United States v. Isaacs ( 1994 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2068
UNITED STATES,
Appellee,
v.
EDWARD ISAACS,
Defendant, Appellant.
No. 92-2129
UNITED STATES,
Appellant,
v.
EDWARD ISAACS,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Circuit Judge,
Oakes,* Senior Circuit Judge,
and Cyr, Circuit Judge.
Miriam Conrad, Assistant Federal Defender, with whom Owen S.
Walker, Chief Federal Defender, was on brief for Edward Isaacs.
Fred M. Wyshak, Jr., Assistant U.S. Attorney, and Carole S.
Schwartz, Special Assistant U.S. Attorney, with whom A. John
Pappalardo, United States Attorney, was on brief for the United States
of America.
January 25, 1994
*Of the Second Circuit, sitting by designation.
OAKES, Senior Circuit Judge. This case consists
of cross appeals from a judgment of the United States
District Court for the District of Massachusetts, Rya W.
Zobel, Judge. The Government appeals both the decision of
the court to entertain a collateral challenge to the
constitutionality of a prior conviction at sentencing and
the decision of the court that the prior conviction was
constitutionally invalid. The defendant, Edward Isaacs,
appeals his conviction on the basis that the district court
improperly allowed into evidence an indictment against his
father and cousins and improperly allowed him to be cross-
examined concerning his knowledge of his relatives' alleged
loansharking enterprise. For the reasons below, we reverse
the district court's decision that it had the power to
review the constitutionality of Isaacs' prior conviction and
affirm its decision to admit the indictment against his
father into evidence and to allow him to be questioned about
the activities of his relatives.
BACKGROUND
Isaacs was convicted of one count of conspiracy
and one count of using extortionate means to attempt to
collect a loan, in violation of 18 U.S.C. 2 and 894(a)
(1988). According to the Government, racketeering and
loansharking was something of a family business. Isaacs got
involved in the "business" after his father, Leonard, was
2
indicted, placed under house arrest, and developed health
problems. Isaacs' conviction is based on his dealings with
one of his father's alleged loansharking victims, Robert
Ayala. Ayala had borrowed $2,500 from Leonard in November
of 1990 and had been making weekly interest payments of $100
(for an interest rate of 208% per year). Isaacs contacted
Ayala in July of 1991, after Ayala had stopped making
payments, to pressure Ayala to pay off the entire loan.
Ayala eventually sought help from the authorities and agreed
to help record conversations with Isaacs.
Isaacs was tried before a jury and convicted. The
Government's evidence included several recordings of
conversations that supported the allegations of extortion.
In addition, there was proof that Isaacs broke into Ayala's
home and threatened Ayala with a pistol in front of his
three small children. At sentencing, the district court
increased Isaacs' offense level under the United States
Sentencing Guidelines (the "Sentencing Guidelines" or
"Guidelines" or "U.S.S.G") by two points for perjury and
intimidation of a witness and then refused Isaacs' request
for a downward departure based on his history of abuse at
the hands of his father. However, the court allowed Isaacs
3
to challenge a 1980 burglary conviction1 that would have
resulted in his being classified as a career offender,
instead of receiving a Criminal History Category of III.
Isaacs argued that he had not received effective assistance
of counsel in his earlier case because his attorney did not
object to having the case transferred from juvenile to adult
court at a certification hearing. The district court found
that Isaacs had demonstrated by a preponderance of the
evidence that his prior conviction was unconstitutional and
refused to consider either the conviction or the underlying
conduct as a basis for changing Isaacs' Criminal History
Category. As a result, Isaacs faced 97 to 121 months
imprisonment rather than 210 to 262 months and was sentenced
to 108 months.
DISCUSSION
This case raises three issues. First, we consider
whether U.S.S.G. 4A1.2 gives a sentencing court discretion
to allow a defendant to challenge the constitutional
validity of a prior conviction that is being used to enhance
his or her Criminal History Category. Second, we address
the question whether Isaacs had a constitutional right to
1Isaacs was arrested in August of 1980 and charged with
several burglaries that occurred during June and July.
