Foreign Jurisprudence On Evid.docx

STATE OF ARIZONA v. PHILLIP ALAN BOCHARSKI Supreme Court of Arizona, August 08, 2008 CHIEF JUSTICE ZLAKET delivered the Opinion of the Court. 1. Defendant Phillip Alan Bocharski moved from Michigan to Arizona with Frank Sukis in November 1994. The two settled just outside the small town of Congress. The defendant initially stayed with Sukis, but in December moved to a well-populated campsite on Ghost Town Road. Around Christmas, Sukis gave the defendant a Kabar knife, slightly smaller than one he kept for himself. This knife was described by Bocharski as his "pride and joy," and he was frequently seen with it. 2. In April 1995, Sukis moved to a location near the defendant. Shortly thereafter, an eighty-four-year-old woman named Freeda Brown established a campsite between Bocharski and Sukis. She had a trailer, a truck, a dog, and numerous cats. When Brown first arrived, Sukis sold her some gas. He noted that "she reached in the back seat of her truck" and retrieved money to pay for the gas from "a plastic zip-lock bag with a little clutch purse inside it." The money smelled of cat litter, so he got rid of it as soon as possible. 3. Sukis lived on a disability pension from the federal government. Bocharski, on the other hand, seldom had money. Once in a while, he did odd jobs or yard work for folks in the area, but he also did a lot of "free-loadin’," as Sukis put it. At Sukis’ suggestion, Brown hired Bocharski to drive her around and do errands because she had poor eyesight and arthritis. Witnesses later testified that the defendant often helped Brown, and the two of them appeared to have a good relationship. 4. On May 10, Sukis picked up Bocharski at the latter’s tent. The two of them saw Brown polishing her truck, but did not stop to speak with her. Bocharski and Sukis then drove to the local food bank and obtained three boxes of food. One box was for their friends, Richard Towell and Mary Beth Anglin, who lived in a remote campsite and had no transportation. Sukis later testified that while on their way to the Towell/Anglin campsite, the defendant suggested "maybe he should offer or get rid of Brown, on account of her arthritis, cause she was complaining all the time, she was praying God he’d take her out of her misery." 5. After Sukis and Bocharski left the campsite, they drove to a local bar. Once there, Sukis loaned the defendant ten dollars so he could get something to drink. Bocharski said he needed to call a man in Wickenburg about a masonry job in Prescott, for which he was to receive $500 in advance. Sukis testified that the defendant appeared to make two attempts to reach this unidentified employer by phone. Thereafter, the men discussed a hiding place for the money, if and when it was received, with Sukis suggesting a spot underneath a big rock by his television antenna.

6. The next morning, Sukis was late picking up Bocharski. He met the defendant walking toward him along the road. As a result, he had no occasion to drive past Brown’s campsite. Bocharski indicated that since the two men had last seen one another, he had gone back to town and "called the guy and had him drop the money off over at the library, or in back of the library, underneath the propane tank." Bocharski had no vehicle. According to Sukis, the nearest phone was about a "mile, mile and a half" away from the defendant’s place. 7. When they reached the library, Bocharski returned some books and went behind the building for five to ten minutes. He reappeared with $500 in $50 bills, wrapped in a piece of newspaper. Bocharski immediately gave Sukis $150 to fix his truck and bought some beer and tobacco for a friend, Jerry Stanberry. According to Sukis, the money did not smell of cat litter. The two men then drove to Stanberry’s house. A fellow named Duane Staley was there when they arrived. Staley later testified that Bocharski had his shirt and shoes off and looked like he had recently taken a shower. However, nothing in the evidence indicated when or where he might have done so. 8. At trial, Stanberry claimed that the defendant told him Freeda Brown "was feeling kind’a blue and useless because she was crippled, couldn’t get around very much anymore and she was planning on shooting herself and that he Bocharski felt sorry for her, which we all d But he said she might be better off if somebody would knock the old biddy in the head." Stanberry admitted that he had never mentioned this to the police or in his pretrial statements. 9. After leaving Stanberry’s house, Bocharski and Sukis drove to the Towell/Anglin campsite. According to Sukis, the defendant then told him that the money he had picked up was actually for a "hit job" in Prescott. Sukis replied that he did not believe Bocharski. 10. After the men arrived at the campsite, Sukis and Anglin left to get groceries. According to Towell, Bocharski was in a "very high pitch of excitement," and "twitchy." When Towell inquired why, Bocharski purportedly said that he was "in serious trouble" because he had robbed and killed an "old lady" at her trailer in Congress. He explained that he had been "in a panic, that he needed money and he needed food." He further stated that he got five hundred dollars from the victim, and that no weapon or fingerprints would be found. Finally, he asked Towell if Sukis could be trusted with "a secret." Towell said no, and made specific reference to Sukis’ alcoholism. Later that day, the defendant allegedly asked Towell to provide an alibi for him, but the latter refused. 11. 1When Sukis and Anglin returned, Bocharski announced that he would be staying at the campsite for a while and if a man came looking for him about a job, Sukis should let that person know where he was. The defendant later gave Towell and Anglin two hundred fifty dollars for the purchase of food and drink. Towell testified that Bocharski indicated this was "part of the money he got when he killed the old lady." Towell claimed that he did not believe the defendant at the time.

12. On Bocharski’s second night at the camp, Towell awoke to find him "cryin’, settin’ on the side of the bed." The defendant again said "he was in serious trouble, what was he gonna do." According to Towell, Bocharski "was worried about himself." 13. On May 13, Duane Staley noticed that Freeda Brown’s dog had no water and its leash was wrapped around a tree. He had not seen Brown in a while and grew concerned. He knocked on her trailer door and tried to open it. He then obtained help from Sukis, who got inside and found Brown’s body on the bed, covered by a blanket. Staley went to call the Sheriff’s Department while Sukis stayed at the location.

blood found on the defendant’s belongings was his own. Two of his fingerprints were found on the door of the deceased’s trailer, but could not be dated. 19. The defendant did not testify at his trial. He was convicted of first degree felony murder and first degree burglary. The jury also found that the state’s allegation of a prior felony conviction was true. Bocharski was sentenced to twenty-one years’ imprisonment on the burglary charge, and to death for the murder. We review this case on direct, automatic appeal. Trial Issues

14. The officer who arrived at the trailer observed that the woman’s body had already begun to decompose. He concluded that her death was due to natural causes. He assumed that Brown’s appearance — her head was covered in blood and other matter — was due to cats having nibbled at her face. There were no signs of a struggle. He therefore made no attempt to preserve the scene and had a mortuary pick up the body. He also called Brown’s apparent beneficiaries, the Hadlocks, to come get the trailer. Brown had posted many notes around her truck and trailer explaining that upon her death, all belongings should go to the Hadlocks.

A. Gruesome Photographs 20. The trial court allowed six photographs into evidence over defense counsel’s objection that they were gruesome, highly inflammatory, and unduly prejudicial:

Exhibit 42: the victim’s clothed body, showing gross marbling of the skin, discoloration of the face, and fluid coming from both the nose and mouth;

15. On May 14, the Hadlocks drove to Congress, picked up the trailer, and parked it in Quartzsite. Meanwhile, the medical examiner told police that she suspected Brown’s death was not the result of natural causes. A subsequent autopsy disclosed that Brown had perished as a result of at least 16 stab wounds to the head.

Exhibit 43: a closeup of the victim’s face in profile before it was cleaned

16. The next morning, the police called the Hadlocks and left a message telling them not to do anything to the trailer. By the time they received the message, however, the Hadlocks had already sprayed Lysol in parts of the trailer and emptied its contents into garbage bags. In a previous letter to Mrs. Hadlock, Brown explained that "she kept her money hidden inside her .38 holster underneath the bed inside the camper." Mrs. Hadlock looked and found $500 in that location.

Exhibit 45: a closeup of the victim’s hand and finger; and

17. On May 16, the police examined Brown’s trailer and belongings. Blood found in the trailer was tested and determined to be Brown’s. That same day, the sheriff executed a SWAT team raid on the Towell/Anglin campsite. An officer asked Towell whether Bocharski had ever mentioned anything about an old lady in Congress. Towell registered surprise, and immediately replied that the defendant had said he "killed that old lady for five hundred dollars." 18. Towell also told the police that Bocharski was wearing khaki shorts and tennis shoes on May 10, and jeans and boots on May 11. The police never found the shorts or tennis shoes, but in searching Bocharski’s campsite they discovered a Levis button and three eyelets in the campfire. Based on statements made by Sukis and Towell, officers searched around a mine and a nearby cemetery in hopes of finding Bocharski’s Kabar knife, which was last seen by any witness three months before the killing. The knife was never located. In fact, no murder weapon was ever found. Subsequent tests showed that

Exhibit 44: the victim’s torso and face after the body had been washed and her head had been shaved to make the wounds more visible;

Exhibits 46, 47: views of the victim’s skull, the top and its contents having been removed, with a metal rod going through an opening to the inside.

21. Relevant photographs may be received in evidence even though they "also have a tendency to prejudice the jury against the person who committed the offense." This does not mean, however, that every relevant photograph should automatically be admitted. If a photograph "is of a nature to incite passion or inflame the jury," the court must determine whether the danger of unfair prejudice substantially outweighs the exhibit’s probative value. A trial court’s decision in this regard will generally not be disturbed unless we find a clear abuse of discretion. 22. Bocharski concedes that the photographs of the victim’s body were relevant. We agree. Rule 401 declares that evidence which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" is relevant. We have previously recognized that the state has the burden of proving every element of first degree murder. We have also suggested that photographs of a homicide victim’s body are generally admissible because "the fact and cause of death are always relevant in a murder case.”

23. However, if a defendant does not contest the "fact that is of consequence," then a relevant exhibit’s probative value may be minimal. Under such circumstances, gruesome photographs may "have little use or purpose except to inflame," and their prejudicial effect can be significant. In the present case, the photographs introduced by the state went to largely uncontested issues. The defense did not challenge the fact of the victim’s death, the extent of her injuries, or the manner of her demise. 24. Exhibits 42 and 43 depict both the state of the body’s decomposition and facial wounds. There was some question about how long the victim had been dead before she was found. This was discussed by the medical examiner and a forensic pathologist who performed the autopsy. The witnesses could not ascertain an exact time of death, only coming within a few days in their estimates. Moreover, while diagrams were available to depict the size and location of the deceased’s most profound injuries, the state introduced exhibit 44 to show superficial head wounds, and exhibit 45 to show a cut on the victim’s finger. Testimony indicated that the latter was not a defensive wound, making its significance marginal at best. 25. Nevertheless, we do not conclude that the trial court abused its discretion by admitting Exhibits 42-45. The state "cannot be compelled to try its case in a sterile setting." We are, however, concerned about the admission of Exhibits 46 and 47. Their admission was unnecessary and quite risky. The state contends that these photos were required to show the angles and depths of the penetrating wounds. According to the state, this information was important because a juror asked the medical examiner about it. The defense argues that the photographs had no probative value; the manner of the victim’s death was not in issue and the photographs failed to show that the defendant’s missing knife caused the wounds. 26. The trial judge originally allowed exhibits 46 and 47 to be admitted for the purpose of showing the angles of the wounds. However, the prosecutor did not elicit testimony concerning these angles or their significance. Indeed, there was no testimony at trial rendering Exhibits 46 and 47 particularly meaningful. The photographs do not reveal what type of knife was used, nor did the prosecutor refer to them when examining witnesses regarding a possible murder weapon. Although the pictures met the bare minimum standard of relevance — what we referred to as "mere technical relevance" — they had little tendency to establish any disputed issue in the case. Accordingly, we are left to conclude that they were introduced primarily to inflame the jury. 27. Let us again make clear that not every relevant photograph is admissible. Trial courts have broad discretion in admitting photographs. However, judges also have an obligation to weigh the prejudice caused by a gruesome picture against its probative value. In the present case, the record reflects that the trial judge conducted a Rule 403 weighing. In our view, however, he reached the wrong conclusion with regard to Exhibits 46 and 47. These two photos should not have been admitted.

28. This, however, does not end our inquiry. We still must determine whether "we can say beyond a reasonable doubt, that the error did not contribute to or affect the jury’s verdict." Our focus is "not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." 29. Here, the photographs of the corpse were startling, as evidenced by the jurors’ visible reactions to them. In particular, two jurors showed physical signs of distress upon seeing Exhibits 42, 43, and 44, with one of them apparently trying to prevent herself from hyperventilating. The judge noted on the record that after seeing these reactions to the first group of photographs, he "watched the jurors closely as they passed around 46 and 47." His observation that "they seemed to take them in stride" is uncontroverted. Bocharski has not shown that Exhibits 46 and 47 had a particularly adverse effect on this jury. 30. It is true, as the defense asserts, that the only physical evidence tying Bocharski to the crime scene were two fingerprints that could not be dated. As the defendant notes, these were not particularly significant, given his relationship with the victim. In addition, despite a thorough search, the police never recovered the murder weapon. Although the prosecutor argued that Bocharski’s missing knife could have inflicted the victim’s wounds and that the defendant likely disposed of the weapon, no connection was conclusively established. Thus, the defendant claims that the state’s case was terribly weak, making the photographs especially damaging. But this argument overlooks Bocharski’s highly inculpatory statements, and the far-fetched explanations he gave for the money in his possession. 31. According to the state’s theory of the case, Bocharski concocted the story about prospective employment. The prosecutor emphasized the unlikelihood that any real employer would leave $500 in cash under a propane tank behind a library for construction work to be performed in the future. The story, he argued, was even more fantastic considering that the purported recipient, Bocharski, was a relative newcomer to the area who lived in a tent outside of this remote venue. The out-of-town employer was never identified, nor did any witness at trial corroborate his or her existence. 32. The state asserted that the defendant killed the victim, stole her money, disposed of the murder weapon, went to the library, hid the money underneath the propane tank, returned home, and burned his clothes beyond recognition except for a Levis button and three eyelets. Thus, aided by an incomplete police investigation, Bocharski was able to eliminate every physical trace of his involvement in this crime. 33. The state’s theory was certainly supported by damaging admissions made by the defendant to Sukis, Towell, Stanberry, and a fellow inmate at the Yavapai County jail, Donald Fields. The defense counters that these witnesses were vulnerable to attack by virtue of their inconsistent statements, questionable backgrounds, and personal habits. Substance abuse and mental illness were significant features of their individual

histories. But the jury was able to evaluate these weaknesses, all of which were exposed at trial. 34. The state’s proof, though not ironclad, was more than sufficient to support the defendant’s conviction. Nothing before us suggests that the jurors’ thoughtful consideration of the evidence was hampered by the objectionable photographs. Their verdict reflects careful attention to detail. Indeed, they chose felony murder instead of premeditated murder — a distinction that might easily have been overlooked if the verdict had been attributable to outrage or emotion generated by the gruesome pictures. Accordingly, we find beyond a reasonable doubt that the error in admitting Exhibits 46 and 47 did not contribute to or affect the jury’s verdict.

