UNITED STATES оf America, Plaintiff-Appellee, v. Tommy ASHER, Defendant-Appellant.
No. 98-1700
United States Court of Appeals, Seventh Circuit
May 21, 1999
Reconsideration Denied June 22, 1999. Rehearing and Suggestion for Rehearing En Banc Denied July 9, 1999.
178 F.3d 488
CUDAHY, RIPPLE and DIANE P. WOOD, Circuit Judges.
William E. Marsh (argued), Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant.
Before CUDAHY, RIPPLE and DIANE P. WOOD, Circuit Judges.
RIPPLE, Circuit Judge.
On July 14, 1997, a jury found Tommy Asher1 guilty of switching the Vehicle Identification Number (“VIN“) from a wrecked red and black 1992 GMC Jimmy to a stolen blue and khaki 1992 Chevrolet Blazer,2 operating a chop shop,3 possessing a motor vehicle with an altered VIN,4 and transporting a stolen vehicle across state lines.5 Judgment was imposed on March 12, 1998, and Mr. Asher was sentenced to 84 months of imprisonment followed by 3 years of supervised release and was assessed $250 and fined $70,000. Mr. Asher appeals his conviction, claiming that the district court abused its discretion by admitting evidence at trial of his prior bad acts under
I
BACKGROUND
A. Facts6
This case centers around Tommy Asher‘s involvement with a vehicle labeled “vehicle 111” by federal agents. It requires a tortuous route through the record to show Mr. Asher‘s relationship to vehicle 111. As the reader will see, there is a shadowy history in these facts, one that the jury needed to assess. The facts, taken in the light most favorable to the government, show that Mr. Asher was involved with the аlteration of a stolen vehicle that became vehicle 111. Mr. Asher‘s link to vehicle 111 must be considered in determining the appropriateness of the Rule 404(b) evidence in this case.
On January 26, 1993, Mr. Asher and his son, James Asher, purchased a wrecked salvage red and black 1992 GMC Jimmy from G.W. Pierce Auto Parts. A check to G.W. Pierce Auto Parts for $4,200, drawn on an FAS Auto Sales account, paid for the Jimmy, and Mr. Asher took possession of the vehicle. Although there is a dispute concerning Mr. Asher‘s operation of FAS Auto Parts, there is no dispute that Mr. Asher negotiated for the purchase of the Jimmy; Mr. Asher admits that he may have written the check, but that James Asher would have signed the check. G.W. Pierce Auto Parts had purchased the Jimmy from Meridian Insurance Company, which had obtained an Indiana Salvage Certificate of Title after it had acquired the totaled vehicle from its insured. Following Mr. Asher‘s purchase of the Jimmy, G.W. Pierce Auto Parts secured and retained an Ohio salvage title to the Jimmy, and thus Mr. Asher‘s name was kept out of the chain of title.
On February 4, 1993, Ricky Cantrell and Dion Staten stole a blue and khaki 1992
At this point, the assembly of a hybrid sports utility vehicle, later labeled vehicle 111, began. Mr. Asher had the body of the stolen Blazer assembled onto the running gear of the wrecked Jimmy, and the Blazer body was painted to resemble the red and black Jimmy. The VIN from the Jimmy was affixed to the dash of this hybrid vehicle and thus the VIN matched the frame, engine, and transmission numbers. This transformation, maintains the government, took place at Mr. Asher‘s residence and at Griffin‘s Auto Body. The new hybrid vehicle, vehicle 111, is at the center of this case.8
On June 18, 1993, Mr. Asher instructed his sоn, James Asher, to present the hybrid vehicle for a salvage inspection at the Ohio State Highway Patrol Inspection Station. The vehicle was presented for inspection on behalf of G.W. Pierce Auto Parts. The inspection was terminated when the inspection team found suspicious defects in the vehicle. The inspection team discovered that the vehicle did not have the required federal identification decal on the door post, and James Asher was unable to provide parts invoices for the allegedly repaired door post. Following the inspection, Mr. Asher telephoned Trooper Simms at the Inspectiоn Station to find out what the problem had been during the inspection.
Mr. Asher then instructed James Asher and Jeannie Berkowitz to return for a second inspection and to sign an Ohio State Highway Patrol Vehicle Identification Inspection Form to acquire clean title to the hybrid vehicle. On June 23, 1993, Berkowitz, Mr. Asher‘s sister-in-law, presented the vehicle at another Ohio Inspection Station armed with bogus parts invoices to substantiate the repairs. The inspection team determined that the vehicle was stolen and impounded the vehicle.
