*1 issue. It held that as a the constitutional factfinding in the
constitutional matter need not be restricted to system
state court the entire trial court. We have case review, before us for system
the federal just constitutional issues. system long espoused has
The federal having facts first found and
virtue of fault in the trial court.
first established judgments en- therefore,
We, reverse cases, new remand for in both
tered damages. liability and
trials as AND REMANDED.
REVERSED America, STATES
UNITED
Plaintiff-Appellee, BLOOM,
Andrew B. Defendant-Appellant.
No. 75-3558. Appeals, Court of
Fifth Circuit.
Sept.
Rehearing 15,1976. Denied Oct. *2 refused to hold an improperly
that the court hearing to determine whether evidentiary by evidence was tainted the Government’s activity; (3) and illegal wiretap failing to dismiss his indict- erred court with the maximum noncompliance for ment applicable by limits established time 50(b) of the under Rule plan promulgated for Rules of Criminal Procedure Federal disposition of criminal achieving prompt contentions to be Finding these cases. merit, affirm the conviction. we without I. The Facts The Government’s case principally rested on the testimony Oakum, of Vernon an agent Drug of the Enforcement Adminis- tration, who contacted Bloom on numerous occasions in an undercover capacity while attempting to arrange purchase of a Jr., Houp, E. Maloney, Kenneth two-pound quantity Frank of heroin. According defendant-appellant. Tex., Austin, for testimony, Oakum’s this large transac- consummated, was never but in the Jr., Atty., U. S. McDonough, B. Edward course negotiations, three deliveries of Kelt, Jr., Fred- George A. Gough, R. James smaller quantities of heroin were made. Bowers, Jr., Asst. L. Bennett, William eric “buy” The first occurred after Oakum was Tex., plaintiff-ap- Houston, Attys., U. S. introduced by an informer named Robert pellee. Durst Davis,1 William Hooker who in
turn introduced Oakum to Bloom. There- after, Oakum arranged to meet the appel- lant at a liquor Houston, store in Texas, on January 20, 1972, purchased where he two ounces of what turned out grade to be low TUTTLE, and AINSWORTH Before $1,400. heroin for Oakum subsequently CLARK, Judges. Circuit complained that the heroin involved was nearly pure as as represented it was AINSWORTH, Judge: Circuit be, and was assured Bloom that in, quality Bloom,' of heroin B. future appellant, dealings Andrew would be much better. Bloom jury possessing with in- and Oakum by a next convicted met three weeks later at a distributing Holiday with her- Houston tent to distribute and Inn, where Bloom provided occasions, Oakum with in violation separate oin on three two heroin samples which were to be tested §,841(a)(1). Bloom was sen- of 21 U.S.C. for quality, thereby effecting the second years’ imprisonment, to be tenced to fifteen delivery. Finally, after numerous conversa- five special parole term of followed repeated delays resulting tions and from $15,000. appeal His and was fined years, arranging difficulties Bloom (1) encountered that several of rests on claims “connection,” meeting a new regard was ar- rulings and instructions court’s erroneous; Bloom, Oakum, (2) ranged involving and a matters were evidentiary Vela, als, Barrera, Ruben Garcia Ricardo originally in a multi- Bloom was ultimately wife, Davis, Rangel. case was Horacio Bloom’s together his. count indictment separately. Bloom, and tried (Silvers) other individu- severed and three Adell Autry, H. T. agent, ences to trafficking undercover in heroin and second were to dealings of heroin thirty-two drugs ounces other each time such mat- meeting, which oc- were ters mentioned. At be delivered. Houston on Airport near at Andrau
curred purportedly The numerous erroneous evi- that he still claimed Bloom March rulings instructions which dentiary ounces, thirty-two but not have *3 did (1) categories: rulings ensued fall into four sample, representative a small gave Oakum simply testimony which admitted concern- third transaction. Sub- the completing thus charged in the in- ing illegal conduct not to work out attempting calls sequent phone dictment; (2) rulings which allowed the ensued, two-pound quantity delivery of the subject such evidence to jury to consider eventually broke off and negotiations but instructions; (3) limiting inci- appropriate came to frui- never larger the transaction introduced, dents where such evidence was tion. it; disregard instructed to jury but the was tending to rebut evidence (4) No substantive finally, allegedly instructions which govern- and other Oakum testimony of the improper the to draw infer- permitted these inci- regard to witnesses with ment concerning propensity the defendant’s ences by the defense. introduced was dents charged the crimes from the to commit primari- were aimed Rather, efforts defense evidence. extrinsic impugning the Government’s ly at Rulings in the first category related to addition, through cross-examination. agent testimony Oakum’s concerning dis- apparent called in an Durst was Robert cussions with Bloom the after first transac- entrapment de- an to establish attempt According tion. to that testimony, Bloom prop- was fense, questioning line of but this had assured Oakum that he supply could appar- when it became irrelevant erly ruled higher grade future, heroin in the and that purport- quantity of heroin that a small ent this would be secured from some unnamed during the of Durst possession edly in Mexicans with whom he had been doing investigation could not be period of business for almost year. Oakum also between Oakum to the transactions linked testified that Bloom mentioned he had re- Durst, no one was Aside from and Bloom. complaints ceived from several of his cus- Bloom’s behalf. testify to called tomers about the quality of his heroin.
