CHARACTER AND HABIT I.

CHARACTER OF ACCUSED AND VICTIM

A)

MICHELSON VS. UNITED STATES, 335 U.S. 469 (1948) LEA Supreme Court of the United States MICHELSON v. UNITED STATES. No. 23. Argued Oct. 14, 15, 1948. Decided Dec. 20, 1948.

Solomon Michelson was convicted of bribing a federal revenue agent. Judgment of conviction was affirmed by the Circuit Court of Appeals, 165 F.2d 732, and defendant brings certiorari. Affirmed. Mr. Justice RUTLEDGE and Mr. Justice MURPHY, dissenting. On Writ of Certiorari to the United States Court of Appeals for the Second Circuit. West Headnotes [1] Criminal Law 110 376

110 Criminal Law 110XVII Evidence 110XVII(G) Character of Accused 110k375 Character or Reputation of Accused 110k376 k. In general. Most Cited Cases Under general rule, prosecution may not resort in its case in chief to any kind of evidence of defendant's evil character to establish probability of his guilt. [2] Criminal Law 110 309

110 Criminal Law 110XVII Evidence 110XVII(B) Presumptions and Inferences

110k305 Presumptions 110k309 k. Character. Most Cited Cases On a criminal trial, there is no presumption of defendant's good character. [3] Criminal Law 110 376

110 Criminal Law 110XVII Evidence 110XVII(G) Character of Accused 110k375 Character or Reputation of Accused 110k376 k. In general. Most Cited Cases Under general rule, the defendant's character, disposition and reputation is closed on the prosecution's case in chief. [4] Criminal Law 110 368.4

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)1 Other Misconduct as Evidence of Offense Charged in General 110k368.3 Purposes for Admitting Evidence of Other Misconduct 110k368.4 k. In general. Most Cited Cases (Formerly 110k369.1, 110k369(2)) Criminal Law 110 368.5

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)1 Other Misconduct as Evidence of Offense Charged in General 110k368.3 Purposes for Admitting Evidence of Other Misconduct 110k368.5 k. Showing bad character or criminal propensity in general. Most Cited Cases (Formerly 110k371(1), 110k369.1, 110k369(2)) Criminal Law 110 110 Criminal Law 368.6

110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)1 Other Misconduct as Evidence of Offense Charged in General 110k368.3 Purposes for Admitting Evidence of Other Misconduct 110k368.6 k. Connecting accused with crime charged in general. Most Cited Cases (Formerly 110k369.2(1), 110k369(2)) Criminal Law 110 371.27

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)7 Other Misconduct Showing Intent 110k371.27 k. In general. Most Cited Cases (Formerly 110k371(1)) Criminal Law 110 376

110 Criminal Law 110XVII Evidence 110XVII(G) Character of Accused 110k375 Character or Reputation of Accused 110k376 k. In general. Most Cited Cases Under general rule, state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, though such facts might logically be persuasive that he is by propensity a probable perpetrator of alleged crime, except when prior crime is an element of later offense or where evidence as to other transactions or a course of fraudulent conduct is admitted to establish fraudulent intent as an element of the crime charged. [5] Criminal Law 110 376

110 Criminal Law 110XVII Evidence 110XVII(G) Character of Accused 110k375 Character or Reputation of Accused 110k376 k. In general. Most Cited Cases Under general rule, inquiry regarding defendant's character on the prosecution's case in chief is not rejected because character is irrelevant but

because the inquiry weighs too much with the jury and causes them to prejudge one with a bad general record, thus denying him a fair opportunity to defend against particular charge. [6] Criminal Law 110 376

110 Criminal Law 110XVII Evidence 110XVII(G) Character of Accused 110k375 Character or Reputation of Accused 110k376 k. In general. Most Cited Cases The overriding policy of excluding evidence of defendant's character, disposition and reputation on the prosecution's case in chief, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice. [7] Criminal Law 110 377

110 Criminal Law 110XVII Evidence 110XVII(G) Character of Accused 110k375 Character or Reputation of Accused 110k377 k. Good character as evidence for defense. Most Cited Cases Under general rule, inquiry as to the defendant's character, disposition and reputation, denied to the state on its case in chief, is open to the defendant because character is relevant in resolving probabilities of guilt. [8] Criminal Law 110 377

110 Criminal Law 110XVII Evidence 110XVII(G) Character of Accused 110k375 Character or Reputation of Accused 110k377 k. Good character as evidence for defense. Most Cited Cases Under general rule, defendant may introduce affirmative testimony that general estimate of his character is so favorable that jury may infer that he would not be likely to commit offense charged. [9] Criminal Law 110 561(3)

110 Criminal Law 110XVII Evidence 110XVII(V) Weight and Sufficiency 110k561 Reasonable Doubt 110k561(3) k. Created by proof of good character. Most Cited Cases Criminal Law 110 776(5)

110 Criminal Law 110XX Trial 110XX(G) Instructions: Necessity, Requisites, and Sufficiency 110k776 Character 110k776(5) k. Effect to generate reasonable doubt. Most Cited Cases Character testimony alone, in some circumstances, may be enough to raise a reasonable doubt of guilt, and in proper case, jury should be so instructed. [10] Criminal Law 110 379

110 Criminal Law 110XVII Evidence 110XVII(G) Character of Accused 110k375 Character or Reputation of Accused 110k379 k. General reputation. Most Cited Cases Under rule permitting defendant to introduce evidence of good character, so-called character witness may not base his testimony on anything but hearsay and what commonly is called character evidence is only such when character is employed as a synonym for reputation. [11] Criminal Law 110 380

110 Criminal Law 110XVII Evidence 110XVII(G) Character of Accused 110k375 Character or Reputation of Accused 110k380 k. Particular acts. Most Cited Cases Under general rule, character witness called by defendant may not testify about defendant's specific acts or courses of conduct or his possession of a particular disposition or of benign mental and moral traits, nor can he testify that his own acquaintance, observation and knowledge of defendant

leads to his own independent opinion that defendant possesses a good general or specific character, inconsistent with commission of acts charged, but witness may summarize what he has heard in the community, though much of it may have been said by persons less qualified to judge than himself. [12] Witnesses 410 37(4)

410 Witnesses 410II Competency 410II(A) Capacity and Qualifications in General 410k37 Knowledge or Means of Knowledge of Facts 410k37(4) k. Character or reputation. Most Cited Cases Under general rule, character witness must qualify to give an opinion by showing such acquaintance with defendant, the community in which he has lived and the circles in which he has moved, as to speak with authority of the terms in which generally, he is regarded. [13] Criminal Law 110 379

110 Criminal Law 110XVII Evidence 110XVII(G) Character of Accused 110k375 Character or Reputation of Accused 110k379 k. General reputation. Most Cited Cases Under general rule, character witness is permitted to testify that he has heard nothing against defendant, upon assumption that, if no ill is reported of one, his reputation must be good but such an answer is accepted only from a witness whose knowledge of defendant's habitat and surroundings is intimate enough so that his failure to hear of any relevant ill repute is an assurance that no ugly rumors were about. [14] Criminal Law 110 378

110 Criminal Law 110XVII Evidence 110XVII(G) Character of Accused 110k375 Character or Reputation of Accused 110k378 k. Rebuttal of evidence character. Most Cited Cases

of

good

Under general rule, where defendant puts his reputation in issue, the

entire subject is thrown open and the prosecution may pursue the inquiry with contradictory witnesses to show that damaging rumors, whether or not well grounded, were afloat, for it is not the man that he is, but the name that he has which is put in issue. [15] Witnesses 410 274(2)

410 Witnesses 410III Examination 410III(B) Cross-Examination 410k274 Cross-Examination of Witness to Character of Party 410k274(2) k. Questions as to particular reports heard by witness. Most Cited Cases Under general rule, where defendant has put his reputation in issue, his own character witness is subject to cross-examination as to the contents and extent of the hearsay on which he bases his conclusions, and the witness may be required to disclose rumors and reports that are current even if they do not affect his own conclusion, and the sufficiency of his knowledge may be tested by asking what stories were circulating concerning events, such as one's arrest, about which people normally comment and speculate. [16] Criminal Law 110 379

110 Criminal Law 110XVII Evidence 110XVII(G) Character of Accused 110k375 Character or Reputation of Accused 110k379 k. General reputation. Most Cited Cases Under general rule, although the law gives defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by mere parade of partisans. [17] Criminal Law 110 676

110 Criminal Law 110XX Trial 110XX(C) Reception of Evidence 110k676 k. Number of witnesses. Most Cited Cases Criminal Law 110 1153.17(1)

110 Criminal Law 110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1153 Reception and Admissibility of Evidence 110k1153.17 Witnesses 110k1153.17(1) k. In general. Most Cited Cases (Formerly 110k1153(1)) Criminal Law 110 1153.18(2)

110 Criminal Law 110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1153 Reception and Admissibility of Evidence 110k1153.18 Examination 110k1153.18(2) k. Cross-examination. Most Cited Cases (Formerly 110k1153(4)) Witnesses 410 267

410 Witnesses 410III Examination 410III(B) Cross-Examination 410k267 k. Control and discretion of court. Most Cited Cases Under general rule, trial courts have been vested with discretion to limit the number of character witnesses and to control cross-examination and it is only on clear showing of prejudicial abuse of discretion that courts of appeals disturb rulings of trial courts on the subject. [18] Witnesses 410 274(1)

410 Witnesses 410III Examination 410III(B) Cross-Examination 410k274 Cross-Examination of Witness to Character of Party 410k274(1) k. In general. Most Cited Cases Before a character witness is cross-examined as to a prior arrest of defendant, the prosecution should demonstrate privately to the court the

reality of arrest in order to insure that the conclusion which the jury probably will draw will not be based on unsupported or untrue innuendo. [19] Witnesses 410 274(2)

410 Witnesses 410III Examination 410III(B) Cross-Examination 410k274 Cross-Examination of Witness to Character of Party 410k274(2) k. Questions as to particular reports heard by witness. Most Cited Cases Asking character witnesses on cross-examination whether witnesses had heard that defendant had previously been arrested for receiving stolen goods was not objectionable because form of inquiry invited hearsay. [20] Witnesses 410 274(1)

410 Witnesses 410III Examination 410III(B) Cross-Examination 410k274 Cross-Examination of Witness to Character of Party 410k274(1) k. In general. Most Cited Cases A character witness could be cross-examined as to an arrest of the defendant, whether or not it culminated in conviction. [21] Witnesses 410 345(1)

410 Witnesses 410IV Credibility and Impeachment 410IV(B) Character and Conduct of Witness 410k345 Accusation or Conviction of Crime 410k345(1) k. In general. Most Cited Cases Arrest without more does not impeach the integrity or impair the credibility of witness and hence only a conviction may be inquired about to undermine the trustworthiness of a witness. [22] Witnesses 410 274(1)

410 Witnesses 410III Examination

410III(B) Cross-Examination 410k274 Cross-Examination of Witness to Character of Party 410k274(1) k. In general. Most Cited Cases

It is not only by comparison with the crime on trial but by comparison with the reputation testified to by a character witness that a court may judge whether a prior arrest of defendant should be made subject of inquiry on cross-examination. [23] Witnesses 410 274(2)

410 Witnesses 410III Examination 410III(B) Cross-Examination 410k274 Cross-Examination of Witness to Character of Party 410k274(2) k. Questions as to particular reports heard by witness. Most Cited Cases In prosecution for bribing a federal revenue agent, where character witnesses called by defendant had testified that defendant's reputation for honesty and truthfulness and for being a law-abiding citizen was very good, asking the witnesses on cross-examination whether they had ever heard that defendant had been arrested for receiving stolen goods was permissible, though the offenses of bribery and of receiving stolen goods were dissimilar. 18 U.S.C.A. 201. [24] Witnesses 410 274(2)

410 Witnesses 410III Examination 410III(B) Cross-Examination 410k274 Cross-Examination of Witness to Character of Party 410k274(2) k. Questions as to particular reports heard by witness. Most Cited Cases The trial court in its discretion may well exclude inquiry, on crossexamination of character witnesses, about rumors of an event so remote as an arrest of defendant 27 years before trial, unless recent misconduct revived them. [25] Witnesses 410 274(1)

410 Witnesses 410III Examination 410III(B) Cross-Examination 410k274 Cross-Examination of Witness to Character of Party 410k274(1) k. In general. Most Cited Cases Where defendant has put his reputation in issue by the calling of character witnesses, he cannot complain at the latitude which is allowed the prosecution in meeting by cross-examination the issue thus voluntarily tendered, notwithstanding the difficulty which the jury may experience in comprehending the court's limiting instructions. [26] Witnesses 410 274(2)

410 Witnesses 410III Examination 410III(B) Cross-Examination 410k274 Cross-Examination of Witness to Character of Party 410k274(2) k. Questions as to particular reports heard by witness. Most Cited Cases In prosecution for bribing a federal revenue agent, where two of character witnesses called by defendant testified that their acquaintanceship with defendant extended over a period of 30 years, defendant himself on direct examination voluntarily called attention to his conviction for an offense 20 years before, and three of the witnesses testified that defendant's reputation for honesty and truthfulness and for being a law-abiding citizen was very good, permitting prosecution to ask four of the witnesses on cross-examination whether they had ever heard that defendant had been arrested, on a date 27 years prior to trial, for receiving stolen goods, was not an abuse of discretion, in view of fact that court satisfied itself that there was a basis for the inquiry, and that the court warned jury of the limited purpose for which the evidence was received. 18 U.S.C.A. 201. **216 *470 Mr. Louis J. Castellano, of Brooklyn, N.Y., for petitioner. Mr. Joseph M. Howard, of Washington, D.C., for respondent. Mr. Justice JACKSON delivered the opinion of the Court. In 1947 petitioner Michelson was convicted of bribing a federal revenue agent. FN1 The Government proved a *471 large payment by accused to the agent for the purpose of influencing his official action. The defendant, as a

witness on his own behalf, admitted passing the money but claimed it was done in response to the agent's demands, threats, solicitations, and inducements that amounted to entrapment. It is enough for our purposes to say that determination of the issue turned on whether the jury should believe the agent or the accused.FN2 FN1 The first count charged petitioner with bribing in violation of 18 U.S.C. s 91, now 18 U.S.C. s 201, 18 U.S.C.A. s 201, and the affirmance of his conviction on this count by the Court of Appeals, 2 Cir., 165 F.2d 732, is the judgment here under review. The second count charged offering the bribe as a violation of the same statute but his conviction on this count was reversed by the Court of Appeals and is not here involved. FN2 Details appear in the Court of Appeals opinion, 2 Cir., 165 F.2d 732. On direct examination of defendant, his own counsel brought out that, in 1927, he had been convicted of a misdemeanor having to do with trading in counterfeit watch dials. On cross-examination it appeared that in 1930, in executing an application for a license to deal in second-hand jewelry, he answered No to the question whether he had theretofore been arrested or summoned for any offense. Defendant called five witnesses to prove that he enjoyed a good reputation. Two of them testified that their acquaintance with him extended over a period of about thirty years and the others said they had known him at least half that long. A typical examination in chief was as follows: Q. Q. Q. Do you know the defendant Michelson? How long do you know Mr. Michelson? A. A. Yes. About 30 years. A. Yes.

Do you know other people who know him?

Q. Have you have occasion to discuss his reputation for honesty and truthfulness and for being a law-abiding citizen? A. It is very good. *472 Q. Q. You have talked to others? A. A. Yes.

And what is his reputation?

Very good.

These are representative of answers by three witnesses; two others replied, in substance, that they never had heard anything against Michelson.

On cross-examination, four of the witnesses were asked, in substance, this question: Did you ever hear that Mr. Michelson on March 4, 1927, was convicted of a violation of the trademark law in New York City in regard to watches? This referred to the twenty-year-old conviction about which defendant himself had testified on direct examination. Two of them had heard of it and two had not. To four of these witnesses the prosecution also addressed the question the allowance of which, over defendant's objection, is claimed to be reversible error: Did you ever hear that on October 11th, 1920, the defendant, Solomon Michelson, was arrested for receiving stolen goods? None of the witnesses appears to have heard of this. The trial court asked counsel for the prosecution, out of presence of the jury, Is it a fact according to the best information in your possession that Michelson was **217 arrested for receiving stolen goods? Counsel replied that it was, and to support his good faith exhibited a paper record which defendant's counsel did not challenge. The judge also on three occasions warned the jury, in terms that are not criticized, of the limited purpose for which this evidence was received. FN3 FN3 In ruling on the objection when the question was first asked, the Court said: * * * I instruct the jury that what is happening now is this: the defendant has called character witnesses, and the basis for the evidence given by those character witnesses is the reputation of the defendant in the community, and since the defendant tenders the issue of his reputation the prosecution may ask the witness if she has heard of various incidents in his career. I say to you that regardless of her answer you are not to assume that the incidents asked about actually took place. All that is happening is that this witness' standard of opinion of the reputation of the defendant is being tested. Is that clear? In overruling the second objection to the question the Court said: Again I say to the jury there is no proof that Mr. Michelson was arrested for receiving stolen goods in 1920, there isn't any such proof. All this witness has been asked is whether he had heard of that. There is nothing before you on that issue. Now would you base your decision on the case fairly in spite of the fact that that question has been asked? You would? All right.

The charge included the following: In connection with the character evidence in the case I permitted a question whether or not the witness knew that in 1920 this defendant had been arrested for receiving stolen goods. I tried to give you the instruction then that that question was permitted only to test the standards of character evidence that these character witnesses seemed to have. There isn't any proof in the case that could be produced before you legally within the rules of evidence that this defendant was arrested in 1920 for receiving stolen goods, and that fact you are not to hold against him; nor are you to assume what the consequences of that arrest were. You just drive it from your mind so far as he is concerned, and take it into consideration only in weighing the evidence of the character witnesses. *473 Defendant-petitioner challenges the right of the prosecution so to cross-examine his character witnesses. The Court of Appeals held that it was permissible. The opinion, however, points out that the practice has been severely criticized and invites us, in one respect, to change the rule. FN4 Serious and responsible criticism has *474 been aimed, however, not alone at the detail now **218 questioned by the Court of Appeals but at commonlaw doctrine on the whole subject of proof of reputation or character. FN5 It would not be possible to appraise the *475 usefulness and propriety of this cross-examination without consideration of the unique practice concerning character testimony, of which such cross-examination is a minor part.FN6 FN4. Footnote 8 to that court's opinion reads as follows ( 165 F.2d 735): Wigmore, Evidence (3d ed. 1940) s 988, after noting that such inquiries are almost universally admitted, not as impeachment by extrinsic testimony of particular acts of misconduct, but as means of testing the character witness' grounds of knowledge, continues with these comments: But the serious objection to them is that practically the above distinctionbetween rumors of such conduct, as affecting reputation, and the fact of it as violating the rule against particular factscannot be maintained in the mind of the jury. The rumor of the misconduct, when admitted, goes far, in spite of all theory and of the judge's charge, towards fixing the misconduct as a fact upon the other person, and thus does three improper things,(1) it violates the fundamental rule of fairness that prohibits the use of such facts, (2) it gets at them by hearsay only, and not by trustworthy testimony, and (3) it leaves the other person no means of defending himself by denial or explanation, such as he would otherwise have had if the rule had allowed that conduct to be made the subject of an issue. Moreover, these are not occurrences of possibility, but of daily practice. This

method of inquiry or cross-examination is frequently resorted to by counsel for the very purpose of injuring by indirection a character which they are forbidden directly to attack in that way; they rely upon the mere putting of the question (not caring that it is answered negatively) to convey their convert insinuation. The value of the inquiry for testing purposes is often so small and the opportunities of its abuse by underhand ways are so great that the practice may amount to little more than a mere subterfuge, and should be strictly supervised by forbidding it to counsel who do not use it in good faith. Because, as Wigmore says, the jury almost surely cannot comprehend the judge's limiting instruction, the writer of this opinion wishes that the United States Supreme Court would tell us to follow what appears to be the Illinois rule, i.e., that such questions are improper unless they relate to offenses similar to those for which the defendant is on trial. See Aiken v. People, 183 Ill. 215, 55 N.E. 695; cf. People v. Hannon, 381 Ill. 206, 44 N.E.2d 923. FN5 A judge of long trial and appellate experience has uttered a warning which, in the opinion of the writer, we might well have heeded in determining whether to grant certiorari here: * * * evidence of good character is to be used like any other, once it gets before the jury, and the less they are told about the grounds for its admission, or what they shall do with it, the more likely they are to use it sensibly. The subject seems to gather mist which discussion serves only to thicken, and which we can scarcely hope to dissipate by anything further we can add. L. Hand in Nash v. United States, 2 Cir., 54 F.2d 1006, 1007. In opening its cyclopedic review of authorities from many jurisdictions, CORPUS JURIS SECUNDUM summarizes that the rules regulating proof of character have been criticized as illogical, unscientific, and anomalous, explainable only as archaic survivals of compurgation or of states of legal development when the jury personally knew the facts on which their verdict was based. 32 C.J.S., Evidence, s 433. FN6 See Maguire, Evidence: Common Sense and Common Law (1947). Compare pp. 203209 and pp. 7476. [1][2][3][4][5][6] Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt.FN7 Not that the law invests the defendant with a presumption of good

character, Greer v. United States, 245 U.S. 559, 38 S.Ct. 209, 62 L.Ed. 469, but it simply closes the whole matter of character, disposition and reputation on the prosecution's case-in-chief. The State may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.FN8 The inquiry is not rejected because character is *476 irrelevant; FN9 on 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 **219 tends to prevent confusion of issues, unfair surprise and undue prejudice.FN10 FN7 Greer v. United States, 245 U.S. 559, 38 S.Ct. 209, 62 L.Ed. 469; 1 Wigmore, Evidence (3d ed., 1940) s 57; 1 Wharton, Criminal Evidence (11th ed., 1935) s 330. This was not the earlier rule in English common law and is not now the rule in some civil law countries. 1 Wigmore, Evidence (3d ed., s 1940) s 193. FN8 This would be subject to some qualification, as when a prior crime is an element of the later offense; for example, at a trial for being an habitual criminal. There are also well-established exceptions where evidence as to other transactions or a course of fraudulent conduct is admitted to establish fraudulent intent as an element of the crime charged. See, e.g., Fall v. United States, 60 App.D.C. 124, 49 F.2d 506, certiorari denied 283 U.S. 867, 51 S.Ct. 657, 75 L.Ed. 1471; Hatem v. United States, 4 Cir., 42 F.2d 40, certiorari denied 282 U.S. 887, 51 S.Ct. 103, 75 L.Ed. 782; Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278; Allis v. United States, 155 U.S. 117, 15 S.Ct. 36, 39 L.Ed. 91; Wood v. United States, 16 Pet. 342, 10 L.Ed. 987. FN9 As long ago as 1865, Chief Justice Cockburn said, The truth is, this part of our law is an anomaly. Although, logically speaking, it is quite clear that an antecedent bad character would form quite as reasonable a ground for the presumption and probability of guilt as previous good character lays the foundation of innocence, yet you cannot, on the part of the prosecution, go into evidence as to character. Reg v. Rowton, 10 Cox's Criminal Cases 25, 2930. And see 1 Wigmore, Evidence (3d ed., 1940) s 55. FN10 1 Wigmore, Evidence (3d ed., 1940) s 57. [7][8][9] But this line of inquiry firmly denied to the State is opened to the defendant because character is relevant in resolving probabilities of

guilt.FN11 He may introduce affirmative testimony that the general estimate of his character is so favorable that the jury may infer that he would not be likely to commit the offense charged. This privilege is sometimes valuable to a defendant for this Court has held that such testimony alone, in some circumstances, may be enough to raise a reasonable doubt of guilt and that in the federal courts a jury in a proper case should be so instructed. Edgington v. United States, 164 U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467. FN11 1 Wigmore, Evidence (3d ed., 1940) s 56; Underhill, Criminal Evidence (4th ed., 1935) s 165; 1 Wharton, Criminal Evidence (11th ed., 1935) ss 330, 336. *477 [10][11] When the defendant elects to initiate a character inquiry, another anomalous rule comes into play. Not only is he permitted to call witnesses to testify from hearsay, but indeed such a witness is not allowed to base his testimony on anything but hearsay.FN12 What commonly is called character evidence is only such when character is employed as a synonym for reputation. The witness may not testify about defendant's specific acts or courses of conduct or his possession of a particular disposition or of benign mental and moral traits; nor can he testify that his own acquaintance, observation, and knowledge of defendant leads to his own independent opinion that defendant possesses a good general or specific character, inconsistent with commission of acts charged. The witness is, however, allowed to summarize what he has heard in the community, although much of it may have been said by persons less qualified to judge than himself. The evidence which the law permits is not as to the personality of defendant but only as to the shadow his daily life has cast in his neighborhood. This has been well described in a different connection as the slow growth of months and years, the resultant picture of forgotten incidents, passing events, habitual and daily conduct, presumably honest because disinterested, and safer to be trusted because prone to suspect. * * * It is for that reason that such general repute is permitted to be proven. It sums up a multitude of trivial details. It compacts into the brief phrase of a verdict the teaching of many incidents and the conduct of years. It is the average intelligence drawing its conclusion. Finch J., in Badger v. Badger, 88 N.Y. 546, 552, 42 Am.Rep. 263. FN12 5 Wigmore, Evidence (3d ed., 1940) s 1609; Underhill, Criminal Evidence (4th ed., 1935) s 170; 1 Wharton, Criminal Evidence (11th ed., 1935) s 333. While courts have recognized logical grounds for criticism of this type of opinion-based-on-hearsay testimony, *478 it is said to be justified by overwhelming considerations of practical convenience in avoiding

innumerable collateral issues which, if it were attempted to prove character by direct testimony, would complicate and confuse the trial, distract the minds of jurymen and befog the chief issues in the litigation. People v. Van Gaasbeck, 189 N.Y. 408, 418, 82 N.E. 718, 22 L.R.A.,N.S., 650, 12 Ann.Cas. 745. [12][13] Another paradox in this branch of the law of evidence is that the delicate and responsible task of compacting reputation hearsay into the brief phrase of a verdict is one of the few instances in which conclusions are accepted from a witness on a subject in which he is not an expert. However, the witness must qualify to give an opinion by showing such acquaintance with the defendant, the community in which he has lived and the circles in which he has moved, as to speak with authority of the terms in which generally he is regarded. To require affirmative knowledge of the reputation may seem inconsistent with the latitude given to the witness to testify when all he can say of the reputation is that he has heard nothing against **220 defendant. This is permitted upon assumption that, if no ill is reported of one, his reputation must be good. FN13 But this answer is accepted only from a witness whose knowledge of defendant's habitat and surroundings is intimate enough so that his failure to hear of any relevant ill repute is an assurance that no ugly rumors were about. FN14 FN13 People v. Van Gaasbeck, 189 N.Y. 408, 420, 82 N.E. 718, 22 L.R.A., N.S., 650, 12 Ann.Cas. 745. The law apparently ignores the existence of such human ciphers as Kipling's Tomlinson, of whom no ill is reported but no good can be recalled. They win seats with the righteous for character evidence purposes, however hard their lot in literature. FN14 Id.; 5 Wigmore, Evidence (2d ed., 1940) s 1614; Underhill, Criminal Evidence (4th ed., 1935) s 171; 1 Wharton, Criminal Evidence (11th ed., 1935) s 334. [14][15][16] Thus the law extends helpful but illogical options to a defendant. Experience taught a necessity that they *479 be counterweighted with equally illogical conditions to keep the advantage from becoming an unfair and unreasonable one. The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him. The prosecution may pursue the inquiry with contradictory witnesses FN15 to show that damaging rumors, whether or not well-grounded, were aflotfor it is not the man that he is, but the name that he has which is put in issue. Another hazard is that his own witness is subject to cross-examination as to the contents and extent of the hearsay on which he bases his conclusions, and he may be

required to disclose rumors and reports that are current even if they do not affect his own conclusion.FN16 It may test the sufficiency of his knowledge by asking what stories were circulating concerning events, such as one's arrest, about which people normally comment and speculate. Thus, while the law gives defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of the offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisans. FN15 1 Wigmore, Evidence (3d ed., 1940) s 58; Underhill, Criminal Evidence (4th ed., 1935) s 167; 1 Wharton, Criminal Evidence (11th ed., 1935) s 330. FN16 A classic example in the books is a character witness in a trial for murder. She testified she grew up with defendant, knew his reputation for peace and quiet, and that it was good. On crossexamination she was asked if she had heard that the defendant had shot anybody and, if so, how many. She answered, Three or four, and gave the names of two but could not recall the names of the others. She still insisted, however, that he was of good character. The jury seems to have valued her information more highly than her judgment, and on appeal from conviction the cross-examination was held proper. People v. Laudiero, 192 N.Y. 304, 309, 85 N.E. 132. See also People v. Elliott, 163 N.Y. 11, 57 N.E. 103. *480 [17] To thus digress from evidence as to the offense to hear a contest as to the standing of the accused, at its best oopens a tricky line of inquiry as to a shapeless and elusive subject matter. At its worst it opens a veritable Pandora's box of irresponsible gossip, innuendo and smear. In the frontier phase of our law's development, calling friends to vouch for defendant's good character, and its counterpartcalling the rivals and enemies of a witness to impeach him by testifying that his reputation for veracity was so bad that he was unworthy of belief on his oathwere favorite and frequent ways of converting an individual litigation into a community contest and a trial into a spectacle. Growth of urban conditions, where one may never know or hear the name of his next-door neighbor, have tended to limit the use of these techniques and to deprive them of weight with juries. The popularity of both procedures has subsided, but courts of last resort have sought to overcome danger that the true issues will be obscured and confused by investing the trial court with discretion to limit the number of such witnesses and to control cross-examination. **221 Both propriety and abuse of hearsay reputation testimony, on both sides, depend on numerous and subtle considerations, difficult to detect or appraise from a cold record, and therefore rarely and only on clear showing of prejudicial abuse of discretion will Courts of Appeals disturb rulings of

trial courts on this subject.

FN17

FN17 See, e.g., Mannix v. United States, 4 Cir., 140 F.2d 250. It has been held that the question may not be hypothetical nor assume unproven facts and ask if they would affect the conclusion, Little v. United States, 8 Cir., 93 F.2d 401; Pittman v. United States, 8 Cir., 42 F.2d 793; Filippelli v. United States, 9 Cir., 6 F.2d 121; and that it may not be so asked as to detail evidence or circumstances of a crime of which defendant was accused. People v. Marendi, 213 N.Y. 600, 107 N.E. 1058. It has been held error to use the question to get before the jury a particular derogatory newspaper article. Sloan v. United States, 8 Cir., 31 F.2d 902. The proof has been confined to general reputation and that among a limited group such as fellow employees in a particular building held inadmissible. Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509. [18] Wide discretion is accompanied by heavy responsibility on trial courts to protect the practice from any misuse. *481 The trial judge was scrupulous to so guard it in the case before us. He took pains to ascertain, out of presence of the jury, that the target of the question was an actual event, which would probably result in some comment among acquaintances if not injury to defendant's reputation. He satisfied himself that counsel was not merely taking a random shot at a reputation imprudently exposed or asking a groundless question to waft an unwarranted innuendo into the jury box. FN18 FN18 This procedure was recommended by Wigmore. But analysis of his innovation emphasizes the way in which law on this subject has evolved from pragmatic considerations rather than from theoretical consistency. The relevant information that it is permissible to lay before the jury is talk or conversation about the defendant's being arrested. That is admissible whether or not an actual arrest had taken place; it might even be more significant of repute if his neighbors were ready to arrest him in rumor when the authorities were not in fact. But before this relevant and proper inquiry can be made, counsel must demonstrate privately to the court an irrelevant and possibly unprobable factthe reality of arrest. From this permissible inquiry about reports of arrest, the jury is pretty certain to infer that defendant had in fact been arrested and to draw its own conclusions as to character from that fact. The Wigmore suggestion thus limits legally relevant inquiries to those based on legally irrelevant facts in order that the legally irrelevant conclusion which the jury probably will draw from the relevant questions will not be based on unsupported or untrue innuendo. It illustrates Judge Hand's suggestion that the system may work best when explained least. Yet,

despite its theoretical paradoxes and deficiencies, we approve the procedure as calculated in practice to hold the inquiry within decent bounds. The question permitted by the trial court, however, involves several features that may be worthy of comment. Its form invited hearsay; it asked about an arrest, not *482 a conviction, and for an offense not closely similar to the one on trial; and it concerned an occurrence many years past. [19] Since the whole inquiry, as we have pointed out, is calculated to ascertain the general talk of people about defendant, rather than the witness' own knowledge of him, the form of inquiry, Have you heard? has general approval, and Do you know? is not allowed.FN19 FN19 See Stewart v. United States, 70 App.D.C. 101, 104 F.2d 234; Little v. United States, 8 Cir., 93 F.2d 401; Filippelli v. United States, 9 Cir., 6 F.2d 121. [20] A character witness may be cross-examined as to an arrest whether or not it culminated in a conviction, according to the overwhelming weight of authority. FN20 This rule is sometimes confused with that which prohibits cross-examination to credibility by asking a witness whether he himself has been arrested. FN20 See Mannix v. United States, 4 Cir., 140 F.2d 250; Josey v. United States, 77 U.S.App.D.C. 321, 135 F.2d 809; Spalitto v. United States, 8 Cir., 39 F.2d 782, and authorities there cited. **222 [21] Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty. Only a conviction, therefore, may be inquired about to undermine the trustworthiness of a witness. Arrest without more may nevertheless impair or cloud one's reputation. False arrest may do that. Even to be acquitted may damage one's good name if the community receives the verdict with a wink and chooses to remember defendant as one who ought to have been convicted. A conviction, on the other hand, may be accepted as a misfortune or an injustice, and even enhance the standing of one who mends his ways and lives it down. Reputation is the net balance of so many debits and credits that the law does not attach the finality to a conviction when *483 the issue is reputation, that is given to it when the issue is the credibility of the convict. The inquiry as to an arrest is permissible also because the prosecution has a right to test the qualifications of the witness to bespeak the

community opinion. If one never heard the speculations and rumors in which even one's friends indulge upon his arrest, the jury may doubt whether he is capable of giving any very reliable conclusions as to his reputation. In this case the crime inquired about was receiving stolen goods; the trial was for bribery. The Court of Appeals thought this dissimilarity of offenses too great to sustain the inquiry in logic, though conceding that it is authorized by preponderance of authority. It asks us to substitute the Illinois rule which allows inquiry about arrest, but only for very closely similar if not identifical charges, in place of the rule more generally adhered to in this country and in England.FN21 We think the facts of this case show the proposal to be inexpedient. FN21 The Supreme Court of Illinois, in considering its own rule which we are urged to adopt, recognized that the rule adhered to in this State is not consistent with the great weight of authority in this country and in England. People v. Hannon, 381 Ill. 206, 209, 44 N.E.2d 923, 924. Authorities in all states are collected in State v. Shull, 131 Or. 224, 282 P. 237, 71 A.L.R. 1504. [22][23] The good character which the defendant had sought to establish was broader than the crime charged and included the traits of honesty and truthfulness' and being a law-abiding citizen. Possession of these characteristics would seem as incompatible with offering a bribe to a revenue agent as with receiving stolen goods. The crimes may be unlike, but both alike proceed from the same defects of character which the witnesses said this defendant was reputed not to exhibit. It is not only by comparison with the crime on trial but *484 by comparison with the reputation asserted that a court may judge whether the prior arrest should be made subject of inquiry. By this test the inquiry was permissible. It was proper crossexamination because reports of his arrest for receiving stolen goods, if admitted, would tend to weaken the assertion that he was known as an honest and law-abiding citizen. The cross-examination may take in as much ground as the testimony it is designed to verify. To hold otherwise would give defendant the benefit of testimony that he was honest and law-abiding in reputation when such might not be the fact; the refutation was founded on convictions equally persuasive though not for crimes exactly repeated in the present charge. [24] The inquiry here concerned an arrest twenty-seven years before the trial. Events a generation old are likely to be lived down and dropped from the present thought and talk of the community and to be absent from the knowledge of younger or more recent acquaintances. The court in its discretion may well exclude inquiry about rumors of an event so remote,

unless recent misconduct revived them. But two of these witnesses dated their acquaintance with defendant as commencing thirty years before the trial. Defendant, on direct examination, voluntarily called attention to his conviction twenty years before. While the jury might conclude that a matter so old and indecesive as a 1920 arrest **223 would shed little light on the present reputation and hence propensities of the defendant, we cannot say that, in the context of this evidence and in the absence of objection on this specific ground, its admission was an abuse of discretion. [25] We do not overlook or minimize the consideration that the jury almost surely cannot comprehend the Judge's limiting instructions, which disturbed the Court of Appeals. The refinements of the evidentiary rules on this *485 subject are such that even lawyers and judges, after study and reflection, often are confused, and surely jurors in the hurried and unfamiliar movement of a trial must find them almost unintelligible. However, limiting instructions on this subject are no more difficult to comprehend or apply than those upon various other subjects; for example, instructions that admissions of a co-defendant are to be limited to the question of his guilt and are not to be considered as evidence against other defendants, and instructions as to other problems in the trial of conspiracy charges. A defendant in such a case is powerless to prevent his cause from being irretrievably obscured and confused; but, in cases such as the one before us, the law foreclosed this whole confounding line of inquiry, unless defendant thought the net advantage from opening it up would be with him. Given this option, we think defendants in general and this defendant in particular have no valid complaint at the latitude which existing law allows to the prosecution to meet by cross-examination an issue voluntarily tendered by the defense. See Greer v. United States, 245 U.S. 559, 38 S.Ct. 209, 62 L.Ed. 469. [26] We end, as we began, with the observation that the law regulating the offering and testing of character testimony may merit many criticisms. England, and some states have overhauled the practice by statute. FN22 But the task of modernizing the longstanding rules on the subject is *486 one of magnitude and difficulty which even those dedicated to law reform do not lightly undertake. FN23 FN22 Criminal Evidence Act, 61 & 62, Vict. c. 36. See also 51 L.Q.Rev. 443, for discussion of right to cross-examine about prior arrests. For review of English and State legislation, see 1 Wigmore, Evidence (3d ed., 1940) s 194, et seq. The Pennsylvania statute, Act of March 15, 1911, P.L. 20, s 1, discussed by Wigmore has been amended, Act of July 3, 1947, P.L. 1239, s 1, 19 P.S. s 711. The current statute and Pennsylvania practice were considered recently by the Superior Court of that state. Commonwealth v. Hurt, 163 Pa.Super. 232, 60 A.2d

828. FN23 The American Law Institute, in promulgating its Model Code of Evidence, includes the comment, Character, whenever used in these Rules, means disposition not reputation. It denotes what a person is, not what he is reputed to be. No rules are laid down as to proof of reputation, when reputation is a fact to be proved. When reputation is a material matter, it is proved in the same manner as is any other disputed fact. Rule 304. The latter sentence may seem an oversimplification in view of the decisions we have reviewed. The law of evidence of evidence relating to proof of reputation in criminal cases has developed almost entirely at the hands of state courts of last resort, which have such questions frequently before them. This Court, on the other hand, has contributed little to this or to any phase of the law of evidence, for the reason, among others, that it has had extremely rare occasion to decide such issues, as the paucity of citations in this opinion to our own writings attests. It is obvious that a court which can make only infrequent sallies into the field cannot recast the body of case law on this subject in many, many years, even if it were clear what the rules should be. We concur in the general opinion of courts, textwriters and the profession that much of this law is archaic, paradoxical and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counter-privilege to the other. But somehow it has proved a workable even if clumsy system when moderated by discretionary controls in the hands of a wise and strong trial **224 court. To pull one misshapen stone out of the grotesque structure is more likely simply to upset its present balance between adverse interests than to establish a rational edifice. The present suggestion is that we adopt for all federal courts a new rule as to cross-examination about prior arrest, adhered to by the courts of only one state and *487 rejected elsewhere.FN24 The confusion and error it would engender would seem too heavy a price to pay for an almost imperceptible logical improvement, if any, in a system which is justified, if at all, by accumulated judicial experience rather than abstract logic.FN25 FN24 See note 21. FN25 It must not be overlooked that abuse of cross-examination to test credibility carries its own corrective. Authorities on practice caution the bar of the imprudence as well as the unprofessional nature of attacks on witnesses or defendants which are likely to be resented by the jury. Wellman, Art of Cross Examination (1927) p. 167

et seq. The judgment is Affirmed. Mr. Justice FRANKFURTER, concurring. Despite the fact that my feelings run in the general direction of the views expressed by Mr. Justice RUTLEDGE in his dissent, I join the Court's opinion. I do so because I believe it to be unprofitable, on balance, for appellate courts to formulate rigid rules for the exclusion of evidence in courts of law that outside them would not be regarded as clearly irrelevant in the determination of issues. For well-understood reasons this Court's occasional ventures in formulating such rules hardly encourage confidence in denying to the federal trial courts a power of control over the allowable scope of cross-examination possessed by trial judges in practically all State courts. After all, such uniformity of rule in the conduct of trials in the crystallization of experience even when due allowance is made for the force of imitation. To reject such an impressive body of experience would imply a more dependable wisdom in a matter of this sort than I can claim. To leave the District Courts of the United States the discretion given to them by this decision presupposes a *488 high standard of professional competence, good sense, fairness and courage on the part of the federal district judges. If the United States District Courts are not manned by judges of such qualities, appellate review, no matter how stringent, can do very little to make up for the lack of them. Mr. Justice RUTLEDGE, with whom Mr. Justice MURPHY joins, dissenting. The Court's opinion candidly and interestingly points out the anomalous features characterizing the exclusion and admission of so-called character evidence in criminal cases. It also for the first time puts the stamp of the Court's approval upon the most anomalous and, what is more important, the most unfair stage in this evidentiary sequence. There are three stages. The first denies the prosecution the right to attack the defendant's reputation as part of its case in chief, either by proof of bad general reputation or by proof of specific derogatory incidents disconnected from the one charged as the crime. The second permits the defendant, at his option, to prove by qualified witnesses that he bears a good general reputation or at least one not tarnished by illrepute. The witness is forbidden, however, to go into particular incidents or details of the defendant's life and conduct. The witness, once qualified, can state only the general conclusions of the community concerning the defendant's character as the witness knows that reputation. The third stage

comprehends the prosecution's rebuttal, and particularly the latitude of cross-examination to be allowed. I do not agree that this whole body of law is anomalous, unless indeed all the law of evidence with its numerous rules of exclusion and exceptions to them is to be so regarded. Anomalies there are, no doubt **225 with much room *489 for improvement. But here, if anywhere, the law is more largely the result of experience, of considerations of fairness and practicability developed through the centuries, than of any effort to construct a nicely logical, wholly consistent pattern of things. Imperfect and variable as the scheme has become in the application of specific rules, on the whole it represents the result of centuries of common-law growth in the seeking of English-speaking peoples for fair play in the trial of crime and other causes. Moreover, I cannot agree that, in the sequence of the three stages relating to character evidence, the anomalous quality is equally present in each. In my judgment there is a vast difference in this respect between the rulings summarizing our experience in the first two stages and those affecting the third. Regardless of all considerations of mere logical consistency, I should suppose there would be few now, whether lawyers or laymen, who would advocate change in the prevailing rules governing the first two stages of the sequence. In criminal causes especially, there are sound reasons basic to our system of criminal justice which justify initially excluding the Government from showing the defendant's bad general character or reputation. The common law has not grown in the tradition of convicting a man and sending him to prison because he is generally a bad man or generally regarded as one. General bad character, much less general bad reputation, has not yet become a criminal offense in our scheme. Our whole tradition is that a man can be punished by criminal sanctions only for specific acts defined beforehand to be criminal, not for general misconduct or bearing a reputation for such misconduct. That tradition lies at the heart of our criminal process. And it is the foundation of the rule of evidence which denies to the prosecution the right to show generally or by specific details that a defendant bears a bad general *490 estimate in his community. In the light of our fundamental conceptions of crime and of the criminal process, there is nothing anomalous in this exclusion. It is designed to restrain proof to the limits of the charge and to prevent conviction for one offense because perhaps others, or misconduct not amounting to crime at all, have been perpetrated or are reputed generally to lie at the defendant's door.

The rule which allows the defendant to prove his good standing by general reputation is, of course, a kind of exception to the hearsay rule of exclusion, though one may inquiry how else could reputation be proved than by hearsay if it is to be proved at all. This indeed presents the substantial question. Apart from its long acceptance, Edgington v. United States, 164 U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467, the rule allowing the evidence to come in rest on very different considerations from the one which forbids the Government to bring in proof of bad public character as part of its case in chief. The defendant's proof comes as rebuttal. It is subject to none of the dangers involving the possibility of conviction for generally bad conduct or general repute for it which would characterize permitting the prosecution initially to show bad general reputation. The basic reason for excluding the latter does not apply to the defendant's tender of proof. On the positive side the rule is justified by the ancient law which pronounces that a good name is rather to be chosen than great riches. True, men of good general repute may not deserve it. Or they may slip and fall in particular situations. But by common experience this is more often the exception than the rule. Moreover, most often in close cases, where the proof leaves one in doubt, the evidence of general regard by one's fellows may be the weight which turns the scales of justice. It may indeed be sufficient to create a clear conviction of *491 innocence or to sow that reasonable doubt which our law requires to be overcome in all criminal cases before the verdict of guilty can be returned. The apparent anomaly which excludes the prosecution's proof of bad character in the beginning but lets in the defendant's **226 proof of good character is thus only apparent. It is part and parcel of our scheme which forbids conviction for other than specific acts criminal in character and which, in their trial, casts over the defendant the presumption of innocence until he is proved guilty beyond all reasonable doubt. To take away his right to bring in any substantial and pertinent proof bearing upon the existence of reasonable doubt is, so far, to nullify the rule requiring removal of that doubt. I reject the Court's intimation that these considerations have to some extent become obsolete or without substantial effects because we now live in cities more generally than formerly. They are basic parts of our plan, perhaps the more important to be observed because so much of our life now is urban. But, for a variety of reasons, the law allows the defendant to prove no more than his general reputation, by witnesses qualified to report concerning it. He cannot show particular acts of virtue to offset the proof of his specific criminality on any theory that By their fruits ye shall know them. Whether this be because such proof is irrelevant, is too distracting

and timeconsuming, is summarized in the general report of good character, or perhaps for all of these reasons, the rule is settled, and I think rightly, which restricts the proof to general repute. Thus far, whatever the differences in logic, differences which as usual inhere in the premises from which thinking starts, there is no general disagreement or dissatisfaction in the results. All of the states and the federal judicial *492 system as well, approve them. No one would open the doors initially to the prosecution. No one would close them to the defense. But the situation is different when we come to the third stage, that of the prosecution's rebuttal. Obviously rebuttal there should be, when the defendant has opened a line of inquiry closed to the prosecution and has sought to gain advantage by proof which it has had no chance to counteract. But the question of how the rebuttal shall be made presents the difficult problem. There can be no sound objection, of course, to calling witnesses who will qualify as the witnesses for the defense are required to do, but who also will contradict their testimony. And the prosecution may inquire concerning the qualifications of the witnesses for the defense to speak concerning the defendant's general reputation. Thus far there is nothing to exceed the bounds of rebuttal or take the case out of the issues as made. But these have not been the limits of proof and cross-examination. For, in the guise of testing the standards of the witness' when he speaks to reputation, the door has been thrown wide open to trying the defendant's whole life, both in general reputation and in specific incident. What is worse, this is without opportunity for the defendant to rebut either the fact or the innuendo for which the evidence is tendered more generally than otherwise. Hardly any incident, however remote or derogatory, but can be drawn out by asking the witness who testifies to the defendant's good character, Have you heard this' or Have you heard that. And many incidents, wholly innocent in quality, can be turned by the prosecutor, through an inflection or tone, to cast aspersion upon the defendant by the mere asking of the question, without hope of affirmative response from the witness. The dangers, the potential damage and prejudice to the defendant and his cause, have not been more clearly summarized*493 than in the excerpt from Wigmore's classic treatise, quoted in note 4 of the Court's opinion. 335 U.S. 473, 69 S.Ct. 217. His summary of the consequences produced by the rule bears repetition and greater emphasis. He said: The rumor of the misconduct, when admitted, goes far, in spite of all

theory and of the judge's charge, towards fixing the misconduct as a fact upon the other person, and thus does three improper things,(1) it violates the fundamental rule of fairness which prohibits the use of such and not by trustworthy testimony, and (3) facts, (2) it gets at them by hearsay only, **227 it leaves the other person no means of defending himself by denial or explanation, such as he would otherwise have had if the rule had allowed that conduct to be made the subject of an issue. Wigmore, Evidence (3d ed., 1940) s 988. These consequences are not denied. But it is said two modes of protection are available to the accused. One is to refrain from opening the inquiry into his reputation. That answer would have weight if the rebuttal were limited to inquiry concerning the witness' opportunity for knowing the accused and his reputation and to producing contrary evidence by other witnesses of the same general sort as that which is refuted. But if the rule is sound which allows the accused to show his good repute and restricts him to that showing, it not only is anomalous, it is highly unjust, to exact, as the price for his doing so, throwing open to the prosecution the opportunity not only to rebut his proof but to call in question almosy any specific act of his life or to insinuate without proving that he has committed other acts, leaving him no chance to reply. A fair rule either would afford this chance or would restrict the prosecution's counterproof in the same way his own is limited. The prevailing rule changes the whole character of the case, in a manner the rules applying to the two earlier stages seek to avoid. *494 Nor is it enough, in my judgment, to trust to the sound discretion of trial judges to protect the defendant against excesses of the prosecution. To do this effectively they need standards. None are provided under the Court's ruling; indeed it would be difficult to provide them except for each case and question as they might arise. The facts in this case, it seems to me, show the inadequacy of any such general and largely unrestricted delegation. They demonstrate how far and how unfairly the prosecution may be allowed to go in bringing extraneous and immaterial matters to the jury's attention, with however a probable effect of prejudice. Petitioner himself had made a clean breast of his twenty-year-old conviction for violating the New York trademark laws. That fact of course was of some use for testing his character witnesses' standards for speaking to his general repute, although the conviction was so old that conceivably it could have but little weight on the accused's reputation in 1947. Then the prosecution went back seven years further and inquired whether the witnesses had heard that petitioner was arrested on October 11th, 1920 for receiving stolen goods. None of the witnesses had heard of

this fact. The court solemnly instructed the jury that they were not to consider that the incident took place, that all that was happening was that the prosecutor was testing the witness' standard of opinion of the accused's reputation. This, after the court out of the jury's presence had required the prosecutor to make proof satisfactory to the court that the incident had taken place. The very form of the question was itself notice of the fact to the jury. They well might assume, as men of common sense, that the court would not allow the question if the fact were only fiction. And why on October 11th, 1920, rather than merely in 1920 or Have you ever heard of the defendant's being arrested, other than *495 for the trademark violation? Why also for receiving stolen goods'? In my opinion the only answers to these questions are, not that the prosecution was testing the witness' standard of opinion of reputation, but that it was telling the jury what it could not prove directly and what the petitioner had no chance to deny, namely, that he had been so arrested; and thereby either insinuating that he had been convicted of the crime or leaving to the jury to guess that this had been the outcome. The question was a typical abuse arising from allowing this type of inquiry. It should have been excluded. There is no way to tell how much prejudice it produced. Moreover, I do not think the mere question of knowledge of a prior arrest is one proper to be asked, even if inquiry as to clearly derogatory acts is to be permitted. **228 Of course men take such an inquiry as reflecting upon the person arrested. But, for use in a criminal prosecution, I do not think they should be allowed to do so. The mere fact of a single arrest twentyseven years before trial, without further showing of criminal proceedings or their outcome, whether acquittal or conviction, seldom could have substantial bearing upon one's present general reputation; indeed it is not per se a derogatory fact. But it is put in generally, and I think was put in evidence in this case, not to call in question the witness' standard of opinion but, by the very question, to give room for play of the jury's unguarded conjecture and prejudice. This is neither fair play nor due process. It is a perversion of the criminal process as we know it. For it permits what the rule applied in the first stage forbids, trial of the accused not only for general bad conduct or reputation but also for conjecture, gossip, innuendo and insinuation. Accordingly, I think this judgment should be reversed. I also think the prevailing practice should be changed. *496 One judge of the Court of Appeals has suggested we do this by adopting the Illinois rule, FN1 namely, by limiting inquiry concerning specific incidents to questions relating to prior offenses similar to that for which the defendant is on trial. Logically that rule is subject to the same objections as the generally prevailing one. But it

has the practical merit of greatly reducing the scope and volume of allowable questions concerning specific acts, rumors, etc., with comparable reduction of innuendo, insinuation and gossip. My own preference and, I think, the only fair rule would be to foreclose the entire line of inquiry concerning specific incidents in the defendant's past, both on crossexamination and on new evidence in rebuttal. This would leave room for proper rebuttal without turning the defendant's trial for a specific offense into one for all his previous misconduct, criminal or other, and would put the prosecution on the same plane with the defendant in relation to the use of character evidence. This, it seems to me, is the only fair way to handle the matter. FN1 See People v. Hannon, 381 Ill. 206, 211, 44 N.E.2d 923, for the most recent statement of the rule established by Aiken v. People, 183 Ill. 215, 55 N.E. 695; cf. People v. Page, 365 Ill. 524, 6 N.E.2d 845. In North Carolina a character witness may be asked on cross-examination about the general reputation of the defendant as to particular vices or virtues, but not about rumors of specific acts of misconduct. State v. Shepherd, 220 N.C. 377, 379, 17 S.E.2d 469, 470; State v. Holly, 155 N.C. 485, 492, 71 S.E. 450. The Arizona Supreme Court, which once followed the rule adopted by the Court today, Smith v. State, 22 Ariz. 229, 196 P. 420, more recently, in reversing a judgment because a character witness was cross-examined as to his knowledge of specific acts of misconduct, stated that cross-examination should be limited to questions concerning the source of the witness' knowledge of the accused's reputation and should not include questions concerning specific acts of misconduct. Viliborghi v. State, 45 Ariz. 275, 285, 43 P.2d 210. U.S. 1948. Michelson v. U.S. 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 END OF DOCUMENT
B)

UNITED STATES VS. NIXON, 777 F. 2D 958, 2 DECEMBER 1985 -BLESSIE

United States Court of Appeals, Fifth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Arthur Thomas NIXON, David L. Snoddy and Donald E. Gilbreth, DefendantAppellants. No. 843721.

Dec. 2, 1985. Defendants were convicted in the United States District Court for the Eastern District of Louisiana, Veronica D. Wicker, J., of various counts involving the attempted purchase, possession, and distribution of over 40,000 pounds of marijuana, and they appealed. The Court of Appeals, Garza, Circuit Judge, held that: (1) entrapment charge unmistakenly apprised jury of both the quantum of proof required and upon which party burden of proof fell; (2) failure to grant pretrial access to confidential informants did not result in prejudicial error; (3) Government's purported intimidation of witness called by defendant who was acquitted did not prejudice trial of two other defendants; and (4) discretion was not abused in allowing jury to view unintelligible portions of audiovisual tape. Affirmed. West Headnotes [1] Criminal Law 110 735

110 Criminal Law 110XX Trial 110XX(F) Province of Court and Jury in General 110k733 Questions of Law or of Fact 110k735 k. Mixed questions of law and fact. Most Cited Cases Ruling on a motion to dismiss for government overreaching is a matter of law to be decided by the district court and, yet, must necessarily be based on factual findings made by the judge trying the case; thus, the ruling presents a question of mixed law and fact. [2] Criminal Law 110 36.6

110 Criminal Law 110II Defenses in General 110k36.5 Official Action, Inaction, Representation, Misconduct, or Bad Faith 110k36.6 k. In general. Most Cited Cases (Formerly 110k36.5) While conduct alleged to show government overreaching might shock some sensibilities, Court of Appeals must evaluate such conduct in light of undercover activity necessary to enforcement of criminal laws.

[3] Criminal Law 110

36.6

110 Criminal Law 110II Defenses in General 110k36.5 Official Action, Inaction, Representation, Misconduct, or Bad Faith 110k36.6 k. In general. Most Cited Cases (Formerly 110k36.5) Conduct by Government of reverse sting operation, in which undercover agents posed as sellers and used three confidential informants to garner information about illicit drug dealing activity by defendants, did not constitute Government overreaching as a matter of law, notwithstanding claims by defendants that confidential informants were of lawless character and that agents used coercive tactics to prod defendants into drug deal of which they supposedly wanted no part. [4] Criminal Law 110 410.13

110 Criminal Law 110XVII Evidence 110XVII(M) Statements, Confessions, and Admissions by or on Behalf of Accused 110XVII(M)2 Hearsay 110k410.11 Admissions by Party Opponent 110k410.13 k. Particular cases. Most Cited Cases (Formerly 110k406(1)) Defendant's statements to undercover agent about prior drug smuggling activities by defendant constituted admissions by a party opponent and, thus, were non-hearsay. Fed.Rules Evid.Rule 801(d)(2), 28 U.S.C.A. [5] Criminal Law 110 347

110 Criminal Law 110XVII Evidence 110XVII(D) Facts in Issue and Relevance 110k347 k. Nature of criminal act and attendant circumstances. Most Cited Cases Defendant who asserts entrapment as defense exposes himself to searching inquiry into his own conduct and predisposition. [6] Criminal Law 110 1169.5(3)

110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110k1169 Admission of Evidence 110k1169.5 Curing Error by Withdrawal, Striking Out, or Instructions to Jury 110k1169.5(3) k. Other offenses and character of accused. Most Cited Cases In prosecution for attempted purchase, possession, and distribution of over 40,000 pounds of marijuana, in which prosecution defendants asserted defense of entrapment, error, if any, committed by undercover agent in making references in his testimony about his familiarity with some of the defendants through Drug Enforcement Agency files and investigations was not reversible, in that district court, upon objection by defense counsel, adequately cautioned agent to limit his answers to the questions asked. [7] Criminal Law 110 330

110 Criminal Law 110XVII Evidence 110XVII(C) Burden of Proof 110k326 Burden of Proof 110k330 k. Matters of defense and rebuttal in general. Most Cited Cases Criminal Law 110 569

110 Criminal Law 110XVII Evidence 110XVII(V) Weight and Sufficiency 110k569 k. Defenses in general. Most Cited Cases Where defendant raises defense of entrapment, he must present prima facie case that government's conduct created substantial risk that offense would be committed by person other than one ready to commit it; it then becomes government's burden to prove beyond reasonable doubt that defendant was predisposed to commit the charged offense. [8] Criminal Law 110 822(1)

110 Criminal Law 110XX Trial 110XX(G) Instructions: Necessity, Requisites, and Sufficiency

110k822 Construction and Effect of Charge as a Whole 110k822(1) k. In general. Most Cited Cases Generally, Court of Appeals must view district court's charge as a whole and determine whether charge clearly instructed jurors as to principles of laws which they were to apply in deciding factual issues before them. [9] Criminal Law 110 778(2)

110 Criminal Law 110XX Trial 110XX(G) Instructions: Necessity, Requisites, and Sufficiency 110k778 Presumptions and Burden of Proof 110k778(2) k. Sufficiency in general. Most Cited Cases Criminal Law 110 823(9)

110 Criminal Law 110XX Trial 110XX(G) Instructions: Necessity, Requisites, and Sufficiency 110k823 Error in Instructions Cured by Withdrawal or Giving Other Instructions 110k823(9) k. Presumptions and burden of proof. Most Cited Cases Charge on entrapment unmistakingly apprised jury of both quantum of proof required and upon whom the burden of proof fell, in that references to reasonable-doubt standard in entrapment charge made it obvious which party had burden of proof, and general charge, which admonished jury several times that Government had burden to prove guilt beyond reasonable doubt, cured any deficiency that entrapment charge may have contained. [10] Criminal Law 110 627.10(1)

110 Criminal Law 110XX Trial 110XX(A) Preliminary Proceedings 110k627.10 Informers or Agents, Disclosure 110k627.10(1) k. In general. Most Cited Cases Two principal factors to be considered in determining government's obligation to disclose identity and whereabouts of government informers are degree of participation exercised by informant, and probative value of informant's probable testimony in relation to defendant's defense.

[11] Criminal Law 110

627.10(6)

110 Criminal Law 110XX Trial 110XX(A) Preliminary Proceedings 110k627.10 Informers or Agents, Disclosure 110k627.10(6) k. Production or location. Most Cited Cases Informants cannot be compelled to participate in a pretrial interview with defense counsel. [12] Criminal Law 110 1166(10.10)

110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110k1166 Preliminary Proceedings 110k1166(10.10) k. Discovery and disclosure; transcripts of prior proceedings. Most Cited Cases Failure to grant pretrial access to confidential informants who were present at all significant meetings between government agents and defendants did not constitute prejudicial error, in that defendants placed not only two principal informants on witness stand but ex-girlfriend of one of the informants and her roommate as well, who were both privy to much of informants' activities, and there was no information which informants could have revealed to defendants that would have helped them make a showing of Government overreaching or entrapment. [13] Witnesses 410 16

410 Witnesses 410I In General 410k16 k. Subpoena duces tecum. Most Cited Cases Subpoena duces tecum is not a criminal discovery device. Fed.Rules Cr.Proc.Rule 17(c), 18 U.S.C.A. [14] Criminal Law 110 627.10(3)

110 Criminal Law 110XX Trial 110XX(A) Preliminary Proceedings

Most Cited Cases (Formerly 410k16)

110k627.10 Informers or Agents, Disclosure 110k627.10(2) Particular Cases 110k627.10(3) k. Drug and narcotic offenses.