There was substantial evidence presented at trial that the hybrid vehicle was comprised of the salvage Jimmy and the stolen Blazer. After the hybrid vehicle was impounded, examination by the authorities revealed that under the repainted red and black paint there was blue paint. The vehicle did not have the required federal identification decal on the door post and there was no evidence that the door post had been replaced, as Mr. Asher claimed. Furthermore, the hybrid vehicle revealed repairs to the right rear of the body, repairs consistent with the repairs that Stanley King had performed on his Blazer prior to its theft. In addition, the date stamp on the doors and the SPID label in the glove box of the vehicle were consistent with the manufаcture of the Blazer rather than the Jimmy. There was also evidence that someone had tampered with the VIN on the dashboard of the hybrid vehicle, and the original manufacturer‘s identification number on the body of the hybrid vehicle matched the VIN of the stolen Blazer rather than the salvage Jimmy.
After vehicle 111 was impounded, Mr. Asher traveled to Ohio and attempted to gain return of his hybrid vehicle. Mr. Asher asked Dean Griffin to come along with him to Ohio to provide any necessary testimony regarding the repairs to the vehicle. Mr. Asher also telephoned Sergeant Monte McGowen and threatened him with
Mr. Asher maintains that vehicle 111 was actually the Jimmy and was legitimately repaired with parts purchased from Hubler Chevrolet and G.W. Pierce Auto Parts. Mr. Asher testified to the grand jury that he did some of the unbolting of the damaged parts of the Jimmy and performed some of the bolt-on work at his residence on County Line Road. Mr. Asher then sent the more detailed repair work on the Jimmy to Mr. Griffin. Mr. Asher testified to the grand jury that he had the body work done at Griffin‘s Auto Body and had the frame work done at Autorama.
Mr. Asher provided invoices to the grand jury in an attempt to support his story. The invoices that Mr. Asher provided to the grand jury were shown to be false,9 and the invoices failed to document Mr. Asher‘s version of the repair and reconstruction of the Jimmy.10
B. Proceedings in the District Court
The government initially proffered prior act evidence involving 49 other vehicles under
Also at trial, David Sloan testified that Cantrell12 had told Sloan that Cantrell and Dion Staten had stolen a blue and khaki Blazer and sold part of the body of the Blazer to a former race car driver in Greenwood who lived one-half mile from a church.13 The government possessed copies of written summaries of three interviews conducted by the FBI with Cantrell. In the FBI interviews, Cantrell stated that the Blazer was not stolen “on order” for Mr. Asher, that the stolen Blazer was gray rather than blue, and that Cantrell had stolen the Blazer with Sloan, rather than with Staten. Mr. Asher did not request and the government did not provide copies of these summaries to Mr. Asher prior to trial. Mr. Asher was not informed by the government that Cantrell had made these statements.
Following the trial, Mr. Asher requested copies of these statements in preparation for sentencing, and the government complied with this request. Mr. Asher then
Mr. Asher now raises two issues on appeal. Mr. Asher asserts that the district court abused its discretion by allowing the jury to hear evidence of Mr. Asher‘s prior involvement with 13 vehicles during the 1980s, and that the district court abused its discretion when it determined that the undisclosed summaries of interviews conducted by the FBI with Cantrell were immaterial and consistent with the other еvidence.
II
DISCUSSION
A. Prior Bad Acts Evidence Admitted Under 404(b)
Mr. Asher contends that he was denied a fair trial because the government was permitted to offer prior bad acts evidence that did not satisfy
Although Mr. Asher concedes that it was within the discretion of the district court to admit some of the evidence,15 Mr. Asher argues that the admission of most of the evidence constituted an abuse of discretion. Mr. Asher contends that the government was permitted to “flood the courtroom” with prior bad acts evidence, the admission of which was an impermissible attack on his character leading the jury to convict him based on his being a “thoroughly bad sort.”
The government responds that thе district court properly found the prior bad acts evidence admissible for a purpose other than to prove Mr. Asher‘s character and that the probative value of the evidence outweighed any potential unfair prejudice to Mr. Asher. Because Mr. Asher attempted to cast doubt regarding his involvement in any illegal activity relating to the stolen Blazer, the government sought to shed light on Mr. Asher‘s state of mind and sought to place Mr. Asher‘s conduct in context. The government argues that, even if Mr. Asher‘s involvement may have been explainable in isolation, his experience in these types of transactions permitted reasonable inferences revealing motive, intent, knowledge, and modus operandi.
We review a district court‘s decision to admit evidence under
The Seventh Circuit has combined the requirements of
The district court carefully assessed the evidence and determined that the evidence met the four-prong test as set forth in Prevatte. The district court took great care to analyze each piecе of proffered evidence under each prong of the four-prong test and clearly articulated its reasoning for admitting certain evidence and refusing other evidence. The district court held a hearing on July 2, 1997, during which it overruled Mr. Asher‘s objections with respect to vehicles 12, 14, 23, 24, 26, 33, 36, 37, 42, 51, 59, 61, and 67, and sustained his objections regarding vehicles 7, 16, 30, 32, 49, 50, 53, 54, 64, 65, 66, 71, and 72.
