U.S. v. Rawle

• Decision Date: 24 May 1988
• Docket Number: No. 87-5545,87-5545
• Citation: 845 F.2d 1244
• Parties: 25 Fed. R. Evid. Serv. 689 UNITED STATES of America, Plaintiff-Appellee, v. James A. RAWLE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1244

845 F.2d 1244

25 Fed. R. Evid. Serv. 689

UNITED STATES of America, Plaintiff-Appellee, v. James A. RAWLE, Jr., Defendant-Appellant.

No. 87-5545.

United States Court of Appeals Fourth Circuit.

Argued March 7, 1988.

Decided May 3, 1988.

Rehearing and Rehearing En Banc Denied May 24, 1988.

Constance L. Rudnick (Gargiulo & Associates, Boston, Mass., on brief), for defendant-appellant.

John Robert Haley, Asst. U.S. Atty., Charleston, S.C. (Vinton D. Lide, U.S. Atty., Columbia, S.C. on brief), for plaintiff-appellee.

Before WIDENER, MURNAGHAN and WILKINSON, Circuit Judges.

MURNAGHAN, Circuit Judge:

On October 8, 1986, James Rawle, the defendant, was charged in a five-count indictment: 1) conspiracy to import marijuana; 2) conspiracy to possess marijuana with intent to deliver; 3) importation; 4) possession; and 5) violation of the Travel Act, 18 U.S.C. Sec. 1952. The government dismissed Counts One and Three.

At trial, over objections by the defense counsel, the government introduced testimony of two self-professed former drug dealers, John Ward and John Bedekovic. Both Ward and Bedekovic testified as to the defendant's prior bad acts as a transporter of drugs. The defendant argued that the testimony should have been excluded under Fed.R.Evid. 404(b) because it was being brought in for the purposes of portraying the defendant as an individual prone to commit the crimes charged. He also argued that even if the evidence is admissible under Rule 404(b), it should have been excluded because its probative value was outweighed by the prejudicial effect. He moved for a severance of the counts.

The United States District Court for the District of South Carolina ruled that the evidence was admissible with regard to all three of the remaining counts (Counts Two, Four, and Five). Off the record, the district judge offered to give a charge concerning the effect of "prior bad act evidence" at the time that the evidence was introduced. That request was declined by the defense counsel on the basis that he would later propose a stronger instruction than the one proposed by the court.

After a concession by the prosecutor following the charge conference, the district judge decided to exclude the evidence as to the conspiracy and possession counts. The defense counsel moved for a mistrial and/or severance of the counts. The district court denied both motions. The district judge did instruct the jury to disregard the "prior bad act evidence" with regard to Counts Two and Four.

On January 21, 1987, the defendant was convicted on all three counts.

I.

On November 11, 1983, three tractors with trailers arrived in Charleston, South Carolina at prearranged motels. The defendant owned two of the tractors and had picked up one of the trailers when it was purchased. ¹ Undercover Drug Enforcement Agents picked up the trailers, loaded them with marijuana, sealed the trailers with the same type of seals used in interstate commerce by the United States Customs Service, and returned the trailers to the motels where the drivers were staying. On November 13, 1983, the three tractor trailers, after having been loaded with marijuana and paper products in the rear of the trailer, were driven by the defendant's father, brother, and brother-in-law, who had spent the previous evening at the prearranged Charleston motels. They drove the tractor trailers from Charleston, South Carolina to Philadelphia, Pennsylvania and Middletown, New York. False bills of lading were utilized. The trailers were stopped and the drivers were arrested.

Most of the evidence against the defendant came from the testimony of Ward and Bedekovic. Ward admitted that his testimony and cooperation were motivated by a desire to reduce his twelve-year sentence from a federal district court in Pennsylvania. Bedekovic is also incarcerated pursuant to a federal drug conviction.

Both Ward and Bedekovic testified that in 1975, the defendant drove empty cars back to Texas which had been used to transport marijuana for Ward. They stated that Rawle received money or marijuana as payment for the services. They also testified that in 1977-78 the defendant drove the tractor trailers loaded with marijuana for them from New Orleans, Louisiana, to Pennsylvania. They acknowledged that the defendant was involved in transporting five to seven loads in the years 1978-79. Ward and Bedekovic testified that Rawle eventually relinquished those duties to his family while he concentrated on organizing the transportation of the marijuana.

