United States v. Albert Keith Webster

its under abuse discretion Fed.R.Civ.P. 15(a) denying the motion leave

amend.

II.

As to the remainder of the issues

appeal, affirm basis on the rea

soning the court below.5

AFFIRMED. America,

UNITED STATES

Plaintiff-Appellee, WEBSTER,

Albert Keith

Defendant-Appellant.

No. 79-5013. Appeals,

United States Court of

Fifth Circuit.

July 2, 1981. addition, denied, the district court held that the cert. proposed (1974); Wainwright amendment would “effect a radical v. Kraftco controversy Corp., (N.D.Ga.1973); Wright modification of the also 58 F.R.D. [and] C.6 Miller, prejudice Morgan.” Procedure, threatens serious Vol. & A. Federal Practice and Specifically, IV at 930. the new defenses § require discovery prepa- would additional quote portions unpub- 5. We need not thereby delay disposition ration and lished below relevant to these issues League case on the merits. See Izaak Walton precedential Clair, since have no (8th Cir.), value. v. St. America

347

ITZ, HATCHETT, ANDERSON, RAN DALL, TATE, JOHNSON, SAM D. CLARK, A. Judges.* THOMAS Circuit HILL, Judge: Circuit When the defendant in a criminal case adequately raises the affirmative defense of entrapment, has the bur proving beyond den of a reasonable doubt that the defendant was to com mit the crime 441, (5th 524 F.2d 444 1975). Cir. This case presents us with an opportunity to reconsider long-standing rule of this permitting Circuit introduction of out-of- court statements about the rep utation and criminal conduct in cases where the entrapment issue of has been Despite raised. that fact no other Cir recognize cuit has seen fit to excep such an against hearsay,1 tion to the rule this rule has survived in our Court for more than a not, however, gone decade. It has unques Daniels, In United v. States tioned. 572 535, (5th 1978), pointed F.2d 539 Cir. out permitting the use of double level hearsay based on information originally supplied by presented an unnamed source abuse, the possibility grave unjustifiably penalizing raising the defendant for defense of creating a seri Poole, Miami, (Court-ap- Fla. Charles I. right ous obstacle to the accused’s to con defendant-appellant. for pointed), against front the witnesses him. The Hertz, Smargon, J. Linda Collins Samuel was, however, concluded that it barred Miami, Fla., Attys., plaintiff- Asst. previous precedent. Fifth Circuit In the appellee. present panel, case the in its now-vacated opinion, recognized logic of the view of properly recognized other circuits but United precedents, it was bound Webster, GODBOLD, States v. Judge, (5th Chief Before 606 F.2d 581 Cir. BROWN, COLEMAN, AINSWORTH, 1979). Today we hold that evi CLARK, RONEY, GEE, only TJO- dence is admissible in an CHARLES FAY, RUBIN, FLAT, HILL, VANCE, relating case under the usual rules to hear KRAVITCH, JOHNSON, Jr., M. so say, hearsay may FRANK not be introduced GARZA, HENDERSON, REAVLEY, predisposition. Only spe POL- as evidence of * WILLIAMS, J., Ambrose, participate (1976); did not 101 v. 483 JERRE S. States F.2d 1973); this decision. Cir. United States v. John- ston, 1970); 426 F.2d Cir. circuits that have considered the 1. Of the five Catanzaro, (3d States v. issue, hearsay is not admissi- all have held that 1969); Whiting v. United 296 F.2d prove predisposition. See United States ble to (1st 1961). McClain, (9th Cir.), cert. v. denied, 429 U.S. L.Ed.2d Entrapment II. may the cial circumstances agents have been prove what its told recognized by First as evidence of Sorrells United proper motive of the reasonableness or (1932), 77 L.Ed. 413 then to rebut con government and “virtually unique defense of To the trary assertions the defendant. jurisprudence the criminal of the United contrary, cases are to the extent our States,” Fletcher, Rethinking G. Criminal they are overruled. Law, 7.3.B, (1978); Mikell, at 541 See The § I. Facts Courts, 245, Federal 90 U.Pa.L.Rev. 246 complex. Appellant The facts are not (1942). justification for the defense is became involved with unwittingly Webster Congress “that could not have intended a informant. a woman who was punishment criminal for a defendant who help, With her Webster sold cocaine to an pro has committed all the elements of a agent. undercover DEA Webster was offense, scribed was but induced to commit charged distributing with two counts co- them the Government.”2 United States possessing caine and two counts of cocaine Russell, 423, 435, 1637, v. 411 93 U.S. S.Ct. the intent to distribute same. At 1644, (1973). 36 L.Ed.2d 366 major Three trial, entrapment. He his sole defense cases, decided over span a attempted prove that he was introduced years, entrapment of 41 establish that oc agent by to the undercover the female in- design originates curs “when the criminal formant and that it was because of her Government, with the officials of the importunings illegal that he did the acts. they implant in the mind of an innocent rebuttal, prosecution argued In person disposition alleged to commit the dupe Webster was not an innocent who was offense and induce its commission in order breaking trapped the law into may prosecute.” Sorrells v. U.S. government. support argument, of its 212-213; accord, at 287 U.S. 53 S.Ct. at prosecution put on the stand a DEA Russell, 428-29, States v. 411 atU.S. agent who testified that a few months be- 1641; 93 at States, S.Ct. Sherman v. United fore the arrest he had been told a relia- 369, 372, 819, 820, 356 U.S. purchased ble informant that he had 78 S.Ct. 2 co- (1958). caine from Webster on several occasions. L.Ed.2d 848 objections Defense counsel’s to this testimo- Notwithstanding the argu forceful

