United States v. Lewis
| Decision Date | 07 May 1970 |
| Docket Number | No. 19416.,19416. |
| Citation | 423 F.2d 457 |
| Parties | UNITED STATES of America, Appellee, v. Cyrus LEWIS, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Douglas W. Thomson, St. Paul, Minn., for appellant.
Neal J. Shapiro, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Patrick J. Foley, U. S. Atty., on the brief.
Before VOGEL, MATTHES and BRIGHT, Circuit Judges.
Cyrus Lewis appeals from a judgment convicting him of selling narcotics in violation of 26 U.S.C. § 4704(a), which requires such sales to be made in or from an "original stamped package", and 26 U.S.C. § 4705(a), which requires that the seller obtain a written order from the purchaser on a government-approved form. Lewis here contends that the trial court erred in two respects: (1) in admitting evidence of and allowing the prosecutor to comment upon Lewis' frequent participation in narcotics law violations other than those charged in the indictment, and (2) in refusing to grant a mistrial because of misconduct on the part of the prosecuting attorney during his opening statement and rebuttal argument.
Our examination of the record in this case convinces us that in the particulars alleged by Lewis, the trial court committed no error which requires a new trial. Accordingly, we affirm.
We briefly recite the procedural and evidentiary facts as background. The grand jury indicted Lewis on four counts of narcotics law violations. The first two counts related to an alleged sale of narcotic tablets (Dilaudid hydrochloride — an opium derivative) to Jerome Fitzgerald, an admitted former narcotics addict turned government informer, on April 14, 1967, in St. Paul, Minnesota. Counts three and four referred to an alleged sale of similar narcotic tablets to Fitzgerald in the presence of Edgar Muhlhauser, a government narcotics agent, in St. Paul on April 17, 1967. The government's case, aside from chemical identification of the tablets, basically rested on testimony of informer Fitzgerald and agent Muhlhauser. However, Muhlhauser testified that he was not present at the consummation of the earlier alleged sale. The jury acquitted Lewis on the counts relating to the April 14 transaction and convicted him on the counts relating to the events of April 17.
In his opening statement at Lewis' trial, the prosecutor related that prior to April 14, 1967, Lewis had offered to sell and had actually sold narcotics to informer Fitzgerald on frequent occasions. Further, he commented that the grand jury based its indictment of Lewis on the evidence he had summarized for the jury in his opening statement. In rebuttal argument, the prosecutor applied the appellation "junk pusher" to the accused. Lewis' counsel unsuccessfully moved for a mistrial during the prosecutor's opening and closing statements.
During the trial, Fitzgerald testified that during a three-year period prior to 1967, he had purchased narcotics on various occasions from Lewis at the later's home in St. Paul.
Though the appellant voiced objection to the prosecutor's allusion to Lewis' earlier sales of narcotics to Fitzgerald by moving for mistrial at the close of the opening statement, no further objection was made to the introduction of evidence relating to these prior transactions nor to the trial court's specific instruction to the jury that such evidence bore only upon intent or state of mind but did not constitute proof of defendant's guilt. Despite defendant's failure to press further objection, we have canvassed the record on this appeal to determine the admissibility of this evidence.
Evidence of prior conduct which may constitute a separate crime is admissible and relevant to (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one stands to establish the other, and (5) the identity of the person charged with the commission of the crime on trial. Love v. United States, 386 F.2d 260, 266 (8th Cir. 1967), cert. denied, 390 U.S. 985, 88 S.Ct. 1111, 19 L.Ed.2d 1286 (1968); Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85, 90 (1964). See Von Feldt v. United States, 407 F.2d 95, 101 (8th Cir. 1969) and cases cited therein.
In prosecutions for violation of narcotics laws, the defendant's complicity in other similar narcotics transactions may serve to establish intent or motive to commit the crime charged. Robinson v. United States, 366 F.2d 575 (10th Cir. 1966), cert. denied, 385 U.S. 1009, 87 S. Ct. 717, 17 L.Ed.2d 547 (1967); Medrano v. United States, 285 F.2d 23 (9th Cir. 1960), cert. denied, 366 U.S. 968, 81 S.Ct. 1931, 6 L.Ed.2d 1258 (1961).
In the instant case, Fitzgerald's testimony that he had frequently purchased narcotic drugs from Lewis served to substantiate Lewis' identification as the person making the sale specified in the indictment and bore affirmatively on the question of whether defendant knew that he was selling tablets containing narcotic drugs to Fitzgerald at the times specified in the indictment. The questioned evidence was properly admitted for such limited purpose.
Whether the probative value of such evidence outweighs its potential for prejudice to the defendant generally addresses itself to the discretion of the trial judge. See Wakaksan v. United States, 367 F.2d 639, 645 (8th Cir. 1966), cert. denied, 386 U.S. 994, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967). In addition to limiting the jury to consider such evidence as bearing on intent or purpose, Judge Devitt fairly cautioned that "the mere fact that a person may have carried on conduct in the past, of course, is not proof of the fact that a person is guilty of a crime involving similar conduct in the future." We believe Judge Devitt acted within his discretion.
Near the conclusion of his opening statement, the prosecutor injected this comment:
In Weaver v. United States, 379 F.2d 799, 802 (8th Cir.), cert. denied, 389 U.S. 962, 88 S.Ct. 347, 19 L.Ed.2d 374 (1967), we recognized a similar statement referring to grand jury action to be improper. Such comment unfairly suggests that the petit jury should return a conviction because a grand jury returned an indictment on the selfsame evidence. We condemn this type of tactic by the prosecutor. However, in this case, we feel that the trial court took appropriate steps to avoid any prejudicial effect.
Initially, in examining the panel, Judge Devitt advised:
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