B. Stipulated Testimony 35. While awaiting trial, the defendant was allegedly involved in an assault on a fellow inmate, Donald Fields, in the Yavapai County jail. Fields was inadvertently placed near another prisoner who had been arrested by the police with Field’s assistance. He testified at a pretrial hearing that this prisoner attacked him in the presence of other inmates, several of whom joined in beating him for seven or eight hours. Fields alleged that during the altercation the defendant put a stick up to his throat several times and threatened him. 36. Over repeated objections, the trial judge ruled that this witness could testify to Bocharski’s statements. The testimony was admitted in the form of a stipulation, although nothing in the record discloses why the witness did not appear in person. The stipulation was as follows: Don Fields was arrested on January 15, 1996 for not paying a traffic ticket; he was taken to the Prescott Jail. By coincidence he was put in Jail with the person he helped catch the previous September, 1995. This person had taken a lady’s purse at Albertson’s in Prescott and Mr. Fields had helped to catch him. The fact that Mr. Fields had helped to catch this person became generally known to people in the jail cell. Mr. Bocharski was in that jail area and he approached Mr. Fields. Mr. Bocharski told Mr. Fields, I’m in here for murder and there’s nothing they can do to me. If it were up to me, you would be dead right now. At a separate time, Mr. Bocharski told Mr. Fields, I’m in here for murder because of a snitch like you. Mr. Bocharski made these statements to Mr. Fields in a serious and threatening manner.

37. Defendant claims that the trial judge committed reversible error in admitting this evidence. Rule 801(d)(2) provides that an admission by a party opponent is not hearsay and is therefore admissible if offered against the person who made it. As a prerequisite to admissibility, however, party admissions must be relevant. 38. Only one part of the stipulation causes us concern. The defendant’s alleged statement, "if it were up to me, you would be dead right now," had no relevance to the conduct at issue here. It did not relate to the victim or to the crime of which the defendant was accused. At most, it was used to show Bocharski’s propensity for violence, and to imply that he acted in conformity with that trait. Such evidence is improper unless the defendant has put his own character in issue. Therefore, the judge erred in admitting this statement. 39. Again, however, we view the error as harmless, given the other statements made by the defendant on the same occasion, as well as earlier in time. We find beyond a reasonable doubt that this one statement had no impact on the verdict.

C. Manslaughter Instruction 40. The defendant claims that the trial court should have given a jury instruction on manslaughter, arguing that it was a lesser-included offense. He rests this claim solely on the testimony of Richard Towell, who related Bocharski’s statement about being "in a panic, that he needed money and needed food." We view this single piece of evidence as insufficient to warrant a finding that the homicide was committed either "recklessly" or "upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim." The evidence did not justify a manslaughter instruction. 41. Additionally, the jurors eschewed first degree premeditated murder and second degree murder, both of which were covered by the instructions. Instead, they found the defendant guilty of first degree felony-murder, which has no lesser included offenses. "When a defendant is convicted of first degree murder rather than second degree murder, any error as to instructions on lesser included offenses is necessarily harmless, because the jury has necessarily rejected all lesser-included crimes."

D. Destruction of Evidence 42. Bocharski moved to dismiss the charges below because the government failed to preserve evidence. The motion was denied. The defendant concedes that there was no bad faith on the part of the sheriff’s deputies who failed to safeguard the scene where the body was found, or to gather other physical evidence that might have been available. He urges, however, that we discard the bad faith requirement of State v. Youngblood, and instead adopt the dissent’s approach in that case, as follows: When the government loses potentially exculpatory evidence, the trial court must "balance the degree of culpability of the government, the materiality of the evidence, and the potential prejudice to the defendant in

order to protect the defendant’s constitutional due process right to a fair trial. If the loss of the evidence threatened the defendant’s right to a fair trial, the judge has discretion concerning the manner in which to protect the defendant’s rights." We decline this invitation. 43. However, even were we to adopt this balancing strategy, it would not help Bocharski’s cause. Though the police work was admittedly inadequate, the defendant fails to provide even a hint of what exculpatory evidence there might have been. Additionally, the "culpability of the government" is hardly egregious. The decomposing body of an 84-year-old woman, bearing no immediately obvious signs of trauma, was found in her own trailer. There was no indication of a struggle. At worst, the officer on the scene was negligent. There was no deliberate effort to destroy anything. We also note that the trial court gave a Willits jury instruction concerning the state’s failure to preserve evidence. Thus, the jurors were free to consider this less-than-ideal police work in deciding the matter. Sentencing Issues

A. Mitigation 44. Defendant paints an unhappy picture regarding his difficulty in obtaining a thorough mitigation investigation. As best we can tell, the presiding judge of Yavapai County initially ordered an appropriation of $1500 to begin the work. A second request for funds was denied. The third request resulted in an additional grant of $2500. Although more money was eventually allocated, the record is not clear as to its timing or amount. Approval generally took 30 to 45 days from the submission of requests, extending the time in which Mary Durand, a highly experienced mitigation specialist, was forced to perform her duties. It is clear that the defendant struggled to obtain funding during the entire presentencing period, including an eight-week hiatus in which he was essentially prevented from continuing the mitigation investigation because of the county’s reluctance to pay for it. 45. On April 28, 1997, Durand testified at a presentence hearing that in her experience the average cost of a mitigation investigation "is about 20 to $100,000. The average in the State of California is 150,000." Durand indicated that this particular case would, at a minimum, require her to travel to three states in order to interview the defendant’s mother, wife, and foster parents. She noted that Maricopa County, for whom she regularly worked as a mitigation specialist, never denied her a trip in the course of an investigation because of the importance of conducting a thorough examination. 46. At a hearing on July 21, Bocharski’s sentencing date was extended to give defense counsel an opportunity to request additional funding for the transportation of witnesses. The defendant reluctantly agreed, expressing concern that the date would be

postponed only to have funding denied again. However, almost immediately thereafter Bocharski changed his mind, which led to the following extraordinary series of events. 47. The defendant sent a letter to the judge requesting that the sentencing occur without his attorneys being present. Upon receiving this correspondence on July 29, the judge called an impromptu sentencing hearing. Because of the extremely short notice, only Bocharski’s trial attorney (who was not involved in the sentencing and was only present because he happened to be at the courthouse) and a substitute prosecutor were initially available. The original prosecutor and the other defense attorney arrived while the hearing was in progress. 48. Bocharski told the judge that his decision to expedite sentencing was based in part on the previous denials of mitigation funding and the uncertainty in making yet another request. The defendant indicated that he did not "want any more motions to be made towards funding or anything like that. That’s — I’m done asking." He also said this decision was based on his belief that further mitigation evidence would not affect the judge’s decision and would be cumulative. 49. The prosecutor argued in favor of waiting for the testimony — either in person or telephonically — of key witnesses. He also suggested that the mitigation specialist should be subpoenaed to appear. This argument was apparently designed to prevent the defense from raising the funding issue on appeal. Nevertheless, the court proceeded to sentence Bocharski after accepting his "waiver" of further witnesses. 50. We are initially troubled by the defense’s difficulty in obtaining funds to support the mitigation investigation. In every capital case, the court, is required to consider the defendant’s background before imposing sentence. A mitigation specialist is "an individual who specializes in compiling potentially mitigating information about the accused in a capital case"; this individual aids defendants in "presenting favorable evidence to the factfinder in the penalty phase of trial." 51. Here, decisions concerning mitigation expenditures were apparently left to the county’s presiding judge. In our view, however, the trial judge should play the most important role in determining whether additional funds are necessary. "A trial court has broad discretion in managing the conduct of a trial, and has a duty to properly exercise that discretion.” 52. Here, the trial judge openly expressed concern that the defendant’s decision to end the mitigation investigation was based on a lack of funding. He also admitted that he could imagine other evidence which might be important to sentencing, but acknowledged that this was mere speculation until such proof was presented. In addition, both the prosecutor and defense counsel spoke of their reluctance to proceed under these circumstances.

53. A red flag is raised when sentencing is expedited based solely on the defendant’s desire to speed up the process. Part of Bocharski’s motivation was his apparent frustration with obtaining funding for the mitigation specialist. In addition, he may have been reluctant to hear witnesses describing the horrifying events of his childhood, which he sought to avoid by disposing of a hearing. Finally, it was alleged that the defendant was extremely concerned about conditions at the Yavapai County jail and perceived that the Department of Corrections offered a better living environment. 54. The trial court expedited the matter based solely on the defendant’s request, even though there was no finding that a sentencing delay would prejudice anyone. Despite vigorous opposition, the judge relied on the defendant’s waiver of further mitigation evidence. Bocharski’s lawyers stated that they still had research to complete and expressed confusion over their role in the proceedings due to the defendant’s written request to be sentenced without an attorney present. One of them explained that should defense counsel’s motion to continue be denied, I believe it would be my ethical obligation to move to withdraw on the basis, that I personally cannot provide him what I believe to be adequate representation in regards to sentencing, given the sum total of the circumstances surrounding the mitigation work. The judge never ruled on this request to withdraw and so the attorneys were forced to make impromptu arguments. The decision to proceed clearly left them surprised and unprepared. 55. It also appears that out of this sudden rush to sentence came an instantaneous special verdict. Although he initiated the sentencing immediately upon receiving the defendant’s letter, the judge managed to present his special verdict to the attorneys right after rejecting their pleas to continue the mitigation hearing. Indeed, his written special verdict was filed and stamped by the clerk of the court on July 29, the very same day. The whole process leaves us with an uneasy feeling and very little to independently reweigh. 56. While it is true that a defendant can waive certain rights, such a waiver must be balanced against the state’s interest in conducting a fair trial and upholding the integrity of the judicial process. "Motions for self-representation must be balanced against the government’s right to a fair trial conducted in a judicious, orderly fashion." A further limit on the waiver of a constitutional right is that it must be made voluntarily, knowingly, and intelligently. This requirement strengthens the system’s integrity by protecting the due process entitlement of the accused. The rights protected by the Sixth and Fourteenth Amendments to the United States Constitution "create a delicate balance between the defendant’s right to counsel and the right to proceed in propria persona." 57. We have previously upheld a defendant’s right to waive the presentation of mitigation evidence. This case, however, is different. In Kayer, the defendant refused to cooperate with the mitigation specialist concerning psychological evidence she wanted to explore. The judge and defense counsel believed that the defendant was competent

to make this decision. However, the defendant did not concede defeat and stressed to the trial judge that he wanted the mitigation specialist and his attorneys to advocate on his behalf at the mitigation hearing. The defense presented seven mitigating circumstances at that hearing. 58. By contrast, in this case, Bocharski essentially gave up. He terminated mitigation efforts and asked to be sentenced immediately without counsel. It is not clear that the defendant was competent to make such a decision; his attorneys argued that the desire to cancel the mitigation hearing reflected his mental illness and that the court "shouldn’t be in the position of relying on what he has to say about that." Counsel also questioned Bocharski’s understanding of the purpose of the witnesses’ testimony. Controverting the defendant’s idea that additional testimony would have no effect, one of his attorneys explained that there is "a whole other part of his life that he probably doesn’t even understand or appreciate, and so there is a difference. Even if he wants to waive them, I wouldn’t waive them." Nevertheless, the trial judge accepted the defendant’s waiver. Because of this, the mitigation specialist and several other important witnesses did not testify. 59. In Roscoe, we upheld the defendant’s right not to present mitigation evidence. Roscoe raised the issues of ineffective assistance and invalid waiver of counsel based

upon the granting of his motion to proceed pro se and his decision not to present certain mitigation evidence. We stated that an attorney can properly be influenced by his client’s wishes and "deference is especially appropriate where the client’s request involves a strong privacy interest." The burden of proffering mitigation evidence is on the defendant and "reinforces the conclusion that his personal decision not to present certain mitigating evidence is within his discretion." 60. The present case is clearly distinguishable. Here, Bocharski did not forego further mitigation solely for privacy reasons; instead, he made a decision, against the strong advice of his lawyers, based in large part on his growing frustration with the court system and poor jail conditions. The trial court acknowledged the probable existence of further mitigation evidence which may have made a difference in sentencing. Indeed, Mary Durand, who did not testify at the sentencing hearing, had previously told the judge that there were other witnesses she wanted to interview and bring before the court, including the defendant’s mother, foster parents, wife, uncle, brother, and the pedophile truck driver to whom the defendant was sold as a child. But the court never heard from these witnesses, at least in part because Yavapai County denied funds for transportation and preparation. These witnesses allegedly would have testified about the family’s history of alcoholism and mental illness, among other things. 61. We are not comfortable with the record in this case. So long as the law permits capital sentencing, Arizona’s justice system must provide adequate resources to enable indigents to defend themselves in a reasonable way. The process must be orderly and fair. We do not expect mitigation funds to be unlimited, nor is there a set amount that

will suffice. The unique facts of each case will determine what is "reasonably necessary" for an indigent to adequately present a defense. 62. Here, funding problems interfered with the fair and orderly administration of justice. Accordingly, we must reverse and remand for resentencing.

