U.S. v. Williams

Decision Date26 December 1990
Docket NumberNo. 89-6230,89-6230
Citation923 F.2d 1397
Parties31 Fed. R. Evid. Serv. 1481 UNITED STATES of America, Plaintiff-Appellee, v. Andre Lawrence WILLIAMS, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

James F. Robinson, Asst. U.S. Atty., Oklahoma City, Okl. (Timothy D. Leonard, U.S. Atty., with him on the brief), for plaintiff-appellee.

June E. Tyhurst, Asst. Federal Public Defender, Oklahoma City, Okl. (Rand C. Eddy, Asst. Federal Public Defender, Oklahoma City, Okl., with her on the brief), for defendant-appellant.

Before HOLLOWAY, Chief Judge, MOORE, Circuit Judge, and BROWN, District Judge *.

HOLLOWAY, Chief Judge.

In a joint trial, defendant-appellant Williams and one co-defendant, Henderson, were convicted of multiple counts involving the possession and distribution of cocaine. Williams was convicted on one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1); one count of using or carrying firearms during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c); and two counts of opening or maintaining a premises for the purpose of distribution of cocaine, in violation of 21 U.S.C. Sec. 856(a)(1). Henderson was convicted on these same four counts. Henderson's appeal from his convictions is decided by a separate unpublished order and judgment filed today.

I.

A rock or "crack" cocaine distribution operation was discovered in Del City, Oklahoma, in January 1989 when an intelligence report alerted the police to drug sales taking place within the city at an apartment on Scott Street. I R.Tr. at 5. The police responded by sending a confidential police informant to the apartment to attempt to purchase cocaine. 1 Id. at 5.

The informant was able to make a cocaine purchase, and consequently, the police obtained a search warrant and returned the following day to execute the warrant. 2 Id. at 5. The search yielded over two thousand dollars in cash, a number of gold and silver coins, a quantity of rock cocaine, and two loaded firearms, one on the kitchen table and one on a stereo in the living room. Id. at 37-42. Amidst the cash recovered was a twenty dollar bill identified as one of the recorded bills with which the informant made his purchase of cocaine the previous day. Id. at 39. Also found during the warrant's execution was a promissory note or IOU which was in the possession of one of the suspects on the premises. The IOU was signed by a cocaine buyer, Johnson, and it evidenced a debt of $150, payable to Charles Dade and witnessed by Williams. Id. at 42, 101-05. Other items discovered in a closet at the Scott Street apartment were a traffic citation issued to Thad Bennett, an alias used by Williams, and a criminal complaint of unlawful entry issued to Marvin Roberts, an alias used by Henderson.

Approximately two weeks later the Del City Police Department received word of another cocaine distribution operation at a house on Hampton Street in Del City. Id. at 11, 14. The police also sent a confidential informant to this house who successfully purchased cocaine with marked money. Id. at 22. The police returned the next day with a search warrant. Id. at 11. When they approached the house to execute the warrant, Henderson, standing outside the house, turned toward the house and whistled loudly. Id. at 12.

The police had an extremely difficult time gaining access to the house since the entrances had all been heavily barred. The officers had to enter by cutting an entrance through a wall of the house, taking at least five minutes. Id. at 66. When they did finally gain entry to the house, the only people within were Williams, Perkins, and two females. One loaded firearm, located in a drawer in the bathroom, and one rock of crack cocaine were recovered at the Hampton Street residence. Id. at 66, 84. In the closed garage was a Cadillac which belonged to Williams. Id. at 66-67.

A nine count indictment was returned in February 1989 charging Williams and Henderson, as well as Charles Robert Dade, Jr., Andre Earl Osborn and Billy Joe Perkins with various crimes involving the possession and sale of cocaine. 3 A jury trial of Williams, Henderson and Perkins took place on April 10 and 11, 1989. 4

Williams and Henderson were both found guilty on four counts: Count I, conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1); Count V, using or carrying firearms during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c); and Counts VI and IX, both for opening or maintaining a premises for the purpose of distribution of cocaine, in violation of 21 U.S.C. Sec. 856(a)(1).

II.

