U.S. v. Parrish, 83-3563

• Decision Date: 27 June 1984
• Docket Number: No. 83-3563,83-3563
• Citation: 736 F.2d 152
• Parties: 15 Fed. R. Evid. Serv. 1834 UNITED STATES of America, Plaintiff-Appellee, v. James Leonard PARRISH and Ralph W. Smith, Sr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 152

736 F.2d 152

15 Fed. R. Evid. Serv. 1834

UNITED STATES of America, Plaintiff-Appellee, v. James Leonard PARRISH and Ralph W. Smith, Sr., Defendants-Appellants.

No. 83-3563.

United States Court of Appeals Fifth Circuit.

June 27, 1984.

Walter J. Rothschild, Federal Public Defender, New Orleans, La., for parrish.

George O'Dowd, Asst. Federal Public Defender, New Orleans, La., for Smith.

John Volz, U.S. Atty., Warren Montgomery, Harry W. McSherry, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, REAVLEY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

Ralph Wesley Smith, Sr., and James Leonard Parrish appeal from their convictions for possession with intent to distribute methamphetamine, distribution, and conspiracy. We affirm; there was no prejudicial error.

I. Facts

Ralph W. Smith, Sr. (Smith), Wallace William Wade (Wade), and two others (Smith, Jr. and Mora) sold methamphetamine to federal agents in Kenner, Louisiana, on March 10, 1983. They were arrested and indicted. Wade plea-bargained and agreed to testify against the others. A superseding indictment, returned on April 15, 1983, charged Smith, James Leonard Parrish (Parrish), Smith, Jr., and Mora on three counts. Count I alleged a conspiracy to possess methamphetamine with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982). Count II alleged that on February 11, 1983, the defendants had possessed methamphetamine with intent to distribute it; Count III alleged that on March 15 the defendants distributed methamphetamine. Both Counts II and III alleged violations of 21 U.S.C. Sec. 841(a)(1) (1982), proscribing the substantive acts of possessing and distributing a controlled substance, and 18 U.S.C. Sec. 2 (1982), providing that one who aids or abets in the commission of an offense is punishable as a principal.

Smith, Parrish, and Smith, Jr. were tried jointly. Smith and Smith, Jr. testified; Parrish did not. Smith and Parrish were convicted on all three counts. ¹

II. Smith

Smith's defense at trial was entrapment: he contended that he was coerced into participating in the drug deal by Len Ridley, an acquaintance of Smith's who was acting as a confidential informant for the government. Ridley was not called as a witness by any party. Smith suggests that Ridley's failure to testify contributed to the alleged unfairness of his trial, but since Smith had the opportunity to call Ridley and chose not to do so he cannot complain of that failure now.

A. Prior Conviction

Smith's first assignment of error arises out of the prosecution's use at trial of his prior conviction for conspiracy to manufacture phenyl acetone, a precursor of methamphetamine. Before trial, the government indicated that it would not introduce evidence of Smith's involvement in this previous conspiracy in its case in chief, although that evidence might have been admissible under Rule 404(b) of the Federal Rules of Evidence. ² Wade was the government's principal witness. On direct examination the prosecutor asked Wade how he knew that Smith had been in the drug business. Wade replied that Smith "told me that was what he was in prison for before". The defense attorneys objected immediately. After the prosecutor stated that Wade's response was unanticipated, the trial judge overruled the objection and told the jury to disregard the "reference to Mr. Ralph Smith Senior's background". When Smith testified, however, the fact of his previous conviction became admissible for purposes of impeachment. Wade's testimony therefore had no prejudicial effect. See United States v. Smith, 5 Cir.1979, 605 F.2d 839, 845.

On direct examination Smith stated that he had been in prison and on cross-examination he admitted that the conviction had been for conspiracy to manufacture phenyl acetone. In closing argument, the prosecutor (Mr. Weiss) addressed Smith's conviction, his credibility, and his entrapment defense in the following terms:

Now, Smith, Sr., would have you believe that Ridley, the confidential informant in this case, caused him to do something that he otherwise would not have done, that is, possess and distribute methamphetamine. He wants you to believe, notwithstanding the fact that he has already admitted under cross-examination that he was convicted of conspiracy to possess phenol acetone which is the active ingredient for speed, methamphetamine, the very drug that is the subject of the present indictment.

BY THE COURT:

One more minute Mr. Weiss.

