U.S. v. Shepherd, 82-1708

• Decision Date: 18 July 1984
• Docket Number: No. 82-1708,82-1708
• Citation: 739 F.2d 510
• Parties: 16 Fed. R. Evid. Serv. 389 UNITED STATES of America, Plaintiff-Appellee, v. Arthur Eugene SHEPHERD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 510

739 F.2d 510

16 Fed. R. Evid. Serv. 389

UNITED STATES of America, Plaintiff-Appellee, v. Arthur Eugene SHEPHERD, Defendant-Appellant.

No. 82-1708.

United States Court of Appeals Tenth Circuit.

July 18, 1984.

Robert S. Berger, Denver, Colo., for defendant-appellant.

Jim J. Marquez, U.S. Atty., D. Kan., Topeka, Kan., Linda M. Betzer and Edward D. Holmes, Attys., U.S. Dept. of Justice, Kansas City, Mo., for plaintiff-appellee.

Before SETH, Chief Judge, and LOGAN and SEYMOUR, Circuit Judges.

LOGAN, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

Arthur Eugene Shepherd appeals from his convictions for conspiracy to transport an explosive in interstate commerce, a violation of 18 U.S.C. Sec. 371, and transportation of an explosive in interstate commerce, a violation of 18 U.S.C. Secs. 844(d) and 2.

The government built its case against defendant on the testimony of Michael Ruffalo, a federally protected witness. Ruffalo testified to the following facts: Carl Civella, a friend of defendant's, instructed defendant and Ruffalo to "throw a scare" into Jack Anderson, the owner of the Red Apple, a private club in Kansas City, Kansas. Civella was angry because Anderson had stranded three women, all of whom worked at the Red Apple, in Las Vegas. One of those women was Antoinette LanFranca, who was dating Civella at the time. Her mother was living with defendant. Civella said he sent LanFranca five hundred dollars in Las Vegas so she could return to Kansas City. After rejecting other methods of frightening Anderson, defendant and Ruffalo made a dynamite bomb in Missouri and took it to Kansas, where they assembled it and used it to blow up Anderson's car.

Ruffalo then testified that on three other occasions he and defendant had planted dynamite bombs, all of which failed to explode. Ruffalo also testified that defendant got the dynamite from Charlie Benedict of Hermitage, Missouri.

Antoinette LanFranca testified that she had been stranded in Las Vegas but that she blamed it on one of Anderson's employees, not on Anderson. She testified that someone she did not know gave her four or five hundred dollars for her return to Kansas City. Jack Anderson testified that he had no reason to think defendant was responsible for the destruction of his car. The parties stipulated that Charlie Benedict would testify that he had never known or had any contact with Ruffalo, that he met defendant once through a friend, Leonard Giaramita, and that he had never sold or given dynamite to defendant.

The government produced evidence that the explosive used to blow up Anderson's car was probably not "nitroglycerin" dynamite, which is the most common kind. It produced evidence that the dynamite used in two of the other bombings to which Ruffalo testified was nitrostarch dynamite (which apparently does not contain nitroglycerin) that could be traced to the manufacturer, the date, and even the workshift at which it was made, which was the same as that sold to Benedict by a hardware store. The government produced other evidence that tended to corroborate parts of Ruffalo's testimony. However, the only other evidence that mentioned defendant was (1) the testimony of defendant's ex-wife that defendant was familiar with dynamite and had kept some on hand while they were married (apparently the nitroglycerin type); (2) the evidence of the generally close personal relationship between defendant, Ruffalo, and Civella; and (3) the record of calls made from the phone at Leonard Giaramita's residence showing one phone call from that residence to Benedict's phone on January 23, 1976, and another to defendant's phone January 26, 1976. (The bombing in the instant case was May 22, 1978; the other bombings Ruffalo testified to occurred September 18, 1976, December 26, 1976, and June 6, 1981.) Thus, essentially none of the evidence, except Ruffalo's testimony, ties defendant to any of the bombings.

I

Defendant argues that the trial court erred in allowing Ruffalo to testify that defendant and Ruffalo had been involved in the three attempted bombings. The trial court admitted the evidence under Fed.R.Evid. 404(b), which provides:

"Evidence 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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

In short, under Rule 404(b) evidence of prior criminal acts is admissible if it is relevant to something material other than criminal propensity. The Advisory Committee Note to Rule 404(b) states:

"No mechanical solution [to the issue of admissibility of extrinsic offense evidence] is offered. The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other facts appropriate for making a decision of this kind under Rule 403."