ny ground on that it was were ments to the contrary, it is clear that when overruled. Webster was convicted on all entrapment point four is at issue the focal appeal, counts. On the convictions of the Webster, inquiry were affirmed. is on predisposition United States v. of the def supra. Russell, endant.3 See United States v. 411 States, Russell, 423, 440, But 2. see Sherman v. United 356 U.S. 411 U.S. 1646- 369, 380, 819, 824, (1958) (1973) (Stewart, J., 78 2 S.Ct. L.Ed.2d 848 36 L.Ed.2d 366 dis- J., (Frankfurter, result): concurring senting). subjective approach in 435, 458, Sorrells focuses on States, predisposition Therefore, v. United 287 U.S. of the defendant. 210, 218, (Roberts, J.). regardless 77 L.Ed. 413 of the level of involve- crime, ment in the the defense is not available 3. Since the defense of was first unless the defendant was not States, recognized in Sorrells v. United 287 commit the crime Whether this is an (1932); U.S. 77 S.Ct. L.Ed. 413 see reading majority opinions accurate supra, split note 1 the Court has been unimportant, Sorrells or Sherman for the inquiry whether the focus of the should be on predispo- Court’s in Russell holds that or on the conduct of key: sition is the government agent. opinions This Court’s in Sorrells v. United States, supra States, A of the court in both Sorrells and and Sherman v. United supra, principal Sherman v. United held that the element in the (1958), appeared S.Ct. defense of was the defendant’s subscribe to what Justice Stewart has called to commit the crime.... “subjective” approach, We decline to overrule these cases. Thus, truth, a the substance of the statement is 93 S.Ct. at U.S. entrap who to assert an defendant wishes hearsay. the statement constitutes See An- initially come forward ment defense must 211, 219, derson v. “ ‘that the Government’s con with evidence created a substantial risk that the of duct hand, alleged On the other where fact by person fense would be committed other may regardless so of whether the state- be ” ready than one to commit it.’ United false, ment is true or the statement is not 441, 444(5th v. States hearsay. See id. 1975) (quoting Mosley, United States The out-of-court statements that we have 1974)). Once the held admissible in cases fall burden, defendant has carried categories: into three statements made must, prevail, prove if it is to by an informant to a law enforcement offi beyond a reasonable doubt that the defend reputation cer about the defendant’s for predisposed ant was to commit the crime criminal; (2) being a statements made charged. United 524 States an informant to a law enforcement officer at 444.