First, the district court explained that all 26 vehicles met the time frame requirement because of the context of the charge and the manner in which the events occurred related to vehicle 111, the Jimmy-Blazer hybrid. The district court explained in its Entry that there are “no uniform answers as to how proximate the prior acts must be to the charged acts“; however, “[g]iven the context of the offenses charged and the prior acts, the court finds that the intervening time period is not too remote.” R.246 at 6.16 Next, the district court stated that for any
Vehicles 33 and 61 each were connected to Mr. Asher and involved the use of bogus receipts to support a restoration affidavit. The court stated that evidence regarding vehicles 33 and 61 could be used to show
With respect to vehicle 12, the court explained that Thomas Spegal was expected to testify that he had stolen the vehicle for Mr. Asher, and that a salvage vehicle purchased by Mr. Asher from G.W. Pierce was used to renumber the stolen vehicle. Title was obtained using bogus receipts on advice from Mr. Asher. Mr. Asher kept his name out of the chain of title and sold the vehicle to a purchaser.
Vehicles 23, 26, and 51 were all driven by Mr. Asher for inspection. The court determined that evidence regarding the vehicles would go to show knowledge, motive, intent, and absence of mistake, and that Mr. Asher‘s dealings with the vehicles had many similar characteristics to his dealings with vehicle 111. Furthermore, the court stated that the evidence would be probative and not unduly prejudicial.
Regarding vehicle 24, Mr. Asher‘s involvement was also direct. The vehicle was purchased from Mr. Asher and was ultimately impounded in Florida. The vehicle had been stolen for Mr. Asher, a salvage vehicle was purchased by Mr. Asher through G.W. Pierce, and the ultimate sale kept Mr. Asher‘s name out of the chain of title. The court stated that such evidence went toward showing knowledge, motive, intent, and absence of mistake.
Vehicles 36 and 37 were stolen by Spegal and delivered to Mr. Asher within days of their theft. Title was obtained using false receipts pursuant to Mr. Asher‘s instructions. Vehicles 36 and 37 were determined to be admissible on the matters of knowledge, motive, intent, and absence of mistake. Furthermore, the district court noted that the accumulation of evidence of this type had not reached a level that would cause unfair prejudice.
Regarding vehicles 42 and 67, Mr. Asher had had discussions with law enforcement about those vehicles that were similar to the discussion about vehicle 111. The distriсt court permitted evidence on vehicles 42 and 67 after the court determined that the evidence was substantially similar and was probative of knowledge and intent, as well as potentially probative of motive and absence of mistake.
Vehicle 59 was sold by Mr. Asher to Draper Auto Sales. The government‘s proffer showed that Mr. Asher had instructed the processing of a restoration affidavit for vehicle 59 by using false backup documents. James Asher ultimately processed the paperwork. The court stated that the fact that the paperwork and vehicle went from Tommy Asher to James Asher produced probative evidence оn knowledge, intent, and absence of mistake relative to vehicle 111, and that the similarity was evident.
Following the hearing on the proffered
Second, the court discussed the substantial similarity and temporal proximity between the proffered vehicles and vehicle 111. Considering the context of the events and the distinctive similarities such as the bogus receipts, the court determined that the second prong was satisfied. Third, the court stated that enough evidence had been adduced to support a jury finding that Mr. Asher had committed thе proffered bad acts.
Finally, the court explained that the probative value of the thirteen admitted vehicles was not outweighed by any danger of unfair prejudice. Each vehicle established a matter in issue and had great similarity to the activities surrounding vehicle 111. Further, the vehicles helped to give a “more complete picture of Asher‘s nefarious activities.” R.246 at 8 (citing United States v. Spaeni, 60 F.3d 313, 316 (7th Cir.) (prior uncharged acts admissible to fill in gaps and provide background), cert. denied, 516 U.S. 997, 116 S.Ct. 536, 133 L.Ed.2d 441 (1995)).
In this Entry, the district court also outlined the safeguards it would impose to protect Mr. Asher by requiring that the government prove its prima facie case with respect to vehicle 111 before the court would entertain any of the prior bad acts evidence under
an appropriate limitation on the use of the evidence of uncharged prior acts will be necessary to ensure that Asher is judged, not by propensity of character but by evidence of the crimes charged. Accordingly, at appropriate times during the trial, and in the final instruction at the close of the case, the relevance and appropriate use of evidence of uncharged acts will be safeguarded by the giving of a limiting instruction....17
R.246 at 9.
