GOLDBERG, Circuit Judge:
On March 16, 1972, the federal grand jury for the Southern District of Florida returned an indictment charging, inter alia: that appellant, John T. Goodwin, imported approximately 1000 pounds of marijuana, a Schedule I controlled substance, into the United States in violation of 21 U.S.C. § 952(a); and that Goodwin, along with Allen Charles Ritsema, Wilbur Roger Hansen, and "divers other persons whose names are to
On this appeal Goodwin seeks to have his conviction reversed for any of four alleged errors on the part of the district court. First, appellant contends that the court erred in failing to grant his motion for acquittal after the conspiracy charges against the other alleged co-conspirators had been dismissed. Second, Goodwin argues that the court should have granted various motions for directed verdict of acquittal because the evidence presented at trial was insufficient to support a conviction. Third, Goodwin claims that several comments by the prosecutor during closing argument were prejudicial, and that the court erred in denying motions for a mistrial on that basis. Finally, appellant maintains that the trial court erred in permitting the government to introduce testimony regarding his arrest while committing a similar offense nine months after the crime charged herein. We find the first two assignments of error unpersuasive. As to the third contention, we believe that at least one of the statements in the government's closing argument exceeded the limits of permissible prosecutorial zeal, and that the district court erred by failing, at a minimum, to provide a corrective cautionary instruction to the jury. Finally, after careful study of the record in this case and the decisions of this Circuit, we conclude that the district court committed prejudicial error by admitting evidence of subsequent similar conduct on the part of appellant. We therefore reverse for a new trial.
Appellant argues that because conspiracy charges against his alleged co-conspirators, Ritsema and Hansen, were dropped he should have been acquitted. This Court has followed the general rule that the conviction of only one defendant in a conspiracy prosecution will not be upheld if all other alleged co-conspirators are acquitted. Farnsworth v. Zerbst, 5 Cir. 1938, 98 F.2d 541; United States v. Peterson, 5 Cir. 1974, 488 F.2d 645, 651. The reason for the rule is obvious: at least two persons must join in an unlawful enterprise in order for a conspiracy to exist. The dismissal of conspiracy charges against Ritsema and Hansen, however, did not leave a situation in which fewer than two persons remained who could have joined in the crime. The conspiracy count of the indictment charged, in addition to Goodwin, Ritsema and Hansen, "divers other persons whose names are to the Grand Jury unknown." Testimony was presented at trial which specified at least five persons other than those named in the indictment who apparently were involved in the alleged conspiracy. A person can be convicted of conspiring with persons who are not identified by name in an indictment so long as the indictment asserts that such other persons exist and the evidence supports such an assertion. See Rogers v. United States, 1950, 340 U.S. 367, 375, 71 S.Ct. 438, 95 L.Ed. 344, 350. This is no less true simply because the co-conspirators named as codefendants in the indictment were not prosecuted for conspiracy. United States v. Cabrera,
378 F.2d at 567. We reject appellant's first claim of error.
The government's case rested on testimony indicating a conspiracy among a number of people, including appellant, to import marijuana from Jamaica on the MARIA, a boat captained by a man named "John Goodwin." The government sought to link the seized marijuana with the MARIA, and then to identify appellant as the captain of the MARIA. Appellant argues that the government did not show beyond a reasonable doubt that he was the same "John Goodwin" who was captain of the MARIA, and thus failed to establish a nexus between him and the marijuana. The crime for which appellant was being tried occurred in February 1972; appellant was not arrested until November 30, 1972, while apparently involved in another incident of importing marijuana. Goodwin argues that the government arrested him for the latter incident, and when they discovered his name was the same as that of the man charged in the present indictment, placed him on trial for this offense.
Two alleged co-conspirators, Allen Charles Ritsema and Richard Delise (who was not charged by name in the indictment), testified as to the identity of the captain of the MARIA. Asked if he saw "John Goodwin" in the courtroom, Ritsema pointed to appellant and said, "I'm reasonably sure that is him there." After the court denied a motion to strike that testimony, Ritsema added: "It has been over a year since I have seen him. He had much longer hair and a mustache then." Delise was unable to identify appellant as the John Goodwin who captained the MARIA; in fact, he described the boat captain as being "five foot, 170 or 160 pounds" with long hair and a mustache—a description substantially different from that of appellant in every particular. Also on the issue of identity, Customs Agent William Buchanan testified that he had observed appellant at the address where the MARIA was docked on the evening of February 24, 1972, the date of the crime charged herein. Except for the critical issue of identity, all elements of the government's case were soundly established.