about in specific instances which the de Hearsay Disposition III. to Prove activities; engaged fendant in criminal and defendant, statements the made today, permitted this Circuit has Until sources, by various that have been recorded all manner the to introduce of police reports. Typically, in the law en hearsay to the rebut forcement officer testifies either to conver entrapped. Many claim that he was having sations with the informant or to permitted introduction cases have on the hearsay acceptable police report. was as read the When to theory that offered predisposition. prove predisposition, any of the defendant’s If such statements justified,4 longer this was ever it is no ac hearsay. Predisposition are out-and-out is ceptable. mind, a state of see United States v. Dono ho, 1978), 719-20 and begin principles with basic of We state of a man’s mind is as much a “[t]he evidence law. The law of evidence con digestion.” fact as the state his Wig- 2 primarily ways cerns itself with the more, (3d 1940) Evidence at 774 ed. § parties may prove which the and Fitzmaurice, (quoting Edgington v. L.R. 29 Generally, the existence of facts. the law (1882)). Ch.D. out-of-court state upon attempts prove to frowns facts prior ments about criminal activities and made outside the courtroom. statements reputation criminality prove for the fact of statement Whether an out-of-court is hear predisposition only they substantively are depends whether it is offered for its say McClain, true. See United States v. merely truth or for fact that it was (9th. alleged Cir.), fact is so if F.2d made. Where cert. denied 429 1648; accord, (Frankfurter, J., 411 U.S. at 78 S.Ct. at 825-826 concur- Sorrells, Hampton ring result); 458-59, v. United 425 U.S 287 U.S. at (1976) (Rehn- (Roberts, J.). S.Ct. S.Ct. at 218-219 quist, J.). Washington v. United 275 F.2d 687 minority expressed A of the Justices have 1969) began development which preference “objective” approach, which circuit, the line of cases did not concern government’s focuses on the conduct. Their hearsay prove predisposition. It Stewart, involved position up was summed Justice jury the correctness of a instruction that had dissenting in Russell: objected Washington not been to. From (T]he question regardless whether — reputation prove predisposi- have slid into predisposition particu- to crime of the tion, reputation prove governmental good governmental lar defendant involved—the faith, reasonableness, hearsay motive and agents way likely have in such a as is acted specific prove predisposi- evidence of acts to instigate or create a criminal offense. prove governmental good tion and to J., mo- (Stewart, 411 U.S. at at 1647 S.Ct. tive and reasonableness. accord, Sherman, dissenting); 356 U.S. at 382- 835, 97 Our creation of a rule that allows 50 L.Ed.2d gross hearsay prove the statements were evidence to be used to The mere fact very has resulted in the evils is not evidence that made against hearsay designed the rule was commit crime jury is free to prevent. believe unsworn, govern statements of unverified rejecting the We have little trouble informants, unidentified, ment sometimes such state argument subject credibility whose is not to effective ments are admissible under charac testing jury and whose before motiva ter/reputation provisions of the Federal be less than honorable.8 are tions We see Evidence,5 Rules Fed.R.Evid. pressed hard to envision a situation where 404(a)(1), 405, together, these 803.6 Read between the disparity value provide person’s of a Rules that evidence prejudical greater. effect of evidence is reputation community specific Finding inapplicable exceptions to the may be admitted to instances of conduct against hearsay rule enumerated character,” prove pertinent Evidence, “a trait of his Federal Rules of we hold that 404(a)(1). merely We need re Fed.R.Evid. evidence is never admissible for the already we have stated: peat purpose proving predisp that which the defendant’s mind, is a state of not a All decisions of this Court osition.9 contrary hereby trait.7 to the are overruled. character character; (3) “repu- that infor- relate to the 5. The contends defendant’s proof resides”; community mant’s statements were admissible “as tation in the where he reputation, (4) contemporaneous an issue which [the defendant’s] relate “to a time uniquely placed by his charged.” was defense.” issue the act 2 Weinstein's Evidence Supp. Appellee Brief for at 7. ]|405[02], Assuming at 405-16 to -18 arguendo pertinent that is a clarity, 6. we set out these rules below: For trait, character mant, Rule 803 would allow an infor- Rule 404: requisite knowledge who had the (a) generally. Character evidence Evi- reputation, testify defendant’s in court about person’s dence of a or a trait of his character and, reputation the defendant’s nation, on cross-exami- purpose is not for the conformity character