JAMESON, District Judge:
A jury found Frank C. McLister guilty of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and acquitted him of conspiring to distribute cocaine in violation of 21 U.S.C. § 846.
McLister and three codefendants, John Irwin, Sharon Baker, and Thane Rucker were arrested after participating in a transaction in which a pound of cocaine was sold to an undercover government agent.
The events leading to the arrests began in Denver, Colorado, where Irwin was arrested by the Denver Police Department in December, 1977, for possession of cocaine. In exchange for a dismissal of the criminal charge against him, Irwin agreed to become an informant for the Police Department. In February, 1978, Irwin met Darrell Wisdom, a Drug Enforcement Administration (DEA) agent, who was posing as a large scale drug dealer. Wisdom was aware of Irwin's status, but Irwin did not know that Wisdom was a DEA agent. In subsequent negotiations, Wisdom began to suspect that Irwin was "double dealing", i. e., acting as an informant and continuing to deal in the illegal distribution of drugs.
On March 6 Irwin told Wisdom that he had set up a transaction in San Francisco for the purchase of a pound or two of cocaine. Irwin and his girl friend, Sharon Baker, flew to San Francisco later that day, and Wisdom followed on March 7. After making final arrangements for the purchase of the cocaine, Wisdom met Irwin and Baker in the lobby of the Hilton Hotel. Shortly thereafter McLister and Rucker arrived in McLister's camper. After Wisdom entered the camper, Irwin and McLister produced the cocaine and gave it to Wisdom. Shortly thereafter, Wisdom and other agents arrested the four defendants.
At the trial Irwin testified that he had participated in the cocaine sale solely in furtherance of his plea agreement with the Denver Police and that he had intended to turn the participants over to the authorities. He claimed that McLister supplied the cocaine. On the other hand, McLister testified that prior to the transaction Irwin told him that he and Baker were acting as undercover agents for the Denver Police and that he reluctantly agreed to assist them in arranging for the arrest of a narcotics trafficker (Wisdom). McLister testified further that the cocaine he handed to Wisdom in the trailer belonged to either Irwin or Baker, who had placed it in the camper the night before with his permission.
Contentions on Appeal
Appellant contends that the district court erred in (1) restricting appellant's cross-examination of his codefendant Irwin and Denver Police Detective Meyer; (2) permitting the prosecutor to cross-examine appellant concerning a misdemeanor conviction for possession of marijuana; and (3) instructing the jury that it would consider evidence that appellant had used cocaine; and (4) that the acquittal of appellant on the conspiracy charge was inconsistent with its verdict of guilty on the substantive charge.
We find no merit in appellant's last contention that his acquittal on the conspiracy count precluded his conviction on the substantive count of distribution of cocaine.
We conclude, however, that the combination of other alleged errors requires a reversal, even though each by itself might constitute harmless error.
Cross-examination of Irwin and Meyer
The alleged errors in the cross-examination of codefendant Irwin and Gregory Meyer, a Denver Police Department detective, resulted in large part from the conflicting contentions of the defendants, i. e., Irwin and Baker claiming that McLister owned the cocaine, and McLister claiming that it was owned by Irwin or Baker, and that he was simply assisting them in arranging for the sale to a narcotics trafficker, assuming that Irwin and Baker were under-cover agents.
(a) Cross-examination of Meyer
Meyer, called as a witness by codefendant Baker, testified during direct examination that in February, 1978, he did not believe Irwin was double dealing in his negotiations with agent Wisdom, despite DEA conclusions to the contrary. On cross-examination Meyer was asked by counsel for McLister if he then believed Irwin had been double dealing. The court sustained the Government's objection that Meyer's opinion was irrelevant. In an offer of proof McLister claimed that Meyer would have testified that at the time of trial he believed Irwin had been double dealing, contrary to his previous opinion. Appellant argues that this testimony should have been permitted because it related to a subject raised on direct examination and supports his defense.
It is probably true, as the Government argues, that Meyer's answer might have "caused prejudicial harm to Irwin". We cannot agree, however, that it could not have benefited McLister. Meyer's testimony on direct examination might well have left the impression that at the time of trial, Meyer continued to believe that Irwin was not double dealing and his participation in the transaction was solely to assist the Denver police. This would affect McLister's defense, which in part required the jury to believe that Irwin was acting on his own and was the owner of the cocaine. To prevent a possible half truth, detrimental to appellant, it was proper and relevant for him to cross-examine detective Meyer on his current opinion on whether Irwin had been double dealing. See United States v. Brady, 561 F.2d 1319, 1320 (9 Cir. 1977). The question was directed specifically to testimony developed by Irwin and the trial court on direct examination. See United States v. Alvarez-Lopez, 559 F.2d 1155, 1158 (9 Cir. 1977).
(b) Cross-examination of Irwin
On April 4, 1978, Wisdom, without Irwin's knowledge, taped a telephone conversation in which Irwin admitted that he had been double dealing in San Francisco. Following a pretrial hearing the district court granted Irwin's motion to suppress this conversation, under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
At trial the court refused to allow appellant to question Irwin concerning the April 4 conversation on the ground that the postarrest conversation was irrelevant.