Failure to grant defendants' request to inspect certain files maintained by Drug Enforcement Agency on its confidential informants was not error, in that defendants were attempting to use subpoena duces tecum as a discovery device, and nothing helpful to defendants was found upon an in camera inspection of those files by the district court. Fed.Rules Cr.Proc.Rules 16(a), (a)(2), 17(c), 18 U.S.C.A.; 18 U.S.C.A. 3500(c). [15] Witnesses 410 274(2)

410 Witnesses 410III Examination 410III(B) Cross-Examination 410k274 Cross-Examination of Witness to Character of Party 410k274(2) k. Questions as to particular reports heard by witness. Most Cited Cases Alleged bad act of defendant who has placed his character in issue must have basis in fact, and incidents inquired about of witness who has testified to defendant's character must be relevant to character traits at issue in the trial. [16] Witnesses 410 274(2)

410 Witnesses 410III Examination 410III(B) Cross-Examination 410k274 Cross-Examination of Witness to Character of Party 410k274(2) k. Questions as to particular reports heard by witness. Most Cited Cases Basis in fact for alleged bad act need not be proved as a fact before goodfaith inquiry as to that fact can be made of character witness. [17] Criminal Law 110 110 Criminal Law 110XXIV Review 1170.5(5)

Cases

110XXIV(Q) Harmless and Reversible Error 110k1170.5 Witnesses 110k1170.5(5) k. Cross-examination. Most Cited (Formerly 110k11701/2(5))

Error, if any, in prosecutor's asking three defense character witnesses whether witnesses knew that defendants transported cocaine on bus owned by defendants did not have substantial adverse impact on jury's verdict, in light of sufficient independent evidence of guilt to support defendants' convictions; nonetheless, prosecutor should have laid foundation out of presence of jury before asking questions, in order to give district court opportunity to rule on propriety of asking questions. [18] Criminal Law 110 2020

110 Criminal Law 110XXXI Counsel 110XXXI(D) Duties and Obligations of Prosecuting Attorneys 110XXXI(D)4 Nonproduction of Witness or Rendering Witness Unavailable 110k2020 k. In general. Most Cited Cases (Formerly 110k706(1)) Treatment of defense witness by prosecutor, who had subpoenaed witness in attempt to have him testify against two defendants, did not constitute a substantial interference with witness' willingness to testify for the defense and, thus, did not deprive two other defendants of their right to present witnesses to establish a defense, in that witness testified his treatment by prosecutor had not altered his substantive testimony as a witness for the defense. U.S.C.A. Const.Amends. 5, 6. [19] Criminal Law 110 1171.1(2.1)

110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110k1171 Arguments and Conduct of Counsel 110k1171.1 In General 110k1171.1(2) Statements as to Facts, Comments, and Arguments 110k1171.1(2.1) k. In general. Most Cited Cases (Formerly 110k1171.1(2))

Prosecutorial misconduct involving closing argument constitutes ground for reversal only if prosecutor's argument taken as a whole in context of entire case prejudicially affected substantial rights of defendant. [20] Criminal Law 110 1171.3

110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110k1171 Arguments and Conduct of Counsel 110k1171.3 k. Comments on evidence witnesses, or matters not sustained by evidence. Most Cited Cases

or

Prosecutor's closing argument on rebuttal, allegedly using credibility of prosecutor's office to buttress credibility of Government's witnesses, did not prejudicially affect substantial rights of defendants, in that prosecutor did not go outside evidence presented in the case, and argument was fair reply to defense counsel's closing arguments. [21] Criminal Law 110 1153.11

110 Criminal Law 110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1153 Reception and Admissibility of Evidence 110k1153.11 k. Documentary evidence. Most Cited Cases (Formerly 110k1153(1)) Court of Appeals reviews district court's decision to admit an audiovisual recording under an abuse-of-discretion standard. [22] Criminal Law 110 438(8)

110 Criminal Law 110XVII Evidence 110XVII(P) Documentary Evidence 110k431 Private Writings and Publications 110k438 Photographs and Other Pictures 110k438(8) k. Special types of photographs; enlargements, motion and sound pictures, X-rays. Most Cited Cases Discretion was not abused in allowing jury to view audiovisual tape which was secretly recorded in hotel room at meeting of defendants with undercover drug enforcement agents, even though portions of tape were

unintelligible. *960 Robert F. Barnard, Asst. Fed. Public Defender, New Orleans, La., for nixon. Michael S. Fawer, Salvador G. Longoria, New Orleans, La., for Snoddy & Gilbreth. John P. Volz, U.S. Atty., Peter G. Strasser, Asst. U.S. Atty., New Orleans, La., for plaintiff-appellee. Appeals from the United States District Court for the Eastern District of Louisiana. Before POLITZ, GARZA, and HILL, Circuit Judges: *961 GARZA, Circuit Judge: Defendants were convicted of various counts involving the attempted purchase, possession, and distribution of over 40,000 pounds of marijuana. They appeal their convictions on several grounds, namely: (1) that the government's conduct leading to the attempted purchase of marijuana was sufficiently outrageous to warrant dismissal of the indictment as a matter of law; (2) that the district court erred in admitting certain hearsay testimony relating to defendants' predisposition to criminal conduct; (3) that the district court's defective jury instruction on the issue of entrapment requires reversal as a matter of law; (4) that the district court erred in denying defendants pretrial access to the government's confidential informants and certain other records; (5) that several instances of prosecutorial misconduct invalidated the legality of the proceedings and denied defendants a fair trial, and (6) that the district court erred in permitting the jury to view an allegedly inaudible audiovisual tape. For the reasons which follow, we affirm the conviction. FACTS This case began as a reverse sting operation whereby Drug Enforcement Agency (DEA) agents posed as sellers, rather than as buyers, of a

controlled substance. Although the defendant-appellants' version of the facts differs markedly from that of the government, we will set out the facts as objectively as possible. David Paige (alias David Cohen), a DEA agent posing as a drug dealer, used three confidential informants; James McMillan, Donald Smith, and James Marshall, to garner information about illicit drug dealing activity by the three defendants; Donald Gilbreth, David Snoddy, and Arthur Tommy Nixon. FN1 Although the confidential informants (CIs) apparently thought of themselves as special federal agents, it seems that these three men were more at home with other criminals than with drug enforcement personnel. Their need for money is what motivated them to help make cases for the government. In other respects, the three CIs appeared to be as lawless as any con man or drug dealer. FN1. Two other defendants; William Max Rhodes and Samuel Burchard, were also indicted. These two men played lesser roles in this drama and both were acquitted. Defendants Gilbreth and Snoddy were introduced to Donald Smith and James McMillan, two of the CIs, in the late summer of 1983 in Meridian, Mississippi. Without the government's knowledge, Smith and McMillan originally intended to con Gilbreth and Snoddy, but decided that this would be too dangerous. Instead, the CIs led the defendants to DEA agents posing as big-time drug smugglers. The initial meeting between the defendants and the undercover agents occurred on October 26, 1983, in New Orleans, Louisiana. According to the defendants, the purpose of this meeting was merely to try to sell the agents some real estate in Florida. Instead, the agents offered to sell the defendants a large quantity of marijuana and tried to close a deal. The defendants say they merely listened to the sales pitch but did not show any interest in the deal. The government claims that the defendants were very interested in making a drug deal and that they offered several of their real estate holdings as consideration for the transaction. No final agreement was reached at this time and the men each went their separate ways. The next meeting between the defendants and the agents took place on November 12, 1983, in Jackson, Mississippi.FN2 It is not clear whether this meeting was contemplated at the October 26th meeting in New Orleans or whether it was set up subsequently by either side. In any event, one of the CIs had informed Agent Paige that *962 the defendants were interested in making a deal for only 20,000 pounds of marijuana rather than the 140,000 pounds originally offered to them at the October 26th meeting in New Orleans. When defendant Nixon counterproposed a smaller deal, Agent Paige

acted surprised and upset. The men happened to be riding in a car at the time, and Paige demanded that the car be stopped in a nearby parking lot. Paige heatedly told defendant Snoddy that he had expected to go through with a deal for 140,000 pounds of marijuana. Now he would be left holding 120,000 pounds of weed, risking exposure to law enforcement officials, and the displeasure of his boss, George. The defendants contend that Paige's temper tantrum, coupled with insinuations of possible violence to the defendants by George and his cohorts, was a central factor in motivating them to negotiate with Paige. Paige, however, contends that his temper tantrum in the parking lot was simply an exhibition consistent with his undercover role as a big-time drug smuggler. Paige testified that any mention of possible violence because of this new development was strictly in regard to violence to himself by George, his boss. The defendants were not threatened or intimidated. FN2. Gilbreth was not at this meeting. On November 16, 1983, defendant Snoddy and Agent Paige again discussed the marijuana deal. The defendants were apparently having difficulty obtaining cash with which to buy the 140,000 pounds of marijuana but they remained interested in buying a smaller amount. Paige informed Snoddy that 100,000 pounds of the marijuana had been sold to someone else and that 42,000 pounds remained. Paige and another agent, posing as a lieutenant of George, met with defendants Snoddy, Gilbreth, and Nixon on November 21, 1983, in Hammond, Louisiana, to further discuss the transaction. Several arrangements were made that day. The down payment for the 42,000 pounds of marijuana was set at $200,000 but the condominiums in Destin, Florida would be part of the deal. The five men flew to Destin, Florida in Snoddy's airplane to inspect the properties. Defendants Snoddy, Gilbreth, and Nixon had also indicated that they wanted to see the marijuana before buying it. The DEA had recently seized a boatload of Colombian marijuana and the appropriate quantity was placed on a farm outside of Hammond, Louisiana for display to the defendants. After inspecting the weed, defendants Snoddy and Gilbreth signed a document transferring ownership of the condominiums in Destin, Florida to Agent Paige. Defendant Nixon was responsible for sending an eighteenwheel tractor trailer to pick up the marijuana and transport it to a farm in Corinth, Mississippi for safekeeping. The parties agreed that one of Paige's associates would stay at the farm in Corinth to protect Paige's investment. On November 27, 1983, defendant Nixon called Paige to inform him that he was only able to obtain $100,000 rather than $200,000 cash to pay for

the marijuana. Paige acted disappointed but told Nixon to come to the farm in Hammond, Louisiana, anyway and that possibly something could be worked out. Upon his arrival at Hammond, Louisiana, Nixon told Agents Paige and Ruggerio that two truck drivers and a truck were waiting nearby at the Hammond Holiday Inn to load the marijuana. The number of the room the drivers were in would be etched in the dirt on the truck door. When he was arrested, Nixon was carrying $50,000 cash and the deeds to two farms he owned in Alabama and Tennessee. Agent Ruggerio proceeded to the Holiday Inn where he found the truck described by Nixon. The truck drivers were arrested as they left their hotel room to go to the farm. Defendants Snoddy and Gilbreth, who were not present in Hammond, Louisiana, at the time, were arrested later. On January 27, 1984, a sixteen-count superseding indictment was returned against defendants Snoddy, Gilbreth, Nixon, Burchard, and Rhodes. The defendants were charged with conspiring to commit an offense against the United States, 18 U.S.C. 371; traveling in interstate commerce in *963 aid of an unlawful enterprise, 18 U.S.C. 1952; aiding a principal in the commission of an offense, 18 U.S.C. 2; attempted possession of a controlled substance, 21 U.S.C. 846; And using a communication facility in the commission of a felony, 21 U.S.C. 843(b).FN3 FN3. The original indictment contained only eleven counts. The superceding indictment added charges against Snoddy and Nixon for use of the telephone in the attempted possession of marijuana. 21 U.S.C. 843(b). Defendants filed a pretrial motion to dismiss the indictment on grounds of governmental overreaching. A pretrial hearing on the motion was held but the district judge opted to reserve her ruling until after hearing further evidence during the course of the trial. On the 13th day of trial, after all except the rebuttal evidence was in, the district court ruled against defendants on their motion to dismiss because of government overreaching. The court found that neither the conduct of the government agents nor that of the confidential informants was sufficiently outrageous to have violated defendants' due process rights. The defendants contend that this was error and point to the lawless character of the confidential informants as well as the coercive tactics of the government agents in prodding the defendants into a drug deal that they supposedly wanted no part of. Distasteful as the tactics of the DEA agents may seem, our decision is governed by certain legal standards peculiar to appellate review. I. Government Overreaching or Entrapment? A. Government Overreaching.

Among their numerous contentions, the defendants urge two related but distinct defenses. These are based on the concept of entrapment which has been fleshed out in several United States Supreme Court and federal circuit court cases. Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); United States v. Gray, 626 F.2d 494 (5th Cir.1980), cert. denied, 449 U.S. 1091, 101 S.Ct. 887, 66 L.Ed.2d 820 (1981); United States v. Graves, 556 F.2d 1319 (5th Cir.1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516 (1978). In his pretrial motion to dismiss, defense counsel advanced the argument that outrageous governmental misconduct in the enforcement of the criminal laws invalidated an indictment that results from such an investigation regardless of the defendant's predisposition to commit the crime. The district court reserved its ruling on this motion until hearing further evidence during the trial itself that might be probative on the issue of government overreaching. On the thirteenth day of trial, the district court denied defendant's motion to dismiss for government overreaching. [1][2][3] Although a ruling of this type is a matter of law to be decided by the district court, it must necessarily be based on factual findings made by the judge trying the case. This presents a question of mixed law and fact. After reviewing the record evidence we cannot say that the factual basis of the district court's ruling was clearly erroneous nor do we find government overreaching as a matter of law.FN4 While the government's conduct might shock some sensibilities, we must evaluate *964 it in light of the undercover activity necessary to the enforcement of the criminal laws. Under these circumstances, we do not find the government's conduct sufficiently outrageous to warrant dismissal of the indictment as a matter of law.FN5 FN4. In Hampton v. United States, supra, the plurality held that the defense of government overreaching as a matter of law was precluded if the predisposition of the defendant to commit the crime was established. Justice Rehnquist stated for the plurality, [t]he limitations of the Due Process Clause of the Fifth Amendment come into play only when the government activity in question violates some protected right of the defendant. 425 U.S. at 490, 96 S.Ct. at 1650 (emphasis in original). In a concurring opinion, however, Justice Powell disagreed with the plurality's reliance on language from Russell, supra, to foreclose the court's supervisory power to bar conviction of a predisposed defendant because of outrageous police conduct. Id. at 493, 96 S.Ct. at 1651. Under our facts, we need not

address this issue. FN5. Throughout the trial defense counsel persistently placed into evidence both the illegal and immoral misdeeds of the government agents and the informants. The confusion attendant to the distinction between the related but distinct concepts of government overreaching and entrapment probably contributed to the length of this trial, as the following colloquy between the court and the parties shows: COURT: What we are interested in here, on this trial, is not Government overreaching. We, here, during the course of the trial, will be hearing any type of evidence that you can present as to entrapment, which is an entirely different ball game. DEFENSE: It's not entirely different. COURT: Oh, yes, it is. And this is something that I can see we are going to have a lot of fun tomorrow in this case. DEFENSE: The only difference betweenthe only basic difference between the two, it was a situation that the predisposition of a defendant makes not one bit of difference in an overreaching situation, and the test I have, that's the only real difference, is to look at it and analyze it through. I can have on my hands Hitler and if the Government overreached, the case gets thrown out. COURT: Let me just DEFENSE: But the point is an entrapment case, they can come back with predisposition. COURT: As a matter of fact, isn't that what the whole thing is all about. DEFENSE: What? COURT: In entrapment. DEFENSE: I'm sorry, what COURT: Is predisposition. DEFENSE: Well, first, we got entrapment, then comes predisposition. You can't have

GOVERNMENT: No, no, no. As long as we're going to discuss this 18 Record at 17172. B. Entrapment. Although defendants contend that the jury charge on entrapment was defective, we note that the jury did not find for defendants on the issue of entrapment. Defendants level two arguments against the jury finding of no entrapment. First, defendants contend that the district court erroneously allowed hearsay statements relating to the defendants' predisposition to criminal activity into evidence. The second, briefly mentioned previously, concerns a defective jury instruction on entrapment. We will address the hearsay complaint first. 1. Hearsay Regarding Predisposition. During his examination, Agent Paige made several non-elicited responses regarding prior unlawful acts of one or more of the defendants. Once, Paige testified that he had viewed a photograph of defendant Nixon in a DEA file, and he alluded to other investigations by the DEA concerning defendant Burchard. The district judge instructed the witness to limit his answers to the questions asked. But Paige also testified about statements by defendant Nixon that elaborated on prior drug smuggling and drug transporting ventures of the defendants. The district court overruled the objections to this testimony. Defendants rely on United States v. Webster, 649 F.2d 346 (5th Cir.1981) (en banc), which prohibited the practice of allowing gross hearsay statements into evidence to prove defendants' predisposition because this practice resulted, in the very evils that the rule against hearsay was designed to prevent and that it was difficult to envision, a situation where the disparity between the probative value and prejudicial effect of evidence is greater. 649 F.2d at 350 (footnotes omitted). [4][5][6] However, Webster should not be read as broadly as defendants would like. Webster does not prohibit the use of hearsay evidence per se. It held that, hearsay evidence is only admissible in an entrapment case under the usual rules relating to hearsay, so that hearsay may not be introduced as evidence of predisposition. 649 F.2d at 347 (emphasis added). Defendant Nixon's statements to Agent Paige about prior drug smuggling activities fall under the rule of admissions by a party opponent, which are deemed nonhearsay. Fed.R.Evid. 801(d)(2). Moreover, even though Webster placed limits on the type of evidence that can be used to prove predisposition,*965 a defendant who asserts entrapment as a defense exposes himself to a

searching inquiry into his own conduct and predisposition.... Sorrells, 287 U.S. at 451, 53 S.Ct. at 216; United States v. Dickens, 524 F.2d 441, 444 (5th Cir.1975), cert. denied, 425 U.S. 994, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976). It may have been error for Agent Paige to make references about his familiarity with some of the defendants through other DEA files and investigations, but we find that the trial judge, upon objection by defense counsel, adequately cautioned the witness. The prejudicial effect, if any, would not have justified a mistrial and does not, on appeal, amount to reversible error. 2. The Jury Charge. [7] When a defendant raises the defense of entrapment, he must present a prima facie case that the government's conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it. Pierce v. United States, 414 F.2d 163, 168 (5th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969). It then becomes the government's burden to prove beyond a reasonable doubt that the defendant was predisposed to commit the charged offense. Id. The defendants were allowed to submit to the jury the issue of entrapment. They claim, however, that the charge was fatally defective. Defendants contend that case law requires a charge to tell the jury two things: what the quantum of proof required is and that the government bears the burden of proof.FN6 Further, they argue that this Circuit follows a per se rule of reversible error if one or both of these elements is missing from the jury charge. We disagree. FN6. The jury charge read: If, then, the jury should find beyond a reasonable doubt from the evidence in the case that, before anything at all occurred respecting the alleged offense involved in this case, a defendant was ready and willing to commit a crime such as charged in the indictment, whenever opportunity was afforded, and that Government officers or their agents did no more than offer the opportunity, then the jury should find that the Defendant is not a victim of entrapment. On the other hand, if the evidence in the case should leave you with a reasonable doubt whether the Defendant had the previous intent or purpose to commit an offense of the character charged, apart from the inducement or persuasion of some officer or agent of the Government, then it is your duty to find him not guilty. (emphasis added). Although defendants correctly note that the charge on entrapment does

not specifically tell the jury that the burden of proof falls on the government, it avoids the error that was at issue in Notaro v. United States, 363 F.2d 169 (9th Cir.1966) and United States v. Wolffs, 594 F.2d 77 (5th Cir.1979), on which defendants rely. In Notaro, the Ninth Circuit approved the first paragraph of the charge on entrapment, which is almost identical to the first paragraph in this case, but disapproved of the second paragraph for several reasons. FN7 The court found it reasonably probable that the wording of the charge confused the jurors about which party carried the burden of proof on this defensive issue. It also found that by the wording of the instruction the jury was not permitted to acquit the accused unless it should find from the evidence that the necessary elements of the defense existed. *966363 F.2d at 176. This imposed a heavier burden on the accused than was allowable because he was entitled to be acquitted if from the evidence the jury retained a reasonable doubt that the elements of the defense of entrapment had been excluded. Id. Thus, despite the court's obligation to evaluate the instructions in their entirety, it was compelled to hold that charge fatally defective, notwithstanding that the general instructions properly placed the burden of proof on the government. Notaro, 363 F.2d at 17576. FN7. The challenged instructions in Notaro read, in pertinent part: If, then, the jury should find beyond a reasonable doubt from the evidence in the case that before anything at all occurred respecting the alleged offense involved in this case, the accused was ready and willing to commit crimes such as charged in the indictment, whenever opportunity was offered and that the Government agents did no more than offer the opportunity, the accused is not entitled to the defense of unlawful entrapment. On the other hand, if the jury should find from the evidence in the case that the accused had no previous intent or purpose to commit any offense of the character here charged, and did so only because he was induced or persuaded by some agent of the Government, then the defense of unlawful entrapment is a good defense and a jury should acquit the defendant. Notaro, 363 F.2d at 173 (emphasis added by the Notaro court, footnote omitted). Wolffs adopted the rule of Notaro on this issue, 594 F.2d at 82, and found the instruction in Wolffs, which was even more egregious than the one in Notaro, fatally defective also.FN8 The instruction in Wolffs made absolutely no mention of the quantum of proof required (beyond a reasonable doubt)

or upon which party the burden of proof fell. Yet the court in Wolffs did not stop after finding the instruction defective; it went on to make the statement that the instruction must apprise the jury that the burden is on the government,FN9 even though the Notaro instruction did not contain such a statement.FN10 This statement occurs after the court finds the instruction defective based on Notaro; therefore, the statement is dicta because it was not necessary to the decision. While the instruction given in this case does not comply with the dicta in Wolffs, the instruction does cure the defect that concerned the court in Notaro. FN8. The challenged instructions in Wolffs read, in pertinent part: So, if you as the Jurors, having heard the evidence in the case, conclude that before anything at all occurred respecting the alleged offense involved in this case, the defendant was ready and willing to commit crimes such as those charged in the indictment when a favorable opportunity was offered and the Government merely offered him the opportunity, then the defendant is not entitled to the defense of unlawful entrapment. If, on the other hand, you find that the defendant had no previous intent or purpose to commit any offense of the character charged and did so only because he was induced, or persuaded by some Agent of the Government, then the prosecution would have seduced an innocent person and the defense of entrapment would be a good defense, and of course, in that event the defendant should be acquitted. FN9. Defendants rely on language from Wolffs, which reads: The language of an entrapment instruction must unmistakably apprise the jury that the burden is upon the government to prove beyond a reasonable doubt that, before anything at all occurred respecting the alleged offense for which the defendant is being prosecuted, the defendant was ready and willing to commit such crimes whenever an opportunity was afforded, and that government agents did no more than offer the opportunity. The instruction also must be unmistakably clear in informing the jury that if the evidence in the case leaves a reasonable doubt as to whether defendant had the predisposition to commit an offense of the character charged, apart from the government inducement or persuasion, the defendant must be found not guilty. 594 F.2d at 83 (emphasis supplied in defendants' brief). FN10. See supra note 8.

[8][9] Moreover, the general rule in this Circuit regarding the adequacy of jury instructions requires us to view the court's charge as a whole and determine whether it clearly instructs the jurors as to the principles of laws which they are to apply in deciding the factual issues before them. United States v. Cronin, 717 F.2d 164, 170 (5th Cir.1983), cert denied, 468 U.S. 1217, 104 S.Ct. 3586, 82 L.Ed.2d 884 (1984). We find that the charge as given, unmistakingly apprises the jury of both the quantum of proof and upon whom the burden falls. The charge does not ramble or appear confused, and references to the reasonable doubt standard in the entrapment portion of the charge make it obvious who had the burden of proof.FN11 Also, the court's general*967 charge, which admonishes the jury several times that the government has the burden to prove guilt beyond a reasonable doubt, cures any deficiency that the instruction on entrapment may contain. FN11. The court's charge on entrapment provided in its entirety: These three defendants, Mr. Snoddy, Gilbreth, and Nixon assert that they were victims of entrapment as to the offenses charged in the indictment. Where a person has no previous intent or purpose to violate the law, but is induced or persuaded or pressured by law enforcement officers or their agents to commit a crime, he is a 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 readiness and willingness to break the law, the mere fact that Government agents provide what appears to be a favorable opportunity is not entrapment. For example, it is not entrapment for a Government agent to pretend to be someone else and to offer, either directly or through an informer or other decoy, to engage in an unlawful transaction. Therefore, entrapment is shown where it appears that a law enforcement officer or someone acting under his control or direction instigates the defendant to commit an offense, or reinitiates an offer to participate in a crime which the defendant previously turned down, and which the defendant otherwise would not have committed and had no intention of committing. It is not entrapment, however, if the defendant already had the requisite criminal intent, and the officer, or someone acting for him, merely furnished the defendant with the opportunity to commit the offense.

If then, the jury should find beyond a reasonable doubt from the evidence in the case that, before anything at all occurred respecting the alleged offenses involved in this case, a defendant was ready and willing to commit a crime such as charged in the indictment, whenever opportunity was afforded, and that Government officers or their agents did no more than offer the opportunity, then the jury should find that the defendant is not a victim of entrapment. On the other hand, if the evidence in the case should leave you with a reasonable doubt whether a defendant had the previous intent or purpose to commit an offense of the character charged, apart from the inducement or persuasion of some officer or agent of the Government, then it is your duty to find him not guilty. 14 Record at 24546 (emphasis added). II. Pretrial Access to Government Information A. The Confidential Informants Defendants also complain about the district court's failure to grant them pretrial access to the CIs involved in making this arrest. Defendants claim that a pretrial interview with the CIs would have helped them prove their defenses of government overreaching and entrapment. We have no problem in dismissing this complaint. [10] The United States Supreme Court addressed the government's obligation to disclose the identity and whereabouts of government informers in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d (1957). Roviaro recognized that no fixed rule with respect to disclosure is justifiable and that [t]he problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defenses. 353 U.S. at 62, 77 S.Ct. 628. Two principal factors in striking the balance are the degree of participation exercised by the informant, United States v. Alonzo, 571 F.2d 1384 (5th Cir.1978), cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978); Alvarez v. United States, 525 F.2d 980 (5th Cir.), cert. denied, 425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 (1976), and the probative value of the informant's probable testimony in relation to the defendant's defense. United States v. Davis, 487 F.2d 1249, 1251 (5th Cir.1973); United States v. Acosta, 411 F.2d 627, 630 (5th Cir.1969). At an ancillary hearing before a magistrate, the court found that the informants were not active participants in the transactions in question and denied defendants' motion for disclosure of the informants' identities and whereabouts.

[11] Nonetheless, after much prodding by defense counsel, the government disclosed the identities of the informants and produced the two principal informants at trial, where they testified as defense witnesses. The record does not reveal whether the whereabouts of the informants had been disclosed before trial. In its appellate brief, the government asserts that the informants were made available to defense counsel for a pretrial interview but that the informants chose not to speak with counsel for defendants.FN12 FN12. We note that the informants cannot be compelled to a pretrial interview with defense counsel. United States v. Opager, 589 F.2d 799, 804 n. 11 (5th Cir.1979). [12] In United States v. Fischel, 686 F.2d 1082 (5th Cir.1982) we held that the government must have some valid reason for withholding an informant's address when the informant may have information *968 pertinent to the defendant's theory of defense. Id. at 109293. The government in this action opposed such disclosure on the ground that the informants were not actively involved in the transactions in question. FN13 While the accuracy of this finding is dubious in light of the consistent presence of the informants at all the significant meetings between the DEA agents and the defendants, we do not find any prejudicial error in the defendants' failure to get a pretrial interview with the informants. FN14 The defendants placed not only the two principal informants on the witness stand but the ex-girlfriend of one of the informants and her roommate as well, who were both privy to much of the informants' activities. Even assuming, however, that the defendants were wrongfully denied pretrial access to the informants, our review of their testimony convinces us that there was no information that the CI's could have revealed to the defendants that would have helped them make a showing of government overreaching or entrapment. FN13. In fairness to the defendants, the government was unable to give a good reason why the confidential informants should not be produced. The following exchange took place during the hearing on defendants' motion to dismiss because of government overreaching: DEFENSE: I would like to see them [the informants] here for the purposes of this hearing because we've raised a very substantial overreaching case, and why I say that, Judge, look at the case, one of the things that's germane, if you hold out a pot that the inducement is so great, in effect, what the law is, that even Christ, will all due respect, would succumb to a certain amount of money, and that it's part of human frailty to give in to that. They're holding out a potential of millions to the defendant....

COURT: I think you've made your point here. Does anybody wish to respond? GOVERNMENT: No, ma'am. COURT: Well, let me say this, I will agree with [defense counsel] that there has been nothing said by the Government as to why these informants should not appear at the trial. GOVERNMENT: Your Honor, it's the Government's position that these informants are very much afraid of those defendants and that we don't want them here because those defendants are on bond right now. We have them here in the Courthouse, then the informants are placed in jeopardy. That's the Government's position. COURT: Well, who is to say thatwell, that sounds weak to me, Ms. Homberg. I need something more than that. 9 Record at 31113. FN14. It also appears from the record that defense counsel was satisfied with calling the informants to the stand and foregoing a pretrial interview. At the hearing on the motion to dismiss defense counsel stated: And the final thing, Your Honor, just so we understand the parameters of what I'm asking for, I would, once again, based on this entire record as we have it at this point, ask that these confidential informants, whose names we have, that we be given access to them so that we can serve them with subpoenas. I'm not interested in interviewing them. I want to put them right on the stand. I want to put them on the stand for the purpose of the overreaching motion and I want to use the power of compulsory process available to the defendant to put them on the stand in the course of the trial itself. 9 Record at 30293 (emphasis added). We're really here in an overreaching case and in the course of doing so have concomitantly raised the defense ofraised the fact that they clearly have a legitimate entrapment defense and I want to prove it from the lips of the people who did the entrapping, and he's telling me I can't put on the witnesses that I say did it. I have the right. I always thought in this Court I have the right to subpoena who I say is relevant, and I say those three witnesses,

those three informants whose names I knowand by the way, Judge, no one has yet given me one centilla [sic] of reason of why they should not be brought in. There's no jeopardy issue because we know their names. I'll never ask where they live because I don't care where they live. I just want to see them sitting behind that microphone and want the process of the United States to get them here and I want the Court to insist, with all due respect, that they be made available for the defense of criminalfor the criminal defendants in this Courtroom, and that's all I want. 9 Record at 311 (emphasis added). B. The DEA Files on the Informants [13][14] Along with their request for access to the confidential informants, the defendants also requested to inspect certain files maintained by the DEA on its confidential informants. We agree with the government's contention that defendants were attempting to use the subpoena duces *969 tecum as a discovery device, which it is not. Bowman Dairy Co. v. United States, 341 U.S. 214, 220, 71 S.Ct. 675, 95 L.Ed. 879 (1951); Fed.R.Crim.P. 17(c). Under the plain language of Rule 16(a) the defendants were not entitled to: [T]he discovery or inspection of reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses except as provided in 18 U.S.C. 3500. Fed.R.Crim.P. 16(a)(2). Although the relevancy, much less the probativeness of the DEA files on the informants was at best attenuated, the court agreed to an in camera inspection of these files. FN15 Nothing helpful to the defendants turned up. FN15. 18 U.S.C. 3500(c) provides, in pertinent part: (c) If the United States claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the United States to deliver such statement for the inspection of the court in camera. III. Prosecutorial Misconduct Defendants attack next three alleged instances of prosecutorial misconduct that prejudiced their defense. First, defendants maintain that the prosecutor lacked a good faith basis for asking three defense character

witnesses whether they knew that defendants Snoddy and Gilbreth transported cocaine on a bus owned by them. Second, defendants claim that the prosecution intimidated a witness and pressured him to testify on the government's behalf. Third, defendants contend that the prosecutor made an improper closing argument. We will examine each contention in turn. A. Good Faith Basis On the ninth day of trial defendants Gilbreth and Snoddy put on three character witnesses who had business dealings with these two defendants. Two of the witnesses, Scott Ray and William Phipps, bank officers at the Bank of Lexington and the Southern Bank of Lauderdale County respectively, knew defendants Snoddy and Gilbreth because of certain loans taken out by them through each of the banks.FN16 The third witness, Roger Pettus, was in the automobile business but also had overlapping business interests with defendants Snoddy and Gilbreth. One of defendant Gilbreth's businesses was the leasing of a customized bus to traveling music stars. FN17 The purchase of one particular bus was financed by a purchase money loan from the Bank of Lexington. Scott Ray, an officer of the bank, knew that the bus served as collateral for the loan but he did not know any specifics about the bus. William Phipps and Roger Pettus knew that one of Gilbreth's businesses was the leasing of this bus to music stars but knew little else about it. FN16. At the time of trial, William Phipps was no longer a bank officer. He was an officer of a real estate development company. He was also associated with defendant Gilbreth in the development of a bowling center. FN17. Defendants Snoddy and Gilbreth appear to have had a variety of business interests. These ranged from real estate development and townhouse construction to an interest in a bowling center and to the leasing of these celebrity busses. On cross-examination of Scott Ray, the prosecuting attorney asked the witness whether he knew if the bus was used to transport large quantities of cocaine. Defense counsel reacted by questioning the government's good faith basis for suggesting that fact to the jury. The government intimated that it had a basis in fact for asking the question and that it would provide it to the court. Defense counsel did not object when the government asked substantially the same question of Roger Pettus and William Phipps. At a post-verdict bond hearing for the defendants, the government produced two pictures that had been seized by Alabama law enforcement officers at the home of defendant Snoddy's brother pursuant to a *970 search warrant for marijuana unrelated to the charges made in this case. The pictures depicted several persons inside some kind of vehicle handling

what appeared to be cocaine. The court did not rule on this issue at the bond hearing. This issue was taken up again several months later at a hearing on defendants' motion for new trial. Defense counsel placed the U.S. Attorney on the stand to elicit testimony about her good faith basis for having asked questions about the transportation of cocaine on a bus owned by defendant Gilbreth. At this hearing it developed that the pictures the prosecuting attorney relied on as a good faith basis had apparently been taken before Gilbreth had ever owned the bus. It turned out that the pictures had not been taken inside a bus, rather they apparently had been taken inside a converted railway car located outside the Chattanooga Choo Choo Hilton in Chattanooga, Tennessee and rented out as lodging by the hotel. The U.S. Attorney also testified, however, that she had relied on hearsay statements by certain Alabama police officers familiar with the defendants to the effect that defendant Snoddy had transported cocaine on busses that were leased out to music celebrities. [15][16] We will not launch into a discourse on the practical and theoretical underpinnings of the law of evidence that allows a prosecuting attorney to probe a defense character witness's familiarity with the defendant by asking questions about purported prior bad acts of the defendant. We note only that the potential for abuse here, by wafting before the jury did you know? type questions that have no basis in fact but which can be fatal to the defendant, has led to the imposition of two safeguards that should be complied with before such questions may be asked in the presence of a jury. First, the alleged bad act must have a basis in fact and second, the incidents inquired about must be relevant to the character traits at issue in the trial. Michelson v. United States, 335 U.S. 469, 481 n. 18, 69 S.Ct. 213, 221, 93 L.Ed. 168 (1948); United States v. Crippen, 570 F.2d 535, 53839 (5th Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979). That does not mean that the basis in fact must be proved as a fact before a good faith inquiry can be made. See United States v. Bright, 588 F.2d 504, 512 (5th Cir.), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979) (government's proffer of a letter of reprimand for stipulation and its willingness to reopen the case in an attempt to prove fact of defendants' (an attorney) reprimand by a judge and the bar association demonstrated the necessary good faith factual basis for cross-examination of defense character witness, an attorney, regarding defendant's reprimand). [17] The government should have laid a foundation out of the presence of the jury before asking these questions, to give the judge an opportunity to rule on the propriety of asking them. Defense counsel attempts to make much of the fact that the prosecuting attorney erred in her evaluation of the pictures. Nonetheless, after hearing argument and evidence from both

parties the district court found that the government had a good faith basis for asking the questions.FN18 The court further *971 found that even if the questions based on the photographs should not have been asked, there was sufficient independent evidence of guilt to support the jury verdict and the error, if any, did not have a substantial adverse impact on the jury's verdict. FN19 United States v. Rodriguez, 524 F.2d 485, 487 (5th Cir.1975), cert. denied, 424 U.S. 972, 96 S.Ct. 1474, 47 L.Ed.2d 741 (1976). We see no reason to disturb this finding. FN18. We quote from the record verbatim: COURT: Now, as far as the good faith basis, I feel that based upon what Ms. Homberg has testified to and my recollection of what the testimony was that she had, that it was reasonable for her to find or to believe that these were pictures taken of a bus. They certainly look like a bus. The fact that it was some lounge somewhere, nobody brought that out, we didn't know about it until after trial. Based upon what Mr. Brown had told her, certainlyit certainly tied Mr. Snoddy in with that, and based upon what McMillon and some of the other confidential informants testified to, there was every reason for her to believe that the bus in question was Mr.the pictures in question involved Mr. Gilbreth's bus, or the fact that she may have asked those questions. But, assuming, however, this case here went on a long time, there was a lot of hot tempers involved and a lot of problems that arose during the course of the trial. I feel that with viewing it, an overall view of all of the testimony presented, I find that there was sufficient evidence for the Jury to conclude as to what they did come up with, and that if these photographs in question should not have been asked, that the error that was made was not so overwhelming as to grant a new trial, did not prejudice the defendants because of the other sufficient evidence that was offered. 17 Record at 6566 (emphasis added). FN19. Defense counsel's conspicuous failure to object in no uncertain terms to these questions at the time they were asked, and his vehement argumentation on this point after the verdict came in leads us to conclude that defense counsel either did not believe, at the time the questions were asked, that they were prejudicial or chose to minimize their impact by simply remaining silent. If the former, then we are correct in our view that the defendants were not prejudiced by these questions. If the latter, then defense counsel's tactical decision carried the risk of an adverse jury verdict and a waiver on this point

of error. We have reviewed the record closely on this point and are convinced that defense counsel's heavy reliance on this point after receiving an unfavorable verdict was an attempt to have his cake and eat it too. B. Government Interference with a Defense Witness The second instance of prosecutorial misconduct raised by the defendants involves the alleged intimidation of a defense witness by the government attorney. Albert Neal Aycock was called at the instance of defendant Rhodes. He was a farmer and had a business interest in a company that sold farm equipment. He knew defendants Rhodes and Nixon through his business dealings with them. Aycock testified that at a chance meeting with defendant Nixon, Nixon had asked him if he knew of anyone that could haul some farm equipment he had just bought. Aycock referred Nixon to defendant Rhodes, who lived near where the purported farm equipment was located, and made arrangements for Nixon to meet with Rhodes. It developed at trial that the government had subpoenaed Aycock in an attempt to have him testify against defendants Rhodes and Nixon. FN20 The court conducted a hearing outside the presence of the jury on the government's purported intimidation of Aycock. Counsel for defendants Gilbreth and Snoddy attempted to persuade the court that the government's treatment of Aycock was relevant to and probative of the issues of entrapment and government overreaching. The district court ruled to the contrary and refused to let Aycock's testimony regarding his treatment at the hands of the government to go before the *972 jury.FN21 We do not see how the government's purported intimidation of Aycock, a witness called by a defendant who was acquitted, could prejudice the trial of defendants Gilbreth and Snoddy. Defendant Nixon, who stood more to gain by a showing of intimidation of a witness by the government did not even address this issue in his appellate brief. FN20. It appears that at one point the government even contemplated arresting Aycock. On the seventh day of trial the following exchange took place between the court and the prosecutor: COURT: Be seated. Court is now in session. I want to see Ms. Homberg alone. (Whereupon, the following proceedings were had at the Bench between the Court and Ms. Homberg.) COURT: I want the record to reflect that my secretary told me that Ms. Homberg is thinking about arresting a witness in this case

outside of the Courtroom. I am putting you on notice that if you cause anything to jeopardize this trial I will hold you in contempt of Court and put you in jail. GOVERNMENT: No, that's why I wanted to inform you of the problem, because I don't want anything to happen. COURT: There are other ways and means. The only thing I am telling you is that you are not to jeopardize this trial. We have been in trial a considerable length of time and I want to conclude it and I want that on the record, and you will do whatever you have to do, but you are not an arresting officer. GOVERNMENT: I know it, that's why I didn't want any arresting officers out there. I wanted to tell you what the problem is. COURT: All right. That is all I want to put on the record. GOVERNMENT: I don't know what theI don't knowI mean, I can't COURT: All I am saying, I don't want you to do anything that will jeopardize this trial, period, okay? GOVERNMENT: I don't know what I'm supposed to do, but, okay. 22 Record at 16061. FN21. The court ruled only that it would not allow testimony of Aycock's purported mistreatment by the government to go before the jury on the issue of entrapment. The court did not rule whether the treatment of Aycock was a substantial interference with his decision to testify. [18] Defendants Gilbreth and Snoddy urge that in United States v. Hammond, 598 F.2d 1008 (5th Cir.1979) this circuit adopted a per se rule of reversal for substantial government interference with a defense witness's free and unhampered choice to testify. Id. at 101213. We have reviewed the record regarding the treatment of Aycock by the U.S. Attorney's Office and do not find that it constituted a substantial interference with his willingness to testify for the defense.FN22 We note, too, that Aycock testified that his treatment by the government had not altered his substantive testimony as a witness for the defense.FN23 Consequently, none of the defendants can complain that he was deprived of his Due Process or Sixth Amendment right to present witnesses to establish a defense. Hammond, 598 F.2d at 1012 n.

3. FN22. Direct evidence on the issue of government intimidation of a defense witness was taken during trial, out of the presence of the jury. The government's cross-examination of this witness was concluded several days later at an ancillary hearing before a magistrate. Consequently, we had the benefit of substantial testimony to rule on this issue. FN23. COURT: Let me ask you this. The testimony that you gave this morning when you were questioned by Mr. Warshauer [counsel for defendant Rhodes], did anything that the Government ever say to you make you change your testimony? I mean, is this the way that you would have testified had they not spoken to you? WITNESS: Yes, ma'am, I'm telling you the truth about the questions they asked me this morning. COURT: All right. So, whatever they said to you has not changed your testimony in this courtroom today, has it? WITNESS: No ma'am. I'm here to tell the truth about it. 23 Record at 138. C. Improper Closing Argument On the last day of trial, government counsel made the following argument to the jury: Now, according to Mr. Snoddy and Mr. Gilbreth no one at that meeting [of November 21st in Hammond, Louisiana] discussed their desire to see the marijuana. They didn't want to see the marijuana. Why should they want to see the marijuana, they weren't going to buy it anyway. Now, [according to the defendants] Mr. Gorman lied to you from the witness stand, that's one DEA agent, he lied to you because he said that they talked about seeing a sample. Mr. Paige lied again and their supervisor, Mr. Cazenavette lied, because he said he agreed to let them see the sample. Now, of course, in order to see the sample, they had to get permission from the United States Attorney's Office and I don't know what that makes us. 14 Record at 198. At the close of the government's argument, counsel for

defendants Gilbreth and Snoddy objected to this portion of the argument on the ground that the prosecution was using the credibility of the United States Attorney's Office to buttress the credibility of the government's witnesses. The district court overruled defense counsel's objection on this point, holding that there was evidence from the witness stand to support the argument. [19][20] We find that the prosecutor did not go outside of the evidence presented in this case in making her closing argument on rebuttal and that these comments were a fair reply to defense counsel's closing arguments. Assuming, arguendo, that this statement was unwarranted, such prosecutorial misconduct constitutes a ground for reversal only if the prosecutor's*973 argument taken as a whole in the context of the entire case, prejudicially affected substantial rights of the defendant. United States v. Corona, 551 F.2d 1386, 1388 (5th Cir.1977). This test was not met here. IV. Inaudible Videotapes [21][22] Defendants' final attack on their conviction is aimed at the use of an audiovisual tape that they contend was erroneously admitted into evidence. This tape was secretly recorded in the hotel room in New Orleans, Louisiana at the October 26, 1983, meeting of the defendants with the undercover DEA agents. Although the probative value of this tape is beyond question, portions of it were unintelligible. The district court listened to portions of the tape to go to the jury. In this circuit, [t]ape recordings which are only partially intelligible are admissible unless these portions are so substantial as to render the recording as a whole untrustworthy. United States v. Ruppel, 666 F.2d 261, 272 (5th Cir.), cert. denied, 458 U.S. 1107, 102 S.Ct. 3487, 73 L.Ed.2d 1369 (1982). We review the district court's decision to admit the recording under an abuse of discretion standard. United States v. Clements, 484 F.2d 928, 930 (5th Cir.1973), cert. denied, 415 U.S. 991, 94 S.Ct. 1591, 39 L.Ed.2d 888 (1974). We have viewed the tape and find that the district court did not abuse its discretion in allowing the jury to view the tape.FN24 FN24. The jury did not view the tape in its entirety. Only certain portions of it were shown to the jury at trial. During its deliberations, the jury requested to see the videotape again. The court had a second copy of the tape made, which included only those splices that the jury had been shown during trial, and the jury was allowed to view this edited version of the tape during its deliberations. CONCLUSION Even from a cold (albeit voluminous) record, we can appreciate the grueling nature of this long, arduous trial on all of the participants. It does

not surprise us that at times patience was short, tempers flared, and counsel for both sides made comments or engaged in behavior short of the professional ideal we, as attorneys, are constantly reminded to attain. We have studied the appellants' points of error closely and reviewed the record carefully, and find no reversible error. The convictions of the defendants are affirmed. AFFIRMED. C.A.5 (La.),1985. U.S. v. Nixon 777 F.2d 958, 19 Fed. R. Evid. Serv. 932 END OF DOCUMENT
C)

UNITED STATES VS. JACKSON, 549 F. 3D 963, 17 NOVEMBER 2008 -IMMAN United States Court of Appeals, Fifth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. David Lee JACKSON, Defendant-Appellant. No. 06-41680. Nov. 17, 2008.

Background: Defendant, a federal prisoner, was sentenced by the United States District Court for the Eastern District of Texas, Marcia A. Crone, J., to death for murder of fellow inmate. Defendant appealed. Holdings: The Court of Appeals, Jerry E. Smith, Circuit Judge, held that: (1) district court did not clearly err in ruling that defendant was unable to show that prosecutorial delay prejudiced his defense, and there was no need for evidentiary hearing to determine whether his Fifth Amendment due process or Sixth Amendment speedy trial rights were violated; (2) Federal Death Penalty Act (FDPA) was constitutional; (3) district court properly excluded two venirepersons for cause; (4) district court did not abuse its discretion by allowing special investigator at prison to testify that inmates typically removed their shirt, as victim did, before fistfights but not knife fights; (5) district court properly limited admission of victim's prison disciplinary records; (6) district court did not abuse its discretion or commit constitutional error when it refused, on basis of unfair prejudice, to allow defendant to impeach government witness with evidence of prior conviction for sexual assault;

(7) district court correctly allowed government to impeach defense witness with capital murder convictions that were vacated on appeal; (8) jury did not have to be instructed at sentencing that it could consider residual doubts about defendant's guilt; (9) special verdict on mitigating factors was consistent with evidence presented at trial; and (10) defendant was not entitled to new trial on basis of jury confusion about possibility of his early release if he were sentenced to life without parole. Affirmed. West Headnotes [1] Criminal Law 110 1139

110 Criminal Law 110XXIV Review 110XXIV(L) Scope of Review in General 110XXIV(L)13 Review De Novo 110k1139 k. In general. Most Cited Cases Criminal Law 110 1158.1

110 Criminal Law 110XXIV Review 110XXIV(O) Questions of Fact and Findings 110k1158.1 k. In general. Most Cited Cases District court's factual findings are reviewed for clear error, and its legal conclusions de novo. [2] Criminal Law 110 1152.2(2)

110 Criminal Law 110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1152 Conduct of Trial in General 110k1152.2 Jury 110k1152.2(2) k. Selection and impaneling. Most Cited Cases (Formerly 110k1152(2)) Criminal Law 110 110 Criminal Law 1152.21(2)

110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1152 Conduct of Trial in General 110k1152.21 Instructions 110k1152.21(2) k. Failure to instruct. Most Cited Cases (Formerly 110k1152(2), 110k1152(1)) Criminal Law 110 1153.1

110 Criminal Law 110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1153 Reception and Admissibility of Evidence 110k1153.1 k. In general. Most Cited Cases Criminal Law 110 1156(1)

110 Criminal Law 110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1156 New Trial 110k1156(1) k. In general. Most Cited Cases Court of Appeals reviews for abuse of discretion district court's decision to exclude jurors, evidentiary decisions, rulings regarding trial orderliness, refusals to give requested jury instructions, and denials of new trials. [3] Criminal Law 110 577.16(4)

110 Criminal Law 110XVIII Time of Trial 110XVIII(B) Decisions Subsequent to 1966 110k577.16 Relief; Dismissal or Discharge 110k577.16(4) k. Prejudice or prejudice. Most Cited Cases

absence

of

Defendant did not demonstrate that delay in his prosecution prejudiced his defense insofar as potential witness who remained unfound could have impeached government witness, missing video tapes might have exculpatory information, and summit among groups in prison could have produced more witnesses for the defense; those examples of prejudice were nothing more than mere speculation of lost witnesses, faded memories or misplaced documents and did not demonstrate actual loss of evidence that would have aided defense and that could not be obtained from other

sources. [4] Criminal Law 110 577.16(4)

110 Criminal Law 110XVIII Time of Trial 110XVIII(B) Decisions Subsequent to 1966 110k577.16 Relief; Dismissal or Discharge 110k577.16(4) k. Prejudice or prejudice. Most Cited Cases

absence

of

Defendant who was sentenced to death for murder of fellow inmate failed to demonstrate prejudice from prosecutorial delay insofar as his mother died, thereby depriving him of her testimony at sentencing; while defendant indicated that his mother was the one witness whose testimony may have caused the jury to spare [his] life, he did not explain what testimony she could have offered. [5] Constitutional Law 92 4528

92 Constitutional Law 92XXVII Due Process 92XXVII(H) Criminal Law 92XXVII(H)3 Law Enforcement 92k4521 Conduct of Police and Prosecutors in General 92k4528 k. Neglect or delay. Most Cited Cases Criminal Law 110 577.16(4)

110 Criminal Law 110XVIII Time of Trial 110XVIII(B) Decisions Subsequent to 1966 110k577.16 Relief; Dismissal or Discharge 110k577.16(4) k. Prejudice or prejudice. Most Cited Cases

absence

of

District court did not clearly err in ruling that defendant was unable to show that lengthy prosecutorial delay had caused an actual, substantial prejudice to his defense, and there was no need for evidentiary hearing to determine whether his due process rights were violated. U.S.C.A. Const.Amend. 5. [6] Criminal Law 110 577.8(2)

110 Criminal Law 110XVIII Time of Trial 110XVIII(B) Decisions Subsequent to 1966 110k577.8 Computation 110k577.8(2) k. Accrual of right to time restraints. Most Cited Cases Sixth Amendment protection of right of accused to speedy and public trial attaches when defendant has been formally indicted or actually restrained accompanying arrest. U.S.C.A. Const.Amend. 6. [7] Criminal Law 110 577.14

110 Criminal Law 110XVIII Time of Trial 110XVIII(B) Decisions Subsequent to 1966 110k577.14 k. Successive, amended, charges; successive trials. Most Cited Cases

or reinstated

Period between withdrawn indictment and reindictment does not count for Sixth Amendment speedy trial purposes; instead, when no indictment is outstanding, only actual restraints imposed by arrest and holding to answer criminal charge engage particular protections of speedy trial provision of Sixth Amendment. U.S.C.A. Const.Amend. 6. [8] Criminal Law 110 577.10(1)

110 Criminal Law 110XVIII Time of Trial 110XVIII(B) Decisions Subsequent to 1966 110k577.10 Factors Affecting Application of Requirements in General 110k577.10(1) k. In general; balancing test. Most Cited Cases Court evaluates speedy trial claims by considering four factors, length of delay, reason for delay, defendant's assertion of right, and prejudice to defendant, in two-step process; at first step, it examines length of delay, and if delay raises presumption of prejudice, it moves to second step, at which length of delay, reason for delay, and defendant's diligence in asserting his or her rights is weighed against prejudice to defendant. U.S.C.A. Const.Amend. 6. [9] Criminal Law 110 577.10(8)

110 Criminal Law 110XVIII Time of Trial 110XVIII(B) Decisions Subsequent to 1966 110k577.10 Factors Affecting Application of Requirements in General 110k577.10(8) k. Delay caused by accused. Most Cited Cases Criminal Law 110 577.15(4)

110 Criminal Law 110XVIII Time of Trial 110XVIII(B) Decisions Subsequent to 1966 110k577.15 Length of Delay 110k577.15(4) k. Subsequent to accusation. Most Cited Cases Criminal Law 110 577.16(8)

110 Criminal Law 110XVIII Time of Trial 110XVIII(B) Decisions Subsequent to 1966 110k577.16 Relief; Dismissal or Discharge 110k577.16(5) Proceedings 110k577.16(8) k. Presumptions and burden of proof. Most Cited Cases Although defendant did not receive trial until nearly three years after his indictment, any delay caused by his own requests for continuances would be discounted for Sixth Amendment speedy trial purposes, and delay of six months was not presumptively prejudicial. U.S.C.A. Const.Amend. 6. [10] Criminal Law 110 577.16(10)

110 Criminal Law 110XVIII Time of Trial 110XVIII(B) Decisions Subsequent to 1966 110k577.16 Relief; Dismissal or Discharge 110k577.16(5) Proceedings 110k577.16(10) k. Hearing determination. Most Cited Cases

and

Because district court did not clearly err when it concluded that defendant suffered no prejudice during entirety of prosecutorial delay it

had no obligation to conduct inquiry into factors other than whether delay was presumptively prejudicial, including reason for delay, and it properly rejected defendant's Sixth Amendment speedy trial claim without holding evidentiary hearing. U.S.C.A. Const.Amend. 6. [11] Sentencing and Punishment 350H 1612

350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(A) In General 350Hk1612 k. Death penalty as cruel or unusual punishment. Most Cited Cases Death penalty is not cruel and unusual punishment in violation of Eighth Amendment. U.S.C.A. Const.Amend. 8; 18 U.S.C.A. 3591 et seq. [12] Indictment and Information 210 113

210 Indictment and Information 210V Requisites and Sufficiency of Accusation 210k113 k. Matter of aggravation in general. Most Cited Cases Sixth Amendment does not require that any nonstatutory aggravating factors used to support death sentence under Federal Death Penalty Act be alleged in indictment. U.S.C.A. Const.Amend. 6; 18 U.S.C.A. 3591 et seq. [13] Jury 230 33(2.15)

230 Jury 230II Right to Trial by Jury 230k30 Denial or Infringement of Right 230k33 Constitution and Selection of Jury 230k33(2) Competence for Trial of Cause 230k33(2.15) k. View of capital punishment. Most Cited Cases Jury 230 108

230 Jury 230V Competency of Jurors, Challenges, and Objections 230k104 Personal Opinions and Conscientious Scruples 230k108 k. Punishment prescribed for offense. Most Cited Cases Sentence of death cannot be carried out if jury that imposed or

recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to death penalty or expressed conscientious or religious scruples against its infliction; nonetheless, potential jurors may be excused where they have indicated either that (1) they would automatically vote against imposition of capital punishment without regard to any evidence that might be developed at trial of case before them or (2) their attitude toward death penalty would prevent them from making impartial decision as to defendant's guilt. [14] Jury 230 108

230 Jury 230V Competency of Jurors, Challenges, and Objections 230k104 Personal Opinions and Conscientious Scruples 230k108 k. Punishment prescribed for offense. Most Cited Cases In capital murder prosecution of federal inmate, district court did not err in excluding for cause two venirepersons based on their objections to death penalty. 18 U.S.C.A. 3591 et seq. [15] Criminal Law 110 453

110 Criminal Law 110XVII Evidence 110XVII(R) Opinion Evidence 110k449 Witnesses in General 110k453 k. Personal identity and characteristics. Most Cited Cases In death penalty prosecution of federal inmate who fatally stabbed another inmate, purportedly in self-defense, during argument between them, district court did not abuse its discretion when it permitted special investigator at prison to testify that inmates typically removed their shirts, as victim did, before fistfights but not knife fights; testimony was rationally related to what witness observed as prison official and was not mere conjecture regarding what victim was thinking, but rather background information about prison fights that jury could consider or disregard. [16] Criminal Law 110 448(3)

110 Criminal Law 110XVII Evidence 110XVII(R) Opinion Evidence 110k448 Conclusions and Matters of Opinion or Facts

110k448(3) k. Evidence as to intent, belief, or feelings of accused or other person. Most Cited Cases District court may admit testimony about potential homicide victim's state of mind, although in ordinary circumstances court does not permit witnesses to speculate about defendant's state of mind or intent. [17] Criminal Law 110 1030(1)

110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1030 Necessity of Objections in General 110k1030(1) k. In general. Most Cited Cases To prove plain error, defendant must show (1) there was error that (2) was plain, (3) affected his substantial rights, and (4) seriously affected fairness, integrity or public reputation of judicial proceedings. [18] Criminal Law 110 1036.6

110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1036 Evidence 110k1036.6 k. Opinion evidence. Most Cited Cases In death penalty prosecution of federal inmate who fatally stabbed another inmate, purportedly in self-defense, any error from district court's admission of statements of special investigator at prison as lay rather than expert testimony was not plain. Fed.Rules Evid.Rules 701, 702 28 U.S.C.A. [19] Homicide 203 1051(1)

203 Homicide 203IX Evidence 203IX(D) Admissibility in General 203k1049 Self-Defense 203k1051 Character and Habits of Victim 203k1051(1) k. In general. Most Cited Cases

In death penalty prosecution of federal inmate who fatally stabbed another inmate, victim's propensity for violence was pertinent trait of character because it supported defendant's argument the victim was the first aggressor and district court thus properly allowed extensive testimony on victim's reputation in the prison community. Fed.Rules Evid.Rules 404(a)(2), 405, 28 U.S.C.A. [20] Homicide 203 1054

203 Homicide 203IX Evidence 203IX(D) Admissibility in General 203k1049 Self-Defense 203k1054 k. Previous hostile acts or conduct of victim. Most Cited Cases In death penalty prosecution of federal inmate who fatally stabbed another inmate in which defendant claimed he acted in self-defense, district court properly refused to admit victim's prison disciplinary records unless defendant could prove he had knowledge of specific acts described by those records. Fed.Rules Evid.Rules 404(a), 405(b), 28 U.S.C.A. [21] Criminal Law 110 1036.2

110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1036 Evidence 110k1036.2 k. Competency, examination, and impeachment of witnesses. Most Cited Cases Any error from district court ruling that allowed only defense lawyer who had conducted direct examination of witness to object during that witness's cross-examination was not plain. [22] Witnesses 410 345(5)

410 Witnesses 410IV Credibility and Impeachment 410IV(B) Character and Conduct of Witness 410k345 Accusation or Conviction of Crime 410k345(4) Conviction, Acquittal, and Pardon

410k345(5) k. In general. Most Cited Cases In death penalty prosecution of federal inmate who fatally stabbed another inmate, district court did not abuse its discretion when it refused to allow defendant to impeach government witness with evidence of prior conviction for sexual assault, given potentially severe prejudice that could have resulted from admitting conviction and its mostly cumulative probative value. Fed.Rules Evid.Rules 403, 609(a)(1), 28 U.S.C.A. [23] Criminal Law 110 662.7

110 Criminal Law 110XX Trial 110XX(C) Reception of Evidence 110k662 Right of Accused to Confront Witnesses 110k662.7 k. Cross-examination impeachment. Most Cited Cases

and

In death penalty prosecution of federal inmate who fatally stabbed another inmate, district court did not violate defendant's Sixth Amendment right to cross-examine when it refused to allow defendant to impeach government witness with evidence of prior conviction for sexual assault, given potentially severe prejudice that could have resulted from admitting conviction and its mostly cumulative probative value. U.S.C.A. Const.Amend. 6; Fed.Rules Evid.Rules 403, 609(a)(1), 28 U.S.C.A. [24] Witnesses 410 345(10)

410 Witnesses 410IV Credibility and Impeachment 410IV(B) Character and Conduct of Witness 410k345 Accusation or Conviction of Crime 410k345(4) Conviction, Acquittal, and Pardon 410k345(10) k. Pendency or possibility of appeal; posttrial motions. Most Cited Cases In death penalty prosecution of federal inmate who fatally stabbed another inmate, district court correctly allowed government to impeach one of defendant's witnesses with two convictions for capital murder that were the result of a single killing; neither stayed mandate of Court of Appeals panel vacating convictions nor pending certiorari petition affected admissibility of witness's convictions. Fed.Rules Evid.Rule 609(e), 28 U.S.C.A. [25] Sentencing and Punishment 350H 358

350H Sentencing and Punishment 350HII Sentencing Proceedings in General 350HII(G) Hearing 350Hk355 Allocution 350Hk358 k. Actual or potential punishment. Most Cited Cases Criminal defendant in capital case does not possess constitutional right to make unsworn statement of remorse before jury that is not subject to cross-examination. [26] Courts 106 90(2)

106 Courts 106II Establishment, Organization, and Procedure 106II(G) Rules of Decision 106k88 Previous Decisions as Controlling or as Precedents 106k90 Decisions of Same Court or Co-Ordinate Court 106k90(2) k. Number of judges concurring in opinion, and opinion by divided court. Most Cited Cases One panel of Court of Appeals may not overrule decision of prior panel. [27] Sentencing and Punishment 350H 1780(3)

350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)3 Hearing 350Hk1780 Conduct of Hearing 350Hk1780(3) k. Instructions. Most Cited Cases Death penalty defendant's Eighth Amendment rights were not violated by court's failure to instruct jury at sentencing that if it had residual doubts about defendant's guilt it should not sentence him to death. U.S.C.A. Const.Amend. 8. [28] Sentencing and Punishment 350H 350H Sentencing and Punishment 350HVIII The Death Penalty 1784(4)

350HVIII(G) Proceedings 350HVIII(G)4 Determination and Disposition 350Hk1784 Verdict or Recommendation of Jury 350Hk1784(4) k. Special issues. Most Cited Cases In death penalty prosecution of federal inmate who with the help of another inmate fatally stabbed a third inmate, special verdict unanimously finding only one of 60 possible mitigating factors, 50 of which received zero support, was consistent with evidence presented at trial; jurors appeared to have properly and conscientiously carried out their duties, and their findings were not beyond the bounds of reason or inconsistent with government's stipulations. [29] Criminal Law 110 957(1)

110 Criminal Law 110XXI Motions for New Trial 110k948 Application for New Trial 110k957 Statements, Affidavits, and Testimony of Jurors 110k957(1) k. In general. Most Cited Cases Juror's affidavit may not be received on matter about which the juror would be precluded from testifying, and juror may testify regarding only three aspects of events surrounding deliberations, (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was mistake in entering verdict onto verdict form. Fed.Rules Evid.Rule 606(b), 28 U.S.C.A. [30] Criminal Law 110 925(1)

110 Criminal Law 110XXI Motions for New Trial 110k924 Misconduct of or Affecting Jurors 110k925 In General 110k925(1) k. In general. Most Cited Cases Criminal Law 110 957(1)

110 Criminal Law 110XXI Motions for New Trial 110k948 Application for New Trial 110k957 Statements, Affidavits, and Testimony of Jurors 110k957(1) k. In general. Most Cited Cases

Defendant sentenced to death for murder of fellow federal inmate was not entitled to new trial based on jury's erroneous belief, despite district court's explicit instruction to the contrary, that even if defendant were sentenced to life without parole it was still possible he could be released before end of his life; affidavit of investigator who contacted jurors after trial which stated that number of them believed that defendant could be released early was inadmissible, and defendant presented no other evidence of jury confusion. *967 Traci Lynne Kenner, Asst. U.S. Atty. (argued), Tyler, TX, Joseph R. Batte, Asst. U.S. Atty., Beaumont, TX, for U.S. *968 Douglas Milton Barlow (argued), Barlow Law Firm, Beaumont, TX, Robert A. Morrow, Spring, TX, for Jackson. Appeal from the United States District Court for the Eastern District of Texas. Before SMITH, WIENER, and HAYNES, Circuit Judges. JERRY E. SMITH, Circuit Judge: David Jackson was sentenced to death for murder. He appeals, arguing that (1) the district court refused to conduct a hearing to determine whether his due process rights were violated by prosecutorial delay; (2) the Federal Death Penalty Act (FDPA) is unconstitutional; (3) the district court improperly dismissed two jurors during voir dire; (4) the court allowed improper testimony; (5) the court incorrectly excluded certain pieces of evidence; (6) the court unconstitutionally restricted counsel's ability to object; (7) the court erred by not allowing Jackson to impeach a government witness with evidence of a prior conviction for sexual assault; (8) the court incorrectly allowed the government to impeach one of Jackson's witnesses with a non-final conviction; (9) Jackson should have been allowed to allocute; (10) the jury should have been instructed at sentencing that it could consider residual doubts about Jackson's guilt; (11) the verdict is inconsistent; and (12) the district court incorrectly denied a motion for new trial. Finding no reversible error, we affirm. I. Jackson, a federal prisoner, began arguing with another inmate, Daryl Brown, while a third inmate, Arzell Gulley, watched. A fight broke out, the details of which are disputed: Jackson claims that Brown pulled out a shank,FN1 but the government contends that Brown was unarmed and only attempted to begin a fistfight. In any case, the confrontation culminated with all three running from the yard where the argument started and

through one of the prison units into a cell, where Jackson or Gulley allegedly held Brown as the other attacked him with a shank. After approximately thirty seconds, Jackson and Gulley left the cell walking in opposite directions. Brown, bleeding profusely, collapsed and was soon pronounced dead. FN1. A shank is a homemade knife. Jackson was apprehended with Brown's blood on his clothes and an injury to his palm consistent with recent use of a shank. While held by security, he tried to flush gambling paraphernalia down the toilet. When guards tried to place another inmate in the special housing unit with him, he allegedly told officials that he would kill the inmate if the inmate were not removed, saying if you don't believe me, look at the [security] tapes, I'll kill again. A grand jury indicted Jackson and Gulley for murder and possession of a dangerous weapon in prison. The district court granted a motion to sever their trials, and Jackson was separately reindicted, convicted on both counts, and sentenced to death. At sentencing, the government presented evidence of Jackson's other convictions, including multiple counts of armed robbery and various firearms charges, and testimony about his poor disciplinary record in prison. An expert witness for the government who had conducted psychiatric evaluations of Jackson testified that there was a high probability that he would commit violent crimes in the future. Jackson presented evidence of a poor home life growing up, low intelligence, post-traumatic stress disorder, and institutionalization.*969 He also noted that the government had not sought the death penalty against Gulley, and he submitted an apology he had written for his most recent armed robbery. Jackson also apologized to Brown's family, though he blamed Brown for starting the fight. Jackson explained, I just wanted to stab [Brown]. I didn't want to kill him. II. [1][2] The district court's factual findings are reviewed for clear error; its legal conclusions, de novo. United States v. Avants, 367 F.3d 433, 441 (5th Cir.2004). We review for abuse of discretion the decision to exclude jurors, United States v. Fields, 483 F.3d 313, 357 (5th Cir.2007), cert. denied, 552 U.S. 1144, 128 S.Ct. 1065, 169 L.Ed.2d 814 (2008); evidentiary decisions, United States v. Marrero, 904 F.2d 251, 260 (5th Cir.1990); rulings regarding trial orderliness, United States v. Redd, 355 F.3d 866, 876-77 (5th Cir.2003); refusals to give requested jury instructions, United States v. Arnold, 416

