U.S. v. Sigal, 77-2073

• Decision Date: 30 March 1978
• Docket Number: No. 77-2073,77-2073
• Citation: 572 F.2d 1320
• Parties: 3 Fed. R. Evid. Serv. 597 UNITED STATES of America, Appellee, v. Jack SIGAL, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1320

572 F.2d 1320

3 Fed. R. Evid. Serv. 597

UNITED STATES of America, Appellee, v. Jack SIGAL, Appellant.

No. 77-2073.

United States Court of Appeals, Ninth Circuit.

March 30, 1978.

Donald M. Re, Los Angeles, Cal., Maurice Harwick, Beverly Hills, Cal., for appellant.

Juan P. Robertson, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Appeal from the United States District Court for the Central District of California.

Before ELY, TRASK and ANDERSON, Circuit Judges.

ELY, Circuit Judge:

Appellant Jack Sigal was charged, in a one-count indictment, along with co-conspirators Mayer and Baker, with conspiracy illegally to import marijuana and possess the same with intent to distribute it. 21 U.S.C. §§ 846 and 963. The alleged conspiracy involved a scheme by Sigal and Baker to transport marijuana from Mexico into the United States in small private aircraft. According to evidence presented at their jury trial, Sigal and Baker were the architects of the scheme and solicited Mayer to pilot the aircraft to be used in the smuggling enterprise. Mayer in turn sought to enlist the aid of other pilots in the venture. Through a former fellow employee of Mayer's, Mayer was placed in contact with another pilot with a reputed interest in such an operation. Unknown to Mayer, this pilot, known as "Mike," was, in reality, Special Agent Michael Moren of the Drug Enforcement Administration (D.E.A.). After agent Moren had become firmly ensconced in the operation and the conspiracy had progressed to an advanced stage, D.E.A. agents arrested Mayer. After his arrest, Mayer agreed to cooperate with the D.E.A. agents and furnish them with a complete statement. Baker and Sigal were subsequently arrested. Mayer pleaded guilty to the charges in the indictment and later testified for the prosecution in the trial of Baker and Sigal. Baker and Sigal were tried in September, 1976, and found guilty of all charges in the indictment.

Sigal now appeals from his conviction of conspiracy. He urges three grounds for reversal: (1) violation of his fifth amendment right against self-incrimination because of improper references by the prosecutor during closing argument to his failure to testify, (2) admission into evidence of a certified copy of a prior, 1972 indictment against Sigal and a certified copy of his conviction in 1973 on one of the two narcotics offenses charged in that indictment, and (3) insufficiency of the evidence. We affirm.

Sigal argues that the prosecutor made two improper remarks during closing argument which constituted comments on Sigal's failure to testify. ¹ The first comment referred to the defendants' failure to admit their guilt and plead prior to trial. It does not refer to Sigal's failure to testify directly, nor to a pre-trial assertion of his fifth amendment right to silence. Rather, it was made as part of the prosecutor's effort to bolster the credibility of the key prosecution witness, Mayer, a co-conspirator who had earlier pleaded guilty. ² Read in context, "the comments were not of such character that the jury would naturally and necessarily take them to be comments on the failure of the accused to testify." United States v. Cornfeld, 563 F.2d 967, 971 (9th Cir. 1977). See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

As to the second comment, the Government argues that, at most, it was a "slip of the tongue." In the immediately preceding portion of his closing argument, the prosecutor was attempting to point out the areas of the prosecution's case that the defense attorneys had avoided in their summation, ostensibly because of the unfavorable proof there. ³ Accordingly, the Government urges that the reference to "defendant" was inadvertent and unintended, and that the prosecutor really meant "defense attorneys" instead. While this construction appears to be both logical and consistent when viewed in hindsight, the statement, taken at its objective face value, as we must assume the jury took it, constituted a comment on the failure of the defendants to testify, and thus was error of constitutional dimension. Automatic reversal of the conviction does not result, however, if the error can be said to have been harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The appropriate test was outlined in Anderson v. Nelson, 390 U.S. 523, 524, 88 S.Ct. 1133, 1134, 20 L.Ed.2d 81 (1968), wherein the Court stated that such a comment was reversible error when "such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis of conviction, and where there is evidence that could have supported acquittal." Here, the comment was not extensive, there was minimal stress on any inference of guilt to be drawn by the jury from the silence, and there was no substantial evidence which supported an acquittal. United States v. Parker, 549 F.2d 1217, 1221 (9th Cir.), cert. denied, 430 U.S. 971, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977). The error was harmless.

Sigal also contends that the introduction into evidence of a certified copy of a 1972 indictment returned against him charging violations of 21 U.S.C. § 846 (the same charge as that involved here), and 21 U.S.C. § 841(a)(1) (possession of a controlled substance with intent to distribute), and a copy of the judgment of conviction rendered in 1973 on the second count, was improper. Fed.R.Evid. 404(b) provides that evidence of other crimes, while not admissible to prove criminal disposition, is admissible to prove motive, intent, knowledge, and other similar elements. In United States v. Rocha, 553 F.2d 615, 616 (9th Cir. 1977), we stated that "(t)he rule represents one of inclusion which admits evidence of other crimes or acts relevant to an issue in the trial, except where it tends to prove only criminal disposition." (emphasis in original). Here, we cannot say that the evidence of prior criminal acts tended to prove only criminal disposition. It was also highly probative as to knowledge and intent, since much of Sigal's defense centered around the assertion that he was unaware of the conspiracy charged and was involved only by innocent proximity to the wrongdoers.

Sigal argues that even if the evidence were properly admissible under Rule 404, it nonetheless should have been excluded because of the possibility of unfair prejudice. Fed.R.Evid. 403 provides that evidence, even if relevant, may be excluded if its probative value is outweighed by the danger of unfair prejudice to the defendant. The determination of whether evidence should be admitted under this section is largely a matter of discretion for the trial judge. United States v. Rocha, supra. We have already noted that the evidence was highly probative. Moreover, the trial judge gave a cautionary instruction immediately after the introduction of the evidence, an instruction which properly delineated the purpose for which the jury could consider the evidence and minimized any intolerable prejudice to the appellant. In United States v. Rocha, supra, we held that evidence of a prior arrest as part of the prosecution's case in chief was proper and that no abuse of the trial judge's discretion had been shown. See United States v. Castro-Castro, 464 F.2d 336 (9th Cir. 1972), cert. denied, 410 U.S. 916, 93 S.Ct. 971, 35 L.Ed.2d 278 (1973); United States v. Brown, 562 F.2d 1144 (9th Cir. 1977). There was no abuse of discretion here. The admission of the challenged evidence was proper.

Sigal's last contention is that there was insufficient evidence upon which to base a conviction. He asserts that the sole evidence upon...