Isaacs was 17 at the time and was not living at home.
4
challenge his prior conviction at sentencing. Finally, we
evaluate Isaacs' contention that the district court
committed reversible error in admitting evidence of his
relatives' alleged criminal behavior.
I. The Government's Appeal
A. Section 4A1.2 of the Sentencing Guidelines
The Government contends that the Sentencing
Guidelines do not provide a sentencing court independent
authority to permit a collateral challenge to the
constitutionality of a prior conviction where the prior
conviction is being used to compute a defendant's Criminal
History Category. We agree. The dispute over this issue
concerns Comment 6 to 4A1.2, and, in particular, a 1990
amendment to the Guidelines that altered Comment 6 and added
a background note to the comment section.
Prior to the 1990 amendment, Comment 6 to 4A1.2
of the Guidelines stated:
Invalid Convictions. Sentences
resulting from convictions that have
been reversed or vacated because of
errors of law, or because of
subsequently-discovered evidence
exonerating the defendant, are not to be
counted. Any other sentence resulting
in a valid conviction is to be counted
in the criminal history score.
Convictions which the defendant shows to
have been constitutionally invalid may
5
not be counted in the criminal history
score. Also, if to count an uncounseled
misdemeanor conviction would result in
the imposition of a sentence of
imprisonment under circumstances that
would violate the United States
Constitution, then such conviction shall
not be counted in the criminal history
score. Nonetheless, any conviction that
is not counted in the criminal history
score may be considered pursuant to
4A1.3 if it provides reliable evidence
of past criminal activity.
U.S.S.G. 4A1.2, comment (n.6) (Nov. 1, 1989) (second
emphasis added). The courts which interpreted this Comment
uniformly found that the Guidelines authorized or required
the constitutional review of prior convictions at
sentencing. See, e.g., United States v. Mims, 928 F.2d 310,
312 (9th Cir. 1991); United States v. Edwards, 911 F.2d
1031, 1035 (5th Cir. 1990); United States v. Jones, 907 F.2d
456, 460-69 (4th Cir. 1990), cert. denied, 498 U.S. 1029(1991).
However, the Sentencing Commission amended the
comment section for 4A1.2 in 1990, thereby reopening the
question whether the Guidelines provide district courts with
independent authority to review the constitutionality of
prior convictions. Cf. Stinson v. United States, U.S.
, 113 S. Ct. 1913 (1993) (Interpretive commentary in
Guidelines is binding authority for federal courts even when
contrary to prior judicial interpretation of Guidelines).
Comment 6 to 4A1.2 as thus amended provides:
6
Reversed, Vacated, or Invalidated
Convictions. Sentences resulting from
convictions that have been reversed or
vacated because of errors of law, or
because of subsequently-discovered
evidence exonerating the defendant, are
not to be counted. Also, sentences
resulting from convictions that a
defendant shows to have been previously
ruled constitutionally invalid are not
to be counted. Nonetheless, the
criminal conduct underlying any
conviction that is not counted in the
criminal history score may be considered
pursuant to 4A1.3 (Adequacy of Criminal
History Category).
U.S.S.G. 4A1.2, comment (n.6) (Nov. 1, 1991) (second
emphasis added). In short, Comment 6 no longer deals with
collateral challenges at all, but simply instructs the
sentencing court to disregard convictions that have been
"previously ruled unconstitutional." Nevertheless, a
background note added to the comment section at the same
time states in pertinent part:
The Commission leaves for court
determination the issue of whether a
defendant may collaterally attack at
sentencing a prior conviction.
The courts that have assessed the revised comment
section to 4A1.2 have accordingly divided on whether the
Guidelines continue to authorize the review of prior
convictions. Compare United States v. Byrd, 995 F.2d 536(4th Cir. 1993) (Wilkins, J.) (Guidelines add no independent
power for collateral review; Constitution mandates review
only in certain limited circumstances), United States v.