F.3d 349, 356 (5th Cir.2005); and denials of new trials, United States v. Rivera, 295 F.3d 461, 470 (5th Cir.2002). A. Jackson raises Fifth and Sixth Amendment challenges to the lengthy delays in his prosecution. The murder occurred in December 1999, but the government did not charge Jackson until November 2003, and then only for possession of a prohibited object, the shank used to stab Brown. That charge was dismissed without prejudice in February 2004. In April 2005, the government charged Jackson again, this time for capital murder and possession of a dangerous weapon. He finally received a trial in October 2006 and was convicted a month later. Jackson argues that the delays violated his Fifth Amendment right to due process. In the alternative, he claims that the case should be remanded for a hearing with discovery on the government's motives for the delays. A panel of this circuit recently addressed both arguments in Gulley's appeal, United States v. Gulley, 526 F.3d 809, 819-20 (5th Cir.2008), cert. denied, --- U.S. ----, 129 S.Ct. 159, 172 L.Ed.2d 116 (2008). The Gulley panel noted that under Fifth Circuit law, the defendant bears the burden of proving that the pre-indictment delay caused substantial, actual prejudice and was intentionally undertaken by the government for the purpose of gaining some tactical advantage over the accused .... Id. at 820 (quoting United States v. Crouch, 84 F.3d 1497, 1514 (5th Cir.1996) (en banc)). To demonstrate prejudice, the defendant must offer more than mere speculation of lost witnesses, faded memories or misplaced documents; he must show an actual loss of evidence that would have aided the defense and that cannot be obtained from other sources. Id. (citation omitted). The panel noted that district courts should usually carry a motion to dismiss for pre-indictment delay with the case, and make the determination of whether actual, substantial prejudice resulted from the improper delay in light of what actually transpired at trial. Id. (quoting Crouch, 84 F.3d at 1516). Because the defendant must prove both bad faith and prejudice, a court need not hold a hearing on the government's motives for the delay where the court has determined that no prejudice resulted from it. Id. The primary question, then, is whether the district court clearly erred in ruling that Jackson is unable to show that the delay has caused an actual, substantial prejudice to his defense at this point in *970 time. To demonstrate prejudice, Jackson argues that (1) there is a potential witness who remains unfound that could have impeached a government witness; (2) there are missing video tapes that might have exculpatory information; (3) there was a summit among groups in prison that could have produced

more witnesses for the defense; and (4) his mother died, thereby depriving him of her testimony at sentencing. [3] The first three proffered examples of prejudice are nothing more than mere speculation of lost witnesses, faded memories or misplaced documents and do not demonstrate an actual loss of evidence that would have aided the defense and that cannot be obtained from other sources. Id. On appeal, Jackson provides no information about the potential witness, whom that witness could have impeached, or how. FN2 Jackson also has yet to produce evidence that the video tapes ever existed or that the summit actually occurred, nor has he adequately explained why these pieces of evidence were important beyond non-specific explanations that they could easily have yielded more witnesses, more connections, [and] more depth to the understanding of this incident. [B]ecause actual, substantial prejudice to the defense at trial is required, a showing of mere potential or possible trial prejudice does not suffice. Crouch, 84 F.3d at 1523 (emphasis omitted). FN2. Jackson gives no citations to this information in the trial record. See FED. R.APP. P. 28(a)(9)(A) (noting need to include contentions and the reason for them, with citations to the authorities and parts of the record on which the appellant relies). [4] The final proffered prejudice is more plausible. The fact that Jackson's mother died and thus could not testify is not as speculative as his other examples-we at least know who she is and that she existed. He has not explained, however, what testimony she could have offered. Instead, in the motion to the district court and his brief on appeal, he indicates only that his mother was the one witness whose testimony may have caused the jury to spare [his] life. He does not give any hint as to what her testimony would have been, let alone demonstrate that other, available witnesses could not have provided the same information.FN3 FN3. Jackson's mother presumably would have testified regarding Jackson's background and upbringing, but Jackson presented other witnesses on that same topic, including a childhood friend who had personally witnessed much of the abuse Jackson suffered. And although Jackson suggests that his mother could have effectively pleaded for her son's life, the district court properly ruled that general pleas for mercy would not be permitted. See Kelly v. Lynaugh, 862 F.2d 1126, 1133 n. 12 (5th Cir.1988) (noting that stepfather's request that jury spare defendant's life is not mitigating evidence required to be admitted under Eighth Amendment); see also Jackson v. Dretke, 450 F.3d 614, 617-18 (5th Cir.2006) (holding that state court's decision to exclude execution impact testimony by defendant's family

and friends did not contradict Supreme Court governing law and was not unreasonable application of Supreme Court precedent). [5] The district court therefore did not clearly err when it concluded that Jackson was not prejudiced by the prosecution's delay. There was no need for an evidentiary hearing. Jackson also argues that the delays violated his Sixth Amendment right to a speedy trial, because he did not receive a trial until nearly three years after his 2003 indictment. He concedes, however, that any delay caused by his own requests for continuances should be discounted. According to Jackson, then, the relevant delay for Sixth Amendment purposes runs from November 2003, the date of his initial *971 charge, to July 2005, the date of his first request for a continuance. [6][7] The Sixth Amendment protects the right of the accused ... to a speedy and public trial. U.S. CONST. amend. VI. This protection attaches when the defendant has been formally indicted or actually restrained accompanying arrest. Dickerson v. Guste, 932 F.2d 1142, 1144 (5th Cir.1991). Additionally, the period between a withdrawn indictment and a reindictment does not count for Sixth Amendment purposes. Instead, when no indictment is outstanding, only the actual restraints imposed by arrest and holding to answer a criminal charge ... engage the particular protections of the speedy trial provision of the Sixth Amendment. United States v. Loud Hawk, 474 U.S. 302, 310-11, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (citations and internal quotations omitted). [8] We evaluate speedy trial claims by considering four factors-the length of delay, the reason for the delay, the defendant's assertion of the right, and the prejudice to him-in a two-step process. At the first step, we examine the length of the delay, which is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). A delay of less than one year will rarely qualify as presumptively prejudicial for purposes of triggering the Barker inquiry. Cowart v. Hargett, 16 F.3d 642, 646 (5th Cir.1994) (concluding that where prejudice could not be presumed, we need not even consider the other factors in order to deny [defendant]'s speedy trial claim). If the delay raises a presumption of prejudice, we move to the second step, at which the length of the delay, the reason for the delay, and defendant's diligence in asserting his or her rights is weighed against the prejudice to the defendant. United States v. Bergfeld, 280 F.3d 486, 488 (5th Cir.2002) (citation omitted). [9] Because Jackson did not suffer a prejudicial delay, his Sixth

Amendment claim fails to pass the threshold inquiry. We note that the government vigorously disputes that Jackson's first indictment triggered his speedy trial right. We need not resolve that disagreement, however, because even assuming the first indictment is the correct triggering date, Jackson cannot demonstrate presumptively prejudicial delay. The first indictment was withdrawn in February 2004, and from then until the second indictment, Jackson was not subject to any actual restraints imposed by arrest and holding to answer a criminal charge, Loud Hawk, 474 U.S. at 310, 106 S.Ct. 648, in connection with Brown's murder.FN4 Jackson has therefore suffered, at most, six months of delay: three months from November 2003 through February 2004 and three months from April 2005 through July 2005. A six-month delay is too short to raise a presumption of prejudice.FN5 FN4. He was held on unrelated matters, including an arrest for bank robbery. FN5. See, e.g., United States v. Maizumi, 526 F.2d 848, 851 (5th Cir.1976) (finding that a delay of 10 1/2 months was not presumptively prejudicial). [10] Further, as already discussed, the district court did not clearly err when it concluded that Jackson suffered no prejudice during the entirety of the prosecutorial delay. The court therefore had no obligation to conduct an inquiry into other *972 Barker factors-including the reason for the delayand properly rejected Jackson's Sixth Amendment claim without holding an evidentiary hearing. B. [11] Jackson makes at least two separate arguments that the FDPA is unconstitutional.FN6 First, he submits that the death penalty is cruel and unusual in violation of the Eighth Amendment. Second, he contends that the Fifth and Sixth Amendments require that any non-statutory aggravating factors used to support the death sentence be alleged in the indictment. Neither claim is supported by law. FN6. Jackson appears to raise a third argument that the due process clause is violated where aggravating factors are treated differently from elements of a crime. He neither explains that contention nor cites any law but instead attempts to incorporate arguments made to the district court by reference as if fully set out for this Court's consideration. Argument by reference is not permitted; an appellant who requests

the adoption of previously filed legal and factual arguments ... abandon[s those] arguments by failing to argue them in the body of his brief. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993) (citing FED. R.APP. P. 28(a)(4), now FED. R.APP. P. 28(a)(9), which requires a brief to contain appellant's contentions and the reasons for them). This argument-if it even is a separate argument-is waived. Jackson concedes that this Court must reject [the Eighth Amendment] claim based on binding Fifth Circuit precedent .... He is correct. FN7 FN7. See, e.g., United States v. Jones, 132 F.3d 232, 242 (5th Cir.1998) (We are bound by Supreme Court precedent which forecloses any argument that the death penalty violates the Constitution under all circumstances.). [12] The claim based on the Fifth and Sixth Amendments is similarly precluded.FN8 [I]t [is] neither constitutional nor statutory error for the nonstatutory aggravating factors to be omitted from the indictment. United States v. Bourgeois, 423 F.3d 501, 507-08 (5th Cir.2005). FN8. The government disputes whether this issue was raised in the district court. If it was raised and preserved, we would review the legal question de novo; otherwise, we would review only for plain error. United States v. Vontsteen, 950 F.2d 1086, 1089-90 (5th Cir.1992) (en banc). We need not decide whether the issue was adequately raised, however, because we affirm even under de novo review. In response, Jackson argues that Bourgeois is undermined by Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), which addressed a California sentencing system whereby most criminal offense statutes prescribed three tiers of punishment; the sentencing judge was required to impose the middle term unless he found aggravating or mitigating circumstances by a preponderance of the evidence. The Court invalidated the arrangement because, under the Sixth Amendment, [f]actfinding to elevate a sentence ... falls within the province of the jury employing a beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining where the preponderance of the evidence lies. 127 S.Ct. at 870. Jackson claims that the statutory scheme invalidated in Cunningham is indistinguishable from the FDPA fact-finding and weighing procedures and that the FDPA is even more structured, and thus more suspect. Jackson's reliance on Cunningham is misplaced. The Sixth Amendment

deficiencies identified in the California plan are not present in the FDPA. First, the factfinding in the present case was performed by a jury, not a judge. Second, the FDPA requires aggravating factors to be proved beyond a reasonable doubt. 18 U.S.C. 3593(c). Because Cunningham is not on point and does not undermine *973 Bourgeois, which remains the controlling authority in this circuit, we reaffirm the constitutionality of the FDPA. C. Jackson argues that the court improperly excluded for cause two veniremen, Janice Epps and Barbara Lee. According to Jackson, they were erroneously excluded based on objections to the death penalty that did not affect their ability to serve as jurors. [13] Under Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. Nonetheless, potential jurors may be excused where they have indicated either (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. Id. at 522 n. 21, 88 S.Ct. 1770. In Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Court clarified that the standard is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath .... [T]his standard ... does not require that a juror's bias be proved with unmistakable clarity (internal quotations omitted). The Court specified, in Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 2224, 167 L.Ed.2d 1014 (2007), that a trial court removing a potential juror makes a judgment based in part on the demeanor of the juror, a judgment owed deference by reviewing courts. Further, when there is ambiguity in the prospective juror's statements, the trial court, aided as it undoubtedly [is] by its assessment of [the venireman's] demeanor, [is] entitled to resolve [the question] in favor of the State. Id. at 2223 (quoting Witt, 469 U.S. at 434, 105 S.Ct. 844). [14] Jackson argues that Epps should not have been excused. Though he acknowledges that [a]fter stating her position over and over [she] finally just shut down and said she wouldn't vote for death, he contends that her voir dire as a whole demonstrated otherwise and that the prosecutor's badgering led to the statements used to justify her exclusion for cause.

We disagree. In Epps's questionnaire, she answered that I don't believe I have the right to say if someone should live or die. Under questioning, she admitted that she could accept the death penalty for those that kill children or for just no reason at all. The court asked for additional questioning as to her ability to follow juror instructions in cases where death might result, which led to her statement that I would have to vote against the death penalty, and then she was excused. The court observed Epps's demeanor and heard her answers. Those answers were inconsistent for a time, which alone might have been ground to excuse her. Ultimately, however, she stated that she would not vote for death. In light of the deference owed, the court did not abuse its discretion.FN9 FN9. See United States v. Bernard, 299 F.3d 467, 474-75 (5th Cir.2002) (affirming dismissal of potential juror who indicated on her questionnaire that she did not feel [she] ha[d] the right to judge whether a person lives or dies and then wavered during questioning). *974 It is just as evident that the district court did not err as to Lee. During government questioning, she agreed that even if the evidence pointed in the direction of a death sentence, she might not be able to vote that way, because I'm not sure if I can live with myself if I do. Later, as with Epps, Lee vacillated somewhat during questioning by the defense. Finally, under instruction to give a yes or no answer, she was asked whether her feelings about the death penalty would substantially impair her ability honestly to answer the questions presented, and she said yes. The district court properly relied on that statement and excused her. D. Before the fight with Jackson began, Brown took off his shirt. Jackson argues that the court improperly allowed a government witness to speculate about what Brown was thinking when he did that. Jackson sought to demonstrate that he acted in self-defense and that Brown initiated the confrontation by pulling a shank on him. The government contends instead that Brown was unarmed and initiated only a fistfight, from which he attempted to withdraw when Jackson drew his own shank. The government presented Derric Wilson, a special investigator at the prison, who testified that inmates typically remove their shirts before a fistfight, because otherwise opponents may be able to grab onto their clothes. But in a knife fight, Wilson said, it has been my experience that inmates have typically padded their clothing, with some even going so far

as to improvise protective vests out of newspapers and magazines and make improvised body armor. Jackson objected, saying that was pure speculation as to what [was] in the mind of an inmate when he takes his shirt off. [15] Jackson urges that the court abused its discretion in permitting the testimony, which he claims was inadmissible because it was an unfounded opinion based upon mere conjecture. Alternatively, he contends that if witnesses cannot testify as to what was in a defendant's mind, they should not be able to say what was in a potential victim's mind. Wilson's testimony was rationally related to what he observed as a prison official and was helpful for understanding prison fights. He indicated both that he had not observed the yard fight between Brown and Jackson and that his testimony was founded on unrelated investigations he had conducted.FN10 Accordingly, his testimony was not mere conjecture regarding what Brown was thinking, but rather background information about prison fights that the jury could consider or disregard. FN10. As Jackson's brief acknowledges, [t]he government made no effort to connect these other unrelated incidents to either Jackson nor [sic] the deceased. [16] Moreover, a district court may admit testimony about a potential victim's state of mind. [I]n the ordinary circumstance[,] we do not permit witnesses to speculate about a defendant's state of mind or intent, United States v. Chavis, 772 F.2d 100, 107 (5th Cir.1985), because intent is one of the ultimate issues for the jury. By contrast, the prejudice to a defendant is both less direct and less substantial where a witness is testifying about what someone other than the defendant thought. Therefore, even assuming arguendo that Wilson testified as to Brown's *975 state of mind, the court did not abuse its discretion. Jackson argues that even if the testimony was admissible, the court erred when it allowed Wilson to testify as a lay witness under Federal Rule of Evidence 701.FN11 He claims that some of Wilson's testimony improperly crossed the line into expert testimony governed by Federal Rule of Evidence 702. FN12 FN11. Rule 701 provides, If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness'

testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. FN12. Rule 702 provides, If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. [17] Jackson did not raise this issue in the district court, so we review only for plain error. To prove plain error, he must show (1) there was error, (2) the error was plain, (3) the error affected his substantial rights, and (4) the error seriously affected the fairness, integrity or public reputation of judicial proceedings. United States v. Jones, 489 F.3d 679, 681 (5th Cir.2007) (quoting United States v. Olano, 507 U.S. 725, 732, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). The distinction between lay and expert witness testimony is that lay testimony results from a process of reasoning familiar in everyday life, while expert testimony results from a process of reasoning which can be mastered only by specialists in the field. United States v. Sosa, 513 F.3d 194, 200 (5th Cir.2008) (citations and internal quotations omitted). To be considered expert, testimony must involve more than common sense or the officer's past experience formed from firsthand observation. Id. [18] Wilson indicated that his testimony was based on his investigat[ion of] various assaults and fights with knives and fights with fists[.] He represented that he was familiar with the clothing that inmates typically wear when they're fighting with knives and aware of how inmates go about fist-fighting[.] Based on those predicates, it appears that Wilson testified only as a lay witness drawing from his past experiences formed from firsthand observation as an investigative agent. Accordingly, any error in admitting his statements as lay rather than expert testimony was not plain. E. To demonstrate that he acted in self-defense, Jackson tried to introduce Brown's prison disciplinary records into evidence. The district court barred the evidence, ruling that it should be admitted only if Jackson could prove

that he had knowledge of the specific acts described by the records. Jackson contends that that ruling was improper and deprived him of the ability to present a complete defense. Under Federal Rule of Evidence 404(a), character evidence is generally not admissible for the purpose of proving action in conformity therewith on a particular occasion .... The rules make an exception, *976 however, and permit the introduction of [e]vidence of a pertinent trait of character of the alleged victim of the crime offered by an accused .... FED. R. EVID. 404(a)(2). Federal Rule of Evidence 405 provides that such a trait of character may always be demonstrated to the jury by presenting evidence of the victim's reputation. On the other hand, testimony about specific instances of conduct may be used only if the character or a trait of character of a person is an essential element of a charge, claim, or defense .... FED. R. EVID. 405 (emphasis added). [19] The district court was correct to limit Jackson's ability to present Brown's disciplinary records. Brown's propensity for violence is a pertinent trait of character, because it supports Jackson's argument that Brown was the first aggressor. Accordingly, the court allowed extensive testimony on Brown's reputation in the prison community. [20] The disciplinary records that Jackson attempted to introduce, however, involved specific instances of conduct. Under rule 405, such evidence is admissible only if Brown's violent character was an essential element of [Jackson's] defense. In Gulley, addressing the same issue, we held, ... Brown's prior specific acts were not admissible to prove his alleged propensity for violence. First, as recognized by the Seventh, Eighth, and Ninth Circuits, the plain language of Rule 405(b) limits the use of specific instances of conduct to prove essential elements of a charge or defense. Second, Brown's character was not an essential element of the self defense claim in the strict sense because a self defense claim may be proven regardless of whether the victim has a violent or passive character. Gulley, 526 F.3d at 819 (internal citations and quotations omitted). Jackson attempts to avoid Gulley by citing Holmes v. South Carolina, 547 U.S. 319, 321, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006), which addressed the constitutionality of an evidence rule under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict. The Court noted that evidentiary rules are given wide latitude unless they infringe upon a weighty interest of the accused and are arbitrary or

disproportionate to the purposes they are designed to serve. Id. at 324, 126 S.Ct. 1727 (citation and internal quotations omitted). The Court concluded that the evidentiary rule was unconstitutional, because it was arbitrary in the sense that it does not rationally serve the end that the ... rule[ was] designed to further. Id. at 330-31, 126 S.Ct. 1727 (internal quotations omitted). Jackson does not argue with any specificity why rules 404(a) and 405 are disproportionate or arbitrary, i.e., [that they are] rules that exclude[ ] important defense evidence but that [do] not serve any legitimate interests. Id. at 325, 126 S.Ct. 1727. By limiting the admissibility of specific acts, rules 404 and 405 serve the legitimate interest of ensuring that juries do not acquit or convict on impermissibly prejudicial grounds, but those rules allow limited exceptions where more context is necessary in the interest of justice.FN13 This *977 careful balance is hardly disproportionate or arbitrary, and Jackson provides no argument to the contrary beyond assertion. FN13. As the advisory committee notes to rule 405 explain, Of the three methods of proving character provided by [rule 405], evidence of specific instances of conduct is the most convincing. At the same time it possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time. Consequently the rule confines the use of evidence of this kind to cases in which character is, in the strict sense, in issue and hence deserving of a searching inquiry. When character is used circumstantially and hence occupies a lesser status in the case, proof may be only by reputation and opinion. These latter methods are also available when character is in issue. FED.R.EVID. 405 advisory committee's note. Jackson also claims that the government opened the door to the records. Defense witness Darrell Evans, one of Jackson's fellow inmates, testified that Brown always have big knives and it be hanging out of his pocket .... On cross-examination, the government expressed some skepticism and asked, Are you saying that if you're walking around with a shank hanging out of your pocket, that a guard is not going to notice that? Based on that question, Jackson again sought to admit the disciplinary records, this time to rebut the impression that Brown did not possess shanks because the guards did not notice it. This argument is equally unavailing. First, the witness immediately clarified his testimony by explaining that the knives would hang out of Brown's pockets only when he was sitting down in his cell, not walking

around in plain view of the guards. Second, the court correctly noted that the disciplinary records would not be even arguably relevant unless they demonstrated that the guards had in fact caught Brown with a shank. Of the records even remotely related to violence,FN14 only two came from the prison; one documents an incident in which Brown threw hot coffee on a guard, and the other reports that he threatened to stab a guard. The remaining records came from other prisons, and even there, only two involved shanks. Any relationship between the subject of cross-examination and the proffered evidence was tenuous at best, and the court did not abuse its discretion in excluding it. FN14. The majority of the records describe simple acts of mischief (e.g., falsely triggering fire sprinklers) or insubordination (e.g., refusing to follow instructions from prison officials). F. [21] Jackson avers that the district court violated his Sixth Amendment right to counsel when it allowed only the lawyer that had conducted the direct examination of a witness to object during that witness's crossexamination. Because Jackson did not object to that ruling and so did not preserve the issue for appeal,FN15 we review only for plain error. FN15. The issue arose when one of Jackson's lawyers, Mr. Barlow, objected during the cross-examination of a witness that Jackson's other lawyer, Mr. Morrow, had directly examined. After questioning was complete and the jury had been excused, the judge ordered, I don't want one of you objecting and then the other one. That was Mr. Morrow's witness. Mr. Barlow, don't object if he's the person responsible for the witness. Jackson's counsel responded by saying only Yes, your honor. Plain is synonymous with clear or obvious, and at a minimum, contemplates an error which was clear under current law at the time of trial .... Under plain error, if a defendant's theory requires the extension of precedent, any potential error could not have been plain. United States v. Garcia-Rodriguez, 415 F.3d 452, 455 (5th Cir.2005) (citing United States v. Hull, 160 F.3d 265, 271-72 (5th Cir.1998)) (internal quotations omitted). Any error here is not plain. Although Jackson correctly notes that federal law allows him to have two attorneys, he can point to no caselaw that requires both of them to be permitted to object at the same *978 time; instead, Jackson argues for an extension of our existing Sixth Amendment jurisprudence. The government, meanwhile, admits that it can find no authority on the issue; it cites general precedent acknowledging the

discretion a district court is afforded to control the trial.FN16 Because this is a question of first impression and the law was not obvious at the time of trial, any error was not plain. FN16. The government cites, for example, United States v. Pace, 10 F.3d 1106, 1114 (5th Cir.1993) (stating that the court of appeals must determine whether the trial court imposed unreasonable limits on cross-examination such that a reasonable jury might have received a significantly different impression of a witness' credibility had defense counsel pursued his proposed line of cross-examination) (citation and internal quotations omitted). G. [22] Jackson argues that the district court erred when it forbade him from impeaching government witness Victor Richards with evidence that Richards is a registered sex offender. Richards, an inmate, testified that Jackson and Gulley chased Brown into a cell and stabbed him. In the 1980's, Richards was convicted of sexual assault, sentenced to two years of probation, and required to register as a sex offender. Federal Rule of Evidence 609 establishes two relevant restrictions relevant regarding impeachment by prior criminal convictions. First, under rule 609(a)(1), the impeachment evidence is subject to Federal Rule of Evidence 403, which says that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury .... FED.R.EVID. 403. Second, under rule 609(b), evidence of a conviction may not be used if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date .... FED.R.EVID. 609(b). The district court excluded the evidence on both grounds, finding that the conviction was too old and unfairly prejudicial. On appeal, Jackson raises three arguments: First, the conviction's probative value is significant; second, because Richards is still required to register as a sex offender, he has not yet been release[d] ... from the confinement imposed; and third, excluding the impeachment evidence violated Jackson's Sixth Amendment right to cross-examine. Jackson argues the evidence was probative because Richards was a registered sex offender, a result of his felony conviction[, and so] he likely may also be untruthful. Further, because he was subject to an ongoing legal obligation to register as a sex offender, he might have potential bias ... to testify for the government, thereby staying in the good graces' of those who could prosecute him should he ever fail to comply with his registration

requirements. As Jackson admits, however, registration as a sex offender is a scarlet letter. So although the jury might have considered Richards more likely to be untruthful if it had known of his conviction, there is a significant danger that it would have instead improperly discounted his testimony because of personal revulsion for sex offenses. Moreover, there was ample reason for the jury to find Richards untrustworthy without introducing the prejudicial evidence-the jury already knew that (1) Richards had been convicted of several other crimes (including burglary and theft); (2) he was currently in prison for a 1999 bank robbery; (3) the government would attempt to get his bank robbery *979 sentence reduced in exchange for his testimony; and (4) he had a history of mental issues and drug abuse. Given the potentially severe prejudice that could have resulted from admitting the conviction and its mostly cumulative probative value, the district court did not abuse its discretion. FN17 FN17. Because we affirm the decision to exclude the evidence as unfairly prejudicial under rule 403, we need not address its ruling that the conviction was too old to be admissible under rule 609(b). [23] The court also did not commit constitutional error. Evidentiary rules generally are upheld unless they infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve (citation and internal quotations omitted). Holmes, 547 U.S. at 324, 126 S.Ct. 1727. [W]ell-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. See, e.g., FED. R. EVID. 403. Id. at 326, 126 S.Ct. 1727 (emphasis added). The decision to exclude the evidence because of its prejudicial value was therefore constitutionally permissible. H. [24] Defense witness Shannon Agofsky testified that Brown had a knife and said he was going to assault Jackson. The government impeached Agofsky under Federal Rule of Evidence 609 with evidence that Agofsky had been convicted of two counts of capital murder. Agofsky's case has an unusual procedural history, however, that leads Jackson to question whether Agofsky was improperly impeached with non-final convictions. Agofsky's convictions for capital murder were the result of a single killing. In July 2006, in United States v. Agofsky, 458 F.3d 369 (5th Cir.2006), we held that the Double Jeopardy Clause forbade convicting Agofsky of both counts, because the charges amounted to the same offense.FN18 Id. at 371-72. We nonetheless concluded that one of the two death sentences could stand.

Id. at 372-73. Accordingly, we vacated the convictions to prevent double jeopardy and remanded with instruction to impose, at the Government's election, a guilty verdict and death sentence for either Federal Murder or Murder by a Federal Prisoner. Id. at 375. FN18. He was convicted of both premeditated, first degree murder and premeditated, first degree murder by a federal prisoner serving a term of life imprisonment. Agofsky petitioned for writ of certiorari; because of the pending petition, the Fifth Circuit stayed the mandate in August 2006. After the Court denied certiorari in January 2007, Agofsky v. United States, 549 U.S. 1182, 127 S.Ct. 1149, 166 L.Ed.2d 998 (2007), the Fifth Circuit lifted the stay of the mandate, which finally issued in February 2007. Agofsky testified at Jackson's trial in October 2006-after the Agofsky panel had rendered its opinion but before the Court denied certiorari and the mandate issued. On appeal, Jackson argues that Agofsky should not have been impeached with either conviction. The question now is whether, at the time of the impeachment, Agofsky had two convictions (per the original district court verdict), zero convictions (per the panel order vacating the convictions), or one conviction (per the instruction that the district court reimpose one of the two original convictions on remand). We conclude that he was correctly impeached with both convictions. *980 This court's decisions are not final until we issue a mandate. Charpentier v. Ortco Contractors, 480 F.3d 710, 713 (5th Cir.2007). In Charpentier, we rejected the argument that an award ceased to exist on the date we issued our opinion [vacating the award]. Id. Similarly, Agofsky's convictions did not cease to exist when the panel opinion vacating them was entered. Because the mandate had not yet issued, the original district court judgment remained in effect; Agofsky was still convicted of both crimes at the time of his testimony.FN19 FN19. The existence of the convictions did not automatically make them admissible. Rule 609(a)(1) states that convictions for crimes that do not involve acts of dishonesty are admissible subject to rule 403, which allows the district court to exclude evidence where the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury .... FED.R.EVID. 609(a)(1). Because Jackson did not raise a rule 403 challenge at trial or on appeal, we do not review the district court's decision on the matter. Further, under rule 609(e), [t]he pendency of an appeal therefrom does

not render evidence of a conviction inadmissible. Accordingly, neither the stayed mandate in this court nor the pending certiorari petition FN20 affected the admissibility of Agofsky's convictions.FN21 We note, however, that the rules permitted Jackson to present information about Agofsky's appeal to ameliorate the impeachment. FED. R. EVID. 609(e) ( Evidence of the pendency of an appeal is admissible.). Jackson declined to do so despite being reminded of the option by the district court. FN20. In Agofsky's case, the Supreme Court was acting as an appellate court. See U.S. CONST. art. III, 2. Agofsky's certiorari petition is therefore included in rule 609(e)'s reference to pendency of an appeal. FN21. Jackson argues that the obvious purpose of rule 609(e) is to respect the presumption of correctness which ought to attend judicial proceedings and that that purpose is not served by respecting a conviction that a court of appeals has reversed while certiorari is pending. That argument is unavailing under the peculiar circumstances of this case. Agofsky's conviction was not reversed on the merits-indeed, the district court was ordered to re-enter the conviction on one count. Further, rule 609(e) is pellucid, and we must follow it. It is well established that when the statute's language is plain, the sole function of the courts-at least where the disposition required by the text is not absurd-is to enforce it according to its terms. Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (internal quotations and citations omitted); see also, e.g., Garcia v. Gloor, 618 F.2d 264, 268 (5th Cir.1980) ([W]e start with [the statute's] plain words without pausing to consider whether a statute differently framed would yield results more consonant with fairness and reason.). I. [25] Jackson argues that, as a matter of constitutional right, he should have been allowed to submit a statement of allocution to the jury. FN22 The district court denied Jackson's request to allocute, citing United States v. Hall, 152 F.3d 381, 396 (5th Cir.1998) (We conclude that a criminal defendant in a capital case does not possess a constitutional right to make an unsworn statement of remorse before the jury that is not subject to cross-examination.), abrogated on other grounds by United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). FN22. A statement of allocution is [a]n unsworn statement from a convicted defendant to the sentencing judge or jury in which the

defendant can ask for mercy, explain his or her conduct, apologize for the crime, or say anything else in an effort to lessen the impending sentence. BLACK'S LAW DICTIONARY 83 (8th ed.2004). *981 [26] Jackson's brief does not even mention Hall, let alone attempt to distinguish it. This panel may not overrule the decision of a prior panel. Teague v. City of Flower Mound, 179 F.3d 377, 383 (5th Cir.1999). Accordingly, we follow Hall and uphold the district court's order. J. [27] Jackson contends that the district court violated his Eighth Amendment rights when it failed to instruct the jury at sentencing that if it had residual doubts about his guilt, it should not sentence him to death. Binding Supreme Court precedent, however, forecloses this argument. In Franklin v. Lynaugh, 487 U.S. 164, 174, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), Justice White, writing for four Justices, first noted that [t]his Court's prior decisions, as we understand them, fail to recognize a constitutional right to have [residual] doubts considered as a mitigating factor.FN23 Even if the Eighth Amendment guaranteed such a right, mere denial of a jury instruction did not impair the right, because the trial court placed no limitation whatsoever on [defendant]'s opportunity to press the residual doubts' question with the sentencing jury. Id. The Court also rejected the argument that jurors needed to be told they could consider residual doubt. Accordingly, even if petitioner had some constitutional right to seek jury consideration of residual doubts' about his guilt during his sentencing hearing-a questionable proposition-the rejection of petitioner's proffered jury instructions did not impair this right. Id. at 175, 108 S.Ct. 2320 (emphasis added). Justice O'Connor, for herself and Justice Blackmun, went further and wrote that the Eighth Amendment does not require [consideration of residual doubt by the sentencing body]. Id. at 187, 108 S.Ct. 2320. FN23. The Court recently reiterated this aspect of Franklin in Oregon v. Guzek, 546 U.S. 517, 525, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (2006). The Guzek Court, noting that Franklin did not resolve whether the Eighth Amendment affords capital defendants such a right [to consideration of residual doubt], concluded that we once again face a situation where we need not resolve whether such a right exists .... Id. The Fifth Circuit has also addressed the issue. Although there is a difference between rules relating to what mitigating evidence the jury may consider and rules relating to instructing the jury how to consider such evidence, a criminal defendant is not constitutionally entitled to instruct

the jury to consider ... residual doubt .... Smith v. Black, 904 F.2d 950, 96869 (5th Cir.1990), vacated on other grounds, 503 U.S. 930, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992). We find no error in the denial of Jackson's request for a jury instruction on residual doubt. First, neither the Supreme Court nor the Fifth Circuit has held that a defendant is entitled to such an instruction. FN24 Second, even if we assume some right to consideration of residual doubt, the trial court placed no limitation whatsoever on [Jackson]'s opportunity to press the residual doubts' question with the sentencing jury. Jackson was able to argue self-defense at sentencing, and the court explicitly instructed the jury that it could consider [a]ny other[ factors] you may find from the evidence and anything else about the commission of the crime ... that would mitigate against imposition of the death penalty. Following Franklin and Smith, we therefore conclude that any *982 right to consideration of residual doubt was not impaired. FN24. The lengthy list of cases that Jackson cites suggest, at most, that a defendant is permitted to argue residual doubt. None stands for the proposition that the Eighth Amendment compels a jury instruction on residual doubt. K. As part of rendering its sentencing verdict, the jury completed a special verdict form that included an extensive sixty-item list of potential mitigating factors. Only one of those factors was found by all twelve jurors,FN25 and fifty of them received zero support. FN25. Factor # 15: [Jackson] had no positive role model in his life as a child and this factor is mitigating. [28] Jackson argues that the verdict is inconsistent with the evidence presented at trial. He claims that in one case, the verdict contradicted an explicit government stipulation. Elsewhere, he claims that the jury failed to find factors that had been demonstrated at trial beyond all doubt. He concludes that [n]o rational juror could have viewed the evidence and then answered the questions regarding the mitigating factors in such a manner without violating his oath as a juror. As an initial matter, we have expressed doubt that a special verdict on mitigating factors is reviewable.FN26 Assuming, arguendo, that we possess the authority to review the jurors' special findings regarding mitigating factors, we must accept the jurors' factual determinations unless no reasonable juror could have arrived at the conclusion reached by the juror in question. Hall, 152 F.3d at 413. Further, verdict inconsistencies are

generally tolerated. See Agofsky, 458 F.3d at 375.FN27 FN26. See United States v. Hall, 152 F.3d 381, 413 (5th Cir.1998) ([W]e question whether the jurors' failure to find a particular mitigating factor constitutes a proper subject of review for this court.), abrogated on other grounds by United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000); see also United States v. Bernard, 299 F.3d 467, 485 (5th Cir.2002) (This court has previously expressed doubt regarding its authority to review jury findings relating to mitigating factors. [ United States v.] Hall questions whether a jury's failure to find the existence of a mitigating factor is subject to appellate review, since the FDPA does not require the jury to make special findings of the existence of, or degree of jury unanimity upon, mitigating factors.) (internal citation omitted). FN27. As explained in United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), [W]ith few exceptions [involving crooked members of the venire panel or improper outside influences on the jury during trial], once the jury has heard the evidence and the case has been submitted, the litigants must accept the jury's collective judgment. Courts have always resisted inquiring into a jury's thought processes; through this deference the jury brings to the criminal process, in addition to the collective judgment of the community, an element of needed finality. (Internal citations omitted.) The case Jackson cites repeatedly as contrary persuasive authority, Getsy v. Mitchell, 456 F.3d 575 (6th Cir.2006), was vacated by the en banc court, Getsy v. Mitchell, 495 F.3d 295, 300, 309 (6th Cir.2007) (en banc) (noting that [p]erhaps some day the Supreme Court will hold that ... inconsistent verdicts ... are unconstitutional[, b]ut this is not the law of the land today ...), cert. denied, --- U.S. ----, 128 S.Ct. 1475, 170 L.Ed.2d 299 (2008). Jackson's strongest claim that the verdict is inconsistent involves Gulley. The government stipulated that Gulley did not receive the death penalty, but on the special verdict form, only one juror found that to be a proven mitigating factor. Jackson argues that in making that finding, [e]leven of the twelve jurors found an uncontroverted, stipulated, written in stone fact, not to be a fact. Jackson's argument overstates his case. The special verdict form asked whether *983 the jury found that [a]n equally culpable defendant, Arzell Gulley, did not receive a sentence of death as a result of the offense

(emphasis added). The government stipulated only that Gulley did not receive a sentence of death; the jury, meanwhile, could have rationally concluded that he was not equally culpable. Jackson testified that Gulley didn't help me kill the man and in fact yelled [l]et's get out of here after the first stab. Thus, the jury's finding is neither inconsistent with the government's stipulation nor irrational. The other findings that Jackson cites as inconsistent all relate to factors that the government did not stipulate to be true, e.g., Jackson's head injury as a baby, low I.Q. score, possible retardation,FN28 bad home life, good behavior in prison, and diligence in teaching himself to read. Jackson argues that the evidence overwhelmingly established those factors without controversion by the government. FN28. Jackson alludes to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (barring executions of the mentally retarded), but he does not make an Atkins claim. This mitigation evidence, however, could rationally be called into question. Much of it was provided by Jackson's childhood and current girlfriend, whom the jury was free to disbelieve,FN29 and the government used cross-examination to cast doubt on the reliability of Jackson's expert witnesses. Likewise, despite Jackson's claims to good behavior and educational achievement, the jury, upon learning that he ran a gambling operation in prison, reasonably could have concluded that his rehabilitation was not going well. FN29. See, e.g., Hall, 152 F.3d at 413 (In support of his claim that he experienced an upbringing that militated against the imposition of the death penalty, Hall offered only the testimony of two of his family members, which the jury was free to believe or disbelieve.) (emphasis added). Further, and more fundamentally, the jury was not required to find that a factor was mitigating, even if it believed the factor's factual predicate to be true. All the law requires is that jurors be aware that they can consider a factor to be mitigating. See Bernard, 299 F.3d at 485-86. For example, no juror found that Jackson experienced persistent falling when trying to walk until he was 5 years old and this factor is mitigating. In reaching that conclusion, the jurors could have believed Jackson experienced problems walking but that the factor did not weigh against a sentence of death. The jury did not merely rubber-stamp the prosecution's request for a death sentence. Four jurors found that Jackson's father was abusive and that the abuse was mitigating. Every juror found it mitigating that Jackson

had no positive role model. Six found it mitigating that he was in prison for a non-violent offense. Ten found it mitigating that he was not actively looking to kill someone. Nine found it mitigating that he was the first aggressor. Eight found it mitigating that there are prisoners with worse records who are not sentenced to death. In short, the jurors appear to have properly and conscientiously carried out their duties. We cannot conclude that their findings are beyond the bounds of reason or are inconsistent with the government's stipulations. L. Jackson argues that the court erred in denying him a new trial or at least a hearing regarding his new trial motion. He contends the jury erroneously believed that even if he were sentenced to life *984 without parole, it was still possible he could be released before the end of his life-despite the district court's explicit instruction to the contrary. To support this contention, Jackson offered an affidavit of an investigator who contacted jurors after the trial. The affidavit stated that a number of them believed that Jackson could be released early, as had happened with a cooperating witness who testified at trial. [29] A juror's affidavit may not be received on a matter about which the juror would be precluded from testifying. A juror may testify regarding only three aspects of the events surrounding deliberations: (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. FED. R. EVID. 606(b) (emphasis added). In United States v. Jones, 132 F.3d 232, 245-46 (5th Cir.1998), a death penalty case like Jackson's, we unambiguously stated that [r]ule 606(b) has consistently been used to bar testimony when the jury misunderstood instructions and that outside influence refers to a factor originating outside of normal courtroom proceedings which influences jury deliberations, such as a statement made by a bailiff to the jury or a threat against a juror (emphasis added). Jones is on point,FN30 and the proffered affidavit should not be received. The affidavit does not provide evidence that extraneous prejudicial information was improperly brought to the jury's attention or that any outside influence was improperly brought to bear upon any juror. At most, it indicates that some jurors apparently misunderstood what Jackson concedes was the court's explicit instruction. Any misunderstanding was seemingly caused by the testimony of a government witness, which came as a valid part of his direct examination during normal courtroom proceedings.

FN30. To avoid the impact of Jones, Jackson mischaracterizes the order denying a new trial as a misstatement of the law. He seizes on the court's statement that because the jury charge did not directly address or even allude to the possibility of future sentence reductions, the jury cannot be accused of explicitly disregarding the court's instructions .... He argues that the court incorrectly focused on the correctness of its instructions rather than the jury's violation of them. Jackson overlooks the final sentences in the paragraph, in which the court properly explained it was concerned only with influences external to the trial: Moreover, so long as any misunderstanding regarding the jury charge was not the result of an improper outside source or extraneous influence, the district court need not grant a new trial (citing Jones, 132 F.3d at 245-46). The court then explained that Jackson had failed to offer any evidence that showed that the jury's erroneous understanding of what life without parole meant had originated outside of the trial. [30] Because the investigator's affidavit was inadmissible, and Jackson presented no other evidence of jury confusion, the district court was well within its discretion to deny a new trial. Moreover, given that Jackson had not proffered any admissible evidence, the court properly denied the motion to hold an evidentiary hearing.FN31 FN31. See, e.g., Tanner v. United States, 483 U.S. 107, 127, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987) ([T]he District Court did not err in deciding, based on the inadmissibility of juror testimony and the clear insufficiency of the nonjuror evidence offered by petitioners, that an additional post-verdict evidentiary hearing was unnecessary.). For the reasons stated, we AFFIRM the conviction and sentence. C.A.5 (Tex.),2008. U.S. v. Jackson 549 F.3d 963, 77 Fed. R. Evid. Serv. 1538 END OF DOCUMENT 2. EVIDENCE OF OTHER BAD ACTS
A)

BOYD VS. UNITED STATES, 142 U.S. 450, 12 S. CT. 292, 4 JANUARY 1892 LEA Supreme Court of the United States. BOYD et al.

v. UNITED STATES. January 4, 1892. In error to the circuit court of the United States for the western district of Arkansas. Indictment of John Boyd and Eugene Standley, alias Eugene Stanton, for murder. The charge of the trial court is reported in 45 Fed. Rep. 851. Defendants, having been convicted and sentenced to death, bring error to the supreme court. Reversed. West Headnotes Criminal Law 110 368.54

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)3 Other Misconduct Inadmissible Under Any of Several Theories 110k368.54 k. Homicide, mayhem, and assault with intent to kill. Most Cited Cases (Formerly 110k369.3) On a trial for murder, committed in a shooting affray participated in by defendants on one side, and several persons, including deceased, on the other, evidence was admitted that defendants had committed five separate robberies during the 20 days preceding the shooting, on the theory that the party of the murdered man was attempting to arrest defendants, but it did not appear that any of that party knew of more than one of the previous robberies. Held, that it was error to admit testimony as to the other robberies. Criminal Law 110 1169.5(2)

110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110k1169 Admission of Evidence 110k1169.5 Curing Error by Withdrawal, Striking Out, or Instructions to Jury 110k1169.5(2) k. Particular evidence or prosecutions. Most Cited Cases

On a trial for murder, committed in a shooting affray, participated in by defendants on one side, and by several persons, including deceased, on the other, evidence was admitted that defendants had committed five separate robberies during the 20 days preceding the shooting, on the theory that the party of the murdered man was attempting to arrest defendants, but it did not appear that any of that party knew of more than one of the previous robberies. Held, that error in admitting evidence as to such other robberies was not cured by a charge merely stating that the evidence as to the robbery of which the party of deceased had knowledge should be considered only with reference to the right to arrest, and not mentioning the other robberies by name, or referring to them, except by a repetition of the words these other crimes. Witnesses 410 49

410 Witnesses 410II Competency 410II(A) Capacity and Qualifications in General 410k47 Infamy or Conviction of Crime 410k49 k. Effect of pardon or punishment. Most Cited Cases The granting of a full and unconditional pardon by the president of the United States to a person convicted of a felony restores his competency as a witness, and this result is not affected by a recital in the pardon that it was granted for the reason, among others, that his testimony was desired by the government in a cause then pending in a court of the United States. Trial 388 284

388 Trial 388VII Instructions to Jury 388VII(F) Objections and Exceptions 388k284 k. Effect of failure to object or except. Most Cited Cases Where erroneous evidence is admitted, and the court fails to cure the error by a sufficient charge, a failure to except to the charge is not a waiver of the original exception to the admission of this evidence. **292 *450 A. H. Garland, for plaintiffs in error. Asst. Atty. Gen. Maury, for the United States.

Mr. Justice HARLAN delivered the opinion of the court. **293 The plaintiffs in error were jointly indicted in the court below for the crime of murder, alleged to have been committed on the 6th day of April, 1890, at the Choctaw Nation, in the Indian country, within the western district of Arkansas; the first count alleging that the person murdered, John Dansby, was a negro, and not an Indian; the second, that the defendants were white men, and not Indians. The court, in its charge *451 to the jury, said that the second count differed from the first by alleging that Eugene Standley, alias Eugene Stanton, [he is charged that way in both counts,] and John Boyd, were white men, and not Indians. The proof, without any controversy, shows that Standley is an Indian; therefore you will confine your finding, if it should be a verdict of guilty, to the first count in the indictment, if the proof shows that fact with reference to Standley, and you should find him guilty. If it shows such other facts as are necessary to give the court jurisdiction, as are alleged in the first count of the indictment, then your finding will be on that count, provided you should find a verdict of guilty. If you should find a verdict of not guilty, it may be general in its character, and it would be responsive to both charges. The defendants were found guilty of murder as charged in the first count. A motion for a new trial having been overruled, the defendants were condemned to suffer the punishment of death. The proof was conflicting upon many points, but there was evidence tending to show the following facts: In the night of April 6, 1890, the defendants, Boyd and Standley, with John Davis, alias Myers, came to a ferry, on Cache creek, in the Indian country, a short distance from Martin Byrd's, at whose house, at the time, were John Dansby, the deceased, Joseph Byrd, a brother of Martin Byrd, and Richard Butler. The defendants and Davis, or one of them, called to the ferryman, Martin Byrd, to come and set them over the creek. Byrd protested that he did not like to do work of that kind after dark, but finally consented to get the key of the boat, and take them across the He went to his house, avowedly to obtain the key; and, after remaining away some time, returned, accompanied by Dansby, Joseph Byrd, and Richard Butler, each with weapons. When Martin Byrd reached the ferryboat, and was about to unlock the chain by which it was held fast,Boyd being at the time in the rear end of the boat. While Davis and Standley were sitting upon the bank of the creek,Davis said to him, Lay down that chain, and throw out your rusty change. Upon Byrd saying, Don't you want *452 to cross? Davis, holding his pistol upon Byrd, replied, with an oath, No, it's your money we're after. Dansby started towards Byrd, and was shot in the back by Boyd. When Davis presented his pistol at Martin Byrd, the latter, dropping upon his knees, drew a pistol. The ball from Davis' pistol passed over Byrd's head, but Davis was shot by Byrd, and died instantly. The firing immediately became general. Butler shot Boyd in the back, Standley shot at

Joseph Byrd, but was himself slightly wounded by a shot from the latter's pistol. Boyd, although badly wounded, went up the creek some little distance, but, being followed, was secured, and carried to Martin Byrd's house as a prisoner. He remained there until he was arrested by an officer upon the charge of having murdered Dansby. Standley escaped, and it was some time before he was arrested. Dansby lived a few days only, and died at Martin Byrd's house, from the wounds inflicted upon him on the above occasion. Upon the part of the defendants there was evidence tending to show a case, in some respects, materially different. They contendedto use the words of their counselthat while Boyd was sitting in the boat, and Standley and Davis on the bank, the ferryman and his party came around with Winchester rifles and revolvers, and, before they suspected anything, had leveled their guns on him and Davis, and told them to give up their pistols; that they had the description of some men that had robbed Judge Taylor; that he handed up his pistol, which they took, and Davis drew his out, but whether to comply or to resist he does not know; that they fired on Davis and killed him; that he turned, and as he did so, was shot in the shoulder, and fell, the ball remaining under the point of the shoulder-blade; that they ran after Boyd, and while they were gone he picked up Davis' pistol, and ran off and hid. The principal witness for the prosecution at the trial was Martin Byrd. When presented as a witness, the defendants objected to him as incompetent, by reason of the fact that he had been convicted of the crime of larceny, and sentenced to the penitentiary, the record of such conviction being offered *453 in support of the objection. The government thereupon produced a pardon from the president of the United States, as follows: Benjamin Harrison, president of the United States of America, to all whom these presents may come, greeting: Whereas, Martin Byrd, in the United States district court for the western district of Arkansas, was indicted, charged with larceny, convicted May 10, 1884, and on the 19th day of May, 1884, was sentenced to one year's imprisonment in the Detroit house of correction, Detroit, Michigan; and whereas, the said Martin Byrd has been discharged from said prison, he having served out the term for which sentenced, and was accredited for good behavior while in prison; and whereas, the district attorney for the western district of Arkansas requests the pardon of said Martin Byrd, in order to restore him to competency as a witness in a murder trial to be had July 1st, next, in said district court at Little Rock, in which request the judge of said district court unites: Now, therefore, be it known that I, Benjamin Harrison, president of the United States of America, in consideration of the premises, divers other good and sufficient reasons me thereunto moving, do hereby grant to the said Martin

Byrd a full and unconditional pardon. In testimony **294 whereof I have hereunto signed my name and caused the seal of the United States to be affixed. Done at the city of Washington this 27th day of June, A. D. 1890, and of the independence of the United States the one hundred and fourteenth. [The place of the seal.] BENJAMIN HARRISON. By the President. JAMES G. BLAINE, Sec. of State. This pardon removed all objections to the competency of Martin Byrd as a witness. The recital in it that the district attorney requested the pardon in order to restore Byrd's competency as a witness in a murder trial to be had in the district court at Little Rock did not alter the fact that the pardon was, by its terms, full and unconditional. The *454 disability to testify being a consequence, according to the principles of the common law, of the judgment of conviction, the pardon obliterated that effect. The competency as a witness of the person so pardoned was therefore completely restored. U. S. v. Wilson, 7 Pet. 150; Ex parte Wells, 18 How. 307, 315; Ex parte Garland, 4 Wall. 333, 380; 4 Bl. Comm. 402. The principal assignments of error relate to the admission, against the objection of the defendants, of evidence as to several robberies committed prior to the day when Dansby was shot, and which, or some of which at least, had no necessary connection with, and did not in the slightest degree elucidate, the issue before the jury, namely, whether the defendants murdered John Dansby on the occasion of the conflict at the ferry. This evidence tended to show, and, for the purposes of the present discussion, it may be admitted that it did show, that in the night of March 15, 1890, Standley, under the name of Henry Eckles, robbed Richard C. Brinson and Samuel R. Mode; that in the afternoon of March 17, 1890, he and Boyd robbed Robert Hall; that in the night of March 20, 1890, Standley, under the name of John Haynes, together with Davis, robbed John Taylor; and that in the evening of April 5, 1890, Davis, Boyd, and Standley robbed Rigsby's store. In relation to these matters the witnesses went into details as fully as if the defendants had been upon trial for the robberies they were, respectively, charged by the evidence with having committed. The admissibility of this evidence was attempted to be sustained in part upon the ground that Martin Byrd and his crowd, having the right to arrest the parties guilty of the robberies, were entitled to show that the robberies had been in fact committed by the defendants. While the evidence tended to show that Martin Byrd had information, prior to April 6, 1890, of the Taylor robbery, and of Taylor having offered a reward for the arrest and conviction of the guilty parties, there is nothing to show that he or his associates had ever heard, before the meeting at the ferry, of the robberies of Brinson, Mode, Hall, and Rigsby. It is said that the evidence in chief as to what occurred at the *455 time of the shooting left the identity of the defendants, or at least of Standley, in some doubt, and that the facts

connected with the robbery of Rigsby, showing that the defendants and Davis were all engaged in it, and were together only the night before Dansby was shot, tended not only to identify Standley and Boyd, but to show that they came to the ferry for the same purpose with which they went to Rigsby's house, namely, to rob and plunder for their joint benefit; and, consequently, that each defendant was responsible for Dansby's death, if it resulted from the prosecution of their felonious purpose to rob. The rule upon this subject was thus expressed by the court in its charge to the jury: If a number of men agree to do an act which, from its nature, or the way it is to be done, is an act that will put human life in jeopardy, then the putting of human life in jeopardy, or the destruction of human life, is a necessary and a natural and a probable consequence of the act agreed to be done by the party; and upon the principle of the law I have already announced to you it is but equal and exact justice that all who enter upon an enterprise of that kind should be responsible for the death of an innocent person that transpires because of the execution of the enterprise then entered upon, and because that enterprise is one that would naturally and reasonably produce that result. Again: Now, the law defines the character of crimes that if a number of persons enter upon the commission of them, they may be affected by a result of this kind. It says robbery is one of them. Why? Robbery has the very element that enters into it, to distinguish it, to make it a crime, as that of violence upon the person; and it is but a probable and natural and reasonable consequence of an attempt to commit that crime that a human life will be destroyed. The very demand of a man who robsYour money or your life!jmplies that human life is in jeopardy; so that, when a number of persons agree to and enter upon the commission of the crime of robbery, and a person is killed, who is an innocent person, in the execution of that purpose to rob, all the parties who have so entered into the agreement and enter *456 upon the execution of the purpose to rob are equally responsible. The pistol or gun fired is the pistol or gun of each and every one of them. There are other crimes of a like character, and the law, I say, draws this distinction, and bases it upon a just ground. It says that any crime which, from its nature and the way it is usually committed, will necessarily or probably or reasonably endanger a human life, is a crime that, if a number of persons agree to commit, and enter upon the commission of, will involve them all in the consequences that ensue. The commission of robbery is a crime that may cause the death of an innocent person.' These principles, of the soundness of which we entertain no doubt, were enforced by the court in its charge by numerous illustrations drawn from adjudged cases and text-writers of high authority. This being done, it proceeded: Now, it becomes necessary for the court to remind you of what figure these other crimes that have been proven cut in the case. This **295

crime of the robbery of Rigsby may be taken into consideration by you in passing upon the question of the identity of the defendants. It is a competent fact for that purpose. You will remember that the evidence shows that goods were found upon the person of one of these parties who was present at this ferry when the killing of Dansby took place that were sworn to by Rigsby as having been taken by the three partiesthe man Davis or Myers and these two defendantsfrom his store. That would be evidence that might be taken into consideration with the statements of these colored witnesses who were present at the time, and undertook to point out and identify these defendants,that may be taken into consideration for that purpose. If you believe in the theory that there was an attempt made to arrest upon the part of these parties, and that the attempt wasn't made by these defendants, together witn Davis, to commit a robbery upon them, then the fact that the robbery of Rigsby had transpired, and the robbery of Taylor and these other robberies that have been proven before, may be taken into consideration to show that crime had been committed that would give the citizen the right to make an arrest, provided there was reasonable ground to believe, in your *457 judgment, at the time, that the parties they were seeking to arrest were the ones that had committed those crimes. They may be taken into consideration for that purpose. You are not to consider these other crimes as make-weight against the defendants alone. That is to say, you are not to convict the defendants because of the commission of these other crimes. They were admitted for the specific purposes that I have named. They are not to influence your minds so as to induce you to more readily convict them than you would convict them if the crimes had not been proven against him. That is the figure they cut. That is the reason they were admitted as testimony before you. The charge made no reference to the robberies committed upon Brinson, Mode, and Hall, except as they may have been in the mind of the court when it referred to these other crimes. Whatever effect, prejudicial to the defendants, the proof of the robberies upon Brinson, Mode, and Hall produced upon the minds of jurors, remained with them, except as it may have been modified by the general statement that the defendants were not to be convicted because of the commission of these other crimes. The only other crimes referred to in the charge (other than the alleged murder of Dansby) were the Rigsby and Taylor robberies. The jurors were particularly informed as to the purposes for which the court admitted testimony in respect to those two robberies; but they were left uninstructed, in direct terms, as to the use to which the proof of the Brinson, Mode, and Hall robberies could be put in passing upon the guilt or innocence of the particular crime for which the defendants were indicted. It is true, as suggested by counsel for the government, that no exception was taken to the charge. But objection was made by the defendants to the evidence as to

the Brinson, Mode, and Hall robberies, and exception was duly taken to the action of the court in admitting it. That exception was not waived by a failure to except to the charge. If the evidence as to crimes committed by the defendants, other than the murder of Dansby, had been limited to the robberies of Rigsby and Taylor, it may be, in view of the *458 peculiar circumstances disclosed by the record, and the specific directions by the court as to the purpose for which the proof of those two robberies might be considered, that the judgment would not be disturbed, although that proof, in the multiplied details of the facts connected with the Rigsby and Taylor robberies, went beyond the objects for which it was allowed by the court. But we are constrained to hold that the evidence as to the Brinson, Mode, and Hall robberies was inadmissible for the identification of the defendants, or for any other purpose whatever, and that the injury done the defendants in that regard was not cured by anything contained in the charge. Whether Standley robbed Brinson and Mode, and whether he and Boyd robbed Hall, were matters wholly apart from the inquiry as to the murder of Dansby. They were collateral to the issue to be tried. No notice was given by the indictment of the purpose of the government to introduce proof of them. They afforded no legal presumption or inference as to the particular crime charged. Those robberies may have been committed by the defendants in March, and yet they may have been innocent of the murder of Dansby in April. Proof of them only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules prescribed by law for the trial of human beings charged with crime involving the punishment of death. Upon a careful scrutiny of the record we are constrained to hold that, in at least the particulars to which we have adverted, those rules were not observed at the trial below. However depraved in character, and however full of crime their past lives may have been, the defendants were entitled to be tried upon competent evidence, and only for the offense charged. The judgment is reversed and the cause remanded, with directions to grant a new trial. U.S. 1892 Boyd v. U.S. 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 END OF DOCUMENT

B)

UNITED STATES VS. CUNNINGHAM, 103 F. 3D 553, 26 DECEMBER 2008 -AKI United States Court of Appeals, Seventh Circuit. UNITED STATES of America, PlaintiffAppellee, v. Constance F. CUNNINGHAM, DefendantAppellant. No. 961277. Argued Sept. 20, 1996. Decided Dec. 26, 1996.

Defendant nurse was convicted in the United States District Court for the Southern District of Indiana, Evansville Division, Gene E. Brooks, J., of tampering with consumer product with reckless disregard for risk that another person would be placed in danger of bodily injury, which was based on allegation that she removed Demerol from syringes in hospital, allegedly to feed her addiction. Defendant appealed. The Court of Appeals, Posner, Chief Judge, held that: (1) in issue of first impression, defendant placed others in danger of bodily injury, and (2) evidence of defendant's addiction, and of her prior license suspension for stealing Demerol from her former employer, was admissible on issue of motive. Affirmed. West Headnotes [1] Health 198H 982

198H Health 198HVIII Crimes 198Hk982 k. Pharmaceuticals, drugs, and medical devices. Most Cited Cases (Formerly 138k29 Drugs and Narcotics) Others were placed in danger of bodily injury when defendant nurse removed painkiller Demerol (meperidine hydrochloride) from syringes in hospital, allegedly to feed her addiction, thus warranting her conviction for tampering with consumer product with reckless disregard for risk that another person would be placed in danger of bodily injury; statute forbids tampering that reduces efficacy of drug designed to save life or alleviate bodily injury, as well as tampering that turns drug into poison. 18 U.S.C.A. 1365(a), (g)(4)(B).