In reviewing the district court‘s determination of the admissibility of this evidence, we must accord great deference to the distriсt court‘s assessments because of the judge‘s first-hand exposure to the evidence and because of the judge‘s familiarity with the case and ability to gauge the impact of evidence in the context of the proceeding. See Lloyd, 71 F.3d at 1264. The admitted
Furthermore, the district court held an evidentiary hearing on this matter, properly applied the four-part standard, prohibited the introduction of prior conviction evidence that it determined to be too prejudicial, required that the government present its prima facie case prior to its introduction of
B. Materiality of Undisclosed Information
Mr. Asher contends that the government withheld information that was material to the issues at trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which held that the government‘s suppression of evidence favorable to an accused violates due process when the evidence is material. As explained above, Cantrell had given three statements to the FBI that were not disclosed to Mr. Asher until after the trial. In his initial statements, Cantrell told the FBI that he had stolen a gray Blazer, rather than a blue Blazer, and that Staten delivered parts of the Blazer to a former race car driver in Greenwood. In Cantrell‘s statement on May 16, 1994, after Mr. Asher was under investigation, Cantrell told the FBI that he and Sloan had stolen the blue Blazer, but that they had not stolen the Blazer “on order” for Mr. Asher. During trial, Sloan testified that Cantrell, whо was deceased at the time of the trial, had explained to Sloan that Cantrell and Staten had stolen a blue and khaki Blazer and sold part of the body to a former race car driver in Greenwood.
Mr. Asher argues that the FBI summaries contradict Cantrell‘s statements as relayed by Sloan, rebut one of the government‘s themes, and contradict the credibility of Sloan as a witness. Mr. Asher asserts that the district court failed to focus
The government responds that the district court properly found that the newly discovered statements were in all material respects consistent with the other evidence in the case and that the disclosure of the additional three statements would not have changed the result in the trial. Furthermore, the government contends that the additional evidence was inconsequential to the trial and would have been inadmissible.
We review for abuse of discretion a district court‘s denial of a motion for a new trial based on newly discovered evidence claimed to violate Brady. See United States v. Silva, 71 F.3d 667, 670 (7th Cir.1995). To be entitled to a new trial as a result of a Brady violation, the defendant must establish that: (1) the prosecution suppressed the evidence; (2) the evidence was favorable tо the defendant; and (3) the evidence was material to the case. See United States v. Hartbarger, 148 F.3d 777, 786 (7th Cir.1998), cert. denied, 525 U.S. 1179, 119 S.Ct. 1117, 143 L.Ed.2d 112 (1999); Silva, 71 F.3d at 670. The test for materiality of the evidence under Brady is whether, in the absence of the evidence, the defendant received a fair trial resulting in a verdict worthy of confidence. See Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (citing United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).
The district court denied Mr. Asher‘s motion for a new trial after applying the proper three-part test of Silva. The district court determined that, even though evidence that was presumably favorable had been withheld, the evidence was not material, and thus denied Mr. Asher‘s motion for a new trial. As explained by the district court, in light of the evidence adduced at trial, the inconsistencies between Cantrell‘s statements to the FBI and his statement admitted at trial pursuant to
We conclude that the addition of the suppressed evidence would not have “put the whole case in such a different light as to undermine confidence in the verdict.” See Kyles, 514 U.S. at 435. Therefore, the district court properly held that there was no “reasonable probability” that the disclosure of the suppressed information would have affected the outcome of the trial. See id. at 434.
Conclusion
Based on the foregoing, wе hold that the district court did not abuse its discretion in admitting the
AFFIRMED
CUDAHY, Circuit Judge, concurring.
The district court carefully examined all the government evidence of “bad acts” involving 13 uncharged vehicles, presented through 20 witnesses and more than 100 exhibits. This evidence was intended to paint a “more complete picture” of Asher‘s alleged criminal designs in processing a single car and it occupied the second half of the trial. The crimes charged related only to vehicle 111, though, and the “prima facie” evidence of these crimes occupied the first half of the trial only.1
Originally, the evidence of the other vehicles had been intended to support conspiracy charges which were dismissed on double jeopardy grounds at the outset of the trial. The defendant, of course, complains that he is in effect being tried for conspiracy even though the conspiracy charge was thrown out. The government, red-faced, responds that Asher was involved in a “continuing crime even though [he] was not on trial for conspiracy.” Appellee‘s Br. at 14.
This case seems to present a special case of
Because we are confronted here with a careful exercise of discretion, I think we may properly affirm, and Judge Ripple very persuasively details the reasons why. But this is a close call because it is difficult to believe that a jury could view the machinations with the additional 13 vehicles as being other than conduct for which the defendant should be held criminally liable—or at least as going to his proclivity to violate the law.
KENNETH F. RIPPLE
UNITED STATES CIRCUIT JUDGE