proving admissible specific instances of the defend- there- that he acted Although ant’s conduct. mony testi- informant’s occasion, particular except: with on hearsay, is Rule 803 allows it to be ad- (1) of accused. Evidence of a Character government agent, mitted. But when the who pertinent accused, by trait of his character offered an always qualified speak almost is not be- on or to rebut the community, half of the testifies as to what the same; repu- informant told him about the Rule 405: tation, and the informant’s statements are (a) Reputation opinion. or In all cases in on information themselves based from other which or evidence of character a trait sources, ordinary we move out of the realm of admissible, person character of a may is hearsay and into the realm of double-levelhear- by testimony reputation be made as to say. simply Rule 803 does not address by testimony opinion. in the form of an or On latter. cross-examination, inquiry is allowed into specific relevant instances of conduct. Judge 8. Gee’s reminds us that Rule 803: while the use of informants is of obvious value following by the hear- are not excluded in law enforcement and the work of informants rule, say though even the declarant is availa- motivated, is often well informants often are ble as a witness: vengeance a desire for or for mon- “[m]oved ey, by hope of lenience for own (21) Reputa- Reputation [their] as to character. misdeeds, drug trafficking, among revulsion at or person’s his asso- tion of a character ” by any community. combination of the above .... ciates in the F.2d at 584. major in the 7. We find another flaw admissible, argument. reputation ment’s To be holding, In view of our we need not decide (1) person who is evidence must: come from a admitting whether the statements of an undis- reputation “familiar with the defendant’s ... closed informant violates the defendant’s Sixth community,” speak competent and (2) right Amendment of confrontation. pertinent trait of defendant’s relate to the 651, 662, prosecution may do indi (1977) (courts we hold that it cannot do di rectly appeals authority what n.8 have Therefore, except in the limited cir rectly. procedures to establish to deal with admin IV part of this cumstances described problems istrative created frivolous is opinion, inadmissible to jeopardy). claims of double prove predisposition may not be admitted IV. Direct Evidence of Good Faith that it is offered as direct on the assertion out, already pointed As we have in the governmental actions at run-of-the-mill case where no good and done in issue were reasonable special present, circumstances are evi- proper Although faith or for motives. faith, good dence of motive and reasonable- were some doubts there is, ness of the at least since the Supreme Court’s decision United States decision, any significance Russell of little if Russell, prejudice outweigh any proba- and the will makes it clear that the tive value. Rule 403 of the Federal Rules issue in cases is whether crucial evidence, provides of Evidence al- the defendant commit relevant, though “may be excluded if its agent’s good the crime. The motive probative substantially outweighed value only sig is of secondary or reasonableness ” danger prejudice of unfair ... . nificance, if relevant all. Out-of-court Fed.R.Evid. 403. In almost all cases the purposes statements offered for these will prejudice. will scale fall on the side value, always have little almost governmental rare circumstances prejudical and the effect of the evidence is faith, motive, and reasonableness take likely great jury might be because significance beyond scope of entrap- consider it as evidence of or example, ment vel non. For of bad character. might particular agent partici- assert that a holding are We not unaware that pating activities was today may cause the some dif get agent out to him because the har- govern ficulties in future trials. Often personal prejudice against bored some him. prior to believe to ment will have no reason appropriate It would then be to allow the intends to the trial that the defendant raise government prove agent to the acted If the an defense. defendant proper pursuing motive in the defend- way the is under to raise waits until trial ant. defense, government may find itself the the position having quickly of to in the difficult Conclusion prepare and witnesses it did not be locate case, In this the evidence was admit way We in no lieve would be needed.10 impermissible purpose prov ted for the of encourage impede tactics that the wish to ing that Webster was to com proper administration trials. To avoid mit the reject argu crime We may, by the district courts problem, ment the admission of this evidence rule, require defendants to disclose local was harmless error.11 prior their intention to raise the defense REVERSED. Abney trial. Cf. consequence general prove predisposition,