[2] Criminal Law 110

368.66

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)3 Other Misconduct Inadmissible Under Any of Several Theories 110k368.66 k. Other particular offenses. Most Cited Cases (Formerly 110k369.1) Evidence that defendant nurse stole painkiller Demerol (meperidine) from her prior employer could not be introduced to show that she was likely to have stolen Demerol from her subsequent employer, which gave rise to instant charge of tampering with consumer product with reckless disregard for risk that another person would be placed in danger of bodily injury. 18 U.S.C.A. 1365(a); Fed.Rules Evid.Rule 404(b), 28 U.S.C.A. [3] Criminal Law 110 371.1

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)6 Other Misconduct Showing Motive 110k371.1 k. In general. Most Cited Cases (Formerly 110k369.1) Criminal Law 110 371.21

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)6 Other Misconduct Showing Motive 110k371.21 k. Robbery. Most Cited Cases (Formerly 110k371(12), 110k369.1) Propensity evidence and motive evidence need not overlap; they do not, for example, when past drug convictions are used to show that defendant in robbery case is addict and his addiction is offered as motive for robbery. Fed.Rules Evid.Rule 404(b), 28 U.S.C.A. [4] Criminal Law 110 110 Criminal Law 110XVII Evidence 371.1

110XVII(F) Other Misconduct by Accused 110XVII(F)6 Other Misconduct Showing Motive 110k371.1 k. In general. Most Cited Cases (Formerly 110k371(12), 110k369.1) Propensity evidence and motive evidence overlap when crime is motivated by taste for engaging in that crime or compulsion to engage in it, e.g., addiction, rather than by desire for pecuniary gain or for some other advantage to which crime is instrumental in sense that it would not be committed if advantage could be obtained as easily by lawful route. Fed.Rules Evid.Rule 404(b), 28 U.S.C.A. [5] Criminal Law 110 371.1

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)6 Other Misconduct Showing Motive 110k371.1 k. In general. Most Cited Cases (Formerly 110k371(12)) The greater the overlap between propensity and motive, the more careful district judge must be about admitting under rubric of motive evidence that jury is likely to use instead as basis for inferring defendant's propensity, his habitual criminality, even if instructed not to. Fed.Rules Evid.Rule 404(b), 28 U.S.C.A. [6] Health 198H 989

198H Health 198HVIII Crimes 198Hk989 k. Evidence. Most Cited Cases (Formerly 138k31 Drugs and Narcotics) Evidence of defendant nurse's addiction to painkiller Demerol was admissible on issue of motive in prosecution for tampering with consumer product with reckless disregard for risk that another person would be placed in danger of bodily injury, which was based on allegation that she removed Demerol from syringes in hospital, allegedly to feed her addiction; there was not complete overlap between evidence of propensity and evidence of motive, as defendant's addiction was not to stealing Demerol but to consuming it. 18 U.S.C.A. 1365(a); Fed.Rules Evid.Rule 404(b), 28 U.S.C.A. [7] Criminal Law 110 371.25

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)6 Other Misconduct Showing Motive 110k371.25 k. Other particular offenses. Most Cited Cases (Formerly 110k371(12)) Evidence that defendant's nurse's license had previously been suspended for stealing painkiller Demerol from her former employer, after which her license was reinstated on condition that she submit to drug tests, some results of which she falsified, was admissible as to motive in prosecution for tampering with consumer product with reckless disregard for risk that another person would be placed in danger of bodily injury, which was based on allegation that she stole Demerol from her subsequent employer, allegedly to feed her addiction; that evidence furnished basis for inference that she had falsified test results in order to enable her to continue to feed her addiction without detection and without losing access to free supply of addictive substance. 18 U.S.C.A. 1365(a); Fed.Rules Evid.Rule 404(b), 28 U.S.C.A. [8] Criminal Law 110 368.4

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)1 Other Misconduct as Evidence of Offense Charged in General 110k368.3 Purposes for Admitting Evidence of Other Misconduct 110k368.4 k. In general. Most Cited Cases (Formerly 110k369.2(1)) Admission of bad-acts evidence to contextualize, and by contextualizing enable jury to understand, other evidence is recognized exception to prohibition of bad-acts evidence. Fed.Rules Evid.Rule 404(b), 28 U.S.C.A. [9] Health 198H 989

198H Health 198HVIII Crimes 198Hk989 k. Evidence. Most Cited Cases (Formerly 138k31 Drugs and Narcotics)

Evidence supported defendant nurse's conviction for tampering with consumer product with reckless disregard for risk that another person would be placed in danger of bodily injury, which was based on allegation that she removed Demerol from syringes in hospital, allegedly to feed her addiction; one of five nurses who had access to locked cabinet was thief, defendant was only one of those nurses shown to have motive, i.e., her Demerol addiction, and defendant's urine tested positive for Demerol. 18 U.S.C.A. 1365(a). *555 Mark D. Stuaan (argued), Office of the United States Attorney, Indianapolis, IN, for PlaintiffAppellee. Jeffery L. Lantz (argued), Evansville, IN, for DefendantAppellant. Before POSNER, Chief Judge, and CUDAHY and DIANE P. WOOD, Circuit Judges. POSNER, Chief Judge. Constance Cunningham was sentenced to 84 months in prison after being convicted by a jury of tampering with a consumer product with reckless disregard for the risk that another person will be placed in danger of death or bodily injury and under circumstances manifesting extreme indifference to such risk. 18 U.S.C. 1365(a). Cunningham was a registered nurse at an Indiana hospital. The hospital staff discovered that syringes containing the powerful painkiller Demerol (a brand name for meperidine hydrochloride, Physician's Desk Reference 2206 (49th ed.1995), a Schedule II controlled substance, 21 C.F.R. 1308.12(c)(18) (1996)) had been tampered with; in some instances the Demerol had been replaced with a saline solution. Cunningham was one of five nurses who, during a period when some of the syringes were known to have been tampered with, had access to the locked cabinet in which they were kept. All five nurses were interviewed by the police and denied having tampered with the syringes. But Cunningham acknowledged having once been a Demerol addict. She said the problem was in the past and to prove this she offered to have her blood and urine tested for Demerol. The blood test was negative but the urine test positive, which was consistent with recent use, since Demerol remains in the urinary tract longer than in the bloodstream. The government believes that Cunningham was stealing Demerol from the syringes in order to feed a Demerol addiction. [1] Cunningham argues that merely withholding pain medication does not place anyone in danger of ... bodily injury. The statute defines bodily injury to include physical pain, 18 U.S.C. 1365(g)(4)(B), but she argues that failing to relieve pain is not the same as causing pain. Since with the pain medication there is no (or less) pain, the withholding of the

medication is a necessary condition of pain; but not all necessary conditions are causes. Having a nervous system is a necessary condition of experiencing pain, but we would not ordinarily say that having a nervous system causes pain. Causal ascription is purposive. In law it is based on social ideas about responsibility; it is policy-driven. In light of the goals reasonably to be imputed to a statute that punishes product tampering with injurious consequences expressly including pain, conduct that perpetuates an injury by preventing it from being alleviated by the product designed for that end is on the same footing as tampering that creates a fresh injury, as when the tamperer introduces a poison into a drug. In either case there is an injury that would not have occurred had the tampering not occurred. We *556 cannot think of any reason to distinguish between the two cases. There was also evidence that the saline solution that replaced the Demerol, not being sterile, created a risk of infection. This evidence was not essential and we do not rely on it, because the statute as we interpret it forbids tampering that reduces the efficacy of a drug designed to save life or alleviate a bodily injury, as well as tampering that turns the drug into a poison. We cannot find a case that so holds, but our interpretation was assumed in United States v. Eide, 875 F.2d 1429, 143233 (9th Cir.1989), and no cases are contrary. We must next consider whether the district judge abused his discretion in admitting evidence of prior bad acts of the defendant. Fed.R.Evid. 404(b). Four years before the tampering, Cunningham had pleaded guilty to stealing Demerol from the hospital at which she was then employed as a nurse under another name. Her nurse's license had been suspended, but it had later been reinstated subject to several conditions including that she submit to periodic drug testing. She falsified the results of some of these tests. The judge sustained an objection to placing the conviction in evidence but allowed in the suspension of her license because of her earlier theft of Demerol, the falsification of the test results, and the addiction that had led to the earlier theft and resulting suspension. [2] Rule 404(b) forbids the introduction of evidence of a person's prior conduct (wrongful or otherwise, United States v. Hill, 40 F.3d 164, 168 (7th Cir.1994), but normally wrongful) for the purpose of showing a propensity to act in accordance with the character indicated by that conduct. So the fact that Cunningham had stolen Demerol in the past could not be introduced to show that she is likely to have stolen Demerol in the present. But evidence of prior conduct may be introduced (subject to the judge's power to exclude it under Rule 403 as unduly prejudicial, confusing, or merely cumulative) for other purposes, for example to show the defendant's motive for committing the crime with which he is charged. [3][4][5] Propensity evidence and motive evidence need not overlap.

They do not, for example, when past drug convictions are used to show that the defendant in a robbery case is an addict and his addiction is offered as the motive for the robbery. See, e.g., People v. McConnell, 124 Mich.App. 672, 335 N.W.2d 226, 230 (1983); cf. People v. Moreno, 61 Cal.App.3d 688, 69394, 132 Cal.Rptr. 569 (1976) (man's theft of a woman's underwear); contra, State v. LeFever, 102 Wash.2d 777, 690 P.2d 574, 57678 (1984) (addiction as motive for robbery). They do overlap when the crime is motivated by a taste for engaging in that crime or a compulsion to engage in it (an addiction), rather than by a desire for pecuniary gain or for some other advantage to which the crime is instrumental in the sense that it would not be committed if the advantage could be obtained as easily by a lawful route. See, e.g., People v. Hancock, 156 Cal.App.2d 305, 319 P.2d 731, 734 (1957) (possession of drugs); State v. Wedemann, 339 N.W.2d 112, 115 (S.Dak.1983) (firebug); but cf. State v. Carty, 231 Kan. 282, 644 P.2d 407, 41112 (1982) (same, but motive not an issue). Sex crimes provide a particularly clear example. Most people do not have a taste for sexually molesting children. As between two suspected molesters, then, only one of whom has a history of such molestation, the history establishes a motive that enables the two suspects to be distinguished. In 1994, Rule 414 was added to the Federal Rules of Evidence to make evidence of prior acts of child molestation expressly admissible, without regard to Rule 404(b). See also Rules 413 and 415; United States v. Roberts, 88 F.3d 872 (10th Cir.1996) (per curiam). But the principle that we are discussing is not limited to sex crimes. A firebugone who commits arson not for insurance proceeds or revenge or to eliminate a competitor, but for the sheer joy of watching a fireis, like the sex criminal, a person whose motive to commit the crime with which he is charged is revealed by his past commission of the same crime. State v. Wedemann, supra. No special rule analogous to Rules 413 through 415 is necessary to make the evidence of the earlier crime admissible, because 404(b) expressly allows evidence of prior wrongful acts to establish motive. The greater the overlap between propensity and *557 motive, the more careful the district judge must be about admitting under the rubric of motive evidence that the jury is likely to use instead as a basis for inferring the defendant's propensity, his habitual criminality, even if instructed not to. But the tool for preventing this abuse is Rule 403, not Rule 404(b). [6] We do not have a complete overlap between evidence of propensity and evidence of motive in this case. Most people don't want Demerol; being a Demerol addict gave Cunningham a motive to tamper with the Demerolfilled syringes that, so far as appears, none of the other nurses who had access to the cabinet in which the syringes were locked had. No one suggests that any of the five nurses might have wanted to steal Demerol in order to resell it rather than to consume it personally. Because Cunningham's addiction was not to stealing Demerol but to consuming it,

this case is like Moreno, where the defendant's sexual fetish supplied the motive for his stealing women's underwear, and McConnell, where the defendant's drug addiction supplied the motive to robhe needed money to buy drugs. Cunningham was in a position to steal her drug directly. The evidence of her addiction was thus admissible, United States v. Troop, 890 F.2d 1393, 140102 (7th Cir.1989); United States v. Kadouh, 768 F.2d 20, 21 (1st Cir.1985), unless the judge decided that its prejudicial effectthe effect that is inherent in any evidence that a jury, however instructed, might use to draw the forbidden inference that once a thief always a thiefclearly outweighed its probative value. He thought not, and we cannot say that this was an abuse of discretion. Remember that the judge excluded the evidence of Cunningham's conviction. That evidence would have been de trop, given the evidence of her addiction, which supplied the motive. What is more, the evidence of the conviction would not have distinguished between the addiction that furnished a motive to steal, and a propensity to steala nonaddict might steal drugs to resell them. [7][8] The evidence of Cunningham's suspension might seem to have been similarly superfluous and equivocal, as being merely the civil equivalent of the criminal conviction that the judge properly excluded. But the suspension, unlike the conviction, did not merely duplicate the evidence of Cunningham's addiction or insinuate a propensity to steal; it also provided essential background to the evidence of her having falsified the results of tests required as a condition of regaining her license. That evidence furnished the basis for an inference that she had falsified the test results in order to enable her to continue to feed her addiction without detection and without losing access to a free supply of the addictive substance, and so, like the addiction itself, established motive to tamper with the Demerol syringes. Granted, an alternative inference was that she had falsified the test results in order to be able to work as a nurse. But the jury was entitled to choose between these inferences, rather than having the evidence from which the inference was to be drawn withheld from them. Without knowing that she had been suspended, the jury would have wondered why she had been tested and had falsified the test results. The admission of bad-acts evidence to contextualize, and by contextualizing enable the jury to understand, other evidence is a recognized exception to the prohibition of bad-acts evidence. United States v. Cox, 923 F.2d 519, 523 (7th Cir.1991); United States v. Mancari, 875 F.2d 103, 105 (7th Cir.1989); United States v. Moreno, 991 F.2d 943, 946 (1st Cir.1993). [9] With the challenged evidence in, Cunningham's last argumentthat the evidence of her guilt was insufficient to convict her of product tampering beyond a reasonable doubtcollapses. One of the nurses was the thief, and only oneCunninghamwas shown to have a motive. Her lawyer

could have tried to show that another one had a motive too (not necessarily the same motive), but he did not. As a consequence, there was little doubt of her guilt. And she did flunk the urine test. AFFIRMED. C.A.7 (Ind.),1996. U.S. v. Cunningham 103 F.3d 553, 45 Fed. R. Evid. Serv. 919 END OF DOCUMENT
C)

UNITED STATES VS. GONZALES, 110 F. 3D 936 (1997) -BLESSIE United States Court of Appeals, Second Circuit. UNITED STATES of America, AppelleeCrossAppellant, v. Esteban GONZALEZ and Alfredo Colon, DefendantsAppellantsCross Appellees. Nos. 482, 1027 and 306, Dockets 951438(L), 961032(CON) and 96 1123(XAP). Argued Nov. 25, 1996. Decided April 4, 1997. As Corrected April 14, 1997.

Defendants were convicted in the United States District Court for the Southern District of New York, Whitman Knapp, J., of possessing firearm after having been previously convicted of felony. Convictions arose from defendants' alleged exchange of gunfire with off-duty police officer following thwarted burglary for which defendants allegedly acted as lookouts. Defendants appealed, and government cross-appealed. The Court of Appeals, Walker, Circuit Judge, held that: (1) evidence supported convictions; (2) evidence pertaining to attempted burglary was properly admitted; (3) Jencks Act violation was harmless; (4) no Brady violation occurred; (5) unobjected-to jury instruction removing from jury's consideration elements to which defendants stipulated was not plain error; and (6) district court erred by imposing downwardly departing sentence without stating its reasons for doing so. Affirmed. West Headnotes

[1] Weapons 406

293(3)

406 Weapons 406V Prosecution 406V(E) Weight and Sufficiency of Evidence 406k289 Possession, Use, Carrying 406k293 Possession After Conviction of Crime 406k293(3) k. Possession. Most Cited Cases (Formerly 406k17(4)) Evidence supported convictions for possessing firearm after having been previously convicted of felony, in connection with defendants' alleged exchange of gunfire with police officer, even though no bullet casings were ever found, no damage to property was ever detected, and neither defendant's fingerprints were found on guns recovered; jury rejected defense theory that officer planted weapons and otherwise fabricated much of incident in order to justify improper discharge of his own weapon, and prosecution presented evidence explaining absence of physical corroboration. 18 U.S.C.A. 922(g)(1). [2] Criminal Law 110 1159.2(4)

110 Criminal Law 110XXIV Review 110XXIV(P) Verdicts 110k1159 Conclusiveness of Verdict 110k1159.2 Weight of Evidence in General 110k1159.2(4) k. Quantum of evidence in general. Most Cited Cases Criminal Law 110 1159.2(9)

110 Criminal Law 110XXIV Review 110XXIV(P) Verdicts 110k1159 Conclusiveness of Verdict 110k1159.2 Weight of Evidence in General 110k1159.2(9) k. Weighing evidence. Most Cited Cases Where government's case is based primarily on eyewitness testimony describing criminal activity, any lack of corroboration goes only to weight of evidence, not to its sufficiency. [3] Criminal Law 110 371.24

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)6 Other Misconduct Showing Motive 110k371.24 k. Weapons and explosives. Most Cited Cases (Formerly 110k371(12), 110k369.2(3.1)) Criminal Law 110 372.55

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)11 Other Particular Theories of Admissibility 110k372.55 k. Showing background; explaining matters in evidence. Most Cited Cases (Formerly 110k369.2(3.1)) Evidence of thwarted burglary about same time as, and around corner from, police officer's exchange of gunfire with defendants, which shootout gave rise to instant charges of possessing firearm after having been previously convicted of felony, was relevant to possible motive for defendants' possession of firearms and to provide crucial background evidence that gave coherence to basic sequence of events; such evidence tended to show that defendants functioned as armed look-outs while their accomplice committed burglary, and explained why defendants would have been running down street toward officer, with guns drawn, while looking over their shoulders in direction of attempted burglary. 18 U.S.C.A. 922(g)(1). [4] Criminal Law 110 368.69

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)4 Other Misconduct Inseparable from Crime Charged 110k368.69 k. Interwoven occurrences in general. Most Cited Cases (Formerly 110k369.2(2)) Criminal Law 110 110 Criminal Law 368.70

110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)4 Other Misconduct Inseparable from Crime Charged 110k368.70 k. Same transaction in general. Most Cited Cases (Formerly 110k369.2(2)) Criminal Law 110 368.72

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)4 Other Misconduct Inseparable from Crime Charged 110k368.72 k. Completing the narrative in general. Most Cited Cases (Formerly 110k369.2(2)) Evidence of uncharged criminal activity is not considered other crimes evidence if it arose out of same transaction or series of transactions as charged offense, if it is inextricably intertwined with evidence regarding charged offense, or if it is necessary to complete story of crime on trial. Fed.Rules Evid.Rule 404(b), 28 U.S.C.A. [5] Criminal Law 110 938(1)

110 Criminal Law 110XXI Motions for New Trial 110k937 Newly Discovered Evidence 110k938 In General 110k938(1) k. In general. Most Cited Cases Because motions for new trial are disfavored in Second Circuit, standard for granting such motion is strict; that is, newly discovered evidence must be of sort that could, if believed, change verdict. [6] Criminal Law 110 945(1)

110 Criminal Law 110XXI Motions for New Trial 110k937 Newly Discovered Evidence 110k945 Sufficiency and Probable Effect 110k945(1) k. Probable effect of new evidence, in general. Most Cited Cases

New trial motion based on newly discovered evidence will be granted only where new evidence would probably lead to acquittal. [7] Criminal Law 110 1156(3)

110 Criminal Law 110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1156 New Trial 110k1156(3) k. Surprise and newly discovered evidence. Most Cited Cases Trial court's rulings on motions for new trial based on newly discovered evidence are given great deference because it presided over trial and is better able to determine effect new materials would have had. [8] Criminal Law 110 627.7(3)

110 Criminal Law 110XX Trial 110XX(A) Preliminary Proceedings 110k627.5 Discovery Prior to and Incident to Trial 110k627.7 Statements, Disclosure of 110k627.7(3) k. Statements of witnesses or prospective witnesses. Most Cited Cases Prosecution violated Jencks Act in prosecution for possessing firearm after having been previously convicted of felony, arising from their exchange of gunfire with off-duty police officer, by failing to turn over to defense taped testimony that second officer, who arrived at scene of shootout shortly after it occurred, gave at routine police hearing that was conducted to determine whether off-duty officer was justified in firing his weapon; however, error was harmless, as government's omission was inadvertent, and there was no material inconsistency between second officer's testimony at hearing and his and off-duty officer's trial testimony. 18 U.S.C.A. 3500. [9] Criminal Law 110 627.8(6)

110 Criminal Law 110XX Trial 110XX(A) Preliminary Proceedings 110k627.5 Discovery Prior to and Incident to Trial 110k627.8 Proceedings to Obtain Disclosure

110k627.8(6) information. Most Cited Cases

k.

Failure

to

produce

Where government's Jencks Act violation is inadvertent, defendant must establish that there is significant chance that added item would instill reasonable doubt in reasonable juror; put another way, failure to disclose may be disregarded if there is no reasonable probability that had evidence been disclosed, result would have been different. 18 U.S.C.A. 3500. [10] Criminal Law 110 919(1)

110 Criminal Law 110XXI Motions for New Trial 110k919 Misconduct of Counsel for Prosecution 110k919(1) k. In general. Most Cited Cases New trial is warranted for Brady violation only where defendant can establish that government failed to disclose favorable evidence, including favorable impeachment evidence, and that evidence was material; evidence is material only if there is reasonable probability that had evidence been disclosed, result would have been different. [11] Criminal Law 110 1995

110 Criminal Law 110XXXI Counsel 110XXXI(D) Duties and Obligations of Prosecuting Attorneys 110XXXI(D)2 Disclosure of Information 110k1993 Particular Types of Information Subject to Disclosure 110k1995 k. Diligence on part of accused; availability of information. Most Cited Cases (Formerly 110k700(2.1)) Evidence is not considered to have been suppressed within meaning of Brady doctrine if defendant or his attorney either knew, or should have known, of essential facts permitting him to take advantage of that evidence. [12] Criminal Law 110 2000

110 Criminal Law 110XXXI Counsel 110XXXI(D) Duties and Obligations of Prosecuting Attorneys 110XXXI(D)2 Disclosure of Information 110k1993 Particular Types of Information Subject

to Disclosure 110k2000 k. Test results; demonstrative and documentary evidence. Most Cited Cases (Formerly 110k700(3)) No Brady violation arose, in prosecution for possessing firearm after having been previously convicted of felony, from prosecution's failure to turn over to defense taped testimony given by two on-duty officers at routine police hearing that was conducted to determine whether off-duty officer was justified in firing his weapon; testimony at hearing was fully consistent with officers' trial testimony, and one on-duty officer's hearing testimony that she did not hear any gunshots as she drove up to crime scene would have undermined defendants' theory that only off-duty officer fired weapon on that night. 18 U.S.C.A. 922(g)(1). [13] Criminal Law 110 1038.1(3.1)

110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1038 Instructions 110k1038.1 Objections in General 110k1038.1(3) Particular Instructions 110k1038.1(3.1) k. In general. Most Cited Cases Even if unobjected-to jury instruction in prosecution for possessing firearm after having been previously convicted of felony were erroneous for removing from jury's consideration elements to which defendants stipulated, i.e., predicate felony convictions and movement of firearms in or affecting interstate commerce, any error was trial error, not structural error, and thus, because defendants did not even argue that outcome in their case would have differed had judge properly instructed jury on legal effect of stipulations, defendants' substantial rights were unaffected, and no plain error occurred. 18 U.S.C.A. 922(g)(1). [14] Criminal Law 110 1030(1)

110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General

110k1030 Necessity of Objections in General 110k1030(1) k. In general. Most Cited Cases Objection not taken is oversight by defendant that cannot be easily overlooked; it is impediment to proper trial administration and, when it occurs, it is powerful indicator that defendant did not believe then there was any error or, if he did, that it was inconsequential or that bringing it to court's attention would actually hurt his case. [15] Criminal Law 110 1030(1)

110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1030 Necessity of Objections in General 110k1030(1) k. In general. Most Cited Cases When error is unpreserved by objection, it will not result in reversal unless error is plain error and, even then, reversal lies within discretion of appellate court. Fed.Rules Cr.Proc.Rule 52(b), 18 U.S.C.A. [16] Criminal Law 110 1162

110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110k1162 k. Prejudice to rights of party as ground of review. Most Cited Cases To determine whether particular error is structural and thus requires reversal if preserved, court must look not only at right violated, but also at particular nature, context, and significance of violation. [17] Criminal Law 110 738

110 Criminal Law 110XX Trial 110XX(F) Province of Court and Jury in General 110k733 Questions of Law or of Fact 110k738 k. Elements of offenses. Most Cited Cases Possibility of jury nullification remains as long as any element is left for

jury to consider. [18] Criminal Law 110 731

110 Criminal Law 110XX Trial 110XX(F) Province of Court and Jury in General 110k731 k. Functions as judges of law and facts in general. Most Cited Cases Jury nullification, while it is available to defendant, is only a power that jury has and not right belonging to defendant, much less substantial right. [19] Sentencing and Punishment 350H 995

350H Sentencing and Punishment 350HIV Sentencing Guidelines 350HIV(H) Proceedings 350HIV(H)3 Hearing 350Hk992 Findings and Statement of Reasons 350Hk995 k. Necessity. Most Cited Cases (Formerly 110k1321(1)) District judge must state his or her reasons for departure from applicable Sentencing Guidelines range. U.S.S.G. 1B1.1 et seq., 18 U.S.C.A. *939 Pat V. Stiso, New York City (Marcia G. Shein, Atlanta, GA, of counsel), for Defendant AppellantCrossAppellee Esteban Gonzalez. Roger J. Schwarz, New York City, for Defendant AppellantCrossAppellee Alfredo Colon. Richard D. Owens, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for the Southern District of New York, of counsel, Guy Petrillo, Assistant United States Attorney), for AppelleeCross Appellant. Before: CARDAMONE, WALKER, Circuit Judges, and RESTANI, International Trade Judge. FN* FN* The Honorable Jane A. Restani, International Trade Judge for the United States Court of International Trade, sitting by designation. WALKER, Circuit Judge: Esteban Gonzalez (Gonzalez) and Alfredo Colon (Colon) were

convicted in the United States District Court for the Southern District of New York (Whitman Knapp, District Judge ) on November 1, 1994, following a jury trial, of possessing a firearm after having been previously convicted of a felony, in violation of 18 U.S.C. 922(g)(1). Gonzalez was subject to the enhanced penalty provisions of 18 U.S.C. 924(e) because of his prior record and was sentenced to 180 months imprisonment and a five-year term of supervised release. Colon was sentenced to 92 months imprisonment, to be followed by three years of supervised release. Both defendants now appeal the judgment of conviction principally on the grounds that: (1) the evidence was insufficient to sustain their convictions; (2) evidence pertaining to an attempted burglary that occurred in close physical proximity to and immediately preceding the defendants' apprehension was improperly admitted; (3) statements made by two police officers were improperly withheld from defense counsel in violation of the government's obligations both under the Jencks Act, 18 U.S.C. 3500 et seq., and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (4) the jury instructions with respect to the effect of stipulations on the jury's determination of each element of the crime were erroneous. The government, in a cross-appeal, contends that the district court erred in its sentencing of Gonzalez by downwardly departing without providing any permissible reason for doing so. For the foregoing reasons, we affirm the judgment of conviction entered against both defendants, and we vacate Gonzalez's sentence and remand for his resentencing. BACKGROUND Late in the evening of February 24, 1994, off-duty New York City police officer Thomas Crowe (Crowe) left his apartment in the Bronx to pick up dinner. As he walked to his car, he noticed three men sitting in a white Chevrolet Corsica parked across the street. The three were, it later turned out, appellant Alfredo Colon (Colon), appellant Esteban Gonzalez (Gonzalez), and Esteban's brother, Emilio Gonzalez. When Crowe drove back from the restaurant a short time later, Colon, whom Crowe recognized as one of the men he had seen earlier, was walking alone down the street in the vicinity of Crowe's apartment. Seated in his car, Crowe observed Colon approach the door of Crowe's apartment building and then shrug his shoulders, as though lost or mistaken about the address. Then, as Crowe walked toward his own apartment, he saw Colon walk down one side of the street to the end of the block, cross the street, and walk up the other side. His suspicions aroused, Crowe decided to monitor Colon's activities from just inside the doorway to his building. Crowe next saw the same white Corsica he had seen earlier slowly moving up his street, followed by a red Chevrolet Baretta. The lights were off on *940 both cars. The cars pulled up

to where Colon was standing under a street light across from Crowe's apartment. Emilio and Esteban Gonzalez got out of the two cars and all three men had an animated conversation that appeared to Crowe as though they were discussing directions. After several minutes of this discussion, Esteban and Emilio Gonzalez drove the two cars away, once again with their headlights off. Believing that the three were planning to steal a car, Crowe retrieved his off-duty revolver and a cordless telephone from his apartment, and returned to his post at the doorway. He next saw Colon, still pacing up and down the street, joined by Esteban Gonzalez, who was now on foot. Crowe then watched the two men crouch behind a fence and appear to concentrate their attention on some nearby houses. Crowe dialed 911. When he found himself unable to get through, he handed the phone to his girlfriend, Susan Woelfle, and asked her to place the call. As she did so, Crowe left the apartment building to confront Colon and Gonzalez. By now the two men had retreated from the fence, and were crouching behind a car. As Crowe approached the sidewalk in front of his house, he saw both Gonzalez and Colon draw guns and begin to run in Crowe's directionthe whole time looking over their shoulders in the direction they had been facing while earlier crouching by the fence. As the two men ran towards him, Crowe identified himself as a police officer and directed them to stop. They did not stop. Instead, Gonzalez fired a shot at Crowe. Crowe returned fire, and then sought cover behind a parked car. Crowe then saw the two toss their weapons over a nearby hedge and run down the street, away from Crowe. Crowe gave chase and managed to apprehend Colon after a brief struggle. At about this time, police officers Jeffrey Sapienza (Sapienza) and Valerie Parks (Parks), who were in the neighborhood investigating a burglary attempt, arrived at the scene in a marked patrol car. Sapienza took custody of Colon while Crowe retrieved one of the weapons discarded by the defendants. Crowe also gave the officers a description of Esteban and Emilio Gonzalez. A short while later, another police officer, William Coakley, after hearing a description of the white Corsica over the police radio, spotted a car fitting that description, pulled it over, and arrested its driver, Emilio Gonzalez. Some thirty minutes later, police officer Ralph Argiento located the red Baretta, pulled it over and detained its driver, Esteban Gonzalez, until Crowe arrived and identified him as the man who had fired a shot at him.

Later that evening, after securing the crime scene, a police officer found a second gun in the bushes near the spot where Crowe reported seeing Colon and Gonzalez discarding their weapons. No evidence of spent shell casings or ballistic damage was found. Both Alfredo Colon and Esteban Gonzalez were subsequently indicted, convicted after a seven-day jury trial, and sentenced as described earlier. This appeal followed. DISCUSSION I. The Sufficiency of the Evidence [1] At the conclusion of the government's case-in-chief, defendants moved pursuant to Fed.R.Crim.P. 29 for a judgment of acquittal on the ground that the evidence was insufficient to sustain a guilty verdict. On appeal, defendants renew this argument. A defendant challenging the sufficiency of the evidence underlying his conviction bears a very heavy burden. United States v. Soto, 47 F.3d 546, 549 (2d Cir.1995) (internal quotation marks omitted). We will find evidence to be legally insufficient to sustain a conviction only where, viewing the evidence in the light most favorable to the government and construing all inferences in its favor, no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. United States v. Amiel, 95 F.3d 135, 14142 (2d Cir.1996). Defendants' contention that the evidence against them was insufficient is based on the absence of any physical evidence to corroborate Crowe's testimony. For example, defendants argue that although Crowe testified *941 that he and the defendants exchanged gunfire, no bullet casings were ever found, nor was any damage to property ever detected. In addition, neither defendant's fingerprints were found on the guns recovered. These and other defects in proof are particularly significant, defendants argue, given the unreliability of Crowe's testimony at trial. We easily dispose of these arguments. [2] It is well settled that where, as here, the government's case is based primarily on eyewitness testimony describing criminal activity, any lack of corroboration goes only to the weight of the evidence, not to its sufficiency. The weight is a matter for argument to the jury, not a ground for reversal on appeal. United States v. Roman, 870 F.2d 65, 71 (2d Cir.1989). The jury was fully apprised by defense counsel of the absence of corroborating physical evidence in support of the defense theory of the casenamely, that Crowe planted weapons and otherwise fabricated much of the incident in order to justify the improper discharge of his own weapon. The jury plainly rejected this theory, and thus was entitled, if it so chose, to rest its verdict solely on

Crowe's testimony. In passing, we note the government's explanation for the absence of physical corroboration. There was testimony to show that snow, extreme cold, and the presence of pedestrian traffic impeded the search for evidence and, in addition, that searches for spent shell casings at crime scenes are only rarely successful. There was also testimony that the chances of finding fingerprints on the found weapons were remote. The jury quite reasonably could have favored these explanations over defendants' more sinister theory that, for example, had Crowe planting guns in the bushes near his house in full view of other officers who had arrived at the crime scene. We easily conclude that the evidence against both defendants was sufficient to support the jury's verdict. II. Evidence of the Thwarted Burglary [3] Prior to trial, the government sought an in limine ruling from the district court permitting the government to introduce the testimony of George Mascia describing a break-in and burglary attempt at his home, located around the corner from Crowe's residence, at about the time of Crowe's confrontation with the defendants. The district judge granted the government's motion but limited the scope of Mascia's testimony. Mascia was permitted to testify that he heard his alarm go off, saw a person climbing out of a window of his house, and was later unable to identify any of the defendants as the intruder. Following the verdict, both defendants claimed that the district court's error in allowing Mascia to testify warranted a new trial. Defendants argue that the evidence of the attempted burglary was irrelevant under Fed.R.Evid. 401; unfairly prejudicial under Fed.R.Evid. 403; and improperly admitted extrinsic evidence of a prior bad act, in violation of Fed.R.Evid. 404(b). Defendants also argue that the error of admitting this evidence necessitates a new trial because of the likelihood that it unfairly prejudiced the jury by rous[ing] the jury's hostility toward the defendants. See Br. for Appellant Esteban Gonzalez at 44. These arguments are without merit. To be relevant, evidence need only tend to prove the government's case, and evidence that adds context and dimension to the government's proof of the charges can have that tendency. Relevant evidence is not confined to that which directly establishes an element of the crime. As we have said: [T]he trial court may admit evidence that does not directly establish an element of the offense charged, in order to provide background for the

events alleged in the indictment. Background evidence may be admitted to show, for example, the circumstances surrounding the events or to furnish an explanation of the understanding or intent with which certain acts were performed. United States v. Coonan, 938 F.2d 1553, 1561 (2d Cir.1991) (quoting United States v. Daly, 842 F.2d 1380, 1388 (2d Cir.1988)); cf. United States v. Inserra, 34 F.3d 83, 89 (2d Cir.1994) (noting that evidence of other bad acts may be admitted to provide the jury with the complete story of the crimes charged by *942 demonstrating the context of certain events relevant to the charged offense). The burglary evidence in this case was relevant both to a possible motive for the defendants' possession of firearms and to provide crucial background evidence that gave coherence to the basic sequence of events that occurred on the night of February 24. Mascia's testimony tended to add meaning to defendants' activities because it tended to show that Gonzalez and Colon were functioning as armed look-outs while Emilio Gonzalez robbed Mascia's house. This theory explained defendants' patrolling activities and other behavior, including their animated discussions, their furtive crouching and apparent monitoring of goings-on on a nearby block. And significantly, evidence of a failed burglary offered an explanation as to why Colon and Gonzalez would have been running down the street toward Crowe, with guns drawn, while looking over their shoulders in the direction of Mascia's home. Based on the testimony of Mascia and Sapienza, the government was able to argue that the time of defendants' flight from the vicinity of Mascia's home corresponded to the time that Sapienza's patrol car arrived at Mascia's home to investigate the break-in. The district judge acted within his discretion by admitting Mascia's testimony to explain defendants' conduct once it was established that there was some basis for believing that defendants had been involved in the burglary. Such a basis plainly existed: the events about which Mascia would testify (as proffered by the prosecutor outside of the jury's presence) were sufficiently corroborated by Crowe's testimony concerning his observations of Colon and Gonzalez and by the testimony of Sapienza. Accordingly, we find that the evidence of the nearby burglary was admissible as having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable ... than it would be without the evidence. Fed.R.Evid. 401. We also reject defendants' Rule 403 claim because we do not believe that the district court acted arbitrarily or irrationally in concluding that the probative value of the evidence of the burglary was not substantially outweighed by a danger of unfair prejudice to defendants. See Fed.R.Evid.

403; see also United States v. Thai, 29 F.3d 785, 813 (2d Cir.1994); United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir.1992) (Rule 403 not violated where evidence that defendant committed double murder admitted to establish possession of a firearm). [4] Finally, we reject defendants 404(b) claim. It is well established that evidence of uncharged criminal activity is not considered other crimes' evidence under Fed.R.Evid. 404(b) if it arose out of the same transaction or series of transactions as the charged offense, if it [is] inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime [on] trial. United States v. Towne, 870 F.2d 880, 886 (2d Cir.1989) (quoting United States v. Weeks, 716 F.2d 830, 832 (11th Cir.1983)). III. Disclosure Violations Defendants argue that the government violated its disclosure obligations both under the Jencks Act, 18 U.S.C. 3500 et seq. (requiring disclosure of statements of a government witness), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (requiring disclosure of exculpatory evidence), in the following manner. Several hours after defendants were arrested, early in the morning on February 25, 1994, a routine police hearing was conducted to determine whether Crowe had been justified in firing his weapon off-duty. Crowe testified at the hearing, as did Sapienza and Parks, the first officers to arrive on the scene. Before trial, defendants requested copies of the tape recordings of the hearing. The prosecutor turned over one tape marked Board Hearing in the stated belief that this tape was the only tape of the hearing. It turned out, however, that the tape contained only Crowe's testimony and thus the hearing testimony of Sapienza, who later testified at defendants' trial and Parks, who did not, was never disclosed. Although the record is somewhat unclear, the missing hearing testimony apparently came to light following the jury's request *943 during deliberation for a play-back of Crowe's hearing testimony. Defense counsel apparently realized at that time that they had not been provided with the testimony of the other two officers. Following the verdict, defendants claimed that they were entitled to a new trial because the undisclosed tape constituted Jencks Act and Brady material that would have supported defendants' theory of the case by casting further doubt on Crowe's credibility. The district court rejected this argument. [5][6][7] We note initially that [b]ecause motions for a new trial are disfavored in this Circuit the standard for granting such a motion is strict; that is, newly discovered evidence must be of a sort that could, if believed,

change the verdict. United States v. Gambino, 59 F.3d 353, 364 (2d Cir.1995). This standard has been held to counsel in favor of granting a new trial motion only where the new evidence would probably lead to an acquittal. United States v. Gilbert, 668 F.2d 94, 96 (2d Cir.1981). Moreover, the trial court's rulings are given great deference on these issues because it presided over the trial and is better able to determine the effect the new materials would have had. United States v. Petrillo, 821 F.2d 85, 88 (2d Cir.1987). [8] Defendants' Jencks Act claim applies only to Sapienza's testimony, which was not turned over to the defense prior to Sapienza's testimony at trial. See 18 U.S.C. 3500(b). The government concedes that its failure to provide defendants with Sapienza's hearing testimony was a Jencks Act violation, but argues that its error was harmless. We agree. At the outset, we reject defendants' suggestion that the government's omission was deliberate, evidenced by its failure on direct examination to question Sapienza about his hearing testimonypresumably because any such questioning would reveal that the government had access to the secret Sapienza tape. The government's conduct was entirely consistent with its own explanation that, like defendants, the prosecutor (who had only recently been assigned to the case) was unaware of the tape's existence. Defendants' deliberate concealment theory is further undercut by the fact that the government turned over to the defense Sapienza's daily logbook that indicated his presence at the hearing. [9] Where, as here, the government's Jencks Act violation is inadvertent, the defendant must establish that there is a significant chance that the added item would instill a reasonable doubt in a reasonable juror. Put another way, the failure to disclose may be disregarded if there is no reasonable probability that had the evidence been disclosed, the result would have been different. See United States v. Nicolapolous, 30 F.3d 381, 383384 (2d Cir.1994). If the Sapienza hearing testimony had been disclosed in a timely fashion, we do not believe that the result would likely have been different. There was no material inconsistency between Sapienza's testimony at the hearing and the trial testimony of Sapienza or Crowe. Other than broadly asserting that Sapienza's hearing testimony was material, defendants point to no particular piece of that testimony that would have helped them either by way of exculpation or impeachment. Defendants do devote considerable energy to pointing to differences between Crowe's testimony at the hearing and his testimony at trial; however, the record is clear that the defendants had Crowe's hearing testimony when he testified at trial and indeed were able to put it to good use in bringing out inconsistencies on cross-examination.

[10] We also reject the defendants' Brady claim. A new trial is warranted for a Brady violation only where the defendant can establish that the government failed to disclose favorable evidence, including favorable impeachment evidence, see Giglio v. United States, 405 U.S. 150, 15455, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972), and that the evidence was material. See Amiel, 95 F.3d at 144. Evidence is material only if there is a reasonable probability that had the evidence been disclosed, the result would have been different. See United States v. Payne, 63 F.3d 1200, 1209 (2d Cir.1995). A reasonable probability of a different result is accordingly shown when the Government's evidentiary suppression undermines confidence *944 in the outcome of the trial. Kyles v. Whitley, 514 U.S. 419, , 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995) (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 338182, 87 L.Ed.2d 481 (1985)). [11] As an initial matter, we note that it is questionable whether Sapienza's hearing testimony was suppressed as Brady and its progeny define that term. [E]vidence is not considered to have been suppressed within the meaning of the Brady doctrine if the defendant or his attorney either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence. Payne, 63 F.3d at 1208 (internal quotation marks omitted). Prior to Sapienza's testimony at trial, the government provided defendants with a copy of Sapienza's notebook that revealed his attendance at the hearing. Defendants were thus on notice that Sapienza was present at the hearingfrom which the fact that he was called there to testify would have been a logical inference. See, e.g., United States v. LeRoy, 687 F.2d 610, 61819 (2d Cir.1982) (finding defendant was on notice that certain of defendant's employees may have provided possible exculpatory testimony to grand jury where defendant was aware that similarly situated employee had in fact testified before grand jury). [12] We need not decide whether or not the evidence was suppressed, however, because we believe, in any event, that the evidence was not material. See Gambino, 59 F.3d at 366 (where evidence not material, court need not address whether or not evidence was suppressed). The testimony of Sapienza and Parks at the hearing was fully consistent with the testimony of Crowe and Sapienza at trial and thus was devoid of exculpation or impeachment value. Defendants make much of the fact that Parks testified at the hearing that she did not hear any gunshots as she drove up to the crime scene. This testimony would not have taken defendants very far. The fact that Parks did not hear gunshots is hardly dispositive as to whether they occurred. Moreover, defendants' theory was that only Crowe fired a weapon on that night; evidence suggesting that no shots were fired plainly would have undermined, rather than supported, that theory. Finally, the charge against

defendants was not that they fired their weapons, but that they possessed them. Hence, Parks' testimony would not have made conviction less probable, and thus, it was not material. See Bagley, 473 U.S. at 682, 105 S.Ct. at 338384. Because our confidence in the trial's outcome is not undermined, see Kyles, 514 U.S. at , 115 S.Ct. at 1566, we reject defendants' Brady claim. IV. Jury Instructions [13] At trial, defendants and the government stipulated to the predicate felony convictions necessary to a conviction under 18 U.S.C. 922(g). In instructing the jury, the district court stated that defendants had stipulated to this element of the crime. The court also stated that during trial defendants had conceded another element of the crimenamely, that the firearms they were accused of possessing had moved in and affect[ed] interstate commerce. See 18 U.S.C. 922(g). The district court then went on: So, the only issue, the only issue before you is[:] has the government established beyond a reasonable doubt as to each of the defendants, considered separately and apart from the other defendant, [that the defendant] had in his possession one of these objects which has been conceded to be a handgun. Defendants now argue that by so instructing the jury, the court effectively directed a verdict as to two elements of the crime by removing those elements from the jury's purview, and that this violated their constitutional right to have all elements of the crime decided by the jury. Because neither defendant objected to the instruction during trial, the claimed error was never presented to the district court. Thus we review it only for plain error. See Fed.R.Crim.P. 52(b). For the following reasons, we conclude that the instruction was not plain error. There is no question that [t]he Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged. *945United States v. Gaudin, 515 U.S. 506, , 115 S.Ct. 2310, 2320, 132 L.Ed.2d 444 (1995); see United States v. Martin Linen Supply Co., 430 U.S. 564, 57273, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977) ([A] trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict.). This right is derived from both the Sixth Amendment, which guarantees to a defendant a jury trial, and the Fifth Amendment, which requires that the government prove a defendant's guilt beyond a reasonable doubt. See Gaudin, 515 U.S. at , 115 S.Ct. at 2313; In re Winship, 397 U.S. 358, 362, 90 S.Ct. 1068, 107172, 25 L.Ed.2d 368 (1970).

While the defendant has the right to a jury's consideration of his guilt on every element, what is the effect upon that right when the defendant and the government stipulate to the existence of the ultimate fact that comprises the element and no objection is taken to a charge to the jury that does not submit the element to the jury for determination? The Fourth Circuit in United States v. Muse, 83 F.3d 672, 67980 (4th Cir.), cert. denied, 519 U.S. 904, 117 S.Ct. 261, 136 L.Ed.2d 186 (1996), has held that a defendant's right to have the jury find the element persists, as does the corresponding duty of the court to charge it, and that the failure to give the issue to the jury amounts to a partial directed verdict and is thus error. The Tenth Circuit in United States v. Mason, 85 F.3d 471, 472 (10th Cir.1996), has held that the stipulation waives the right so that the failure to charge the element is not error. In this case, did the district court, by charging the jury that possession of the handguns in question was the only issue the jury needed to decide to convict defendants, direct a partial verdict for the defendant on the prior felony and interstate commerce elements of the crime and thus err? If there was error in the charge, was it waived by the stipulation and the failure to object? Does the fact of the stipulation preclude a finding of error at all? Fortunately, we need not enter this thicket because, even if we were to assume the failure to charge on the prior felony and interstate commerce elements to be error, it does not survive plain error review. Every error has to be examined closely and in context to decide if reversal and a new trial are warranted. In this case, there was no contemporaneous objection to the judge's charge. For several critical reasons, such an objection to error at trial is normally required before an appellate court will consider reversal of a conviction based on it. First and most basically, a timely objection alerts the trial judge to the error and provides the judge with an opportunity to correct it at a time when such correction will forever eliminate the problem. Second, a contemporaneous objection rule eliminates any incentive for trial counsel to avoid taking an objection to an easily correctable error in the hopes that, based on the error, he may secure a new trial on appeala new trial for which he will have the advantage of a complete preview of the government's evidence and strategy. And third, a rule that generally bars appellate review of unpreserved error underscores the simple principle that it should be during trial, and not on appeal, that the outcome of the case is determineda principle that encourages trial attorneys to be competent, thorough and well-prepared, rather than to rely on an appellate court to correct their errors at a later time. [14] Therefore, an objection not taken is an oversight by a defendant that cannot be easily overlooked. It is an impediment to proper trial

administration and, when it occurs, it is a powerful indicator that the party who now complains so strenuously did not believe then there was any error or, if he did, that it was inconsequential or that bringing it to the court's attention would actually hurt his case. [15] When error is unpreserved by an objection, it will not result in a reversal unless the error is plain error under Fed.R.Crim.P. 52(b) and, even then, reversal lies within the discretion of the appellate court. In United States v. Olano, 507 U.S. 725, 73234, 113 S.Ct. 1770, 177678, 123 L.Ed.2d 508 (1993), the Supreme Court held that in order for an alleged error to be noticed under Rule 52(b), that error must (1) be actual error; (2) be plain, which is synonymous with clear or *946 obvious under current law; and (3) affect substantial rights, which, in most cases, means that the error must have affected the outcome of the proceedings. Upon concluding that an error occurred which is plain and affects substantial rights, Olano directs that an appellate court exercise its discretion to correct such error only if the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings. Id. at 736, 113 S.Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). In this case, whether or not there was error and whether or not it was plain, we easily conclude that the third Olano elementthat the error affect defendants' substantial rightswas not met. As we have recently explained, when considering a constitutional error's effect on a criminal defendant's rights, [t]he first task ... is to determine if the error is structural error or trial error. Peck v. United States, 106 F.3d 450, 454 (2d Cir.1997). Trial error is that which may be quantitatively assessed in context in order to determine whether it was harmless beyond a reasonable doubt. See Arizona v. Fulminante, 499 U.S. 279, 30708, 111 S.Ct. 1246, 126364, 113 L.Ed.2d 302 (1991). A structural error, in contrast, is one which amounts to a fundamental defect[ ] in the trial mechanism, Peck, 106 F.3d at 454, a determination which turns on whether the error was of such gravity and had such a pervasive effect on the proceeding that such proceeding cannot reliably serve its function as a vehicle for determination of guilt or innocence. Fulminante, 499 U.S. at 310, 111 S.Ct. at 1265 (citing Rose v. Clark, 478 U.S. 570, 57778, 106 S.Ct. 3101, 310506, 92 L.Ed.2d 460 (1986)) (listing types of structural errors). If on direct review of a preserved claim, we find structural error, we will always reverse the judgment of conviction. See Brecht v. Abrahamson, 507 U.S. 619, 62930, 113 S.Ct. 1710, 171718, 123 L.Ed.2d 353 (1993). However, the question of whether reversal is always required when the error is structural and unpreserved was raised, but not decided, by Olano, 507 U.S. at 735, 113 S.Ct. at 1778. We have no doubt that many, if not most, structural errors will lead to reversal, whether or not preserved. But we need not decide the fate of unpreserved structural error in this case because upon examination

we believe that any error in the jury charge that occurred here could have only been trial error and not structural error. [16] The Supreme Court has indicated that a directed verdict against a criminal defendant as to the entire charge against the defendant is probably structural error. See Rose, 478 U.S. at 578, 106 S.Ct. at 3106 ([H]armlesserror analysis presumably would not apply if a court directed a verdict for the prosecution in a criminal trial by jury.). Applying this rule to partial directed verdicts, the Seventh Circuit has explained: [N]ot only does the harmless-error doctrine not apply when the error consists in directing a verdict against a criminal defendant; it also does not apply when the judge directs a partial verdict against the defendant by telling the jury that one element of the crimesuch as guilty knowledge in this casehas been proved beyond a reasonable doubt, so the jury needn't worry its collective head over that one. United States v. Kerley, 838 F.2d 932, 937 (7th Cir.1988) (citation omitted). However, that a partial directed verdict may be a structural error in some instances does not mean that it is necessarily so in all instances. As we have recently explained, [w]e do not understand Fulminante 's list of examples of violations that have been held exempt from harmless error review to mean that any violation of the same constitutional right is a structural defect, regardless whether the error is significant or trivial. Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir.1996), petition for cert. filed, Mar. 10, 1997 (No. 968189). Rather, in order to determine whether a particular error is structural we must look not only at the right violated, but also at the particular nature, context, and significance of the violation. Id. When the asserted partial directed verdict in this case is seen in context, it is plain to us that, if error occurred, the error is not one which transcends the criminal process. Fulminante, 499 U.S. at 311, 111 S.Ct. at 126566. This is not a case where the government*947 puts on proof as to an element of the crime, contested but not rebutted by the defendant, and the judge determines that the government's evidence alone proves the element and thus takes it from the jury. See, e.g., United States v. Mentz, 840 F.2d 315, 320 (6th Cir.1988) (reversing conviction in federal bank robbery case where district court accepted testimony of government's experts that bank was FDIC insured and directed the jury so to find). Rather, this is a case where the parties are in full agreement about the existence of facts that completely satisfy two technical (albeit statutorily required) elements of the crime charged: defendants' prior felonies and the movement of the firearms in or affecting interstate commerce. The parties' explicit agreement and the technical, status-defining nature of the elements actually agreed-to each

independently leads us to conclude that any error in taking these elements from the jury must be considered at most trial error. We do not see how, in other words, the error could be one that affect[ed] the framework within which the trial proceeds, rather than simply an error in the trial process itself. Fulminante, 499 U.S. at 310, 111 S.Ct. at 1265; see also Yarborough, 101 F.3d at 898 n. 1 (noting that a right which would not be subject to harmless error review if seriously impinged is amenable to such review upon a trivial violation); cf. California v. Roy, 519 U.S. 2, , 117 S.Ct. 337, 339, 136 L.Ed.2d 266 (1996) (noting that failure to instruct a jury on an offense element is trial error, rather than structural error). Because any error here is not structural, the answer to the question of whether it affected defendants' substantial rights is easier. See, e.g., United States v. Wiles, 102 F.3d 1043, 1056 (10th Cir.1996) (substantial rights necessarily affected where error held structural); United States v. David, 83 F.3d 638, 647 (4th Cir.1996) (same). Our focus shifts from whether the defendant was denied a right so fundamental that we must inevitably conclude that a fair trial was not possible to whether the error, in the context in which it occurred, deprived the defendant of a fair trial. In other words, we need only consider whether defendants, who have the burden under Fed.R.Crim.P. 52(b), have made a showing of actual prejudice. See Olano, 507 U.S. at 734, 113 S.Ct. at 177778. Because defendants do not even argue, let alone establish, that the outcome in their case would have differed had the judge properly instructed the jury on the legal effect of the stipulations, it is plain to us that their substantial rights were unaffected. [17][18] Moreover, in our view, the district judge's elimination of the prior felony and interstate commerce elements in this case did not affect the fairness, integrity, or public reputation of judicial proceedings, and thus even if it were viewed as affecting substantial rights, we would not exercise our discretion under Rule 52(b) to correct it. See Olano, 507 U.S. at 733, 113 S.Ct. at 1777; see also David, 83 F.3d at 647 (no per se rule that structural error affecting substantial rights must be noticed as plain error). Indeed, we believe that a reversal on the facts of this case would itself adversely affect the fairness, integrity and public reputation of judicial proceedings since it would reward a defendant who stipulated to his prior felony to avoid prejudice before the jury; failed to object to the instruction describing the effect of the stipulation; and then argued on appeal that the instruction was improper, presumably because, as a practical matter, it deprived the jury of the opportunity to reject the stipulation. The only possible deprivation suffered by defendants here was the possibility of jury nullification on the stipulated elements. See Mason, 85 F.3d at 473 (describing jury nullification as the underlying premise behind rule requiring juries to decide stipulated-to elements). However, the possibility of nullification does not appear to be element specific; it remains as long as any element is left for

the jury to consider.FN1 Moreover, jury nullification, while it is available to a defendant, is only a power that the *948 jury has and not a right belonging to the defendant, much less a substantial right. We also hasten to add that there is absolutely no question but that defendants are actually guilty of 922(g)'s convicted-felon element. See United States v. Jones, No. 945913, 1997 WL 106310, at *4 (6th Cir. Mar.12, 1997); United States v. Cornish, 103 F.3d 302, 306 (3d Cir.1997) (fairness and integrity of proceeding not affected where there is no doubt defendant had committed prior felonies to which he had stipulated). FN1. Even if jury nullification is seen as element specific, it would seem unfair to the government to invite it where the prior felony element is stipulated since, in the wake of Old Chief v. United States, 519U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), the government must accept a defendant's offer to stipulate to the fact and cannot put in evidence of the circumstances of the prior felony that might reduce the risk of nullification. For all these reasons, we conclude that the district court's instructions on the elements of the offense do not amount to plain error warranting reversal of defendants' convictions. We have carefully considered defendants' remaining arguments and find them to be without merit. V. The Government's CrossAppeal The government argues that the district court erred in departing downward from a Guidelines sentence range of 235 to 293 months to a sentence of only 180 months. The government asserts that the sentence was error because the district judge failed to articulate any reason for his departure, and that the only arguable basis for departurethat Gonzalez's criminal history calculation significantly overstated the seriousness of his prior criminal conductwas explicitly rejected by the district court during the sentencing hearing. [19] The law in this circuit is clear that a district judge must state his or her reasons for a departure from the applicable Guidelines range. United States v. Campbell, 967 F.2d 20, 2627 (2d Cir.1992) ([T]he district court must make clear on the record how the court determined the magnitude of the departure.). In the present case, the district court provided no such explanation. Accordingly we must remand for the resentencing of Gonzalez. See United States v. Tropiano, 50 F.3d 157, 162 (2d Cir.1995) (We will vacate a sentence and remand for resentencing if the district court fails to follow the procedures for making such a departure.). CONCLUSION For the foregoing reasons, we affirm the judgment of conviction as to

both defendants, and we vacate Gonzalez's sentence and remand for his resentencing. C.A.2 (N.Y.),1997. U.S. v. Gonzalez 110 F.3d 936, 46 Fed. R. Evid. Serv. 1076 END OF DOCUMENT
D) JONES VS.

STATES, 376, S.W., 2D 842 (1964) -KIARRA Court of Criminal Appeals of Texas. Gladys JONES, Appllant, v. The STATE of Texas, Appellee. No. 36715. April 1, 1964.

The defendant was convicted in the 147th Judicial District Court, Travis County, Mace B. Thurman, Jr., J., of taking money from person and possession of victim without victim's knowledge or consent, and defendant appealed. The Court of Criminal Appeals, Woodley, P. J., held that evidence that businessmen other than victim, who claimed that female defendant rubbed him and that some five minutes later victim discovered that money had been taken from his billfold, had lost their money upon same course of conduct by defendant was admissible to prove defendant's guilt of theft from person of victim. Affirmed. West Headnotes [1] Criminal Law 110 370.19

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)5 Other Misconduct Part of Plan Embracing More Than One Act 110k370.19 k. Larceny, embezzlement, and receiving stolen property. Most Cited Cases (Formerly 110k372(5)) Criminal Law 110 373.12

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)12 Nature and Circumstances of Other Misconduct Affecting Admissibility 110k373.7 Similarity to Crime Charged 110k373.12 k. Other particular offenses. Most Cited Cases (Formerly 110k372(5)) Evidence that businessmen other than victim, who claimed that female defendant rubbed him and that some five minutes later victim discovered that money had been taken from his billfold, had lost their money upon same course of conduct by defendant was admissible to prove defendant's guilt of theft from person of victim. [2] Larceny 234 55

234 Larceny 234II Prosecution and Punishment 234II(B) Evidence 234k54 Weight and Sufficiency 234k55 k. In general. Most Cited Cases Evidence supported conviction of defendant for taking money from victim without his knowledge or consent. *842 No attorney of record on appeal for appellant. Leon B. Douglas, State's Atty., Austin, for the State. WOODLEY, Presiding Judge. The indictment alleged that the appellant took money from the person and possession of D. M. Hause without his knowledge and without his consent, and with the intent to deprive him of its value and to appropriate it to her use and benefit. The indictment further alleged a prior conviction in the State of California for Grand Theft, and a conviction prior to the commission of that offense in the State of Oklahoma for Grand Larceny. The prior convictions were proved as alleged. The state relied upon circumstantial evidence to show appellant's guilt

of theft of money from the person and possession of D. M. Hause. Hause testified that on December 13, 1962, the appellant came to his auto parts place of business around 3 P.M., while he was working on a generator; she grabbed C. V. Wells, who later became a partner in the business, and propositioned him for sexual intercourse. She had her hands all over him. He pushed her away. She then said she had to urinate and was shown an outside rest room. On the way she fell, or claimed to have fallen, and House, thinking she was drunk, tried to get her up. She raised up her dress and grabbed him. *843 Before he could drag her out she turned around and rubbed her rear end on him. She then said she had to use telephone. He did not see her again until she was arrested on March 6, 1963. Some five minutes after the appellant left, Hause reached for his handkerchief and discovered that the $150 or more he had in his billfold was gone, but the billfold was in his pocket and the checks were still in it. C. V. Wells gave similar testimony to that of Hause. He testified that he had no money in his billfold and lost none. The theft of Hause's money was promptly reported to the police. The state was permitted to prove that the appellant, on March 6, 1963, went to an automobile service shop or Transmission Shop in Austin during the noon hour and, after announcing that she wanted to use the bathroom, grabbed Mr. Grady, the proprietor, and propositioned him and he pushed her back because she was drunk. She grabbed him again and then walked out. All of this time Mr. Grady was talking on the telephone. He discovered some 15 minutes later that the $125 he had in his billfold was gone. A truck driver for Travis Materials testified that the appellant went into the Transmission Shop and some 5 or 10 minutes later she came running by his truck, jumped in a black Ford car parked about a block and a half from the shop and took off. She was throwing gravel and the car was spinning and digging out when she left. Later the same day the appellant was apprehended near Taylor, Texas, while driving such a car. The state was also permitted to introduce evidence to the effect that the appellant, on or about December 31, 1962, went to the place of business of an Orthopedic Brace Company where the proprietor, Mr. Hess, was at work at his bench, put her hand on him like she was trying to keep from falling

and acting as if she was trying to solicit a street job, and as though she was drugged or doped. She then left suddenly and the brace maker soon found that his billfold, in which he had $20 or more, was gone. The billfold was later recovered, its contents other than the money was intact. Appellant was identified by the witnesses as the person who came to each of the shops, propositioned the owner (each of whom was married and living with his wife), put her hand upon them, and left suddenly, her departure being soon followed by the discovery that the men's money had likewise departed. The evidence regarding the conduct of the appellant and the loss of money from the billfold of Mr. Hess, the brace maker, and from the owner of the Transmission Shop was admitted over the objection that it was irrelevant and immaterial, highly prejudicial. It is at a time different and subsequent to the date alleged in the indictment of December the 13th. The evidence was offered and was admitted only for the purpose of showing identity, intent, motive, malice or common plan or scheme. It was so limited in the court's charge and the jury was instructed that such evidence could not be considered for any purpose unless they believed beyond a reasonable doubt that the defendant committed such other offenses. The intent of the appellant in making physical contact with Mr. Hause was material and was uncertain. Proof that the money was taken as well as the intent of the appellant rested upon the circumstances. [1] The two collateral offenses show more than a similarity in results. They show a common plan and systematic course of action. The peculiar way in which the other business men lost their money upon the same course of conduct by the appellant was a circumstance that was available to the state to prove the appellant's guilt of theft from the person of Hause. The evidence *844 showed system, not merely systematic crime, and the court did not err in admitting it for the limited purposes stated. Where the existence of a plan or system of criminal action is in issue, evidence of other or similar offenses committed by the accused, both before and after the commission of the offense with which he is charged, is admissible to show that the offense charged was part of a common plan, scheme, or system. But to render such evidence admissible, there must be more than a certain degree of similarity in results between the crime with which he is charged and the other crimes committed by him. There must indeed be such a concurrence of common features between the several crimes as will show logically that all of them might well have resulted from

a common plan or systematic course of action. 23 Tax.Jur.2d, 310, Sec. 201. [2] The evidence is sufficient to sustain the conviction and no error appears. The judgment is affirmed. Tex.Cr.App. 1964 Jones v. State 376 S.W.2d 842 END OF DOCUMENT
E)

UNITED STATES VS. JONES, 455 F. 3D 800, 1 AUGUST 2006 -JAMI United States Court of Appeals, Seventh Circuit. UNITED STATES of America, PlaintiffAppellee, v. Keefer JONES, DefendantAppellant. No. 042447. Argued Dec. 1, 2005. Decided Aug. 1, 2006.