7
Roman, 989 F.2d 1117, 1120 (11th Cir. 1993) (en banc) (per
curiam) (Guidelines add no independent power for collateral
review; Constitution mandates review only if conviction
"presumptively void") and United States v. Hewitt, 942 F.2d
1270, 1276 (8th Cir. 1991) (amendment to Comment 6
demonstrates Commission's intent to disallow challenges to
prior convictions; no discussion of the added background
note) with United States v. McGlocklin, No. 91-6121, 1993
U.S. App. LEXIS 23841, at *16 n.7 (6th Cir. Sept. 17, 1993)
(Comment 6 is consistent with the inherent authority of
district courts to allow attacks on prior convictions),
United States v. Canales, 960 F.2d 1311, 1315 (5th Cir.
1992) (background note demonstrates that Commission intended
to allow sentencing court some discretion in whether to
allow challenges to prior convictions) and United States v.
Jakobetz, 955 F.2d 786, 805 (2d Cir.) ("[w]hile defendants
may always present the sentencing court with evidence that
another court has ruled their prior convictions invalid and
hence unsuitable for consideration as part of the criminal
history score at sentencing, the court also retains
discretion to determine whether a defendant may mount an
initial challenge to the validity of such convictions."),
cert. denied, U.S. , 113 S. Ct. 104 (1992); and cf.
United States v. Vea-Gonzales, 986 F.2d 321, 325-29 (9th
Cir. 1993) (Guidelines ambiguous on right of sentencing
8
court to allow collateral attacks on prior convictions but
Constitution makes right of attack mandatory) amended and
superseded 999 F.2d 1326 (9th Cir. 1993).
The First Circuit has not addressed this precise
question, although this court has decided that a defendant
may attack the constitutional validity of a state conviction
when facing the enhancement provisions of the Armed Career
Criminal Act ("ACCA"). United States v. Paleo, 967 F.2d 7,
11-12 (1st Cir. 1992). In response to a petition for
rehearing in Paleo, however, this court stated that the
language of Comment 6 to 4A1.2 was "critically different"
from the language of the ACCA. United States v. Paleo, No.
90-1774, 1992 WL 545126, at *2 (1st Cir. Sept. 18, 1992)
(memorandum and order denying petitions for rehearing).
Nonetheless, the Paleo panel did not directly address the
question whether a sentencing court has discretion under the
Guidelines to allow a collateral attack on a prior
conviction.
The Government asks this court to accept the Roman
and Hewitt courts' interpretation of 4A1.2 and find that
the revised Comment 6, the commentary applicable to this
case, is intended to preclude collateral review of prior
9
convictions. We find this view persuasive.2 The 1990
amendment to Comment 6 removed the language that served to
authorize first time collateral review of prior convictions
and replaced it with language permitting review only of
convictions "previously ruled invalid." As the Eleventh
Circuit recognized in Roman, "[n]o language now in Note 6
authorizes collateral review." Roman, 989 F.2d 1117, 1119.
The problem is, of course, more difficult by
virtue of the appended background note which leaves "for
court determination the issue of whether a defendant may
collaterally attack at sentencing a prior conviction." We
believe that this note does not provide an independent basis
for the review of prior convictions, given the revised
language of Comment 6 itself. Instead, the background note
may be best understood as a signal, somewhat faint to be
sure, that the Sentencing Commission had not attempted to
resolve whether the Constitution requires a sentencing court
to review the constitutionality of a prior conviction that
is being used to enhance a sentence -- an issue we address
below. As the Roman court stated, "[t]he Background Comment
2The Commission's explanation for the amendment states
unhelpfully that the amendment "clarifies the circumstances
under which prior sentences are excluded from the criminal
history score." U.S.S.G. App. C, Amendment 353, at 171.