B. Victim Impact Evidence 63. The trial court must weigh all aggravating and mitigating circumstances in passing sentence. While the judge may consider any mitigating evidence offered by the defendant, he or she must take into account only statutorily enumerated aggravating circumstances in determining the penalty. Thus, victim impact evidence may not be considered in aggravation, and may only be used to rebut mitigating evidence. 64. Sentencing recommendations offered by a deceased’s survivors have no relevance in a capital case. Here, the judge identified in his special verdict those items he considered in imposing the death penalty. They include the presentence report, the attorneys’ memoranda, testimony of the doctor who performed the autopsy, and the statements of those testifying on defendant’s behalf. Moreover, the judge stated, "I’ve also considered the testimony of the daughter of the victim in this case." She had testified to the impact of this crime on herself and the community, as well as the lack of remorse expressed by the defendant. She specifically recommended that Bocharski be given the death penalty. Although we normally presume that the trial judge has focused only on relevant sentencing factors, his statement raises unnecessary questions about the extent to which he may have considered the daughter’s testimony in this case. 65. Crime victims and/or their families have the constitutional right to be heard at sentencing. As indicated above, however, the sentencing recommendation of a victim’s family member is not relevant in a capital case. Thus, the trial judge must be vigilant to ensure that such testimony, once received, is not improperly considered in the sentencing equation. The instant special verdict is not helpful in this regard. 66. In addition, the judge did not state whether his consideration of the presentence report excluded a letter from Quartzsite residents who knew the victim and requested that the death penalty be imposed. Although "pre-sentence reports are not per se inadmissible in capital sentencing," a judge must not consider any portion of the report that would otherwise be excluded. Again, questions have been raised here by the trial judge’s specific reference to the presentence report without mentioning that he disregarded any irrelevant content. 67. In any event, we are remanding for new sentencing on other grounds. We simply caution that whenever a trial court explicitly states that it is taking a presentence report or victim impact statement into consideration, it should point out what portions are being considered and which, if any, are being ignored.

Disposition 68. We affirm the defendant’s convictions. We set aside his sentences and remand for proceedings not inconsistent with this opinion. The defendant has raised additional claims of error, all related to sentencing, "in order to avoid future claims of procedural default and to preserve them for further review." We need not address them in view of our decision to remand for resentencing.

JUSTICE MARTONE, concurring in the judgment.

I join the court in affirming the convictions and remanding for a new sentencing hearing. I write separately to express my disapproval of parts of the opinion. I.

Photographs

Bocharski conceded the relevance of all the admitted photographs. The question then is simply whether the trial court abused its discretion in weighing probative value against prejudicial effect under Rule 403. As evidenced by the majority’s sua sponte speculation here, appellate courts are not in a very good position to second guess such judgments. There has been no showing in this case that the trial court abused its discretion in admitting these photographs. Bocharski points to no particular photograph and no particular conduct by the trial court. Murder is a grisly business and is likely to involve grisly photographs. Absent egregious error, we should not disturb Rule 403 weighing by the trial judge. There was no appeal to emotion, sympathy, or horror here. One’s view on the exclusion of otherwise relevant evidence is influenced by one’s view of the jury system. I do not believe that jurors need to be protected from themselves. In my experience, jurors quite properly separate the wheat from the chaff. Indeed, the majority went so far in Logerquist v. McVey, to allow jurors to make threshold questions about the validity of scientific assertions. While I do not go that far, I do not believe that we should be paternalistic with our jurors. The trial court did not err in admitting any of the photographs. II. Stipulated Testimony The majority concludes that Bocharski’s statement "if it were up to me, you would be dead right now," had no relevance and therefore it was error to admit it. The test for relevance under Rule 401, is "any tendency" to prove or disprove a fact. This evidence plainly meets that test. Bocharski was angry at Fields because he was a "snitch." Bocharski told Fields that he was in jail because of a "snitch" like him. It was Fields’ status as a "snitch" that caused Bocharski to express a desire to kill him. In so doing, Bocharski acknowledged his own guilt. But for another "snitch," he would not have been in jail. Thus, the stipulated testimony read as a whole and in context indeed was relevant and it was not error to admit it.

III. Victim Impact Evidence The special verdict in this case is absolutely silent about victim impact evidence. Bocharski’s brief spends one and one-half pages on it. I thus do not understand the majority’s treatment of this non-issue. Under A.R.S. §§ 13-703(C) and (D), victim impact evidence is admissible in a capital case. Section 13-703(C) states that "the victim has the right to be present and to testify at the hearing. The victim may present information about the murdered person and the impact of the murder on the victim and other family members." Subsection (D) specifically says "in evaluating the mitigating circumstances, the court shall consider any information presented by the victim regarding the murdered person and the impact of the murder on the victim and other family members." Finally, the statute instructs that "the court shall not consider any recommendation made by the victim regarding the sentence to be imposed." Without any indication that the judge relied on the victim’s sentencing recommendation, there was simply no error below and thus no occasion to dwell on this issue.

Justice McGregor, specially concurring. I join the majority opinion, with the exception of the majority’s conclusion that the trial judge erred in admitting into evidence Exhibits 46 and 47. On that question, I agree with Justice Martone’s conclusion that the trial judge did not abuse his discretion in admitting the challenged photographs.

COMMONWEALTH OF PENNSYLVANIA v. MICHAEL SERGE Supreme Court of Pennsylvania April 25, 2006 Michael Serge (Appellant) appeals the sentence of life imprisonment entered by the Court of Common Pleas of Lackawanna County (trial court) following his conviction for first-degree murder. We granted allowance of appeal in this case to consider the admissibility of a computer-generated animation (CGA) illustrating the Commonwealth’s theory of the homicide. For the reasons discussed herein, we hold that the trial court properly admitted the CGA as demonstrative evidence. Facts and Procedural History On the morning of January 15, 2001, Appellant shot his wife, Jennifer Serge (Victim), three times, killing her inside their home in Scott Township, Lackawanna County. Appellant was arrested that morning and charged with one count of first-degree murder and one count of third-degree murder. On June 18, 2001, prior to trial, the Commonwealth filed a motion in limine, seeking to present the prosecution’s theory of the fatal shooting through a CGA based on both forensic and physical evidence. On September 14, 2001, following an evidentiary hearing, the trial court granted the Commonwealth’s motion in limine provided that certain evidentiary foundations were established at trial. The trial court required the Commonwealth to authenticate the animation as both a fair and accurate depiction of expert reconstructive testimony and exclude any inflammatory features that may cause unfair prejudice. To safeguard against potential prejudice, the trial court required the pre-trial disclosure of the CGA. At his jury trial held January 29, 2002 to February 12, 2002, Appellant alleged that he had acted in self-defense as his wife attacked him with a knife. He further asserted that he should be acquitted on the grounds of justifiable self-defense. Alternatively, Appellant argued that his extreme intoxication at the time of the shooting rendered him incapable of formulating the specific intent to kill. The Commonwealth countered that the killing was intentional, and that Appellant, a former Lieutenant of Detectives with the Scranton Police Department, “used his decades of experience as a police officer to tamper with the crime scene to stage a self-defense setting.” In particular, the Commonwealth asserted that Appellant had moved his wife’s body and strategically positioned her near a knife that he had placed on the floor, as depicted in the CGA. On February 7, 2002, during its case-in-chief, the Commonwealth presented a CGA as demonstrative evidence to illustrate the expert opinions of its forensic pathologist, Dr. Gary W. Ross, and crime scene reconstructionist, Trooper Brad R. Beach. The CGA showed the theory of the Commonwealth based upon the forensic and physical evidence,

of how Appellant shot his wife first in the lower back and then through the heart as she knelt on the living room floor of their home. More importantly, the animation showed the location of Appellant and his wife within the living room, the positioning of their bodies, and the sequence, path, trajectory, and impact sites of the bullets fired from the handgun. The trial court thoroughly instructed the jury of the purely demonstrative nature of the CGA both before the animation was presented and during the jury charge prior to deliberation. In particular, the court noted that the CGA was a demonstrative exhibit, not substantive evidence, and it was being offered solely as an illustration of the Commonwealth’s version of the events as recreated by Dr. Ross and Trooper Beach. Finally, the court informed the jury that they should not confuse art with reality and should not view the CGA as a definitive recreation of the actual incident. On February 12, 2002, the jury found Appellant guilty of first-degree murder and the trial court immediately sentenced him to life imprisonment. Appellant filed a timely appeal, challenging several of the jury instructions and evidentiary rulings of the trial court. In a published Opinion filed December 3, 2002, the Superior Court affirmed the trial court’s Judgment of Sentence. On August 25, 2004, we granted allowance of appeal limited solely to the issue of whether the admission of the CGA depicting the Commonwealth’s theory of the case was proper. The admissibility of a CGA is an issue of first impression in the Commonwealth. Discussion We determine that, for the reasons below, a CGA is admissible evidence in this Commonwealth. In particular, CGA evidence must be weighed by the same criteria of admissibility; namely, probative value versus prejudicial effect to which all other evidence is subject. Notably, certain concerns prior to admission carry more weight and deserve closer scrutiny when admitting CGA evidence than more traditional forms of evidence. Appellant argues that the trial court erred in allowing the Commonwealth to present a CGA, which was used to introduce evidence of the Commonwealth’s theory of the killing. Appellant alleges that the Commonwealth’s use of the CGA: (1) lacked proper authentication; (2) lacked proper foundation; and (3) was, essentially, cumulative and unfairly prejudicial. The Commonwealth counters this argument and posits that the trial court properly admitted the CGA as demonstrative evidence used to explain or illustrate the testimony of its expert witnesses and should be subject to the same rules of admissibility as any other demonstrative evidence. Society has become increasingly dependent upon computers in business and in our personal lives. With each technological advancement, the practice of law becomes more sophisticated and, commensurate with this progress, the legal system must adapt. Courts are facing the need to shed any technophobia and become more willing to embrace the advances that have the ability to enhance the efficacy of the legal system.

However, before we are too quick to differentiate CGA’s or create a special test for their admission, it must be noted that the rules for analyzing the admission of such evidence have been previously established. In particular, a CGA should be treated equivalently to any other demonstrative exhibit or graphic representation and, thus, a CGA should be admissible if it satisfies the requirements of Pa.R.E. 401, 402, 403, and 901. When the CGA is used to illustrate an opinion that an expert has arrived at without using the computer, the fact that the visual aid was generated by a computer does not matter because the witness can be questioned and cross-examined concerning the perceptions or opinions to which the witness testifies. In that situation, the computer is no more or less than a drafting device.; There are three basic types of evidence that are admitted into court: (1) testimonial evidence; (2) documentary evidence; and (3) demonstrative evidence. Presently, at issue is demonstrative evidence, which is “tendered for the purpose of rendering other evidence more comprehensible to the trier of fact.” As in the admission of any other evidence, a trial court may admit demonstrative evidence whose relevance outweighs any potential prejudicial effect. The offering party must authenticate such evidence. “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Demonstrative evidence may be authenticated by testimony from a witness who has knowledge “that a matter is what it is claimed to be.” Demonstrative evidence such as photographs, motion pictures, diagrams, and models have long been permitted to be entered into evidence provided that the demonstrative evidence fairly and accurately represents that which it purports to depict. The overriding principle in determining if any evidence, including demonstrative, should be admitted involves a weighing of the probative value versus prejudicial effect. We have held that the trial court must decide first if the evidence is relevant and, if so, whether its probative value outweighs its prejudicial effect. This Commonwealth defines relevant evidence as “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Relevant evidence may nevertheless be excluded “if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” At issue is both the basis and form of the demonstrative evidence offered. An expert witness may offer testimony other than opinions. An expert witness may testify “in the form of an opinion or otherwise.” An important function of an expert witness is to educate the jury on a subject about which the witness has specialized knowledge but the jury does not. To help perform the function of educating a jury, an expert witness may use various forms of demonstrative evidence. Demonstrative evidence continues to evolve as society advances technologically. Medical witnesses use computerized axial tomography, i.e. CAT scans, and magnetic

resonance imaging instead of, or with, traditional x-rays. Forensic pathologists previously used only blood types in an attempt to bolster their testimony and implicate a defendant, but now use specific DNA matches to prove the statistical probability that a defendant was, by virtue of biological evidence at the scene of a crime, present at some point in time. The law has been flexible enough to accommodate scientific progress and technological advances in all fields, and should continue to do so. The law permits expert testimony if it “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Such expert testimony is not limited to that which is purely verbal; rather, it includes pertinent illustrative adjuncts that help explain the testimony of one or more expert witnesses. Presently, had the Commonwealth’s experts, a crime scene reconstructionist and a pathologist, used traditional methods, they may have drawn chalk diagrams or sketches on a blackboard to help explain the basis for their opinions. Instead, they used a CGA to more concisely and more clearly present their opinion. The difference is one of mode, not meaning. The law does not, and should not, prohibit proficient professional employment of new technology in the courtroom. This is, after all, the twenty-first century. As such, we must turn to the traditional factors considered in determining if a particular CGA is admissible. Therefore, despite the relative novelty of CGA evidence, the evaluation of its admissibility relates back to this long-standing evaluation of probative value versus prejudicial value. At its simplest, an animation is merely a sequence of illustrations that, when filmed, videotaped or computer-generated, creates the illusion that the illustrated objects are in motion. Traditionally-because they are drawings-animations have been subjected to the fair-and-accurate-portrayal test and have been admitted, within the trial judge’s discretion, generally for illustrative purposes. As a preliminary matter, a CGA should be deemed admissible as demonstrative evidence if it: (1) is properly authenticated pursuant as a fair and accurate representation of the evidence it purports to portray; (2) is relevant; and (3) has a probative value that is not outweighed by the danger of unfair prejudice. However, new factors must be considered when evaluating a CGA. In particular, in determining the admissibility of a CGA the courts must address the additional dangers and benefits this particular type of demonstrative evidence presents as compared with more traditional demonstrative evidence. As a result, the court must, as discussed infra, issue limiting instructions to the jury explaining the nature of the specific CGA. It should be noted that conspicuously absent among the factors to be considered in determining the relevancy and prejudice of evidence is the potency of the evidence. Thus, although the use of illustrative demonstrative evidence by an expert, such as a CGA, may help explain his or her opinion and make the testimony more persuasive than it otherwise might have been, it is not proper grounds for excluding this relevant evidence.