Ward testified that the only contact he had with Rawle during the years 1981-83 was when he bought some "exotic" marijuana from Rawle. Ward also testified as to what Rawle had told him about the "Northern Light" deal. ² According to Ward, Rawle had said that his father, brother, and brother-in-law had been arrested and the trip had been "bad from the go" as the boat had been brought in by federal agents. Rawle allegedly told him that he and two others had been "riding up and down Route 95" looking for the trucks, which had been delayed because of the arrests. Rawle apparently had gone to Atlantic City to establish an alibi for his whereabouts that night, had received a phone call, and had driven the hour-plus to the Sheraton, and then went driving up and down Route 95 looking for the drugs. Ward testified that he had not participated in the "Northern Light" deal, but did expect to get some marijuana when it came in.

II.

Fed.R.Evid. 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." To fall within the scope of Rule 404(b), an act need not be criminal, so long as it tends to impugn a defendant's character. See, United States v. Terebecki, 692 F.2d 1345, 1348 n. 2 (11th Cir.1982). Under Rule 404(b), however, prior bad acts are admissible if they are (1) relevant to an issue other than character, ³ (2) necessary, ⁴ and (3) reliable. United States v. Greenwood, 796 F.2d 49, 53 (4th Cir.1986); United States v. Echeverri-Jaramillo, 777 F.2d 933, 936 (4th Cir.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1237, 89 L.Ed.2d 345 (1986); United States v. Hadaway, 681 F.2d 214, 217 (4th Cir.1982). The prosecution may introduce evidence of prior bad acts to show "proof of motive, opportunity, intent, or absence of mistake or accident." Rule 404(b). This list, however, is not exhaustive. United States v. Stockton, 788 F.2d 210, 219 n. 15 (4th Cir.1986),cert. denied, --- U.S. ----, 107 S.Ct. 147, 93 L.Ed.2d 89 (1986).

Even if the evidence is admissible under Rule 404(b), its probative value must be weighed against the danger of undue prejudice aroused by the evidence. United States v. King, 768 F.2d 586, 588 (4th Cir.1985); United States v. Johnson, 634 F.2d 735, 737 (4th Cir.1980), cert. denied, 451 U.S. 907, 101 S.Ct. 1974, 68 L.Ed.2d 295 (1981). The district court's decision to admit evidence pursuant to Rule 404(b) is within its discretion and such decision will not be disturbed unless it was arbitrary or irrational. Greenwood, 796 F.2d at 53.

The defendant first argues that the case should be remanded because the district court failed to state on the record the reasons for admitting the Rule 404(b) evidence. He cites United States v. Kendall, 766 F.2d 1426 (10th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986) to support his proposition. In Kendall, the Tenth Circuit held that, in order to admit evidence under Rule 404(b), the trial court must specifically identify the purpose for which such evidence is offered and a broad statement merely invoking or restating the rule will not suffice. Id. at 1436. The court explained that "[a] specific articulation of the relevant purpose and specific inferences to be drawn from each proffer of evidence of other acts will enable the trial court to more accurately make an informed decision and weigh the probative value of such evidence against the risks of prejudice specified in Rule 403." Id. at 1436-37.

In contrast, at least two circuits have held that on-the-record determination of the probative value of the proffered evidence is not necessary. United States v. Braithwaite, 709 F.2d 1450, 1455-56 (11th Cir.1983) (on-the-record finding need not be made if the evidence proffered under Rule 404(b) was not of a conviction but of an arrest); United States v. Gilmore, 730 F.2d 550, 554 (8th Cir.1984) (although explicit ruling on admissibility of evidence of prior wrong acts is preferable, ruling of admissibility based on off-the-record bench discussion carries with it implicit ruling that standards of admissibility have been met). While an explicit ruling may be preferable and may indeed aid this Court in reviewing the record, we find the Eighth and Eleventh Circuits' decisions to be more persuasive than that of the Tenth Circuit. Therefore, the trial court's failure specifically to identify the purpose for which the evidence is offered and admitted was not reversible error.

On the merits, we believe that the evidence was properly introduced to show knowledge, common scheme or plan. Both Bedekovic and Ward testified that Rawle used to drive tractors laden with marijuana but eventually relinquished those duties to his family while he organized the transportation of the marijuana. Bedekovic testified that trailers would be loaded by others while the drivers would concoct "alibis." Paper products were often placed in the back and false bills of lading were used. Therefore, there was sufficient similarity between these prior bad acts and the alleged acts of the defendant in the case at bar. In addition, the "prior bad acts" testimony was admissible and relevant for the purposes of showing a business enterprise, i.e., a continuous course of conduct, an essential element of the Travel Act. See United States v. Gallo, 782 F.2d 1191, 1194-95 (4th Cir.1986) ("the term 'business...