U.S. v. Segovia

• Decision Date: 09 June 1978
• Docket Number: No. 77-3686,77-3686
• Parties: 3 Fed. R. Evid. Serv. 401 UNITED STATES of America, Appellee, v. Michael SEGOVIA, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 251

576 F.2d 251

3 Fed. R. Evid. Serv. 401

UNITED STATES of America, Appellee, v. Michael SEGOVIA, Appellant.

No. 77-3686.

United States Court of Appeals, Ninth Circuit.

June 9, 1978.

James A. Shiner, of Hirsh & Shiner, Tucson, Ariz., for appellant.

John G. Hawkins, Asst. U. S. Atty., Tucson, Ariz., for appellee.

Appeal from the United States District Court for the District of Arizona.

Before CHOY and ANDERSON, Circuit Judges, and PALMIERI ^*, District Judge.

PALMIERI, District Judge.

On September 16, 1977, following a two-day jury trial, appellant Segovia was found guilty on four counts of an indictment charging him with conspiracy to distribute, possession with intent to distribute, and distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Segovia did not seriously dispute that he had participated in the illegal transactions; rather, he relied upon a defense of entrapment. Discussion of the two rather simple issues presented by this appeal does not require any preliminary recitation of the evidence developed at trial.

Appellant first cites as improper the District Court's allowance over timely objection of certain testimony by government witness Petropolous on direct examination. Agent Petropolous related a telephone conversation in which appellant told him that a scheduled meeting would be delayed because appellant had been "tied up" in arranging for a purchase of several pounds of marijuana by a third party. The Court admitted this testimony as tending to rebut appellant's defense of entrapment. Under Rule 404(b) of the Federal Rules of Evidence evidence of "other crimes, wrongs, or acts" is admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Proof of prior illegal conduct may be relevant to the issue of a defendant's predisposition to commit a crime. In this Circuit, "where entrapment is in issue evidence of prior crimes is not relevant unless it tends to prove that defendant was engaged in illegal operations in some way similar to those charged in the indictment." De Jong v. United States, 381 F.2d 725, 726 (9th Cir. 1967). The question thus is whether appellant's involvement in the distribution of marijuana is sufficiently similar to the acts charged in the indictment to be relevant to the issue of appellant's predisposition to commit those acts.

This Court has permitted the introduction of evidence of a criminal defendant's possession of cocaine to prove intent or knowledge in regard to heroin charges and vice versa. United States v. Marshall, 532 F.2d 1279, 1283-84 (9th Cir. 1976); United States v. Marshall, 526 F.2d 1349, 1360-61 (9th Cir.), cert. denied, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 376 (1976). Appellant stresses the differences between cocaine and marijuana, pointing to the differentiation in their legislative treatment and to the findings of the National Commission on Marijuana and Drug Abuse. While these are differences which few may dispute or ignore in other contexts, their relevance to the present inquiry is minimal. This Court's statement, albeit by way of dictum, in the recent case of United States v. Batts, 573 F.2d 599 (9th Cir., 1978), is instructive:

Merely because the drugs involved are different does not strip this conduct of its evidentiary value. The past acts of negotiation leading to the distribution of one drug is (are) relevant to show knowledge, motive and intent on the part of appellant to partake in the attempt here to import commercial quantities of yet another drug for the purposes of distribution. The relevant factor is the type of activity undertaken, not the identity of the drugs. 573 F.2d at 603.

When attention is properly directed to the activities sought to be introduced into evidence, the probative value of appellant's willingness to arrange for a sale of a significant quantity of marijuana in the context of his entrapment defense in a trial for similar activities involving cocaine cannot be disputed. The District Court was correct in admitting the testimony, and no abuse...