Here, both the trial court and the Superior Court determined that the Commonwealth had satisfied all foundational requirements for admitting the animation and therefore it was properly admitted as demonstrative evidence. After applying the three-prong test noted above, we agree. Appellant initially argues that the Commonwealth did not properly authenticate the CGA. The law provides, “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Courts have said that computer-generated demonstrative evidence must be relevant and authenticated by testimony that (a) the witness has personal knowledge of the exhibit’s subject matter and (b) the exhibit is accurate․ To lay a proper foundation for computer-generated visual evidence, the proponent must first establish through witness testimony the accuracy of the exhibit’s portrayal of the substantive information in question. In authenticating the CGA, the Commonwealth presented the testimony of multiple individuals, including: (1) Randy Matzkanin, the Director of Operations for 21st Century Forensic Animations; (2) Trooper Beach; and (3) Dr. Ross. Additionally, Patrolman Jared Ganz, Patrolman Joseph Zegalia, Trooper George Scochin, Trooper Connie Devens, and Trooper Gustas testified at trial concerning the physical evidence and the measurements taken at the crime scene, both of which were used in creating the CGA. Further, the creator of the CGA testified at the Motion in limine hearing that the CGA was a graphical presentation of another expert’s opinion, not the conclusions or calculations of a computer or himself. Matzkanin described the process employed in making the animation and testified that it was a strict depiction of the Commonwealth’s forensic evidence and expert opinions. Matzkanin stated that he used the expert opinions provided by Trooper Beach and Dr. Ross as well as the measurements gathered at the crime scene. Moreover, Matzkanin discussed both the computer software and hardware that created the three dimensional CGA drawings and their general use in the field. Matzkanin, at the questioning of the Commonwealth, carefully explained the differences between a CGA and a simulation. Matzkanin stated that he began working on the project at the end of January 2001, or beginning of February 2001, and continued until December 20, 2001. During his testimony, Matzkanin explained that photos are used to reconstruct the room, including color and the like, but the major factor in recreation is the measurements. However, Matzkanin explained that the character depictions are more difficult because of the stock models used by the company to represent people. He further testified that the models do not represent the defendants. Next, the CGA is created in a rough draft and sent to the Commonwealth for further input. Matzkanin could not recall the exact number of versions created but specified that many changes were made to ensure that the CGA conformed to the opinions of Trooper Beach and Dr. Ross. Matzkanin further explained that drawings are recorded in time intervals of thirty frames per second and thereafter transferred onto a DVD or video tape to create the image of motion.

At trial, and in his brief, Appellant argues that various depictions within the CGA are unsupported by any evidence. In particular, Appellant contends that the CGA was littered with choices unsupported by either the record or the opinions of Trooper Beach and Dr. Ross. These alleged liberties taken by the Commonwealth included: (1) depicting the victim as kneeling during one of the gun shots; (2) placing the victim’s left arm on the floor during the second shot; (3) the position of Appellant; (4) the two-handed grip on the gun by Appellant; (5) the combat-style crouch by Appellant; and (6) the appearance of a knife in the final scene of the CGA. Appellant emphasizes the fact that one image within the CGA shows the victim on her knees before Appellant fires the third bullet. Contradicting Appellant’s contention, Matzkanin testified that the poses, although not guaranteed to be 100% accurate, were within the confines of the findings and suggestions of the expert opinions of both Dr. Ross and Trooper Beach. Specifically, Dr. Ross testified that, concerning the distance between Appellant and the victim, based upon the lack of soot or gunpowder, the bullet path or trajectory for the various wounds, and that, as a result of the first shot, the victim would have collapsed to the floor in a kneeling position. In addition, Dr. Ross noted that he was able to surmise that the victim was kneeling and facing Appellant because of an abrasion on her left cheek consistent with falling onto her eyeglasses from a distance of approximately eighteen to twentyfour inches. Moreover, the depictions of the physical locations of Appellant and the victim were necessary within the overall framework of the presentation. Clearly, reconstruction will not reveal the exact pose of each finger, hair, distances precise to the micrometer, or other minor aspects of the individuals involved. As noted in the instructions to the jury, and during the cross-examination of Matzkanin and Trooper Beach, Appellant highlighted the alleged inconsistencies within the presentation and any flaws, thereby reducing the credibility the jury might assign to the CGA. However, the CGA is still properly authenticated as a demonstrative piece of evidence illustrating the opinions of the Commonwealth’s expert witnesses. As noted by the trial court, any continued objection to how the video was created is merely appropriate fodder for cross-examination. Appellant had many opportunities to, and did, cross-examine Matzkanin and to try to undermine the credibility of the video and the opinions of the expert witnesses. The cross-examination highlighted the purpose of a CGA. Specifically, Appellant’s trial counsel asked Matzkanin if he had any idea if the measurements were accurate and whether errors in the report would render the CGA incorrect. In addition, Matzkanin was questioned about a knife that appeared in the last scene of the animation, but never appeared in the victim’s hands. Despite attempting to emphasize an apparent facial illogicality to this sequence, the CGA was merely representing the theory of the Commonwealth. In particular, it was the contention of the Commonwealth that Appellant placed the knife there after firing the shots in an attempt to stage the crime scene and create a claim of self-defense. The Commonwealth also theorized that Appellant had moved the victim’s right arm because the blood evidence indicated to Dr. Ross that Appellant had moved the arm of the victim after death in an attempt to create a self-

defense claim. Appellant, through cross-examination, highlighted the information that actually was either unfounded or that represented an arbitrary choice where the data was unknown, such as the exact positions of each body part. In accordance with the purpose of the CGA, the trial court instructed the jury that the CGA did not represent fact, but the theory of the Commonwealth and was meant to demonstrate the opinions of the Commonwealth experts. The CGA is not meant to represent the theories of both parties; rather, as noted by both the trial court and Matzkanin, the sole purpose of the CGA and role of Matzkanin was to represent the findings of Trooper Beach and Dr. Ross. Matzkanin made no active decisions, rather, he merely interpreted the data and made corrections to the CGA based on the recommendations given to him by the two experts. The CGA is, ultimately, a representation of the expert opinions and demonstrative evidence. The line of questions presented by Appellant highlighted the alleged uncertainty regarding specific facts within the CGA and alerted the jury to the possible lack of credibility of Trooper Beach, Dr. Ross, and, by extension, the CGA. However, the jury ultimately found the testimony of the Commonwealth experts, and the CGA, to be credible. As such, the foundation was properly laid and the CGA was, in fact, what the Commonwealth purported it to be, a depiction of the various testimonies of the Commonwealth witnesses concerning their theory about the chain of events. As such, the CGA was properly authenticated. Because the CGA was properly authenticated, we must turn to the second prong of the three-part test, which involves a question of its relevancy. The CGA was relevant because it clearly, concisely, and accurately depicted the Commonwealth’s theory of the case and aided the jury in the comprehension of the collective testimonies of the witnesses without use of extraneous graphics or information. The Pennsylvania Rules of Evidence define relevant evidence as, “having any tendency to make the existence of the fact that is of consequence to the determination of the action more probable or less probable than would be without the evidence.” As stated by the Superior Court, “The animation’s relevance lay in its clear, concise, and accurate depiction of the Commonwealth’s theory of the case, which included the rebuttal of Appellant’s self-defense theory, without use of extraneous graphics or information.” In addition, it melded the theories of the various Commonwealth experts into a concise presentation that removed the testimony from the abstract into a concise and clear explanation of the individual testimony and how that testimony fits within the overall framework and consistency of all of the expert testimony. Appellant argues that, in the alternative, even if the CGA is relevant, it is cumulative. However, as noted by the Superior Court, although the evidence did not offer anything inherently original, it presented a clear and precise depiction of the Commonwealth’s theory and evidence as presented by its experts. Demonstrative depictions of the testimony of an expert have long been allowed into evidence, including drawings or depictions of bullet trajectories as here. Therefore, the cumulative argument carries no

weight. Rather, the question is whether the evidence presented by the CGA is relevant and whether its probative value outweighs its prejudicial effect. Accordingly, we must turn to the third and final prong, prejudice. It is within this prong that a CGA has the potential danger due to the visual nature of the presentation. Various jurisdictions that have been faced with the issue of CGA-evidence have noted the potentially powerful impact based upon its visual nature, but, nonetheless, have permitted CGA evidence. Despite this potential power, even inflammatory evidence may be admissible if it is relevant and helpful to a jury’s understanding of the facts and the probative value outweighs the prejudicial effect. Presently, the content of the CGA was neither inflammatory nor unfairly prejudicial. Any prejudice derived from viewing the CGA resulted not from the on-screen depiction of the Commonwealth’s theory, but rather was inherent to the reprehensible act of murder. The possible unnecessary and prejudicial aspects of a CGA were not present. In particular, the CGA did not include: (1) sounds; (2) facial expressions; (3) evocative or even life-like movements; (4) transition between the scenes to suggest a story line or add a subconscious prejudicial effect; or (5) evidence of injury such as blood or other wounds. Instead, much like a two-dimensional hand drawing of bullet trajectories, the CGA merely highlighted the trajectory of the three bullets fired, concluding from ballistics and blood splatter that the body had been moved after the victim died as part of Appellant’s attempt to stage his self-defense. The CGA was devoid of drama so as to prevent the jury from improperly relying on an emotional basis. The major difference between a traditional chart or drawing of bullet trajectories and the instant presentation lays in the three-dimensional nature that enabled the Commonwealth experts to present their exact theory and the underlying mathematics used in formulating its case. In particular, the ability to rotate the view allowed the Commonwealth’s experts to explain the exact path of the bullets and show why the evidence suggested that it was not a killing in self-defense. As such, it was a clearly relevant and helpful tool for an expert to present an informed opinion to the jury. Within his argument concerning prejudice, Appellant, in this appeal, additionally raises the issue that public policy should prevent the presentation of a CGA, which, allegedly, costs between $10,000.00 and $20,000.00 to make. He notes that his entire defense fund, provided by the Commonwealth due to his in forma pauperis status, was limited to $10,000.00. Any additional expenditure would then come from Appellant. This argument is waived because it was not raised at the trial court level. However, Appellant argues that we should consider this factor because of the implications of permitting the Commonwealth to present expensive CGA productions at trial against an indigent defendant. Precedent exists concerning the admission of expert testimony that is beyond the means of an indigent defendant. This Court recently addressed the rights of an indigent defendant when the prohibitively expensive expert was a psychiatrist. Specifically, in

Commonwealth v. Fisher, this Court opined that in Ake v. Oklahoma, the U.S. Supreme

Court held “that when a capital defendant’s mental health is at issue, the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense.” However, this Court limited access to those funds to circumstances where the defendant’s sanity at the time of the offense was a significant factor at trial. “The Court in Ake held that indigent defendants are entitled to cost-free access to psychiatric experts only in very limited circumstances where the defendant’s sanity at the time of the offense was a significant factor at trial. In Ake, there was a defense of insanity, not ․ questions of mitigation relevant to a sentencing determination.” This Court in Commonwealth v. Bardo, held that a defendant does not have an absolute right to a court appointed investigator based on Ake. “Traditionally the appointment of an investigator has been a matter vested in the discretion of the court.” In Commonwealth v. Carter, this Court upheld the denial of Commonwealth funds to assist an indigent defendant in hiring experts in the fields of toxicology, neurology, statistics, jury selection, hand writing analysis, and sociology/criminology. This Court opined that the decision to appoint an expert witness is within the sound discretion of the trial court and will not be disturbed except for a clear abuse of that discretion. There is no obligation on the part of the Commonwealth to pay for the services of an expert. However, in a capital case, an accused is entitled to the assistance of experts necessary to prepare a defense. Similarly, there can be no obligation to provide the defendant the finances necessary to create a CGA of his or her own. Chief Justice Cappy’s concurring Opinion accurately summarizes the ultimate concerns regarding the economic disparity between the Commonwealth and an indigent defendant. Thus, we ultimately conclude that the relative monetary positions of the parties are relevant for the trial court to consider when ruling on whether or not to admit a CGA into evidence. Such a question and determination are within the province of the trial court and should not be overturned absent an abuse of discretion. In particular, the trial court sitting with all facts before it, including the monetary disparity of the parties, must determine if the potentially powerful effect of the CGA and the inability of a defendant to counter with his or her own CGA should lead to its preclusion. Nevertheless, as noted above, this specific argument is waived in the instant matter.

what we refer to as demonstrative evidence. We refer to this type of evidence as demonstrative evidence, as opposed to substantive evidence, since it is offered merely to demonstrate or illustrate a point rather than as actual proof of that point. With the advent of the digital age, computers are now used to produce this type of demonstrative evidence. You heard testimony from Dr. Gary Ross and Trooper Brad Beach that the computer-generated animation, which will now be shown to you, is a fair and accurate illustration of the opinions that they formed as to how this shooting allegedly occurred. You also heard this witness describe how he produced the threedimensional drawings with computer software to depict those opinions, and thereafter transform them onto this DVD to produce moving images, which will be played for you. What you are about to be shown is commonly referred to as a computer-generated exhibit. There are two types of computer-generated exhibits, and you heard the witness refer to them. The first is what we call a simulation, and the second is what we refer to as an animation. In a simulation, data is entered into a computer, which is pre-programmed to perform certain calculations by applying, for example, the laws of physics, mathematical formulas, and other scientific principles in order for the computer itself to draw conclusions and to attempt to recreate an incident. The end product of a simulation represents the computer program’s conclusion of what happened. And the results of the computer simulation serve as the basis for the testifying expert’s opinion of what happened. In contrast, an animation is simply a graphic depiction, or illustration, of an opinion that an expert has already formed based upon his or her own independent investigation, computations, and analysis. With an animation, the computer does not perform any scientific calculations or develop any opinions, as is the case with the simulation. An animation consists of computer-generated drawings which are assembled frame by frame, and, when viewed sequentially, produce the image of motion. Thus, an animation is merely a graphic depiction or illustration of an opinion or recreation which an expert witness in the case has already devised through his or her own independent calculations and analysis.

It is argued that the uniquely dangerous aspect of a CGA is in its visual appeal to a jury resulting in an acceptance of the CGA as fact. However, such a danger is vitiated by thorough cautionary instructions that educate the jury on the exact nature and role of a CGA. Presently, the trial court safeguarded against the possibility of jury confusion over the animation or potential prejudice by supplying a thorough and extensive cautionary instruction before playing the CGA. Those instructions were:

Please understand that what you are about to view is an animation, not a simulation. This computer-generated animation is a demonstrative exhibit, not substantive evidence, and it is being offered solely as an illustration of the Commonwealth’s version of events as recreated by Dr. Gary Ross and Trooper Brad Beach. You should not confuse art with reality and should not view the animation as a definitive recreation of the actual incident. The series of pictures which have been drawn by the computer and transferred on to the tape for your review are no different from a witness sketching a series of drawings on paper and then fanning those pages to portray moving images of his or her opinion.

