United States v. Jared C. BeckmanUnited States v. Jared C. Beckman
ORDER
Thе Appellee United States’ Motion to Modify Opinion is granted in part. The Opinion filed May 21, 2002, and appearing at
OPINION
Jared Beckman (“Beckman”) appeals his conviction after a jury trial for importation of marijuana, and possession of marijuana with intent to distribute. We must decide whether the district court erroneously permitted the government to cross-examine Beckman with a prior arrest and conviction under the guise of attacking Beck-man’s credibility. We must also consider several other trial court rulings to which Beckman assigns error. We have jurisdiction pursuant to
A. Ty Gregg’s Version of the Facts
On August 6, 2000, Calexico port of entry immigration inspectors discovered 1541 pounds of marijuana in the trailer hitched to a truck driven by Beckman. The central issue at trial was knowledge: whether Beckman knew the marijuana was in the trailer, or whether he had been tricked into transporting the marijuana by the self-acknowledged leader of the smuggling ring and government cooperating witness, Ty Gregg. The government built its case around Gregg, who testified that he had worked as a drug courier and courier recruiter for almost a year before his own arrest, and that while profiling potential drug couriers he approached Beckman and offered him money to transport marijuana across the border. Beckman agreed, and successfully drove fivе or six prior loads for Gregg.
Gregg testified that he and his couriers evaded detection by posing as dune buggy driving teams, complete with racing jerseys and other props. They used large, late-model trucks to pull decorative, enclosed trailers housing the buggies. They stored the contraband in the locked trailer, behind the buggy and concealed by false panels. The couriers locked the trailers and flattened the buggy tires to discourage searches. If questioned, the couriers were instructed to tell inspectors that they were returning from race sessions in Mexicali. Gregg was allowed to testify that Beckman was entrusted with such a large load because he had driven before. Gregg testified to a prior run made by Beckman, and documentary evidence corroborated that the truck Beckman was driving at arrest had crossed through the Calexico checkpoint around the time Gregg claims Beck-man’s prior run took place.
According to Gregg, on the day of the arrest Beckman was the driver of the second truck in a three-truck smuggling caravan. On approaching the border, Beck-man stopped to let Gregg exit and cross on foot, planning to pick him up stateside. The first truck passed through primary inspection successfully.
Border agents testified that when Beck-man reached primary inspection driving the .second truck, he identified his citizenship and stated he hаd nothing to declare to customs. The agent requested permission to search the locked trailer, but Beck-man claimed that a friend had the keys, and had already crossed over. The agent observed that Beckman stuttered, avoided eye contact, and appeared nervous. He signaled for dog detection, and the dog alerted near the front- of the trailer. After gaining entry through an open side door, agents found the marijuana behind the false panel. A search of the truck also yielded a briefcase that belonged to Gregg, and contained handwritten documents with Beckman’s personal information. Gregg testified that he had requested the information so he could register the truck in Beckman’s name, and strengthen the credibility of the dune buggy smuggler ruse.
B. Beckman’s Version of the Facts
Beckman offered a different account of these events. He claims he migrated to Southern California in the summer of 2000 looking for work. While at Mission Beach in San Diego, and through a mutual acquaintance, he met Gregg, who invited him to take a trip to Mexico to pаrty and race dune buggies. At no time did Gregg discuss transporting marijuana. While in Mexico, Beckman and Gregg smoked marijuana, partied, and drove dune buggies in Mexicali. Gregg explained to Beckman that he was involved in the manufacture of dune buggies and according to Beckman,
Beckman testified that after about a week in Mexico, he, Gregg and others proceeded by caravan north to Tijuana, where they stopped for a couple horn’s to eat and drink. Gregg, who had been driving Beckman in one of the three trucks, asked Beckman to drive through the border checkpoint, on the excuse that Gregg had had too much to drink and wanted to avoid problems at the checkpoint. Bеck-man agreed to drive the second truck alone, believing Gregg had departed to cross in the third truck. When the primary inspectors asked to search the trailer, he explained he didn’t have the keys. Realizing that he had been set up, Beck-man grew nervous, and could only watch as the dogs alerted and agents peeled away the false panels to reveal 1541 pounds of marijuana.
ANALYSIS
A. Impeachment of Beckman with Pri- or Convictions
Beckman argues that the district court improperly required Beckman to answer a question regarding a prior arrest under the guise of impeachment. We review the admission or exclusion of evidence under the familiar abuse of discretion standard. See
United States v. Wright,
When asked on direct examination why he had “hit the road” after his divorce, Beckman stated “It was just to, one, see the area that I — unexplored territory I hadn’t seen before....” On cross-examination, the government asked Beckman if he recalled being arrested in San Diego for attempted burglary in February of 1999. The prosecutor attempted to jog Beck-man’s memory by asking if Beckman recalled that he had been found in contempt for failure to appear for trial. Opposing counsel objected, claiming that the prosecutor had misstated Beckman’s testimony and was being argumentative. The court overruled the objection, and Beckman answered that he didn’t recall being arrested “for that.” 1 The gоvernment continued, asking Beckman if he recalled being convicted of a trespassing misdemeanor in San Bernardino in 1999. The court sustained opposing counsel’s objection on the basis of “improper impeachment.”
The government argues that the district court properly permitted the questioning because the government’s questions were admissible to show that Beckman had lied on direct examination by implying that Southern California was “unexplored territory” when in fact the arrest and conviction showed he had been there before. This justification relies on a wholesale mis-characterization of Beckman’s testimony. Beckman never said he had not been to Southern California, he just said he was traveling in the summer of 2000 to see “unexplored territory.” He could have been traveling through California to get to such unexplored territory. He could have been exploring parts of Southern California that were yet unexplored, notwithstanding his prior trips to San Diego and
While the district court sustained an objection to the San Bernardino conviction, we conclude that the district court erred in requiring the defendant to answer the question regarding the San Diego arrest.