Rulings and instructions in the remaining categories related testimony to from the II. The Evidentiary Rulings agents indicating
two that Bloom sug- had gested possible marijuana cocaine and deal- During the direct agents examination of ings in the course of negotiating the heroin Autry, Oakum and each was asked to de- Typical transactions. of testimony in the particular scribe the circumstances sur- second category exchange is an in which the rounding negotiations and transactions permitted Government was to ask Oakum in which he was involved. In the course of whether drugs other than heroin were men- so, doing each mentioned that the discus- specific tioned on a occasion. After Oakum sions involved cocaine as well as heroin. responded in the affirmative and recounted testimony, Oakum’s which was more exten- a conversation in which Bloom had alluded sive because of deeper his involvement marijuana and a new connection, cocaine investigation, also revealed that Bloom judge instructed the jury as follows: engaged procuring and marketing marijuana telling Mr. Oakum is us that had de- considerable expe- rience in fendant made statements to him about securing Mexican heroin pro- dealings marijuana the defendant’s spective buyers. or Since Bloom’s indictment charged him cocaine. You will bear mind the de- only with violations, heroin his objected charged dealing counsel is with fendant not admission of the refer- as you He well as heroin. I is told at that marijuana or cocaine. time that the not charged in the indictment defendant was the several counts any concerning marijuana offense you, specifi- deal or co- that we read caine. You would consider that given transactions on testimo- cally with heroin all, ny, if. at it only if places. you caused times and dates and believe person that such a was more in- testimony to come permitting I am this clined to deal in heroin. If it had that may it thought tend to in with effect, you give if want to it effect, show, testimony of this you accept if it, you may consider but only for that witness, of the defendant purpose and that alone. may that it lend drugs generally, deal in Bear in mind he is charged with testimony of this witness support to the He offenses. is not charged in fact dealt with the defendant with cocaine offenses. And the testimo- heroin, at the to show that same time and *4 ny as to a discussion those two sub- events, of he ei- during the same course stances, the evidence thereof will only be willing or to deal these ther had very purpose, limited if any, if please will drugs. other You hold you give it weight, that I say, should that dealing that he was against him the fact such a person also would be inclined to ], should so fine drugs, you in other if [sic deal in heroin. simply that. It is charged he is not analyzing propriety up to clear or eluci- of the tending admitted as judge’s actions in of each these charges categories, that specific were read date the it should be noted at the outset that he is on trial you to with which here and evidence admitted formed an integral and today. part natural agents’ of the accounts of the of the fall into the Most other incidents surrounding circumstances the offenses for the court category, in which sustained third which Bloom was indicted. As in United objections to mention of other defense Nunez, Cir., 1967, 5 370 538, curative instruc- drugs prompt and issued 539, where we affirmed conviction for following: tions such as the possession shotgun of a sawed-off despite Gentlemen, this Ladies and witness is admission of testimony indicating the de conversation he telling us as to a had fendant was driving a stolen automobile at in which Mr. with the defendant Oakum arrest, the time of his the evidence of spoke purchas- of tells us the defendant Bloom’s unindicted activities “was inevita marijuana, believe, I ing [sic], cocain and bly a part background of the facts sur heroin, possibly other other than narcotics rounding the commission the crime with the and heroin is concerned counts [charged] . . . 