Members of the jury, parties in a case are permitted to use photographs, drawings and other exhibits to illustrate a point they are attempting to make in a case. This is

Remember, the demonstrative animation is only as good as the underlying testimony, data, assumptions, and opinions that serve as the basis for its images, and

the computer maxim, “garbage in, garbage out,” applies equally to computer animations. Like all other evidence in the case, you may accept it or reject it, that is, the computergenerated animation, in whole or in part. I caution you again that the animation may only be considered for demonstrative purposes to illustrate the opinions of Dr. Gary Ross and Trooper Bradley Beach. Always bear in mind that the Commonwealth must still meet its burden of proving all of the elements of the offense charged beyond a reasonable doubt. Although limiting instructions may not be necessary, such cautionary instructions limit the prejudice or confusion that could surround a CGA. Additionally, the trial court reiterated the same concerns and instructions during its closing jury charge. In so doing, the trial court duly minimized any possible prejudice by insisting that the jury not make more of the CGA than what it was-an illustration of expert witness testimony. The repetition of the instructions in the case sub judice ensured that the jury comprehended the nature of the CGA and would not mistake it for fact, but could only rely upon it to the extent they credited the underlying testimony.

close attention to ensuring that the admission of such evidence will actually “assist the trier of fact to understand the evidence or determine a fact in issue,” and to the CGA’s potential for prejudice. Second, I understand that the issue as to whether a defendant should be given the opportunity to present his own computer generated animation (CGA) was waived and therefore, is not properly before us. Nevertheless, I offer the following thoughts. I agree with the majority that the admission of the CGA will be guided by the considerations that normally govern demonstrative evidence, including authentication, relevancy, and weighing the probative value versus the prejudicial impact of that evidence. In reviewing the probative/prejudice prong, I emphasize that the trial court needs to consider whether giving the defendant the opportunity to present his own CGA will mitigate the prejudicial impact of the evidence. In many cases this will require the trial court to give money to the defense to procure a CGA. This monetary disparity between the Commonwealth and defense in obtaining a CGA is a relevant factor when considering the prejudice to the defense. Ultimately, I agree with the majority that this is a discretionary question, best left to the determination of the trial court, but this question cannot be divorced from the inquiry into the prejudicial impact of the CGA.

Conclusion In a question of first impression in this Commonwealth, we hold that a CGA is potentially admissible as demonstrative evidence, as long as the animation is properly authenticated, it is relevant, and its probative value outweighs the danger of unfair prejudice or confusion. Therefore, because in the instant matter: (1) the Commonwealth satisfied all of the foundational requirements for admitting the CGA as demonstrative evidence; (2) the CGA was relevant evidence that enabled the Commonwealth experts to illustrate their opinions and educate the jury on the forensic and physical data; and (3) the alleged prejudicial effect of the CGA does not outweigh its relevance, we conclude that the admission of this evidence was proper. Hence, the admission of a CGA depicting the theory of the Commonwealth in this case was proper. Accordingly, we affirm the decision of the Superior Court.

Justice Newman, separate opinion. I join the majority opinion. I write separately to address three points and offer that trial courts need to take the following into consideration upon the Commonwealth’s request to admit a CGA in criminal matters. First, in all future criminal cases, I endorse and would require the Commonwealth to follow the procedure that was followed in this case when it wants to present a CGA as demonstrative evidence. Specifically, I would require the Commonwealth to file a pretrial motion in limine seeking permission to present the CGA. The trial court should then hold a pretrial hearing, during which the Commonwealth would authenticate the CGA, and the court would preview the CGA. At this pretrial stage, the court should pay

Lastly, I agree with the majority that in this instance, the trial court properly ensured that the jury understood the purpose of such evidence through its instructions given before the animation was presented and during the jury charge prior to deliberation. I write separately to express my belief that in future cases, such a limiting instruction should be included in all cases involving the admission of a CGA. I concur in the result since I believe that the admission of the computer generated animation in this case was not an abuse of discretion. The trial court was faced with a novel evidentiary question; it responded in a careful and measured manner, which included issuing detailed cautionary instructions; and my own review satisfies me that there is no basis for awarding appellant relief from his first-degree murder conviction. I also am in general agreement with the approach and analysis in Madame Justice Newman’s learned Majority Opinion. However, the question of the admissibility of this sort of evidence as a general matter implicates certain policy and supervisory considerations that I believe go beyond the narrow confines of the ruling below. On that general question, I have some reservations respecting the necessity, helpfulness, and economic utility of CGA evidence. With respect to the role of the computer in producing computer-generated animations and/or simulations, and the implications of the computer’s “conclusion,” I write to emphasize that the fact that the computer creates a drawing or image does not mean the product is inherently neutral or trustworthy. The content of the computer’s product, whether it be a CGA or a simulation, always depends upon some very subjective human agency-in the creation of the computer program, in the human entry of the data, and in the human review, revision and interpretation of the computer’s product. The testimony of the person who created the CGA in this case, Randy Matzkanin, testimony

which the Majority summarizes at some length, made clear that the computer product at issue was intended to reflect not the conclusions of the computer, but the conclusions and opinions of the Commonwealth’s flesh and blood forensic witnesses, as related to and interpreted by Mr. Matzkanin. Indeed, this was so much the case that the CGA was modified and manipulated by the programmer until the end-product satisfied the Commonwealth’s forensic witnesses’ assessment of the criminal act. The point, though it may appear to be minor, is no less essential. A CGA is not an inherently objective or neutral presentation of the evidence or the theory of the case. As with all human endeavors, the process of creating a CGA offers an opportunity for coloring and manipulating the end-product. As the trial court told the jury, if garbage goes into the production, garbage will come out. Thus, the accuracy of a CGA or computer simulation is always subject to challenge for accuracy and bias, no less than any other evidence. This immutable fact of life, given the current state of technology, should give pause as this Court considers the general admissibility of this type of evidence. In a case where both parties are well-funded, each will have the resources available to hire the computer professionals necessary to challenge the accuracy of a proffered CGA or to generate a competing animation. In contrast, in a criminal case involving an indigent defendant, the cost of assuring that the defense is able to adequately assess the accuracy of a Commonwealth CGA, or to produce a competing CGA of its own either contesting the accuracy of the Commonwealth’s depiction or depicting a defense theory, would have to be borne by the state. If such funding is denied, the burden will fall upon appointed counsel to attempt to school himself in a field in which he most likely is not expert. As this case reveals, the cost of this evidence, in terms of both time and money, is substantial-the fifteen second CGA here apparently cost $10,000-$20,000 and a substantial portion of the trial was consumed in examining how Mr. Matzkanin produced it. Having reviewed the essentially benign end-product, I am not convinced that the cost was worth the expenditure of scarce public financial resources. I recognize that ours is an increasingly image-driven culture. However, such trends need not be indulged at every turn in the courtroom. I fully trust that a jury can “get the picture” — it certainly could have gotten an equivalent picture here — through more balanced, economical and old-fashioned means, such as testimony and diagrams. With respect to the question of an indigent defendant’s entitlement to funds to produce a competing CGA, or his entitlement to have excluded the Commonwealth’s CGA if he cannot afford to rebut the animation, the Majority correctly notes that appellant’s argument in this regard is waived as it was not raised below. Nevertheless, the Majority goes on in dicta to address the issue, ultimately suggesting that an indigent defendant has no right to public funds to arrange for his own CGA, and that the question of whether the Commonwealth should be permitted to introduce a CGA in a case where the defense cannot afford a counter-CGA should be left to the discretion of the trial judge. I cannot join in the Majority’s extended dicta on the point both because it is not properly before this Court and because I, like the Chief Justice, would leave open the prospect that the

interests of justice may require providing an indigent defendant with the funds necessary to respond to a CGA produced by the Commonwealth. Furthermore, I should note that the fact that this Court holds that CGAs may be admissible in the discretion of the trial judge does not mean that any party has an enforceable right to introduce the evidence. Thus, given the limited value of this sort of evidence, the wisest course for the trial judge might be to exclude such evidence entirely in those situations where the defense cannot secure an equivalent production. I concur with the result of the majority. Like Justice Castille, I do not join the majority’s discussion regarding finances because I believe it is waived. I write separately as I think the court’s discussion of this irrelevant area is dangerous. Admissibility of evidence is not a function of finances of the parties. If one side chooses to develop evidence, of this or any type, its admissibility cannot rest on a determination of the relative resources of the other party. Relevance, not money, is what makes something admissible. All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible. If a defendant feels the need for unaffordable evidence, such as these animations, an expert, or testing of any kind, he has but to ask the court, which will determine the entitlement under existing principles. The remedy is not to ignore the rules of evidence or to preclude the other side from introducing relevant evidence. Suggesting that disparate resources can comprise a reason to exclude evidence presages the triumph of social sensitivity over legal reason. Likewise, the majority’s discussion of a motion in limine is unnecessary. Again, the matter has not been raised and we have received no advocacy on it, nor has our Rules Committee considered the ramifications of this area. More to the point, relevance, not timing, remains the key to admissibility. If prejudice or unfair surprise is found, evidence may be excluded; if not, it should not be kept out simply because it was not moved at a certain time. Trials are fluid and ever-changing landscapes; what is planned one moment is of no use the next, and matters never considered gain salience at the most unexpected time. There appears no reason to treat these animations any differently than any other demonstrative tools used to aid understanding. There are general principles of evidence and its admission that cover these animations as well as any other evidence. Technology advances, and the law must accommodate it, but we need not write a new rule every time a new manifestation of evidence arises. Our existing rules of admissibility, discovery, and motions cover this situation quite adequately. While clearly fancier, in legal concept this animation appears little different from any other drawing or chart-it is a visual aid and nothing more. Timetested principles will determine its admissibility without a new rule specific only to computer-generated animations or variations, existent or to come. Adding dicta suggesting a special rule because of the form of the visual aid is not warranted or necessary.

UNITED STATES OF AMERICA v. ERNESTINE AUDRY JAMES US Court of Appeals, Ninth Circuit 169 F.3d 1210, March 9, 1999 Opinion by Judge Noonan; Dissent by Judge Kleinfeld. Ernestine Audry James appeals her conviction of aiding and abetting manslaughter within Indian country in violation of 18 U.S.C. §§ 2, 1112, 1153. Holding that the district court erred in excluding relevant evidence corroborating her testimony, we reverse the judgment of conviction. Facts and Proceedings James met her boyfriend, David Ogden (the victim), at a pow-wow in Seattle. He was nice sober, nasty drunk. Ogden had boasted to her about once killing a man and getting away with it. He told her he had sold another man a fake watch, and when the man complained, had stabbed him in the neck with a ball point pen. Ogden told James that "it was pretty funny watching a guy with a pen dangling out of his neck." He also bragged that he had once "ripped a side view mirror off the car and beat a man unconscious with it," and that, in yet another incident, he had robbed an old man by holding him down with a knife in his face and threatening to cut his eyes out. James had seen Ogden’s violence with her own eyes and suffered it. The worst was when Ogden was intoxicated and James refused to have sexual intercourse, so he threw her on the bed and raped her. On another occasion when Ogden wanted to have sexual intercourse with James and she had refused, he came into the room where she and her daughter Jaylene Jeffries were and started yelling at James and calling her names. Jaylene got up and held Ogden at knife point with a carving knife until James ordered them both to desist. Ogden once struck James with a backhanded slap, giving her a swollen lip. Another time, he was drunk and wanted to have sexual intercourse with James, and would not take no for an answer until she broke a glass on the dresser and threatened him with it. Once in their apartment, Ogden accused a friend of "looking at" James, and when the friend denied it, beat him up. When James and Jaylene told Ogden to stop, he kept kicking and hitting the man, so James tried to dial 911. Ogden ripped the phone out of the wall. There was another phone in the bedroom so James went to that phone and told her daughter to follow her. James had started dialing when Ogden broke the door down, on top of her daughter. James put the phone down, and Jaylene started hitting and kicking Ogden, breaking some of his ribs. James told them both to stop and told Ogden to leave. They both complied. When James and Ogden would go out for dinner, a few drinks, and window shopping, he would start yelling at strangers and challenging them to fights. Sometimes he and the strangers would fight. James also testified Ogden used to take his knife out

of his sock, open and close it, and switch it back and forth between hands as if he were in a fight. Jaylene, the daughter, had beaten Ogden on three occasions. She testified that "I was the one doing something, but he wasn’t." Ogden would never fight back against her. He acted scared of her, even though she was only fourteen. Ogden hated Jaylene’s boyfriend, Michas Tiatano. Ogden, James, and Jaylene were Indian, but Tiatano was part Black and Asian. Ogden hated Black people. On the day Ogden was killed, the four of them had been together at a party. At one point during the party Ogden had lifted a hammer from the carpentry tools he used at his job and said to Tiatano "I ought to hit you with this," but stopped when James told him to "knock it off." Later Ogden started pulling Tiatano around by his shirt and telling him he hated him. Jaylene told Ogden to stop, and he d When James decided to leave the party, her van got stuck on a fishnet lying on the ground. She and Jaylene were sitting in the van when Jaylene heard Tiatano say, "Oh man," and fall down. Ogden had just punched Tiatano in the face, possibly with some object in his hand, so hard that he broke his nose and knocked him unconscious. Some other men who were there brought Tiatano into the house and gave him first a That incident led to Jaylene killing Ogden. Testifying as a witness for the government, she gave this account: Q: Now, when you heard that statement from your mother that Michas Tiatano had just gotten hit by David Ogden, how did you feel? A: Angry. Q: What did you do? A: I got out of the van and started chasing him. Q: Weren’t you afraid that he would harm you? A: No, I wasn’t afraid of him. Q: You were not afraid of him? A: No. Q: And at the end of the chase, what did you do? A: I went over to my mom’s side of the van. Q: Was this on the driver’s side? A: Yeah. Q: What happened next? A: My mom had a gun out. She was loading it.