The focus of the amendment explanation appears to be the
addition of uncounseled misdemeanor convictions to those
convictions that are used to determine the criminal history
score. Id.10
does not change [Comment 6's] meaning, but recognizes that -
- apart from the sentencing guidelines -- the Constitution
bars federal courts from using certain kinds of convictions
at sentencing." Id.3
B. Constitutional Considerations
Although the district court based its decision to
review the constitutionality of Isaacs' prior conviction on
the mistaken belief that the Guidelines authorized such a
review, we must still address Isaacs' contention that the
Constitution guarantees the right to challenge collaterally
prior convictions at sentencing. In opposition to Isaacs'
position, the Government advocates the position taken by the
Eleventh Circuit in Roman -- that the Constitution does not
require sentencing courts to permit defendants to make a
3A recent amendment to the comment section of 4A1.2
suggests that the Commission did not intend the Guidelines
to provide an independent basis for a sentencing court to
review the constitutionality of prior convictions. See
U.S.S.G. 4A1.2, comment (n.6) (Nov. 1, 1993). The
amendment directly confronts the "inter-circuit conflict in
interpreting the commentary by stating more clearly that the
Commission does not intend to enlarge a defendant's right to
attack collaterally a prior conviction at the current
sentencing proceeding beyond any right otherwise recognized
in law." Proposed Amendment 20 to the Sentencing
Guidelines, Policy Statements, and Official Commentary
(April 30, 1993). Despite this clear statement of intent,
we note that the amendment did not go into effect until
November 1, 1993. Thus, we do not rely on the amendment to
hold that the Guidelines do not provide independent
authority for collateral review of prior convictions.
11
collateral challenge to prior convictions at sentencing
unless the alleged constitutional error is so grave as to
make the prior conviction "presumptively void." The
Government further contends that Isaacs' challenge to his
prior conviction does not meet the "presumptively void"
criteria.4
We begin by observing that the Supreme Court has
so far declined to consider whether due process requires
"state courts to permit challenges to guilty pleas used for
enhancement purposes." Parke v. Raley, 113 S. Ct. 517, 523
(1992) (due process clause permits state to impose burden of
production on recidivist defendant who challenges validity
of prior conviction under Boykin v. Alabama, 395 U.S. 238(1969)). Nonetheless, both Isaacs and the Government
contend that guidance on this issue can be found in an
analysis of two Supreme Court cases handed down prior to the
implementation of the Sentencing Guidelines: United States
4The government also argues that the interests of comity and
judicial economy suggest that prior convictions should not
be reviewed at sentencing. These arguments do not hold as
much water as they might since they have been rejected
already by this court in Paleo. As the Paleo court
recognized, "``comity' considerations are absent (or less
weighty) . . . when a federal court refuses to rely on a
state conviction as a basis for imposing a federal sentence
for a federal crime." Paleo, 967 F.2d at 12. Similarly,
judicial economy is not a reason to preclude collateral
review because this concern can be dealt with by placing the
burden of proof on the defendant. Id. at 12-13.
12
v. Tucker, 404 U.S. 443 (1972), and Burgett v. Texas, 389
U.S. 109 (1967).
Tucker involved a collateral challenge under 28
U.S.C. 2255 to a sentence based in part on two previous
convictions later shown to have been obtained in violation
of Gideon v. Wainwright, 372 U.S. 335 (1963). It had been
"conclusively determined" in a collateral state court
proceeding that the prior convictions were "constitutionally
invalid." Tucker, 404 U.S. at 444-45. The Tucker Court
held that the case should be remanded to the district court
for reconsideration of the sentence imposed upon the
defendant because the sentence was "founded at least in part
upon misinformation of constitutional magnitude." Id. at
447. As the Tucker Court explained, "the real question here
is not whether the results of the . . . proceedings might
have been different if the respondent had had counsel, but
whether the sentence . . . might have been different if the
sentencing judge had known that . . . the respondent's
previous convictions had been unconstitutionally obtained."
Id. at 448.
The Tucker Court's holding does not provide a
basis for finding that a defendant has a right to challenge
prior convictions at sentencing for the first time. Tucker
addresses the situation where prior convictions that are
used to enhance a sentence have been found previously to be
13
unconstitutional -- not the situation addressed here, where
the prior conviction has not previously been found
unconstitutional. Tucker thus does not aid us.