370 F.2d at see you I will ask in this indictment. not to Watkins, Cir., 1976, United States v. 5 537 testimony of the consider the admission Lewis, Cir., 5 narcotics, dealing in if in fact about other 1976, 1258, 1259. See also United make an admission. he did such Persico, 1970, States v. 2 category mainly The fourth relates to a denied, cert. U.S. S.Ct. by judge the trial given final instruction Ignacio People L.Ed.2d of the to just before the retired consider its Guam, Cir., 1969, Territory of verdict: denied, cert. 397 U.S. 90 S.Ct. you that I instruct Counsel has asked (1970). 25 L.Ed.2d 124 The evidence in again essentially this time as I did question merely complete served earlier, you there were agents’ remember their dealings accounts of early testimony Bloom, some references and was not introduced primarily to a discussion more than one dis- maybe or establish propensity to commit the crimes then, agent charged. the Government Arguably, cussion between it is not the kind possible pur- general and the defendant about of evidence to which the rule ex cluding applies. chase and sale of cocaine evidence of other offenses any arbitrary intended confer discre- applicable, rule is assuming that Even Rather, on the trial judge. incon- it is however, it is not we conclude anticipated respect permissi- that with evidentiary District Court’s with the sistent evidence, judge ble uses for such the trial currently As codified this ease. rulings in may exclude it on the basis of those Federal Rules of Evi- 404(b) of the in Rule set forth in considerations Rule i. e. dence,2 merely that provides rule prejudice, confusion or waste of time. crimes, wrongs, or of other [e]vidence prove Cong. the charac- & pp. acts is not admissible U.S.Code Admin.News that he person in order to show ter of a conformity may, therewith. It acted principle 404(b) The enunciated pur- for other be admissible coincides with and is further clarified motive, proof opportuni- poses, such as prior Fifth Circuit decisions. As stated in intent, plan, knowledge, preparation, ty, cases, our evidence of acts extrinsic to the of mistake or acci- identity, or absence crime is admissible under the item- dent. exceptions ized once the trial court is satis- fied that certain threshold prerequisites rule Advisory Note to this Committee have been met. As formulated in United mechanical solution is
stresses that “[n]o Martin, Cir., 1974, States v. San determining problem offered” 918, 921-22, these are: exceptions play, come into when determination must be made 1. Proof of the similar offenses “[t]he danger prejudice of undue out- “plain, whether the must be clear and convincing;” *5 probative value the evidence weighs the 2. The offenses must not be too re- availability in view of the of other means of crime; mote in time the alleged to appropriate other facts for mak- proof and The 3. element of the crime prior for Rule ing decisions of this kind under 403 recognized exception which there is a general deals with the issue of rele- [which intent, general rule, such as must be a legislative history of Rule vance].” case; material issue in the instant 404(b) clear that makes it broad discretion 4. There must be a substantial need regard judge. in this is vested in the trial probative value of the evidence Report As House Committee on this provided prior crimes. notes, provision (Emphasis original.) in 404(b) The second sentence of Rule as question The evidence in here is covered Congress began submitted to the with the specified exceptions a number of the words “This subdivision does not exclude 404(b). preparation It relates to the evidence when offered”. The Com- see, charged, g., commit the crimes e. Unit language mittee amended this to read “It Cir., 1972, Leftwich, ed v. 3 461 F.2d admissible”, may, be the words 586, denied, 915, 589, 409 93 cert. U.S. S.Ct. used in 1971 Advisory Committee 178; 247, 34 L.Ed.2d United States v. Persi draft, ground on the this formula- 1375, co, Cir., 1970, 1384, 2 425 F.2d cert. properly placed greater emphasis denied, 869, 102, 91 27 400 U.S. S.Ct. admissibility than did the final ver- Court 108; People v. of the Terri Ignacio L.Ed.2d sion. 513, Guam, Cir., 1969, 413 F.2d tory of 9 (Emphasis added.) Cong. 1974 & U.S.Code 943, 519-20, denied, 397 90 S.Ct. cert. U.S. course, 7075, pp. Admin.News 7081. Of as 959, (1970), to intent and L.Ed.2d 124 25 parallel in the Committee Re- noted Senate see, v. Urd knowledge, g., e. United States port, 1247; 1245, iales, Cir., 1976, 523 F.2d 5 Cir., 1975, Madrid, 5 510 discretionary “may” word v.
