams of cocaine were discovered. After his arrest, Noti admitted to the detective that the cocaine was his; that he knew Howard Pearl but "no longer worked for him;" that he had made one trip to South America for Pearl's organization; and that he had planned to make a second trip but, fearful that the trip would be less successful than the first, asked Pearl for an outrageous sum of money. Noti also recognized the names Ongania and Innes.

On December 22, a six-count indictment was filed charging Pearl, Innes, Ongania, Noti, Martin, and Edwards with conspiracy to import and distribute cocaine in violation of 21 U.S.C. Secs. 952(a), 960(a)(1), and 963, and, except for Edwards, with substantive counts of importation and possession of cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Innes was, and remains, a fugitive. Ongania is in Peruvian custody. Subsequent to arraignment, Pearl pleaded guilty, and Martin was dismissed from the indictment. Only Noti and Edwards proceeded to trial, at which each was convicted. This timely appeal followed.

DISCUSSION

A. Exclusion of motive evidence was not reversible error.

James Higgins, the government's key witness, testified on cross-examination that his motive for informing against the defendants was his personal opposition to the use of drugs. He denied ever using or selling cocaine. Noti then attempted to introduce extrinsic evidence that Higgins was in fact a user and supplier of cocaine. The district court deemed the evidence inadmissible on the ground that Noti was seeking to attack Higgins' credibility through evidence of specific instances of misconduct. Noti argues that the evidence was offered not to impeach the witness, but rather to shed light on Higgins' actual motive to inform. The district court's ruling is reviewed for an abuse of discretion. United States v. Cutler, 676 F.2d 1245, 1248 (9th Cir.1982).

Evidence of a witness' past misconduct, other than conviction of a crime, is inadmissible for the purpose of attacking the witness' credibility. Fed.R.Evid. 404(a) & 608(b). Evidence that happens to include prior misconduct may be admissible, however, when it is offered to show the witness' possible bias or self-interest in testifying. Burr v. Sullivan, 618 F.2d 583, 586-87 (9th Cir.1980). In such a case, the adverse party does not have to accept the witness' testimony, but may offer extrinsic evidence to rebut it. United States v. James, 609 F.2d 36, 46 (2d Cir.1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980).

The exclusion of extrinsic evidence here did not constitute reversible error for two reasons. First, Noti has not demonstrated on appeal that he could have proved any more than Higgins' use and distribution of drugs. There was no offer of proof that Higgins cooperated in the investigation to gain lenient treatment in the future regarding his own drug violations, or that investigation of Higgins was deferred to induce his cooperation. The fact that Higgins used drugs, without more, is not sufficiently probative of motive to mandate reversal. The district court was therefore correct in concluding that the evidence went only to Higgins' credibility.

Second, Noti argued below that he sought to introduce the evidence to negate the suggestion that Higgins' motive was honorable, so that the jury would focus on whether Higgins' financial interest in the case tainted his testimony. Higgins' financial rewards, however, were thoroughly explored at trial. Pearl and U.S. Customs each gave Higgins $10,000, and he had reason to expect more from the LAPD and the DEA. Noti's counsel was free to raise the obvious inferences flowing from these facts in his closing argument. In addition, there was testimony as to Higgins' reputation for untruthfulness, a blatant contradiction between Higgins' and Agent Moren's testimony, and the judge's instruction that the jury should weigh an informant's testimony with greater than ordinary care. In light of this, we conclude that the exclusion of this extrinsic evidence was not error.

B. There was no misconduct in the grand jury process requiring dismissal of the indictment.

Shortly before trial, the prosecution advised Noti that informant Higgins may have falsely informed the LAPD that he had accompanied Noti and Ongania to the Paramunga airfield where he observed Noti remove the cocaine from a suitcase and secrete it beneath the floorboards of the aircraft. Noti's motion to dismiss the indictment on the...