Burgett, which also addressed a Gideon violation,
is more relevant. In the Burgett case, the defendant
challenged a sentence enhancement based on a prior
conviction that on its face appeared to be unconstitutional,
though there had been no prior determination that it was in
fact unconstitutional. The certified copy of the judgment
offered by the Government at trial to prove the conviction
in question stated that the defendant had been without
counsel. The Burgett Court held that it would be improper
to presume from a silent record that the defendant had
waived his right to counsel and that, therefore, the
judgment of conviction raised "a presumption that petitioner
was denied his right to counsel." Burgett, 389 U.S. at 114.
In language that foreshadows the decision in Tucker, the
Burgett Court went on to say that "[t]o permit a conviction
obtained in violation of Gideon v. Wainwright to be used
against a person either to support guilt or enhance
punishment for another offense . . . is to erode the
principle of that case." Id. at 115.
We agree with the Eleventh Circuit's Roman
decision that the appropriate rule to be teased from Burgett
is that the Constitution requires a review of the
14
constitutionality of prior convictions at sentencing only
where the prior conviction is "presumptively void."5 989
F.2d at 1120. The Roman court, however, was not required to
and did not reach the question of what kinds of convictions
are "presumptively void." We examine that additional
question to determine whether the district court was
required to review Isaacs' ineffective assistance of counsel
claim.
The Government suggests that "presumptively void"
convictions may include a claim of lack of counsel but not
5In a thoughtful concurring opinion in Roman, Chief Judge
Tjoflat disagreed with the "presumptively void" test and
suggested instead that the sentencing court must entertain a
constitutional challenge to a prior conviction only if "(1)
the offender denies the conduct, and (2) the objection
undermines the presumption associated with the conviction."
989 F.2d at 1129.
We do not adopt the two-part test recommended by
Chief Judge Tjoflat primarily because we do not think it
appropriate to require a defendant to deny the underlying
conduct of a prior conviction in order to challenge the use
of the conviction under 4A1.2. When confronted with a
similar argument, concerning a defendant unconstitutionally
convicted but allegedly guilty of the underlying conduct of
the conviction, the Tucker Court replied that "[i]t would be
. . . callous to assume, now that the constitutional
invalidity of the respondent's previous convictions is
clear, that the trial judge will upon reconsideration
``undoubtedly' impose the same sentence he imposed in 1953."
Tucker, 404 U.S. at 449 n.8. Citing Burgett, the Tucker
Court also expressed a concern that the use of an
unconstitutional conviction to enhance a sentence would
erode the violated constitutional principle. Id. at 449.
Moreover, the Sentencing Guidelines already
provide a sentencing court with the authority to impose a
sentence that reflects prior criminal conduct not taken into
account by valid prior convictions. See U.S.S.G. 4A1.3,
p.s. (Adequacy of Criminal History Category).
15
ineffective assistance of counsel, citing United States v.
Custis, 988 F.2d 1355 (4th Cir. 1993). In Custis, the
Fourth Circuit found that the Gideon violations at issue in
Burgett and Tucker were "different in kind" from the
ineffective assistance of counsel claims, noting that lack
of counsel claims "will ordinarily lend themselves to facial
review from the state court documents offered by the
government to establish the conviction." Id. at 1360-61.
Although we agree with the outcome the Government
recommends, we think it necessary to clarify the appropriate
test to determine whether a conviction is "presumptively
void."
As an initial matter, a prior conviction is
"presumptively void" if a constitutional violation can be
found on the face of the prior conviction, without further
factual investigation. Contrary to the Government's
position, the Burgett Court did not rest its decision on the
difference between lack of counsel claims and ineffective
assistance of counsel claims -- a distinction that generally
has not been meaningful since Powell v. Alabama, 287 U.S.
45, 57 (1932). See McMann v. Richardson, 397 U.S. 759, 771
n.14 (1970). Instead, we note that the Burgett decision was
based on a judgment facially showing lack of any counsel and
that most claims of inadequacy of counsel are unlikely to
meet its "presumptively void" test. Indeed, even as to lack
16
of counsel, the Supreme Court in Parke noted that "[a]t the
time the prior conviction at issue in Burgett was entered,
state criminal defendants' federal constitutional right to
counsel had not yet been recognized, and so it was
reasonable to presume that the defendant had not waived a
right he did not possess." Parke, 113 S. Ct. at 524.
