U.S. v. Shackleford

• Decision Date: 19 June 1984
• Docket Number: No. 82-3052,82-3052
• Citation: 738 F.2d 776
• Parties: 15 Fed. R. Evid. Serv. 1550 UNITED STATES of America, Plaintiff-Appellee, v. Alan SHACKLEFORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 776

738 F.2d 776

15 Fed. R. Evid. Serv. 1550

UNITED STATES of America, Plaintiff-Appellee, v. Alan SHACKLEFORD, Defendant-Appellant.

No. 82-3052.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 9, 1984.

Decided June 19, 1984.

Michael W. Sonnemaker, Sonnemaker, Sonnemaker & Vespa, Peoria, Ill., for plaintiff-appellee.

Mark D. Stuaan, Asst. U.S. Atty., Gerald D. Fines, U.S. Atty., Peoria, Ill., for defendant-appellant.

Before CUMMINGS, Chief Judge, and WOOD and COFFEY, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Defendant-appellant Alan Shackleford appeals his convictions for attempting to collect a debt by the use of extortionate means in violation of 18 U.S.C. Sec. 894 (1976) and for knowingly possessing unregistered explosives in violation of 26 U.S.C. Secs. 5861(d) and 5871 (1976). Defendant contends that the district court abused its discretion by admitting into evidence testimony concerning an allegedly similar instance of misconduct by defendant and by instructing the jury that it could consider the testimony relating to the prior conduct for any of the purposes listed in Rule 404(b) of the Federal Rules of Evidence. In addition, defendant maintains that the government failed to prove beyond a reasonable doubt that defendant possessed unregistered explosives and to establish a proper chain of custody for the admission of the pipe bomb explosive into evidence. For the reasons we explain below, we accept defendant's first assignment of error but reject the others.

I.

The government based its case principally on the testimony of Alan Eames. Eames testified that in 1977 defendant "fronted" hashish and cocaine to him while Eames was living in Danville, Illinois. As a result of this transaction, Eames incurred a debt of some $2,000, which was to be paid off as Eames sold the drugs. Eames moved to New Orleans, however, without paying for the drugs, and did not return to Illinois until 1980, when he settled in Peoria. About a month before he returned, Eames had received a telephone call from defendant asking about the debt, and was questioned again about the debt after his move back when he inadvertently encountered defendant at a bar in Pekin, Illinois. During their conversation there defendant told Eames to get some money together. Eames next spoke with defendant in November or December of 1981, when defendant called him and suggested that Eames sell some "C-3" plastic explosives that defendant had to pay off the debt. Then, in May, 1982, at the Gazebo bar in Peoria, Eames encountered defendant once more. This time defendant told Eames that he was working with some people out of Chicago who were concerned about the outstanding debt. Defendant told Eames he did not want to look bad and indicated that the debt should be paid off as soon as possible. Shortly thereafter, defendant telephoned Eames and told Eames he was lucky defendant had not sliced Eames' throat at the bar and that Eames' life was in danger if he failed to come up with the money.

A day or two after the telephone call, defendant visited Eames at his business, Furniture Technicians, in Peoria Heights, Illinois. Defendant said he needed $1,000 in the next couple of days and looked around the shop to see if he could find anything Eames could sell to satisfy the debt. Eames told defendant that the goods were all owned by other people. Defendant then asked Eames to come to his car where defendant showed him three objects defendant described as pipe bombs. Defendant then urged Eames to come up with some money very soon or he would blow the door off the shop.

The government also called Amie Longden, Eames' girlfriend, to testify. Longden stated that she spoke with defendant at a grocery store in Peoria on May 16, 1982. Defendant allegedly told her that Eames was going to "get it," and that he had almost "gotten it" in front of the Gazebo bar.

The government then introduced testimony showing that on May 27, 1982, a bomb exploded at Furniture Technicians during the early morning hours. Expert testimony revealed that the door was blown off by high explosives in connection with some copper pipe. The next day, May 28, 1982, defendant consented to a search of his residence by the police. During the search, one of the investigating officers, Robert Lucas, found a pipe bomb in defendant's bedroom closet. Lucas testified that he could not say for certain that government exhibits 8 and 10 (copper pipe and putty-like substance) were the same items he removed from the closet, although he stated they looked identical to those he removed. Lucas also testified that he gave the items he removed to officer Hurt of the Peoria Police Department and special agent Van Amburgh of the Bureau of Alcohol, Tobacco, and Firearms. Both of these men, who were also present at defendant's residence during the search, testified that government exhibits 8 and 10 were the items they had obtained from Lucas. Forensic analysis of the copper pipe (government exhibit 8) disclosed that it was similar to the fragments of pipe found at the site of the explosion. Tests performed on the putty-like substance (government exhibit 10) revealed that it contained an explosive material known as P.E.T.N.