The standard for review of the denial of a motion for directed judgment of acquittal, firmly established by this Court, is
United States v. Stephenson, 5 Cir. 1973, 474 F.2d 1353, 1355. In the present case the government asserts that the identification testimony of Ritsema and Agent Buchanan was sufficient to present the issue to the jury, and that Delise was an unresponsive witness, who drew admonishment from the court and whose testimony could not have been credible to the jury. Based upon our own review of the evidence, we can say only that "a reasonable person may have [had] a reasonable doubt as to the defendant's guilt"; we cannot say that a reasonable person must have had such doubt. The district court properly submitted the evidence to the jury.
Goodwin alleges that the government, in its closing argument, made at least three misstatements of fact, and at least one other highly prejudicial comment to the jury, and claims that the trial court erred in denying motions for mistrial on those grounds. We shall review the allegedly offensive statements seriatim.
First, appellant observes that the Assistant United States Attorney represented Agent Buchanan as testifying that he saw Goodwin "at the dock in the rear of the residence in Pompano Beach," when Buchanan actually had testified only that appellant had arrived "in front of this residence." Appellant made no objection at trial to the government's misstatement. We are satisfied that this inadvertent mistake on the part of the prosecutor could not have so affected appellant's substantial rights as to constitute plain error.
Second, Goodwin notes that the government incorrectly stated that "Mr. Ritsema positively identified the captain as John Goodwin, the defendant here in the courtroom." In fact, Ritsema had testified that he was only "reasonably sure" that appellant was the John Goodwin who had captained the boat. The third misstatement of fact cited by appellant was the government's incorrect representation of witness Delise's description of "John Goodwin" as being "five foot, seven inches tall." Actually Delise had testified that the John Goodwin he had known was only five feet tall, much less similar to appellant in height than his description as represented by the Assistant United States Attorney. Statements such as these by the government in closing argument are reprehensible, whether intentional or inadvertent
Appellant further contends that the trial court erred in denying his motion for a mistrial when the government, in rebuttal closing argument, told the jury that appellant was a fugitive. The remark was made in response to closing argument for appellant in which defense counsel challenged the signature of "John Goodwin" on certain receipts from Nassau Yacht Haven that had been introduced as evidence by the government:
The government objected to this line of argument, but the court overruled the objection. The Assistant United States Attorney responded on rebuttal:
Counsel for Goodwin objected to the reference to appellant as a "fugitive" on the grounds that no such showing had been made and that "the word `fugitive' essentially to lay people has a bad meaning." The objection was overruled.
We agree that the government's rebuttal argument was inflammatory and excessive. Appellant's fugitive status was neither relevant nor material to the issues being determined by the jury. More important, characterization of appellant as a fugitive was unsupported by any evidence in the record. The Third Circuit considered a similar characterization and observed that "the prosecutor's representation in his closing argument, unsupported by any evidence in the record, that appellant had been a `fugitive for six weeks in California once he knew he was wanted for bank robbery' was clearly error and was prejudicial to the defense." United States v. Small, 3 Cir. 1971, 443 F.2d 497, 500. We find the Third Circuit's conclusion compelling here.
The government's rebuttal, of course, was not delivered in a vacuum or in an entirely gratuitous manner. It was made in response to a not totally unprovocative argument by appellant, and it must be evaluated in that light.
United States v. Bursten, 5 Cir. 1971, 453 F.2d 605, 610-611, cert. denied, 1972, 409 U.S. 843, 93 S.Ct. 44, 34 L. Ed.2d 83. We are convinced that in this case the government's assertion was beyond the boundaries of permissibly "hard blows," and that zeal was permitted to outrun fairness.
In Hall v. United States, 5 Cir. 1969, 419 F.2d 582, we held that the prosecutor's description of the accused as a "hoodlum" was improper, and that even in the absence of objection from defense counsel, the trial court should have instructed the jury to ignore the remark. The rationale for that part of our decision in Hall would apply with at least as much force to the use of the term "fugitive" in the present case:
419 F.2d at 587.
Goodwin's final contention is that the trial court erred in permitting government agents to testify regarding appellant's arrest while apparently committing an offense similar to the one charged in the present case. As its last witnesses in the trial the government called Customs Agents George Thurman and Michael Brom. Both agents testified to their participation in the arrest of appellant on November 30, 1972, and over strenuous objection by defense counsel, described the seizure of approximately 3000 pounds of marijuana on that occasion. Agent Brom further testified that he had performed a field test on the seized substance and reported, again over defense objection, that the test yielded a positive reaction indicating marijuana. At the conclusion of Agent Brom's testimony the court instructed the jury that it was to consider the testimony of the arresting agents "solely for the purpose of going to willfulness and intent."
