United States v. Andre Green ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-4345
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Andre Green, *
*
Appellant. *
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Submitted: May 15, 1998
Filed: August 19, 1998
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Before BOWMAN, Chief Judge, HEANEY and HANSEN, Circuit Judges.
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BOWMAN, Chief Judge.
Andre Green was convicted by a jury of conspiracy to possess with intent to
distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1994). He
appeals his conviction, arguing that the District Court1 abused its discretion by
admitting into evidence testimony regarding a prior arrest for distribution of cocaine
base, and that his constitutional rights were violated by the government's failure to
1
The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
provide defense counsel, before the start of trial, with a copy of the government's trial
brief and a transcript of a government witness's grand jury testimony. We affirm.
On May 6, 1997, St. Louis police officers working drug interdiction at a UPS
facility identified a suspicious incoming package, obtained a search warrant to open the
package after a drug-detecting canine alerted the officers to the presence of narcotics,
and discovered inside the package just over 187 grams of cocaine base and 436 grams
of marijuana. The officers repackaged a portion of the drugs for use in a controlled
delivery but, because the package was addressed to a non-existent location and thus
could not be delivered, requested that UPS employees alert the officers should someone
inquire at the facility about the package.
Later that day, UPS employees notified police that Juwana Hobson had
attempted to retrieve the package. Officers instructed the UPS employees to inform
Hobson that the package was on a delivery truck and not available for pick-up at the
station that day, but would be returned to the facility that evening for pick-up the
following morning.
The next morning Hobson returned to the UPS facility, picked up the package,
and was arrested by officers shortly after driving away with the package. Hobson, who
began cooperating with police immediately after her arrest, explained that Green had
asked her to pick up the package for him. She informed police that Green and Andre
Spikes had provided her with the UPS tracking number necessary to identify the
package, and that Green and Spikes were waiting for her to deliver the package to a
prearranged address. During Hobson's interview at the police station, she received a
number of messages from Green on her pager. The officers eventually instructed
Hobson to call Green, tell him that she had retrieved the package but that her car had
broken down, and ask him to pick her up at a specific location.
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Hobson, followed by the officers, drove to the spot where she had told Green her
car broke down, raised the car's hood, and waited for Green and Spikes. Shortly
thereafter, Green and Spikes arrived and, rather than take the package from the back
seat of Hobson's car, Green started the car and instructed Hobson to drive her car (still
containing the package) back to her apartment where he and Spikes would meet her.
Upon arrival at Hobson's apartment, Green and Spikes entered the building first,
followed by Hobson who was carrying the package, and detectives who were surveilling
the transaction. As Hobson approached the door to her apartment, Green and Spikes
saw the detectives following Hobson and ran up a flight of stairs, attempting to evade
arrest. The officers arrested Green and Spikes on the second floor of the building and
Green, while being taken into custody, insisted that he could not be arrested because he
had not taken possession of the box.
Green first argues that the District Court erred in allowing the introduction into
evidence of a police officer's testimony regarding Green's 1993 arrest for possessing and
selling cocaine base. The District Court admitted this testimony under Federal Rule of
Evidence 404(b), which allows for the admission of "other crimes" evidence only for
limited purposes, such as showing motive, intent, opportunity, or knowledge. Fed. R.
Evid. 404(b). This evidence is admissible if (1) it is relevant to a material issue; (2) it
is similar in kind and not overly remote in time to the crime charged; (3) it is supported
by sufficient evidence; and (4) its potential prejudice does not substantially outweigh
its probative value. See United States v. Anderson, 879 F.2d 369, 378 (8th Cir.), cert.
denied, 493 U.S. 982 (1989). Prior bad acts evidence may be admitted "to prove any
relevant issue other than the character of the defendant or his propensity toward criminal
activity." United States v. McDaniel, 773 F.2d 242, 247 (8th Cir. 1985). The district
court has broad discretion in determining whether to admit evidence of other crimes,
and this Court will overturn its decision only if it can be shown that the "'evidence
clearly had no bearing upon any issues involved.'" United States v. Turner,
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104 F.3d 217, 222 (8th Cir. 1997) (quoting United States v. Baker, 82 F.3d 273, 276
(8th Cir.), cert. denied, 117 S. Ct. 538 (1996)).