Q: When you got up to the van, what happened next? A: She gave me the gun. Q: Did you ask her for the gun? A: No. Q: Did she say anything to you when she handed you the gun? A: Yes. She said it was on safety. Q: What else did she say? A: And this is how you click it off. Q: And she showed you that? A: Yeah. Q: Where was David Ogden at this time? A: He was still on the road. Jaylene proceeded to shoot Ogden at point blank range. On defense counsel’s cross-examination, Jaylene acknowledged that perhaps Ogden was not really afraid of her, because he was not afraid of anyone when he was drunk, and if he had really wanted to, he could have beaten her up and hurt her. She also testified, on cross, that her mother had bought the gun because of threats from one of Jaylene’s previous boyfriends. James testified that after Ogden had "cold cocked" Tiatano, Jaylene chased him for a while. According to James, the following ensued: A: Jaylene came — excuse me. Jaylene came back to the van and she was breathing heavy, like she was running. She was very upset and she just started begging me for the gun. She said, mom, please give me the gun, give me the gun. She said it several times. Q: And what did you do when she begged you for the gun? A: I just grabbed for my purse and got the gun and handed it to her. Q:

At that moment when Jaylene asked you for the gun and you reached in and gave it to her, why did you give it to her? A: I gave it to her to protect herself and the family members. Q: What did you expect her to do with the gun when you gave it to her? A: I just expected her to fend David off. I didn’t want her to shoot him. It was just to scare him away from the property.

Q: Why did you want her to scare him away from the property? A: Because I knew how violent he was and I knew that he wouldn’t stop at just one punch and he wanted to continue being violent. On cross-examination, James testified that as Jaylene was chasing Ogden, Jeffries "just yelled at him that she was going to get him." James denied showing her daughter how to turn the safety off so that the gun would fire. Defense counsel argued self-defense. He pointed out to the jury that James, his client, was charged with aiding and abetting the daughter by handing her the gun, so James had to be judged by what she knew at the moment, not by the daughter’s conduct afterward in killing a man who had raised his hands in surrender. He argued that because the mother knew Ogden was drunk, vicious when drunk, and usually carried a knife in his sock, it was not grossly negligent to give "the gun to her daughter so that Jaylene could protect herself in that one moment when the mother had that decision, the split second decision to make." The jury heard all the evidence discussed above. In the pre-trial skirmishing, the court had ruled that James and Jaylene could testify about prior violent misconduct they had known about when James handed Jaylene the gun, but could not introduce extrinsic evidence of which they had no knowledge at that time. This appeal is about four exhibits that the mother’s attorney was not allowed to show the jury. He had (1) court documents setting forth detailed findings on the robbery of a 58-year old man, in which Ogden sat on the man and held a knife at his throat and at his eyes while threatening to blind him; (2) a presentence report with 38 priors, some resulting in conviction, some with unknown dispositions; (3) a Seattle police report that Ogden, with his shirt off, was randomly striking people in a crowd on Second Avenue in Seattle, near Pike Place Market; (4) a Seattle police report that, again near Pike Place Market, Ogden and another man grabbed a stranger, threw him down, beat him, and kicked him in the face. The jury sent out a number of questions during its deliberations. One read as follows: Dear Judge, The jury would like to know if it is a "fact" that: 1.

Ogden did stab an "old man" and was sentenced to 20 yrs & on parole

2.

did he really stab someone with a pen

3.

did he really murder a man and hide on an apt?

4.

Are there police or court documents to prove this or is it "brag?"

The judge declined to supplement the evidence. The district judge further explained why he had excluded the evidence. In his ruling on defendant’s motion for a new trial, he explained that "evidence of every past violent act by Ogden, known to the defendant, was placed before the jury," as was reputation and opinion evidence as to Ogden’s violent character. The extrinsic evidence was not such evidence, because "the only relevant facts concerning Ogden’s past were the ones defendant knew about; only to that extent could her state of mind at the time of the shooting have been affected by Ogden’s past misconduct." The district judge noted that if the court records had in fact been to the contrary, and proved that Ogden had been exaggerating and was not really so violent as he claimed, the court would have sustained a defense objection, "because the court record, never seen by defendant, could not have affected her state of mind. The result should be no different when the defendant offers the extraneous record." James was convicted and sentenced to five years probation. She appealed, and a divided panel of this court affirmed her conviction. We then took the case en banc. Analysis A preliminary question is whether we are conducting a review of the district court’s exercise of discretion or a review de novo of an error of law. If the district court’s ruling is understood as a determination that any record not known to the defendant is inadmissible as part of a defense based on self-defense, its ruling was one of law, and our review is de novo. If the district court is understood to have implicitly weighed the probative force of the evidence against its prejudicial impact on the jury by making the victim seem odious, then our review is for an abuse of discretion. As both ways of interpreting the district court’s action are tenable, we shall review, first, de novo as to law, and, second, review the postulated exercise of discretion. Ernestine Audry James’s only defense was that she believed that she and her daughter were in danger of grievous bodily harm or death from Ogden. Essential to that defense was her belief in Ogden’s stories of previous acts of vicious violence committed by him. These stories were of such a remarkable character of atrocity that one might doubt that he had told them of himself or doubt that they had really occurred. Hence the question raised by the jurors as to Ogden’s stabbing of an old man; Ogden’s stabbing of another person with a pen; and Ogden’s murdering a man: "Are there police or court documents to prove this or is it ‘brag’?" For the defense the records, if admitted, would have had two legitimate functions: to corroborate Ernestine James’s own testimony that she had heard Ogden tell her these things and to corroborate her statement that she had reason to be afraid of Ogden in his vicious drunken mood.

The district court thought the only function of the evidence would have been to show Ernestine James’s state of mind and that, since she had not seen the records, the documents proved nothing as to her state of mind. That interpretation of the proffered evidence was too narrow. It was absolutely necessary to her defense for the jury to believe (1) that she wasn’t making up the stories and (2) that, when she heard them, she heard them from the man who had actually done these terrible things and who was not just spinning tales. The records proved that he had done them so that the stories of his wild exploits would have had the ring of truth to her, and the records proved that what Ernestine James testified to had actually taken place. The records corroborated her testimony, and the records corroborated her reason to fear. The law of this circuit is crystal-clear that corroboration of a key prosecution witness by the introduction of criminal records is permissible, even at the risk of some prejudice to the defendant on trial. We should not have one rule for the prosecution and another rule for the defense. The crucial significance of this kind of corroboration has been recognized in United States v. Burks. Self-defense is about as basic a moral and legal principle as there is. A mother’s instinct to preserve her child from danger is equally strong, equally a part of that bedrock nature we share with all animals. The records were admissible as relevant under Federal Rules of Evidence. Assuming that the district court implicitly weighed the effect of the records and found that their probative force was outweighed by their unfairly prejudicing the jury against the victim, the district court abused its discretion under Rule 403. Ogden’s vicious behavior was already before the jury. The records would not have painted him darker than he already must have appeared. The records went to James’s credibility not Ogden’s character.

Because the crux of James’s defense rested on her credibility and because her credibility could be directly corroborated through the excluded documentary evidence, exclusion of the documents was prejudicial and more probably than not affected the verdict. For the reasons stated, the judgment of the district court is REVERSED.

Judge Kleinfeld, dissenting: I respectfully dissent. My dissent is not based on the notion that the trial judge should have kept the documents out of evidence. He had discretion to go either way, and I might have let them in myself, were I still a trial judge. We must, however, defer to a district judge’s discretion, when the trial judge had a sensible reason for exercising his discretion as he d

Review of decisions on admission of evidence is traditionally for abuse of discretion, whether there are legal issues involved or not. That is because the legal issues are inextricably interwoven with necessarily rough judgments about where the evidence is likely to go and how the jury is likely to use it. I shall not repeat the more complete discussion in the panel opinion.

I concede the possibility that the truth of what the victim allegedly had told the mother gave his remarks the "ring of truth," as the majority suggests. But this is pretty remote. This relevant purpose could be outweighed by the inappropriate purpose to which the jury might put the documents. The defendant was supposed to be on trial, not the victim.

Defense counsel had to deal with a problem regarding his self defense theory. The daughter shot an unarmed man who was standing with his hands up, and she testified that she did not fear him. The mother gave her daughter a gun while the daughter was chasing the man. The mother’s defense attorney dealt with the problem by reminding the jury that the mother was on trial, not the daughter, and the mother had to be judged by her state of mind, what she knew and thought, at the moment she gave her daughter the gun. The judge accordingly let in every bit of evidence with any bearing on what the mother knew at that moment. All he kept out was what the mother did not then know, that there were papers corroborating what the victim allegedly had said about the vicious things he had done. Because the mother had not known of the papers and had never seen them, the trial judge concluded that the papers could not have had any effect on her state of mind. That makes sense, and I do not think so sensible a decision can properly be characterized as an abuse of discretion.

A district judge is supposed to exclude evidence if its probative value "is substantially outweighed by the danger of unfair prejudice." Today’s majority opinion says "we should not have one rule for the prosecution and another rule for the defense." Indeed not. Rule 403 does not limit "unfair prejudice" to one side. "Unfair prejudice" means, at its most serious, "an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one." While a defendant is fully entitled to prove self defense, a defendant is not entitled to persuade a jury by evidence "justifying the deliberate destruction by private hands of a detested malefactor."

The majority is correct, that the papers were nevertheless relevant in another sense. Evidence that the victim really had killed a man, and had stabbed another in the throat with a pen, made it more probable that the victim had told the mother that he had done these things. For that reason, it would not have been an abuse of discretion for a judge to have admitted the documents. But admissibility does not suffice to make exclusion an abuse of discretion. There were good reasons to keep the documents out. The documents were somewhat remote corroboration, not direct evidence of anything relevant. They showed nothing directly about the mother’s state of mind, because she had never seen them. And the risk of unfair prejudice to the prosecution was considerable. The victim was a bad man. Some people would say, in private and out of court, that "he deserved it," or "he needed killing." But no one says such things in a courtroom, because the law does not permit murder, even of very bad people. The jury’s questions — "did he really stab someone with a pen," "Are there police or court documents to prove this or is it ‘brag?’ " — may mean that the jury was asking the wrong question, whether the victim deserved to be shot. The majority says that the evidence went to the mother’s credibility, not the victim’s character. But the jury’s questions suggest that jurors were wondering whether the victim really did what he claimed, as opposed to whether Ms. James believed him. And the trial judge who, unlike us, was there, may have seen that coming. Plenty of evidence lends itself both to permissible and impermissible uses, and trial judges have to weigh the risks as the trial proceeds.

The majority says that we should stick with United States v. Pitts, but has the rule in Pitts wrong. We did not hold in that case that any evidence had to be admitted. We held that a trial judge’s decision to admit it was not an abuse of discretion. "We review the district court’s decisions balancing probative value against prejudicial effect for abuse of discretion." The judge in that case, like the judge in this one, sensibly could have kept the evidence out or let it in. The rule is the same for the prosecution and the defense, that a trial judge who makes a discretionary judgment for a sensible reason has the last word on the subject. Exclusion in the case at bar is like the exclusion we approved in United States v. Comerford. There, a victim had previously been arrested for hitting his wife, and we

affirmed the trial judge’s decision to keep the domestic violence evidence out in an assault trial involving unrelated males. There is also a parallel to Cohn v. Papke. A man who had been arrested for soliciting sex from male police officers brought a civil rights suit for police brutality. We held that the trial judge had abused his discretion by admitting the defendants’ evidence that the man was homosexual, because the man’s sexuality was of limited relevance, and the relevance was outweighed by the risk of unfair prejudice. These decisions — Pitts, Comerford, and Cohn — represent the established law of our circuit, and today’s decision deviates.

United States v. Burks, which the majority calls a "leading" opinion, strikes me as an anomaly not deserving to be followed decades later in another circuit. In Burks, the victim was late paying the defendant for a truck that he had bought. After they argued about it, the defendant went to a friend’s house, got a gun, and came back and shot his debtor dead. Burks held that the killer was entitled to prove that the victim had killed his own six-year-old son some years earlier, in order to corroborate his self defense claim that he was scared of the man. The possibility that a man would feel that he needed a gun to argue about a debt with a man who had beaten a six-year-old to death strikes me as pretty unlikely. The trial judge made a reasonable decision in Burks that the risk of unfair prejudice, because of any juror’s natural feelings about a man who had beaten

his six-year-old son to death, would outweigh the probative value toward showing which man started the deadly confrontation, and it is surprising that it was not affirmed. The more typical result is the one that the Eighth Circuit reached in United States v. Driver. The defendant had shot a man in the head, and wanted to prove that the victim was being investigated for child abuse. He claimed that this evidence would help prove his self defense theory. The Eighth Circuit of course held that the "evidence of the child abuse investigation involving the victim would have served merely to portray him as a bad person, deserving to be shot, but did not relate to Driver’s claim of self defense." We should follow Driver, not Burks. We did not try Ms. James’s case. When a trial judge makes a sensible decision to admit or exclude evidence, well within the range of what is ordinary, for a sensible reason, as the trial judge did in this case, we should let it alone. Ms. James got a fair trial.

LUTWAK v. UNITED STATES 344 U.S. 604, February 9, 1953

Syllabus Petitioners were convicted of a conspiracy to defraud the United States by obtaining the illegal entry thereto of three aliens as spouses of honorably discharged veterans. They had conspired to have three such veterans journey to Paris, there go through marriage ceremonies with three aliens, bring them to the United States, and obtain their entry under the War Bridges Act. The parties to the marriages were not to live together as husband and wife, and were to take whatever legal steps were necessary to sever the legal ties; but these facts were to be concealed from the immigration authorities.

