U.S. v. Pollard

• Decision Date: 10 December 1985
• Docket Number: No. 84-5976,84-5976
• Citation: 778 F.2d 1177
• Parties: 19 Fed. R. Evid. Serv. 593 UNITED STATES of America, Plaintiff-Appellee, v. Sharon POLLARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1177

778 F.2d 1177

19 Fed. R. Evid. Serv. 593

UNITED STATES of America, Plaintiff-Appellee, v. Sharon POLLARD, Defendant-Appellant.

No. 84-5976.

United States Court of Appeals, Sixth Circuit.

Submitted Oct. 23, 1985.

Decided Dec. 10, 1985.

Charles P. Dupree, Chattanooga, Tenn., Court Appointed, for defendant-appellant.

John W. Gill, Jr., U.S. Atty., Chattanooga, Tenn., John MacCoon, Asst. U.S. Atty., William Sonnenburg, for plaintiff-appellee.

Before ENGEL and KENNEDY, Circuit Judges, and COOK, ^* District Judge.

CORNELIA G. KENNEDY, Circuit Judge.

Defendant, Sharon Pollard, appeals from her convictions under 7 U.S.C. Sec. 2024(b) ¹ for two counts of unlawfully purchasing food stamps. During the 1981-82 winter, the Department of Agriculture and local law enforcement officials conducted a joint undercover investigation to curtail the illegal trafficking of food stamps in the Chattanooga, Tennessee area. As part of the investigation, undercover agents offered known dealers a ten percent commission for introductory sales that the dealers arranged to new customers. Under this arrangement, Thad Lewis, a known dealer, introduced two undercover agents, Special Agent Billy Brown of the Inspector General's Office, United States Department of Agriculture, and Officer Eddie Cooper of the Chattanooga Police Department, to the defendant.

On February 3, 1982, Lewis arranged a transaction in which defendant purchased $1,000 in food stamps for $500 from Brown in Lewis' apartment. During the transaction, defendant made arrangements to buy more food stamps the following day. The next day, February 4, 1982, the agents sold defendant $850 worth of food stamps for $425. This sale also occurred in Lewis' apartment. Again defendant made arrangements for another purchase that would occur that evening. When defendant was not in the building when the agents arrived, the agents left the stamps with Lewis, as defendant had instructed the agents to do if she was not there. On February 5, 1982, defendant called Special Agent Brown to ask for a ten percent commission if she purchased food stamps for other people. Defendant requested a commission on all sales to her and not merely on introductory sales to new customers. Brown recorded the telephone conversation. Defendant indicated that she had a line of customers ready to buy. After Special Agent Brown refused defendant's request for a blanket ten percent bonus, defendant called Officer Cooper to make the same request. Cooper also recorded the phone conversation.

Defendant filed a motion in limine objecting to the admission of the tape recordings that took place on February 5, 1982. The District Court, over defendant's continuing objection, ruled that the conversations were admissible under Fed.R.Evid. 404(b) as evidence of defendant's state of mind during the charged offenses of February 3 and 4, 1982. After the government's case in chief, and again after her defense, defendant moved for a directed verdict arguing that the prosecution had failed to prove that defendant made the purchases knowing that she was violating a law or regulation. The District Court denied both motions. The jury returned guilty verdicts on both counts. The District Court denied defendant's motion for a new trial and sentenced defendant to one year on the first count and two years probation on the second count, assessed a $500 fine on each count, and ordered $925 restitution. At sentencing, the government acknowledged that defendant was pregnant and was expecting a baby on approximately January 25, 1985 and requested that defendant remain on bond until four months after delivery. The District Court ordered defendant to remain on bond until May 24, 1985. Upon the prosecution's motion and under the Bail Reform Act of 1984, 18 U.S.C. Sec. 3143, the District Court denied bail pending appeal concluding that defendant's appeal did not raise a substantial question of law. This Court later denied defendant's motion for a stay of judgment pending appeal and defendant's motion for reconsideration.

Defendant raises three issues on appeal: (1) Whether the District Court erred in admitting into evidence tape recordings of conversations about subsequent activity pursuant to Fed.R.Evid. 404(b); (2) Whether the District Court erred in denying defendant's motion for a directed verdict because the prosecution failed to prove that defendant knew her acts were illegal at the time she committed them; and (3) Whether the Bail Reform Act of 1984, 18 U.S.C. Sec. 3143(b)(2), unconstitutionally violates the due process clause. For the reasons set forth below, we affirm the defendant's convictions.