10. As a rule in this acts to we do not be as a circuit that raised intimate that such is the the defendant admits the acts sufficient to the task. Evidence of defendants’ defense unless g., based, upon prosecution preceding which the see e. conduct at and the commission of Greenfield, carry 554 F.2d criminal acts can suffice to the burden. United States v. Morrow, 1977); (5th See United States v. 524 F.2d Cir. 1976), (5th 1975). 138-39 Cir. warning usually get ment will some advance error, 11. As to other assertions of Webster’s the defense’s intentions. reported adopt panel, the decisions of the By suggesting that the have 1979). 584-85 testimony produce with direct witnesses BROWN, GEE, Judge, why with whom such a defense recog Circuit should be AINSWORTH, CLARK, nized at all. TJO- CHARLES FLAT, RUBIN, REAVLEY, RANDALL persistent view, one great- In discussed at JOHNSON, join, dissenting: and D. SAM below, length primary er focus is on the courts, compromising integri- as above their view, my persuasive majority opin-

In ty by entertaining prosecutions for con- by treating result ion arrives at its one-half instigated by police. trived offenses In recurring though of a fact situation as it other, Congress, it is on the as not exist, over-simplifying Supreme did not having punish intended such literal precedent, preempting and all but transgressions instigated of a statute as are reposed a discretion in the district court unseen, insidious hand. Rule Federal Rules of Evidence. Be- events, At all in both theoretical formula- cause I am in serious doubt about the result tions “instigated” some term as or am, moreover, unwilling so arrived at and indispensible “induced” is an ingredient. ruefully so flag to run down the on a twen- Here is the rub. ty-year circuit, course of decision in our I respectfully dissent. Viewing any given situation where one Recurring Fact Situation contends that he was “induced” to commit act, an two factors are inherent in the correctly notes that the en analysis. One is the susceptibility of the trapment unique defense is country’s subject, strength other the in jurisprudence.1 practice, it takes ducement. exception, This case is no as the form of an attack on the as defendant’s own statement of facts set out being instigated one for a crime that was margin demonstrates.2 itself —a further in here, stance of our American love of play, Recurringly, fair as the accused at sovereigns, our distrust of tempts our taste for pre demonstrate his innocence of thing. later, a near-run As we shall see disposition by highlighting strength entirely agreed Court has never malevolence of applied the inducements insanity, usually figures 1. Like it as kept a defense that the confidential informant “Susan” resort, employed hope- calling last when all else is asking help big him him to her “do a less. guys, big; deal with these I because was money.” that I could make some The De- Defendant, WEBSTER, 2. The ALBERT KEITH fendant continued to advise “Susan” he met a confidential informant kept calling was not interested but she him Spears” known to the Defendant as “Susan trying making delivery to talk him into massage parlor at a known either as the finally her to these men and the Defendant Massage Port-O-Call or the Executive Parlor. agreed packet to assist her and the of cocaine name, Spears,” “Susan not her true was a by was delivered to the Defendant a friend of paid government informant who had received “Susan.” The Defendant further stated that $3,500.00 “making a total of for a case” other agreed help the reason he “Susan” involving than the case the Defendant. “Su- they was because had sexual relations “nu- Drug san introduced the Defendant En- thought merous times” and “I because she (DEA) Special forcement Administration Agent, my was friend. I had taken her to the race- Inn, Holiday Vincent J. Mazzilli at the her, gone track. I had to bed with and we’d right govern- next Calder Racetrack. The been friends.” ment confidential informant “Susan” after In rebuttal to the defense the introducing Agent the Defendant to Mazzilli Agent Government called DEA Richard Fi- taking “was cocaine and stuff.” ano, who stated that in he October alleged The Defendant was to have sold had a grams conversation with an informant who approximately and delivered of co- Agent $1,050.00 previously advised Agent May Fiano that he had caine to Mazzilli for on purchased cocaine from an individual named 1978. This was denied Defendant. charged large Keith individual, The Defendant Webster who was described as “a was further distribute, lbs., male, possessing approxi- with intent to about 260 white. That mately grams of cocaine and distribution is it.” (18 approximately grams appellant panel, of ounces) of cocaine Brief of Webster to the record May on 1978. The Defendant references omitted. presented entrapment stating the defense of attacking contention. the de Once the defense of entrap- him —an raised, on trial. puts that the proper fense ment has been it is to in- And, the just predictably, as quire reputation into the of the defend- attempting to show that the defends ant to determine his innocent, had done such accused was not an inquire commit the offense or to into the before, things the like. the ac Since reasonableness of the officer’s conduct. attack, here,3 necessarily impugns cused’s as States, Sherman v. supra; United Accar- govern employed by the both methods States, supra; di v. United Mitchell v. implicat and its ment motives States, Cir., actions — 143 F.2d 953. ing innocents in contrived crimes —the judge properly trial instructed the government often seeks to show that jury testimony only to consider such an innocent all. accused was not at And purpose of determining limited and tactics are since its motives attacked as Robinson had cause to believe that well, it offers its belief in the Washington trafficking in narcotics. accused’s was a reasonable Washington v. United proper response one. This seems to me a 1960) (emphasis added). accused, the attack of an attack which If, noted, as govern- character of the things scarcely in the nature of can avoid— ment’s conduct remains a relevant consider- demeaning and will seldom wish to— calculus, ation in the then these government’s setting means and motives in today words are as correct as were trap caught Necessarily, him. such Judge when Wisdom wrote them. Let us large part response a will often rest consider, then, whether it does. hearsay: reports govern on which the Supreme Authority Relevant Court deciding provide op ment acted ignore portunity. And to these evident re discussing subject advance, alities is to exclude in and without opinion, we wrote: regard balancing to the test laid down for was not adopted at time we [I]t such occasions Rule evidence which rule, been, nor it ever has law that great may be of relevance and the focus in pri- decisions is force. marily govern- on the character of the Logically, if the character of the quality ment conduct involved. The case, proper ment’s conduct is a issue in the always been conduct has viewed then which it is an the motive with acted high secondary as a Court considera- subject appropriate proof. One form tion. As the teaches in proof may hearsay take is that of Russell, supra 428-32, going government’s to the state of the notion that conduct was providing to the mind inducements ac- primary or sole consideration has cused, evidence offered not for the truth of recog- from the first —since the Court but to show the matter asserted nized that defense in Sorrells the reasonableness of the be- dealing unwary lief that it was with an minority L.Ed. 413 view —been criminal, unwary not an innocent. Predisposition on the Court. of the de- fendant is now always has been the Judge Wisdom wrote for our court

