U.S. v. Vance

• Citation: 871 F.2d 572
• Decision Date: 06 June 1989
• Docket Number: No. 87-6276,87-6276
• Parties: 27 Fed. R. Evid. Serv. 903 UNITED STATES of America, Plaintiff-Appellee, v. Henry VANCE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 572

871 F.2d 572

27 Fed. R. Evid. Serv. 903

UNITED STATES of America, Plaintiff-Appellee, v. Henry VANCE, Defendant-Appellant.

No. 87-6276.

United States Court of Appeals, Sixth Circuit.

Argued May 10, 1988.

Decided April 4, 1989.

Rehearing and Rehearing En Banc Denied June 6, 1989.

Frank E. Haddad, Jr. (argued), Louisville, Ky., J. Randall Reinhardt, Lexington, Ky., for defendant-appellant.

Louis DeFalaise, U.S. Atty., Barbara Edelman, James E. Arehart (argued), Lexington, Ky., for plaintiff-appellee.

Before JONES and RYAN, Circuit Judges, and GIBSON, ^* District Judge.

RYAN, Circuit Judge.

Henry Vance appeals his conviction of conspiring to transport a firearm in interstate commerce with knowledge that it was to be used to commit murder, 18 U.S.C. Sec. 371, and of transporting a firearm in interstate commerce with knowledge that it was to be used to commit murder, 18 U.S.C. Sec. 924(b). On appeal, Vance argues that he is entitled to a new trial on the ground that the district court committed an abuse of discretion by admitting into evidence, under Fed.R.Evid. 404(b), evidence of prior bad acts allegedly committed by Vance. Vance also argues that the district court committed an abuse of discretion by admitting certain expert testimony, and that prosecutorial misconduct denied Vance a fair trial. ¹ Finding no reversible error, we affirm Vance's conviction.

This case arose from the murder of Florida State Attorney Eugene Berry by Bonnie Kelly on January 16, 1982. Berry was the prosecutor in the 1981 Florida trial of Bonnie Kelly's husband, Wallace M. ("Mike") Kelly, in which Mike Kelly was convicted and sentenced to imprisonment on drug charges. The indictment of Vance charged that he, Bonnie Kelly, and Stephen Vance Taylor (no relation to Henry Vance), who was scheduled to be prosecuted by Berry on drug charges, planned Berry's murder between late December 1981 and January 16, 1982, and that Vance gave Bonnie Kelly the handgun she used to murder Berry at Berry's home in Florida. The indictment also alleged that Vance assisted Taylor and Bonnie Kelly in fabricating alibis for Berry's murder by helping Taylor stage a car accident in Kentucky on the date of the murder, and by telling law enforcement officials that he had seen Bonnie Kelly in Kentucky on that date. Bonnie Kelly was convicted in a Florida court of murdering Berry and she was sentenced to life imprisonment; Taylor pleaded guilty to second-degree murder and was sentenced to ninety-nine years' imprisonment.

Before Vance's trial, the prosecution moved for a ruling on the admissibility under Fed.R.Evid. 404(b) of evidence of the following prior bad acts which Vance allegedly committed or in which he was allegedly involved:

(1) Use of illegal drugs in the early 1970's;

(2) Production of fake LSD pills by Vance and Bonnie Kelly to replace pills stolen by Vance from the sheriff's office;

(3) Theft of a machine gun from the sheriff's office;

(4) Theft of drugs from drug stores by Mike Kelly and Bonnie Kelly;

(5) Detonation of a bomb on the property of a Kentucky judge in 1972 by Vance, Mike Kelly, Bonnie Kelly, and a fourth person;

(6) Theft of a machine gun from a police department impoundment lot in 1980 by Vance, Mike Kelly, and Bonnie Kelly;

(7) Illegal manufacture of gun silencer parts in 1981 by Vance and Mike Kelly;

(8) Production of false identification pieces by Mike Kelly and Bonnie Kelly, including pieces used by Vance;

(9) Forgery of sheriff's signature by Vance in 1973 to order police weapons.

The prosecution's rationale for the admissibility of evidence of these alleged acts was that the acts were relevant as tending to prove Vance's motive for assisting Bonnie Kelly in the murder of the prosecutor of Mike Kelly. The prosecution contended that in order for the jury to understand how Vance, a citizen of apparent standing, ² could possibly be motivated to assist Bonnie Kelly in the murder of prosecutor Berry, it had to be aware of the long-standing relationship between Vance and the Kellys during which the three of them had been involved in the myriad criminal activities alleged.