Background: Defendant was convicted in the United States District Court for the Central District of Illinois, Michael P. McCuskey, Chief Judge, of possession with intent to distribute five or more grams of cocaine base, and was sentenced to 262 months' imprisonment, and he appealed. Holdings: The Court of Appeals, Ripple, Circuit Judge, held that: (1) district court did not abuse its discretion in denying defendant's second motion for continuance; (2) district court did not abuse its discretion in admitting evidence of defendant's prior conviction for unlawful delivery of a controlled substance; and (3) remand was not necessary to permit district court to determine whether it would have imposed lesser sentence under advisory guidelines. Affirmed. Easterbrook, Circuit Judge, filed concurring opinion. West Headnotes

[1] Criminal Law 110

594(1)

110 Criminal Law 110XIX Continuance 110k588 Grounds for Continuance 110k594 Absence of Witness or Evidence in General 110k594(1) k. In general. Most Cited Cases In prosecution for possession with intent to distribute five or more grams of cocaine base, district court did not abuse its discretion in denying defendant's second motion for continuance of trial so that defense could obtain handwriting analysis of confession allegedly written and signed by defendant at police station; district court found that defense counsel had received discovery materials more than two months earlier that indicated that defendant had produced written statement, and court noted that defendant's written confession merely corroborated his oral statement, testimony of officers, and items that were seized from his home, limiting value of expert testimony from handwriting expert in overall presentation of the case. [2] Criminal Law 110 589(1)

110 Criminal Law 110XIX Continuance 110k588 Grounds for Continuance 110k589 In General 110k589(1) k. In general. Most Cited Cases In evaluating a request for a continuance, a district court should weigh a number of factors, including the following non-exhaustive list: (1) the amount of time available for preparation; (2) the likelihood of prejudice from denial of the continuance; (3) the defendant's role in shortening the effective preparation time; (4) the degree of complexity of the case; (5) the availability of discovery from the prosecution; (6) the likelihood a continuance would satisfy the movant's needs; and (7) the inconvenience and burden to the district court and its pending case load. [3] Criminal Law 110 1151

110 Criminal Law 110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1151 k. Time of trial; continuance. Most Cited Cases Criminal Law 110 1166(7)

110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110k1166 Preliminary Proceedings 110k1166(7) k. Time for continuance. Most Cited Cases

trial

or

hearing;

Court of Appeals will not reverse the denial of a motion to continue unless it finds an abuse of discretion and a showing of actual prejudice to the defendant. [4] Criminal Law 110 594(1)

110 Criminal Law 110XIX Continuance 110k588 Grounds for Continuance 110k594 Absence of Witness or Evidence in General 110k594(1) k. In general. Most Cited Cases Criminal Law 110 1166(7)

110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110k1166 Preliminary Proceedings 110k1166(7) k. Time for continuance. Most Cited Cases

trial

or

hearing;

In prosecution for possession with intent to distribute five or more grams of cocaine base, defendant failed to demonstrate that he suffered any prejudice from district court's denial of his second motion for continuance of trial so that defense could obtain handwriting analysis of confession allegedly written and signed by defendant at police station, and thus, denial of motion was not reversible error; defendant made no showing that handwriting expert would have testified that confession was not written by defendant, and other evidence against defendant, including drugs and evidence of his residency seized from residence, and officer's testimony that defendant confessed orally and in writing, was overwhelming. [5] Criminal Law 110 1855

110 Criminal Law 110XXXI Counsel 110XXXI(B) Right of Defendant to Counsel

110XXXI(B)11 Deprivation or Allowance of Counsel 110k1855 k. Denial of continuance; time for preparation. Most Cited Cases (Formerly 110k641.12(1)) Only an unreasoning and arbitrary insistence upon expeditiousness in the face of a defendant's justifiable request for delay violates the right to the assistance of counsel. U.S.C.A. Const.Amend. 6. [6] Criminal Law 110 371.33

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)7 Other Misconduct Showing Intent 110k371.33 k. Controlled substances. Most Cited Cases (Formerly 110k371(1), 110k370) Criminal Law 110 371.59

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)8 Other Misconduct Showing Knowledge 110k371.59 k. Controlled substances. Most Cited Cases (Formerly 110k370) Criminal Law 110 373.21

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)12 Nature and Circumstances of Other Misconduct Affecting Admissibility 110k373.18 Temporal Relation of Events 110k373.21 k. Remoteness. Most Cited Cases (Formerly 110k370) In prosecution for possession with intent to distribute five or more grams of cocaine base, district court did not abuse its discretion in admitting evidence of defendant's prior conviction for unlawful delivery of a controlled substance; evidence was probative of defendant's knowledge of drug trade and intent to distribute drugs, prior conviction occurred six

years before charged offense, and court gave limiting instruction directing jury to consider prior conviction only on issue of intent. Fed.Rules Evid.Rule 404(b), 28 U.S.C.A. [7] Criminal Law 110 371.33

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)7 Other Misconduct Showing Intent 110k371.33 k. Controlled substances. Most Cited Cases (Formerly 110k371(1)) The most obvious justifiable situation in which prior convictions are admissible in drug prosecutions on the issue of intent are in those situations in which the defendant, while admitting possession of the substance, denies the intent to distribute it; in such a context, the matter of intent is placed squarely before the jury, and previous convictions generally are relevant and probative on the issue of intent. Fed.Rules Evid.Rule 404(b), 28 U.S.C.A. [8] Criminal Law 110 1042.3(1)

110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1042.3 Sentencing and Punishment 110k1042.3(1) k. In general. Most Cited Cases (Formerly 110k1042) Criminal Law 110 1181.5(8)

110 Criminal Law 110XXIV Review 110XXIV(U) Determination and Disposition of Cause 110k1181.5 Remand in General; Vacation 110k1181.5(3) Remand for Determination or Reconsideration of Particular Matters 110k1181.5(8) k. Sentence. Most Cited Cases Remand was not necessary to permit district court that sentenced defendant to 262 months' imprisonment for possession with intent to

distribute five or more grams of cocaine base under mandatory sentencing guidelines to determine whether it would have imposed lesser sentence under advisory guidelines, so as to render sentencing under mandatory guidelines plain error affecting defendant's substantial rights, since court sentenced defendant to maximum sentence in guidelines range, and noted that if defense counsel had not succeeded in getting defendant's based offense level lowered, defendant would have faced 327-month sentence, which court said he richly deserved. *801 Colin S. Bruce (argued), Office of the United States Attorney, Urbana Division, Urbana, IL, for PlaintiffAppellee. Carol A. Dison (argued), Beckett & Webber, Urbana, IL, for Defendant Appellant. Before EASTERBROOK, RIPPLE and KANNE, Circuit Judges. *802 RIPPLE, Circuit Judge. After a jury trial, Keefer Jones was found guilty of possession with intent to distribute five or more grams of cocaine base (crack). See 21 U.S.C. 841(a)(1) & (b)(1)(B). The district court sentenced Mr. Jones to 262 months' imprisonment and eight years' supervised release and ordered him to pay a $100 special assessment. Mr. Jones now appeals his conviction and sentence. For the reasons set forth in the following opinion, we affirm the judgment of the district court. I BACKGROUND A. Facts On the evening of July 28, 2000, in preparation for executing a search warrant of a residence, several Decatur Police officers were performing surveillance of that residence at 940 North Main Street in Decatur, Illinois. During that time, Detective Jason Boesdorfer observed three black males, including Mr. Jones, coming and going from the residence. At approximately 8:30 p.m., Mr. Jones and his nephew Montae Jones left the home, got into a car and drove away. Detective Lorne Sturdivant followed and observed the car, driven by Mr. Jones, make a left turn without signaling. Detective Sturdivant then ordered Mr. Jones to pull the car to the curb. Mr. Jones was arrested for driving with a suspended license and taken to the Decatur police station. Meanwhile, other police officers, including Detectives David Dailey and Chad Ramey, began the search of 940 North Main Street. The officers first searched a dresser in the living room where they found a plastic bag containing seventeen rocks of crack. Underneath the bag of crack, they

found Mr. Jones' State of Illinois identification card and pages from his address book. Next to the dresser was a duffel bag containing men's clothing, men's shaving items and a letter addressed to Mr. Jones at 423 West Olive, Decatur, Illinois, which was postmarked July 19, 2000. Underneath the dresser was a cell phone box and a receipt, dated June 27, 2000, for the cell phone made out to Mr. Jones at 423 West Olive, Decatur, Illinois. The police also searched the northeast bedroom, which contained no furniture, only debris. In this bedroom, they found a Hardee's bag hidden in a radiator. Inside that bag were four plastic bags; two contained cash totaling approximately $1,700; the other two contained approximately 175 rocks of crack cocaine. The crack in each bag weighed over five grams. After the search was completed, Detective Ramey left the house and returned to the Decatur police station, where he advised Mr. Jones of his Miranda rights. According to Detective Ramey, Mr. Jones signed a Miranda form indicating that he understood his rights. Detective Ramey testified at trial that, after signing this form, Mr. Jones told him that he had moved to 940 North Main Street about a month earlier and that the duffel bag belonged to him. Mr. Jones also admitted to the Detective that he had been selling crack from the house during the previous two or three weeks and that the crack in the dresser and Hardee's bag belonged to him. He further stated that the $1,700 in the Hardee's bag was money that he had made selling crack during the previous two days. Detective Ramey then asked Mr. Jones to draft a written confession. Mr. Jones complied and wrote: I've been staying at 940 Main Street for about three to four weeks and have been dealing drugs. About a couple thousand worth of the drugs were mine that were seized at that apartment in a raid (crack cocaine). *803 Appellee's Br. at 1415. Mr. Jones signed the statement and wrote the date and his address as 940 North Main Street. Detective Ramey also signed the form. According to the Government, Mr. Jones indicated to Decatur Police that he wanted to cooperate with the investigation. On August 1, 2000, he met with Decatur Police Detective Stalets and FBI Agent Warren and signed a confidential source form. In the following interview, he told Detective Stalets and Agent Warren that he had received on consignment the crack that had been seized from 940 North Main Street. He further admitted that he had intended to sell it.

On March 13, 2002, a criminal complaint was issued that charged Mr. Jones with possessing crack with intent to distribute. A warrant was issued for his arrest. The criminal complaint was supported by an affidavit written by FBI Agent Warren who summarized the search of 940 North Main Street and noted that Mr. Jones had made a written statement confessing to dealing drugs. The text of this statement was included in the affidavit. On April 5, 2002, Mr. Jones was indicted by a grand jury and charged with knowingly and intentionally possessing with intent to distribute five or more grams of crack cocaine. See 21 U.S.C. 841(a)(1) & (b)(1)(B). B. District Court Proceedings Mr. Jones' trial originally was scheduled for June 10, 2002. On May 30, 2002, the district court granted his motion for a continuance; the trial date was reset for July 15, 2002. On July 3, 2002, Mr. Jones filed a second motion for a continuance, requesting additional time to obtain a handwriting analysis of the statement allegedly penned by Mr. Jones. At a hearing on this motion, Mr. Jones' counsel admitted that he had been provided the written confession by the prosecution, and had been under the mistaken impression that a police officer had written the statement and that Mr. Jones had only signed it. According to counsel, he did not realize his mistake until the final pretrial conference on June 28, 2002, when the Government had told him that Mr. Jones had written and signed, not just signed, the statement. Given this new information, counsel contended that he needed additional time to obtain a handwriting expert to determine whether or not the document had been written by Mr. Jones.FN1 FN1. Mr. Jones' counsel indicated that he had identified the expert he wished to hire and that, once he obtained approval from the public defender's office, he would need about two weeks to obtain the expert analysis. The district court denied the motion to continue, stating that a handwriting expert's testimony would not be an absolute or affirmative defense and instead would be evidence that would be presented to the jury that they could accept or reject. R.26 at 20. The court noted that the statement allegedly written by Mr. Jones was merely corroborative of his oral statement, the testimony of the officers and the items that were seized from the home. The district court also reasoned that Mr. Jones' counsel had been made aware that his client had penned the statement on March 13, 2002, when FBI Agent Warren filed an affidavit in support of the criminal complaint stating that, on the day of the search, Jones ... provided a written statement to officers. Id. at 25, 2728. Therefore, the district court concluded that the interests of justice did not require a continuance. At trial, Detectives Boesdorfer, Ramey, Sturdivant and Dailey all testified

about the search of 940 North Main Street. Detective Ramey further testified that Mr. Jones freely cooperated with police and *804 that it was Mr. Jones who wrote and signed the statement given to police on July 28, 2000. Additionally, Decatur Police Detective Stalets, who was assigned to the Illinois State Police Drug Task Force, gave expert witness testimony that it was not uncommon for dealers to store the larger portion of cocaine in a safe location away from the smaller supply. Trial Tr.II at 404. At the close of the prosecution's case, the Government asked the court to take judicial notice of Mr. Jones' prior conviction on February 15, 1994, for the unlawful delivery of a controlled substance in Macon County, Illinois. The district court also gave the jury a limiting instruction, based on Pattern Criminal Federal Jury Instructions for the Seventh Circuit 3.04, which instructed the jury to consider the prior conviction only for the purpose of establishing intent.FN2 FN2. The court gave the following limiting instruction to the jury at the time the prior conviction was admitted: Ladies and gentlemen of the jury, the [certified copy of Mr. Jones' prior conviction] provides evidence of other crimes, wrongs, or acts. It 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 intent. With the admission of [the conviction], you have heard evidence of acts of the defendant other than those charged in the indictment. You may consider this evidence only on the question of intent. You should consider this evidence only for this limited purpose and for no other purpose. Trial Tr.II at 41213. Mr. Jones testified on his own behalf. He denied living at 940 North Main Street, denied making either an oral or a written statement to Detective Ramey and denied that any of the crack cocaine found in the apartment had belonged to him. He admitted that he had a 1994 conviction for selling cocaine, but testified that he had pretty much forgotten how to sell drugs since that conviction. Trial Tr.II at 428. The Government then recalled Detective Stalets, who testified that Mr. Jones had indicated to him that he wanted to cooperate and had told him that he had gotten the crack seized from 940 North Main Street on consignment and intended to sell it. After closing arguments, the jury returned a verdict of guilty.

At the sentencing hearing, the district court noted that a draft of the presentence report had calculated the base offense level as 32. After an objection by Mr. Jones' counsel, the district court removed some of the relevant conduct and recalculated the offense level, lowering the base offense level to 30. Next, the district court applied, over Mr. Jones' objection, a two-level enhancement for obstruction of justice, based on the district court's finding that Mr. Jones had committed perjury when he testified in his own defense. The court, finding the offense level of 32 and a criminal history category of VI, calculated the guideline range to be between 210 and 262 months and sentenced Mr. Jones to the high end with a sentence of 262 months' imprisonment. II DISCUSSION A. Denial of Mr. Jones' Motion to Continue [1][2][3] Mr. Jones asserts that the district court abused its discretion when it denied his second motion to continue. We have recognized that, as a general rule, once a trial date has been set, the court ought to adhere to that date unless there are compelling reasons to grant a continuance. See United States v. Farr, 297 F.3d 651, 655 (7th Cir.2002). Nevertheless, the court cannot have a myopic insistence *805 upon expeditiousness in the face of a justifiable reason for delay. United States v. Robbins, 197 F.3d 829, 846 (7th Cir.1999) (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)). In evaluating a request for a continuance, a district court should weigh a number of factors, including the following non-exhaustive list: 1) the amount of time available for preparation; 2) the likelihood of prejudice from denial of the continuance; 3) the defendant's role in shortening the effective preparation time; 4) the degree of complexity of the case; 5) the availability of discovery from the prosecution; 6) the likelihood a continuance would satisfy the movant's needs; and 7) the inconvenience and burden to the district court and its pending case load. United States v. Vincent, 416 F.3d 593, 598 (7th Cir.2005); see also Farr, 297 F.3d at 655. We shall not reverse the denial of a motion to continue unless we find an abuse of discretion and a showing of actual prejudice to the defendant. See Vincent, 416 F.3d at 598. Upon review of the record before us, we cannot say that the district court abused its discretion when it determined that the Vincent factors did not weigh in favor of a continuance. Invoking the third factor, Mr. Jones attempts to excuse his role in reducing his amount of preparation time as inadvertent because it arose from his counsel's reasonable

misunderstanding concerning the written statement.FN3 Appellant's Br. at 21. However, the district court found that Mr. Jones' counsel had been made aware as early as March 13, 2002 that Mr. Jones produced a written statement. The court took the view that it was not obliged to grant another continuance to accommodate defense counsel's tardiness in reviewing discovery materials that had been available to him. Indeed, we have held that the denial of a continuance to consult with an expert regarding government evidence was not an abuse of discretion when defense counsel had failed to review the discovery in a timely manner. See United States v. Baum, 435 F.2d 1197, 1202 (7th Cir.1971).FN4 Although Mr. Jones contends that the misunderstanding regarding who actually wrote the statement was inadvertent, such negligence does not excuse him from failing to review the statement in a timely manner to determine both the scrivener and the signer. FN3. Mr. Jones' counsel was aware that Mr. Jones allegedly had signed the written confession, but he argued at the hearing on the motion to continue that he did not become aware that Mr. Jones also had written the text of the confession until after the final pretrial conference. It is unclear why it is more significant that Mr. Jones wrote and signed the document, rather than just signed the document. FN4. See also United States v. Farr, 297 F.3d 651, 655 (7th Cir.2002) (finding no abuse of discretion in the denial of a motion to continue when defendant had gotten the Government's discovery material seventy days before trial and failed to review it); United States v. Robbins, 197 F.3d 829, 846 (7th Cir.1999) (holding that the district court did not abuse its discretion when it denied a continuance to accommodate defense counsel's tardiness in reviewing discovery). Mr. Jones also contends that the expert testimony would have aided the jury in judging the credibility of Mr. Jones and Detective Ramey. Nevertheless, the district court was entitled to conclude that such testimony would have been of limited value in the overall presentation of his case. Finally, Mr. Jones submits that there is no indication that a delay would have wasted judicial resources or would have interfered with the smooth operation of the court's calendar. Appellant's Br. at 23. The district court did not make any specific statements regarding inconvenience to *806 itself or any party; however, we have noted that this factor is simply one of many factors that the court may weigh and consider. See United States v. Miller, 327 F.3d 598, 605 (7th Cir.2003). Therefore, the court did not abuse its discretion; after weighing the appropriate factors, the trial judge chose an option that was ... within the range of permissible options from which we would expect the trial judge to choose under the given circumstances.

United States v. Depoister, 116 F.3d 292, 294 (7th Cir.1997). [4] Furthermore, Mr. Jones has not demonstrated that he suffered any prejudice from the denial of his motion to continue. Since Mr. Jones had not yet hired the handwriting expert witness and obtained an analysis, we certainly are not assured that the handwriting expert would have testified that the statement was not written by Mr. Jones. Even if the expert had given such testimony, the evidence against Mr. Jones was overwhelming. Detective Ramey testified that Mr. Jones had confessed orally and had provided a written statement. Detective Stalet testified that Mr. Jones confessed to him that he had intended to sell the drugs. Additionally, many of the items seized from 940 North Main Street were evidence that Mr. Jones had lived at 940 North Main Street. This evidence included his Illinois identification card, men's shaving items and clothes, pages from his address book, a letter addressed to Mr. Jones and a cell phone receipt made out to Mr. Jones. Moreover, any prejudice to Mr. Jones was minimized by his counsel's examination of Government witnesses. His counsel cross-examined Detective Ramey about Mr. Jones' statement, through which counsel established that no one else had observed Mr. Jones make the oral or written statements and that there was no video or audio recording of Mr. Jones making these statements. Also, Mr. Jones testified that he did not write the statement in question. [5] Mr. Jones also contends that the denial of his motion for a continuance violated his Sixth Amendment right to effective representation. However, only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance of counsel. Morris v. Slappy, 461 U.S. 1, 1112, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (internal quotation marks omitted); see also Vincent, 416 F.3d at 599. Here, before deciding to deny the motion to continue, the district court considered Mr. Jones' failure to review relevant discovery, as well as possible prejudice to Mr. Jones. Based on this record, we cannot say that the district court's decision was unreasoning or arbitrary. B. Admission of Mr. Jones' Prior Conviction [6] Mr. Jones submits that the district court erred in admitting his 1994 conviction into evidence under Federal Rule of Evidence 404(b).FN5 We review a district court's decision to admit evidence under Rule 404(b) for an abuse of discretion; we ask whether: FN5. Federal Rule of Evidence 404(b) states, in relevant part:

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 .... (1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the *807 evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. United States v. Toro, 359 F.3d 879, 884 (7th Cir.2004) (quoting United States v. Kreiser, 15 F.3d 635, 640 (7th Cir.1994)). The third prong of the test is not at issue in this appeal; we have stated that a conviction is sufficient to support a jury finding that a defendant committed a similar act. See United States v. Best, 250 F.3d 1084, 1092 (7th Cir.2001). Mr. Jones had filed a motion in limine requesting that his prior conviction not be entered into evidence. He contended that the conviction was not relevant to proving any fact in issue other than [his] propensity to commit the crime charged, that it was too remote in time to be admissible and that any probative value would be outweighed by the prejudice that it would cause him. R.20 at 34. In response, the Government argued that the prior conviction was admissible to that show Mr. Jones possessed the intent to distribute the crack because possession with intent to distribute is a specific intent crime. R.22 at 2 (citing Best, 250 F.3d at 1091). In assessing this issue, the district court employed the four-part test set forth above and discussed each part of that test in reaching the conclusion that the 1994 conviction was admissible. As to the first prong, the district court stated that it is proper to admit this evidence on the issue of intent. Trial Tr.II at 31920. Turning to the second prong, the district court held that an eight-year-old conviction is not too old to be admissible. It relied upon United States v. Tringali, 71 F.3d 1375, 1379 (7th Cir.1995), which upheld the admission of a nine-year-old conviction. The district court further held that, under the fourth prong, the conviction was not more prejudicial than probative. Nevertheless, the court agreed to give a cautionary instruction to the jury.FN6 FN6. In addition to the cautionary instruction given when the evidence was admitted, the court gave the jury the following final instruction: You have heard evidence of acts of the defendant other than those

charged in the indictment. You may consider this evidence only on the question of intent, knowledge, or absence of mistake or accident. You should consider this evidence only for this limited purpose. R.25 at 11. On appeal, Mr. Jones, relying on Toro, 359 F.3d at 88384, submits that it would have been more appropriate to introduce the evidence if he had admitted possession but had denied the intent to distribute the drugs. Focusing on the second prong, Mr. Jones further contends that the prior conviction was too dissimilar to be admissible because it was for possession of cocaine, not crack. He also submits that the earlier conviction was too remote in time to be admissible. Finally, Mr. Jones argues that this evidence was more prejudicial than it was probative and that the limiting instruction was not sufficient to safeguard his right to a fair trial. First, we must determine whether evidence of the previous conviction was relevant and probative on the issue of intent. Although we must give great deference to the district court's decision to admit the evidence, we pause to point out that our examination of the record in this case reveals that the district court's consideration of the matter does not appear to reflect the sort of critical evaluation of the issue that we believe ought to be undertaken in determining whether, in an exercise of discretion, such evidence ought to be admitted on the issue of intent. As far as we can ascertain from the cold record, in deciding*808 the matter, the court recited the governing principles from our case law, but otherwise revealed little in the way of critical analysis as to how those principles ought to apply to the facts of this particular case.FN7 This lapse well may be attributable, in part at least, to our own treatment of such matters on occasion; our cases have not always reflected a critical application of the principles reflected in the case law to the facts of the individual case. The district court also was not aided by the conclusory nature of Mr. Jones' motion in limine that simply claimed that admission of the evidence was sought simply to establish propensity to commit the charged offense. Similarly, the Government's reply added little to aid the court in its decision. FN7. We hasten to add that we certainly do not expect a busy district court to write a lengthy explanation for its decision. Indeed, when the reason is obvious, there is no need to verbalize any reason. On more difficult calls, however, the record ought to reflect a principled exercise of discretion. United States v. Beasley, 809 F.2d 1273, 1279 (7th Cir.1987). [7] The most obvious justifiable situation in which prior convictions are admissible in drug prosecutions on the issue of intent are in those

situations in which the defendant, while admitting possession of the substance, denies the intent to distribute it. See United States v. Jones, 389 F.3d 753, 75758 (7th Cir.2004), vacated, 545 U.S. 1125, 125 S.Ct. 2948, 162 L.Ed.2d 864 (2005) (remanding for resentencing in light of Booker ). In such a context, the matter of intent is placed squarely before the jury, and previous convictions generally are relevant and probative on the issue of intent. See United States v. Beasley, 809 F.2d 1273, 1279 (7th Cir.1987). Our case law also has recognized that evidence of earlier drug trafficking convictions also can be relevant and probative when the defendant flatly contests all elements of the charge of possession with intent to distribute. See, e.g., United States v. Chavis, 429 F.3d 662, 668 (7th Cir.2005) (allowing the admission of 404(b) evidence after a defendant claimed he was completely innocent and a clueless bystander); United States v. Brown, 34 F.3d 569, 573 (7th Cir.1994) (stating that our own cases are cleara defendant cannot keep 404(b) evidence out of his case by denying all charges); United States v. Mazzanti, 888 F.2d 1165, 1171 (7th Cir.1989) (holding that a blanket denial of any wrongdoing in a conspiracy to distribute drugs allows the Government to introduce prior acts to establish intent); United States v. Monzon, 869 F.2d 338, 344 (7th Cir.1989) (affirming the admission of 404(b) evidence and stating that [i]n cases involving specific intent crimes, intent is automatically in issue). Here too, the issue of intent must be established by the Government and evidence of prior convictions for drug trafficking may be helpful. As we pointed out in Jones, however, despite the general utility of this evidence to establish intent, it is incumbent on the Government to affirmatively show why a particular prior conviction tends to show ... volition to commit the new crime. Id. at 757. See also Chavis, 429 F.3d at 67273 (concurring opinion of Cudahy, J.). The Government's argument before this court, had it been made to the district court, would have been of significant assistance to that court, as it has been to us. An examination of the record reveals that, at trial, counsel for the defendant argued to the jury that only a small amount of cocaine was near the defendant's identification card and that the remainder of the cocaine, a larger amount, was situated in another place in the house. Counsel also emphasized the presence of others at the scene at the time that the search warrant was executed. A fair reading of counsel's *809 argument is that Mr. Jones did not control the larger amount and that the lesser amount was held for personal use rather than resale. In this context, an earlier conviction for drug trafficking was certainly relevant and probative on, among other things, the issue of Mr. Jones' intent. It evidenced his knowledge of the drug trade and the practices of drug dealers in selling their deadly wares. It also was relevant and probative with respect to the defendant's knowledge of the commercial value of even small amounts of the drug and therefore of his intent to sell the lesser amount. Accordingly, it certainly was in the sound discretion of the district court to

determine, given the facts and circumstances presented by this case, that this evidence was relevant and probative on the issues placed into contention by Mr. Jones. Next, the district court acted within its discretion in deciding that the prior conviction was close enough in time and sufficiently similar in circumstances to be relevant to the issue of intent. Mr. Jones' prior conviction occurred six years before the charged offense; the district court correctly noted that we have allowed similar prior convictions that were even more temporally distant from the charged conduct.FN8 We also have held that a prior conviction for distribution of crack is admissible in a case where the charged act involves distribution of cocaine, as the distinction between the two drugs is a distinction without substance as [b]oth crimes involve the possession with intent to distribute a chemical composition of cocaine. United States v. Puckett, 405 F.3d 589, 597 (7th Cir.2005) (emphasis in original).FN9 FN8. See United States v. Puckett, 405 F.3d 589, 597 (7th Cir.2005) (holding that a conviction six years prior to charged offense is close enough in time to be relevant, and citing cases where convictions entered as long as thirteen years prior to subsequent prosecutions ... are admissible); United States v. Tringali, 71 F.3d 1375, 1379 (7th Cir.1995) (upholding admission of evidence concerning a 1984 conviction for conspiracy of possession with intent to distribute admissible in trial for cocaine distribution in 1994). FN9. See United States v. Allison, 120 F.3d 71, 7475 (7th Cir.1997) (holding that evidence regarding prior sales of cocaine to an undercover officer could be offered into evidence when a defendant was charged with possessing crack with intent to distribute); see also United States v. Hernandez, 84 F.3d 931, 935 (7th Cir.1996) (holding that the prior conviction for possessing over forty pounds of marijuana was similar enough to be introduced at trial for a defendant charged with possession with intent to distribute cocaine and heroin). Finally, the district court certainly did not abuse its discretion in determining that the prior conviction was not more prejudicial than probative. Any probative evidence of prior convictions will be prejudicial; however, we must determine if it was unfairly prejudicial. See Best, 250 F.3d at 1093; Puckett, 405 F.3d at 598. Here, the trial court offered a limiting instruction, and we have held that such instructions are effective in reducing or eliminating any possible unfair prejudice from the introduction of Rule 404(b) evidence. Best, 250 F.3d at 1093.FN10 After analyzing each of the relevant factors, we cannot say that the district court abused its discretion.

FN10. See United States v. Griffin, 194 F.3d 808, 821 (7th Cir.1999) (same); see also Chavis, 429 F.3d at 66869 (stating that we must presume that the jurors followed the district court's limiting instruction). C. Booker [8] Mr. Jones was sentenced on June 3, 2004, before the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Mr. Jones now contends that the district court's application of a twolevel enhancement for obstruction of justice violated his right to a jury trial because it rested on *810 facts found by the trial judge. Because this issue was not raised before the district court at sentencing, we review only for plain error. See United States v. Paladino, 401 F.3d 471, 481 (7th Cir.2005) (stating that to constitute plain error, an error must affect the defendant's substantial rights and seriously affect the fairness, integrity, or public reputation of judicial proceedings). We have held that, when a district court sentenced a defendant under the belief that the Guidelines were mandatory, a limited remand may be necessary to determine what sentence the district court would have imposed had it realized that the Guidelines were advisory. See United States v. Johnson, 427 F.3d 423, 429 (7th Cir.2005); Paladino, 401 F.3d at 48384. However, a remand is necessary only when uncertainty otherwise would leave this court in a fog about what the district judge would have done with additional discretion. United States v. Lee, 399 F.3d 864, 866 (7th Cir.2005); see also Johnson, 427 F.3d at 429 (stating that a remand is only necessary if we are in doubt about what a district court would have done); Paladino, 401 F.3d at 483. Therefore, when a district court expressed at sentencing a strong preference to give a higher sentence if [it] could do so, we can be assured that none of a defendant's substantial rights were adversely affected by the application of pre-Booker law. Lee, 399 F.3d at 867. In this case, the district court stated that, had Mr. Jones' counsel not successfully gotten his base offense level lowered from 32 to 30, he would have faced a sentence of 327 months' imprisonment, a sentence which the court stated that Mr. Jones richly deserve[d]. R.66 at 54. Additionally, the trial court sentenced Mr. Jones to the maximum sentence in his guidelines range, noting that it would deprecate the seriousness of your conduct in this case and your criminal conduct through your life ... for me to sentence you to any less than the maximum sentence.... Id. Given the trial court's statement that Mr. Jones richly deserve[d] a higher sentence, we need not remand this case to permit the district court to determine how it would have sentenced Mr. Jones had the Guidelines not been mandatory.

Conclusion For the reasons set forth in this opinion, the judgment of the district court is affirmed. AFFIRMED. EASTERBROOK, Circuit Judge, concurring. Although I join the court's opinion, a few extra words are in order about the introduction of Jones's prior drug conviction. Rule 404(b) provides that evidence of prior bad acts (including convictions) is inadmissible to show character or propensity but may be admissible to show intent, motive, or some other subject material to the trial. In this prosecution, as in quite a number of others we have seen in recent years, the parties and district judge alike treated the rule's second sentence as if it were a rule of admissibility. It is not; it says that evidence may be admissible for a given purpose, not that it is automatically admissible. Allowing the jury to learn about the defendant's criminal history, with or without a pro forma limiting instruction, invites the impermissible inference. Whether a conviction (or other bad act) is admissible depends not on Rule 404(b) but on whether it is relevant (Rule 402) and whether its probative value outweighs the considerable potential for prejudice (Rule 403). See, e.g., United States v. Beasley, 809 F.2d 1273 (7th Cir.1987); *811United States v. Seals, 419 F.3d 600, 610 12 (7th Cir.2005) (Posner, J., concurring); United States v. Chavis, 429 F.3d 662, 672 73 (7th Cir.2005) (Cudahy, J., concurring). Although intent always is at issue in a drug-distribution casefor a plea of not guilty puts the prosecution to its proof on every element of the offensea conviction or other bad act may or may not be relevant to that topic. I have grave doubts about the prosecution's theory of relevance in this prosecution. Jones argued that he did not own the distribution-size cache of drugs that investigators found; he admitted only to the personaluse-size cache that was in a different location. According to the prosecutor Jones's conviction shows that he had learned to separate stocks of drugs in order to throw the hounds off the scent. Yet how does the conviction show this? Is it that every drug dealer knows this trick of the trade? Of that there is no evidence, and it is not something that a jury could find without proof. Is it that Jones's conviction shows that his former strategy had flopped, so he hit upon this as something new? Of that there is no evidence either; we don't know the facts underlying the 1994 conviction. Thus the prosecutor's theory boils down to a belief that a drug conviction always is relevant in any later drug prosecution, and Beasley disapproves that perspective.

Maybe the prosecutor could have supplied the subsidiary facts needed to make this theory of relevance fly. We will never know, because in the district court neither the litigants nor the district judge discussed this subject on the record. The defense's objection was based not on Rule 402 but on a theory that the conviction was old and therefore staleas if convictions were breakfast pastries left too long in a shop's display case. That's a bad objection: if Jones's prior acts do imply something about his intent or method of operation, it is unlikely that he would have forgotten his knowledge of the drug trade during his time behind bars. Jones's counsel confused Rule 609(b), which makes the passage of time pertinent when a conviction is used for impeachment, with Rules 402 and 403. Because the objection was off target, the judge never concentrated on what really matters to the proper use of convictions under the Rules of Evidence. Prosecutors sometimes argue that we need not worry because district judges give limiting instructions. Most of these are formulaic, however, and of little helpand they may make things worse. Telling juries not to infer from the defendant's criminal record that someone who violated the law once is likely to do so again is like telling jurors to ignore the pink rhinoceros that just sauntered into the courtroom. Often judges just recite the language of Rule 404(b), instructing jurors that the conviction may be used as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Jurors are likely to hear this as so much mumbo-jumbo. The Federal Rules of Evidence speak to the bench and bar; for jurors, translation is essential. Here the district judge avoided that pitfall by using instruction 3.04 from the Pattern Criminal Federal Jury Instructions for the Seventh Circuit. This pattern instruction is: You have heard evidence of acts of the defendant other than those charged in the indictment. You may consider this evidence only on the question of __________. You should consider this evidence only for this limited purpose. The judge filled in the blank with intent. That's a good start but leaves the jury at sea. How would a conviction show intent? The prosecutor's argument on appeal is that it shows not intent but knowledge of an avoidance technique (separating*812 commercial from personal supplies). This limiting instruction is so general that it does not effectively distinguish appropriate from inappropriate inferences. A good limiting instruction needs to be concrete so that the jury understands what it legitimately may do with the evidence. The risk that jurors will draw the forbidden propensity inference from

prior convictions makes it prudent for the court to exclude them under Rule 403 unless in opening argument the defendant's lawyer makes an argument (such as the defendant's supposed inability to recognize a white powder as cocaine) that highlights intent, knowledge, or some other appropriate use of bad acts. If the evidence is excluded during the opening presentation, and something unexpected comes up during the defense case, the prosecutor can wheel out the conviction during rebuttal; by then its relevance (or irrelevance) should be apparent. Allowing a prosecutor routinely to introduce drug convictions in the case in chief without demonstrating relevance to some concrete dispute between the litigants creates needless risk that a conviction will rest on the forbidden propensity inference. C.A.7 (Ill.),2006. U.S. v. Jones 455 F.3d 800, 70 Fed. R. Evid. Serv. 884 END OF DOCUMENT
F)

UNITED STATES VS. WALES, 977 F. 2D, 1323 -JAMI

United States Court of Appeals, Ninth Circuit. UNITED STATES of America, PlaintiffAppellee, v. Robert Smyth WALES, aka Larry Abbott, aka Robert Sanders, Defendant Appellant. No. 9110500. Argued and Submitted Aug. 21, 1992. Decided Oct. 20, 1992. Defendant was convicted in the United States District Court for the District of Hawaii, David Alan Ezra, J., of making false statement on customs declaration form, and he appealed. The Court of Appeals, David R. Thompson, Circuit Judge, held that: (1) evidence was sufficient to support conviction; (2) defense counsel opened door to testimony that at time of his arrest he had in his suitcase two driver's licenses, one with his picture on it, under two different names; but (3) amendment to Sentencing Guidelines resulting in reduced base offense level on defendant's conviction of making false statements, which took effect after defendant's sentencing, required remand to afford sentencing court discretion to review defendant's sentencing in light of amendment. Affirmed and remanded.

Kozinski, Circuit Judge, filed opinion concurring in part and concurring in judgment. West Headnotes [1] Fraud 184 69(5)

184 Fraud 184III Criminal Responsibility 184k69 Prosecution and Punishment 184k69(5) k. Weight and sufficiency of evidence. Most Cited Cases Evidence that defendant checked no box in response to question on customs declaration form regarding whether he was carrying currency over $10,000, that he was carrying $48,000, and that he had otherwise accurately filled out form was sufficient to support finding that defendant knowingly and wilfully made false statement, and thus was sufficient to support his conviction of making false statement on customs declaration form. 18 U.S.C.A. 1001. [2] Criminal Law 110 1153.1

110 Criminal Law 110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1153 Reception and Admissibility of Evidence 110k1153.1 k. In general. Most Cited Cases (Formerly 110k1153(1)) Court of Appeals will reverse district court's evidentiary rulings only for abuse of discretion. [3] Witnesses 410 288(2)

410 Witnesses 410III Examination 410III(C) Re-Examination 410k285 Redirect Examination 410k288 New Matter on Cross-Examination 410k288(2) k. Particular subjects of inquiry. Most Cited Cases (Formerly 410k277(2.1), 410k277(2)) Defense counsel opened door to testimony that at time of defendant's

arrest he had in his suitcase two driver's licenses, one with his picture on it, under two different names, by eliciting testimony on cross-examination that various documents which defendant was carrying on his person and which were in his briefcase at time of arrest were all legitimate and in defendant's name. [4] Criminal Law 110 371.25

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)6 Other Misconduct Showing Motive 110k371.25 k. Other particular offenses. Most Cited Cases (Formerly 110k371(12)) Evidence that defendant falsely told bank officer between five and seven days after his arrest that key to his safety deposit box had been stolen and that he wanted the box, which it turned out contained $150,000 in gold coins, drilled open was admissible to prove motive, that defendant wanted to conceal his assets and to avoid an explanation of their source, in prosecution for making false statement on customs declaration form as to amount of money defendant was bringing into country. Fed.Rules Evid.Rule 404(b), 28 U.S.C.A. [5] Fraud 184 69(4)

184 Fraud 184III Criminal Responsibility 184k69 Prosecution and Punishment 184k69(4) k. Admissibility of evidence. Most Cited Cases Testimony of customs inspector that, in contrast to most travelers who needed assistance with customs declaration form, defendant handed in fully completed form with no apparent errors was admissible as relevant to government's theory, in prosecution for making false statements on customs declaration form regarding amount of money defendant was bringing into country, that defendant was relatively experienced traveler who possessed above average ability to fully complete form and was not likely to have mistakenly checked wrong box pertaining to amount of currency he was carrying. [6] Witnesses 410 410 Witnesses 288(2)

410III Examination 410III(C) Re-Examination 410k285 Redirect Examination 410k288 New Matter on Cross-Examination 410k288(2) k. Particular subjects of inquiry. Most Cited Cases Testimony by prosecution witness, on redirect examination, that most travelers who are told that they checked wrong box on customs declaration form regarding possession of currency quickly attempt to correct error and present their money was proper response to cross-examination of witness opening the door to testimony, by eliciting testimony to effect that most people who arrive in early morning after traveling long distances appear confused, in attempt to portray defendant as typically weary traveler, in prosecution for making false statement on customs declaration form involving amount of money defendant was bringing into country. [7] Fraud 184 69(4)

184 Fraud 184III Criminal Responsibility 184k69 Prosecution and Punishment 184k69(4) k. Admissibility of evidence. Most Cited Cases Testimony by customs agent that answers given by travelers on currency transaction reporting forms permit government to track people who enter or leave United States with more than $10,000 to detect any pattern of such activity was admissible to establish materiality of defendant's false answer to currency statement on customs declaration form as to amount of currency he was bringing into country, since the statutory prohibition of false statements only prohibits the material misstatements. 18 U.S.C.A. 1001. [8] Criminal Law 110 1181(2)

110 Criminal Law 110XXIV Review 110XXIV(U) Determination and Disposition of Cause 110k1181 Decision in General 110k1181(2) k. Effect of change in law or facts. Most Cited Cases Amendment to Sentencing Guidelines resulting in reduced base offense level on defendant's conviction of making false statements on customs declaration form, which amendment took effect after defendant's

sentencing, required remand to afford sentencing court discretion to review defendant's sentencing in light of amendment, but did not require that sentence be vacated. U.S.S.G. 1B1.10(a, d), p.s., 2S1.3(a)(1)(B), 2S1.4, 18 U.S.C.A.App.; 18 U.S.C.A. 1001. *1324 Benedict P. Kuehne, Sonnett, Sale & Kuehne, Miami, Fla., for defendant-appellant. Stuart L. Gassner, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee. Appeal from the United States District Court for the District of Hawaii. Before KOZINSKI and THOMPSON, Circuit Judges, and RHOADES, District Judge.FN* FN* Hon. John S. Rhoades, United States District Judge for the Southern District of California, sitting by designation. DAVID R. THOMPSON, Circuit Judge: Robert Smyth Wales entered the United States at Honolulu International Airport on a flight which he boarded in Singapore. He checked the no box on a customs *1325 declaration form to deny that he was carrying more than $10,000. Customs agents found he was carrying $48,000. He was arrested and charged with knowingly and willfully making a false statement on a customs declaration form he gave to an officer of the United States Customs Service, in violation of 18 U.S.C. 1001. A jury found him guilty. The district court sentenced him to 14 months imprisonment, followed by supervised release for 2 1/2 years, a fine of $15,000 and a special assessment of $50. The sentence was imposed under Sentencing Guideline 2S1.3(a)(1)(B) (1990), which has since been amended. See U.S.S.G.App. C, amendment 379 (1991). On appeal, Wales contends the evidence was insufficient to support his conviction and the district court erred in several evidentiary rulings. He also challenges his sentence, contending that he is entitled to be resentenced under the amendment to U.S.S.G. 2S1.3(a)(1)(B). We have jurisdiction under 28 U.S.C. 1291. We affirm Wales's conviction, but remand to the district court for reconsideration of his sentence. DISCUSSION A. Sufficiency of the Evidence [1] In reviewing a jury verdict for sufficiency of the evidence, the

relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979). The $48,000 in U.S. currency Wales was carrying was almost five times the $10,000 limit for disclosure purposes. The money was packaged in three separate envelopes, each from the hotel in Singapore that Wales had left that morning. Two of the envelopes were packed in different parts of Wales's luggage. The third he carried in the breast pocket of his jacket. When he filled out his customs declaration form, Wales completed it accurately in full, except only for checking the no box in response to the printed statement: I am carrying currency or monetary instruments over $10,000 U.S. or foreign currency. He accurately recorded, however, his flight number, the number and value of several gifts in his luggage and the date, even though he had just crossed the international date line. When the customs inspector asked Wales what was in the first envelope found in his suitcase, Wales answered my money. When the inspector opened the envelope and saw that it did indeed contain money, he asked Wales how much money there was. Wales shrugged his shoulders. The inspector then pointed to the declaration form and told Wales that if he was carrying more than $10,000, he had to declare it on the form. Wales did not say anything. This envelope contained $20,000 in $100 bills. An additional $8,000 was found in an envelope in Wales's toiletry kit. Another customs inspector then explained to Wales that if he carried more than $10,000 in currency, he would have to fill out a form known as the currency transaction and reporting form. Wales did not ask to fill out the form. He was then led to a room where he was to be searched. On the way he was asked if he had any more money with him. He did not respond audibly, but reached into his breast pocket and handed the customs officer another envelope. This envelope was similar to the two found in his luggage, and like the others it contained $100 bills which had been bound by money wrappers. The currency in this envelope totalled $20,000. Viewing the evidence in the light most favorable to the government, a reasonable jury could have found that Wales knew he was bringing more than $10,000 in U.S. currency into this country and knowingly and willfully stated on his customs declaration form that he was not. See United States v. Carrier, 654 F.2d 559, 561 (9th Cir.1981) (defendant's oral no response and his continued reluctance to let inspectors know that he was carrying over $5,000 in his briefcase supported trial court's conclusion*1326 that he acted knowingly and willfully).

B. Evidentiary Contentions [2] We will reverse a district court's evidentiary rulings only for abuse of discretion. United States v. Conners, 825 F.2d 1384, 1390 (9th Cir.1987). 1. False Drivers' Licenses [3] Wales argues the district court erred in permitting a government witness to testify that at the time of Wales's arrest he had in his suitcase an expired California driver's license issued in the name of Larry David Abbott with his picture on it, and a Canadian driver's license issued in the name Robert Sanders. As the district court found, Wales's counsel opened the door to this testimony about the false drivers' licenses when he elicited testimony on cross-examination that various documents which Wales was carrying on his person and which were in his briefcase at the time of his arrest were all legitimate and in Wales's name. See United States v. Segall, 833 F.2d 144, 148 (9th Cir.1987) (defense counsel opened the door to redirect testimony that only $2,000 remained in defendant's bank account on May 12, 1986, by introducing cross-examination evidence creating a false impression that defendant retained in her bank account funds under investigation until June 9, 1986). The district court did not err in admitting this evidence. 2. Gold Coins in Safe Deposit Box [4] The government presented evidence that between five and seven days after his arrest, Wales falsely told a bank officer that the key to his safety deposit box had been stolen and, for this reason, he wanted the box (which it turned out contained $150,000 in gold coins) drilled open and the contents returned to his wife.FN1 Wales contends the government should not have been allowed to introduce this post-arrest attempt to retrieve the contents of the safety deposit box and the fact that the box contained $150,000 in gold coins. He argues this conduct bore no similarity to the charged offense. We disagree. FN1. The government learned of Wales's attempt to have the box drilled, obtained a search warrant, opened the box and discovered the $150,000 in gold coins. Under Federal Rule of Evidence 404(b), evidence of other crimes, wrongs, or acts may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. United States v. BiboRodriguez, 922 F.2d 1398, 1400 (9th Cir.), cert. denied, 501 U.S. 1234, 111 S.Ct. 2861, 115 L.Ed.2d 1028 (1991). In this circuit Rule 404(b) applies to other act evidence regardless of whether it occurred before or after the alleged offense. United States v. HarrisonPhilpot, 971 F.2d 234, 241 n. 5

(9th Cir.1992). Wales's deceitful attempt to clean out his safe deposit box before the government could examine its contents was clearly an attempt to conceal the $150,000 in gold coins. This evidence was consistent with the government's theory of the case that Wales had a motive for submitting a false customs declaration: to conceal his assets and to avoid an explanation of their source. The use of this evidence to prove motive was proper. See United States v. Miller, 874 F.2d 1255, 1269 (9th Cir.1989); United States v. Bailleaux, 685 F.2d 1105, 1110 n. 1 (9th Cir.1982). 3. The Correctly Completed Declaration Form [5] Wales argues it was error to allow a customs inspector to testify that, in contrast to most travelers who needed assistance with the customs declaration form, he handed in a fully completed form with no apparent errors. Because Wales did not object to this evidence at trial, we review for plain error. United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir.1989). This evidence was relevant to the government's theory that Wales was a relatively experienced traveler who possessed an above-average ability to fully complete a customs form and was thus not likely to mistakenly check the wrong box pertaining *1327 to the amount of currency he was carrying. The district court did not err in admitting this evidence. 4. Wales's Behavior [6] Wales argues the district court erred by permitting a government witness, on redirect examination, to testify that most travelers who are told that they checked the wrong box regarding possession of currency act quickly to correct the error and present their money. We reject this argument. During cross-examination of the witness, Wales's counsel elicited testimony to the effect that most people arriving in the early morning after traveling long distances appear confused. By this line of inquiry he attempted to portray Wales as a typical weary traveler. In doing so, he opened the door to permit the government, on redirect, to show that Wales's behavior and reactions differed from the typical early-morning passenger. See United States v. BeltranRios, 878 F.2d 1208, 12111213 (9th Cir.1989) (drug courier profile testimony admissible because defense counsel attempted to raise an inference that defendant was not a drug courier by showing that his life-style was inconsistent with that line of business). 5. Purpose of Customs Forms [7] Wales argues the district court erroneously allowed customs agent John Borges to testify that answers given by travelers on currency

transaction and reporting forms permit the government to track people who enter or leave the United States with more than $10,000 in U.S. or foreign currency to detect any pattern of such activity. This testimony was admissible to establish the materiality of Wales's false answer to the currency statement on the customs declaration form. Section 1001 only prohibits material misstatements. 18 U.S.C. 1001; United States v. Oren, 893 F.2d 1057, 1063 (9th Cir.1990). C. Amended Guideline [8] Wales was sentenced on September 23, 1991. At that time U.S.S.G. 2S1.3(a)(1)(B) provided for a base offense level of 13 when a defendant made false statements to conceal or disguise the evasion of reporting requirements. Amendment 379, which took effect on November 1, 1991, modified section 2S1.3 and created a new section for offenses involving the failure to file currency and monetary instrument reports. FN2 See U.S.S.G. 2S1.4 (Nov.1991). Section 2S1.4 provides a base offense level of 9 for violations of section 1001. Wales urges us to vacate his sentence and remand for resentencing under section 2S1.4 as the Fifth Circuit did in a similar case, United States v. Park, 951 F.2d 634 (5th Cir.1992). FN2. The official commentary to amendment 379 explains: [T]his amendment creates an additional offense guideline ( 2S1.4) for offenses involving Currency and Monetary Instrument Reports (CMIR). Currently, such offenses are covered by 2S1.3, which deals with all currency transaction reporting requirements. CMIR violations are committed by individuals who, when entering or leaving the country, knowingly conceal $10,000 or more in cash or bearer instruments on their persons or in their personal effects and knowingly fail to file the report required by the U.S. Customs Service. Such criminal conduct is sufficiently different from the other offenses covered by 2S1.3 to merit treatment in a separate guideline. U.S.S.G.App. C, amendment 379 (1991). Section 1B1.10(a) provides that [w]here a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of [a specifically referenced] amendment ..., a reduction in the defendant's term of imprisonment may be considered. U.S.S.G. 1B1.10(a), p.s. (Nov.1991). The amendment to section 2S1.3(a)(1)(B) is one of the amendments to which section 1B1.10(a) applies. See U.S.S.G. 1B1.10(d), p.s. (Nov.1991). Thus, while [Wales] is not necessarily entitled to a reduction in the offense levelsection 1B1.10(a)

does not mandate the use of the lesser enhancement, but merely affords the sentencing court discretion to utilize*1328 ithe is entitled to have his sentence reviewed in light of the amendment. United States v. Connell, 960 F.2d 191, 197 (1st Cir.1992). We do not vacate Wales's sentence. But see Park, 951 F.2d at 636. Instead, consistent with Connell, 960 F.2d at 197, we remand to the district court so that it may determine whether or not to adjust Wales's sentence in light of the November 1, 1991 amendment to section 2S1.3.FN3 FN3. Ordinarily a defendant must petition the district court for modification of his sentence under section 1B1.10. See 18 U.S.C. 3582(c)(2). Because Wales raised the sentencing issue on appeal, we see no need to force him to take this additional step. See Connell, 960 F.2d at 197 n. 10. AFFIRMED and REMANDED. KOZINSKI, Circuit Judge, concurring in part and concurring in the judgment: Chief Judge Henry J. Friendly was a major critic of the Federal Rules of Evidence. Evidence, he maintained, is not the kind of subject that lends itself to codification. Under the pre-Rules common-law system, Judge Friendly argued, if the appellate court believe[d] the result was just and there were no other errors, it [would] find a way to sustain the trial judge. It will be immeasurably harder for an appellate court to reach such sensible results if the trial court has violated a black letter rule prescribed by the Supreme Court under authority from the Congress.... FN1 FN1. Hearings Before the Special Subcomm. on Reform of Federal Criminal Laws of the Comm. on the Judiciary, House of Representatives, 93rd Cong., 1st Sess., at 26263. Judge Friendly needn't have worried. Appellate courts, district judges and the bar haven't been buffaloed by black letter rule[s] prescribed by the Supreme Court under authority from the Congress. One need spend only a short time in our federal courtrooms to realize that a lively common law tradition continues to flourish in matters of evidence.FN2 FN2. The federal courts aren't alone in this respect; there seems to be something inherent in evidence law that stubbornly resists codification. See, e.g., Frederick C. Moss, Beyond the Fringe: Apocryphal Rules of Evidence in Texas, 43 Baylor L.Rev. 701 (1991): Beyond the fringe of the rules of evidence lies a dim region of trial practice where lawyers and judges toil in the shadows of the written

rules. It is a world where the admission of evidence is sometimes governed by folk rules passed down from generation to generation of litigators. When litigators become trial judges, the bench, too, embraces these evidentiary customs. And when litigators and judges ascend to the court of appeals, occasionally these folk rules become enshrined in appellate opinions. ... [S]ome informal evidence rules have only a shaky footing in the legitimate evidence law of the codes and cases. Others have none at all. Yet, they thrive with daily usage. Many are the illegitimate offspring of genuine evidentiary principles that trial practitioners and judges have distorted so regularly that the distortions have independent lives. Others are completely spurious, the product of blind, unthinking acceptance of apocryphal evidentiary doctrines and rules of thumb. Id. at 70203; see also Victor J. Gold, Do the Federal Rules of Evidence Matter?, 25 Loy.L.A.L.Rev. 909 (1992). This is a case in point. The government wanted to prove Wales was carrying two false driver's licenses. The only possible purpose for this was to show Wales's criminal propensities, something the character evidence rule forbids. See Fed.R.Evid. 404(b). The district judge at first excluded the licenses, but changed his mind after Wales introduced evidence that his passport and other documents were legitimate. By pointing to his legitimate documents, the judge ruled, Wales had opened the door to the fake ones. The majority agrees. This opening the door doctrine has a certain common-sense appeal, but where is it to be found in the Rules of Evidence? I'm aware of no authority for admitting inadmissible evidence just because we think turnabout is fair play. Perhaps it would be sensible to let the licenses in, but lots of violations of the Rules seem equally sensible. It may seem sensible to admit hearsay whenever the declarant is unavailable at trial.FN3 But see Fed.R.Evid. 802. It may seem sensible to let witnesses be impeached with evidence of their past lies. *1329 But see Fed.R.Evid. 608(b). It may seem sensible to allow defendants to prove their good character using specific acts. But see Fed.R.Evid. 405. But rules are rules. The basic policy judgments were made by their drafters; when we rely on common sense in admitting evidence contrary to the Rules, we're simply substituting our own judgments for theirs. FN3. See Model Code of Evidence Rule 503(a) (1942) (making this proposal).

In fact, the drafters considered the very issue presented in this case whether the prosecution may introduce evidence of a defendant's bad character once the defendant has introduced evidence of his good character. Rules 404(a)(1) and 405 allow such bad character evidence, but only in the form of reputation or opinion, not specific instances of conduct.FN4 The majority opinion directly contravenes this specific judgment.FN5 FN4. The two situations in which Rule 405 allows evidence of specific instances of conductwhen cross-examining a witness who's given reputation or opinion evidence, and when the defendant's character is actually an element of the offensedon't apply here. FN5. I realize there's Ninth Circuit case law that talks of opening the door, but all these cases involve applications of opening the door doctrines present in the Rules themselves. For instance, United States v. Segall, 833 F.2d 144 (9th Cir.1987), which the majority cites, seems to apply the principle that otherwise irrelevant evidence can become relevant when other evidence is introduced. See Fed.R.Evid. 401, 402. The same is true of United States v. Joetzki, 952 F.2d 1090, 1094 (9th Cir.1991), on which the government's brief relied, and of the majority's Part B(4). Likewise, United States v. Stuart, 718 F.2d 931 (9th Cir.1983), also cited by the government, involved prior consistent statements, which are generally inadmissible hearsay but are made admissible by allegations of recent fabrication or improper influence or motive. See Fed.R.Evid. 801(d)(1). Even had we the authority to substitute our judgment for that of the drafters, this is surely not the way to do it. Look at just how little guidance the majority's opening the door doctrine gives to judges and litigants. What evidence will open a door? How wide will the door open? If a defense lawyer calls his client a law-abiding citizen, does he invite evidence of every crime the defendant has committed? If Wales's legitimate documents opened the door to otherwise inadmissible character evidence, would they have opened the door to inadmissible hearsay? Inadmissible opinion? A lawyer anxious to keep out damaging information needs to know what subjects to sidestep in order to keep it out. A district judge deciding evidentiary questions needs to know what he may admit and what he must exclude. The majority's opinion offers no assistance in answering these questions. Not only does it fail to announce a clear rule, it provides no basis for extrapolating a rule by analogy: Both the opinion here and United States v. Segall, 833 F.2d 144 (9th Cir.1987), on which it relies, fail to even mention the objection interposed to admission of the evidence. Can we infer that opening the door will sweep out of the way any and all rule-

based evidentiary objections? I'm unwilling to join my colleagues in their leap into the unknown reaches beyond the Federal Rules of Evidence. I conclude therefore that the district court should have kept the licenses out, as the Rules mandated. The district court's mistake, however, wasn't fatal. The evidence against Wales was so substantial that the admission of the licenses was harmless. Wales just didn't behave like someone who had made an honest mistake. He declared $40 worth of purchases but somehow forgot the $48,000 in cash, even when the inspector asked how much money he was carrying. After the inspector found one packet of undeclared money, Wales said nothing. It was only after the inspector found a second packet that Wales finally owned up to the truth. Wales's subsequent attempt to hide the gold coins helped show a motive for lying on the declaration. Faced with all this, any jury would certainly have convicted Wales even without the fake licenses. Because the error was harmless, I concur in the majority's result on this point. See Kotteakos v. United States, 328 U.S. 750, 76465, 66 S.Ct. 1239, 124748, 90 L.Ed. 1557 (1946) (error harmless if court can say with fair assurance that error had no substantial influence on the verdict); *1330 United States v. Webbe, 755 F.2d 1387, 1389 (9th Cir.1985) (same). And, while I don't join Part B(1), I do join the rest of Judge Thompson's wellwritten opinion. C.A.9 (Hawaii),1992. U.S. v. Wales 977 F.2d 1323, 36 Fed. R. Evid. Serv. 1408 END OF DOCUMENT 3. EVIDENCE OF OTHER BAD ACTS IN SEXUAL ASSAULT CASES a) United States vs. Le Compte, 131 F. 3d 767, 22 December 1997 Kate United States Court of Appeals, Eighth Circuit. UNITED STATES of America, Appellant, v. Leo LeCOMPTE, Appellee. No. 971820SD. Submitted Oct. 21, 1997. Decided Dec. 22, 1997.

Defendant was convicted in the United States District Court for the District of South Dakota, Charles Kornmann, J., of abusive sexual contact with his 11yearold niece. Defendant appealed. The Court of Appeals, 99 F.3d 274, reversed and remanded for new trial. Prior to retrial, defendant moved in limine to exclude evidence of prior uncharged sex offenses against another niece. The District Court excluded evidence, and government appealed. The Court of Appeals, Richard S. Arnold, Chief Judge, held that: (1) government's untimely offer of evidence of similar crimes in original trial did not preclude government from offering such evidence on retrial, and (2) district court should have not excluded evidence under rule permitting court to exclude relevant evidence if its probative value is outweighed by other concerns. Reversed and remanded. West Headnotes [1] Criminal Law 110 1192

110 Criminal Law 110XXIV Review 110XXIV(U) Determination and Disposition of Cause 110k1192 k. Mandate and proceedings in lower court. Most Cited Cases Government's untimely offer of evidence of similar crimes in original trial on child molestation charges did not preclude government from offering such evidence, pursuant to same rule, on retrial. Fed.Rules Evid.Rule 414, 28 U.S.C.A. [2] Criminal Law 110 373.10

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)12 Nature and Circumstances of Other Misconduct Affecting Admissibility 110k373.7 Similarity to Crime Charged 110k373.10 k. Sex offenses. Most Cited Cases (Formerly 110k369.2(5)) Evidence offered under rule permitting evidence of similar crimes in child molestation cases is still subject to requirements of rule permitting court to exclude relevant evidence if its probative value is outweighed by other concerns, although latter rule must be applied to allow former rule its

intended effect. Fed.Rules Evid.Rules 403, 414, 28 U.S.C.A. [3] Criminal Law 110 1153.3

110 Criminal Law 110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1153 Reception and Admissibility of Evidence 110k1153.3 k. Relevance. Most Cited Cases (Formerly 110k1153(1)) Court of Appeals reviews for abuse of discretion district court's application of rule permitting court to exclude relevant evidence if its probative value is outweighed by other concerns. Fed.Rules Evid.Rule 403, 28 U.S.C.A. [4] Criminal Law 110 373.10

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)12 Nature and Circumstances of Other Misconduct Affecting Admissibility 110k373.7 Similarity to Crime Charged 110k373.10 k. Sex offenses. Most Cited Cases (Formerly 110k372(7), 110k369.2(5)) District court abused its discretion in excluding evidence of defendant's prior uncharged sex offenses, in prosecution for abusive sexual contact with defendant's 11-year-old niece, under rule permitting court to exclude relevant evidence if its probative value is outweighed by other concerns, in light of strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible, as evidenced by separate rule, and substantial similarity of offenses. Fed.Rules Evid.Rules 403, 414, 28 U.S.C.A. *768 Mikal G. Hanson, Pierre, SD, argued (Karen E. Schreier, Asst. U.S. Atty., on the brief), for appellant. Terry L. Pechota, Rapid City, SD, argued, for appellee. Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges. RICHARD S. ARNOLD, Chief Judge. Before the trial of Leo LeCompte for the alleged sexual abuse of his wife's

11year-old niece, C.D., under 18 U.S.C. 2244(a)(1) and 2246(3) (1994), the defendant moved in limine to exclude evidence of prior uncharged sex offenses against another niece by marriage, T.T. The government argued that the evidence was admissible under Federal Rule of Evidence 414 (Evidence of Similar Crimes in Child Molestation Cases). The District Court excluded the evidence under Rule 403. The government appeals this evidentiary ruling. Such pretrial appeals are authorized by 18 U.S.C. 3731 (1994). We reverse and hold that the motion in limine should not have been granted. We do so in order to give effect to the decision of Congress, expressed in recently enacted Rule 414, to loosen to a substantial degree the restrictions of prior law on the admissibility of such evidence. I. LeCompte is charged with child sex offenses allegedly committed in January 1995. According to the victim C.D., prior to January 1995, LeCompte had played games with her at her aunt's trailer and had exposed himself to her on at least one occasion. The actual incidents of molestation allegedly occurred while she was lying on a couch at her aunt's, with her siblings sleeping on the floor next to her. LeCompte allegedly joined her on the couch, forced her to touch his penis, and touched her breasts. The government offered evidence of sex offenses committed by LeCompte against a niece of his first wife during that marriage, between 1985 and 1987. This niece, T.T., would testify that LeCompte had played games with her at her aunt's house, had exposed himself to her, had forced her to touch his penis, and had touched her private parts. The admissibility of T.T.'s testimony has been considered by this Court once before. In LeCompte's first trial, the government offered the evidence under Rule 404(b). It was not then able to offer the evidence under Rule 414 because of its failure to provide timely notice of the offer, as required by Rule 414. The District Court admitted the evidence, and the jury convicted LeCompte. On appeal, this Court held that the District Court's admission of the evidence under Rule 404(b) was improper, and reversed LeCompte's conviction. United States v. LeCompte, 99 F.3d 274 (8th Cir.1996). We now consider the admissibility of T.T.'s testimony in LeCompte's retrial, under Rule 414, the government having given timely notice the second time around. II. On remand, LeCompte moved in limine to exclude the evidence. The District Court *769 ruled that T.T.'s testimony was potentially admissible under Rule 414, but excluded by Rule 403. It noted that although the evidence's only relevance was as to LeCompte's propensity to commit child sexual abuse, Rule 414 expressly allowed its use on that basis. The Court

then turned to a Rule 403 analysis of the evidence. As to the evidence's probative value, the Court recognized the similarities between C.D.'s and T.T.'s accounts: they were both young nieces of LeCompte at the time he molested them, he forced them both to touch him, he touched them both in similar places, and he exposed himself to both of them. The Court found that the evidence's probative value was limited, however, by several differences. First, the acts allegedly committed against C.D. occurred with her siblings present, while the acts against T.T. occurred in isolation. Second, LeCompte had not played games with C.D. immediately before molesting her, as he had with T.T. Finally, the acts against C.D. and T.T. were separated by a period of eight years. The District Court concluded that the probative value of T.T.'s testimony was limited. On the other hand, it found that the risk of unfair prejudice was high, reasoning that T.T.'s testimony is obviously highly prejudicial evidence against defendant .... child sexual abuse deservedly carries a unique stigma in our society; such highly prejudicial evidence should therefore carry a very high degree of probative value if it is to be admitted. District Court Order at 4 (citation omitted). The Court therefore excluded the evidence under Rule 403. III. [1] We first note that no procedural bars prevent the government from offering the evidence under Rule 414 at this time. First, as the District Court reasoned, the law of the case doctrine is inapplicable; this Court's holding that the evidence was inadmissible under Rule 404 at the first trial does not foreclose consideration of admissibility under a different rule of evidence on retrial. Second, LeCompte's retrial will fall after Rule 414's effective date, July 9, 1995. The Rule applies in all trials held after this original effective date. Act of September 30, 1996, Pub.L. No. 104208, 120, 110 Stat. 3009 25. Rule 414 provides in relevant part: (a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. Rule 414 and its companion rulesRule 413 (Evidence of Similar Crimes in Sexual Assault Cases), and Rule 415 (Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Molestation)are general rules of admissibility in sexual assault and child molestation cases for evidence that the defendant has committed offenses of the same type on other occasions.... The new rules will supersede in sex offense cases the

restrictive aspects of Federal Rule of Evidence 404(b). 140 Cong. Rec. H8992 (daily ed. Aug. 21, 1994) (statement of Rep. Molinari). [2] Evidence offered under Rule 414 is still subject to the requirements of Rule 403. Id. This Court has recognized that evidence otherwise admissible under Rule 414 may be excluded under Rule 403's balancing test. United States v. Sumner, 119 F.3d 658, 661 (8th Cir.1997). See also United States v. Meacham, 115 F.3d 1488, 1492 (10th Cir.1997); United States v. Larson, 112 F.3d 600, 60405 (2d Cir.1997). However, Rule 403 must be applied to allow Rule 414 its intended effect. [3][4] We review the District Court's application of Rule 403 for abuse of discretion. United States v. Johnson, 56 F.3d 947, 952 (8th Cir.1995). In light of the strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible, we think the District Court erred in its assessment that the probative value of T.T.'s testimony was substantially outweighed by the danger of unfair prejudice. The sexual offenses committed against T.T. were substantially similar to those allegedly committed against C.D. By comparison, the differences were small. In particular, the District Court itself acknowledged that the time lapse between incidents may not be as significant as it appears at first glance, because defendant *770 was imprisoned for a portion of the time between 1987 and 1995, which deprived defendant of the opportunity to abuse any children. District Court Order at 4. Moreover, the danger of unfair prejudice noted by the District Court was that presented by the unique stigma of child sexual abuse, on account of which LeCompte might be convicted not for the charged offense, but for his sexual abuse of T.T. This danger is one that all propensity evidence in such trials presents. It is for this reason that the evidence was previously excluded, and it is precisely such holdings that Congress intended to overrule. Compare United States v. Fawbush, 900 F.2d 150 (8th Cir.1990) (prior acts of child sexual abuse inadmissible to show propensity under Rule 404(b)). On balance, then, we hold that the motion in limine should not have been granted. The order of the District Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. C.A.8 (S.D.),1997. U.S. v. LeCompte 131 F.3d 767 END OF DOCUMENT

4. HABIT
A)

PEOPLE VS. DARTON, 289 A.D. 2D 711, 13 DECEMBER 2001 CLAIRE People v D'Arton 289 A.D.2d 711, 734 N.Y.S.2d 309 N.Y.A.D.,2001.

