U.S. v. Williford

• Decision Date: 12 July 1985
• Docket Number: No. 83-8647,83-8647
• Parties: 18 Fed. R. Evid. Serv. 1151 UNITED STATES of America, Plaintiff-Appellee, v. Clyde Alvin WILLIFORD, Sr., Clyde Alvin Williford, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1493

764 F.2d 1493

18 Fed. R. Evid. Serv. 1151

UNITED STATES of America, Plaintiff-Appellee, v. Clyde Alvin WILLIFORD, Sr., Clyde Alvin Williford, Jr. Defendants-Appellants.

No. 83-8647.

United States Court of Appeals Eleventh Circuit.

July 12, 1985.

Steven H. Sadow, Edward T. M. Garland, Donald Samuel, Atlanta, Ga., for defendants-appellants.

Mervyn Hamburg, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before KRAVITCH and CLARK, Circuit Judges, and WRIGHT, ^* Senior Circuit Judge.

EUGENE A. WRIGHT, Circuit Judge:

Four issues are raised in this drug conviction appeal, all of which we answer affirmatively:

(1) was the videotape of the extrinsic act of misconduct, the attempt to purchase a kilogram of cocaine, admissible under Fed.R.Evid. 404(b);

(2) did the court properly admit the transcript of Hammond's sentencing hearing;

(3) was there sufficient evidence to support Williford's conviction on the importation conspiracy; and

(4) did the district court correctly allow transcripts of tape recordings to be sent with the jury for use during deliberations?

FACTS

Clyde Alvin Williford, Sr. (Williford) and Clyde Alvin Williford, Jr. (Alvin), father and son, were convicted of conspiracy to import marijuana (count II), conspiracy to possess marijuana with intent to distribute (count III), and possession of marijuana with intent to distribute (counts XV and XXII) in violation of 21 U.S.C. Secs. 963, 846 and 841(a)(1). This drug conspiracy originated in April of 1979 and continued through the summer of 1982, involving 25 persons. The Willifords joined after Williford asked to see "Red Evans", the conspiracy organizer, in the fall of 1981.

The principal government witnesses were two coconspirators, Prater and Hammond, a government informant. The evidence established that the Willifords took delivery of marijuana on Christmas Eve, 1981, and again in mid-March 1982. On April 25, 1982, they accepted another 1,500 to 1,600 pounds of marijuana which had been flown in that day. At that time, Evans mentioned to Williford that he owed Evans between $280,000 and $300,000. Williford remarked that his credit was good and Evans agreed.

On July 2, 1982, Evans' plane was detected by customs officers as it flew over the windward passage on the high seas. The plane was tracked to Florida where a customs helicopter joined in the pursuit. When the pilot of the Cessna determined that he was being tailed, Evans directed him to jettison the marijuana and land elsewhere. During this attempted importation, the Willifords were waiting at Evans' trailer home.

Hammond also testified that Williford was at Evans' trailer to help unload a truck and weigh another delivery of marijuana on August 11, 1982. Of the 1,800 pounds in this load, Williford received about 900 pounds and a five pound package of cocaine.

Hammond had been cooperating with the police since June, 1982. He surreptitiously recorded several conversations with Prater and Williford. Additionally, on August 3, 1982, he orchestrated a meeting between the Willifords and an undercover agent to negotiate a sale of a kilogram of cocaine for $57,000. This meeting was videotaped. No sale actually occurred, although Williford had the purchase money in hand.

On September 8, 1982, law enforcement officers executed a search warrant against Evans' trailer. The Willifords drove up the road leading to the trailer during the search and were stopped and questioned. Asked to explain his presence in the area, Williford replied that he was looking for a family that was fishing at a nearby lake. He denied knowing the occupants of the trailer.

The Willifords were arrested on December 17, 1982. Alvin had $4,651 in cash, wrapped in rubber bands.

I. Extrinsic Act Evidence

At trial, the Willifords offered to stipulate that if the jury were to find that they participated in the criminal activity as charged in the indictment, they would stipulate that their acts were with knowledge and intent to join the conspiracy. The government objected and the court refused to accept the proffered stipulation. The Willifords now argue that the evidence of the cocaine negotiation is inadmissible under Fed.R.Evid. 404(b) because it was relevant only on the issue of intent and the stipulation was sufficient to remove intent as an issue.