Under limited circumstances, however, a conviction
may be "presumptively void" even if a constitutional
violation cannot be found on the face of the prior
conviction. The Supreme Court has recognized that some
constitutional violations are so serious as to undermine the
reliability of an entire criminal proceeding. Rose v.
Clark, 478 U.S. 570, 577-578 (1986) ("Without these basic
protections, a criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or
innocence, and no criminal punishment may be regarded as
fundamentally fair."). Such violations, termed "structural
errors," are not subject to "harmless error" analysis.
Sullivan v. Louisiana, No. 92-5129, 61 U.S.L.W. 4518, 4519
(June 1, 1993) (erroneous jury instruction on reasonable
doubt); see also Arizona v. Fulminante, 111 S. Ct. 1246,
1265 (1991) (opinion of Rehnquist, C.J., for the Court)
(listing as examples of errors that are not subject to
harmless error analysis: total deprivation of the right to
counsel at trial; judicial bias; unlawful exclusion of
17
members of the defendant's race from a grand jury;
deprivation of the right to self-representation at trial;
and deprivation of the right to a public trial). Where an
offender challenges the validity of a prior conviction on
"structural" grounds, therefore, a district court should
entertain the challenge whether or not the error appears on
the face of the prior conviction.6
We conclude that the district court should not
have entertained Isaacs' challenge to the prior conviction.
First, Isaacs' challenge required the district court in this
case to go beyond the evidence of conviction presented by
the Government and conduct a factual investigation. Second,
Isaacs did not challenge his prior conviction on structural
grounds. It is of course well settled that ineffective
assistance of counsel claims are subject to "harmless error"
review. Strickland v. Washington, 466 U.S. 668 (1984).
Absent facial invalidity or an allegation of a "structural
error," Isaacs' prior conviction is not "presumptively
6We note that this approach is consistent with the test
recently formulated by the Fourth Circuit. In Byrd, the
Fourth Circuit held that "district courts are obliged to
hear constitutional challenges to predicate state
convictions in federal sentencing proceedings only when
prejudice can be presumed from the alleged constitutional
violation, regardless of the facts of the particular case;
and when the right asserted is so fundamental that its
violation would undercut confidence in the guilt of the
defendant." Byrd, 995 F.2d at 540.
18
void." Hence, the district court should not have
entertained Isaacs' challenge.7
II. Isaacs' Appeal
Isaacs appeals the district court's decision to
admit into evidence at trial an indictment brought against
his father and cousins regarding his father's loansharking
operation. In addition, Isaacs challenges the Government's
examination of witnesses that brought out evidence of
Isaacs' family's criminal activity.
These arguments are unpersuasive. Although the
admitted evidence had the potential of prejudicing Isaacs on
the basis of the bad acts of others, the evidence was quite
relevant. See Fed. R. Evid. 403 (relevant evidence excluded
only if probative value is "substantially outweighed" by
danger of unfair prejudice). As the Government argues, the
indictment provides a context to the statements made by
Isaacs to Ayala, a motive for Isaacs' actions, and evidence
7We need not respond to the government's additional
contention that the district court erred in determining that
Isaacs' right to effective assistance of counsel was
violated at his 1980 certification hearing because we find
that the court should not have addressed the
constitutionality of the prior conviction. Nor, in these
circumstances, need we anticipate the applicability of a
variation of the "procedural default" test for obtaining
collateral review of a prior conviction. See, e.g., United
States v. Frady, 456 U.S. 152, 166 (1982) (affirming "the
well-settled principle that to obtain collateral relief a
prisoner must clear a significantly higher hurdle than would
exist on direct appeal").