Held 1. For the purposes of this case, the question of the validity of the marriages is immaterial. 2. In the circumstances of this case, the trial court did not err in permitting the "wives" to testify against their "husbands." 3. It was not error for the trial court to admit testimony as to various acts of different petitioners, done after the conspiracy ended, without limiting the evidence to the particular defendant who performed the act, where the acts were relevant to show the spuriousness of the marriages and the intent of the parties in going through the marriage ceremonies. 4. On the record in this case, the admission against all of the conspirators, though not present when it was made, of a single declaration made after the conspiracy had ended was harmless error under Rule 52(a) of the Federal Rules of Criminal Procedure. The Court of Appeals affirmed petitioners’ conviction of a conspiracy to defraud the United States. This Court granted certiorari. 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. 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, 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, in 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. Alien spouses of honorably discharged veterans of World War II were permitted to enter this country under the provisions of the so-alled 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. 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 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. 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. Whoever knowingly makes under oath any false statement in any application, 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. 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 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 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-alled 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 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. 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 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. 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 veterans 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 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 not material, the cases involving so-alled limited purpose marriages, 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 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. Much more closely related is the case of United States

v. Rubenstein, in which the court held that, where 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. II. Much of the evidence of the conspiracy comes from the lips of the so-alled wives of these spurious marriages. The next question with which we are confronted is whether these so-alled wives are competent to testify against their purported husbands in this criminal prosecution and thus incriminate the so-alled husbands. 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, the wife may testify in favor of the husband. 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. There followed the promulgation by this Court of Rule 26 of the Federal Rules of Criminal Procedure, which reads as follows: 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 Justice Stone’s statement in Wolfle. 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 further and abrogate this common law rule disqualifying one spouse from testifying in criminal cases against the other spouse. 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-alled 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, "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." 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 anti-spousal testimony has no application. These ostensible wives were competent to testify. III. 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 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 the Court as applicable against Munio Knoll only. This Court, in Krulewitch v. United States, 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-eaching results. For, under this rule, plausible arguments could generally be made in conspiracy cases that most out-f-ourt statements offered in evidence tended to shield coonspirators. 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. 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. 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 so-alled wives as a consideration for their part in the so-alled marriages, and that suits were started to terminate whatever legal relationship there might have been upon the record. 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. But such declaration can be used against the co-onspirator only when made in furtherance of the conspiracy. There can be no furtherance of 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, and Fiswick v. United States. 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, 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. Relevant declarations or admissions of a conspirator made in the absence of the coconspirator, 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. 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. 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 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, Blumenthal v. United States, Nash v. United States, the rule has nonetheless been applied. 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. Was the admission of this one item of hearsay evidence sufficient to reverse this case? 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 is a proper case for the application of Rule 52(a) of the Federal Rules of Criminal Procedure. We hold that the error was harmless. Finding no reversible error in this record, the judgment is AFFIRMED.

Justice Jackson, 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 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 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 waives the privilege. 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. This requires rejection of the Government’s contention that every conspiracy includes an implied secondary conspiracy to conceal the facts. This revival of the long discredited 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 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 coconspirator. And we do not question that, at times, 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.

OTIS TRAMMEL Jr. v. UNITED STATES 45 U.S. 40, Feb. 27, 1980

Syllabus 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, 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. (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 Hawkins 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." (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." (c) Since 1958, when Hawkins was decided, the trend in state law has been toward divesting the accused of the privilege to bar adverse spousal testimony. (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, 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 the privilege and its history thus shows that "reason and experience" no longer justify so sweeping a rule as that found acceptable in Hawkins. 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 to exclude the voluntary testimony of his wife. This calls for a re-examination of Hawkins v. United States. 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. 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 travelled 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. She explained that her cooperation with the Government was based on assurances that she would be given lenient treatment. She then described, in considerable detail, her role and that of her husband in the heroin distribution 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.

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. 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 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." II. The privilege claimed by petitioner has ancient roots. Writing in 1628, Lord Coke observed that "it hath beene resolved by the Justices that a wife cannot be produced either against or for her husband." 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. Indeed, it was not until 1933, in Funk v. United States, 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. The rule thus evolved into one of privilege rather than one of absolute disqualification. 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. Professor Wigmore termed it "the merest anachronism in legal theory and an indefensible obstruction to truth in practice." The Committee on Improvements in the Law of Evidence of the American Bar Association called for its abolition. 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. 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. 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 "abolished 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." In Hawkins v. United States, 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, 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."

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." 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." III. A. 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." 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 defined nine specific privileges, including a husband-wife privilege which would have codified the Hawkins rule and eliminated the privilege for confidential marital communications. Although Rule 501 confirms the authority of the federal courts to reconsider the continued validity of the Hawkins 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 "declined to enforce ancient rules of the common law under conditions as they now exist." For, as Justice Black admonished in another setting, "when 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." B. 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. The number has now declined to 24. In 1974, the National 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. 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. The trend in state law toward 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. Scholarly criticism of the Hawkins rule has also continued unabated. C. Testimonial exclusionary rules and privileges contravene the fundamental principle that "the public has a right to every man’s evidence." 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." 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. It is essential to remember that the Hawkins privilege is not needed to protect 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." Those confidences are privileged under the independent rule protecting confidential marital communications. 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 to convert his house into "a den of thieves." It "secures, to every man, one safe and unquestionable and every ready accomplice for every imaginable crime." 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 "no 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." 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. 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 spouse to escape justice at the expense of the other. It hardly seems conducive to the preservation of the marital relation to place a wife in jeopardy solely by virtue of her husband’s control over her testimony. IV. 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. 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.

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 Justice Black. Today the Court, in another all-but-unanimous opinion, obliterates that privilege because of the purported 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, and I think so now. The Court is correct when it says that "the ancient foundations for so sweeping a privilege have long since disappeared." 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 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.

MICHELSON v. UNITED STATES 335 U.S. 469, Dec. 20, 1948 Justice Jackson delivered the opinion of the Court. In 1947 petitioner Michelson was convicted of bribing a federal revenue agent. The Government proved a 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. 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: Do you know the defendant Michelson? A: Yes. Q: How long do you know Mr. Michelson? A: About 30 years. Q: Do you know other people who know him? A: Yes. Q: Have you have occasion to discuss his reputation for honesty A: Yes. Q: And what is his reputation? A: 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 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. 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. Serious and responsible criticism has been aimed, however, not alone at the detail now questioned by the Court of Appeals but at common-law doctrine on the whole subject of proof of reputation or character. It would not be possible to appraise the 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. 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. Not that the law invests the defendant with a presumption of good character, 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. The inquiry is not rejected because character is irrelevant; 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 tends to prevent confusion of issues, unfair surprise and undue prejudice. But this line of inquiry firmly denied to the State is opened to the defendant because character is relevant in resolving probabilities of guilt. 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. 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. 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 f 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.’ While courts have recognized logical grounds for criticism of this type of opinionbased-on-hearsay testimony, 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. 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 defendant.’ This is permitted upon assumption that, if no ill is reported of one, his reputation must be good. 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.

Thus the law extends helpful but illogical options to a defendant. Experience taught a necessity that they 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 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. Another hazard is that his own witness is subject to cross-examination as to the contents and extent of the hears y 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. 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. To thus digress from evidence as to the offense to hear a contest as to the standing of the accused, at its best opens 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 counterpart — calling 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 oath were 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 nextdoor 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. 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. Wide discretion is accompanied by heavy responsibility on trial courts to protect the practice from any misuse. The trial judge was scrupulous to so guard it in the case be ore 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.

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 a conviction, and for an offense not closely similar to the one on trial; and it concerned an occurrence many years past. 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. 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. This rule is sometimes confused with that which prohibits cross-examination to credibility by asking a witness whether he himself has been arrested. 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 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 identical charges, in place of the rule more generally adhered to in this country and in England. We think the facts of this case show the proposal to be inexpedient.

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 lawabiding 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 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 cross-examination 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 concoctions equally persuasive though not for crimes exactly repeated in the present charge. 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 indecisive as a 1920 arrest 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. 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 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 va ious other subjects; for example, instructions that admissions of a codefendant 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.

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. But the task of modernizing the longstanding rules on the subject is one of magnitude and difficulty which even those dedicated to law reform do not lightly undertake. 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, text writers 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 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 crossexamination about prior arrest, adhered to by the courts of only one state and rejected elsewhere. 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. The judgment is AFFIRMED.

Justice Frankfurter, concurring. Despite the fact that my feelings run in the general direction of the views expressed by 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 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.

Justice Rutledge, 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 ill-repute. 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 with much room 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 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 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, 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 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 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 time-consuming, 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 in here 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 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 than in the excerpt from Wigmore’s classic treatise, quoted in note 4 of the Court’s opinion. 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, 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. 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 almost 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. 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 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. Of course man 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 twenty-seven 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. One judge of the Court of Appeals has suggested we do this by adopting the Illinois rule, 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 cross-examination 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.

US v. ARTHUR NIXON, DAVID SNODDY, and DONALD GILBRETH US Court of Appeals, Fifth Circuit 777 F.2d 958, Dec. 2, 1985 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 audio-visual 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. Although the confidential informants (CI) 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.

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. 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 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 counter proposed 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. 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 eighteen-wheel 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, traveling in interstate commerce in aid of an unlawful enterprise, aiding a principal in the commission of an offense, attempted possession of a controlled substance, And using a communication facility in the commission of a felony. 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. 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. 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. While the government’s conduct might shock some sensibilities, we must evaluate 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. 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 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." 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." 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 non-hearsay. Moreover, even though Webster placed limits on the type of evidence that can be used to prove predisposition, a defendant who asserts entrapment as a defense exposes himself to a "searching inquiry into his own conduct and predisposition. 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 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." It then becomes the government’s burden to prove beyond a reasonable doubt that the defendant was predisposed to commit the charged offense. 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. 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. 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 and United States v. Wolffs 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. 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. 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. 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.

Wolffs adopted the rule of Notaro on this issue and found the instruction in Wolffs, which was even more egregious than the one in Notaro, fatally defective also. 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, even though the Notaro instruction did not contain such a statement. 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. 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. 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. Also, the court’s general 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. 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.

The United States Supreme Court addressed the government’s obligation to disclose the identity and whereabouts of government informers in Roviaro v. United States. Roviaro recognized that "no fixed rule with respect to disclosure is justifiable" and that "the 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." Two principal factors in striking the balance are the degree of participation exercised by the informant and the probative value of the informant’s probable testimony in relation to the defendant’s defense. 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. 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. In United States v. Fischel we held that the government must have some valid reason for withholding an informant’s address when the informant may have information pertinent to the defendant’s theory of defense. The government in this action opposed such disclosure on the ground that the informants were not "actively involved" in the transactions in question. 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. 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. B. The DEA Files on the Informants 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 tecum as a discovery device, which it is not. Under the plain language of Rule 16(a) the defendants were not entitled to the 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. Sec. 3500.

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. Nothing helpful to the defendants turned up. 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. 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. 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. 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 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. 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. That does not mean that the basis in fact must be proved as a fact before a good faith inquiry can be made. 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. The court further 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. We see no reason to disturb this finding.

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. 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 jury. 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. Defendants Gilbreth and Snoddy urge that in United States v. Hammond this circuit adopted a per se rule of reversal for substantial government interference with a defense witness’s free and unhampered choice to testify. 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. We note, too, that Aycock testified that his treatment by the government had not altered his substantive testimony as a witness for the defense. 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. 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?

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

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.

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. 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 argument taken as a whole in the context of the entire case, prejudicially affected substantial rights of the defendant." This test was not met here. IV. Inaudible Videotapes 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, "tape recordings which are only partially intelligible are admissible unless these portions are so substantial as to render the recording as a whole untrustworthy." We review the district court’s decision to admit the recording under an abuse of discretion standard. We have viewed the tape and find that the district court did not abuse its discretion in allowing the jury to view the tape. 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.

UNITED STATES v. DAVID LEE JACKSON US Court of Appeals, Fifth Circuit 549 F.3d 963, November 17, 2008 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.

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, posttraumatic stress disorder, and institutionalization. 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. The district court’s factual findings are reviewed for clear error; its legal conclusions,

de novo. We review for abuse of discretion the decision to exclude jurors, evidentiary decisions, rulings regarding trial orderliness, refusals to give requested jury instructions, and denials of new trials. A.

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, 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. 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 re-indicted, 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

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. 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." 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." 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." 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. 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 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. 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." On appeal, Jackson provides no information about the "potential witness," whom that witness could have impeached, or how. 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." "Because actual, substantial prejudice to the defense at trial is required, a showing of mere potential or possible trial prejudice does not suffice." 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. 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 charge, to July 2005, the date of his first request for a continuance. The Sixth Amendment protects the right of "the accused to a speedy and public trial." This protection attaches when "the defendant has been formally indicted or

actually restrained accompanying arrest." 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." 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." "A delay of less than one year will rarely qualify as ‘presumptively prejudicial’ for purposes of triggering the Barker inquiry." (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." 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," in connection with Brown’s murder. 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 sixmonth delay is too short to raise a presumption of prejudice. 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 otherBarker factors — including the reason for the delay — and properly rejected Jackson’s Sixth Amendment claim without holding an evidentiary hearing. B. Jackson makes at least two separate arguments that the FDPA is unconstitutional. 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.

Jackson concedes that "this Court must reject the Eighth Amendment claim based on binding Fifth Circuit precedent." He is correct. The claim based on the Fifth and Sixth Amendments is similarly precluded. "It is neither constitutional nor statutory error for the non-statutory aggravating factors to be omitted from the indictment." In response, Jackson argues that Bourgeois is undermined by Cunningham v. California 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, "fact-finding 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." Jackson claims that "the statutory scheme invalidated in Cunningham is indistinguishable from the FDPA factfinding 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 fact-finding 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. Because Cunningham is not on point and does not undermine 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. Under Witherspoon v. Illinois, "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. In Wainwright v. Witt, 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. This standard does not require that a juror’s bias be proved with unmistakable clarity." The Court specified, in Uttecht v.

Brown, 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.’" Jackson argues that Epps should not have been excused. Though he acknowledges that "after 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. 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."

Wilson indicated that his testimony was based on his "investigation 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 first-hand observation" as an investigative agent. Accordingly, any error in admitting his statements as lay rather than expert testimony was not plain.

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.

E.

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. 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. Moreover, a district court may admit testimony about a potential victim’s state of mind. "In the ordinary circumstance," we do not permit witnesses to speculate about a "defendant’s state of mind or intent," 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 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. He claims that some of Wilson’s testimony improperly crossed the line into expert testimony governed by Federal Rule of Evidence 702. 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." 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." To be considered expert, testimony must involve more than "common sense or the officer’s past experience formed from first-hand observation."

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, however, and permit the introduction of "evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused." 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." 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. 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.