I.

Defendant argues that the District Court improperly admitted tape recorded conversations of telephone conversations that occurred on February 5, 1982 between defendant and Special Agent Brown and defendant and Officer Cooper. The District Court ruled that the evidence was admissible under Fed.R.Evid. 404(b) ² as evidence of defendant's intent, knowledge, or state of mind. Defendant contends that Fed.R.Evid. 403 ³ required exclusion of the evidence because the prejudicial effects far outweighed any probative value.

In United States v. Holloway, 740 F.2d 1373, 1377 (6th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 440, 83 L.Ed.2d 366 (1984), this Court summarized the law regarding the admissibility of evidence under Fed.R.Evid. 404(b). If evidence falls within one of the exceptions of 404(b), a district court may admit the evidence if the evidence's probative value outweighs its prejudicial impact. This Court reviews a district judge's balancing of prejudicial impact and probative value under Fed.R.Evid. 403 in a Fed.R.Evid. 404(b) context under an abuse of discretion standard. Id. In reviewing a district court's ruling on a Fed.R.Evid. 403 objection, this Court "look[s] at the evidence in a light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect." Id. at 1378, citing United States v. Brady, 595 F.2d 359, 361 (6th Cir.), cert. denied, 444 U.S. 862, 100 S.Ct. 129, 62 L.Ed.2d 84 (1979). Furthermore, a district court should exclude evidence under Fed.R.Evid. 403 "only where the probative value of the relevant evidence is substantially outweighed by the danger of unfair prejudice." United States v. Hans, 684 F.2d 343, 346 (6th Cir.1982) (emphasis in original).

In Liparota v. United States, --- U.S. ----, 105 S.Ct. 2084, 2092, 85 L.Ed.2d 434 (1985) (footnote omitted), the Supreme Court held that "in a prosecution for violation of Sec. 2024(b), the Government must prove that the defendant knew that his acquisition or possession of food stamps was in a manner unauthorized by statute or regulations." See also United States v. Pollard, 724 F.2d 1438, 1439 (6th Cir.1984) (District Court erred in failing to give requested instruction that the jury could convict defendant only upon a finding that she knew that her acquisition of food stamps was illegal). Consequently, the issue of defendant's intent or knowledge was central to the case. Accordingly, the government sought to introduce tape recordings of two phone conversations which defendant had with undercover agents the day after the last charged transaction. In United States v. Lambinus, 747 F.2d 592, 597 (10th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985), another food stamp case, the Tenth Circuit held that the district court did not abuse its discretion in admitting the tape and transcript of a phone conversation that occurred between appellant and an undercover agent as evidence of appellant's intent and knowledge of the illegal nature of his acts. In this case, the government argues that the tapes were highly probative of defendant's knowledge or intent regarding the charged offenses. Special Agent Brown and Officer Cooper both testified that in the conversations defendant pressed for a blanket ten percent commission on all sales to her. The District Court's limiting instruction greatly reduced the prejudicial impact of the evidence. We hold that the District Court did not abuse its discretion in admitting into evidence the February 5, 1982 taped conversations. While not unduly prejudicial, the tapes were probative of defendant's knowledge or intent.

II.

At the conclusion of the prosecution's case in chief and again at the conclusion of her defense, defendant moved for directed verdicts. Such motions, technically motions for judgment of acquittal under Fed.R.Crim.P. 29, "raise[ ] the question of whether the evidence is sufficient to support a verdict." United States v. Cox, 593 F.2d 46, 48 (6th Cir.1979). Defendant argues that the District Court erred in failing to direct a verdict of acquittal for defendant because the government failed to prove that she knew her actions were illegal. When reviewing a challenge to the sufficiency of the evidence supporting a criminal conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 reh'g denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979) (emphasis in original). See also United States v. Strong, 702 F.2d 97, 99 (6th Cir.1983). This standard applies regardless whether direct or circumstantial evidence supports the conviction. United States v. Meyers, 646 F.2d 1142, 1143 (6th Cir.1981). In addition, this Court must draw reasonable inferences from the evidence in the government's favor. Jackson v. Virginia, 443 U.S., at 319, 99 S.Ct. at 2789. See also United States v. Stull, 743 F.2d 439, 442 (6th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1779, 84 L.Ed.2d 838, reh'g denied, --- U.S. ----, 105 S.Ct. 2351, 85 L.Ed.2d 866 (1985).

In Liparota v. United States, supra, the Supreme Court held that ...