Green argues that his 1993 arrest for distribution of cocaine base is not close
enough in time or similar enough in kind to be admitted as other crimes evidence under
Rule 404(b). This Court applies a standard of reasonableness, as opposed to a standard
comprising an absolute number of years, in determining whether a prior offense
occurred within a relevant time frame for purposes of Rule 404(b). See United States
v. Burk, 912 F.2d 225, 228 (8th Cir. 1990). Green's prior arrest occurred only three and
one-half years prior to his arrest for the charged offense, a separation well within
permissible time boundaries for the introduction of Rule 404(b) evidence. See United
States v. McCarthy, 97 F.3d 1562, 1573 (8th Cir. 1996), cert. denied, 117 S. Ct. 1011,
1284 (1997) (17 years separating offenses); United States v. Holmes, 822 F.2d 802,
804-05 (8th Cir. 1987) (12 years); United States v. Engleman, 648 F.2d 473, 479 (8th
Cir. 1981) (13 years). Furthermore, Green's prior arrest involved the same narcotic as
that involved in the charged crime--cocaine base. See United States v. Sykes, 977 F.2d
1242, 1246 (8th Cir. 1992) (noting that evidence of prior offense involving same drug
was relevant in showing knowledge and intent for charged offense). Green was arrested
in 1993 for possession with intent to distribute cocaine base, a crime similar in kind to
the charged offense of conspiracy to possess with intent to distribute cocaine base. See
United States v. Bryson, 110 F.3d 575, 583 (8th Cir. 1997) (noting that distribution of
narcotic is similar to conspiracy to distribute same narcotic); United States v. Wint, 974
F.2d 961, 967 (8th Cir. 1992) (noting that evidence of prior arrest for possession of
cocaine base sufficiently similar to be admissible in case involving conspiracy to
distribute cocaine because "both involved distributable amounts of cocaine"), cert.
denied, 506 U.S. 1062 (1993). We conclude that the District Court did not abuse its
discretion by admitting pursuant to Rule 404(b) the police officer's testimony regarding
Green's prior arrest.
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Green likewise contends that the District Court erred in admitting into evidence
Hobson's testimony that Green had asked her on a previous occasion, and she had
agreed, to pick up a package from the UPS facility. This testimony, according to Green,
is irrelevant to the charged crime because the government did not prove that this earlier
incident involved a package containing illegal drugs. Defense counsel failed to object
to this particular aspect of Hobson's testimony at the District Court's motion in limine
hearing, see Trial Transcript Vol. I at 167 ("We have no objection to [Hobson]
testifying as to picking up the package."), or at trial. Because Green failed to object to
the admission of this testimony, we review only for plain error. See Fed. R. Crim. P.
52(b). Under the plain error standard, this Court lacks authority to consider questions
not first raised in the district court "unless (1) the district court committed an error, i.e.,
deviated from a legal rule, (2) the error is plain, i.e., clear under current law, and (3) the
error affected [the defendant's] substantial rights." United States v. Montanye, 996 F.2d
190, 192 (8th Cir. 1993) (en banc). Even if the forfeited error meets the above criteria,
we will exercise our discretion to order correction only if the error "'seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings.'" Id. (quoting United
States v. Olano, 507 U.S. 725, 732 (1993) (quoting United States v. Atkinson, 297 U.S.
157, 160 (1936)). We conclude that the admission of this testimony meets none of the
above criteria except, arguably, the first. It therefore does not satisfy the plain error
standard and cannot serve as a basis for reversing Green's conviction.