A. Admission of Claimed 404(b) "Other Acts" Evidence

Williams argues that the trial judge incorrectly allowed certain evidence of other wrongful acts of Williams to be presented to the jury in violation of Federal Rule of Evidence 404(b).

1. Exhibit 11--The IOU

The IOU, Exhibit 11, was introduced by the government during the testimony of the second witness, Officer Scully, at which time no objection was made by Williams and the exhibit was admitted. I R.Tr. at 42-44. The government, however, offered to re-introduce the note in evidence on the second day of trial at the close of the government's case. Id. at 229-30. At this second offer of the exhibit, Williams did object. Id. at 230. The court eventually ruled, rejecting the defendant's objections on the merits, that Exhibit 11 would be admitted. Id. at 249-50.

As mentioned earlier, the IOU was witnessed by Williams and it reflected a debt of $150 owed by Mark Johnson, a government witness, to Big Man, 5 who was not on trial. In describing the circumstances under which the IOU was made, Johnson testified that Williams and Big Man threatened Johnson with a gun in order to obtain his signature on the IOU. 6 Johnson further testified that Big Man wanted the $150 as payment for seven rocks of cocaine given to Johnson the previous day. Id. at 101-05.

The defendant objected to this testimony concerning the armed threat of violence and the trial judge ordered a recess to discuss the evidentiary matter outside the hearing of the jury. Id. at 107. The judge began the hearing by noting his concern that some of the testimony might be inadmissible under Fed.R.Evid. 404(b). Id. at 108. The hearing concluded with the trial judge sustaining the objection and admonishing the jury to disregard the last question presented to Johnson and his response to that question. Id. at 118.

Defendant Williams claims that the IOU itself constituted inadmissible evidence of other criminal acts, 7 such as robbery or conspiracy to commit robbery, and that it is not within any of the Rule 404(b) exceptions. Alternatively, Williams asserts that even if the IOU was within the purview of the 404(b) exceptions, the evidence was inadmissible because its probative value was outweighed by its prejudicial effect.

Defendant further argues that the district court did not abide by the rule of United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986), that there must be "a specific articulation of the relevant purpose and specific inferences to be drawn from each proffer of evidence of other [criminal] acts." This articulation is designed to encourage careful consideration of these often delicate evidentiary questions, as well as to provide the appellate court with an adequate record for review. Id. at 1437.

It is true that no explicit articulation was made of the purposes for which the IOU was admitted in evidence. We have held, however, that failure to articulate the reasoning behind an admission of possible 404(b) evidence is harmless error if "the purpose for admitting the other acts testimony is apparent from the record, and the district court's decision to admit was correct." United States v. Record, 873 F.2d 1363, 1375 n. 7 (10th Cir.1989) (quoting United States v. Orr, 864 F.2d 1505, 1511 (10th Cir.1988)); see generally, Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (describing Congressional intent for Rule 404(b) admissions and the requirements which must be met to insure that such admissions are not unfairly prejudicial). We feel that the purpose for admitting the IOU is clear from the record. There is no doubt that the IOU was probative of the conspiracy charged. It served as corroboration of Johnson's testimony that the defendant Williams assisted Big Man, Charles Dade, in obtaining the IOU to ensure that money from a drug sale would be received. 8 Moreover, the IOU had Williams' name on it as witness to the document, thus indicating a substantial nexus between the drug conspiracy and Williams.

A more serious problem arises not out of the IOU itself, but out of the related testimony that when the IOU was obtained, Williams was threatening Johnson by sticking a gun in his side. This testimony was stricken and the jury was ordered to disregard it. I R.Tr. at 106, 118. An error in admission of evidence may generally be cured by withdrawing the evidence and instructing the jury to disregard it, except where the character of the testimony is such that it will create so strong an impression on the jurors that they will be unable to disregard it. Maestas v. United States, 341 F.2d 493, 496 (10th Cir.1965). Moreover, we should here consider the matter in the context of all the evidence properly before the jury. Doing so, we are convinced that here the question and answer that were stricken did not influence the jury or had but very slight effect. Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1247-48, 90 L.Ed. 1557 (1946).

Accordingly, we find no error in the district court's admission of the IOU and the handling of the related testimony.

2. Exhibit 20--The Traffic Ticket

Exhibit 20 was a traffic ticket issued to Thad Bennett, an...

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