As first consideration. long ago: necessarily Nor is it so that with Rus- Washington’s complaint final is that predisposition, having sell once been a permitting the court erred in Robinson [a consideration, objections, secondary became the sole agent] testify, federal over opinion speaks one. The Russell Court’s by people that he had been told several nonpredisposition principal as “the purchase that he could narcotics from of ele- defense,” Washington. is no merit ment in the id. 411 at There U.S. supra. See note ment-outrage imply rose. We therefore cannot at which seems to subsidiary ones. And else- that there are say showing made here was ir- where, hypothesizes Russell government relevant to the character of outrageous conduct so that it government an conduct that constitutes element of a defense. Id. constitute either defense. Nor do circuit’s authorities have 1637. Our S.Ct. that, logic authority or clear teach when long predisposition both the considered the character of that conduct is attacked and the character of the here, may by as it was it not be defended government agents to be ma- conduct of by that it was motivated a desire to entrapment defense. Wash- terial to the criminal, trap unwary not the unwary States, 275 F.2d ington v. United States, v. innocent. See Sherman (5th 1960); Accardi v. United Cir. 819, 820, 1959). 172-73 257 F.2d cited, latter Webster, carefully the conduct of the “weighed 1979). 583-84 agents,” correctly recogniz- government ing that in Sherman Supreme nothing Court has written 369, 78 in the area since we handed down the (1958), companion, follow-on Sorrells’ written, above. If correct when it is there- language “the of the government still so. fore The character court, shows that attach almost as conduct, certainly “outrageous,” remains importance minority much as the to the issue, one, an secondary albeit a in such government agents.” conduct of the Ac- prosecutions as Webster’s. The cardi, supra (emphasis original). at 173 away. Court has not written it Neither though And the 1973 decision Russell court, should we. And in fact no however clearly requires give preeminence us to exalted, can write the off thorns roses or factor, neither it nor divide the indivisible. When an accused requires reason us to abandon all consid- defense, raises the asserting his police eration of the character of conduct lack attacking given in a affair. means, government’s per- its motives are Surely possible it is that what Webster question. deny force called in To to it a sought to show in this case—that he was major defending mode of them seems to me innocent, corrupted an utter and seduced Nor, unwise. attempt as I shall to show in the sexual favors of a following, necessary. is it agent selling into back to agent Rule Federal Rules of supplied cocaine him that at the Evidence government’s might be seen as behest — rests, course, It in the trial court’s “outrageous” by some courts. And broad discretion to admit or exclude evi though we are not connoisseurs of the relevant, dence. Ordinarily, evidence com degrees outrage, willing are petent, and material will be admitted. As showing hazard that the of an honest and notes, however, majority correctly Rule well-founded belief permits court to exclude even rele agents involved that was no in- Webster vant grounds.4 evidence on various all, nocent at but rather a criminal who examination, sort of evidence under routinely large dealt amounts of con- response if offered in to an attack on the drugs, would remove considera- traband entrap- ble of the blush from Webster’s meets all three weighed danger prejudice, 4. Rule 403. of Relevant Evidence on of unfair Exclusion con- Confusion, issues, Prejudice, jury, misleading Grounds of or Waste of fusion of the or or delay, Time. considerations of undue waste of time, relevant, Although presentation be excluded or needless of cumulative substantially if its out- evidence. value Rule 403 criteria for admission.5 general however, judg