Although generally inadmissible, evidence of extrinsic misconduct will be admitted under certain exceptions contained in Fed.R.Evid. 404(b). In determining that this extrinsic evidence was admissible, the trial judge said:

[the] evidence was corroborative as to plan, scheme, modus operandi, and tended to be relevant to the issues in the case of whether or not the defendant in fact committed the crimes charged in the indictment. I found at the time and do now that the probative value of the evidence outweighed the prejudicial effect of it; it was evidence that was needed by the government; and also corroborated the government witnesses whose credibility was severely attacked by the defendant; and that the evidence tended to show a general pattern and scheme used in the conspiracy and was further really inextricably intertwined with the overt act charged in the indictment.

The trial court has broad discretion to determine admissibility of evidence and we will not disturb that ruling absent clear abuse of discretion. United States v. Cole, 755 F.2d 748, 766 (11th Cir.1985). The test for admissibility of extrinsic act evidence is whether the evidence is relevant to an issue other than defendant's character and whether its probative value is outweighed by its prejudicial effect. United States v. Chilcote, 724 F.2d 1498, 1501-02 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 2665, 81 L.Ed.2d 370 (1984).

The second prong of the Rule 404(b) analysis is essentially an application of Fed.R.Evid. 403. See United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). Rule 403 requires the trial judge to weigh the probative value of the evidence against the danger of unfair prejudice, confusion, misleading the jury, or undue delay or waste of time. Fed.R.Evid. 403.

The first requirement is governed by the general relevance provision of Fed.R.Evid. 401 and is a function of the similarity between the extrinsic act and the charged offense. United States v. Dothard, 666 F.2d 498, 501-02 (11th Cir.1982). The common characteristic must be the "significant one for the purpose of the inquiry at hand." Beechum, 582 F.2d at 911. For example, if the relevant issue is intent, the acts must require similar states of mind. United States v. Guerrero, 650 F.2d 728, 733 (5th Cir.1981).

Intent is the only issue to which this extrinsic act is relevant. The negotiation for the purchase of cocaine occurred in an Atlanta Holiday Inn, while the charged offenses involved large quantities of marijuana flown into rural Georgia in small aircraft. This evidence is insufficiently similar to establish plan or scheme, see United States v. Goodwin, 492 F.2d 1141, 1153 (5th Cir.1974) (mere similarity insufficient, common features of acts must be caused by a general plan); or modus operandi, see United States v. Alston, 460 F.2d 48, 55-56 (5th Cir.), (methodology of operations similar in important particulars), cert. denied, 409 U.S. 871, 93 S.Ct. 200, 34 L.Ed.2d 122 (1972). ¹ When intent is an issue, however, extrinsic evidence is admissible to show willingness to deal in drugs. See United States v. Hitsman, 604 F.2d 443, 448 (5th Cir.1979).

The effect of the Willifords' offer to stipulate to intent is not clear in this circuit. Cases dealing specifically with intent state uniformly that if the defendant unequivocally removes intent, as through a stipulation, the extrinsic act evidence cannot be admitted for the purpose of proving intent. E.g., United States v. Russo, 717 F.2d 545, 552 (11th Cir.1983); United States v. Holman, 680 F.2d 1340, 1349 (11th Cir.1982); United States v. Bulman, 667 F.2d 1374, 1382 (11th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982); United States v. Roberts, 619 F.2d 379, 383 n. 2 (5th Cir.1980).

None of the cases specifically addresses the issue of whether a defendant may force the government to accede or the court to accept such a stipulation. Other circuits have held that whether to accept a stipulation is a matter in the discretion of the trial court. See, e.g., United States v. Pedroza, 750 F.2d 187, 201 (2d Cir.1984); but see United States v. Mohel, 604 F.2d 748, 753 (2d Cir.1979) (unequivocal offer of stipulation removes intent as issue).

In Pedroza, the Second Circuit reasoned that a party normally is permitted to present a picture of the events to the jury. To substitute a stipulation for the picture can rob the evidence of much of its legitimate weight. Pedroza, 750 F.2d at 201. The court then explained that the evidence of the extrinsic act was necessary to a complete explanation of the crime charged.

We have held that a trial court did not abuse its discretion in refusing to require the government to accept a proffered stipulation that defendant was a convicted felon when the charges included a felony conviction as an element of the offense. United States v. O'Shea, 724 F.2d 1514, 1516 (11th Cir.1984) ("a party may not preclude his adversary's offer of proof by admission or stipulation," citing Parr v. United States, 255 F.2d 86, 88 (5th Cir.), cert. denied, 358 U.S. 824, 79 S.Ct. 40, 3 L.Ed.2d 64 (1958)). This circuit has refused to adopt a per se rule either for or against admission of evidence when that evidence is relevant to an issue to which the defendant offers to stipulate. Rather, we analyze the offer to stipulate as one factor in making the Rule 403 determination. O'Shea, 724 F.2d at 1516, 1517.

We need not reconcile the tension between these two lines of cases....