Jackson attempts to avoid Gulley by citing Holmes v. South Carolina 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." 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." 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." 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. This careful balance is hardly disproportionate or arbitrary, and Jackson provides no argument to the contrary beyond assertion. 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, 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. F. 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 cross-examination. Because Jackson did not object to that ruling and so did not preserve the issue for appeal, we review only for plain error. "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." 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 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. Because this is a question of first impression and the law was not obvious at the time of trial, any error was not plain. G. 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." 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." 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 "released 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 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. 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." "Well-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. The decision to exclude the evidence because of its prejudicial value was therefore constitutionally permissible.

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. This court’s decisions are "not final until we issue a mandate." In Charpentier v. Ortco Contractors, we rejected the argument that an award ceased to exist "on the date

we issued our opinion vacating the award." 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. Further, under rule 609(e), "the 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 affected the admissibility of Agofsky’s convictions. We note, however, that the rules permitted Jackson to present information about Agofsky’s appeal to ameliorate the impeachment. Evidence of the pendency of an appeal is admissible. Jackson declined to do so despite being reminded of the option by the district court. I.

H. 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 we held that the Double Jeopardy Clause forbade convicting Agofsky of both counts, because the charges amounted to the same offense. We nonetheless concluded that one of the two death sentences could stand. 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." 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 Agofsky v. United States 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.

Jackson argues that, as a matter of constitutional right, he should have been allowed to submit a statement of allocution to the jury. The district court denied Jackson’s request to allocute, citing United States v. Hall ("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"). 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, Accordingly, we follow Hall and uphold the district court’s order. J. 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, Justice White, writing for four Justices, first noted that "this Court’s prior decisions, as we understand them, fail to recognize a constitutional right to have residual doubts considered as a mitigating factor." 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." 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.’" 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." 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.” 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. 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 "any 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 right to consideration of residual doubt was not impaired. 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, and fifty of them received zero support. 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 "no 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. "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." Further, verdict inconsistencies are generally tolerated.

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, "eleven 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 the jury found that "an equally culpable defendant, Arzell Gulley, did not receive a sentence of death as a result of the offense" 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 "let’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, 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." 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, 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. 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. 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 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. 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."

In United States v. Jones, a death penalty case like Jackson’s, we unambiguously stated that "Rule 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 court-room proceedings which influences jury deliberations, such as a statement made by a bailiff to the jury or a threat against a juror" Jones is on point, 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." 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. For the reasons stated, we AFFIRM the conviction and sentence.

BOYD et al. v. UNITED STATES 142 U.S. 450, January 4, 1892 Justice Harlan delivered the opinion of the Court. 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 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 ferry-boat, 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 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 contended — to use the words of their counsel — ’that 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 h’ 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 in support of the objection. The government thereupon produced a pardon from the president of the United States, as follows: 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 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.

BENJAMIN HARRISON President of the United States 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 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. 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 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 robs ‘Your 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 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 textwriters 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 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 parties — the man Davis or Myers and these two defendants — from 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 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 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.

UNITED STATES v. CONSTANCE F. CUNNINGHAM US Court of Appeals, Seventh Circuit 103 F.3d 553, Dec. 26, 1996 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." 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, a Schedule II controlled substance) 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. 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," 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 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 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. 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. Rule 404(b) forbids the introduction of evidence of a person’s prior conduct (wrongful or otherwise, 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. "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. 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. 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). But the principle that we are discussing is not limited to sex crimes. A "firebug" — one who commits arson not for insurance proceeds or revenge or to eliminate a competitor, but for the sheer joy of watching a fire — is, 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. 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 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). 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 Demerol-filled 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 rob — he needed money to buy drugs. Cunningham was in a position to steal her drug directly. The evidence of her addiction was thus admissible, unless the judge decided that its prejudicial effect — the 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 thief — clearly 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 steal — a non-addict might steal drugs to resell them. 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. With the challenged evidence in, Cunningham’s last argument--that the evidence of her guilt was insufficient to convict her of product tampering beyond a reasonable doubt — collapses. One of the nurses was the thief, and only one — Cunningham — was 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.

UNITED STATES v. ESTEBAN GONZALEZ and ALFREDO COLON US Court of Appeals, Second Circuit 110 F.3d 936 April 14, 1997

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.

Esteban Gonzalez and Alfredo Colon were convicted in the United States District Court for the Southern District of New York 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 and Brady v. Maryland; 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.

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.

Background

At about this time, police officers Jeffrey Sapienza and Valerie 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.

Late in the evening of February 24, 1994, off-duty New York City police officer Thomas 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, appellant Esteban 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 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

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 direction--the 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.

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

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." 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. 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 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. 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." The jury was fully apprised by defense counsel of the absence of corroborating physical evidence in support of the defense theory of the case--namely, 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

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.Ev 401; unfairly prejudicial under Fed.R.Ev 403; and improperly admitted extrinsic evidence of a prior bad act, in violation of Fed.R.Ev 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 "rousing the jury’s hostility toward the defendants." 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 in United States v. Coonan: The 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. 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."

of the case by casting further doubt on Crowe’s credibility. The district court rejected this argument. We note initially that "because 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." 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." 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."

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.

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. 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.

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.Ev 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.’ "

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 testimony--presumably 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.

III. Disclosure Violations Defendants argue that the government violated its disclosure obligations both under the Jencks Act and Brady v. Maryland (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 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

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. 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 crossexamination. 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, and that the evidence

was material. Evidence is material only if there is a reasonable probability that had the evidence been disclosed, the result would have been different. A “reasonable probability’ of a different result is accordingly shown when the Government’s evidentiary suppression ‘undermines confidence in the outcome of the trial." 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. "Evidence 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." 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 hearing — from which the fact that he was called there to testify would have been a logical inference. We need not decide whether or not the evidence was suppressed, however, because we believe, in any event, that the evidence was not material. 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. IV. Jury Instructions 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 crime--namely, that the firearms they were accused of possessing had moved "in and affected interstate commerce." 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. For the following reasons, we conclude that the instruction was not plain error. There is no question that "the 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." 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. 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, 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, 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 appeal--a 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 determined--a 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. 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. 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, 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 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 affects the fairness, integrity, or public reputation of judicial proceedings. " In this case, whether or not there was error and whether or not it was plain, we easily conclude that the third Olano element — that the error affect defendants’ substantial rights — was not met. As we have recently explained, when considering a constitutional error’s effect on a criminal defendant’s rights, the first task ... is to determine if the error is “structural error” or “trial error." Trial error is that which may be quantitatively assessed in context in order to determine whether it was harmless beyond a reasonable doubt. A structural error, in contrast, is one which amounts to a "fundamental defect in the trial mechanism," 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." If on direct review of a preserved claim, we find structural error, we will always reverse the judgment of conviction. However, the question of whether reversal is always required when the error is structural and unpreserved was raised, but not decided, by Olano. 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. 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. Applying this rule to partial directed verdicts, the Seventh Circuit has explained in United States v.

Kerley:

Not 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 crime--such as guilty knowledge in this case--has been proved beyond a reasonable doubt, so the jury needn’t worry its collective head over that one. 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, "we 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." 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." 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." This is not a case where the government 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. 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 "affected the framework within which the trial proceeds, rather than simply an error in the trial process itself Because any error here is not structural, the answer to the question of whether it affected defendants’ substantial rights is easier. 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. 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. 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. 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. 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. Moreover, jury nullification, while it is available to a defendant, is only a power that the 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 convictedfelon element. 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 Cross-Appeal 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 departure — that Gonzalez’s criminal history calculation significantly overstated the seriousness of his prior criminal conduct — was explicitly rejected by the district court during the sentencing hearing. 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. In the present case, the district court provided no such explanation. Accordingly, we must remand for the resentencing of Gonzalez. 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.

GLADYS JONES v. THE STATE OF TEXAS Court of Criminal Appeals of Texas 376 S.W.2d 842, April 1, 1964 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 of 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. Before he could drag her out she turned around and rubbed "her rear end" on him. She then said she had to use the 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.

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.

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.

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 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." The evidence is sufficient to sustain the conviction and no error appears. The judgment is AFFIRMED.

UNITED STATES v. KEEFER JONES US Court of Appeals, Seventh Circuit 455 F.3d 800, August 1, 2006 After a jury trial, Keefer Jones was found guilty of possession with intent to distribute five or more grams of cocaine base ("crack"). 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. 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). 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. 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.

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." 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." 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 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. 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, which instructed the jury to consider the prior conviction only for the purpose of establishing intent. 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. 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. Discussion A. Denial of Mr. Jones’ Motion to Continue 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. Nevertheless, the court cannot have a "myopic insistence upon expeditiousness in the face of a justifiable reason for delay." 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.

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. 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. 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. 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. 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." The district court did not make any specific statements regarding inconvenience to itself or any party; however, we have noted that this factor is simply one of many factors that the court may weigh and consider. 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." 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. 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." 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 Mr. Jones submits that the district court erred in admitting his 1994 conviction into evidence under Federal Rule of Evidence 404(b). We review a district court’s decision to admit evidence under Rule 404(b) for an abuse of discretion; we ask whether: (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 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. 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. 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 3-4. 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. 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." 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, 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. On appeal, Mr. Jones, relying on Toro, 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 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. 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. 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. 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. 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." 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 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. 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 "both crimes involve the possession with intent to distribute a chemical composition of cocaine." 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. 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." After analyzing each of the relevant factors, we cannot say that the district court abused its discretion. C. Booker Mr. Jones was sentenced on June 3, 2004, before the Supreme Court decided United States v. Booker. Mr. Jones now contends that the district court’s application of a two-

level enhancement for obstruction of justice violated his right to a jury trial because it rested on facts found by the trial judge. Because this issue was not raised before the district court at sentencing, we review only for plain error. 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. 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." 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. 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 deserved." 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." Given the trial court’s statement that Mr. Jones "richly deserved" 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.

UNITED STATES v. ROBERT SMYTH WALES US Court of Appeals, Ninth Circuit 977 F.2d 1323, Oct. 20, 1992 Judge Thompson delivered the Opinion of the Court: 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 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. n 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

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. B. Evidentiary Contentions We will reverse a district court’s evidentiary rulings only for abuse of discretion.

A. Sufficiency of the Evidence 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." 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

1. False Drivers’ Licenses 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. The district court did not err in admitting this evidence. 2. Gold Coins in Safe Deposit Box

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. 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. 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. In this circuit "Rule 404(b) applies to other act evidence regardless of whether it occurred before or after the alleged offense." 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. 3. The Correctly Completed Declaration Form 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. 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 to the amount of currency he was carrying. The district court did not err in admitting this evidence. 4. Wales’s Behavior 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.

5. Purpose of Customs Forms 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. C. Amended Guideline 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. 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. Section 1B1.10(a) provides that "where 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." The amendment to section 2S1.3(a)(1)(B) is one of the amendments to which section 1B1.10(a) applies. Thus, "while Wales is not necessarily entitled to a reduction in the offense level — section 1B1.10(a) does not mandate the use of the lesser enhancement, but merely affords the sentencing court discretion to utilize it — he is entitled to have his sentence reviewed in light of the amendment." We do not vacate Wales’s sentence. Instead, consistent with Connell, 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. AFFIRMED and REMANDED.

Judge Kozinski, concurring in part. 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 believed 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." Judge Friendly needn’t have worried. Appellate courts, district judges and the bar haven’t been buffaloed by "black letter rules 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. 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. 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. It may seem sensible to let witnesses be impeached with evidence of their past lies. It may seem sensible to allow defendants to prove their good character using specific acts. 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. 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. The majority opinion directly contravenes this specific judgment. 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 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. And, while I don’t join Part B(1), I do join the rest of Judge Thompson’s well-written opinion.

UNITED STATES v. LEO LeCOMPTE US Court of Appeals, Eighth Circuit 131 F.3d 767, Dec. 22, 1997 Before the trial of Leo LeCompte for the alleged sexual abuse of his wife’s 11-yearold 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. 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 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." The Court therefore excluded the evidence under Rule 403. III. 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. 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 rules—Rule 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)." Evidence offered under Rule 414 is still subject to the requirements of Rule 403. This Court has recognized that evidence otherwise admissible under Rule 414 may be excluded under Rule 403’s balancing test. However, Rule 403 must be applied to allow Rule 414 its intended effect. We review the District Court’s application of Rule 403 for abuse of discretion. 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 was imprisoned for a portion of the time between 1987 and 1995, which deprived defendant of the opportunity to abuse any children." 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. 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.

PEOPLE v. D’ARTON Appellate Division of the Supreme Court of New York 289 A.D.2d 711, Dec 13, 2001 MEMORANDUM AND ORDER

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." 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 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 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" 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."

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. In People v. James, 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. Noting that the second and third of the criteria set forth in People v. James 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 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 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, the Court of Appeals expressly stated its

intention to adopt the rule previously adopted in "jurisdiction after jurisdiction of State and Federal courts that have determined to follow the lead of Mutual Life Ins. Co. of N.Y. v. Hillmon and Hunter v. State of New Jersey 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" 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. 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. 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. Judgment is AFFIRMED.

JOEL REYES v. MISSOURI PACIFIC RAILROAD COMPANY US Court of Appeals, Fifth Circuit 589 F.2d 791, Feb. 14, 1979 Plaintiff-appellant Joel Reyes challenges 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 Missouri Pacific Railroad Company’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. I. Shortly after midnight on June 17, 1974, appellant Reyes was run over by appelleerailroad’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 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. In an attempt to minimize the damaging effects of his prior convictions, Reyes brought them out on direct examination. 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. II. Rule 404 of the Federal Rules of Evidence embodies the well-settled principle that evidence of a person’s character is usually not admissible for the purpose of proving that the person acted in conformity with his character on a particular occasion. This general rule of exclusion, applicable to both civil and criminal proceedings, is based upon the assumption that such evidence is of slight probative value yet very prejudicial.

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. Rule 404 contains several exceptions to the general rule itself. This case does not present us with a situation falling within any of these exceptions. 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. The suggestion that the prior convictions constituted evidence of Reyes’ "habit" of excessive drinking is equally unpersuasive. Rule 406 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. 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." 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 semi-automatic.

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. Thus, the probative force of habit evidence to prove intoxication on a given occasion depends on the "degree of regularity of the practice and its coincidence with the occasion." 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. IV. 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. REVERSED and REMANDED.