19
of the requisite intent. Moreover, the district judge
provided several warnings to the jury to limit the
potentially improper effect of the evidence. For example,
the trial judge charged the jury that "[t]here is no
evidence that anybody before you in that [Leonard Isaacs'
case] has been convicted. It serves as background to this
case to say that Mr. Leonard Isaacs was accused of these
events, together with some other people."
Likewise, the cross-examination of Isaacs
regarding his knowledge of his family's alleged criminal
activities did not improperly prejudice him. Isaacs
testified that his contact with Ayala was not extortionate
and that he did not conspire with his father to collect the
debt. The questions asked by the Government concerning
Isaacs' knowledge of his family's alleged loansharking
activity directly confronted this testimony and were
therefore proper.
Finally, given the substantial evidence of guilt
provided by the tape recordings of conversations between
Isaacs and Ayala and the evidence provided by Ayala's nine-
year-old daughter, who testified that Isaacs used his own
gun in rebuttal to Isaacs' testimony that he was examining a
gun owned by Ayala, any error in this regard was harmless.
CONCLUSION
20
Accordingly, the judgment of the district court is
reversed in part and affirmed in part. We remand for
resentencing consistent with this opinion.
21
TORRUELLA, Circuit Judge (Dissenting in part). I
agree with the majority's lucid treatment of the collateral
attack issue, and believe that it is an important addition
to our jurisprudence. Unfortunately, I cannot endorse the
entire opinion. The majority summarily dismisses
appellant's arguments concerning the alleged 404(b)
evidence. On close examination, however, the 82 page
indictment of appellant's father and other relatives, which
did not mention appellant, was unfairly prejudicial and
should have been excluded under Federal Rule of Evidence
403. Appellant deserves a new trial on the merits.
I begin with a preliminary matter. While the
majority does not cite Rule 404(b), it uses the Rule's
language when it states that the "bad acts" could be used to
show "motive" and "intent." Furthermore, the parties argued
extensively under the Rule. While I assume, thus, that Rule
404(b) is a part of the opinion, it should not be.
Rule 404(b) excludes the use of other crimes,
wrongs or acts in order to show a defendant's character and
action in conformity with it. Such evidence must be crimes,
wrongs or acts committed by the defendant or by the person
who is sought to be impeached. United States v. David, 940
F.2d 722, 736 (1st Cir. 1991) ("Objections based on Rule
404(b) may be raised only by the person whose 'other crimes,
wrongs, or acts' are attempted to be revealed"); United
-19-
19
States v. Gonz lez-S nchez, 825 F.2d 572, 583 (1st Cir.
1987) ("Rule 404(b) does not exclude evidence of prior
crimes of persons other than the defendant"). In the
present case the allegedly 404(b) evidence refers to
evidence introduced of other crimes, wrongs or acts by
persons other than appellant. It is thus inadmissible under
that rule.
The inapplicability of Rule 404(b)
notwithstanding, the prejudicial impact of the indictment
substantially outweighed any probative value. It tarnished
appellant merely because of his relationship with its
targets, and because of its sheer weight. The indictment
required over eighty pages and forty-nine counts to detail
the scope of the father's racketeering operation, which
involved eleven victims, hundreds of thousands of dollars,
extortionate collection schemes, and illegal debts. To be
sure, it was a formidable document describing a formidable
criminal scheme. However, it did not implicate appellant in
that scheme in any way. The danger that the jury would
associate appellant with the scheme was too great to justify
admission of the indictment. United States v. St. Michael's
Credit Union, 880 F.2d 579, 601-02 (1st Cir. 1989) (evidence
concerning prior bad acts of father was impermissibly
prejudicial when defendant was not implicated in them). In
-20-
20
short, I believe that the majority has discounted the real
danger of guilt by association in this case.
The majority contends that the indictment was
relevant to show context, motive and intent. While I grant
that information concerning Mr. Isaacs disability bore at
least some relevance to show motive, I cannot fathom any
need to introduce the indictment itself to bring out this
point. The use of the indictment was unfairly inflammatory
when compared with whatever minimal probative impact it
might hold. It was an abuse of discretion for the district
court to admit the evidence.
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21