Irwin testified that he acted solely to further his plea agreement with the Denver police, and that McLister had furnished the cocaine. It was necessary to appellant's defense that the jury find that Irwin had been double dealing and also that appellant had assumed that Irwin was acting as an undercover agent. Appellant had a right to impeach Irwin's credibility. The evidence was relevant and might have been helpful to appellant's defense. The fact that Irwin was not called as a witness by the Government is immaterial. See United States v. Dixon, 547 F.2d 1079, 1084 (9 Cir. 1976).
The Government argues that any error in refusing to permit appellant to examine Irwin was, in any event, harmless error. It is true that in finding Irwin guilty of both conspiracy and distribution, the jury must have believed that he was double dealing. It is difficult, however, to determine what effect, if any, this testimony would have had upon appellant's defense. If this were the only error, we might well conclude that it was harmless in view of other evidence of McLister's guilt. As noted supra, however, we conclude that combined with other errors, reversal is required.
Prior Marijuana Conviction
The district court, over objection, permitted the Government to cross-examine McLister with regard to a misdemeanor conviction nine years earlier involving possession of one cigarette. As the Government notes in its brief, the evidence was offered as a "misdemeanor conviction involving moral turpitude" under Rule 609(a), Federal Rules of Evidence. The court, however, did not accept the evidence under that theory and later instructed the jury that the conviction could be considered "only in the light of the characterization of ... [appellant's] life style as one that might normally have been expected to exclude the use of such substances".
(a) Admissibility under Rule 609(a)
Rule 609(a), Federal Rules of Evidence provides:
The marijuana conviction was not punishable by "imprisonment in excess of one year" and did not involve "dishonesty or false statement". It therefore could not be used to impeach credibility. See, e. g., United States v. Ortega, 561 F.2d 803 (9 Cir. 1977); United States v. Thompson, 559 F.2d 552 (9 Cir. 1977).
(b) Admissibility under Rule 404
Rule 404 relating to "character evidence" provides in 404(a) that:
A defendant may offer 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". Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct. 213, 219, 93 L.Ed. 168 (1948). Such testimony is limited to opinions
Appellant's counsel in his opening statement told the jury that McLister was engaged in the antique business, had purchased property in Colorado and intended to go into the hydroponics business, and came from "what may be called a relatively privileged background", with no need to get into any illegal business. McLister testified regarding his property interests and his intention of going into the hydroponics business. The Government argues that it had the right under Rule 404(b)
We cannot find that either counsel's opening statement or McLister's own testimony placed his general character in issue under Rule 404(a) or under the rules set forth in Michelson v. United States, supra. See United States v. Tomaiolo, 249 F.2d 683, 689 (2 Cir. 1957). Nor did appellant request any jury instruction indicating that he intended to place his character in issue. The trial judge specifically instructed the jury that the marijuana conviction was to be used "only in the light of the characterization of ... [appellant's] life style ...". There is no suggestion that the court intended that the evidence could be considered for any of the purposes, including knowledge, set forth in Rule 404(b).
Assuming, arguendo, that the appellant's character was placed in issue or that Rule 404(b) is applicable, any relevance the marijuana conviction might have is out-weighed by its prejudicial effect. Rule 403
The Government argues that any error in admitting the evidence was harmless beyond a reasonable doubt — that evidence of a minor marijuana conviction nine years ago could not be deemed unfairly prejudicial. If this were the only error, we might agree, but again we must consider the potential effect of the series of errors in the Government's proof.
Instruction on Cocaine Use
Irwin testified that the night before the San Francisco arrests, he, Baker, McLister, Rucker and four others were at appellant's home. Someone produced cocaine for "socializing", which he ingested to satisfy himself that it was cocaine and not a substitute. He denied knowing who brought the cocaine out. Appellant denied having used it.
Appellant contends that the jury could not permissibly infer from the evidence in the record that he had used cocaine on the night prior to his arrest. He argues that the trial judge's instruction that the jury might draw this conclusion inserted a false issue in the case, and was, therefore error.
It is of course well established that an instruction should not be given if it lacks evidentiary support or is based upon mere suspicion or speculation. See, e. g., United States v. Thomas, 453 F.2d 141, 143 (9 Cir. 1971), cert. denied 405 U.S. 1069, 92 S.Ct. 1516, 31 L.Ed.2d 801 (1978); United States v. Waskow, 519 F.2d 1345, 1347 (8 Cir. 1975). Here Irwin testified that someone produced a small amount of cocaine for "socializing" at McLister's home and that he had a conversation with McLister about the cocaine before it was passed around. There is no evidence, however, that McLister used the cocaine.
The Government argues that even though the record "does not specifically reflect that McLister used any of this cocaine", it is reasonable to infer that he used and furnished it; that the erroneous instruction was corrected; and that in any event, it was harmless error in the context of this case.
While a close question is presented, we conclude that the instruction was improper in view of the absence of any evidence that McLister used the cocaine. If this were the only error, we would hold it harmless. As noted supra, however, we are forced to the conclusion that the combined errors were prejudicial and require a reversal. See United States v. Ortega, supra.
Reversed and remanded for new trial.