289 A.D.2d 711, 734 N.Y.S.2d 309, 2001 WL 1587821, 2001 N.Y. Slip Op. 10049 The People of the State of New York, Respondent, v. Christopher D'Arton, Appellant. Supreme Court, Appellate Division, Third Department, New York (December 13, 2001) CITE TITLE AS: People v D'Arton Mercure, J. Appeal from a judgment of the County Court of Schenectady County (Sise, J.), rendered November 25, 1996, upon a verdict convicting defendant of the crimes of murder in the first degree (two counts), robbery in the first degree (two counts) and tampering with evidence (two counts).*712 On the evening of May 18, 1995, defendant robbed and killed his employer, Paul Coppola, at Coppola's automotive shop in the Town of Rotterdam, Schenectady County. The trial evidence showed that it had been Coppola's intention to pick up his friend James Gardner that evening so that they could travel together to Manheim, Pennsylvania, for the purpose of attending the following day's auto auction there. The People offered evidence of three telephone conversations Coppola had with Gardner between 6:00 P.M. and 7:00 P.M. on May 18, 1995, during the course of which Coppola indicated that he was waiting at his shop to receive payment on a loan that he had made to unidentified individuals and, in fact, that he had received word that they were on Interstate Route 890, in close proximity to the shop. The People also offered testimony by Gardner and Coppola's wife concerning Coppola's habit of carrying large amounts of cash on his person, particularly when on a business trip. On this appeal from the judgment entered on a jury verdict convicting defendant of intentional murder, felony murder, two counts of robbery in the first degree and two counts of tampering with evidence, defendant challenges only County Court's receipt of the foregoing evidence.

Initially, we reject the contention that County Court erred in receiving evidence concerning Coppola's habit of carrying cash on his person. It has long been the rule that evidence of habit is generally admissible to demonstrate specific conduct on a particular occasion ... (People v Boomer, 230 AD2d 941, 942,lv denied89 NY2d 919 [citation omitted]; see, Halloran v Virginia Chems., 41 NY2d 386, 392;People v Gardella, 56 AD2d 609;cf., People v Paschall, 91 AD2d 645, 646;see also, Prince, Richardson on Evidence 4-601, at 197-198 [Farrell 11th ed]). In this case, Coppola's wife testified that Coppola carried between $500 and $1,000 in cash at all times and detailed the manner in which he would carry bills of various denominations in his right and left pants pockets. Gardner testified that Coppola had a habit of ordinarily carrying $400 to $500 in spending money and carrying $500 to $1,500 on business trips. In our view, that testimony evidenced a deliberate and repetitive practice sufficient to allow the inference of its persistence and County Court acted within its discretion in receiving it (see, Halloran v Virginia Chems., supra, at 392). The question of whether County Court erred in receiving evidence of the three telephone conversations between Gardner and Coppola is more problematic. Under the state of mind hearsay exception, when a particular act of [a] declarant is at issue, the declarant's statement of a future intent to perform *713 that act is admissible as proof of the declarant's intent on that issue and as inferential proof that the declarant carried out his intent (statement of a declarant's solitary future action) (People v Chambers, 125 AD2d 88, 91,appeal dismissed70 NY2d 694;see, Mutual Life Ins. Co. v Hillmon, 145 US 285, 295-296;People v Toland, 284 AD2d 798, 805,lv denied96 NY2d 942). Secondly, as a further extension of this species of the state of mind exception, courts have admitted statements of a declarant's future intent to perform an act with another person as circumstantial proof that the act did occur and, by necessary implication, that the other person participated in the act (statement of a declarant's intention to perform acts entailing the participation jointly or cooperatively of a nondeclarant) (People v Chambers, supra, at 91;see, Mutual Life Ins. Co. v Hillmon, supra, at 296). Finally, the exception has, under appropriate circumstances, been applied in cases where the third-party nondeclarant is a criminal defendant and evidence of the defendant's participation in the act sought to be established tends to inculpate him or her in the charged crime or crimes (see, People v James, 93 NY2d 620;People v Malizia, 92 AD2d 154, 160,affd62 NY2d 755,cert denied469 US 932;cf., People v Chambers, supra). In People v James (supra), a case falling within this third classification, the Court of Appeals delineated the foundational safeguards necessary to ensure against the dangers of unreliability as a showing that: (1) the declarant is unavailable

... (2) the statement of the declarant's intent unambiguously contemplates some future action by the declarant, either jointly with the nondeclarant defendant or which requires the defendant's cooperation for its accomplishment ... (3) to the extent that the declaration expressly or impliedly refers to a prior understanding or arrangement with the nondeclarant defendant, it must be inferable under the circumstances that the understanding or arrangement occurred in the recent past and that the declarant was a party to it or had competent knowledge of it ... and (4) there is independent evidence of reliability, i.e., a showing of circumstances which all but rule out a motive to falsify ... and evidence that the intended future acts were at least likely to have actually taken place (id., at 634-635 [citations omitted] [emphasis in original]). Noting that the second and third of the criteria set forth in People v James (supra) presuppose that the nondeclarant third party be a criminal defendant, defendant contends that, because he was not one of the men whom Coppola was expecting or a person acting jointly with such men, those criteria *714 have not been satisfied. Although defendant correctly recognizes that certain of the James criteria have no application to the present case, he misapprehends the effect of that nonapplication. The fact is that the People have not sought to utilize the state of mind exception to establish defendant's participation or cooperation in any act described in the conversations between Coppola and Gardner. To the contrary, depending upon the perceived purpose for the testimony, the facts of this case bring it within either the first or the second of the classifications previously set forth. That is, the evidence is offered only to (1) reveal Coppola's reason for remaining at his shop beyond 6:00 P.M. on May 18, 1995 or (2) establish Coppola's reason for remaining at his shop and, in addition, that unidentified individuals arrived there at some time after 7:00 P.M. and made a cash repayment of a loan. The more difficult question, and one that neither party has addressed, is whether the second and third criteria set forth in People v James (93 NY2d 620,supra) have any application in a case, as this one, where the state of mind hearsay exception is not utilized in an effort to establish a criminal defendant's involvement in the underlying act described in the conversations between declarant and another. We believe that these criteria have no application in such a case. In People v James (supra), the Court of Appeals expressly stated its intention to adopt the rule previously adopted in [j]urisdiction after jurisdiction of State and Federal courts [that] have determined to follow the lead of [Mutual Life Ins. Co. v Hillmon (supra)] and [Hunter v State of New Jersey (40 NJL 495)] in admitting against criminal defendants (upon establishment of an appropriate foundation) the statements of a declarant's intention to perform acts entailing the participation jointly or cooperatively of the nondeclarant accused (People v

James, supra, at 632). We would so limit it. Nonetheless, even under the first and second classifications, there must be independent evidence of reliability, i.e., a showing of circumstances which all but rule out a motive to falsify and evidence that the intended future acts were at least likely to have actually taken place (People v James, supra, at 634-635;see, People v Chambers, supra, at 92). We agree with defendant that there is no independent evidence of reliability. There is no evidence that the debtors ever arrived, that Coppola received cash from the debtors or even that Coppola had loaned money to anyone. Accordingly, County Court erred in receiving evidence of the three telephone conversations between Gardner and Coppola.*715 Because the proffered evidence was of very limited probative value, however, we conclude that the error was harmless. In our view, the trial record does not support defendant's claims that evidence of Coppola's receipt of a sum of money tended to establish a motive for defendant's crimes or to undermine his defense of justification. Notably, there is no evidence that defendant was a party to any of the conversations between Coppola and Gardner or was otherwise aware that Coppola was waiting to receive money. In addition, because Coppola was leaving directly from his shop for the business trip to Manheim, the jury was permitted to infer that he had fairly substantial sums on his person, even absent the repayment of any loan. The evidence showed that, following the murder, only 89 cents was found on Coppola's person, his overnight bag was missing, and his briefcase had been hacked open with a sharp instrument. Under the circumstances, we conclude that there existed more than adequate evidence of defendant's motive and his commission of the crimes for which he was convicted absent evidence of any repayment of a loan. Cardona, P. J., Crew III, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment is affirmed. Copr. (c) 2012, Secretary of State, State of New York N.Y.A.D.,2001. People v D'Arton (Christopher) 289 A.D.2d 711, 734 N.Y.S.2d 3096022001 WL 15878219992001 N.Y. Slip Op. 100494603, 734 N.Y.S.2d 3096022001 WL 15878219992001 N.Y. Slip Op. 100494603, 734 N.Y.S.2d 3096022001 WL 15878219992001 N.Y. Slip Op. 100494603 END OF DOCUMENT
B)

REYES VS. MISSOURI PACIFIC RAILROAD CO., 589 F.2D 791, 14 FEBRUARY 1979 -

KIARRA United States Court of Appeals, Fifth Circuit. Joel REYES, Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellee. No. 76-3689. Feb. 14, 1979. In a diversity suit for personal injuries sustained by plaintiff when he was run over by defendant's train as he lay on the tracks at night, the defendant prevailed in the United States District Court for the Southern District of Texas at Brownsville, Reynaldo G. Garza, Chief Judge, and plaintiff appealed. The Court of Appeals, James C. Hill, Circuit Judge, held that it was prejudicial error to admit any evidence of plaintiff's four prior misdemeanor convictions for public intoxication, introduced for the purpose of showing that he was intoxicated on the night that he was run over. Reversed and remanded. West Headnotes [1] Federal Courts 170B 543.1

170B Federal Courts 170BVIII Courts of Appeals 170BVIII(B) Appellate Jurisdiction and Procedure in General 170Bk543 Right of Review 170Bk543.1 k. In General. Most Cited Cases (Formerly 170Bk543) Error in refusal of evidence was sufficiently preserved by making motion in limine, and plaintiff did not waive error by bringing out on direct examination the existence of prior convictions, proof of which he had sought to exclude. Fed.Rules Evid. rule 103, 28 U.S.C.A. [2] Negligence 272 549(10)

272 Negligence 272XVI Defenses and Mitigating Circumstances 272k545 Effect of Others' Fault 272k549 As Grounds for Apportionment; Comparative

Negligence Doctrine 272k549(4) Scope and Application of Doctrine 272k549(10) k. Effect of Determination on Recovery; Methods of Apportionment. Most Cited Cases (Formerly 272k98) Where plaintiff was found more negligent than defendant, he was precluded under Texas law from recovering. Vernon's Ann.Tex.Civ.St. art. 2212a 1. [3] Criminal Law 110 376

110 Criminal Law 110XVII Evidence 110XVII(G) Character of Accused 110k375 Character or Reputation of Accused 110k376 k. In General. Most Cited Cases Evidence 157 106(1)

157 Evidence 157IV Admissibility in General 157IV(A) Facts in Issue and Relevant to Issues 157k106 Character or Reputation 157k106(1) k. In General. Most Cited Cases General rule excluding evidence of person's character for purpose of proving that person acted in conformity with his character on particular occasion is applicable to both civil and criminal proceedings and is based upon assumption that such evidence is of slight probative value yet very prejudicial. Fed.Rules Evid. rule 404, 28 U.S.C.A. [4] Evidence 157 106(1)

157 Evidence 157IV Admissibility in General 157IV(A) Facts in Issue and Relevant to Issues 157k106 Character or Reputation 157k106(1) k. In General. Most Cited Cases If evidence is introduced for purpose of showing that person acted in accordance with his character on given occasion, the evidence is inadmissible unless it falls within one of exceptions noted by rule. Fed.Rules Evid. rules 404, 404(a), 404 note, 28 U.S.C.A.

[5] Evidence 157

106(5)

157 Evidence 157IV Admissibility in General 157IV(A) Facts in Issue and Relevant to Issues 157k106 Character or Reputation 157k106(5) k. Right to Prove Specific Facts. Most Cited Cases In suit for injuries sustained by plaintiff when he was run over by a train while he was lying on the tracks at night, evidence of plaintiff's four prior misdemeanor convictions for public intoxication, admitted for sole purpose of showing that he had character trait of drinking to excess and acted in conformity with his character on night of accident by becoming intoxicated was inadmissible character evidence. Fed.Rules Evid. rules 404, 404 note, 28 U.S.C.A. [6] Evidence 157 138

157 Evidence 157IV Admissibility in General 157IV(C) Similar Facts and Transactions 157k138 k. Part of Series Showing System or Habit. Most Cited Cases Habit evidence is considered to be highly probative and therefore superior to character evidence, and rule allows introduction of evidence of habit of person for purpose of proving that person acted in conformity with his habit on particular occasion. Fed.Rules Evid. rules 404, 406, 28 U.S.C.A. [7] Evidence 157 138

157 Evidence 157IV Admissibility in General 157IV(C) Similar Facts and Transactions 157k138 k. Part of Series Showing System or Habit. Most Cited Cases There is no precise formula for determining when behavior may become so consistent as to rise to level of habit, but adequacy of sampling and uniformity of response are controlling considerations, and thus probative force of habit evidence to prove intoxication on given occasion depends on degree of regularity of practice and its coincidence with occasion. Fed.Rules Evid. rules 406, 406 note, 28 U.S.C.A.

[8] Railroads 320

397(2)

320 Railroads 320X Operation 320X(G) Injuries to Persons on or Near Tracks 320k393 Actions for Injuries 320k397 Admissibility of Evidence 320k397(2) k. Similar Facts and Transactions. Most Cited Cases Four prior convictions for public intoxication spanning three and onehalf year period were of insufficient regularity to rise to level of habit evidence and were inadmissible in plaintiff's suit for injuries sustained when he was run over by a train while lying on tracks at night. Fed.Rules Evid. rules 406, 406 note, 28 U.S.C.A. [9] Federal Courts 170B 896.1

170B Federal Courts 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)6 Harmless Error 170Bk896 Admission of Evidence 170Bk896.1 k. In General. Most Cited Cases (Formerly 170Bk896) Concern over prejudicial effect of character evidence is especially compelling where character evidence relates to critical issue in case, and evidence of prior convictions for public intoxication was prejudicial to plaintiff in his suit for injuries sustained when he was run over by train while he was lying on tracks at night. Fed.Rules Evid. rules 404, 406, 28 U.S.C.A.; Fed.Rules Civ.Proc. rule 61, 28 U.S.C.A. *792 S. Bennett Sharber, Downman, Jones & Granger, Houston, Tex., for plaintiff-appellant. Thomas Gilbert Sharpe, Jr., Brownsville, Tex., for defendant-appellee. Appeal from the United States District Court for the Southern District of Texas. Before HILL and RUBIN, Circuit Judges, and HIGGINBOTHAM [FN*], District Judge. FN* District Judge of the Northern District of Texas, sitting by

designation. JAMES C. HILL, Circuit Judge: In this diversity case plaintiff-appellant challenges [FN1] the admission into evidence of his four prior misdemeanor convictions for public intoxication, introduced for the purpose of showing that he was intoxicated on the night that he was run over by defendant-appellee's train. We agree with appellant, finding the evidence of his prior convictions to be inadmissible under Rule 404(a) of the Federal Rules of Evidence; therefore, we reverse and remand the case for a new trial. FN1. Appellant alleges three other points of error which we do not reach because of our decision on the admissibility of the prior convictions. I. Shortly after midnight on June 17, 1974, appellant Reyes was run over by appellee-railroad's train as he lay on the railroad tracks near a crossing in Brownsville, Texas. Reyes brought this diversity suit against the railroad, alleging negligence on the part of the railroad's employees in failing to discover plaintiff as he lay on the tracks and stop the train in time to avoid the accident. The railroad answered by claiming that Reyes, dressed in dark clothing that night, was not visible from the approaching train until it was too late for *793 its employees to avert the accident. Moreover, the railroad alleged that Reyes was contributorily negligent because he was intoxicated on the night of the accident and passed out on the tracks before the train arrived. Reyes explained his presence on the railroad tracks by claiming that he was knocked unconscious by an unknown assailant as he walked along the tracks. Reyes made a motion In limine to exclude the evidence relating to his prior misdemeanor convictions for public intoxication. The railroad opposed this motion, arguing that the convictions were admissible to show that Reyes was intoxicated on the night of the accident. The district court agreed and refused to grant Reyes' motion. [1][2] In an attempt to minimize the damaging effects of his prior convictions, Reyes brought them out on direct examination.[FN2] In answering a special interrogatory submitted to them, the jury found the plaintiff more negligent than the defendant; under Texas law, this finding precluded Reyes from recovering against the railroad. See 7 Tex.Civ.Code Ann. Art. 2212a, s 1 (Vernon). FN2. We reject the railroad's suggestion that Reyes waived error by bringing out on direct examination the existence of the prior

convictions for public intoxication. After the trial court refused to grant Reyes' motion In limine to exclude the evidence, he had no choice but to elicit this information on direct examination in an effort to ameliorate its prejudicial effect. Error was sufficiently preserved by making the motion In limine. See Fed.R.Evid. 103, 28 U.S.C.A. II. [3] Rule 404 [FN3] of the Federal Rules of Evidence embodies the wellsettled principle that evidence of a person's character is usually [FN4] not admissible for the purpose of proving that the person acted in conformity with his character on a particular occasion. Fed.R.Evid. 404, 28 U.S.C.A. See also McCormick on Evidence s 188 (2d ed. 1972). This general rule of exclusion, applicable to both civil and criminal proceedings,[FN5] is based upon the assumption that such evidence is of slight probative value yet very prejudicial.[FN6] FN3. Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes (a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: (1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same; (2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; (3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609. (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 that he acted 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. FN4. Although Rule 404 operates to exclude character evidence generally, it does not operate to exclude such evidence when (a) person's possession of a particular character trait (is) an operative fact

which under the substantive law determines the legal rights and liabilities of the parties. McCormick on Evidence s 187 at 443 (2d ed. 1972). See also 1 Wigmore on Evidence ss 70-81 (3d ed. 1940). Rather than constituting an exception to the rule, the evidence offered for such a purpose is not contemplated by the scope of Rule 404 because such evidence is not offered for the purpose of showing that a person acted in conformity with his character. See Notes of Advisory Committee on Proposed Rules, Fed.R.Evid. 404, 28 U.S.C.A. at p. 108. FN5. The Rule is generally stated as applying to civil as well as criminal cases. See generally McCormick on Evidence s 188 n. 18 (2d ed. 1972); 1 Wigmore on Evidence s 64 (3d ed. 1940). And the drafters of the Federal Rules rejected the attempt to expand the use of character evidence in civil cases. See Notes of Advisory Committee on Proposed Rules, Fed.R.Evid. 404, 28 U.S.C.A. at p. 109. FN6. Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened. California Law Revision Commission, Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence, quoted in Notes of Advisory Committee on Proposed Rules, Fed.R.Evid. 404, 28 U.S.C.A. at p. 109. *794 [4] An analysis of the admissibility of character evidence necessarily begins, then, with an examination of the purposes for which the evidence is proffered. If the evidence is introduced for the purpose of showing that a person acted in accordance with his character on a given occasion, then the evidence is inadmissible unless it falls within one of the exceptions noted in Rule 404. [FN7] FN7. Rule 404 contains several exceptions to the general rule itself. See note 4, Supra. For a general discussion of these exceptions, See 1 Wigmore on Evidence ss 56-63 (3d ed. 1940); 3A Wigmore on Evidence, ss 920-30, 980-87; (Chadbourn rev. 1970); McCormick on Evidence ss 41-44, 190-91, 193-94 (2d ed. 1972). This case does not present us with a situation falling within any of these exceptions. [5] The record in this case makes clear that the railroad intended for Reyes' prior convictions to show that he was intoxicated on the night of the accident. Indeed, that purpose was the only possible one for which the

evidence could be offered. Moreover, the trial judge specifically noted in the motion In limine hearing that evidence of the prior convictions would be relevant to the issue of whether Reyes was intoxicated on the night of the accident. Because the evidence of Reyes' prior convictions was admitted for the sole purpose of showing that he had a character trait of drinking to excess and that he acted in conformity with his character on the night of the accident by becoming intoxicated, we conclude that the prior convictions were inadmissible character evidence under Rule 404. III. [6] The suggestion that the prior convictions constituted evidence of Reyes' habit of excessive drinking is equally unpersuasive. Rule 406 [FN8] allows the introduction of evidence of the habit of a person for the purpose of proving that the person acted in conformity with his habit on a particular occasion. Fed.R.Evid. 406, 28 U.S.C.A. See generally McCormick on Evidence s 195 (2d ed. 1972); 1 Wigmore on Evidence s 92 (3d ed. 1940). Habit evidence is considered to be highly probative and therefore superior to character evidence because the uniformity of one's response to habit is far greater than the consistency with which one's conduct conforms to character or disposition. McCormick on Evidence s 195 at 463 (2d ed. 1972). FN8. Rule 406 Habit; Routine Practice Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. [7] Perhaps the chief difficulty in deciding questions of admissibility under Rule 406 arises in trying to draw the line between inadmissible character evidence and admissible habit evidence. Quite often the line between the two may become blurred: Character and habit are close akin. Character is a generalized description of one's disposition, or one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness. Habit, in modern usage, both lay and psychological, is more specific. It describes one's regular response to a repeated specific situation. If we speak of character for care, we think of the person's tendency to act prudently in all the varying situations of life, in business, family life, in handling automobiles and in walking across the street. A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of

giving the hand-signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semiautomatic. *795 McCormick on Evidence s 195 at 462-63 (2d ed. 1972). Although a precise formula cannot be proposed for determining when the behavior may become so consistent as to rise to the level of habit, adequacy of sampling and uniformity of response are controlling considerations. Notes of Advisory Committee on Proposed Rules, Fed.R.Evid. 406, 28 U.S.C.A. at p. 153. See also Wilson v. Volkswagen of America, 561 F.2d 494 (4th Cir. 1977), Cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 768 (1978). Thus, the probative force of habit evidence [FN9] to prove intoxication on a given occasion depends on the degree of regularity of the practice and its coincidence with the occasion. McCormick on Evidence s 195 n. 16 (2d ed. 1972). FN9. Much evidence relating to intemperance is excluded because of its failure to rise to the level of habit evidence. See Annot., 46 A.L.R.2d 103 (1956). [8] We do not undertake here to prescribe the precise quantum of proof necessary to transform a general disposition for excessive drinking into a habit of intemperance; we simply find that four prior convictions for public intoxication spanning a three and one-half year period are of insufficient regularity to rise to the level of habit evidence. Consequently, we hold the evidence to be inadmissible under Rule 406 as well.[FN10] FN10. Evidence of the prior convictions is obviously inadmissible for the purposes of impeachment under Fed.R.Evid. 609, 28 U.S.C.A. IV. [9] A principle purpose behind the exclusion of character evidence, as we have said, is the prejudicial effect that it can have on the trier of fact. This concern is especially compelling here where the character evidence relates to one of the critical issues in the case, I. e., the contributory negligence of Reyes. Finding the introduction of the prior convictions to be extremely prejudicial, we feel that the error affected the substantial rights of Reyes, thus requiring a new trial. Fed.R.Civ.P. 61, 28 U.S.C.A. See also Bell v. Swift & Co., 283 F.2d 407 (5th Cir. 1960); Atlantic Coast Line Railroad Co. v. Burkett, 192 F.2d 941 (5th Cir. 1951). REVERSED and REMANDED. C.A.Tex., 1979. Reyes v. Missouri Pac. R. Co.

589 F.2d 791, 3 Fed. R. Evid. Serv. 864 END OF DOCUMENT PRIVILEGES 1. MARITAL COMMUNICATION PRIVILEGE
A)

UNITED STATES VS. MONTGOMERY, 384 F.3D 1050, 15 SEPTEMBER 2004 -AKI United States Court of Appeals, Ninth Circuit. UNITED STATES of America, PlaintiffAppellee, v. James MONTGOMERY, DefendantAppellant. United States of America, PlaintiffAppellee, v. Mary O'Connor, DefendantAppellant. Nos. 0330269, 0330275. Argued and Submitted July 13, 2004. Filed Sept. 15, 2004.

Background: Following a jury trial, defendants were convicted in the United States District Court for the District of Oregon, Michael R. Hogan, Chief Judge, of conspiring to commit mail fraud and committing mail fraud. Defendants appealed. Holdings: The Court of Appeals, Goodwin, Circuit Judge, held that: (1) letter written by defendant's wife to defendant was a privileged communication which was excludable by defendant under the marital communications privilege; (2) disconnect in indictment was, at most, a non-fatal variance; (3) evidence was sufficient to sustain conviction for conspiring to commit mail fraud; (4) evidence was sufficient to sustain defendant's conviction for mail fraud; (5) district court's application of the Mandatory Victim's Restitution Act (MVRA) when imposing amount of restitution owed by defendant was plain error; and (6) district court's enhancement of defendant's sentence by seven levels based upon amount of loss was plain error. Ordered accordingly. West Headnotes

[1] Criminal Law 110

1139

110 Criminal Law 110XXIV Review 110XXIV(L) Scope of Review in General 110XXIV(L)13 Review De Novo 110k1139 k. In general. Most Cited Cases An appellate court reviews de novo a district court's construction of a Federal Rule of Evidence. [2] Privileged Communications and Confidentiality 311H 311H Privileged Communications and Confidentiality 311HII Family Privileges 311HII(B) Spousal Privilege 311Hk80 k. Confidential or private communications. Most Cited Cases (Formerly 410k188) 80

character

of

The marital communications privilege, provides that communications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged. [3] Privileged Communications and Confidentiality 311H 311H Privileged Communications and Confidentiality 311HII Family Privileges 311HII(B) Spousal Privilege 311Hk60 k. In general. Most Cited Cases (Formerly 410k188) The marital communications privilege (1) extends to words and acts intended to be a communication; (2) requires a valid marriage; and (3) applies only to confidential communications, i.e., those not made in the presence of, or likely to be overheard by, third parties. [4] Privileged Communications and Confidentiality 311H 90 60

311H Privileged Communications and Confidentiality 311HII Family Privileges 311HII(B) Spousal Privilege 311Hk88 Evidence 311Hk90 k. Presumptions and burden of proof.

Most Cited Cases (Formerly 410k222) For purposes of the marital communications privilege, the government bears the burden of showing that the communication was not intended to be confidential. [5] Privileged Communications and Confidentiality 311H 70(2)

311H Privileged Communications and Confidentiality 311HII Family Privileges 311HII(B) Spousal Privilege 311Hk68 Mode or Form of Communications 311Hk70 Writings and Documents 311Hk70(2) k. Letters and correspondence. Most Cited Cases (Formerly 410k192, 410k191) Privileged Communications and Confidentiality 311H 81

311H Privileged Communications and Confidentiality 311HII Family Privileges 311HII(B) Spousal Privilege 311Hk81 k. Communications through or in presence or hearing of others; communications with third parties. Most Cited Cases (Formerly 410k191) Letter written by defendant's wife to defendant concerning an alleged conspiracy to commit mail fraud between defendant and defendant's sister was a privileged communication which was excludable by defendant under the marital communications privilege; the letter was handwritten and left on the kitchen counter of the couple's home, and it was recovered from the couple's bedroom during the execution of a search warrant. Fed.Rules Evid.Rule 501, 28 U.S.C.A. [6] Privileged Communications and Confidentiality 311H 84

311H Privileged Communications and Confidentiality 311HII Family Privileges 311HII(B) Spousal Privilege 311Hk84 k. Persons entitled to assert privilege. Most Cited Cases (Formerly 410k217) Either spouse may assert the marital communications privilege to

prevent testimony regarding communications between spouses; vesting the privilege in both spouses recognizes that allowing the communicating spouse to disclose one side of a conversation would eviscerate the privilege. [7] Privileged Communications and Confidentiality 311H 73

311H Privileged Communications and Confidentiality 311HII Family Privileges 311HII(B) Spousal Privilege 311Hk73 k. Wrongful acts by both spouses; joint participation. Most Cited Cases (Formerly 410k190) Exception to the marital communications privilege for statements made in furtherance of joint criminal activity did not apply to handwritten letter from defendant's wife to defendant, concerning an alleged conspiracy to commit mail fraud between defendant and defendant's sister, given that defendant's wife had not become a participant in the conspiracy at the time the letter was written and only became a participant in the criminal activity after the letter was written. 18 U.S.C.A. 371. [8] Indictment and Information 210 159(1)

210 Indictment and Information 210XI Amendment 210k158 Indictment 210k159 In General 210k159(1) k. In general. Most Cited Cases An indictment may not be broadened by amendment, either literally or constructively, except by the grand jury. [9] Indictment and Information 210 159(1)

210 Indictment and Information 210XI Amendment 210k158 Indictment 210k159 In General 210k159(1) k. In general. Most Cited Cases An amendment of an indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by the prosecutor or a court after the grand jury has last passed upon them. [10] Indictment and Information 210 171

210 Indictment and Information 210XII Issues, Proof, and Variance 210k170 Variance Between Allegations and Proof 210k171 k. In general. Most Cited Cases A variance from an indictment occurs where the facts presented at trial materially differ from those alleged in the indictment. [11] Postal Service 306 48(8)

306 Postal Service 306III Offenses Against Postal Laws 306k48 Indictment or Information 306k48(8) k. Issues, proof, and variance. Most Cited Cases Disconnect in indictment charging mail fraud defendant with mailing to rental unit owners' statements that knowingly withheld information concerning rental dates and amount of money received from rentals, and charging defendant with having stayed or having allowed others to stay in rental units without notice and payment to the owners was, at most, a nonfatal variance; the omitted information from the owners' statements was relevant to the same charge, namely, mail fraud, and the grand jury indicted defendants for unauthorized stays without notice or payment to the owners. 18 U.S.C.A. 371, 1341. [12] Indictment and Information 210 167

210 Indictment and Information 210XII Issues, Proof, and Variance 210k165 Matters to Be Proved 210k167 k. Surplusage and unnecessary allegations. Most Cited Cases In mail fraud criminal proceedings, stemming from defendant's conduct in the operation of a property management business, language in indictment charging that defendant stayed, or allowed others to stay, in rental units without notice and payment to owners was surplusage, and thus the government was not required to prove that the unauthorized uses of rental units deprived the owners of rent from legitimate renters, as alleged in indictment, given that establishing that the owners were deprived of rental proceeds was not necessary to prove the existence of a scheme or a mailing. 18 U.S.C.A. 371, 1341.

[13] Criminal Law 110

1139

110 Criminal Law 110XXIV Review 110XXIV(L) Scope of Review in General 110XXIV(L)13 Review De Novo 110k1139 k. In general. Most Cited Cases A district court's determination that evidence was within the scope of rule governing other crimes evidence is reviewed de novo. Fed.Rules Evid.Rule 404(b), 28 U.S.C.A. [14] Criminal Law 110 1153.3

110 Criminal Law 110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1153 Reception and Admissibility of Evidence 110k1153.3 k. Relevance. Most Cited Cases (Formerly 110k1153(1)) An appellate court reviews for an abuse of discretion a district court's finding that the evidence is not unfairly prejudicial. Fed.Rules Evid.Rule 403, 28 U.S.C.A. [15] Criminal Law 110 368.83

110 Criminal Law 110XVII Evidence 110XVII(F) Other Misconduct by Accused 110XVII(F)4 Other Misconduct Inseparable from Crime Charged 110k368.83 k. False pretenses and fraud. Most Cited Cases (Formerly 110k369.2(3.1)) In mail fraud criminal proceedings, stemming from defendant's conduct in the operation of a property management business, government's evidence summarizing unreported rentals and lost income to rental unit owners was inextricably intertwined with charged mail fraud conspiracy, and therefore not subject to rule governing admission of other crimes evidence; each unreported rental occurred within the temporal scope of the conspiracy and comprised the conspiracy. 18 U.S.C.A. 371, 1341; Fed.Rules Evid.Rule 404(b), 28 U.S.C.A.

[16] Criminal Law 110

1139

110 Criminal Law 110XXIV Review 110XXIV(L) Scope of Review in General 110XXIV(L)13 Review De Novo 110k1139 k. In general. Most Cited Cases An appellate court reviews de novo a claim of insufficient evidence. [17] Criminal Law 110 1144.13(3)

110 Criminal Law 110XXIV Review 110XXIV(M) Presumptions 110k1144 Facts or Proceedings Not Shown by Record 110k1144.13 Sufficiency of Evidence 110k1144.13(2) Construction of Evidence 110k1144.13(3) k. Construction in favor of government, state, or prosecution. Most Cited Cases Criminal Law 110 1159.2(7)

110 Criminal Law 110XXIV Review 110XXIV(P) Verdicts 110k1159 Conclusiveness of Verdict 110k1159.2 Weight of Evidence in General 110k1159.2(7) k. Reasonable doubt. Most Cited Cases Sufficient evidence supports a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the claim beyond a reasonable doubt. [18] Conspiracy 91 23.1

91 Conspiracy 91II Criminal Responsibility 91II(A) Offenses 91k23 Nature and Elements of Criminal Conspiracy in General 91k23.1 k. In general. Most Cited Cases To prove a conspiracy, the government must establish (1) an agreement

to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime. 18 U.S.C.A. 371. [19] Conspiracy 91 24(1)

91 Conspiracy 91II Criminal Responsibility 91II(A) Offenses 91k23 Nature and Elements of Criminal Conspiracy in General 91k24 Combination or Agreement 91k24(1) k. In general. Most Cited Cases To sustain a conspiracy conviction,an agreement need not be explicit; it is sufficient if the conspirators knew or had reason to know of the scope of the conspiracy and that their own benefits depended on the success of the venture. 18 U.S.C.A. 371. [20] Conspiracy 91 47(1)

91 Conspiracy 91II Criminal Responsibility 91II(B) Prosecution 91k44 Evidence 91k47 Weight and Sufficiency 91k47(1) k. In general. Most Cited Cases After a conspiracy is established, proof of the defendant's connection to the conspiracy must be shown beyond a reasonable doubt, but the connection can be slight. 18 U.S.C.A. 371. [21] Conspiracy 91 47(5)

91 Conspiracy 91II Criminal Responsibility 91II(B) Prosecution 91k44 Evidence 91k47 Weight and Sufficiency 91k47(3) Particular Conspiracies 91k47(5) k. Mail and wire fraud. Most Cited Cases Evidence was sufficient to support finding of an agreement to engage in criminal activity, as required to sustain defendant's conviction for

conspiring to commit mail fraud stemming from defendant's conduct in the operation of a property management business; office staff testified that defendant instructed staff not to record complimentary uses of rental properties in the computer, thereby concealing the activity from the owners, and defendant forwarded complaints from owners to coconspirator, who would then return the call and offer an excuse for the missing rental activity. 18 U.S.C.A. 371, 1341. [22] Conspiracy 91 47(5)

91 Conspiracy 91II Criminal Responsibility 91II(B) Prosecution 91k44 Evidence 91k47 Weight and Sufficiency 91k47(3) Particular Conspiracies 91k47(5) k. Mail and wire fraud. Most Cited Cases Evidence was sufficient to support finding that defendant understood that her use of vacant rental units without paying rent was fraudulent, and that she used the mails to perpetrate the fraudulent activity, as required to sustain defendant's conviction for conspiring to commit mail fraud, stemming from defendant's conduct in the operation of a property management business; on at least two occasions defendant contacted the owner of a unit and paid rent for her stay, but when she occupied other units, while renting out her own residence, defendant did not disclose the use, and defendant directed office staff not to include her uses in the owners' statements. 18 U.S.C.A. 371, 1341. [23] Postal Service 306 35(2)

306 Postal Service 306III Offenses Against Postal Laws 306k35 Use of Mails to Defraud 306k35(2) k. Nature and elements of offense in general. Most Cited Cases To obtain a conviction for mail fraud, the government must prove that the defendant (1) participated in a scheme with the intent to defraud, and (2) the scheme used or caused the use of the mails in furtherance of the scheme. 18 U.S.C.A. 1341. [24] Postal Service 306 49(11)

306 Postal Service 306III Offenses Against Postal Laws 306k49 Evidence 306k49(8) Weight and Sufficiency 306k49(11) k. Use of mails to defraud. Most Cited Cases Evidence was sufficient to support finding that defendant occupied rental units with the intent to defraud the owners of the rent they were due, as required to sustain defendant's conviction for mail fraud, stemming from defendant's conduct in the operation of a property management business; evidence demonstrated that defendant stayed in a rental unit without disclosing the stay on the owner's statement. 18 U.S.C.A. 371, 1341. [25] Postal Service 306 49(11)

306 Postal Service 306III Offenses Against Postal Laws 306k49 Evidence 306k49(8) Weight and Sufficiency 306k49(11) k. Use of mails to defraud. Most Cited Cases Evidence was sufficient to support finding that property management scheme engaged in by defendant used or caused the use of the mails in furtherance of the scheme, as required to sustain defendant's conviction for committing mail fraud, stemming from defendant's conduct in the operation of a property management business; defendant understood that rental unit owners' statements would be mailed in the ordinary course of business, and she took measures to limit the information contained therein because she knew that owners expected to be paid for her stays and the omission of the unauthorized uses from the owners' statements furthered the ongoing scheme by avoiding inquiries from the owners about why certain occupancies generated no rent. 18 U.S.C.A. 1341. [26] Criminal Law 110 1139

110 Criminal Law 110XXIV Review 110XXIV(L) Scope of Review in General 110XXIV(L)13 Review De Novo 110k1139 k. In general. Most Cited Cases An appellate court reviews de novo the legality of a restitution order and the district court's valuation methodology.

[27] Constitutional Law 92

2815

92 Constitutional Law 92XXIII Ex Post Facto Prohibitions 92XXIII(B) Particular Issues and Applications 92k2814 Sentencing and Imprisonment 92k2815 k. In general. Most Cited Cases (Formerly 92k203) Sentencing and Punishment 350H 2110

350H Sentencing and Punishment 350HXI Restitution 350HXI(A) In General 350Hk2104 Constitutional, Statutory, and Regulatory Provisions 350Hk2110 k. Retroactive operation. Most Cited Cases Applying the Mandatory Victim's Restitution Act (MVRA) to crimes committed prior to the MVRA's effective date generally violates the ex post facto clause. U.S.C.A. Const. Art. 1, 9, cl. 3; 18 U.S.C.A. 3663A. [28] Criminal Law 110 1042.3(5)

110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1042.3 Sentencing and Punishment 110k1042.3(5) k. Restitution. Most Cited Cases (Formerly 110k1042) Sentencing and Punishment 350H 2110

350H Sentencing and Punishment 350HXI Restitution 350HXI(A) In General 350Hk2104 Constitutional, Statutory, and Regulatory Provisions 350Hk2110 k. Retroactive operation. Most Cited Cases

(Formerly 110k1042) Sentencing and Punishment 350H 2134

350H Sentencing and Punishment 350HXI Restitution 350HXI(C) Factors Related to Offender 350Hk2133 Offender's Ability to Pay 350Hk2134 k. In general. Most Cited Cases (Formerly 110k1042) District court's application of the Mandatory Victim's Restitution Act (MVRA) when imposing amount of restitution owed by defendant stemming from mail fraud scheme was plain error, affecting defendant's substantial rights; defendant's crimes were completed before the effective date of the MVRA, and defendant had no assets, nor the ability to pay a fine. 18 U.S.C.A. 371, 1341, 3663A. [29] Criminal Law 110 1042.3(3)

110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1042.3 Sentencing and Punishment 110k1042.3(3) k. Right to jury determination. Most Cited Cases (Formerly 110k1042) District court's enhancement of defendant's sentence by seven levels based upon amount of loss was plain error in mail fraud criminal proceedings, where the amount of loss was neither found by the jury nor alleged in indictment. 18 U.S.C.A. 371, 1341. *1053 Mark Bennett Weintraub, Assistant Federal Public Defender, Eugene, OR, for defendant-appellant James Montgomery. Ronald H. Hoevet, Per C. Olson, Hoevet & Boise, Portland, OR, for defendantappellant Mary O'Connor. William E. Fitzgerald, Assistant United States Attorney, Eugene, OR, for the plaintiff-appellee. Appeal from the United States District Court for the District of Oregon;

Michael R. Hogan, Chief District Judge, Presiding. D.C. Nos. CR9960106 HO, CR99601063HO. Before: GOODWIN, FLETCHER, and TALLMAN, Circuit Judges. GOODWIN, Circuit Judge. Defendants James Montgomery and Mary Lou O'Connor were convicted by a jury of conspiring to commit mail fraud and committing mail fraud in violation of 18 U.S.C. 371 and 1341. Montgomery challenges the district court's denial of his claim that the marital privilege excludes evidence of his wife's communications to him. Both defendants also challenge the indictment, the sufficiency of the evidence, the district court's admission of a summary exhibit and their sentences. I. In 1983, Montgomery and his wife, Louise Montgomery (Mrs.Montgomery), formed Sun Village Realty, Inc. (Sun Village),*1054 a real estate and property management business in Sunriver, Oregon. The property management component of Sun Village, Summit Realty, entered into contracts with the owners of vacation houses in Sunriver, many of whom lived elsewhere. In return for a twenty five to thirty percent commission, Sun Village agreed to diligently, and to the best of its abilities, rent the property[,] ... obtain new tenants as vacancies occur, and clean[ ] the property each time a tenant checks out. The contract did not provide for, nor expressly prohibit, use of the vacation houses, or units, by Sun Village, its employees or its guests without notice and compensation to the owner. Reservations were processed at Sun Village's office. Clerks fielded calls and consulted the calendar board that hung in the office to determine which units were available. A reservation would be written on the calendar board and recorded in the computer. A software program generated a monthly statement (owners' statement) that would be mailed to each owner, reporting the rental activity, receipts, charges and fees. Reservations not entered into the computer did not appear on the owner's statement. After a unit had been occupied, a housekeeper would clean the unit, and an R would be written on the calendar board, signifying that the unit was ready for the next tenant. Because the units would be independently cleaned after maintenance had been done, the owner generally incurred a full cleaning charge only if the unit had been occupied. Mrs. Montgomery oversaw until October 1992, when Montgomery, her brother, with to work with O'Connor, Mrs. Sun Village's reservation office from 1989 O'Connor moved to Sunriver to assist legal issues unrelated to this case. Unwilling Montgomery left the office, and O'Connor

assumed responsibility for the owners' statements. O'Connor purchased and lived in a duplex called Goldfinch, which she occasionally rented to customers. She invested about $200,000 in Sun Village. In January 1994, Mrs. Montgomery returned to the office. She noticed very unusual situations with reservations and money. She suspected that O'Connor was diverting money from owners by assigning reservations to units that were no longer managed by Sun Village and by deleting reservations. Mrs. Montgomery discussed the irregularities with Montgomery numerous times, and wrote him a note on a business record that stated, Just another unit where[O'Connor] is hiding Res[ervations]. Frustrated by his inaction, she expressed her concerns in a letter she left for him on the kitchen counter of their residence. She wrote that she would not be part of a dishonest operation, would not prepare owners' statements unless his sister stops stealing, and would not solicit new owners because they will probably be cheated. Mrs. Montgomery subsequently joined the conspiracy, however, and began omitting one night rentals from the owners' statements and creating inaccurate owners' statements. The owners ultimately began to notice the decreased rental activity and unreported uses of their units. One owner became suspicious when she found that the rental activity in the owner's statement did not contain the names of the renters who had signed the guest-book, and that renters discussed a longer occupancy than that reflected in the statement. Another owner, William Wilson, received information from neighbors that his unit had been used. When the owner's statement did not reflect the use, Wilson confronted Montgomery, who apologized and explained that a computer or bookkeeping error had probably occurred. Other owners contacted O'Connor about the declining rental *1055 activity. She referred them to Mrs. Montgomery, who would tell the owners that rentals had been down or that the weather had been bad. Among the unreported occupants were both paying customers and those whom Sun Village authorized to use the units at no cost. The calendar board contained a three-week reservation for Yellow Pine 16 in April 1995 made for Jim M., meaning Montgomery. The occupant sent a check to Sun Village for $1,076, but the owner's statement did not report the rental or the rent received. Although Sun Village later sent a cashier's check and a promissory note for $9,011.40 to the owner of Yellow Pine 16, it was unclear whether the $1,076 in owed rent was included. Montgomery allowed others to use the units at no cost, a practice that Sun Village described with the terms freebies or complimentary uses. He directed office staff not to record the freebies in the computer. O'Connor herself stayed in vacant units when she rented Goldfinch. She did not report her stay to the units' owners, although on two occasions she received permission beforehand and paid

rent. Like Montgomery, she instructed office staff not to enter her use of units into the computer. In October 1995, a state investigator questioned Montgomery about Sun Village's business practices. Montgomery reportedly said that he only took money from the owners who didn't need their money. In March 1996, the Criminal Division of the Internal Revenue Service (IRS) executed a search of Sun Village's business records and the Montgomery residence. Mrs. Montgomery's letter to Montgomery was seized from their bedroom. In October 1999, a grand jury indicted Montgomery, Mrs. Montgomery and O'Connor on one count of conspiracy to commit mail fraud in violation of 18 U.S.C. 371, and nineteen counts of either mail fraud or aiding and abetting mail fraud in violation of 18 U.S.C. 1341 and 1342. The government obtained a superseding indictment in response to O'Connor's motion to dismiss the indictment for failing to allege how the monthly mailings were materially false. O'Connor filed a second motion to dismiss the indictment for failure to allege which rental dates were omitted from the monthly reports, and the government obtained a second superseding indictment. Before trial Mrs. Montgomery agreed to cooperate with the government and to testify against Montgomery and O'Connor. After a five-day trial, the jury convicted both remaining defendants of conspiracy to commit mail fraud, Montgomery of five counts of mail fraud, and O'Connor of two counts of mail fraud. The jury acquitted defendants on the remaining counts. The prosecution dismissed all counts against Mrs. Montgomery. The district court sentenced Montgomery to twenty-four months imprisonment on each count, to run concurrently, and O'Connor to eighteen months imprisonment on each count, also to run concurrently. Both sentences included a seven-level guideline increase due to the district court's determination of the amount of loss. Montgomery's sentence included an enhancement for obstruction of justice because the district court found that he had committed perjury when testifying. The court ordered defendants to pay, jointly and severally, $184,814.70 in restitution to the victims. II. [1] Montgomery contends that the district court erred by not permitting him to claim the marital communications privilege to exclude from trial his wife's correspondence and his wife's testimony about conversations*1056 with him. The government counters that Mrs. Montgomery did not intend the information in the letter to remain confidential, that Mrs. Montgomery controls the privilege, and that the privilege does not apply because Mrs.

Montgomery became an accessory after the fact. We review de novo the district court's construction of a federal rule of evidence. United States v. Angwin, 271 F.3d 786, 798 (9th Cir.2001). A. Marital Privileges Federal Rule of Evidence 501 provides that the privilege of a witness [or] person ... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. The Supreme Court has recognized two privileges that arise from the marital relationship. The first permits a witness to refuse to testify against his or her spouse. See Trammel v. United States, 445 U.S. 40, 53, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). The witness spouse alone holds the privilege and may choose to waive it. Id. Because Mrs. Montgomery decided to testify, the first privilege is not at issue. [2][3][4] The second privilege, called the marital communications privilege, provides that [c]ommunications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged .... Wolfle v. United States, 291 U.S. 7, 14, 54 S.Ct. 279, 78 L.Ed. 617 (1934). The privilege (1) extends to words and acts intended to be a communication; (2) requires a valid marriage; and (3) applies only to confidential communications, i.e., those not made in the presence of, or likely to be overheard by, third parties. United States v. Marashi, 913 F.2d 724, 72930 (9th Cir.1990); see also United States v. White, 974 F.2d 1135, 1138 n. 2 (9th Cir.1992). Recognizing that the privilege obstructs the truth-seeking process, we have construed it narrowly, particularly in criminal proceedings, because of society's strong interest in the administration of justice. Marashi, 913 F.2d at 730. The government bears the burden of showing that the communication was not intended to be confidential. Blau v. United States, 340 U.S. 332, 333, 71 S.Ct. 301, 95 L.Ed. 306 (1951). [5] There is no dispute that the letter Mrs. Montgomery wrote to her husband was a communication or that the communication was made during a valid marriage, so we must decide whether the information in the letter was intended to remain confidential. In Wolfle, the Court stated that wherever a communication, because of its nature or the circumstances under which it was made, was obviously not intended to be confidential, it is not a privileged communication. 291 U.S. at 14, 54 S.Ct. 279. Similarly, in Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954), the Court stated: Although marital communications are presumed to be confidential, that presumption may be overcome by proof of facts showing that they were not intended to be private. The presence of a third party negatives the

presumption of privacy. So too, the intention that the information conveyed be transmitted to a third person. 347 U.S. at 6, 74 S.Ct. 358 (citations omitted). In United States v. McCown, 711 F.2d 1441 (9th Cir.1983), we concluded that a defendant's instruction to his wife to write a check was not privileged. Id. at 1452. The defendant had directed two co-defendants, who lived with the defendant and his wife, to purchase a gun, and he gave them a check written by his wife. Id. at 145253. We found the obvious inference to be that the defendant had not *1057 intended to keep his instruction to his wife hidden or secret from his co-defendants. Id. at 1453. Here, the letter begins, Dear Jimmy, and ends, Love, Louise. Mrs. Montgomery left the letter on the kitchen counter of the couple's home, and it was recovered from the couple's bedroom during the execution of a search warrant. The letter states, If you can't stop [O'Connor] or if we can't stop her together I am going to write to her or talk to her. When asked at trial whether she intended for Montgomery to keep that information to himself, Mrs. Montgomery answered: No, I was hoping he would communicate it to his sister, Mary O'Connor. As in Blau, the nature of the communicationa handwritten letter from a wife to a husband that was left on the kitchen counter of the couple's homeis of the kind likely to be confidential. 340 U.S. at 33334, 71 S.Ct. 301. Unlike in McCown, we cannot draw the obvious inference that Mrs. Montgomery understood her request of Montgomery would be transmitted to O'Connor or that O'Connor would infer that Montgomery was acting at Mrs. Montgomery's direction. That the letter implored Montgomery to communicate the substance of her concerns to O'Connor does not render the letter itself non-confidential. The government has also failed to show that letter's location on the kitchen counter was an indication that it was not intended to be confidential. The fact that the couple's children resided in the house is not sufficient to establish this intention. There is no evidence that the children would likely have seen or read the letter, or that Mrs. Montgomery acted without regard to whether the children would have seen it. We will not cast aside the presumption of confidentiality by speculating that the communication was made in the presence of, or was likely to be seen by, the couple's children. B. Holder of the Privilege We must next decide whether Montgomery could invoke the marital communications privilege to exclude Mrs. Montgomery's communications.

In admitting the evidence, the district court relied on United States v. FigueroaPaz, 468 F.2d 1055 (9th Cir.1972), where we stated: Another privilege protects marital communications. It belongs to the communicating spouse, and likewise may be waived. Id. at 1057. The waiver we referred to, however, was the appellant's failure to object to his wife's testimony as to his communications when it was offered. Id. FigueroaPaz stands for the rule that the marital communications privilege will be waived if an objection is not timely made. Our statement that the communicating spouse alone holds the privilege was non-binding dictum. The identity of the holder of the privilege was not germane to the resolution of the case. Neither the Supreme Court, nor this court, has interpreted the privilege as belonging exclusively to the communicating spouse. In Blau, the Court had no doubt that the recipient of a marital communication could claim his privilege to refuse to reveal the information to authorities. 340 U.S. at 334, 71 S.Ct. 301; see also United States v. Weinberg, 439 F.2d 743, 750 (9th Cir.1971) (As established in Blau, this privilege includes within its protection information obtained by the witness from his or her spouse, providing the information was privately conveyed.). Since FigueroaPaz, and without once endorsing its narrow interpretation of the privilege, we have construed the privilege to bar testimony concerning communications between the spouses. See *1058In re Grand Jury Investigation (Hipes), 603 F.2d 786, 788 (9th Cir.1979) (privilege permits either spouse ... to assert the privilege to bar testimony concerning confidential communications between the spouses during their marriage.); see also United States v. RamosOseguera, 120 F.3d 1028, 1042 (9th Cir.1997), overruled on other grounds by United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir.2000) (privilege bars testimony concerning statements privately communicated between spouses and may be invoked by the testifying or nontestifying spouse); White, 974 F.2d at 113738; Marashi, 913 F.2d at 729; United States v. Bolzer, 556 F.2d 948, 951 (9th Cir.1977). Our sister circuits have also ruled that communications between the spouses are privileged, without vesting the privilege exclusively in the communicating spouse. See, e.g., United States v. Lea, 249 F.3d 632, 641 (7th Cir.2001) ( The privilege, which can be asserted by either spouse, applies only to communications made in confidence between the spouses during a valid marriage.); United States v. Bahe, 128 F.3d 1440, 1442 (10th Cir.1997) ( [E]ither spouse may assert [the privilege] to prevent the other from testifying to confidential communications made during the marriage.); United States v. Hall, 989 F.2d 711, 716 n. 8 (4th Cir.1993); United States v. Porter, 986 F.2d 1014, 1018 (6th Cir.1993) (This privilege is assertable by either spouse.); United States v. Jackson, 939 F.2d 625, 627 (8th Cir.1991); United States v. Wood, 924 F.2d 399, 40102 (1st Cir.1991) ([T]he government cites no case holding that the privilege barring disclosure of

confidential communications between spouses may be waived over the objection of the non-testifying spouse.); United States v. Ammar, 714 F.2d 238, 258 (3d Cir.1983) ([T]he marital communications privilege prevents a testifying spouse from disclosing confidential communications between the spouses.). Although federal courts follow the federal common law regarding privileges in federal criminal proceedings, United States v. Espino, 317 F.3d 788, 795 (8th Cir.2003), in Trammel the Supreme Court found special relevance in state law trends because the laws of marriage and domestic relations are concerns traditionally reserved to the states. 445 U.S. at 49 50, 100 S.Ct. 906. Following the Court's lead by looking to the states, we count thirty-three states plus the District of Columbia that permit the noncommunicating spouse to invoke the privilege outright or on behalf of the communicating spouse.FN1 FN1. The following states and the District of Columbia permit either spouse to invoke the privilege. See Ala. R. Evid. 504; Alaska R. Evid. 505(b); Ariz.Rev.Stat. Ann. 122232, 134062; Ark.Code Ann. 16 41101 (Rule 504); Cal. Evid.Code 980; Del. R. Evid. 504; D.C.Code Ann. 14306(b); Fla. Stat. Ann. 90.504; Haw.Rev.Stat. 6261, Rule 505; Idaho Code 9203(1); 725 Ill. Comp. Stat. Ann. 5/11516; Iowa Code 622.9; Kan. Stat. Ann. 60423(b); La.Code Evid. Ann. art. 504; Md.Code Ann., Cts & Jud. Proc. 9105; Minn.Stat. Ann. 595.02(1)(a); Miss. R. Evid. 504; Mo.Rev.Stat. 546.260; Mont.Code Ann. 261 802; Neb.Rev.Stat. 27505(1); Nev.Rev.Stat. 49.295(1); N.H. R. Evid. 504; N.Y. C.P.L.R. 4502(b); N.D. R. Evid. 504; Ohio Rev.Code Ann. 2317.02(d); Okla. Stat. Ann. tit. 12, 2504; Or.Rev.Stat. 40.255(2); 42 Pa. Cons.Stat. 5914; S.D. Codified Laws 191313; Utah Code Ann. 78248(1)(a); Wash. Rev.Code 5.60.060(1); W. Va.Code 5734; Wis. Stat. 905.05; Curran v. Pasek, 886 P.2d 272, 277 (Wyo.1994). Each of the remaining states either vests the privilege in the communicating spouse or does not have a clear rule. [6] Considering the language in Blau, our decisions since FigueroaPaz, and the decisions of our sister circuitsas well as the practice of the majority of the stateswe hold that either spouse may assert the privilege to prevent testimony regarding *1059 communications between spouses. Vesting the privilege in both spouses recognizes that allowing the communicating spouse to disclose one side of a conversation would eviscerate the privilege. As one treatise has observed, permitting each spouse to testify as to his or her own statements invites attempts to prove circumstantially the statements of one spouse by proof of what the other had said. 2 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence 207 (2d ed.1994).

Here, Mrs. Montgomery's letter was received as proof that she had conveyed her suspicions to Montgomery and that he therefore had notice of O'Connor's culpable activities. The government makes its purpose clear in its opening brief: James Montgomery's criminal intent was proved by his inaction when confronted by his wife about his sister's theft from the clients. The government was able to prove circumstantially that he and Mrs. Montgomery had discussed O'Connor's theft. Accordingly, we conclude that the district court erred in admitting the letter and in allowing the government to inquire at trial about their communications.FN2 FN2. Montgomery also contends that a note written to him by Mrs. Montgomery on a business record was a privileged communication. The parties have focused their arguments on the letter, and the record is unclear about the circumstances under which the note was created or given to Montgomery. In light of our holding, we need not decide whether the note was a privileged communication. C. Exceptions The government's alternative argument, that the letter was not privileged because Mrs. Montgomery was an accessory after the fact, is a non-starter. The government contends that Mrs. Montgomery became an accessory when she returned to the business in January 1994 and participated in the conspiracy until its completion. However, the government does not explain the crime to which Mrs. Montgomery served as an accessory after the fact, or how Mrs. Montgomery could be both a co-conspirator and an accessory after the fact during the conspiracy. According to 18 U.S.C. 3, an accessory after the fact is one who, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender to hinder or prevent his apprehension. See United States v. Graves, 143 F.3d 1185, 1189 (9th Cir.1998) (observing that conspiracy occurs before or simultaneous with the principal offense, while the offense of accessory after the fact occurs as its name suggestsafterwards); see also United States v. Irwin, 149 F.3d 565, 571 (7th Cir.1998) (Accessories after the fact are ones who give aid after the criminal endeavor has ended to keep the one aided from being caught or punished. (emphasis added)). Mrs. Montgomery was indicted on the conspiracy count, which was alleged to have continued until 1996, and each of the substantive counts of mail fraud, all of which occurred after January 1, 1995. Because we can find no completed crime to which Mrs. Montgomery served as an accessory after the fact, and the government suggests none, we need not decide whether the exception would permit admission of her testimony.