the use of the United States Fonseca, v. 5 554, admissibility of evi- F.2d United States respect 464, Cir., 1974, crimes, 490 F.2d wrongs, or acts is not dence of trial, prior which commenced on effec- to Bloom’s Rules of Evidence became 2. The Federal 4, 1975, 1, approximately August July month one tive on
709 1372, Unit- 1974, simple possession of illicit Cir., whiskey F.2d 490 Bryant, 5 v. Miller, Cir., 1974, States, 1941, ed States v. 122 5 5 v. United Weiss denied, 687, 751, 762, 314 62 it cannot be said that the cert. U.S. extrinsic (1942), predis and to present “precious evidence in the case has 86 L.Ed. S.Ct. an en to rebut is relevant little to do with the state of mind involved position, See, g., e., e. United States i. charged, defense. crime trapment con- [the Miller] 233, 470 U.S.App.D.C. Tyson, spiracy carrying with intent to defraud or denied, 985, 93 cert. 410 U.S. on the business of a distiller with intent to (1973). L.Ed.2d Here, defraud.” Bloom’s S.Ct. variety deal in a of controlled substances prerequisites for threshold Turning to the experience and his avowed in such transac- outlined in San exceptions as these
applying on his mens rea bearing tions had a direct extrinsic Martin, apparent supra, it is respect distributing pos- heroin and cocaine, heroin, and sessing it with intent to distribute as clear, convincing” “plain, dealings was charged. in nature and similar to offenses related with which to those in time proximate This case is also unlike United States v. intent, Knowledge, charged. Bloom was Martin, Cir., 1974, San 921- were mate preparation predisposition, improperly where the introduced evi- establishing the Government’s rial issues dence as to crimes involved three con- evidence was sub finally, the case. And victions years committed several earlier probative its value needed for stantially (two juvenile). Here, aas the extrinsic prejudice that material “to the extent least drug évidence related heroin and other outweighed.” Unit to the defendant [was] transactions that were similar in nature and Urdiales, Cir., 1975, ed States proximate in time to those involved in the 1245, 1247. indictment. factors these Having determined such as Finally, this is case not a must bal judge present, are Goodwin, Cir., 1974, value of the evidence probative ance the 1151-55, in which there was a sub- possible preju its against bad acts extrinsic possibility prejudice stantial that undue *6 United States v. to the defendant. dice may improper have resulted from admission 1259; 1258, Lewis, Cir., 1976, 531 F.2d 5 of extrinsic evidence. Goodwin’s principal Nill, Cir., 1975, v. F.2d States 5 518 United defense was that he was not the John Good- 793, by the discussion of As indicated 802. win named in an importation indictment for 404(b), supra, history of Rule legislative the pounds marijuana of 1000 of issued several largely within the balancing this is left prior months to his arrest. quan- Given the of the lower court. United sound discretion involved, tity of there could be Crockett, Cir., 1975, 64, v. 5 514 F.2d States question identity little about intent if the Madrid, Cir., 1975, 72; 5 against issue was resolved him. Nonethe- v. Co 556; 554, United States 510 F.2d less, agents testify Customs were allowed to 388, chran, Cir., cert. 1974, 380, F.2d 5 499 trial concerning their seizure of 3000 810, denied, 1124, 42 95 419 U.S. S.Ct. arrest, pounds marijuana of incident to his Rodriguez, 825; 5 L.Ed.2d ground on the that this information was 587, We find no Cir., 1973, 474 to the of intent. germane light issue present case. discretion in the abuse of such the fact that the in-court identifications of shaky, particularly chal- Goodwin were the District Court’s Our review of holdings persuades us view of the limited need for the extrinsic lenged evidentiary issue, admitted in this evidence on the intent there extrinsic evidence was a that the markedly danger testimony from that held to substantial con- case differs cases erroneously may admitted in the have cerning 3000-pound shipment have been impermissibly quieted reasonable upon by appellant. relied Un- doubts principally jurors conviction of the minds of the about Goodwin’s like the evidence of 710
identity.3
parallel danger
No
exists in the Delancey v.
Towing Service, Inc.,
Motichek
present case.
Cir., 1970,
901;
5
897,
427
Lyle
v. R. N.
Co., Cir., 1968,
Adams Const.
5
323,
402 F.2d
judge’s
the trial
light of
Particularly
Wright
Miller,
9 C.
& A.
Federal Prac-
either
jury
to instruct
efforts
repeated
tice and Procedure
(1971).
at 668
§
at all
evidence
extrinsic
to consider
context,
Taken in
judge’s
instruc-
very limited
only
it
consider
or to
tions made it
any
clear that
references in
purpose
assessing
willingness
Bloom’s
—i.
the testimony to extraneous criminal activi-
e.,
predisposition
his intent or
to commit the
ty
considered,
could
all,
be
if at
important
crimes
is
to remem
—it
purposes
limited
countenanced
improper
ber that
admission of such evi
404(b).
may
dence
be
by appropriate limiting
cured
See,
g.,
instructions.
e.
Driver v. United
Finally, in view of the overwhelming evi-
States, Cir., 1971,
5
441 F.2d
McBride
dence
guilt,
of Bloom’s
any error with re-
States,
Cir., 1969,
v. United
409 F.2d
gard to evidence of other crimes was harm-
denied,
cert.
396 U.S.
90 less. See
Roland,
United States v.
Appellant
S.Ct.
(concurring specially): opinion
We are of the
rulings
the eviden-
in its
court erred
notes
404(b) and thus the admission of such
is Evid.
to the communication
party
objection
2511(2).
evidence over defendant’s clear
Ac-
18 U.S.C. §
under
permissible
err in
violated this court’s
decision United
did not
the District Court
cordingly,
Martin,
(5th