The federal courts have established as a "universal rule" the wise principle that "evidence of the commission of a wholly separate and independent crime is not admissible as a part of the case against the defendant." 2 C. Wright, Federal Practice and Procedure, Criminal § 410, at 123. The reason for the rule is, of course, that an accused's guilt or innocence as to a particular crime should be determined solely on the basis of evidence relevant to that crime; a jury should not be permitted to convict an accused because it believes him to be a person of bad character or because of a notion that, since he committed some other similar crime, he must also have committed the crime for which he is on trial. The wisdom and justice of the rule are unchallenged. Nevertheless,
Both the government, at trial and on appeal, and the district court placed primary reliance on "intent" as a basis for admitting evidence of the subsequent offense. The Assistant United States Attorney urged only the intent exception at trial, and the court, in its preliminary charge to the jury following the testimony of Agents Thurman and Brom, purported to limit the jury's consideration of the evidence to that issue.
Undeniably, intent is an element of the crimes of importing marijuana into the United States and conspiring to import marijuana into the United States.
Weiss v. United States, 5 Cir. 1941, 122 F.2d 675, 682, cert. denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550. These facts do not terminate our inquiry, however, because we decline the government's invitation to sanction the admissibility of testimony solely on the mechanical basis that, in name, it fits one of the certified categories.
We reject the government's theory, not only out of respect for the law of this Circuit, but also out of a recognition of the danger, enunciated by Dean McCormick, that,
C. McCormick, Evidence § 190, at 453 (2d ed. 1954). Rather than undertake an exercise in "pigeonholing," as Dean McCormick describes it, this Court has adopted a more difficult, but more enlightened, balancing approach. Assuming, of course, that the evidence of other crimes is clear and convincing, we must balance the actual need for that evidence in view of the contested issues and the other evidence available to the prosecution, and the strength of the evidence in proving the issue, against the danger that the jury will be inflamed by the evidence to decide that because the accused was the perpetrator of the other crimes, he probably committed the crime for which he is on trial as well.
We emphasize that the test we set forth today is by no means a novel one in this Circuit. In United States v. Boyd, 5 Cir. 1971, 446 F.2d 1267, 1270-1271, we stated:
More specifically, with regard to the question of the prosecution's actual need for the evidence, this Court has held that
United States v. Broadway, 5 Cir. 1973, 477 F.2d 991, 994. Implicit in the Broadway language is the corollary principle that the other-crimes evidence may be received only if it has legitimate probative value in establishing the element of the offense for which it is offered. In United States v. Lawrance, 5 Cir. 1973, 480 F.2d 688, we gave our regards
The decisions of this Circuit cited in the government's brief do not lead us to a contrary result; rather they are entirely consistent with the law as stated in Hamilton, Boyd, Broadway, and Lawrance. The government relies heavily on Weiss v. United States, supra, the case in which the principle that evidence of similar offenses may be admissible to prove intent is believed to have had its genesis in the Fifth Circuit. This Court, however, went no further in Weiss than to say that such evidence is admissible "where intent is in issue as an element of the offense charged," 122 F.2d at 682; the limited nature of that language is amply illustrated by the posture of the issues in the case:
122 F.2d at 681-682. In Roe v. United States, 5 Cir. 1963, 316 F.2d 617, another case relied upon by the government, the question of whether the acts constituting the crime were performed "willfully," i. e., intentionally (see footnote 7, supra), was not only contested, but was probably the most vigorously disputed issue in the trial. Finally, in United States v. Johnson, 5 Cir. 1972, 453 F.2d 1195, this Court specifically rejected the notion that evidence was admissible simply because it could be made to fit in the "specific intent or knowledge" category. Rather, relying on our decision in United States v. Stallings, 5 Cir. 1971, 437 F.2d 1057, the Court balanced "the prejudicial effect of this evidence" against "any proper benefit the prosecution could derive therefrom," and determined that the conviction must be reversed. 453 F.2d at 1199 (emphasis in original).
We turn now to an analysis of the issues in the trial of John Goodwin
The facts of this case tip the scales heavily against the government. Although intent was an element of the crimes charged, that issue was never seriously disputed at trial. Appellant's entire defense was based on the argument that he was not the John Goodwin whom government witnesses had implicated in the conspiracy. Moreover, undisputed evidence, introduced prior to the testimony of Agents Thurman and Brom regarding the November 30th arrest, indicated that one John Goodwin had participated in discussions about the importation of marijuana and had helped load the marijuana onto the MARIA. If appellant was the John Goodwin described by government witnesses, there could have been no reasonable doubt as to intent, willfulness, or knowledge. This is similar to the situation confronted by this Court in Fallen v. United States, 5 Cir. 1955, 220 F.2d 946, cert. denied, 350 U.S. 924, 76 S.Ct. 213, 100 L.Ed. 808, an automobile theft case, in which we stated:
220 F.2d at 948.
Balanced against the total absence of need for the evidence of appellant Goodwin's subsequent conduct to show intent, this case poses a dramatic example of the kind of prejudice the rule against admitting other-crime evidence was designed to prevent. On the basis of the uncertain in-court identifications by witnesses Ritsema and Delise, the jurors may well have entertained a reasonable doubt as to whether appellant was the John Goodwin involved in the crimes charged in the March 16, 1972 indictment. The testimony linking appellant John Goodwin to 3000 pounds of marijuana on November 30, 1972, might well have removed—by impermissible inference—any such doubt. We conclude that the district court erred in admitting this evidence for the purpose of proving intent.