contemplates, force is the trial court its

ment of outweighed by danger

substantially may he in his discretion prejudice,

unfair more foresee Though I can no

exclude it. myriad possible majority

than can in which evidentiary contexts

factual arise, clearly there are

these issues which the district many to be

likely should be exercised

judge’s discretion others suspect I there will be

exclude.

where, same discre in the exercise of that

tion, admitted. the matter should have been Instead, new evidentia-

But no more. literally that —announced

ry rule —it is such evidence “in al- excludes cases,” what regardless of

most all cases con-

judge in the arena at those Lacking Rule 403. pursuant

clude not do so.

prescience, I would Miami, Fla., Cooper,

Marc for defendant- appellant. America, UNITED STATES of Modesitt, Simpson, Michael T. Donald S. Plaintiff-Appellee, Tallahassee, Fla., Attys., Asst. U. S. plaintiff-appellee. FORREST, Henry William Defendant-Appellant.

No. 78-5759. Appeals, United States Court GODBOLD, Judge, Before Chief Fifth Circuit. POLITZ, Judges. HILL and Circuit July PER CURIAM: appeal of his convictions

On direct counts, jury including of 21 violations of 18 U.S.C. §§ rejected Henry all. of William Forrest’s as- error, signments of save one. We remand- hearing complaint on Forrest’s ed for a because there was an his trial was tainted jury. We impermissible contact with the course, not, subject Unless this has been raised be re- ment. evidence should 5. Such defense, government’s col- man- the issue of the has in some ceived unless the defendant is irrelevant. impugned lective state of mind faith of the ner

Case Details

Case Name: United States v. Albert Keith Webster

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 2, 1981

Citation: 649 F.2d 346

Docket Number: 79-5013

Court Abbreviation: 5th Cir.