The real issue here is the effect of the district court’s evidentiary error. Because Beckman objected to any Rule 404(b) material before trial, and objected at the time of the cross-examination, harmless error analysis applies to the improper admission of evidence, and reversal is proper only if the government cannot show that the error was more probably than not harmless.
See United States v. Mett,
Gregg provided the only evidence of Beckman’s knowledge, and Beckman denied Gregg’s account. Introduction of Beckman’s statement that he did nоt recall being arrested in San Diego for attempted burglary left the jury to wonder whether the arrest had actually occurred or whether Beckman simply failed to remember it — either inference likely undermined Beckman’s credibility. Any tipping of the credibility balance between Beckman and Gregg may have had some effect on the jury’s decisiоn to convict.
The admission of Beckman’s statement regarding prior criminal history also could have led the jury to convict Beckman on the impermissible basis that he was prone to violate the law.
See, e.g., Dickson v. Sullivan,
On the other hand, Beckman never admitted to the San Diego burglary arrest; the jury was given no evidence that Beck-man had actually been arrested; and the court sustained an objection to the question about the San Bernardino misdemean- or conviction. Bеcause no answer was given, the jury did not have evidence that Beckman had actually been convicted. Nor did the government discuss the arrest or conviction in summation. Finally, the jury was able to assess Beckman’s credibility in the broader context of the entire trial. Because Beckman took the stand, the jury could observe his demeanor and compare it to that of Gregg. The jury could also compare the cross-examinations of both witnesses — Gregg was subjected to rigorous impeachment regarding his motives for testifying, and his own confession of guilt for drug offenses. While the court erred in requiring Beckman to answer questions regarding the San Diego arrest, our reading of the record leads us to conclude the error was harmless.
B. Gregg’s Other Acts Testimony
Beckman also assigns error to the admission of several pieces of testimony at trial, and contends that statements made by the prosecutor in summation violated his Fifth Amendment rights. Wé address each argument in turn.
First, Beckman argues that the district court failed to exclude, on the basis of
Gregg]s testimony regarding Beckman’s prior drug run was necessary to provide a “coherent and comprehensible story” regarding the crimes for which Beckman was charged. The other act testimony was intended to establish Gregg’s relationship to Beckman, to show that the relationship was ongoing, to refute Beckman’s claim that he had no knowledge that marijuana was in the trailer, and to explain why Beckman was entrusted with marijuana valued at over $1,000,000.
See id.
at 1013 (“[T]he jury cannot be expected to make its decision in a void—without knowledge of the time, place, and circumstances of the acts which fоrm the basis of the charge.”) (internal quotation marks and citations omitted). The evidence is “inextricably intertwined” with the charged offense and is not subject to exclusion on the basis of
Beckman argues that the court admitted the challenged testimony solely on the basis of inextricable intertwining, but the record also indicates that the court conсluded the other acts evidence was admissible under
Gregg’s testimony satisfies the requirements of
Murillo:
(1) the other act testimony establishes knowledge, intent, and lack of mistake—the only reаl issue in dispute at trial; (2) the prior act was close in time, occurring within a month of Beck-man’s arrest; (3) the evidence of the other act appears sufficient (documentary evidence corroborated an earlier border crossing by the truck in which Beckman was arrested and a search revealed documents that were intendеd to gather Beck-man’s personal information for a title transfer); and (4) the prior act is the same as the charged crime. Finally, the record demonstrates that the court closely monitored Gregg’s other acts testimony for compliance with
Because Gregg’s other acts testimony is admissible both as inextricably intertwined evidence, and оn the basis of
C. The Testimony of Agent Harris
Beckman also argues that United States Customs Agent Harris offered hearsay testimony when he related that, during a proffer session, Gregg told Agent Harris that he was jailed with two of his
Beckman’s argument makes sense only if Harris’s testimony was hearsay to begin with. However, the statement was not admitted for the truth of the matter asserted, namely that Gregg was indeed jailed with Beckman, or that Beckman was Gregg’s courier. Instead, the statеment was offered to show that Gregg brought up his relationship to Beckman on his own, and not at the prodding of the government. The government called Agent Harris to rebut the implication that Gregg offered false testimony to escape punishment for his own criminal misdeeds. Harris’s testimony about Gregg’s statement was thus admissible under
D. Gregg’s Alleged Opinion Testimony
Next, Beckman argues that the court erred in allowing Gregg to offer generalized structure evidence of drug operations.
See United States v
.
Vallejo,
E. Commentary on Beckman’s Post-Arrest Silence
Finally, Beckman argues that opposing counsel’s comments during summation violated his Fifth Amendment right to silence. We rеview de novo alleged violations of a defendant’s Fifth Amendment rights arising from a prosecutor’s improper comments on the silence of an accused.
United States v. Pino-Noriega,
The use of a defendant’s pre-ar-rest, pre-Miranda silence is permissible as impeachment evidence and as evidence of substаntive guilt.
See United States v. Oplinger,
CONCLUSION
Although the district court erred in allowing certain cross-examination, the error was harmless in light of the full record.
AFFIRMED.
Notes
. In February 1999 Beckman was convicted of commercial burglary and petty theft in San Diеgo, California. Beckman was held in contempt for failure to appear for trial. Both charges stemmed from a single criminal act. The record is not clear on what crime Beck-man was charged with on arrest, which was the specific subject of the government’s first line of inquiry on cross-examination.
In May 1999, Beckman was convicted of misdemeanоr trespassing in San Bernardino, which was the subject of the government's second line of inquiry on cross-examination.
. The record shows that court recited the