The second rationale arguably used by the district court for admitting the other-crime evidence was to prove a design or plan. The district court in its preliminary charge to the jury twice said that the evidence was admitted solely for consideration as to the issue of intent; on one occasion during the same instruction, however, the court told the jurors that they might also consider the evidence "to show that [appellant] had a design or scheme to commit crimes of the sort with which he is charged." See footnote 4, supra. Even if this charge on "design or scheme" were correct, we would question its efficacy in view of the contradictory nature of the preliminary charge as a whole. The charge, however, was entirely incorrect. As an exception to the general rule against admitting other-crimes evidence courts have permitted the introduction of such evidence to show a design or scheme on the part of the accused to commit the specific crime with which he is charged, but never to show a design or scheme to
When the prosecution seeks to prove design or plan by the doing of similar acts, more is required than the mere similarity that may suffice for showing intent. As Professor Wigmore has explained:
The "design or scheme" exception is totally inappropriate in the case sub judice. Though evidence of importation of marijuana in November 1972 might be of value in showing that the commission of such an act in February 1972 was not unintentional—if intent were in dispute—that evidence contributes nothing toward proving any plan or scheme to import marijuana in February 1972.
We turn finally to the exception to the exclusionary rule by which courts admit other-crimes evidence to prove identity. We note first that the trial court never instructed the jury that it could consider evidence of the subsequent offense to establish identity; we further observe that the government does not contend on this appeal that the evidence could properly have been admitted for this purpose. We discuss the issue here only because the transcript reveals a misunderstanding of the exception by the district court prior to the time the court issued its preliminary charge to the jury; such a misunderstanding should not serve as a justification for admitting evidence of appellant's November 30th conduct once again if the government chooses to retry Goodwin for the crimes charged in the March 16, 1972 indictment.
Prior to the testimony of Agents Thurman and Brom, the Assistant United States Attorney made a proffer of the evidence she expected to adduce from those witnesses. The court overruled defense counsel's objections to that evidence. The following exchange then took place, outside the presence of the jury, between defense counsel and the court:
The facts of this case, however, do not pose the proper situation for the identity exception. If the exception were used as the district court implied it could be, the effect would be to drain all remaining life from the general rule against admission of other-crimes evidence.
The "identity" exception has a much more limited scope; it is used either in conjunction with some other basis for admissibility
451 F.2d at 263 n. 6 (quoting from Judge Edenfield's statement to the jury at Jackson's trial). In the case sub judice appellant's conduct on November 30, 1972, as described by Agents Thurman and Brom—standing in the water about 500 yards off the coast of Key Largo and about 40 yards from an unnamed boat containing 3000 pounds of marijuana—and the relevant conduct of February 1972, as charged at trial—bringing either 1000 pounds (as stated in the indictment) or 3000 pounds (as argued by the government) of marijuana into Pompano Beach aboard the ship MARIA—do not bear such peculiar, unique, or bizarre similarities as to mark them as the handiwork of the same individual.
That courts must guard against improper incursions on the general rule against admitting other-crimes evidence is so critically important, of course, not because such evidence has no probative value, but for the very reason that such evidence may have very substantial strength—not cognizable in law—in establishing a defendant's identity in the minds of the jurors.
Reversed and remanded.
1 J. Wigmore, Evidence § 217, at 718-19 (3d ed. 1940). Professor Wigmore described res gestae, including "other criminal acts which are an inseparable part of the whole deed," as still another type of admissible evidence. Id. § 217, at 719. The exceptions have become so numerous that, as Professor Wright has observed, "the attitude of prosecuting attorneys may well be like that of the man who was asked what he thought of Prohibition and replied: `It sure beats not drinking at all.'" 2 C. Wright, supra, at 125 n. 75.
480 F.2d at 691-692 n. 6. This Court has recently noted the limited nature of another of the Broadway principles, United States v. Bryant, 5 Cir. 1974, 490 F.2d 1372; we have not retreated a single step, however, from the important rule quoted in the text and reemphasized in Lawrance.
State v. Lapage, 1876, 57 N.H. 245, 275, 299, quoted in 1 J. Wigmore, Evidence § 193, at 643-44 (3d ed. 1940).