Green next argues that the government violated the Jencks Act, 18 U.S.C. § 3500
(1994), by failing to provide him with a transcript of Hobson's grand jury testimony
prior to her direct testimony at trial. The government's violation of the Jencks Act,
according to Green, requires that his conviction be overturned. On September 4, 1997,
four days before the start of Green's trial, the government mailed by Federal Express a
copy of its trial brief and Hobson's grand jury testimony to defense counsel's address of
record, unaware that defense counsel had relocated his law office. At one o'clock that
afternoon, during direct examination of Hobson, it became
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apparent that Green's attorney had not received these documents through the mail. The
government immediately provided a copy of both documents and the District Court
ordered a recess until eight o'clock the following morning to allow defense counsel time
to review the information. The government resumed direct examination of Hobson the
following morning.
The Jencks Act does not compel the government to produce a statement or report
of a government witness until after the witness has testified on direct examination, after
which the defendant may move for the production of any statements in the government's
possession made by that witness relating to the subject matter of his testimony. See
United States v. Adams, 938 F.2d 96, 98 (8th Cir. 1991), cert. denied, 502 U.S. 1075
(1992). A district court's decision regarding compliance with the Jencks Act will be
reversed only if clearly erroneous. See United States v. Redding, 16 F.3d 298, 301 (8th
Cir. 1994). Furthermore, we will not overturn a conviction "for noncompliance with the
Jencks Act where there is no indication of bad faith on the part of the government and
no indication of prejudice to the defendant." Adams, 938 F.2d at 98.
Contrary to Green's assertions, the government did not disclose the transcript of
Hobson's grand jury testimony in an untimely manner. Green was provided a copy of
this testimony before the government completed its direct examination of Hobson.
"'Although in many cases the government freely discloses Jencks Act material to the
defense in advance of trial, . . . the government may not be required to do so.'" United
States v. Wilson, 102 F.3d 968, 971-72 (8th Cir. 1996) (quoting United States v. White,
750 F.2d 726, 729 (8th Cir. 1984)). Even were we to conclude that the government had
failed to comply with the Jencks Act, Green admits that there was no bad faith on the
government's part, see Brief of Appellant at 17 (stating that "the defense does not assert
that the government withheld these transcripts intentionally"), and has failed to establish
prejudice. As noted above, when it became apparent that Green's attorney had not
received this document, the District Court made accomodations to allow defense
counsel adequate time to prepare for cross-
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examination of Hobson. In these circumstances, Green's Jencks Act argument cannot
be sustained.
Finally, Green argues that the government's failure to provide him with a copy of
its trial brief until after trial had begun amounts to an improper ex parte argument before
the District Court and a violation of his due process rights. We have held that "because
of the potential for prejudice and violation of due process, submission of an ex parte
trial brief is improper." United States v. Earley, 746 F.2d 412, 417 (8th Cir. 1984)
(involving government's submission to district court of list of government witnesses and
summary of their testimony prior to trial without furnishing copy to defendant), cert.
denied, 472 U.S. 1010 (1985). A defendant is entitled to relief, however, only if he can
make "a showing of specific prejudice." Id. The government mailed a copy of its trial
brief to defense counsel's address of record four days before trial began, having not been
informed of counsel's change of address. When it was discovered that defense counsel
had not received a copy of the brief, the government furnished a copy immediately and
the District Court recessed the trial to allow Green's attorney an opportunity to review
the information contained in the brief. We cannot conclude that Green was prejudiced
in receiving the government's trial brief after the commencement of trial.
The judgment of the District Court is affirmed.
HEANEY, Circuit Judge, concurring.
I concur in the result of this case and recognize that we are bound by this court’s
prior decisions regarding the sentencing disparity between crack and powder cocaine.
Even so, I reiterate my belief that the sentencing disparity is unconstitutional and urge
our court to reconsider this issue en banc. See United States v. Herron, 97 F.3d 234,
240 n.9 (8th Cir. 1996) (citing United States v. Willis, 967 F.2d 1220, 1226 (8th Cir.
1992) (J. Heaney concurring)).
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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