U.S. v. Tom, 80-1229

• Decision Date: 12 March 1981
• Docket Number: No. 80-1229,80-1229
• Parties: 7 Fed. R. Evid. Serv. 1674 UNITED STATES of America, Plaintiff-Appellee, v. Douglas Chew Kam TOM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1037

640 F.2d 1037

7 Fed. R. Evid. Serv. 1674

UNITED STATES of America, Plaintiff-Appellee, v. Douglas Chew Kam TOM, Defendant-Appellant.

No. 80-1229.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 8, 1980.

Decided March 12, 1981.

James Blanchfield, Blanchfield & Chikamoto, Honolulu, Hawaii, on briefs, for defendant-appellant.

Elliott Enoki, Asst. U. S. Atty., Honolulu, Hawaii, on brief, for plaintiff-appellee.

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

Before WRIGHT, CHOY, and ANDERSON, Circuit Judges.

CHOY, Circuit Judge:

The defendant appeals from his conviction for distribution of cocaine, alleging error in the admission at trial of evidence of his prior drug conviction and in the form of the instruction to the jury on entrapment. We affirm the conviction.

I. Facts

On two separate occasions in 1979, the defendant, Douglas Chew Kam Tom ("Tom"), sold quarter-ounce portions of cocaine to an undercover agent. Tom was convicted by jury of two counts of distributing cocaine. Tom admits that the cocaine sales took place, but claims that he was a "hapless clutz" entrapped by a Drug Enforcement Administration ("DEA") agent and an informer. Thus the major issue at trial was whether Tom was entrapped by the DEA, or whether he was predisposed to commit the offense of distributing cocaine. ¹

II. The Prior Conviction Testimony

Tom's long-time girlfriend, Ms. Rogers, testified in support of the defense theory that Tom was not predisposed to sell cocaine. Ms. Rogers testified under direct examination that she had never known Tom to deal in drugs. The prosecution then elicited, over objection, Rogers' admission that she was aware of Tom's prior drug conviction. ²

The relevant defense testimony was:

Q. Now you have lived with Doug for quite some time. Have you found any drugs at home as a result drugs that belonged to Doug?

A. No.

Q. Do you know if Doug actually deals with drugs?

A. No, he doesn't.

Q. You have never known him to deal in drugs?

A. No.

Q. You ever heard you ever heard you ever hear Doug talking about making money from drugs.

A. No.

The prosecution then elicited the following on cross-examination:

Q. So, your testimony isn't that he didn't deal in drugs. It's just that you didn't see him deal in drugs, is that it?

A. I wasn't aware that he ever did, except for that one conviction.

Q. Well, you testified you weren't aware of him dealing at all, isn't that correct?

A. Well

Q. Since your testimony didn't you mean that you didn't see him dealing in drugs? Is that what you meant?

A. I didn't see him dealing in drugs, and I wasn't aware that he did after that time. It was so long ago. We weren't together then I mean

The trial judge ruled that the prior conviction was too old to be relevant for any purpose other than impeachment. The judge acknowledged the prejudicial effect of allowing the questions regarding the prior conviction, but felt compelled to allow the questioning in light of Rogers' testimony indicating that she did not know Tom to "deal in drugs."

Tom argues that the prior conviction had little or no relevance and, therefore, under Rule 403 of the Federal Rules of Evidence the trial judge should have refused to allow cross-examination on that subject. Rule 403 provides that "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." The trial court's decision to admit evidence under Rule 403 is subject to reversal only if it constitutes an abuse of discretion. United States v. Watkins, 600 F.2d 201 (9th Cir.) cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979).

Tom claims that the trial judge abused his discretion in admitting the challenged evidence because that evidence did not directly impeach Rogers' testimony, and therefore it had little or no probative value. In United States v. Bosley, 615 F.2d 1274 (9th Cir. 1980), the defendant was asked whether he delivered cocaine during the course of a particular alleged conspiracy. He responded that he "delivered no cocaine." The prosecution then introduced evidence to show that the defendant had, on an unrelated occasion, delivered cocaine to a certain individual. This court reversed, finding, among other things, that the defendant had not meant to say "that he has never, ever, delivered cocaine to anybody" but rather that he delivered no cocaine in the course of the alleged conspiracy. Id. at n.2. Thus the impeaching evidence was improper.