In a fourteen-page memorandum opinion and order, the district court ruled on the admissibility of evidence of the alleged prior bad acts. The court held that evidence of acts Nos. 1 and 4--Vance's alleged drug use and the Kellys' alleged drug thefts--was inadmissible because it was unfairly prejudicial, and stated: "Although such evidence is somewhat probative of the motive of Vance to act in connection with the Kellys, the prejudicial effect of the extensive drug use outweighs any use of the evidence." The court ruled that evidence of act No. 9, Vance's alleged forgery of an order for police weapons, was inadmissible because Vance allegedly committed this act by himself; therefore, it was not probative of his relationship with the Kellys.

The district court ruled that evidence of the six other alleged prior bad acts was admissible because the evidence was probative as to Vance's motive to assist Bonnie Kelly in the commission of Berry's murder, and was not unfairly prejudicial. The court stated:

[T]he government desires to "set the scene " for the motive of the defendant, a man of social and political prominence to supposedly supply a weapon to a confederate to murder a state prosecutor. Much of the government's prior act evidence attempts to show why the defendant would risk this high social and political prominence by becoming involved in a murder. Any murder! The alleged criminal relationship between the unindicted co-conspirators and Vance is probative on the issue of motivation in the transfer of the pistol. There is little question that much of the prior act evidence, such as the furnishing of guns to the Kellys and the creation of "fake" LSD by the defendant and Bonnie Kelly is prejudicial to the defense. However, the burden is on the Court to determine if this prejudice is unfair. The jury must decide whether to believe the testimony of the defendant or the testimony of the Kellys. If the jury does not believe that Vance gave the gun to Bonnie Kelly to commit a murder, ³ then they will not believe the testimony of the Kellys as to prior bad acts. Either all of the evidence about the murder weapon and the prior acts will be believable or all the evidence will be rejected by the jury.

Evidence of six alleged prior bad acts was therefore admitted at Vance's trial. After his conviction, Vance moved for a new trial, primarily on the ground that the evidence of alleged prior bad acts was inadmissible under Fed.R.Evid. 404(b) and 403. In a nineteen-page memorandum opinion and order the district court considered and rejected Vance's motion on the same rationale as the court's pretrial decision to admit the evidence: the evidence was probative as to Vance's motive for assisting the Kellys, and it was not unfairly prejudicial. This appeal followed.

I.

Vance's primary argument on appeal is that the district court erred in admitting evidence of alleged prior bad acts under Fed.R.Evid. 404(b). Rule 404(b) provides:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action 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.

The rationale underlying the exclusion of bad acts evidence is not that such evidence is irrelevant.

[O]n the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.

Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct. 213, 218-219, 93 L.Ed. 168 (1948). By limiting the admission of bad acts evidence, Rule 404(b) therefore helps secure the presumption of innocence and its corollary "that a defendant must be tried for what he did, not for who he is." United States v. Myers, 550 F.2d 1036, 1044 (5th Cir.1977), cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978).

Rule 404(b), however, provides only that bad acts evidence is not admissible to prove character or criminal propensity; such evidence may be admissible for other purposes, "such as," but not limited to, those listed in the rule. This court has noted that Rule 404(b) "is actually a rule of inclusion rather than exclusion, since only one use is forbidden and several permissible uses of such evidence are identified." United States v. Blankenship, 775 F.2d 735, 739 (6th Cir.1985).

In determining whether bad acts evidence is admissible under Rule 404(b), a court must engage in a two-step analysis.

First, the court must decide whether the evidence would serve a permissible purpose such as one of those listed in the second sentence of Rule 404(b). If so the court must consider whether the probative value of the evidence is outweighed by its potential prejudicial effect.

United States v. Huddleston, 811 F.2d 974, 976 (6th Cir.1987) (per curiam; citations omitted), aff'd, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). In determining the admissibility of bad acts evidence under Rule 404(b), a trial judge is accorded "broad discretion." United States v. Ebens, 800 F.2d 1422, 1433 (6th Cir.1986); United States v. Fraser, 709 F.2d 1556, 1559 (6th Cir.1983).

In this case, the district court engaged in the Rule 404(b) two-step analysis and found first that the evidence of the alleged bad acts in question was offered for a proper purpose--to show Vance's motive for assisting Bonnie Kelly in the murder of prosecutor Berry. The court then found that the evidence did not...