The government concedes that the partnership in crime exception does not apply because Mrs. Montgomery's statements were not in furtherance of any criminal activity. Although we are inclined to agree with this rationale, a more fundamental element is wanting. Here, Mrs. Montgomery's communications encouraged Montgomery to take action to end O'Connor's stealing. According to the government, Mrs. Montgomery joined the conspiracy*1060 only after those efforts proved fruitless. [7] In Marashi, we held that the marital communications privilege does not apply to statements made in furtherance of joint criminal activity. 913 F.2d at 731. Because Mrs. Montgomery had not become a participant at the time of her communications, no joint criminal activity had been undertaken. Accordingly, the exception does not apply. The majority of our sister circuits agree that communications made before a spouse begins to participate in the criminal activity are privileged. Compare United States v. Westmoreland, 312 F.3d 302, 308 (7th Cir.2002); United States v. Bey, 188 F.3d 1, 6 (1st Cir.1999); United States v. Evans, 966 F.2d 398, 401 (8th Cir.1992); United States v. Estes, 793 F.2d 465, 468 (2d Cir.1986); United States v. Mendoza, 574 F.2d 1373, 1381 (5th Cir.1978); with United States v. Neal, 743 F.2d 1441, 1447 (10th Cir.1984).FN3 FN3. Even were we to conclude that Mrs. Montgomery could be classified as an accessory after the fact, we would not find that exception applicable for the same reasonMrs. Montgomery's statements were made prior to her participation. In sum, the district court erred in admitting Mrs. Montgomery's letter and her testimony recounting her conversations with Montgomery. Because the government conceded at oral argument that any error was prejudicial, we reverse Montgomery's convictions. III. O'Connor challenges her conviction on three grounds: (A) that the government's case-in-chief at trial constituted a constructive amendment of, or fatal variance from, the indictment; (B) that the district court erred in admitting the government's summary exhibit; and (C) that the evidence was insufficient to support her convictions. A. Constructive amendment of, or fatal variance from, the indictment [8][9][10] O'Connor argues that the government's evidence showed that monthly reports incorrectly reported the number of uses, rather than incorrectly reporting the rental activity and income as alleged in the indictment. She also contends that the government strayed from the indictment by failing to show that the owners were deprived of income by unauthorized uses. An indictment may not be broadened by amendment,

either literally or constructively, except by the grand jury. United States v. Adamson, 291 F.3d 606, 614 (9th Cir.2002). An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by the prosecutor or a court after the grand jury has last passed upon them. Id. (quoting United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir.1984)). On the other hand, a variance occurs where the facts presented at trial materially differ from those alleged in the indictment. Id. Although the line between the two can be difficult to draw, the distinction is critical: a constructive amendment requires reversal, whereas a variance requires reversal only if it affects the defendant's substantial rights. Id. at 615. At trial the government sought to prove that defendants fraudulently used the owners' statements to conceal the occupancies that did not generate rent. Only paragraph twelve of the indictment discussed how the mail was used. It charged defendants with mailing owners' statements that knowingly withheld information such as rental dates, number of nights units were rented, total amount of money received from such rentals and net rents due the owners. Before trial the district court *1061 restricted the government to proving these specific inaccuracies in the statements. Paragraph fourteen of the indictment, on the other hand, charged defendants with stay[ing] or allow [ing] others to stay in units without notice and payment to owners. However, failing to provide notice does not constitute mail fraud unless it can be linked to the mails, which, as noted, paragraph twelve does not do. The government acknowledged the distinction in its response to defendants' motion for acquittal: [I]t was entirely reasonable for the jury to conclude that, with regard to freebies, the monthly statements were technically accurate as to rentals, but were intended to create the false impression in the minds of the owners that their property had not otherwise been used. [11] We conclude that the disconnect between paragraphs twelve and fourteen of the indictment constituted at most a non-fatal variance. The omitted information from the owners' statements was relevant to the same chargemail fraudand the grand jury indicted defendants for unauthorized stays without notice or payment to the owners. See Adamson, 291 F.3d at 616 (finding a variance, rather than a constructive amendment, where only the content of the misrepresentation differed). There is little danger of double jeopardy because defendants were charged with their unauthorized uses of the units. Defendants were not caught off-guard; they examined the owners about whether the contract obligated defendants to disclose their use of the units. Cf. Adamson, 291 F.3d at 616. [12] We also conclude that the government was not required to prove that the unauthorized uses deprived the owners of rent from legitimate

renters, as alleged in paragraph fourteen of the indictment. Establishing that the owners were deprived of rental proceeds because legitimate renters were excluded was not necessary to prove the existence of a fraudulent scheme or a mailing. Thus, the language was surplusage because it did not go to an element of the offense. See United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir.1986) ( Insofar as the language of an indictment goes beyond alleging elements of the crime, it is mere surplusage that need not be proved.). B. Government's summary exhibit O'Connor argues that the district court should have excluded the government's exhibit summarizing the unreported rentals as irrelevant, unreliable, and prejudicial under Federal Rules of Evidence 402, 403 and 404(b). [13][14] We review de novo whether evidence falls within the scope of Rule 404(b). United States v. Williams, 291 F.3d 1180, 1189 (9th Cir.2002), and we review for an abuse of discretion the district court's finding that the evidence is not unfairly prejudicial. United States v. Verduzco, 373 F.3d 1022, 102930 (9th Cir.2004). In United States v. Williams, 989 F.2d 1061 (9th Cir.1993), we stated that [e]vidence should not be considered other crimes' evidence when the evidence concerning the other act and the evidence concerning the crime charged are inextricably intertwined. Id. at 1070 (internal quotation marks, alteration, and citation omitted). We explained that[t]he policies underlying rule 404(b) are inapplicable when offenses committed as part of a single criminal episode become other acts simply because the defendant is indicted for less than all of his actions. Id. (internal quotation marks and citation omitted). Likewise, in United States v. Lillard, 354 F.3d 850 (9th Cir.2003), we applied Williams in concluding that the defendant's theft of cocaine from a shipment, which provided the basis of the conspiracy, *1062 was inextricably intertwined with the conspiracy charge and therefore admissible without regard to Rule 404(b). 354 F.3d at 854; see also United States v. VizcarraMartinez, 66 F.3d 1006, 1012 (9th Cir.1995) (Thus, when it is clear that particular acts of the defendant are part of, and thus inextricably intertwined with, a single criminal transaction, we have generally held that the admission of evidence regarding those acts does not violate Rule 404(b).). [15] The government's exhibit, entitled Summary of Rentals Not Reported to Owners; All Years 199319941995, listed 1,006 discrepancies between the owners' statements and the cleaning records or reservation calendars, 2,154 rental-nights that had not been reported, and $264,021 in lost income to the owners. An IRS agent testified that the exhibit was

created by determining whether a stay had occurred without notice and calculating the amount of income that would have been generated. We conclude that each action was inextricably intertwined with the conspiracy, and therefore not subject to Rule 404(b), because each occurred within the temporal scope of the conspiracy and comprised the conspiracy. See Lillard, 354 F.3d at 854; Williams, 989 F.2d at 1070; see also United States v. Lanas, 324 F.3d 894, 901 (7th Cir.2003). The district court did not abuse its discretion in finding the evidence to be relevant and not unfairly prejudicial. The exhibit was relevant because it outlined the government's theory of the scope of the conspiracy based on the seized records. No unfair prejudice resulted, both because the district court gave a limiting instruction and because defendants had notice of the exhibit and an opportunity to cross-examine the agent about her assumptions. Cf. United States v. DeGeorge, No. 0250365, *25 (9th Cir. Aug. 3, 2004) (concluding no abuse of discretion in admitting evidence that was inextricably intertwined with the charges). C. Sufficiency of the evidence O'Connor argues that the evidence was insufficient to support her convictions because her conduct did not deprive the owners of income, the mailing element was not satisfied, and the government failed to prove that the conspiracy existed within the statute of limitations. [16][17] We review de novo a claim of insufficient evidence. United States v. Odom, 329 F.3d 1032, 1034 (9th Cir.2003). Sufficient evidence supports a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the claim beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). [18][19][20] To prove a conspiracy under 18 U.S.C. 371, the government must establish (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime. United States v. Johnson, 297 F.3d 845, 868 (9th Cir.2002). The agreement need not be explicit; it is sufficient if the conspirators knew or had reason to know of the scope of the conspiracy and that their own benefits depended on the success of the venture. United States v. Romero, 282 F.3d 683, 687 (9th Cir.2002). After a conspiracy is established, proof of the defendant's connection to the conspiracy must be shown beyond a reasonable doubt, but the connection can be slight. Johnson, 297 F.3d at 868. [21] First, there was sufficient evidence of an agreement to engage in criminal activity. Office staff testified that O'Connor and Montgomery

instructed them not to record complimentary uses *1063 in the computer, thereby concealing the activity from the owners. O'Connor forwarded complaints from owners to Mrs. Montgomery, who would then return the call and offer an excuse for the missing rental activity. Finally, Mrs. Montgomery omitted one-night rentals and Montgomery's and O'Connor's unauthorized uses from the owners' statements. A reasonable jury could have concluded that all three defendants worked in concert to conceal the unauthorized uses from the owners by mailing false owners' statements, and by assuring the owners that nothing was amiss with the rental program. Second, an overt act occurred after the statute of limitations began to run in October 1994. Overt act nine was alleged to have occurred in January 1995, and overt act ten was alleged to have occurred in February 1995. O'Connor was convicted of the two substantive counts that paralleled these overt acts. That the indictment included overt acts performed outside the statute of limitations does not compel reversal; the district court instructed the jury that it must find an overt act that occurred after October 1994. See United States v. Fuchs, 218 F.3d 957, 961 (9th Cir.2000). [22] Finally, a reasonable jury could have found that O'Connor understood that her use of vacant units without paying rent was fraudulent, and that she used the mails to perpetrate the fraudulent activity. On at least two occasions she contacted the owner of a unit and paid rent for her stay. But when she occupied Tennis Village 42 and Tennis Village 26 while renting out her own residence, the owners' statements did not disclose the use. As noted, the jury also heard evidence that O'Connor directed office staff not to include her uses in the owners' statements. A reasonable jury could have concluded that O'Connor instructed the office personnel not to include her occupancies in order to conceal her occupancies and thereby avoid her obligation to pay rent to the owners. [23] To obtain a conviction for mail fraud under 18 U.S.C. 1341, the government must prove that the defendant (1) participated in a scheme with the intent to defraud, and (2) the scheme used or caused the use of the mails in furtherance of the scheme. Johnson, 297 F.3d at 870. The mailing element is satisfied if the government can show that the defendant knew or could reasonably foresee that the mail would be used in the ordinary course of business. Pereira, 347 U.S. at 89, 74 S.Ct. 358; see also United States v. Serang, 156 F.3d 910, 914 (9th Cir.1998). In general, to be in furtherance of a scheme, the charged mailing or wire transmission need not be an essential element of the scheme, just a step in the plot. United States v. Shipsey, 363 F.3d 962, 971 (9th Cir.2004) (internal quotation marks and citation omitted). [24] Regarding count three, Mrs. Montgomery testified that O'Connor stayed in Tennis Village 42 from January 19 until January 22, 1995, and

the calendar board showed her initials adjacent to those days. An R was listed for the unit on January 25, indicating that the unit had been cleaned after being occupied, and a housekeeper's record showed a full charge. The owner's statement did not disclose O'Connor's stay. Regarding count five, the reservation calendar showed O'Connor's initials next to Tennis Village 26 from February 8 to February 15, 1995, and an R for February 16. A housekeeper testified that Tennis Village 26 had received a full cleaning, and the owner's statement did not list O'Connor's use of the unit. A reasonable jury could have concluded that O'Connor occupied the units with the intent to defraud the owners of the rent they were due. *1064 [25] A reasonable jury could also have found beyond a reasonable doubt that the mailing element was satisfied. Viewing the evidence in the light most favorable to the prosecution, O'Connor understood that owners' statements would be mailed in the ordinary course of business, and she took measures to limit the information contained therein because she knew that owners expected to be paid for her stays. Because the success of [defendants'] venture depended upon [their] continued harmonious relations with, and good reputation among the [owners], Schmuck v. United States, 489 U.S. 705, 71112, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989), omitting the unauthorized uses from the owners' statements furthered the ongoing scheme by avoiding inquiries from the owners about why certain occupancies generated no rent. Thus, we affirm O'Connor's convictions for conspiring to commit and committing mail fraud. IV. O'Connor contends that the district court erred in calculating the loss and by imposing a greater amount of restitution than the amount of loss. She incorporates by reference Montgomery's argument that applying the Mandatory Victim's Restitution Act of 1996 (MVRA) was improper because the crimes were completed before its enactment. [26] We review de novo the legality of a restitution order and the district court's valuation methodology. United States v. Doe, 374 F.3d 851, 854 (9th Cir.2004). We review for clear error the court's underlying factual findings. Id. [27] Applying the MVRA to crimes committed prior to the MVRA's effective date of April 24, 1996 generally violates the ex post facto clause. United States v. Grice, 319 F.3d 1174, 1177 (9th Cir.2003). A reason is that [r]estitution under the [Victim and Witness Protection Act] is discretionary, and the district court must consider a defendant's resources when deciding if restitution is appropriate. See United States v. De La Fuente, 353 F.3d

766, 769 (9th Cir.2003) (citing 18 U.S.C. 3663(a)(1)(A), (B)). The conspiracy here ended on March 19, 1996. The presentence report (PSR) applied the MVRA, stating that full restitution was required by the MVRA without regard to a defendant's ability to pay. The district court adopted those paragraphs of the PSR. Because the court did not consider O'Connor's ability to pay the restitution order, as it was required to do before enactment of the MVRA the order was defective. [28] No timely objection was made, so we must decide whether the error was plain. According to the PSR, O'Connor has no assets, nor the ability to pay a fine. Because the amount of restitution was discretionary, and because O'Connor was insolvent, the error affected O'Connor's substantial rights and was therefore plain. See United States v. Edwards, 162 F.3d 87, 92 n. 7 (3d Cir.1998) (finding plain error where MVRA applied retroactively). We vacate the district court's restitution order and remand for further proceedings. FN4 FN4. On remand the district court shall also determine, in accordance with United States v. Riley, 335 F.3d 919, 928 (9th Cir.2003), the scope of the criminal activity that O'Connor agreed to undertake. V. [29] Before oral argument, O'Connor filed a motion to allow supplemental briefing on the effect of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (June 24, 2004). She argued that the jury's verdict permitted a maximum sentence of six months, but the district court *1065 based its eighteen-month sentence upon its determination that the amount of loss warranted a seven-level increase in her sentence. After this appeal was submitted, we decided United States v. Ameline, 376 F.3d 967 (9th Cir.2004), which allows us to consider a Blakely challenge raised after briefing. Id.; see also United States v. Castro, No. 0350444, *3 (9th Cir. Aug. 27, 2004). Because the district court enhanced O'Connor's sentence seven levels on the basis on an amount of loss that was neither found by the jury nor alleged in the indictment, there is plain error. See Ameline, 376 F.3d at 980. Given that the district court must recalculate O'Connor's restitution order, we vacate O'Connor's sentence now and remand for further proceedings, rather than await further briefing in this developing area of sentencing law. VI. Montgomery's convictions are REVERSED, and his case is REMANDED for a new trial. O'Connor's convictions are AFFIRMED, but the restitution order and her sentence are VACATED and REMANDED.

C.A.9 (Or.),2004. U.S. v. Montgomery 384 F.3d 1050, 65 Fed. R. Evid. Serv. 415, 04 Cal. Daily Op. Serv. 8478, 2004 Daily Journal D.A.R. 11,585 END OF DOCUMENT

B)

UNITED STATES VS. LUTWAK, 344 U.S. 604, 73 S. CT. 481, 16 MARCH 1953 -IMMAN Supreme Court of the United States LUTWAK et al. v. UNITED STATES. No. 66. Argued Dec. 8 and 9, 1952. Decided Feb. 9, 1953. Rehearing Denied March 16, 1953. See 345 U.S. 919, 73 S.Ct. 726.

The defendants were convicted in the United States District Court for the Northern District of Illinois, Eastern Division, John P. Barnes, J., for conspiring to defraud United States and to commit offenses against United States by illegally obtaining entry of aliens as spouses of veterans. The defendants appealed. The United States Court of Appeals for the Seventh Circuit, Lindley, Circuit Judge, 195 F.2d 748, affirmed, and the defendants brought certiorari. The Supreme Court, Mr. Justice Minton, held that the admission of declaration, which was made after conspiracy ended, against all of the alleged conspirators even though not present when declaration was made was error, but the error was harmless, where record clearly disclosed guilt of the parties and the admission could not have possibly influenced the jury to reach an improper verdict. Affirmed. Mr. Justice Jackson, Mr. Justice Black and Mr. Justice Frankfurter, dissented. West Headnotes [1] Conspiracy 91 28(3)

91 Conspiracy 91II Criminal Responsibility 91II(A) Offenses 91k28 Conspiracy to Commit Crime 91k28(3) k. Particular Crimes. Most Cited Cases (Formerly 91k28) Conspiracy 91 33(2.1)

91 Conspiracy 91II Criminal Responsibility 91II(A) Offenses 91k33 Conspiracy to Defraud Government 91k33(2) Particular Offenses and Acts 91k33(2.1) k. In General. Most Cited Cases (Formerly 91k33(2)) Where aliens and veterans did not understand at the time of their marriage ceremonies that they were undertaking to establish a life together and assume certain duties and obligations and their purpose was to gain admission of aliens to United States under the War Brides Act, validity of marriages was immaterial in determining whether defendants conspired to defraud United States and to commit offenses against United States by illegally obtaining entry of aliens as spouses of veterans. Act Dec. 28, 1945, 1, 59 Stat. 659; 8 U.S.C.A. 180a; 18 U.S.C.A. 371, 1546. [2] Aliens, Immigration, and Citizenship 24 177

24 Aliens, Immigration, and Citizenship 24IV Admission and Visas in General 24IV(C) Immigrant Visas 24k175 Allocation and Preferences 24k177 k. Family Sponsored Preferences. Most Cited Cases (Formerly 24k53) By directing in the War Brides Act that alien spouses of citizen war veterans should be admitted into United States, Congress intended to make it possible for veterans who had married aliens to have their families join them in United States without the long delay involved in qualifying under the proper immigration quota, and Congress did not intend to provide aliens with an easy means of circumventing the quota system by fake marriages in which neither of the parties ever intended to enter into the marital relationship. Act Dec. 28, 1945, 1, 59 Stat. 659.

[3] Aliens, Immigration, and Citizenship 24

177

24 Aliens, Immigration, and Citizenship 24IV Admission and Visas in General 24IV(C) Immigrant Visas 24k175 Allocation and Preferences 24k177 k. Family Sponsored Preferences. Most Cited Cases (Formerly 24k53) Congress, in directing in the War Brides Act, that alien spouses of citizen war veterans should be admitted into United States had in mind the common understanding of marriage that the two parties have undertaken to establish a life together and assume certain duties and obligations. Act Dec. 28, 1945, 1, 59 Stat. 659. [4] Witnesses 410 52(7)

410 Witnesses 410II Competency 410II(A) Capacity and Qualifications in General 410k51 Husband and Wife 410k52 Incompetency for or Against Each Other in General 410k52(7) k. Offenses and Criminal Prosecutions. Most Cited Cases The common law rule that the wife could testify neither for nor against her husband in a criminal case has been relaxed so as to permit the wife to testify in favor of the husband. [5] Witnesses 410 52(7)

410 Witnesses 410II Competency 410II(A) Capacity and Qualifications in General 410k51 Husband and Wife 410k52 Incompetency for or Against Each Other in General 410k52(7) k. Offenses and Criminal Prosecutions. Most Cited Cases Where Congress has enacted no statute governing admissibility of evidence and competency and privileges of witnesses and has specifically

authorized the Supreme Court to prescribe the rules of criminal procedure, but the rules did not specifically answer the problem presented, it was open to Supreme Court to say whether the common law rule disqualifying one spouse from testifying in criminal cases against the other spouse should be abrogated. Fed.Rules Crim.Proc. rule 26, 18 U.S.C.A. [6] Witnesses 410 63

410 Witnesses 410II Competency 410II(A) Capacity and Qualifications in General 410k51 Husband and Wife 410k63 k. Effect of Invalidity of Marriage. Most Cited Cases When the good faith of the marital relation is pertinent and it is made to appear to the trial court that the relationship was entered into with no intention of the parties to live together as husband and wife but only for the purpose of using the marriage ceremony in a scheme to defraud, the ostensible spouses are competent to testify against each other in criminal cases. Fed.Rules Crim.Proc. rule 26, 18 U.S.C.A. [7] Witnesses 410 52(7)

410 Witnesses 410II Competency 410II(A) Capacity and Qualifications in General 410k51 Husband and Wife 410k52 Incompetency for or Against Each Other in General 410k52(7) k. Offenses and Criminal Prosecutions. Most Cited Cases The reason for common law rule disqualifying one spouse from testifying in criminal cases against the other spouse was to protect the sanctity and tranquility of the marital relationship. [8] Common Law 85 14

85 Common Law 85k14 k. Application and Operation. Most Cited Cases The common law is not immutable but flexible, and by its own principles adapts itself to varying conditions.

[9] Witnesses 410

63

410 Witnesses 410II Competency 410II(A) Capacity and Qualifications in General 410k51 Husband and Wife 410k63 k. Effect of Invalidity of Marriage. Most Cited Cases Where marriage ceremonies were sham, phony, empty and were undertaken to gain admission of aliens to United States under War Brides Act, the common law rule prohibiting antispousal testimony was inapplicable, and the ostensible wives were competent to testify against their so called husbands in prosecution for conspiracy to defraud United States and to commit offenses against United States by illegally obtaining entry of aliens as spouses of veterans. Act Dec. 28, 1945, 1, 59 Stat. 659; 8 U.S.C.A. 1325; 18 U.S.C.A. 371, 1546; Fed.Rules Crim.Proc. rule 26, 18 U.S.C.A. [10] Criminal Law 110 422(1)

110 Criminal Law 110XVII Evidence 110XVII(O) Acts and Declarations of Conspirators Codefendants 110k422 Grounds of Admissibility in General 110k422(1) k. In General. Most Cited Cases

and

A conspiracy does not always imply an agreement of the conspirators to collaborate to conceal the conspiracy, as respects admissibility of acts and declarations of the conspirators. 18 U.S.C.A. 371. [11] Criminal Law 110 424(1)

110 Criminal Law 110XVII Evidence 110XVII(O) Acts and Declarations of Conspirators Codefendants 110k424 After Accomplishment of Object 110k424(1) k. In General. Most Cited Cases

and

In absence of any evidence establishing as a part of the conspiracy that conspirators agreed to conceal conspiracy by doing what was necessary and expedient to prevent its disclosure, conspiracy to defraud United States and to commit offenses against United States by illegally obtaining entry of

aliens as spouses of veterans ended on the date that the last of the aliens was admitted to the United States, as respects admissibility of acts and declarations of conspirators. Act Dec. 28, 1945, 1, 59 Stat. 659; 8 U.S.C.A. 180a; 18 U.S.C.A. 371, 1546. [12] Criminal Law 110 424(1)

110 Criminal Law 110XVII Evidence 110XVII(O) Acts and Declarations of Conspirators Codefendants 110k424 After Accomplishment of Object 110k424(1) k. In General. Most Cited Cases

and

Where essential fact of conspiracy to defraud United States and to commit offenses against United States by illegally obtaining entry of aliens as spouses of veterans was existence of phony marriage ceremonies entered into for sole purpose of deceiving immigration authorities and perpetrating fraud on the United States, acts which took place after conspiracy ended and which were relevant to show spuriousness of marriages and intent of parties in going through the ceremonies were competent. Act Dec. 28, 1945, 1, 59 Stat. 659; 8 U.S.C.A. 180a; 18 U.S.C.A. 371, 1546. [13] Criminal Law 110 424(1)

110 Criminal Law 110XVII Evidence 110XVII(O) Acts and Declarations of Conspirators Codefendants 110k424 After Accomplishment of Object 110k424(1) k. In General. Most Cited Cases

and

In prosecution for conspiracy to defraud United States and to commit offenses against United States by illegally obtaining entry of aliens as spouses of veterans who entered into foreign marriage ceremonies with aliens, evidence that aliens and veterans lived apart after coming to United States, that money was paid to veterans for their part in the so-called marriages, and that suits were started to terminate whatever legal relationship there might have been upon the record, was competent to show spuriousness of marriages and intent of parties thereto, notwithstanding that such matters took place after conspiracy ended. Act Dec. 28, 1945, 1, 59 Stat. 659; 8 U.S.C.A. 180a; 18 U.S.C.A. 371, 1546. [14] Criminal Law 110 423(2)

110 Criminal Law 110XVII Evidence 110XVII(O) Acts and Declarations of Conspirators and Codefendants 110k423 Furtherance or Execution of Common Purpose 110k423(2) k. Absence of Coconspirators. Most Cited Cases Criminal Law 110 424(1)

110 Criminal Law 110XVII Evidence 110XVII(O) Acts and Declarations of Conspirators Codefendants 110k424 After Accomplishment of Object 110k424(1) k. In General. Most Cited Cases

and

Declarations of one conspirator may be used against the other conspirator not present on the theory that the declarant is the agent of the other, and admissions of one are admissible against both under a standard exception to the hearsay rule applicable to the statements of a party, but such declaration can be used against the co-conspirator only when made in furtherance of the conspiracy, and there can be no furtherance of a conspiracy that has ended, and therefore, the declarations of a conspirator do not bind the co-conspirator if made after the conspiracy had ended. 18 U.S.C.A. 371. [15] Criminal Law 110 424(1)

110 Criminal Law 110XVII Evidence 110XVII(O) Acts and Declarations of Conspirators Codefendants 110k424 After Accomplishment of Object 110k424(1) k. In General. Most Cited Cases

and

A conspirator's acts which are relevant to prove the conspiracy are admissible even though such acts may have occurred after the conspiracy has ended. 18 U.S.C.A. 371. [16] Criminal Law 110 110 Criminal Law 110XVII Evidence 110XVII(O) 422(9)

Acts

and

Declarations

of

Conspirators

and

Codefendants 110k422 Grounds of Admissibility in General 110k422(9) k. Admissibility as Against Declarant in Joint Prosecution. Most Cited Cases Criminal Law 110 673(4)

110 Criminal Law 110XX Trial 110XX(C) Reception of Evidence 110k673 Effect of Admission 110k673(4) k. Limiting Effect of Evidence Competent Only as Against One of Several Defendants. Most Cited Cases Relevant declarations or admissions of a conspirator made in the absence of the co-conspirator, and not in furtherance of the conspiracy, may be admissible in a trial for conspiracy as against the declarant to prove the declarant's participation therein, and the trial court must be careful at the time of the admission and by its instruction to make it clear that the evidence is limited as against the declarant only. 18 U.S.C.A. 371. [17] Criminal Law 110 673(4)

110 Criminal Law 110XX Trial 110XX(C) Reception of Evidence 110k673 Effect of Admission 110k673(4) k. Limiting Effect of Evidence Competent Only as Against One of Several Defendants. Most Cited Cases In conspiracy prosecution, declarations that are admissible as against all of the alleged conspirators and declarations that are admissible only as to the declarant and those present who by their silence or other conduct assent to the truth of the declaration must be carefully and clearly limited by the court at the time of their admission and the jury must be instructed as to such declarations and the limitations put upon them. 18 U.S.C.A. 371. [18] Criminal Law 110 633.10

110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k633.10 k. Requisites of Fair Trial. Most Cited Cases (Formerly 110k633(1))

A defendant is entitled to a fair trial but not to a perfect one. [19] Criminal Law 110 424(3)

110 Criminal Law 110XVII Evidence 110XVII(O) Acts and Declarations of Conspirators and Codefendants 110k424 After Accomplishment of Object 110k424(3) k. In Absence of Coconspirator or Codefendant. Most Cited Cases Criminal Law 110 1169.7

110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110k1169 Admission of Evidence 110k1169.7 k. Acts, Declarations, and Admissions of Accomplices and Codefendants. Most Cited Cases (Formerly 110k1169(7)) In prosecution for conspiracy to defraud United States and to commit offenses against United States by illegally obtaining entry of aliens as spouses of veterans, admission of declaration, which was made after conspiracy ended, against all the alleged conspirators even though not present when declaration was made was error, but the error was harmless, where record clearly disclosed guilt of parties and the admission could not have possibly influenced the jury to reach an improper verdict. Act Dec. 28, 1945, 1, 59 Stat. 659; 8 U.S.C.A. 180a; 18 U.S.C.A. 371, 1546; Fed.Rules Crim.Proc. rule 52(a), 18 U.S.C.A. **483 *605 Mr. A. Bradley Eben, Chicago, Ill., for petitioners. Mr. Marvin E. Frankel, Washington, D.C., for respondent. Mr. Justice MINTON delivered the opinion of the Court. The petitioners, Marcel Max Lutwak, Munio Knoll, and Regina Treitler, together with Leopold Knoll and Grace Klemtner, were indicted on six counts in the Northern District of Illinois, Eastern Division. The first count charged conspiracy to commit substantive offenses set forth in the remaining five counts and conspiracy to defraud the United States of and concerning its governmental function and right of administering the immigration laws and the Immigration and Naturalization Service, by

obtaining the illegal entry into this country of three aliens as spouses of honorably discharged veterans. Grace Klemtner was dismissed from the indictment before the trial because her constitutional rights had been violated before the grand jury. At the conclusion of all the evidence, the District Court dismissed the substantive counts against all of the defendants because venue had not been shown in the Northern District of Illinois. The jury acquitted Leopold Knoll and convicted the three petitioners on the conspiracy count. The Court of Appeals affirmed, 7 Cir., 195 F.2d 748, and we granted certiorari, 344 U.S. 809, 73 S.Ct. 13. We are concerned here only with the conviction of the petitioners of the alleged conspiracy. Petitioner Regina Treitler is the sister of Munio Knoll and Leopold Knoll, *606 and the petitioner Lutwak is their nephew. Munio Knoll had been married in Poland in 1932 to one Maria Knoll. There is some evidence that Munio and Maria were divorced in 1942, but the existence and validity of this divorce are not determinable from the record. At the time of the inception of the conspiracy, it the summer of 1947, Munio, Maria and Leopold were refugees from Poland, living in Paris, France, while Regina Treitler and Lutwak lived in Chicago, Illinois. Petitioner Treitler desired to get her brothers into the United States. **484 Alien spouses of honorably discharged veterans of World War II were permitted to enter this country under the provisions of the so-called War Brides Act which provides in pertinent part: * * * notwithstanding any of the several clauses of section 3 of the Act of February 5, 1917, excluding physically and mentally defective aliens, and notwithstanding the documentary requirements of any of the immigration laws or regulations, Executive orders, or Presidential proclamations issued thereunder, alien spouses or alien children of United States citizens serving in, or having an honorable discharge certificate from the armed forces of the United States during the Second World War shall, if otherwise admissible under the immigration laws and if application for admission is made within three years of the effective date of this Act, be admitted to the United States * * *. 59 Stat. 659, 8 U.S.C. s 232. The first count of the indictment charged that the petitioners conspired to have three honorably discharged veterans journey to Paris and go through marriage ceremonies with Munio, Leopold and Maria. The brothers *607 and Maria would then accompany their new spouses to the United States and secure entry into this country by representing themselves as alien spouses of World War II veterans. It was further a part of the plan that the marriages were to be in form only, solely for the purpose of enabling Munio, Leopold and Maria to enter the United States. The parties to the marriages were not to live together as husband and wife, and thereafter

would take whatever legal steps were necessary to sever the legal ties. It was finally alleged that the petitioners conspired to conceal these acts in order to prevent disclosure of the conspiracy to the immigration authorities. The conspiracy to commit substantive offenses consisted in that part of the plan by which each of the aliens was to make a false statement to the immigration authorities by representing in his application for admission that he was married to his purported spouse, and to conceal from the immigration authorities that he had gone through a marriage ceremony solely for the purpose of gaining entry into this country with the understanding that he and his purported spouse would not live together as man and wife, but would sever the formal bonds of the ostensible marriage when the marriage had served its fraudulent purpose. The statute defining conspiracy reads as follows: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both. 18 U.S.C. (1946 ed.) s 88, now 18 U.S.C. (Supp. V) s 371, 18 U.S.C.A. s 371. *608 The sections of the statute which it was alleged the petitioners conspired to violate provide in pertinent part: Any alien who hereafter enters the United States at any time or place other than as designated by immigration officials or eludes examination or inspection by immigration officials, or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall be guilty of a misdemeanor and, upon conviction, shall be punished by imprisonment for not more than one year or by a fine of not more than $1,000, or by both such fine and imprisonment. 45 Stat. 1551, 8 U.S.C. s 180a, 8 U.S.C.A. s 180a. Whoever knowingly makes under oath any false statement in any application,**485 affidavit, or other document required by the immigration laws or regulations prescribed thereunder, shall, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both. 43 Stat. 153, 165, 8 U.S.C. (1946 ed.) s 220(c), now 18 U.S.C. (Supp. V) s 1546, 18 U.S.C.A. s 1546. From the evidence favorable to the Government, the jury could reasonably have believed that the following acts and transactions took

place, and that the petitioners conspired to bring them about. Lutwak, a World War II veteran, was selected to marry Maria Knoll, his aunt by marriage. He went to Paris where he went through a marriage ceremony with Maria. They traveled to the United States, entering the port of New York on September 9, 1947. They represented to the immigration authorities that Maria was the wife of Lutwak, and upon that representation Maria was admitted. They never lived together as man and wife, and within a few months Munio and Maria commenced living together in this *609 country as man and wife, holding themselves out as such. Lutwak, in the meantime, represented himself to friends as an unmarried man. Lutwak and Maria were divorced on March 31, 1950. Lutwak and Mrs. Treitler also found two women-Bessie Benjamin Osborne and Grace Klemtner-who were honorably discharged veterans of World War II, and who were willing to marry Munio and Leopold so that the brothers could come to the United States. Bessie Osborne was introduced to Treitler by Lutwak, and went to Paris accompanied by Treitler. There she went through a pretended marriage ceremony with Munio Knoll, and on their arrival at New York City, Munio was admitted on November 13, 1947, on the representation that he was married to Bessie Osborne. The marriage was never consummated and was never intended to be. The parties separated after entering the United States, and they never lived together as husband and wife at any time. Bessie Osborne's suit for divorce from Munio was pending at the time of the trial. Still later, Grace Klemtner, who was also a World War II veteran and an acquaintance of Regina Treitler, went to Paris and went through a pretended marriage ceremony with Leopold. They then traveled to the United States, where Leopold was admitted on December 5, 1947, upon the representation that he was the husband of Grace Klemtner. They immediately separated after their entry into this country, and they never lived together as husband and wife at any time until about the time Grace Klemtner appeared before the grand jury which returned the indictment. This was approximately April 1, 1950, more than two years after the marriage ceremony in Paris. Bessie Osborne and Grace Klemtner received a substantial fee for participating in these marriage ceremonies. There is an abundance of evidence in this record of a conspiracy to contract spurious, phony marriages for the *610 purposes of deceiving the immigration authorities and thereby perpetrating a fraud upon the United States, and of a conspiracy to commit other offenses against the United States. Petitioners present three principal contentions: (1) Their conspiracy was not unlawful because the marriages involved were valid marriages; (2) The

trial court erred in permitting the ostensible wives of these marriages to testify against their so-called husbands; and (3) The trial court erred in admitting testimony of various acts and declarations of different petitioners, done and said after the conspiracy had ended, without limiting the evidence to the particular defendant who performed the act or made the statement. I. At the trial, it was undisputed that Maria, Munio and Leopold had gone through formal marriage ceremonies with Lutwak, Bess Osborne and Grace Klemtner, respectively. Petitioners contended that, regardless**486 of the intentions of the parties at the time of the ceremonies, the fact that the ceremonies were performed was sufficient to establish the validity of the marriages, at least until the Government proved their invalidity under French law. They relied on the general American rule of conflict of laws that a marriage valid where celebrated is valid everywhere unless it is incestuous, polygamous, or otherwise declared void by statute. See Loughran v. Loughran, 292 U.S. 216, 223, 54 S.Ct. 684, 686, 78 L.Ed. 1219; Restatement, Conflict of Laws, ss 121, 132-134. NEIther side presented any evidence of the frEnch law, and the trial court ruled that in the absence of such evidence, the French law would be presumed to be the same as American law. The court later instructed the jury that if the subjects agree to a marriage only for the sake of representing it as such to the outside world and with the understanding that they will put an end to *611 it as soon as it has served its purpose to deceive, they have never really agreed to be married at all. The petitioners claim that the trial court erred in presuming that the French law relating to the validity of marriages is the same as American law, and they further contend that even under American law these marriages are valid. [1][2][3] We do not believe that the validity of the marriages is material. No one is being prosecuted for an offense against the marital relation. We consider the marriage ceremonies only as a part of the conspiracy to defraud the United States and to commit offenses against the United States. In the circumstances of this case, the ceremonies were only a step in the fraudulent scheme and actions taken by the parties to the conspiracy. By directing in the War Brides Act that alien spouses' of citizen war reterans should be admitted into this country, Congress intended to make it possible for veterans who had married aliens to have their families join them in this country without the long delay involved in qualifying under the proper immigration quota. Congress did not intend to provide aliens with an easy means of circumventing the quota system by fake marriages in which neither of the parties ever intended to enter into the marital relationship; that petitioners so believed is evidenced by their care in concealing from the immigration authorities that the ostensible husbands and wives were to

separate immediately after their entry into this country and were never to live together as husband and wife. The common understanding of a marriage, which Congress must have had in mind when it made provision for alien spouses' in the War Brides Act, is that the two parties have undertaken to establish a life together and assume certain duties and obligations. Such was not the case here, or so the jury might reasonably have found. Thus, when one of the aliens stated that he was married, and omitted to explain the true nature of his marital *612 relationship, his statement did, and was intended to, carry with it implications of a state of facts which were not in fact true. Because the validity of the marriages is nor material, the cases involving so-called limited purpose marriages,FN1 cited by petitioners to support their contention that the marriages in the instant case are valid, are inapplicable. All of those cases are suits for annulment in which the court was requested to grant relief to one of the parties to a marriage on the basis of his own admission that the marriage had been a sham. Where the annulment was denied, one or more of the following factors influenced the court: (1) A reluctance to permit the parties to use the annulment procedure as a quick and painless substitute for divorce, particularly because this might encourage people to marry hastily and inconsiderately; (2) A belief that the **487 parties should not be permitted to use the courts as the means of carrying out their own secret schemes; and (3) A desire to prevent injury to innocent third parties, particularly children of the marriage. These factors have no application in the circumstances of the instant case. Similarly inapplicable are the cases where a marriage was entered into in order to render the wife incompetent to testify against her husband in a pending trial because in none of those cases was it proved that the parties to the marriage did not intend to enter into the marital relationship in good faith.FN2 Much more cosely related is the case of United States v. Rubenstein, 2 Cir., 151 F.2d 915, 918-919, in which the court held that where *613 two persons entered into a marriage solely for the purpose of facilitating the woman's entry into this country, and with no intention by either party to enter into the marriage relationship as it is commonly understood, for the purposes of that case they were never married at all. In the instant case, as in the Rubenstein case, there was no good faith-no intention to marry and consummate the marriages even for a day. With the legal consequences of such ceremonies under other circumstances, either in the United States or France, we are not concerned. FN1. E.g., Schibi v. Schibi, 136 Conn. 196, 69 A.2d 831, 14 A.L.R.2d 620; Hanson v. Hanson, 287 Mass. 154, 191 N.E. 673, 93 A.L.R. 701. These and the other cases cited by petitioners are collected and discussed in a note, 14 A.L.R.2d 624 (1950).

FN2. E.g., Norman v. State, 127 Tenn. 340, 155 S.W. 135, 45 L.R.A., N.S., 399; State v. Frey, 76 Minn. 526, 79 N.W. 518. II. Much of the evidence of the conspiracy comes from the lips of the socalled wives of these spurious marriages. The next question with which we are confronted is whether these so-called wives are competent to testify against their purported husbands in this criminal prosecution and thus incriminate the so-called husbands. [4] Civil marriage ceremonies were entered into by the parties in Paris as above indicated. Must these ostensible marriages be recognized as creating spouses in order that the marital relationship may be claimed to prevent the wives from testifying against the husbands? At common law the wife could testify neither for nor against her husband in a criminal case, but since Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369, the wife may testify in favor of the husband. [5] A review in the Funk case of the cases in this Court revealed the inconsistencies of the rule which made a wife incompetent to testify on behalf of her husband, and this Court resolved the question in favor of competency. The Funk case left the rules of evidence as to the competency of witnesses to be formulated by the federal courts or Congress in accordance with reason and experience. Wolfle v. United States, 291 U.S. 7, 12, 54 S.Ct. 279, 78 L.Ed. 617. *614 There followed the promulgation by this Court of Rule 26 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which reads as follows: Rule 26. Evidence. * * * The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. This rule was a paraphrase of Mr. Justice Stone's statement in Wolfle, 291 U.S. at page 12, 54 S.Ct. 279. Under this rule, the competency of witnesses is to be governed by the principles of the common law as they may be interpreted by the courts in the light of reason and experience. The governing principles are not necessarily as they had existed at common law. Congress has not acted, and has specifically authorized this Court to prescribe rules of criminal procedure, but the rules do not specifically answer the problem here.

Therefore, it is open to us to say whether we shall go **488 further and abrogate this common-law rule disqualifying one spouse from testifying in criminal cases against the other spouse. [6][7][8] When the good faith of the marital relation is pertinent and it is made to appear to the trial court, as it was here, that the relationship was entered into with no intention of the parties to live together as husband and wife but only for the purpose of using the marriage ceremony in a scheme to defraud, the ostensible spouses are competent to testify against each other. Here again, we are not concerned with the validity or invalidity of these so-called marriages. We are concerned only with the application of a common-law principle of evidence to the circumstances of this case. In interpreting the common law in this instance, we are to determine whether *615 in the light of reason and experience we should interpret the common law so as to make these ostensible wives competent to testify against their ostensible husbands. The reason for the rule at common law disqualifying the wife is to protect the sanctity and tranquility of the marital relationship. It is hollow mockery for the petitioners in arguing for the policy of the rule to invoke the reason for the rule and to say to us the husband and wife have grown closer together as an emotional, social, and cultural unit and to speak of the close emotional ties between husband and wife and of the special protection society affords to the marriage relationship. In a sham, phony, empty ceremony such as the parties went through in this case, the reason for the rule disqualifying a spouse from giving testimony disappears, and with it the rule. It has been said so often as to have become axiomatic that the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions. Funk v. United States, supra, 290 U.S. at page 383, 54 S.Ct. at page 216. [9] The light of reason and experience do not compel us to so interpret the common law as to disqualify these ostensible spouses from testifying in this case. We therefore hold that in the circumstances of this case, the common-law rule prohibiting antispousal testimony has no application. These ostensible wives were competent to testify. III. [10][11] Most of the evidence in this case consisted of testimony of the acts and declarations of the defendants. The petitioners contend that because some of these acts and declarations took place after the conspiracy ended, they were erroneously admitted without being properly limited to the defendant who did the act or made the statement *616 testified to. We must, therefore, decide when the conspiracy ended. The petitioners contend it ended when the last of the parties, Leopold Knoll, was admitted to the

United States on December 5, 1947. Then and there, they say, the fraud if any was complete, and the conspiracy to violate the statutes was complete. The Government contends that a part of the conspiracy was an agreement among the conspirators to conceal their fraud by any means, and so it was alleged in the indictment. But there is no statement in the indictment of a single overt act of concealment that was committed after December 5, 1947, and no substantial evidence of any. Such acts as were set forth and proved were acts that revealed and did not conceal the fraud. Therefore, there is no evidence in the record to establish as a part of the conspiracy that the conspirators agreed to conceal the conspiracy by doing what was necessary and expedient to prevent its disclosure. There was a statement of Munio Knoll in the record to one witness Haberman that indicated Munio's purpose to cover up and conceal the conspiracy. This is not evidence that the conspiracy included the further agreement to conceal. It is in the nature of an afterthought by the conspirator for the purpose of covering up. The trial court so understood it, and this statement of Munio Knoll, as testified to by Haberman, was limited by **489 the Court as applicable against Munio Knoll only. This Court in Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790, rejected the Government's contention that in every conspiracy there is implicit an agreement as a part thereof for the conspirators to collaborate to conceal the conspiracy. The rule contended for by the Government could have far-reaching results. For under this rule plausible arguments could generally be made in conspiracy cases that most out-of-court statements offered in *617 evidence tended to shield co-conspirators. We are not persuaded to adopt the Government's implicit conspiracy theory which in all criminal conspiracy cases would create automatically a further breach of the general rule against the admission of hearsay evidence. 336 U.S. at page 444, 69 S.Ct. at page 719. While the concealment was alleged in this indictment as a part of the conspiracy, it was not proved. We think on this record that the conspiracy ended December 5, 1947. [12][13] It does not necessarily follow that acts and declarations made after the conspiracy ended are not admissible. In this case, the essential fact of the conspiracy was the existence of phony marriage ceremonies entered into for the sole purpose of deceiving the immigration authorities and perpetrating a fraud upon the United States. Acts which took place after the conspiracy ended which were relevant to show the spuriousness of the

marriages and the intent of the parties in going through the marriage ceremonies were competent-such as the fact that the parties continued to live apart after they came to the United States; that money was paid the socalled wives as a consideration for their part in the so-called marriages; and that suits were started to terminate whatever legal relationship there might have been upon the record. [14][15] Declarations stand on a different footing. Declarations of one conspirator may be used against the other conspirator not present on the theory that the declarant is the agent of the other, and the admissions of one are admissible against both under a standard exception to the hearsay rule applicable to the statements of a party. Clune v. United States, 159 U.S. 590, 593, 16 S.Ct. 125, 126, 40 L.Ed. 269. See United States v. Gooding, 12 Wheat. 460, 468-470, 6 L.Ed. 693. But such declaration can be used against the co-conspirator only when made in furtherance of the conspiracy. Fiswick v. United States, 329 U.S. 211, 217, 67 S.Ct. 224, 227, 91 L.Ed. 196; Logan v. United States, 144 U.S. 263, 308-309, 12 S.Ct. 617, 631-632, 36 L.Ed. 429. There can be no furtherance of *618 a conspiracy that has ended. Therefore, the declarations of a conspirator do not bind the co-conspirator if made after the conspiracy has ended. That is the teaching of Krulewitch v. United States, supra, and Fiswick v. United States, supra. Those cases dealt only with declarations of one conspirator after the conspiracy had ended. They had no application to acts of a conspirator or others which were relevant to prove the conspiracy. True, there is dictum in Logan v. United States, supra, 144 U.S. at page 309, 12 S.Ct. 632, frequently repeated, which would limit the admissibility of both acts and declarations to the person performing them. This statement of the rule overlooks the fact that the objection to the declarations is that they are hearsay. This reason is not applicable to acts which are not intended to be a means of expression. The acts, being relevant to prove the conspiracy, were admissible, even though they might have occurred after the conspiracy ended. United States v. Rubenstein, 2 Cir., 151 F.2d 915, 917-918; see Fitzpatrick v. United States, 178 U.S. 304, 312-313, 20 S.Ct. 944, 947, 44 L.Ed. 1078; Ferris v. United States, 9 Cir., 40 F.2d 837, 839. [16] Relevant declarations or admissions of a conspirator made in the absence of the co-conspirator, and not in furtherance**490 of the conspiracy, may be admissible in a trial for conspiracy as against the declarant to prove the declarant's participation therein. The court must be careful at the time of the admission and by its instructions to make it clear that the evidence is limited as against the declarant only. Therefore, when the trial court admits against all of the conspirators a relevant declaration of one of the conspirators after the conspiracy has ended, without limiting it to the declarant, it violates the rule laid down in Krulewitch. Such declaration is inadmissible as to all but the declarant.

[17] In the trial of a criminal case for conspiracy, it is inevitable that there shall be, as there was in this case, evidence as to declarations that is admissible as against *619 all of the alleged conspirators; there are also other declarations admissible only as to the declarant and those present who by their silence or other conduct assent to the truth of the declaration. These declarations must be carefully and clearly limited by the court at the time of their admission and the jury instructed as to such declarations and the limitations put upon them. Even then, in most instances of a conspiracy trial of several persons together, the application of the rule places a heavy burden upon the jurors to keep in mind the admission of certain declarations and to whom they have been restricted and in some instances for what specific purpose. While these difficulties have been pointed out in several cases, e.g., Krulewitch v. United States, supra, 336 U.S. at page 453, 69 S.Ct. 723 (concurring opinion); Blumenthal v. United States, 332 U.S. 539, 559-560, 68 S.Ct. 248, 257, 92 L.Ed. 154; Nash v. United States, 2 Cir., 54 F.2d 1006, 1006-1007, the rule has nonetheless been applied. Blumenthal v. United States, supra; Nash v. United States, supra; United States v. Gottfried, 2 Cir., 165 F.2d 360, 367. [18][19] In our search of this record, we have found only one instance where a declaration made after the conspiracy had ended was admitted against all of the alleged conspirators, even though not present when the declaration was made. FN3 Was the admission of this one item of hearsay evidence sufficient to reverse this case? FN3. R. 208-209. Bessie Osborne testified: I asked when action would be taken for divorce and (Munio Knoll) asked me if I would wait two years because he wanted to become an American citizen, and it would take that long, and I agreed to wait. This hearsay statement attributed to Munio was admitted against all the defendants. We think not. In view of the fact that this record fairly shrieks the guilt of the parties, we cannot conceive how this one admission could have possibly influenced this jury to reach an improper verdict. A defendant is entitled to a fair trial but not a perfect one. This *620 is a proper case for the application of Rule 52(a) of the Federal Rules of Criminal Procedure. FN4 We hold that the error was harmless. FN4. (a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. Finding no reversible error in this record, the judgment is affirmed. Affirmed.

Mr. Justice JACKSON, whom Mr. Justice BLACK and Mr. Justice FRANKFURTER join, dissenting. Whenever a court has a case where behavior that obviously is sordid can be proved to be criminal only with great difficulty, the effort to bridge the gap is apt to produce bad law. We are concerned about the effect of this decision in three respects. 1. We are not convinced that any crime has been proved, even on the assumption that all evidence in the record was admissible. These marriages were formally contracted in France, and there is no contention that they were forbidden or illegal there for any reason. It is admitted that some judicial procedure is necessary if the **491 parties wish to be relieved of their obligations. Whether by reason of the reservations with which the parties entered into the marriages they could be annulled may be a nice question of French law, in view of the fact that no one of them deceived the other. We should expect it to be an even nicer question whether a third party, such as the state in a criminal process, could simply ignore the ceremony and its consequences, as the Government does here. We start with marriages that either are valid or at least have not been proved to be invalid in their inception. The Court brushes this question aside as immaterial, but we think it goes to the very existence of an *621 offense. If the parties are validly married, even though the marriage is a sordid one, we should suppose that would end the case. On the other hand, if the marriage ceremonies were for some reason utterly void and held for naught, as if they never had happened, the Government could well claim that entry into the United States as married persons was fraud. But between these two extremes is the more likely case-marriages that are not void but perhaps voidable. In one of these cases, the parties (on the trial) expressed their desire to stay married, and they were acquitted; and no one contends that their marriage is void. Certainly if these marriages were merely voidable and had not been adjudged void at the time of the entry into this country, it was not a fraud a represent them as subsisting. We should think that the parties to them might have been prosecuted with as much reason if they had represented themselves to be single. Marriages of convenience are not uncommon and it cannot be that we would hold it a fraud for one who has contracted a marriage not forbidden by law to represent himself as wedded, even if there were grounds for annulment or divorce and proceedings to that end were contemplated. The effect of any reservations of the parties in contracting the marriages would seem to be governed by the law of France. It does not seem justifiable to assume what we all know is not true-that French law and our law are the same. Such a view ignores some of the most elementary facts of

legal history-the French reception of Roman law, the consequences of the Revolution, and the Napoleonic codifications. If the Government contends that these marriages were ineffectual from the beginning, it would seem to require proof of particular rules of the French law of domestic relations. 2. The federal courts have held that one spouse cannot testify against the other unless the defendant spouse *622 waives the privilege. * * * Griffin v. United States, 336 U.S. 704, 714, 69 S.Ct. 814, 819, 93 L.Ed. 993, and cases cited. The Court condones a departure from this rule here because, it says, the relationship was not genuine. We need not decide what effect it would have on the privilege if independent testimony established that the matrimonial relationship was only nominal. Even then, we would think the formal relationship would be respected unless the trial court, on the question of privilege, wanted to try a collateral issue. However, in this case, the trial court could only conclude that the marriage was a sham from the very testimony whose admissibility is in question. The Court's position seems to be that privileged testimony may be received to destroy its own privilege. We think this is not allowable, for the same reason that one cannot lift himself by his own bootstraps. 3. We agree with the Court that the crime, if any, was complete when the alien parties obtained entry into the United States on December 5. We think this was the necessary result of the holding in Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790. This requires rejection of the Government's contention that every conspiracy includes an implied secondary conspiracy to conceal the facts. This revival of the longdiscredited doctrine of constructive conspiracy would postpone operation of the statute of limitations indefinitely and make all manner of subsequent acts and statements by each conspirator admissible in evidence against **492 all. But, while the Court accepts the view or Krulewitch, we think its ruling on subsequent acts and declarations largely nullifies the effect of that decision and exemplifies the dangers pointed out therein. For present purposes, we need not maintain that no admission or act of a conspirator occurring after the conspiracy has accomplished its object is admissible against a co-conspirator. And we do not question that at times *623 such evidence is admissible against the actor of speaker alone. But one of the additional leverages obtained by the prosecution through proceeding as for conspiracy instead of as for the substantive offense is that it may get into evidence against one defendant acts or omissions which color the case against all. This case is a vivid illustration of that process in action. The statement of facts in the Government's brief is punctuated by eight separate footnotes to explain that the testimony recited in the text was limited to one or

another defendant. We doubt that any member of this Court, despite our experience in sifting testimony, can carry in mind what was admitted against whom, and we are confident the jury could not. We will not prolong this opinion with an analysis of this testimony. Some of it was very damaging. For example, testimony was admitted, limited to Munio Knoll, that on one occasion he returned to his apartment and had difficulty getting in. When he gained admittance, petitioner Lutwak was going out through the window, leaving Knoll's wife to explain the phenomenon if she could. This testimony was not admitted against Lutwak, and the jury was adequately warned not to use it against him. But does anybody believe that the jury could forget that picture of Lutwak being caught taking hasty leave of his co-conspirator's wife and making a somewhat irregular exit? The salutary rule that evidence of acts which occurred long after the conspiracy terminated is admissible only against particular defendants should be observed in spirit as well as in letter. Here much of such evidence was of such remote probative value, and the instruction limiting its use was so predictably ineffectual, that its admission violated a substantial right of those defendants against whom it could not be used. For these reasons we are impelled to dissent. U.S. 1953. Lutwak v. U.S. 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 END OF DOCUMENT 2. ADVERSE SPOUSAL TESTIMONY PRIVILEGE
A)

TRAMMEL VS. UNITED STATES, 445 U.S. 40, 27 FEBRUARY 1980 -KATE Supreme Court of the United States Otis TRAMMEL, Jr., Petitioner, v. UNITED STATES. No. 78-5705. Argued Oct. 29, 30, 1979. Decided Feb. 27, 1980.

Defendant was convicted before the United States District Court for the District of Colorado of importation of heroin and conspiracy to import heroin, and he appealed. The Court of Appeals affirmed, 583 F.2d 1166. On writ of certiorari to the Court of Appeals, the Supreme Court, Mr. Chief Justice Burger, held that: (1) apart from confidential communications, a

witness spouse alone has the privilege to refuse to testify adversely and may be neither compelled to testify nor foreclosed from testifying, and (2) that the spouse of accused chose to testify against him after grant of immunity and assurances of lenient treatment did not render her testimony involuntary, and accused's claim of privilege was properly rejected. Affirmed. Mr. Justice Stewart filed a concurring opinion. West Headnotes [1] Privileged Communications and Confidentiality 311H 311H Privileged Communications and Confidentiality 311HI In General 311Hk1 k. In General. Most Cited Cases (Formerly 410k184(1)) Federal Rules of Evidence acknowledge authority of federal courts to continue evolutionary development of testimonial privileges in federal criminal trials governed by principles of common law as they may be interpreted in light of reason and experience. Fed.Rules Evid. Rule 501, 28 U.S.C.A. [2] Privileged Communications and Confidentiality 311H 311H Privileged Communications and Confidentiality 311HI In General 311Hk1 k. In General. Most Cited Cases (Formerly 410k184(1)) In rejecting proposed rules and enacting Evidence Rule 501, Congress manifested affirmative intention not to freeze law of privilege, and purpose of rule, rather, was to provide courts with flexibility to develop rules of privilege on case-by-case basis. Fed.Rules Evid. Rule 501, 28 U.S.C.A. [3] Courts 106 79 1 1

106 Courts 106II Establishment, Organization, and Procedure 106II(F) Rules of Court and Conduct of Business 106k79 k. Constitutional and Statutory Provisions. Most Cited Cases

Statute limits Supreme Court's statutory rule-making authority by providing that rules creating, abolishing or modifying privilege shall have no force or effect unless approved by act of Congress, but was enacted principally to insure that state rules of privilege would apply in diversity jurisdiction cases unless Congress authorized otherwise, and statute was not attempt to prevent federal courts from developing testimony privilege law in federal criminal cases on case-by-case basis in light of reason and experience. 28 U.S.C.A. 2076; Fed.Rules Evid. Rule 501, 28 U.S.C.A. [4] Witnesses 410 52(1)

410 Witnesses 410II Competency 410II(A) Capacity and Qualifications in General 410k51 Husband and Wife 410k52 Incompetency for or Against Each Other in General 410k52(1) k. In General. Most Cited Cases Trend in state law toward divesting accused of privilege to bar adverse spousal testimony has special relevance because law of marriage and domestic relations are concerns traditionally reserved to states. 28 U.S.C.A. 2076; Fed.Rules Evid. Rule 501, 28 U.S.C.A. [5] Privileged Communications and Confidentiality 311H 311H Privileged Communications and Confidentiality 311HI In General 311Hk1 k. In General. Most Cited Cases (Formerly 410k184(1)) Privileged Communications and Confidentiality 311H 11 1

311H Privileged Communications and Confidentiality 311HI In General 311Hk11 k. Construction in General. Most Cited Cases (Formerly 410k184(1)) Testimonial exclusionary rules and privileges contravene fundamental principle that public has right to every man's evidence, and thus are to be strictly construed and accepted only to very limited extent that permitting refusal to testify or excluding relevant evidence has public good transcending normally predominant principle of utilizing all rational means for ascertaining truth. 28 U.S.C.A. 2076; Fed.Rules Evid. Rule 501, 28 U.S.C.A.

[6] Privileged Communications and Confidentiality 311H 311H Privileged Communications and Confidentiality 311HII Family Privileges 311HII(B) Spousal Privilege 311Hk60 k. In General. Most Cited Cases (Formerly 410k188, 410k188(1))

60

Marital confidences are privileged under independent rule protecting confidential marital communications. [7] Witnesses 410 52(1)

410 Witnesses 410II Competency 410II(A) Capacity and Qualifications in General 410k51 Husband and Wife 410k52 Incompetency for or Against Each Other in General 410k52(1) k. In General. Most Cited Cases Witnesses 410 52(8)

410 Witnesses 410II Competency 410II(A) Capacity and Qualifications in General 410k51 Husband and Wife 410k52 Incompetency for or Against Each Other in General 410k52(8) k. Compelling Husband or Wife to Testify. Most Cited Cases Witnesses 410 54

410 Witnesses 410II Competency 410II(A) Capacity and Qualifications in General 410k51 Husband and Wife 410k54 k. Testimony for or Against Husband or Wife in General. Most Cited Cases Apart from confidential communications, witness spouse alone has privilege to refuse to testify adversely and may be neither compelled to testify nor foreclosed from testifying.

[8] Witnesses 410

52(8)

410 Witnesses 410II Competency 410II(A) Capacity and Qualifications in General 410k51 Husband and Wife 410k52 Incompetency for or Against Each Other in General 410k52(8) k. Compelling Husband or Wife to Testify. Most Cited Cases That spouse of accused chose to testify against him after grant of immunity and assurances of lenient treatment did not render her testimony involuntary, and accused's claim of privilege was properly rejected. 28 U.S.C.A. 2076; Fed.Rules Evid. Rule 501, 28 U.S.C.A. **907 *40 Syllabus
FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. Prior to his trial with others on federal drug charges, petitioner advised the District Court that the Government intended to call his wife (who had been named in the indictment as an unindicted co-conspirator) as an adverse witness and asserted a privilege to prevent her from testifying. The District Court ruled that confidential communications between petitioner and his wife were privileged and therefore inadmissible, but the wife was permitted to testify to any act she observed before or during the marriage and to any communication made in the presence of a third person. Primarily on the basis of his wife's testimony, petitioner was convicted, and the Court of Appeals affirmed, rejecting petitioner's contention that the admission of his wife's adverse testimony, over his objection, contravened the decision in Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125, barring the testimony of one spouse against the other unless both consent. Held : The Court modifies the Hawkins rule so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. Here, petitioner's spouse chose to testify against him; that she did so after a grant of immunity and assurances of lenient treatment does not render her testimony involuntary, and thus petitioner's claim of privilege was properly rejected. Pp. 909-914.

(a) The modern justification for the privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship. While this Court, in Hawkins, supra, reaffirmed the vitality of the common-law privilege in the federal courts, it made clear that its decision was not meant to foreclose whatever changes in the rule may eventually be dictated by reason and experience. 358 U.S., at 79, 79 S.Ct., at 139. Pp. 909-910. (b) Rule 501 of the Federal Rules of Evidence acknowledges the federal courts' authority to continue the evolutionary development of testimonial privileges in federal criminal trials governed by the principles of the common law as they may be interpreted . . . in the light of reason and experience. Pp. 910-911. (c) Since 1958, when Hawkins was decided, the trend in state law *41 has been toward divesting the accused of the privilege to bar adverse spousal testimony. Pp. 911-912. (d) Information privately disclosed between husband and wife in the confidence of the marital relationship is privileged under the independent rule protecting confidential marital communications, Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306; and the Hawkins privilege, which sweeps more broadly than any other testimonial privilege, is not limited to confidential communications but is invoked to also exclude evidence of criminal acts and of communications in the presence of third persons. The ancient foundations for so sweeping a privilege-whereby a woman was regarded as a chattel and denied a separate legal identity-have long since disappeared, and the contemporary justification for affording an accused such a privilege is unpersuasive. When one spouse is willing to testify against the other in a criminal proceeding-whatever the motivation-there is probably little in the way of marital harmony for the privilege to preserve. Consideration of the foundations for **908 the privilege and its history thus shows that reason and experience no longer justify so sweeping a rule as that found acceptable in Hawkins. Pp. 912-914. 583 P.2d 1166, affirmed. Sol. Gen. Wade H. McCree, Jr., Washington, D. C., for respondent. J. Terry Wiggins, Denver, Colo., for petitioner. Mr. Chief Justice BURGER delivered the opinion of the Court. We granted certiorari to consider whether an accused may invoke the privilege against adverse spousal testimony so as *42 to exclude the voluntary testimony of his wife. 440 U.S. 934, 99 S.Ct. 1277, 59 L.Ed.2d 492

(1979). This calls for a re-examination of Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958). I On March 10, 1976, petitioner Otis Trammel was indicted with two others, Edwin Lee Roberts and Joseph Freeman, for importing heroin into the United States from Thailand and the Philippine Islands and for conspiracy to import heroin in violation of 21 U.S.C. 952(a), 962(a), and 963. The indictment also named six unindicted co-conspirators, including petitioner's wife Elizabeth Ann Trammel. According to the indictment, petitioner and his wife flew from the Philippines to California in August 1975, carrying with them a quantity of heroin. Freeman and Roberts assisted them in its distribution. Elizabeth Trammel then traveled to Thailand where she purchased another supply of the drug. On November 3, 1975, with four ounces of heroin on her person, she boarded a plane for the United States. During a routine customs search in Hawaii, she was searched, the heroin was discovered, and she was arrested. After discussions with Drug Enforcement Administration agents, she agreed to cooperate with the Government. Prior to trial on this indictment, petitioner moved to sever his case from that of Roberts and Freeman. He advised the court that the Government intended to call his wife as an adverse witness and asserted his claim to a privilege to prevent her from testifying against him. At a hearing on the motion, Mrs. Trammel was called as a Government witness under a grant of use immunity. She testified that she and petitioner were married in May 1975 and that they remained married.FN1 She explained that her cooperation with the Government was based on assurances that she would be given *43 lenient treatment.FN2 She then described, in considerable detail, her role and that of her husband in the heroin distribution conspiracy. FN1. In response to the question whether divorce was contemplated, Mrs. Trammel testified that her husband had said that I would go my way and he would go his. App. 27. FN2. The Government represents to the Court that Elizabeth Trammel has not been prosecuted for her role in the conspiracy. After hearing this testimony, the District Court ruled that Mrs. Trammel could testify in support of the Government's case to any act she observed during the marriage and to any communication made in the presence of a third person; however, confidential communications between petitioner and his wife were held to be privileged and inadmissible. The motion to sever was denied.