Thus, the courts must balance probative value against prejudice to the defendant under Rule 404(b), as well as under Rule 403, upon which defendant also relies.

The government's principal argument is that Ruffalo's testimony about the prior criminal acts was relevant to prove the identity of the person who bombed Anderson's car because the similarity of the acts suggests a common perpetrator. If we could take as fact that nitrostarch dynamite, an apparently rare type, was used in the bombing charged against defendant, and if we could take as fact that defendant was involved in the other bombings in which nitrostarch dynamite was used, the evidence of the other bombings would be relevant and admissible to show identity, "signature," or modus operandi. See, e.g., United States v. Mahar, 519 F.2d 1272 (6th Cir.), cert. denied, 423 U.S. 1020, 96 S.Ct. 458, 46 L.Ed.2d 393 (1975), in which an accomplice linked the defendant to the robbery charged, other witnesses linked the defendant to the previous robberies, and the modus operandi suggested a common perpetrator. See also United States v. Herbst, 565 F.2d 638 (10th Cir.1977).

This Court has affirmed convictions based upon uncorroborated accomplice testimony. E.g., United States v. Webb, 466 F.2d 190 (10th Cir.1972), cert. denied, 414 U.S. 1012, 94 S.Ct. 378, 38 L.Ed.2d 250 (1973); United States v. Birmingham, 447 F.2d 1313 (10th Cir.1971). However, we have been sufficiently concerned in such cases that we have found plain error requiring reversal if the trial court failed to give a jury instruction that the testimony of accomplices must be carefully scrutinized weighed with great care and received with caution. United States v. Hill, 627 F.2d 1052 (10th Cir.1980); United States v. Owens, 460 F.2d 268 (10th Cir.1972).

This Court has approved allowing an accomplice to give uncorroborated testimony about prior crimes in which the accomplice and the defendant were allegedly involved, if the testimony otherwise meets the requirements of Rule 404(b). E.g., United States v. Parnell, 581 F.2d 1374, 1383-84 (10th Cir.1978), cert. denied sub nom. Cox v. United States, 439 U.S. 1076, 99 S.Ct. 852, 59 L.Ed.2d 44 (1979); United States v. Waldron, 568 F.2d 185, 187 (10th Cir.1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978). However, the instant case is the only one we have seen in which the prosecution depended entirely upon the uncorroborated testimony of an accomplice to prove defendant's involvement in the charged crime and then attempted to utilize the uncorroborated testimony of the same accomplice to show defendant's involvement in prior crimes.

The key question in the case before us, of course, is whether defendant was a participant in the crime. If the jury believes Ruffalo's testimony that he was, then the testimony about prior crimes is unnecessary. If the testimony of the prior crimes is necessary in order to bolster Ruffalo's credibility about defendant's involvement in the crime charged, we face the situation in which Ruffalo's credibility is enhanced by his own testimony. The government argues that the proof of defendant's prior similar acts (through Ruffalo's testimony) substantially corroborates Ruffalo's testimony that defendant was an accomplice in the instant crime. We have problems with this contention.

The government obviously thought that the evidence of the prior crimes was necessary, or at least desirable; it took up approximately half of the trial time with that evidence. On appeal the government argues that it needed to corroborate Ruffalo's testimony because he was a three-time convicted felon and a paid government informant who engaged in illegal activities at the same time he was taking the government's money. Brief of Appellee at 19. We are inclined to agree with the government that Ruffalo's testimony about the prior crimes and the government's evidence corroborating many of the details of the testimony enhanced Ruffalo's believability to the jury. A jury acquitted Carl Civella the week before in a separate trial on the same charge in which we presume such evidence could not be presented. A jury acquitted defendant Shepherd a short time earlier in an arson case built on Ruffalo's testimony as accomplice. The instant case apparently was difficult for the jury. During its deliberations it sent a note to the trial court stating, "We need instruction on a deadlocked jury." The jury returned a conviction only after the trial court gave it a modified Allen charge. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

Evidence of prior criminal acts is almost always prejudicial to the...