The government also solicited, over defendant's objection, testimony from Timothy Davis. It is this testimony that necessarily provokes our reversal of defendant's conviction on the extortion charge. Davis testified that in August, 1981, he purchased $2,000 worth of cocaine from defendant on credit. Davis further stated that defendant later came over to his house with a wrench, seeking payment. This incident occurred nine months prior to the events charged in the extortion count of which defendant was found guilty.

The government's evidence was sharply contradicted by defendant. Defendant maintained that he never provided Eames with drugs, that Eames never owed him any drug money, and that he never threatened Eames. Defendant testified that he loaned Eames about $2,000 to help Eames pay off a bad debt, but that Eames paid all but about $500 of the loan shortly thereafter. Defendant admitted seeing Eames at the bar in Pekin, Illinois, but claimed they mainly talked about old times. Defendant did ask Eames about the $500 Eames still owed but made no threats. Defendant denied having any other conversations with Eames until he visited Eames' business in the middle of May. According to defendant, at that time he offered to trade off the $500 Eames owed him for some furniture cabinets. No deal was struck because Eames did not have the cabinets there that day.

As to the government's other evidence, defendant denied placing the pipe bomb in the closet in his house and having any knowledge it was there. Defendant said he believed it had been planted. Defendant also stated that he never had any drug dealings with Davis. He testified that Davis had purchased a car from him for which Davis had not yet paid him.

Defendant was convicted by a jury on October 6, 1982, on Counts I and IV of a four count indictment. Count I charged defendant with attempting to collect an extension of credit by use of extortionate methods, namely, the threat of using an explosive device, in violation of 18 U.S.C. Sec. 894 (1976). Count IV alleged that defendant possessed an unregistered firearm (explosive material) in violation of 26 U.S.C. Secs. 5861(d) and 5871 (1976). Defendant was sentenced to eight years imprisonment on Count I; the district court suspended the sentence on Count IV, although defendant was placed on five years probation, to commence upon termination of any parole granted in connection with the sentence for Count I. The jury found defendant not guilty on Counts II and III, which alleged actual use of an explosive device in violation of 18 U.S.C. Secs. 844(i) and 844(h)(1) (1976).

II.

A. Evidence of Defendant's Prior Misconduct.

Defendant contends that the district court abused its discretion by failing to exclude the testimony of Timothy Davis regarding the allegedly similar instance of extortionate misconduct by defendant involving the wrench in 1981. Under Rule 404(b), ¹ evidence of other acts by the defendant is not admissible to show the defendant's bad character or that the defendant, having committed another similar act, probably committed the crime charged. Evidence of extrinsic conduct is admissible under the rule, however, if it is directed toward something other than propensity, such as motive, opportunity, intent, preparation, knowledge, identity, or absence of mistake or accident. But even if the evidence falls within one of these areas of proof, Rule 403 compels its exclusion "if its probative value is substantially outweighed by the danger of unfair prejudice." Fed.R.Evid. 403. Our decisions indicate that, under the dictates of Rules 404(b) and 403, admission of evidence of prior or subsequent acts will be approved if (1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue (i.e., such that "the consequential fact may be inferred from the proffered evidence," 2 J. Weinstein & M. Berger, Weinstein's Evidence p 404 at 404-49 (1982)), (3) the evidence is clear and convincing, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. E.g., United States v. Kane, 726 F.2d 344, 348 (7th Cir.1984); United States v. Wormick, 709 F.2d 454, 459 (7th Cir.1983); see also United States v. DeJohn, 638 F.2d 1048, 1052 n. 4 (7th Cir.1981) (slightly different concerns apply when "opportunity" is in issue). Our threshold inquiry, therefore, is to determine whether the evidence of defendant's prior dealings with Davis was directed toward establishing a matter in issue other than defendant's propensity to threaten people who...