At trial, Elizabeth Trammel testified within the limits of the court's pretrial ruling; her testimony, as the Government concedes, constituted virtually its entire case against petitioner. He was found guilty on both the substantive and conspiracy charges and sentenced to an indeterminate term of years pursuant to the Federal Youth Corrections Act, 18 U.S.C. 5010(b).
FN3

FN3. Roberts and Freeman were also convicted. Roberts was sentenced to two years' imprisonment. Freeman received an indeterminate sentence under the Youth Corrections Act. **909 In the Court of Appeals petitioner's only claim of error was that the admission of the adverse testimony of his wife, over his objection, contravened this Court's teaching in Hawkins v. United States, supra, and therefore constituted reversible error. The Court of Appeals rejected this contention. It concluded that Hawkins did not prohibit the voluntary testimony of a spouse who appears as an unindicted co-conspirator under grant of immunity from the Government in return for her testimony. 583 F.2d 1166, 1168 (CA10 1978). II The privilege claimed by petitioner has ancient roots. Writing in 1628, Lord Coke observed that it hath beene resolved *44 by the Justices that a wife cannot be produced either against or for her husband. 1 E. Coke, A Commentarie upon Littleton 6b (1628). See, generally, 8 J. Wigmore, Evidence 2227 (McNaughton rev. 1961). This spousal disqualification sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. From those two now long-abandoned doctrines, it followed that what was inadmissible from the lips of the defendant-husband was also inadmissible from his wife. Despite its medieval origins, this rule of spousal disqualification remained intact in most common-law jurisdictions well into the 19th century. See id., 2333. It was applied by this Court in Stein v. Bowman, 13 Pet. 209, 220-223, 10 L.Ed. 129 (1839), in Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021 (1893), and again in Jin Fuey Moy v. United States, 254 U.S. 189, 195, 41 S.Ct. 98, 101, 65 L.Ed. 214 (1920), where it was deemed so well established a proposition as to hardly requir[e] mention. Indeed, it was not until 1933, in Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369, that this Court abolished the testimonial disqualification in the federal courts, so as to permit the spouse of a defendant to testify in

the defendant's behalf. Funk, however, left undisturbed the rule that either spouse could prevent the other from giving adverse testimony. Id., at 373, 54 S.Ct., at 212. The rule thus evolved into one of privilege rather than one of absolute disqualification. See J. Maguire, Evidence, Common Sense and Common Law 78-92 (1947). The modern justification for this privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship. Notwithstanding this benign purpose, the rule was sharply criticized.FN4 *45 Professor Wigmore termed it the merest anachronism in legal theory and an indefensible obstruction to truth in practice. 8 Wigmore 2228, at 221. The Committee on Improvements in the Law of Evidence of the American Bar Association called for its abolition. 63 American Bar Association Reports 594-595 (1938). In its place, Wigmore and others suggested a privilege protecting only private marital communications, modeled on the privilege between priest and penitent, attorney and client, and physician and patient. See 8 Wigmore 2332 et seq.FN5 FN4. See Brosman, Edward Livingston and Spousal Testimony in Louisiana, 11 Tulane L.Rev. 243 (1937); Hutchins & Slesinger, Some Observations on the Law of Evidence: Family Relations, 13 Minn.L.Rev. 675 (1929); Note, 24 Calif.L.Rev. 472 (1936); Note, 35 Mich.L.Rev. 329 (1936); Note, 10 So.Cal.L.Rev. 94 (1936); Note, 20 Minn.L.Rev. 693 (1936). FN5. This Court recognized just such a confidential marital communications privilege in Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1934), and in Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951). In neither case, however, did the Court adopt the Wigmore view that the communications privilege be substituted in place of the privilege against adverse spousal testimony. The privilege as to confidential marital communications is not at issue in the instant case; accordingly, our holding today does not disturb Wolfle and Blau. **910 These criticisms influenced the American Law Institute, which, in its 1942 Model Code of Evidence advocated a privilege for marital confidences, but expressly rejected a rule vesting in the defendant the right to exclude all adverse testimony of his spouse. See American Law Institute, Model Code of Evidence, Rule 215 (1942). In 1953 the Uniform Rules of Evidence, drafted by the National Conference of Commissioners on Uniform State Laws, followed a similar course; it limited the privilege to confidential communications and abolishe[d] the rule, still existing in some states, and largely a sentimental relic, of not requiring one spouse to testify against the

other in a criminal action. See Rule 23(2) and comments. Several state legislatures enacted similarly patterned provisions into law.FN6 FN6. See Note, Competency of One Spouse to Testify Against the Other in Criminal Cases Where the Testimony Does Not Relate to Confidential Communications: Modern Trend, 38 Va.L.Rev. 359 (1952). *46 In Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), this Court considered the continued vitality of the privilege against adverse spousal testimony in the federal courts. There the District Court had permitted petitioner's wife, over his objection, to testify against him. With one questioning concurring opinion, the Court held the wife's testimony inadmissible; it took note of the critical comments that the common-law rule had engendered, id., at 76, and n. 4, 79 S.Ct., at 137, but chose not to abandon it. Also rejected was the Government's suggestion that the Court modify the privilege by vesting it in the witness-spouse, with freedom to testify or not independent of the defendant's control. The Court viewed this proposed modification as antithetical to the widespread belief, evidenced in the rules then in effect in a majority of the States and in England, that the law should not force or encourage testimony which might alienate husband and wife, or further inflame existing domestic differences. Id., at 79, 79 S.Ct., at 139. Hawkins, then, left the federal privilege for adverse spousal testimony where it found it, continuing a rule which bars the testimony of one spouse against the other unless both consent. Id., at 78, 79 S.Ct., at 138. Accord, Wyatt v. United States, 362 U.S. 525, 528, 80 S.Ct. 901, 903, 4 L.Ed.2d 931 (1960).FN7 However, in so doing, the Court made clear that its decision was not meant to foreclose whatever changes in the rule may eventually be dictated by reason and experience. 358 U.S., at 79, 79 S.Ct., at 139. FN7. The decision in Wyatt recognized an exception to Hawkins for cases in which one spouse commits a crime against the other. 362 U.S., at 526, 80 S.Ct., at 902. This exception, placed on the ground of necessity, was a longstanding one at common law. See Lord Audley's Case, 123 Eng.Rep. 1140 (1631); 8 Wigmore 2239. It has been expanded since then to include crimes against the spouse's property, see Herman v. United States, 220 F.2d 219, 226 (CA4 1955), and in recent years crimes against children of either spouse, United States v. Allery, 526 F.2d 1362 (CA8 1975). Similar exceptions have been found to the confidential marital communications privilege. See 8 Wigmore 2338. *47 III A

[1][2][3] The Federal Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary development of testimonial privileges in federal criminal trials governed by the principles of the common law as they may be interpreted . . . in the light of reason and experience. Fed.Rule Evid. 501. Cf. Wolfle v. United States, 291 U.S. 7, 12, 54 S.Ct. 279, 78 L.Ed. 617 (1934). The general mandate of Rule 501 was substituted by the Congress for a set of privilege rules drafted by the Judicial Conference Advisory Committee on Rules of Evidence and approved by the Judicial Conference of the United States and by this Court. That proposal **911 defined nine specific privileges, including a husband-wife privilege which would have codified theHawkins rule and eliminated the privilege for confidential marital communications. See proposed Fed.Rule Evid. 505. In rejecting the proposed Rules and enacting Rule 501, Congress manifested an affirmative intention not to freeze the law of privilege. Its purpose rather was to provide the courts with the flexibility to develop rules of privilege on a case-by-case basis, 120 Cong.Rec. 40891 (1974) (statement of Rep. Hungate), and to leave the door open to change. See also S.Rep.No.93-1277, p. 11 (1974); H.R.Rep.No.93-650, p. 8 (1973),FN8 U.S.Code Cong. & Admin.News 1974, p. 7051. FN8. Petitioner's reliance on 28 U.S.C. 2076 for the proposition that this Court is without power to reconsider Hawkins is ill-founded. That provision limits this Court's statutory rulemaking authority by providing that rules creating, abolishing, or modifying a privilege shall have no force or effect unless . . . approved by act of Congress. It was enacted principally to insure that state rules of privilege would apply in diversity jurisdiction cases unless Congress authorized otherwise. In Rule 501 Congress makes clear that 2076 was not intended to prevent the federal courts from developing testimonial privilege law in federal criminal cases on a case-by-case basis in light of reason and experience; indeed Congress encouraged such development. Although Rule 501 confirms the authority of the federal courts to reconsider the continued validity of the Hawkins *48 rule, the long history of the privilege suggests that it ought not to be casually cast aside. That the privilege is one affecting marriage, home, and family relationships-already subject to much erosion in our day-also counsels caution. At the same time, we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggest the need for change. This was recognized in Funk where the Court decline[d] to enforce . . . ancient rule[s] of the common law under conditions as they now exist. 290 U.S., at 382, 54 S.Ct., at 215. For, as Mr. Justice Black admonished in another setting, [w]hen precedent and precedent alone is all the argument that can be made to

support a court-fashioned rule, it is time for the rule's creator to destroy it. Francis v. Southern Pacific Co., 333 U.S. 445, 471, 68 S.Ct. 611, 623, 92 L.Ed. 798 (1948) (dissenting opinion). B [4] Since 1958, when Hawkins was decided, support for the privilege against adverse spousal testimony has been eroded further. Thirty-one jurisdictions, including Alaska and Hawaii, then allowed an accused a privilege to prevent adverse spousal testimony. 358 U.S., at 81, n. 3, 79 S.Ct., at 140 (STEWART, J., concurring). The number has now declined to 24.FN9 In 1974, the **912 National *49 Conference on Uniform State Laws revised its Uniform Rules of Evidence, but again rejected the Hawkins rule in favor of a limited privilege for confidential communications. See Uniform Rules of Evidence, Rule 504. That proposed rule has been enacted in Arkansas, North Dakota, and Oklahoma-each of which in 1958 permitted an accused to exclude adverse spousal testimony.FN10 The trend in state law toward *50 divesting the accused of the privilege to bar adverse spousal testimony has special relevance because the laws of marriage and domestic relations are concerns traditionally reserved to the states. See Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 559, 42 L.Ed.2d 532 (1975). Scholarly criticism of the Hawkins rule has also continued unabated.FN11 FN9. Eight States provide that one spouse is incompetent to testify against the other in a criminal proceeding: see Haw.Rev.Stat. 621-18 (1976); Iowa Code 622.7 (1979); Miss.Code Ann. 13-1-5 (Supp.1979); N.C.Gen.Stat. 8-57 (Supp.1977); Ohio Rev.Code Ann. 2945.42 (Supp.1979); Pa.Stat.Ann., Tit. 42, 5913, 5915 (Purdon Supp.1979); Tex.Crim.Proc.Code Ann. Art. 38.11 (Vernon 1979); Wyo.Stat. 1-12-104 (1977). Sixteen States provide a privilege against adverse spousal testimony and vest the privilege in both spouses or in the defendant-spouse alone: see Alaska Crim.Proc.Rule 26(b)(2); Colo.Rev.Stat. 13-90-107 (1973); Idaho Code 9-203 (Supp.1979); Mich.Comp.Laws 600.2162 (Mich.Stat.Ann. 27A.2162) (1968); Minn.Stat. 595.02 (1978); Mo.Rev.Stat. 546.260 (1978); Mont.Code Ann. 46-16-212 (1979); Neb.Rev.Stat. 27-505 (1975); Nev.Rev.Stat. 49.295 (1977); N.J.Stat.Ann. 2A:84A-17 (West 1976); N.M.Stat.Ann. 20-4-505 (Supp.1977); Ore.Rev.Stat. 44.040 (1977); Utah Code Ann. 78-24-8 (1977); Va.Code 19.2-271.2 (Supp.1979); Wash.Rev.Code 5.60.060 (Supp.1979); W.Va.Code 57-3-3 (1966). Nine States entitle the witness-spouse alone to assert a privilege against adverse spousal testimony: see Ala.Code 12-21-227 (1975); Cal.Evid.Code Ann. 970-973 (West 1966 and Supp.1979);

Conn.Gen.Stat. 54-84 (1979); Ga.Code 38-1604 (1978); Ky.Rev.Stat. 421.210 (Supp.1978); La.Rev.Stat.Ann. 15:461 (West 1967); Md.Cts. & Jud.Proc.Code Ann. 9-101, 9-106 (1974); Mass.Gen.Laws Ann., ch. 233, 20 (West Supp.1979); R.I.Gen.Laws 12-17-10 (1970). The remaining 17 States have abolished the privilege in criminal cases: see Ariz.Rev.Stat.Ann. 12-2231 (Supp.1978); Ark.Stat.Ann. 28-101, Rules 501 and 504 (1979); Del.Code Ann., Tit. 11, 3502 (1975); Fla.Stat. 90.501, 90.504 (1979); Ill.Rev.Stat., ch. 38, 1551 (1977); Ind.Code 34-1-14-4, 34-1-14-5 (1976); Kan.Stat.Ann. 60-407, 60-428 (1976); Maine Rules of Evidence 501, 504; N.H.Rev.Stat.Ann. 516:27 (1974); N.Y.Crim.Proc.Law 60.10 (McKinney 1971); N.Y.Civ.Proc.Law 4502, 4512 (McKinney 1963); N.D.Rules of Evidence 501, 504; Okla.Stat., Tit. 12, 2103, 2501, 2504 (West Supp.1979); S.C.Code 19-11-30 (1976); S.D.Comp.Laws Ann. 19-13-1, 19-13-12 to 19-13-15 (1979); Tenn.Code Ann. 402404 (1975); Vt.Stat.Ann., Tit. 12, 1605 (1973); Wis.Stat. 905.01, 905.05 (1975). In 1901, Congress enacted a rule of evidence for the District of Columbia that made husband and wife competent but not compellable to testify for or against each other, except as to confidential communications. This provision, which vests the privilege against adverse spousal testimony in the witness-spouse, remains in effect. See 31 Stat. 1358, 1068, 1069, recodified as D.C.Code 14-306 (1973). FN10. In 1965, California took the privilege from the defendantspouse and vested it in the witness-spouse, accepting a study commission recommendation that the latter [was] more likely than the former to determine whether or not to claim the privilege on the basis of the probable effect on the marital relationship. See Cal.Evid.Code Ann. 970-973 (West 1966 and Supp.1979) and 1 California Law Revision Commission, Recommendation and Study relating to The Marital For and Against Testimonial Privilege at F-5 (1956). See also 6 California Law Revision Commission, Tentative Privileges Recommendation-Rule 27.5, pp. 243-244 (1964). Support for the common-law rule has also diminished in England. In 1972, a study group there proposed giving the privilege to the witness-spouse, on the ground that if [the wife] is willing to give evidence . . . the law would be showing excessive concern for the preservation of marital harmony if it were to say that she must not do so. Criminal Law Revision Committee, Eleventh Report, Evidence

(General) 93. FN11. See Reutlinger, Policy, Privacy, and Prerogatives: A Critical Examination of the Proposed Federal Rules of Evidence as They Affect Marital Privilege, 61 Calif.L.Rev. 1353, 1384-1385 (1973); Orfield, The Husband-Wife Privileges in Federal Criminal Procedure, 24 Ohio St.L.J. 144 (1963); Rothstein, A Re-evaluation of the Privilege Against Adverse Spousal Testimony in the Light of its Purpose, 12 Int'l and Comp.L.Q. 1189 (1963); Note, 1977 Ariz.St.L.J. 411; Comment, 17 St. Louis L.J. 107 (1972); Comment, 15 Wayne L.Rev. 1287, 1334-1337 (1969); Comment, 52 J.Crim.L. 74 (1961); Note, 56 Nw.U.L.Rev. 208 (1961); Note, 32 Temp.L.Q. 351 (1959); Note, 33 Tulane L.Rev. 884 (1959). C [5] Testimonial exclusionary rules and privileges contravene the fundamental principle that the public . . . has a right to every man's evidence. United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950). As such, they must be strictly construed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth. Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 1454, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting). Accord, *51United States v. Nixon, 418 U.S. 683, 709-710, 94 S.Ct. 3090, 3108-3109, 41 L.Ed.2d 1039 (1974). Here we must decide whether the privilege against adverse spousal testimony promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice. [6] It is essential to remember that the Hawkins privilege is not needed to protect **913 information privately disclosed between husband and wife in the confidence of the marital relationship-once described by this Court as the best solace of human existence. Stein v. Bowman, 13 Pet., at 223. Those confidences are privileged under the independent rule protecting confidential marital communications. Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951); see n. 5, supra. The Hawkins privilege is invoked, not to exclude private marital communications, but rather to exclude evidence of criminal acts and of communications made in the presence of third persons. No other testimonial privilege sweeps so broadly. The privileges between priest and penitent, attorney and client, and physician and patient limit protection to private communications. These privileges are rooted in the imperative need for confidence and trust. The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to

receive priestly consolation and guidance in return. The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out. Similarly, the physician must know all that a patient can articulate in order to identify and to treat disease; barriers to full disclosure would impair diagnosis and treatment. The Hawkins rule stands in marked contrast to these three privileges. Its protection is not limited to confidential communications; rather it permits an accused to exclude all adverse spousal testimony. As Jeremy Bentham observed more than a century and a half ago, such a privilege goes far beyond making every man's house his castle, and permits a person *52 to convert his house into a den of thieves. 5 Rationale of Judicial Evidence 340 (1827). It secures, to every man, one safe and unquestionable and every ready accomplice for every imaginable crime. Id., at 338. The ancient foundations for so sweeping a privilege have long since disappeared. Nowhere in the common-law world-indeed in any modern society-is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being. Chip by chip, over the years those archaic notions have been cast aside so that [n]o longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas. Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct. 1373, 1377-1378, 43 L.Ed.2d 688 (1975). The contemporary justification for affording an accused such a privilege is also unpersuasive. When one spouse is willing to testify against the other in a criminal proceeding-whatever the motivation-their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve. In these circumstances, a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace. FN12 Indeed, there is reason to believe that vesting the privilege in the accused could actually undermine the marital relationship. For example, in a case such as this the Government is unlikely to offer a wife immunity and lenient treatment if it knows that her husband can prevent her from giving adverse testimony. If the Government is dissuaded from making such an offer, the privilege can have the untoward effect of permitting one *53 spouse to escape justice at the expense of the other. It hardly seems conducive to the preservation of the marital relation to place a **914 wife in jeopardy solely by virtue of her husband's control over her testimony. FN12. It is argued that abolishing the privilege will permit the Government to come between husband and wife, pitting one against

the other. That, too, misses the mark. Neither Hawkins, nor any other privilege, prevents the Government from enlisting one spouse to give information concerning the other or to aid in the other's apprehension. It is only the spouse's testimony in the courtroom that is prohibited. IV [7][8] Our consideration of the foundations for the privilege and its history satisfy us that reason and experience no longer justify so sweeping a rule as that found acceptable by the Court in Hawkins. Accordingly, we conclude that the existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. This modification-vesting the privilege in the witness-spouse-furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs. Here, petitioner's spouse chose to testify against him. That she did so after a grant of immunity and assurances of lenient treatment does not render her testimony involuntary. Cf. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Accordingly, the District Court and the Court of Appeals were correct in rejecting petitioner's claim of privilege, and the judgment of the Court of Appeals is Affirmed. Mr. Justice STEWART, concurring in the judgment. Although agreeing with much of what the Court has to say, I cannot join an opinion that implies that reason and experience have worked a vast change since the Hawkins case was decided in 1958. In that case the Court upheld the privilege of a defendant in a criminal case to prevent adverse spousal testimony, in an all-but-unanimous opinion by Mr. Justice Black. Today the Court, in another all-but-unanimous opinion, obliterates that privilege because of the purported*54 change in perception that reason and experience have wrought. The fact of the matter is that the Court in this case simply accepts the very same arguments that the Court rejected when the Government first made them in the Hawkins case in 1958. I thought those arguments were valid then, FN1 and I think so now. FN1. The rule of evidence we are here asked to re-examine has been called a sentimental relic. It was born of two concepts long since rejected: that a criminal defendant was incompetent to testify in his own case, and that in law husband and wife were one. What thus

began as a disqualification of either spouse from testifying at all yielded gradually to the policy of admitting all relevant evidence, until it has now become simply a privilege of the criminal defendant to prevent his spouse from testifying against him. Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice. When such a rule is the product of a conceptualism long ago discarded, is universally criticized by scholars, and has been qualified or abandoned in many jurisdictions, it should receive the most careful scrutiny. Surely reason and experience require that we do more than indulge in mere assumptions, perhaps naive assumptions, as to the importance of this ancient rule to the interests of domestic tranquillity. Hawkins v. United States, 358 U.S. 74, 81-82, 79 S.Ct. 136, 140, 3 L.Ed.2d 125 (concurring opinion) (citations and footnotes omitted). The Court is correct when it says that [t]he ancient foundations for so sweeping a privilege have long since disappeared. Ante, at 913. But those foundations had disappeared well before 1958; their disappearance certainly did not occur in the few years that have elapsed between the Hawkins decision and this one. To paraphrase what Mr. Justice Jackson once said in another context, there is reason to believe that today's opinion of the Court will be of greater interest to students of human psychology than to students of law.FN2 FN2. See Zorach v. Clauson, 343 U.S. 306, 325, 72 S.Ct. 679, 689, 96 L.Ed. 954 (dissenting opinion). U.S.Colo.,1980. Trammel v. U.S. 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186, 5 Fed. R. Evid. Serv. 737 END OF DOCUMENT
B)

UNITED STATES VS. LONG, 917 F.2D 691, 19 OCTOBER 1990 -CLAIRE United States Court of Appeals, Second Circuit. UNITED STATES of America, Appellee, v. John F. LONG and John S. Mahoney, DefendantsAppellants. Nos. 998, 999, Dockets 891227, 891392. Argued March 28, 1990. Decided Oct. 19, 1990.

Defendants were convicted of violating the Racketeer Influenced and Corrupt Organizations Act (RICO). Judgment was entered in the United States District Court for the Southern District of New York, David N. Edelstein, J. Defendants appealed. The Court of Appeals, Winter, Circuit Judge, held that: (1) trial court committed prejudicial error by failing to instruct jury that predicate racketeering acts of defendants must be related to each other as well as to the criminal enterprise; (2) trial court incorrectly instructed jury that wife of a defendant appearing against him could not be compelled to testify and had absolute right to refuse; and (3) expert testimony regarding hierarchical structure and methods of operation of crime families was improperly introduced. Reversed. See also 697 F.Supp. 651. West Headnotes [1] Racketeer Influenced and Corrupt Organizations 319H 28

319H Racketeer Influenced and Corrupt Organizations 319HI Federal Regulation 319HI(A) In General 319Hk24 Pattern of Activity 319Hk28 k. Continuity or relatedness; ongoing activity. Most Cited Cases In order to establish violation of Racketeer Influenced and Corrupt Organizations Act (RICO) Government must prove two racketeering acts related to each other (horizontal relatedness) as well as related to the criminal enterprise (vertical relatedness) and that they resulted in or posed a threat of continuity of criminal activity. 18 U.S.C.A. 1961 et seq. [2] Criminal Law 110 1038.2

110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1038 Instructions 110k1038.2 k. Failure to instruct in general. Most Cited Cases

Failure to instruct jury, that in order to establish a case under the Racketeer Influenced and Corrupt Organizations Act (RICO) Government must prove two racketeering acts related to each other as well as related to enterprise and that activities resulted in or posed threat of continuity of criminal activity, is not plain error calling for reversal in absence of a contemporaneous objection. 18 U.S.C.A. 1961 et seq. [3] Criminal Law 110 1173.2(2)

110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110k1173 Failure or Refusal to Give Instructions 110k1173.2 Instructions on Particular Points 110k1173.2(2) k. Elements and incidents of offense. Most Cited Cases Trial court committed prejudicial error in Racketeer Influenced and Corrupt Organizations Act (RICO) case by failing to instruct that Government was required to establish that two acts of racketeering were related to each other as well as to the criminal enterprise; properly instructed jury might well have not found necessary relatedness, as many predicate acts consisted of offense and attempts to cover up offense which could not be related and there were only three remaining possible predicate acts, each involving different events. 18 U.S.C.A. 1962(c). [4] Criminal Law 110 1173.2(2)

110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110k1173 Failure or Refusal to Give Instructions 110k1173.2 Instructions on Particular Points 110k1173.2(2) k. Elements and incidents of offense. Most Cited Cases Failure of trial court in Racketeer Influenced and Corrupt Organizations Act (RICO) case to properly instruct jury that predicate criminal acts must be related to each other as well as to the criminal enterprise necessitated reversal of conviction for conspiracy to violate RICO. 18 U.S.C.A. 1962(c). [5] Criminal Law 110 110 Criminal Law 110XX Trial 814(20)

Cited Cases

110XX(G) Instructions: Necessity, Requisites, and Sufficiency 110k814 Application of Instructions to Case 110k814(20) k. Grade or degree of offense. Most 1172.6

Criminal Law 110

110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110k1172 Instructions 110k1172.6 k. Inapplicable to issue or evidence. Most Cited Cases Trial court in Racketeer Influenced and Corrupt Organizations Act (RICO) case committed prejudicial error by challenging defendant's summation claim that wife of defendant testifying against him was doing so under an immunity agreement and if she did not testify she would be subject to prosecution, and erroneously informing jury that wife had absolute right to refuse to testify, and by choosing to appear voluntarily waived marital privilege; instruction suggested that wife was ready and willing to testify against her husband when in fact she was effectively compelled to do so to avoid prosecution and possible incarceration, and error was harmful because spousal waiver of marital privilege is in itself highly damaging. [6] Criminal Law 110 392.21

110 Criminal Law 110XVII Evidence 110XVII(I) Competency in General 110k392.1 Wrongfully Obtained Evidence 110k392.21 k. Electronic telecommunications. Most Cited Cases (Formerly 110k394.3)

surveillance;

Evidence in Racketeer Influenced and Corrupt Organizations Act (RICO) case, consisting of tape recorded conversations of defendant allegedly in furtherance of criminal enterprise, were admissible even though they had not been resealed by court order following their use in another trial; Government satisfied statutory requirement for use of unsealed tapes, that a satisfactory explanation for absence of seal be provided, by explaining that officials had relied upon common understanding that resealing was not required between successive cases. 18 U.S.C.A. 2518(8)(a). [7] Criminal Law 110 423(3)

110 Criminal Law 110XVII Evidence 110XVII(O) Acts and Declarations of Conspirators and Codefendants 110k423 Furtherance or Execution of Common Purpose 110k423(3) k. Character of acts or declarations. Most Cited Cases Tape recordings of conversations between alleged members of criminal enterprise were admissible in Racketeer Influenced and Corrupt Organizations Act (RICO) case, as statements of coconspirators during course and in furtherance of conspiracy; recordings involved alleged participants in enterprise, and concerned conduct of enterprise, such as scheduling of meetings, obtaining loan to which kickback applied, discussing means of obtaining cash for payoffs, and reassuring members of conspiracy. Fed.Rules Evid.Rule 801(d)(2)(E), 28 U.S.C.A. [8] Racketeer Influenced and Corrupt Organizations 319H 94

319H Racketeer Influenced and Corrupt Organizations 319HI Federal Regulation 319HI(C) Criminal Remedies and Proceedings 319Hk92 Evidence 319Hk94 k. Admissibility. Most Cited Cases Trial court in Racketeer Influenced and Corrupt Organizations Act (RICO) case improperly admitted expert testimony regarding organized crime, including description of operation of criminal families and their hierarchical structures, and their general types of criminal activity; only connection between organized crime families and criminal enterprise in question were some introductions made by alleged crime family member to parties who ultimately formed and carried out enterprise. Fed.Rules Evid.Rules 403, 702, 703, 28 U.S.C.A. [9] Witnesses 410 274(1)

410 Witnesses 410III Examination 410III(B) Cross-Examination 410k274 Cross-Examination of Witness to Character of Party 410k274(1) k. In general. Most Cited Cases Trial court erred in Racketeer Influenced and Corrupt Organizations Act

(RICO) case by permitting and itself pursuing hypothetical questions of character witnesses, in which witness was asked to assume as true that defendant had engaged in specified illegal activities and was then asked to state whether witness' opinion of defendant would be different under assumed circumstances. *692 Colleen P. Cassidy,The Legal Aid Soc., New York City, for defendantappellant John F. Long. Lawrence M. Stern, New York City, for defendant-appellant John S. Mahoney. Joan McPhee, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Jonathan Rosenberg, Asst. U.S. Atty., of counsel), for appellee. Before OAKES and WINTER, Circuit Judges, and MUKASEY,FN* District Judge. FN* The Honorable Michael B. Mukasey, United States District Judge for the Southern District of New York, sitting by designation. WINTER, Circuit Judge: Appellants John F. Long and John S. Mahoney were Teamsters officials in New York City who allegedly misused their offices for private profits. After a twelve-week jury trial before Judge Edelstein, they were convicted of participating in and conspiring to participate in a racketeering enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962(c) and (d) (1988), and a variety of other substantive crimes connected with or arising out of the racketeering activity. Appellants raise numerous issues, including errors in instructions to the jury, improper*693 admission of unsealed surveillance tapes and hearsay evidence on those tapes, improper admission of expert testimony on organized crime, insufficiency of evidence on various counts, improper questioning of character witnesses using hypothetical questions assuming the guilt of the defendants, and judicial bias.FN1 The district court's instructions regarding the pattern element of RICO, while proper at the time they were given, were not consistent with an intervening decision of this court and were not harmless error. We also agree that instructions regarding the testimony of Long's wife were erroneous and that the district court improperly admitted prejudicial expert testimony regarding organized crime families. Finally, the questioning of character witnesses in the form of hypothetical questions assuming the guilt of the defendants was improper. Accordingly, we reverse. FN1. Mahoney also challenges his sentence, arguing that his sentence

enhancement was based on insufficient evidence and that he was denied a fair hearing on that issue. These claims are mooted by our reversal. BACKGROUND Appellants were indicted in 1988 on charges of participating in a racketeering enterprise by committing and agreeing to commit numerous crimes between 1978 and 1987. The enterprise alleged was an association in fact consisting of Long, Mahoney, Jesse David Hyman, Vincent Joseph Rotondo, and others to the Grand Jury known and unknown. Both appellants were charged with conspiring to participate in (Count I) and participating in (Count II) the racketeering enterprise in violation of RICO, 18 U.S.C. 1962(c) and (d). The indictment contained ten other counts alleging substantive offenses, including extortion, filing false tax returns, perjury and false statements under oath. Because the claims of error implicate the statute of limitations and the prejudicial effect of certain rulings, a fairly detailed description of the evidence is necessary. The government's proof focused on the criminal activities of Hyman, a dentist who was convicted of extortion and loansharking in 1985 and thereafter became the government's key witness in this case. Hyman testified that he had previous associations with various organized crime families in Buffalo, paying the families a percentage of profits on union dental care plans that Hyman set up with the backing of the families. When he moved his criminal activities to the New York area, Hyman developed a relationship with Rotondo, a member of the DeCavalcante organized crime family in New Jersey. In 1979, Rotondo arranged for a contractor, Ben Parness, with whom Rotondo had an extortionate relationship described infra, to introduce Hyman to Long, the SecretaryTreasurer of Teamsters Local 804 in New York City. Hyman indicated to Long that he was a partner of Rotondo, and Rotondo attended a few meetings between Hyman and Long. Hyman proposed a dental plan for Long's union and requested that Long suggest other Teamsters locals that might be interested in dental plans or pension funds. Long thereafter introduced Hyman to Mahoney, who was Secretary Treasurer of Teamsters Local 808. Hyman reported to Rotondo and Rotondo's superior John Riggi, then acting boss of the DeCavalcante family, that Mahoney was willing to discuss business together. Rotondo responded, [i]f you could do it, God bless you. Nobody has been able to move Mahoney up until now. Hyman told Mahoney that Hyman and Rotondo were

partners. Hyman testified, however, that Mahoney emphasized that he intended to do business only with Hyman. Hyman shared the proceeds from the resulting criminal activities with Rotondo and Riggi. The alleged pattern of racketeering activity, see 18 U.S.C. 1961(1) and (5), consisted of nine racketeering acts, five involving Long alone, one involving Mahoney alone, and three involving Long and Mahoney. FN2 All but three of the nine acts occurred*694 outside the limitations period and must, under RICO, see infra, be related to at least one of the three acts within the period to be valid predicate acts. FN2. Although Mahoney was initially charged with Long in Racketeering Act Six, the government withdrew the charge as to Mahoney prior to the conclusion of its direct case. Racketeering Act One, which occurred outside the limitations period, charged Long with receiving at least $2,000 in kickbacks in 1981 for arranging for Teamsters Local 804 to invest funds in Penvest, a pension fund management company. Hyman testified that he agreed to pay Long a one percent cash kickback for monies invested by Local 804 in Penvest. After Long gave Hyman a check for $100,000 for Penvest, Hyman gave Long $2,000 in cash, or a two percent kickback, to encourage Long's continuing participation in the scheme. According to Hyman, eight or nine months later, Long invested additional Local 804 money with Penvest, and Hyman gave Long $1,000 in cash. Racketeering Act Two, also outside the limitations period, charged Mahoney with receiving kickbacks between April 1982 and February 1983 in the form of cash and a bank loan in return for investing Local 808 funds with Penvest. That Act also charged Long with aiding and abetting Mahoney's wrongdoing by persuading Mahoney to make the investment and by accepting $5,000 from Hyman for vouching for Hyman to Mahoney. According to Hyman's testimony, Hyman offered Mahoney one percent of the total of union pension fund money invested with Penvest and assured Mahoney of making $30,000 to $40,000 per year. Hyman also testified that Mahoney had stated that he needed money to renovate a new home. Hyman said that he would give Mahoney $10,000 in cash up front and enable Mahoney to get a home improvement loan for the balance. When the first investment installment was transferred to Penvest in the spring of 1982, Hyman gave Mahoney $10,000 in cash. Hyman also paid Long $5,000 in cash for introducing Hyman to Mahoney and made cash payments to Rotondo and Riggi. In addition, Hyman testified that he arranged for Mahoney to receive a $20,000 home improvement loan from Sterling National Bank FN3 and gave Mahoney approximately $700 per month

in cash to cover the payments on that loan until February 1983. FN3. Hyman testified that he arranged for the loan application to be submitted to a particular loan officer and that he had his company's lawyer write a letter to the bank to explain away a problem in Mahoney's credit report. Racketeering Act Three, again outside the limitations period, charged Mahoney with receiving a $5,000 cash payment in December 1982 for agreeing not to remove Local 808 funds from Penvest. Long also was charged in Act Three with aiding and abetting Mahoney's receipt of the $5,000 and with receiving $2,000 himself for his efforts to persuade Mahoney to keep the pension fund money in Penvest. During the summer of 1982, Local 808 officials had complained about Penvest's failure to provide financial reports and other documentation regarding Local 808 pension funds. In the fall, Mahoney wrote to Penvest requesting that all funds and assets belonging to the union pension fund be returned. Hyman testified that he contacted Long and asked Long to help persuade Mahoney not to withdraw the funds. Hyman testified that on December 6, 1982, he paid Mahoney $5,000 in cash and assured Mahoney that the union would get the financial reports it needed. Mahoney then indicated that the local would make an additional investment in Penvest of $100,000. Hyman testified that shortly after this matter was resolved with Mahoney, Hyman gave Long approximately $2,000 in cash. Penvest received an additional $100,000 investment from Local 808 in early 1983. Racketeering Act Four, also outside the limitations period, charged Long with receiving kickbacks in 1981 for persuading an official in Teamsters Local 277 to invest union pension funds in American Asset Management Company (AAMC), another investment management fund. Hyman testified that in 1978 or 1979 he developed a relationship with various employees of a New York City brokerage house who *695 would handle stock trading for pension funds managed by AAMC. Hyman and one broker agreed that they would split the broker's commissions. A one percent cash fee to the union people who assisted Hyman in getting the funds invested with AAMC would be covered out of the pension fund management fees. Hyman spoke with Rotondo, Long, and other union contacts to seek business for AAMC. According to Hyman, Long was instrumental in getting an officer of Teamsters Local 277 interested in AAMC, and, when Local 277 placed its pension funds with AAMC, Long received a $2,500 cash payment from AAMC through Hyman. Racketeering Act Five, also outside the limitations period, charged Long with receiving money in 1981 for assisting Emgee Pharmaceuticals, Inc., to avoid unionization. A principal of Emgee Pharmaceuticals had contacted

Hyman regarding threats from AFLCIO organizers, and Hyman sought Long's assistance in resolving the situation. Hyman testified that he later gave Long cash for appeasing the AFLCIO organizer and for agreeing to provide Emgee Pharmaceuticals with a sweetheart contract between the corporation and Local 804. Racketeering Act Six, outside the limitations period, charged Long with receiving payments in 1979 and 1980 for assisting the principals of Bottom Sportswear, Inc., to avoid unionization and picketing. Hyman testified that he paid Long $3,500 for helping Hyman resolve an attempt at union organization at Bottom Sportswear by arranging for a sweetheart Teamsters contract in 1979 and for other assistance in 1980. Racketeering Act Seven, which was within the limitations period, charged Long with extorting payments from maintenance contractor Parness from 1978 until 1987 for assistance that Long provided in getting Parness's company a maintenance contract with United Parcel Service (UPS), whose workers were represented by Long's local. Parness, who testified pursuant to an immunity agreement with the government, stated that in the mid 1970's he had expressed to his friend, Long, interest in getting a janitorial contract with UPS. When UPS was seeking to hire outside contractors, Long told Parness to write to UPS and have his business placed on the bidding list. Parness's company submitted a bid and got a contract in 1974. According to Parness, his payments to Long ceased when his company went into bankruptcy in 1976, but another company he owned took over the UPS contracts and resumed cash payments to Long in 1978. Parness testified that in 1978 he arranged to put Long's wife, Olga, on the payroll in a noshow job in lieu of the cash payments to Long. Parness's relationship with Long thus substantially predated the formation of the racketeering enterprise focusing on Hyman's activities. Parness testified that he had met Rotondo at a social function and introduced him to Long. Rotondo then introduced Parness to Hyman, and asked Parness to introduce Hyman to Long. The government contends that Long's extortion of Parness became part of the enterprise's racketeering activity. However, this contention is not heavily supported by the record. Parness testified that starting in 1978 or 1979 he made cash payments to Rotondo in connection with a contract Parness's company obtained at a housing development in Staten Island. Hyman testified that Long told Hyman about Long's receipt of payments from Parness and suggested that there was an opportunity to make money by getting contracts for Parness's company. He also testified that Rotondo stated that Rotondo and Long had jointly assisted Parness with a labor problem and partly as a result of this assistance had gotten Rotondo and Rotondo's son-in-law on Flair Maintenance's payroll. However, there appears to have been no evidence

that Hyman ever acted on Long's invitation to get involved in the extortion of Parness. Racketeering Act Eight, within the limitations period, charged Mahoney with obstructing a federal grand jury inquiry when he appeared before it on July 14, 1983. The government contends that Mahoney lied to the grand jury about the *696 events alleged in Racketeering Acts Two and Three. Racketeering Act Nine, within the limitations period, charged Long with obstructing justice by making false and misleading statements to a federal grand jury on May 26, 1983. The government contends that Long falsely denied to the grand jury that Hyman had offered Long money for investing union funds in Penvest. In addition to the racketeering charges, the indictment charged Long and Mahoney with numerous substantive crimes set out in the margin, FN4 that largely mirrored the charged RICO predicate offenses but also included false tax return charges relating to Mrs. Long's no-show job with Parness. FN4. Count Three charged Long with extortion in connection with the payments from Parness to Long and his wife in violation of 18 U.S.C. 1951 and 2. Count Seven charged Long with making false declarations before the grand jury on May 26, 1983, see 18 U.S.C. 1623, and Count Eight charged him with perjury at a 1987 deposition during which he was questioned about whether Hyman had offered him any inducement to recommend his services to Mahoney, see 18 U.S.C. 1621. Counts Nine through Twelve charged Long with filing false tax returns reflecting salary income for his wife from Parness's company in 1983, 1984, 1985, and 1986, in violation of 26 U.S.C. 7206(1). Count Four charged Mahoney with making false declarations before the grand jury on July 14, 1983, see 18 U.S.C. 1623, and Counts Five and Six charged him with perjury during depositions in 1987 and 1984, see 18 U.S.C. 1621. Long and Mahoney were convicted on the two RICO counts. Long was convicted on Count Three and Counts Seven through Twelve of extortion, making false declarations before the grand jury, perjury, and filing false federal income tax returns. He was acquitted of Racketeering Act Six, the Bottom Sportswear charge. Mahoney was convicted of making false declarations before the grand jury (Count Four) and perjury (Count Five). He was acquitted on the Count Six charge of perjury in a 1984 deposition. DISCUSSION 1. The RICO Pattern Charge Appellants argue that the district court's charge on the RICO pattern

requirement, which did not require the jury to find relatedness between at least two predicate acts, was prejudicial error. We agree. Appellants were convicted of violating, and conspiring to violate, 18 U.S.C. 1962(c), which provides: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity.... 18 U.S.C. 1962(c) (1988). A pattern of racketeering activity is defined in the RICO statute as requiring at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years ... after the commission of a prior act of racketeering activity. 18 U.S.C. 1961(5) (1988). [1] At the time of trial, the law in this circuit was that the commission of two racketeering acts furthering a RICO enterprise by themselves supplied the elements of relatedness and continuity necessary to find a RICO pattern. United States v. Ianniello, 808 F.2d 184, 192 (2d Cir.1986), cert. denied, 483 U.S. 1006, 107 S.Ct. 3230, 97 L.Ed.2d 736 (1987). Judge Edelstein therefore instructed the jury that it need not find that these racketeering acts were related to each other. He stated that the acts had only to be in some way related to the activities of the enterprise. FN5 These *697 instructions were the subject of a pertinent objection. Less than a month after appellants' convictions, this court, sitting en banc, overruled Ianniello and held that FN5. The instructions stated: [T]he government must prove beyond a reasonable doubt ... that the defendant conducted or participated in the affairs of the enterprise through a pattern of racketeering activity. A pattern of racketeering activity requires that the defendant in question committed at least two acts of racketeering within ten years of each other. You need not find that these racketeering acts were related to each other. However, the government must prove beyond a reasonable doubt that either the racketeering acts were in some way related to the activities of the enterprise or that the defendant in question was able to commit the racketeering acts solely by virtue of his position or involvement in the affairs of the enterprise. proof of two acts of racketeering activity without more does not suffice to

establish a RICO pattern; that the concepts of relatedness and continuity are attributes of activity, not of a RICO enterprise, and that a RICO pattern may not be established without some showing that the racketeering acts are interrelated and that there is continuity or a threat of continuity.... United States v. Indelicato, 865 F.2d 1370, 1381 (2d Cir.) (en banc ), cert. denied, 493 U.S. 811, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989); see also H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 109 S.Ct. 2893, 290002, 106 L.Ed.2d 195 (1989). Under Indelicato and H.J. Inc., therefore, the government must prove that two racketeering acts were related to each other (horizontal relatedness) as well as related to the enterprise (vertical relatedness) and that they resulted in or posed a threat of continuity of the criminal activity.FN6 FN6. Indelicato applies retroactively. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). [2] In United States v. Tillem, 906 F.2d 814 (2d Cir.1990), and United States v. Scarpa, 913 F.2d 993 (2d Cir.1990), we addressed preIndelicato instructions based on Ianniello where defense counsel had not objected. In both cases, we held that the instruction was not plain error calling for a reversal in the absence of a contemporaneous objection. See e.g. Tillem, 906 F.2d at 82426. In the instant matter, a timely objection was made, and we must now decide whether the failure to give an Indelicato relatedness instruction was prejudicial error. [3] The government argues that the charge as given sufficiently encompassed the relatedness requirement of Indelicato and therefore was not erroneous. The government's theory is that because the predicate acts had to be found to be related to the enterprise under the instructions given, the jury necessarily found interrelatedness among the acts. We disagree. Although it may be, as the government argues, that the evidence is such that a jury could have found the predicate acts to be interrelated, we have no assurance that it did so, particularly since that instruction expressly stated that the acts did not have to be related to each other but only had to be in some way related to the activities of the enterprise. See supra note 5. This plainly did not satisfy the Indelicato requirements of proof of both horizontal relatedness and threat of continuity of criminal activity. The horizontal relatedness of the predicate acts is particularly critical in the instant matter because only three of the alleged racketeering acts fall within the statute of limitations period and, under RICO, each defendant must be convicted of at least one racketeering act committed within the statutory period. See 18 U.S.C. 3282 (1988); United States v. Persico, 832 F.2d 705, 714 (2d Cir.1987) (to prove violation of Section 1962(c), at least

one predicate offense must have occurred within five-year statute of limitations for noncapital offenses), cert. denied, 486 U.S. 1022, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988). The predicate acts that fall within the statutory periodLong's obstruction of justice, Mahoney's obstruction of justice, and Long's extortion of Parnessare the most vulnerable to a claim of horizontal unrelatedness, either to themselves or to the various kickback charges. Indeed, our recent decision in United States v. Biaggi, 909 F.2d 662, 68586 (1990), held as a matter of law that the requisite RICO pattern could not be proven simply by showing an offense and a subsequent denial of that offense alleged as an obstruction of justice. We held that a crime and a denial of that crime constitute only sporadic rather than continuing criminal activity. A precise Biaggi objectiona single offense followed by a denial of the offense cannot as a *698 matter of law be a patternwas not made in the district court. However, while the legal claim of insufficiency may have been waived, appellants preserved their right to a correct charge to the jury on the relatedness of an offense to a subsequent denial for purposes of proving a RICO pattern.FN7 FN7. Under Biaggi, it appears that a pattern of racketeering activity cannot be proven with regard to Mahoney because Racketeering Acts Two and three, outside the limitations period, involved the same subject matter as was the basis for the obstruction of justice charge, which is within the period. As for Long, a pattern finding cannot be based on a finding of relatedness between the obstruction of justice and Racketeering Act One, which involve the same subject matter. The horizontal relatedness of the obstructions of justice to the earlier crimes was challengeable on other grounds. The obstructions might easily have been viewed as quintessentially solo acts of self-preservation rather than as part of, and related to, the extortion and kickback schemes. In addition, the threat of continuity of the enterprise's criminal activities posed by the obstructions of justice might have been deemed by the jury to be minimal or non-existent because a continuation of those activities in the face of the ongoing investigation would have been foolhardy. Indeed, except for the Parness extortion, the various kickback schemes appear to have ceased well before the obstructions of justice. Long's extortion of Parness, the evidence of which was barely sufficient to support a finding of guilt, see infra note 8, was also arguably unrelated to the other acts and to the enterprise. Parness was paying off Rotondo on some matters and introduced Rotondo to Long. Parness thereafter put Rotondo and Rotondo's son-in-law on the Flair Maintenance payroll in return for Rotondo's and Long's mutual assistance with a labor matter. Rotondo

then had Parness introduce Long to Hyman for purposes of committing the various racketeering acts that are outside the limitations period. Long in turn invited Hyman to participate in getting kickbacks from Parness, although Hyman never availed himself of that particular opportunity. The Parness extortion thus played a role in the origin of the enterprise and was regarded by Long and Hyman as associated with their other kickback schemes, or so a trier of fact might find. Although sparse, the evidence of horizontal relatedness is thus legally sufficient in light of the elasticity of the pattern requirement. See, e.g., United States v. Kaplan, 886 F.2d 536 (2d Cir.1989), cert. denied, 493 U.S. 1076, 110 S.Ct. 1127, 107 L.Ed.2d 1033 (1990). The fact limitations instruction relatedness that only three of the alleged Racketeering Acts are within the period thus eliminates any possibility that the RICO pattern was harmless. A pattern instruction containing the horizontal element was critical in the instant matter.

[4] The RICO conspiracy counts must also be reversed. A conspiracy to violate Section 1962(c) requires that some member or members of the conspiracy engaged in, or agreed to engage in, a pattern of racketeering activity. See 18 U.S.C. 1962(c) and (d). The erroneous RICO pattern instruction prevented the jury from validly determining whether the requisite pattern existed. In addition, although the statute of limitations for RICO conspiracy does not begin to run until the accomplishment or abandonment of the objectives of the conspiracy, see United States v. Persico, 832 F.2d at 713; United States v. Bortnovsky, 879 F.2d 30, 36 n. 11 (2d Cir.1989), erroneous pattern instructions may have caused the jury to find that the conspiracy continued to within five years of the indictment. Because the predicate acts within the limitations period were found to be part of a pattern on invalid instructions, the jury may also have mistakenly found that those acts were in furtherance of the conspiracy. Accordingly, appellants' convictions on the substantive RICO and RICO conspiracy counts must be reversed. 2. The Olga Long Instruction [5] Long contends that the district court improperly instructed the jury regarding the testimony of his wife, Olga *699 Long, as a witness for the prosecution. Mrs. Long had been subpoenaed to testify before the grand jury, and she testified at trial that she had signed a cooperation agreement with the government under which she agreed to testify in exchange for immunity from prosecution. Her brief substantive testimony related to the Parness extortion charge and the false income tax filing charges. In his summation, counsel for Long referred to Mrs. Long's nervous

demeanor on the stand and stated, Mrs. Long, you saw that nice, nice lady, good woman, put on the stand by the government.... The government gives her an immunity agreement, puts that lady on the stand. A few moments later counsel stated of Mrs. Long, She's put on, again under an immunity agreement, if she didn't testify she'd be subject to prosecution.... The court interrupted sua sponte and instructed the jury, You may ignore that last comment. Ignore it completely. I don't want to make any further comment on that score. The next morning, the court gave the jury the following instruction, which had been submitted by the government: During [Long's counsel's] summation he stated that Ms. Olga Long was subpoenaed. As you have heard during the trial, Olga and John Long are married and as a result of that relationship Olga Long could not and was not subpoenaed by the government at any time. Mrs. Long could not be compelled to testify against her husband and had the absolute right to refuse to testify. Mrs. Long chose to testify, appeared voluntarily and waived the marital privilege. Long's counsel immediately objected. At the next recess, he moved for a mistrial and requested a further charge to the jury indicating that had Mrs. Long invoked her marital privilege she could have been indicted by the government. The motion and request were denied. That was error. We see nothing improper in defense counsel's attempting to deflect the impact of Mrs. Long's appearance as a witness by arguing that it was a quid pro quo for her immunization against criminal charges, and the jury should not have been told to disregard it. Nevertheless, that ruling alone might amount to harmless error. However, the subsequent instruction to the jury conveyed the entirely false message that she had volunteered to testify against her husband even though she could have freely invoked the marital privilege. The instruction thus suggested that Mrs. Long was ready and willing to testify against her husband when, in fact, she was effectively compelled to do so to avoid prosecution and possible incarceration. Although the jury knew of the cooperation agreement, the instruction given by the district court invited the jury to disregard the plain implications of that agreement. Such an instruction is in no sense harmless. Although the government contends on appeal that Mrs. Long's testimony was merely cumulative, the substance or credibility of her testimony is only a minor part of the issue. The very fact of a person waiving the marital privilege and testifying against his or her spouse is itself highly damaging whether or not the testimony supports the government's case or particular counts in only a marginal way. Pains should have been taken to enable the jury to evaluate her appearance

fairly. The instruction given had the opposite effect and affected all the counts against Long.FN8 FN8. In addition, the proof of the Parness extortion by Long was not overwhelming. Parness and an employee of his maintenance company, Douglas Lea, also testified regarding Long's relationship with Parness. Viewing the evidence in the light most favorable to the government, Parness made payments to Long partly out of friendship, partly for help Long provided in running Parness's business, and partly to get and keep a lucrative janitorial contract with UPS for that business. Parness testified that he did not know if Long did anything to ensure that Parness's company would get the UPS contract and that Parness unilaterally increased payments to Long when the UPS business increased. 3. Electronic Surveillance Tapes [6] Appellants argue that the district court erroneously admitted tapes of conversations intercepted pursuant to court-ordered*700 surveillance of Hyman's office. The error claimed is that the tapes lacked the requisite judicial seal and were inadmissible hearsay. We turn first to the issues raised by the absence of a judicial seal. Pursuant to the procedures mandated in 18 U.S.C. 2518(8)(a),FN9 the recordings had been originally sealed by court order at the expiration of the surveillance orders. The tapes then were unsealed by judicial order for use in the Rotondo trial. An affidavit of FBI Special Agent David Stone indicates that upon completion of that trial, the tapes were resealed by an FBI agent and thereafter maintained in a sealed and secure condition in a confidential storage area. The tapes were not, however, resealed by judicial order. FN9. 18 U.S.C. 2518(8)(a) provides that [i]mmediately upon the expiration of the period of the [surveillance] order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. That section further provides: The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom.... Before trial, Long moved to suppress the tape-recorded evidence on the ground that the recordings had not been judicially resealed following the Rotondo trial. Judge Edelstein denied the pretrial motion, finding no

statutory requirement of resealing. A month after his ruling, we held in United States v. Scopo, 861 F.2d 339, 347 (2d Cir.1988), cert. denied, 490 U.S. 1048, 109 S.Ct. 1957, 104 L.Ed.2d 426 (1989), that there is a resealing requirement. We stated that once the trial level proceedings to which the unsealing order pertained have concluded, the tapes should be resealed in order to preserve their integrity should their admission be sought in another trial. Nevertheless, the tapes may be admissible. The purpose of the sealing requirement is to ensure the integrity of evidence obtained by electronic surveillance by providing judicial supervision to prevent alteration. See United States v. Ojeda Rios, 495 U.S. 257, 110 S.Ct. 1845, 1849, 109 L.Ed.2d 224 (1990); Scopo, 861 F.2d at 347. Even after surveillance tapes have been used in another judicial proceeding, they may not be admitted into evidence without a judicial seal or a satisfactory explanation for the absence thereof, 18 U.S.C. 2518(8)(a). See Scopo, 861 F.2d at 347. Because it is clear that the tapes here did not have a judicial seal when they were admitted at trial, we must determine whether the government has presented a satisfactory explanation for the absence of such a seal. We believe that the government's failure to obtain a judicial sealing of the tapes is satisfactorily explained by a good faith, objectively reasonable misunderstanding of the statutory requirements. Ojeda Rios 110 S.Ct. at 1850. Scopo had not yet been decided at the conclusion of the Rotondo trial, see id., and the government was understandably not alerted to our interpretation of the statute. Because that interpretation was not obvious on the face of the statute, we are satisfied that judicial seals were absent because of a good faith misunderstanding as to the statutory requirements. However, the integrity and reliability of the tapes must be assured. Agent Stone's affidavit is extremely cursory, and we believe the matter to be of sufficient importance to require an evidentiary hearing involving live witnesses where appropriate. Accordingly, in the event of a new trial, the district court should hold an evidentiary hearing regarding the chain of custody and integrity of the tapes. If satisfied that they have not been tampered with and are otherwise reliable, the court should admit them into evidence. [7] Appellants also argue that admission of the tape-recorded evidence violated the hearsay rule because the conversations did not constitute statements offered against appellants made by a coconspirator ... during the course and in furtherance of the conspiracy. Fed.R.Evid. 801(d)(2)(E). Whether a statement was in furtherance of a conspiracy is a question of fact to be determined by the court by a *701 preponderance of the evidence, see United States v. BeechNut Nutrition Corp., 871 F.2d 1181,

1198 (2d Cir.), cert. denied sub nom. Lavery v. United States, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989), and the district court's determination will not be reversed unless clearly erroneous, see United States v. Salerno, 868 F.2d 524, 537 (2d Cir.), cert. denied, 493 U.S. 811, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989). Co-conspirator statements may be found to be in furtherance of the conspiracy within the meaning of Rule 801(d)(2)(E) if they prompt the listener to respond in a way that facilitates the carrying out of criminal activity, United States v. Rahme, 813 F.2d 31, 35 (2d Cir.1987), although the listener need not be a member of the conspiracy, see Beech Nut, 871 F.2d at 1199. The tapes here involved conversations in Hyman's offices at Resource Capital Corp. In them, Hyman speaks to his secretary, his business partner, various employees, and others. The conversations concern the conduct of the alleged enterprise, such as scheduling meetings with Long and Mahoney, obtaining the loan for Mahoney, discussing means of obtaining cash for payoffs, and reassuring members of the conspiracy. We are satisfied that these conversations facilitated the carrying-out of the conspiracy in question, and the district court's findings were therefore not clearly erroneous. 4. Expert Testimony on Organized Crime [8] Appellants argue that the district court abused its discretion by admitting expert testimony regarding organized crime. We agree that the testimony was improperly admitted. Judge Edelstein ruled that the government's first witness, F.B.I. Special Agent James Kossler, might testify as an expert on organized crime families under Federal Rules of Evidence 702 and 703 FN10 and that such testimony was also permissible under Rule 403.FN11 Agent Kossler's testimony described the division of La Cosa Nostra into families, some of which operated in New York and New Jersey. He went on to describe the hierarchical structure of such a family, including the respective roles of the boss, the underboss, the consiglieri, capos and soldiers. He defined the difference between made members and associates and the meaning of vouching, sit downs and sweetheart contracts. He stated that organized crime families engage in gambling, loansharking, theft, fencing and labor racketeering. Finally, he identified Rotondo as an underboss of the DeCavalcante crime family. FN10. Fed.R.Evid. 702 provides that an expert witness may testify as to scientific, technical, or other specialized knowledge where such testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. Fed.R.Evid. 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. FN11. Fed.R.Evid. 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.... We fail to see how Agent Kossler's testimony assisted the jury either to understand the evidence or to determine a fact in issue as required by Rule 702. See supra note 10. The claimed nexus between the crimes charged and organized crime families appears to be the fact that Rotondo was a made member of the DeCavalcante family and Hyman was an associate. Rotondo introduced Hyman to Long so they could arrange the various kickback schemes and the two sweetheart contracts. Long in turn introduced Hyman to Mahoney for the same purpose. In return for Rotondo's introductions, Hyman shared with Rotondo and his superior, Riggi, the ill-gotten gains. We agree that the fact that Rotondo had contacts in organized labor as a result of his position in the DeCavalcante crime family and demanded a fee for his services was relevant background to explain to the jury how and why he was able to facilitate *702 Hyman's various schemes by introducing him to Long. Hyman, however, could have testified to that fact, and there was no need to call an expert to explain the hierarchical structure of organized crime families, their jargon, the various unrelated criminal activities in which they engage, and so forth. The sharing of the proceeds from illegal kickback schemes with those who facilitate them is hardly a unique arrangement found only where made members introduce associates to crooked labor leaders. Indeed, recent highly-publicized scandals in New York City have involved payments to political leaders in exchange for their services as facilitators of corrupt schemes. See Biaggi, 909 F.2d at 673, 683 (payments to political officials for introductions and for securing favorable action from other public officials); United States v. Friedman, 854 F.2d 535, 55051 (2d Cir.1988) (one percent of proceeds of government contract to political leader who served as peacemaker), cert. denied, 490 U.S. 1004, 109 S.Ct. 1637, 104 L.Ed.2d 153 (1989). We do not believe that a New York jury needs expert testimony to understand that those who facilitate or broker kickback schemes may expect a commission from the proceeds. Sweetheart contracts are also not the unique product of organized crime, the term being a general one used to refer to corrupt collective bargaining agreements. See, e.g. Bauer Welding and Metal

Fabricators, Inc. v. NLRB, 358 F.2d 766, 769 (8th Cir.1966) (sweetheart contracts are contracts not in the employees' best interest which are sometimes entered into between dishonest union officials and management). Moreover, Hyman's payments to Rotondo, while necessary to invoke his assistance, were relevant only as background information. Had Rotondo acted as an unpaid broker on Hyman's behalf, none of the charges against Long or Mahoney would have been weakened. In fact, the expert testimony had no probative value with regard to the charges against Mahoney because he had indicated to Hyman an unwillingness to be involved with Rotondo, and Rotondo himself had told Hyman that Mahoney had previously declined to cooperate. In addition to being only marginally relevant, Agent Kossler's extensive descriptions of organized crime families were substantially prejudicial. Although Rotondo played only an introductory role in facilitating Hyman's relationship with Long, calling Agent Kossler as the first prosecution witness had the effect of implicating Long and Mahoney as part of a much larger criminal organization and associating them with all of the sinister aspects and activities of that criminal organization. It thus operated less to aid the jury than to prejudice it. The government relies heavily upon United States v. Daly, 842 F.2d 1380 (2d Cir.), cert. denied sub nom. Giardina v. United States, 488 U.S. 821, 109 S.Ct. 66, 102 L.Ed.2d 43 (1988). In Daly, Agent Kossler's testimony also identified organized crime families in the New York area, described their membership rules and conduct, explained some mob jargon, and described their infiltration of labor unions by crime families. Daly upheld admission of Agent Kossler's testimony as expert testimony and found no error in the determination that the likely prejudice from such testimony would not outweigh its probative value. Id. at 138889. In Daly, the Gambino crime family was charged as the RICO enterprise, id. at 1383, and Kossler's testimony was helpful to the jury's evaluation of the evidence regarding that family. Id. at 1388. However, the enterprise alleged in the instant case was not a crime family, and the sharing of proceeds from Hyman's illegal activities with Rotondo was the sole nexus with organized crime. The need for Agent Kossler's explanations was thus quite different. The fact that the agent did not testify about the particular facts of the instant matter does not reduce the prejudice. This sort of generalized informationby definition not directly related to the case at handwas quite prejudicial in a case with so thin a nexus to organized crime. For example, because it was generalized, cross-examination could not blunt its prejudicial effect. The evidence thus clearly had an adverse impact beyond

tending to prove *703 the fact or issue that justified its admission into evidence. United States v. Figueroa, 618 F.2d 934, 943 (2d Cir.1980). We appreciate that the district court has considerable discretion in balancing probative value against prejudicial effect and in evaluating the need of the jury for expert testimony, and that criminal conduct may be a proper subject of such testimony. Daly, supra; United States v. Roldan Zapata, 916 F.2d 795 (2d Cir.1990). At the time of Agent Kossler's testimony, however, the court had before it only the indictment and an offer of proof, neither of which demonstrated relevancy. Greater inquiry should have been made as to the degree to which the hierarchy, jargon and general criminal activities of organized crime families would be relevant. 5. Hypothetical Questioning of Character Witnesses [9] The district court permitted and itself pursued questions to several defense character witnesses that required the witnesses to assume the guilt of the appellants. In light of our recent decision in United States v. Oshatz, 912 F.2d 534 (2d Cir.1990), this questioning was error. We detail the questioning for purposes of determining whether the error was harmless, an issue discussed in the conclusion to this opinion. The first instance of this form of questioning was during the testimony of government witness Milton Weinstein, an accountant for Local 808. On cross-examination by the defense, Weinstein gave some character testimony favorable to appellant Mahoney. On redirect, the prosecutor asked Weinstein, If you were to review the evidence in this case ... and you were to learn from that evidence that a corrupt agreement did exist between John Mahoney and Jesse Hyman, would that change your opinion of John Mahoney? When defense counsel objected, Judge Edelstein stated, You opened the door.... This is appropriate cross-examination. Weinstein responded that such evidence would change his opinion and that Weinstein would have resigned as accountant for the funds had he suspected any such corruption. The prosecutor further asked, And, would it change your opinion of Mr. Mahoney ... if you were to learn that Mr. Mahoney lied to the FBI and to the grand jury and to others regarding the manner in which he obtained a loan from Sterling National Bank? to which Weinstein responded, It certainly would. A second instance involved hypothetical questions assuming Long's guilt. David Vega, a UPS truck driver and member of Local 804, was called by Long and gave testimony relevant to the Bottom Sportswear allegation of Racketeering Act Six. Vega explained that under their union contract Local 804 members must honor picket lines and that he did not know of any instance in which Long interceded with a Local 804 member or with UPS management on behalf of an employer whose premises were being picketed.

On redirect examination, Vega testified that it would have been out of character for Long to have encouraged union members to ignore picket lines. On recross, the government pursued questions regarding whether Vega's opinion of Long's character would change were Vega to learn that Long had invested the union dues of union members in a particular company in exchange for cash kickbacks and had in fact urged UPS supervisors to cross a picket line in order to help out an employer and had accepted cash kickbacks in exchange for providing a sweetheart contract to Emgee Pharmaceuticals. The district court overruled Long's objections and stated that defense counsel had opened the door to questions regarding Vega's view of Long's character. A third instance of questioning with hypotheticals assuming an appellant's guilt involved Brian O'Dwyer, an attorney for Local 808 and administrator of the Local 808 pension fund. O'Dwyer was called by Mahoney and testified on direct examination that Local 804's good experience with Penvest had been in his view an excellent recommendation of Penvest because Local 804 had a reputation of being *704 probably the cleanest, most efficient Teamster local in the United States. O'Dwyer did not mention John Long in that testimony. On cross-examination by the government, O'Dwyer answered Yes to the question, You testified on direct examination that that recommendation that John Mahoney told you he had received from John Long meant something to you because Local 804 had a reputation as being among the cleanest and most efficient Teamster locals in the country, do you remember that testimony? The government then asked if it would change O'Dwyer's opinion of Local 804 to learn that one of the principal officers of that local, the secretarytreasurer, John Long, accepted bribes and kickbacks in exchange ... for giving sweetheart contracts to employers. When O'Dwyer responded, No, it wouldn't. I couldn't believe that of John Long, Judge Edelstein overruled Long's objection to the line of questioning and directed the witness, Assume that is a fact. The government then asked O'Dwyer to assume that the evidence in the criminal case proved that Long had accepted money in exchange for providing sweetheart contracts. O'Dwyer twice again responded that it would not change his opinion. When asked if it would change his opinion to learn that Mr. Long had accepted bribes and kickbacks in exchange for an agreement to invest his union's fund in Penvest, O'Dwyer responded that he really can't conceive of ever

thinking that of John Long. Judge Edelstein then had the following exchange with O'Dwyer: THE COURT: You're an attorney, Mr. O'Dwyer? THE WITNESS: I am, Judge. THE COURT: You know about hypotheticals don't you. And you know about questions that ask you to assume facts, don't you? THE WITNESS: I do, your Honor. THE COURT: You're being asked to assume facts. THE WITNESS: It's hard for me to assume this fact, your Honor. As a man it's very difficult for me to understand this. THE COURT: I find it very difficult to understand your answer. Assume these facts and give your answer. A: Assuming all the facts it would change my opinion. A witness for Long, John Wallace, experienced similar questioning by the government and the court. Wallace, a UPS porter and Local 804 member, testified that Long was well known, well respected and well liked in response to questions from Long's counsel as to whether Long was well known to members of the union and to UPS management. Wallace testified that he did not know of any instance in which Long had interceded with UPS management on behalf of an employer. Wallace also testified that he had known Long for over twenty years but would not lie for Long. On cross-examination, the government asked Wallace if his opinion of Long would change were he to become aware that John Long had accepted cash kickbacks in exchange for investing union members' dues in a particular investment company. When the witness repeatedly protested that he wouldn't believe it, the court ordered him to assume the fact as posed by the government and respond to the question. When Wallace answered that his opinion of Long was so high that even the government's suggested proof would not change his view, the court intervened again, accused Wallace of answering evasively, and expressed disbelief of Wallace's responses. Wallace then finally answered yes to a series of questions premised on purported conduct for which Long was on trial. CONCLUSION We reverse as to all counts. For reasons stated supra, the RICO and RICO conspiracy counts must be reversed.

With regard to Long's convictions for substantive crimes, they must also be reversed in light of the multiple errors. Although the expert testimony had some probative value in light of his relationship with Rotondo, it was prejudicial in that it invited *705 the jury to take a somewhat exaggerated view of Long's criminal activities. In addition, the hypothetical questioning of his character witnesses must be viewed in light of Oshatz as undermining the presumption of innocence with regard to the non-RICO counts. Finally, as discussed in the body of the opinion, the district court's instruction regarding Mrs. Long's testimony misled the jury by creating the false impression of a witness ready and willing to testify against her spouse. This impression seriously tainted all the counts. Whether any one of these errors would, absent the others, have been harmless is irrelevant in light of the cumulative prejudice caused. We also reverse Mahoney's convictions for perjury and false statements. Agent Kossler's testimony had no probative value in light of Mahoney's affirmative disassociation from Rotondo. It was, therefore, substantially prejudicial. The hypothetical questioning of character witnesses also was prejudicial and related to Mahoney's entire relationship with Hyman as well as to the obstruction of justice count. Moreover, the evidence was that Long initiated Mahoney's participation in the enterprise, and the indictment named Long as an aider and abetter in two of the three racketeering acts involving Mahoney. If Long were found guilty, Mahoney's conviction would probably follow. We believe, therefore, that the tainting of the jury's consideration of the evidence against Long likely affected its consideration of the evidence against Mahoney. Again, we believe the cumulative prejudice calls for reversal on all counts. The effect of the Biaggi decision on the various counts against each defendant, see note 7 supra, must be determined in the first instance by the district court, should the government elect to retry the defendants. C.A.2 (N.Y.),1990. U.S. v. Long 917 F.2d 691, 135 L.R.R.M. (BNA) 2812, 117 Lab.Cas. P 10,417, RICO Bus.Disp.Guide 7609, 31 Fed. R. Evid. Serv. 526 END OF DOCUMENT