The defendant attempts to analogize the facts in Bosley to those of the instant case. Here witness Rogers never directly denied knowledge of any prior conviction of Tom's, and yet the prosecution was allowed to cross-examine her regarding the conviction. This differs from the impeaching evidence in Bosley, however, because here the questions regarding the prior conviction did tend to impeach the witness.

Ms. Rogers testified that she had known Tom for several years and that she had never known him to deal in drugs. That she knew of Tom's prior drug conviction does tend to cast doubt upon the truthfulness of her testimony. The impeaching evidence did indicate that Rogers was not presenting an accurate picture of her knowledge of Tom's drug involvement; thus it was relevant to credibility.

The testimony was, as the trial judge recognized, highly prejudicial. This is especially true given defendant's reliance on the defense of entrapment. He needed to show doubt as to whether he was predisposed to drug dealing. The jury may well have improperly inferred predisposition from the past conviction. ³ The trial court went through the Rule 403 balancing analysis and decided that the impeaching testimony was too pertinent to credibility to be excluded. ⁴ This balancing of probative value against prejudice is committed to the trial court. United States v. Watkins, supra, at 204. It cannot be said that an abuse of discretion occurred here.

The trial judge attempted to limit the prejudicial effect of the testimony by carefully instructing the jury to ignore the prior conviction when considering the predisposition issue. Rogers was a crucial defense witness and it was important that the jury fully evaluate her credibility. Given these facts, the trial court's decision to admit the prejudicial but probative evidence of Tom's prior conviction did not constitute an abuse of discretion.

III. The Jury Instruction on Entrapment

The trial judge instructed the jury on the entrapment issue as follows:

The defendant asserts that he was a victim of entrapment as to the offense charged in the indictment. Where a person has no previous intent or purpose to violate the law, but is induced and persuaded by law enforcement officers or their agents to commit a crime, he is the victim of entrapment, and the law, as a matter of policy, forbids his conviction in such a case.

On the other hand, where a person already has the willingness and the readiness to break the law, the mere fact that government agents provide what appears to be a favorable opportunity is not entrapment. Inducement by law enforcement officials may take many forms, including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward or pleas based on need, sympathy, or friendship. A solicitation, request or approach by law enforcement officers to engage in criminal activity standing alone is not an inducement. Law enforcement officials are not precluded from utilizing artifice, stealth, and stratagem, such as the use of decoys and undercover agents in order to apprehend persons engaged in criminal activities, provided that they merely afford opportunities or facilities for the commission of the offense by one disposed or ready to commit it.

If you find evidence from the evidence in this case that the defendant was induced to commit the offense charged, you must go on to consider whether or not the defendant was predisposed to commit the offense that is, whether he was ready and willing to commit crimes, such as those alleged in the indictment whenever an opportunity was afforded.

In determining whether the defendant has a predisposition to commit the crime charged, you need not find that he was involved in any prior offenses or criminal conduct. If you find beyond a reasonable doubt that the defendant was predisposed to commit such an offense, then you should find that the defendant was not a victim of entrapment. However, if the evidence in the case leaves you with a reasonable doubt whether the defendant was predisposed to commit the offense, then you must find him not guilty.

This instruction followed an extended in-chambers discussion as to its form. Defense counsel expressed his opinion that the instruction should be kept short and simple to avoid confusion of the jury. He did not, however, make any specific objection to the content of the instruction, as required by Rule 30 of the Federal Rules of Criminal Procedure to preserve the right to appeal.

After all the instructions were read, the prosecutor approached the bench to suggest further clarification of the entrapment instruction. Accordingly, the trial judge added the following statement:

In summary, then consider I've just read you the entrapment instruction. In summary, then, if you find no evidence that the government induced the defendant to commit the crime with which he is charged here, there can be no entrapment.

On the other hand, if you find some evidence that the defendant was induced to commit the offense with which he is charged, you must then go on to consider if the defendant was predisposed to commit the offense. If you find beyond a reasonable doubt that the defendant was predisposed to commit such an offense, then you should find...