BY MR. WEISS:

Ladies and gentlemen, Smith Sr., had every predisposition to engage in this kind of activity. He accepted Wade into his home. He sent Wade and Smith Jr. to Vidalia to meet Parrish. He sent Wade to San Antonio to meet Mora. He flew to San Antonio to meet Mora. He sent Wade to Miami to pick up dope. He sent Wade to Vidalia to take the dope to Parrish. He went to the motel room, accompanied the agents in the presence of agent Johnstone and counted out the 22,000.00 and he received, he was there when Page gave the signal to Johnstone that he had received the narcotics and Johnstone effected the arrest on Smith Jr. That definitely does not sound like someone who is not predisposed to committing the offenses charged in the indictment.

Smith moved for a mistrial, which was denied.

Smith does not contest that his conviction was relevant for purposes of impeachment, and that the prosecutor could properly ask the jury to consider that conviction in connection with Smith's credibility. Fed.R.Evid. 609. Read literally, the prosecutor's remarks did no more than this. Smith contends, however, that these remarks were carefully arranged so that the jury would draw the inference that Smith was predisposed to commit the crimes charged because he had committed a similar crime in the past. Ordinarily such an argument by a prosecutor is improper. Fed.R.Evid. 404(b). In this case, however, Smith put his predisposition in issue by alleging entrapment. It was proper for the prosecution to rebut Smith's entrapment defense by eliciting evidence of his prior conviction for a similar crime. United States v. Jones, 5 Cir.1973, 473 F.2d 293, 294, cert. denied, 1973, 411 U.S. 984, 93 S.Ct. 2280, 36 L.Ed.2d 961; 2 J. Weinstein & M. Berger, Weinstein's Evidence p 404 (1982). The evidence is admissible if it is relevant to show that the defendant was predisposed to commit the crime charged, and if its probative value outweighs its potential for undue prejudice. United States v. Punch, 5 Cir.1983, 722 F.2d 146, 153; United States v. Beechum, 5 Cir.1978, 582 F.2d 898, 911-12 (en banc), cert. denied, 1979, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472. Here the evidence was clearly relevant to the question of predisposition, a question that had been put in issue by the defendant. The probative value was not outweighed by the prejudicial potential of the evidence or the prosecutor's oblique reference to that evidence in closing argument. The previous conviction was for a crime very similar to that for which Smith was on trial, and was therefore strongly relevant to the issue of predisposition; it was not evidence of a heinous crime that might incite the jury; and the previous crime was not described in such detail that the jury might try Smith for the previous crime as well as the present. See United States v. Salisbury, 11 Cir.1981, 662 F.2d 738, 741, cert. denied, 1982, 457 U.S. 1107, 102 S.Ct. 2907, 73 L.Ed.2d 1316. Accordingly, Smith's prior conviction was admissible not only to impeach his credibility but to rebut his entrapment defense as well, and the prosecutor's closing argument was therefore not improper even if it is interpreted as Smith suggests.

B. Jury Instruction

Smith also asks for a new trial because the trial judge refused his request for a supplemental jury instruction on entrapment. The trial judge used the 1983 Pattern Jury Instructions on entrapment approved by the Fifth Circuit District Judges Association, ³ but denied Smith's request for an additional instruction that

"where the government used an informer to induce the commission of a crime they cannot thereafter disown such informer and insist that it was not responsible for the actions in order to avoid the defense of entrapment."

Smith argues that this instruction was essential because the informer, Len Ridley, did not testify.

Refusal to deliver a requested instruction is reversible error only if the instruction is substantively correct, is not covered by the charge actually delivered to the jury, and concerns an important point in the trial so that the failure to give it substantially impairs the defendant's defense. United States v. Milstead, 5 Cir.1982, 671 F.2d 950, 952 (per curiam); United States v. Grissom, 5 Cir.1981, 645 F.2d 461, 464. In his closing argument, Smith's attorney was permitted to argue that the government was responsible for the acts of its confidential agent. The government did not contest its responsibility for Ridley's acts, and the Pattern Jury Instruction states that a government agent's acts may lead to entrapment. Because "the actual charge, taken as a whole, ... correctly reflect[ed] the issues and the law of the case", there was no reversible error. United States v. Smith, 5 Cir.1984, 726 F.2d 183, 186 (per curiam).

III. Parrish

A. Sufficiency of the Evidence

Parrish lived in Georgia, and he was not present when the other defendants were arrested in Louisiana on March 15, 1983. There was, however, testimony implicating Parrish in the conspiracy. A law enforcement officer testified that Smith had told the officer that Parrish was a "cooker", or manufacturer, of the drugs. Wade testified that he made two trips to Georgia and saw Parrish both times. Wade testified that on the first trip, in February, he received a package from Parrish and brought it to New Orleans; the package later turned out to contain...