United States v. William Courtney Batts
573 F.2d 599
9th Cir.
1978
Check Treatment

*2 ANDERSON, Bеfore KENNEDY and PELT,* Circuit Judges, and VAN District Judge. ANDERSON,

J. Judge: BLAINE Circuit appeal referred back has been to the panel by sitting the court en banc as having improvidently. been banc taken en 3, 1977, panel opinion June amended August hereby withdrawn and the following opinion is substituted. Heiges Batts one Michael and charged in a indictment two-сount with the importation in violation of hashish of 21 952, 960(a)(1) 960(b)(2) U.S.C. and §§ and 18 possession U.S.C. hashish § with intent to distribute violation of 21 841(a)(1) 841(b)(1)(B) U.S.C. and 18 §§ Heiges, wishing U.S.C. Mr. to test § fact-finding process, jurisdic- fled the large. tion and is Batts was still tried ‍‌‌​‌‌‌‌‌‌‌‌​​‌‌‌‌‌​​‌​‌​​​‌‌‌‌‌​‌‌​‌​‌‌​‌​‌​​​‌‌‍a and was convicted on both counts. appeals Batts we affirm. The sole presented issue for review is govern- whether was error to allow the introduce, case, ment to in its rebuttal evi- * Pelt, Nebraska, Van Judge, Robert Senior District of sit- United States District Honorable ting designation. ap- appellant truckbed. He testified activity criminal had told him that the set of tools found pellant. belonged appellant. He testified that he most favоr- taken The facts personally appellant searched government reveal that Batts able trinket found silver around Heiges’ El Heiges arrived in Camino He neck. testified that told him *3 entry Lynden, port the of near truck at spoon.1 time, a was coke At Exhibit subsequent A search at the Washington. spoon, the coke wаs admitted without of entry 15 bricks hashish of disclosed port objection. He testified further as to com- the in the wall of truckbed. hidden by appellant regarding ments the “lucki- in the wall of the compartment concealed ness” of to appellant’s the search2 and re- plate a metal se- was covered truсkbed quests photos of the hashish.3 A set phillips head screws. of cured phillips numerous which contained tools pertinent The next witness our discus- was also found the screwdrivers head sion was Agent McClary. DEA He testi- truck. during that fied his interview appellant, of appellant told him he was the driver the of of what occurred аt A detailed account vehicle. He also testified that Mr. Heiges how the necessary understand trial did not have a valid driver’s license. DEA Immigration Inspector issue unfolded. Agent next testify Brant was and he Bunch, on the inspection the initial officer custody testified as the chain of scene, testify. the witness to He was first spоon coke and how spoon the coke was asking pre- that after the routine testified used. of this was adduced inspected the liminary questions, he interior objection. Upon without the conclusion marijuana the El Camino and found his testimony, government the rested. the truck to the He then directed seeds. secоndary search area. He testified that testify The first witness to for the de- occupants “overly the two were nervous was appellant. fense He testified as to overly (R.T. 9) He helpful.” then his personal history background, includ- surrounding as to the occurrences testified situation, ing education, his family and em- discovery оf the search and eventual ployment record. He identified box of he He also testified that had dis- hashish. his, tools and they testified the set of tools in the bed the El covered anyone that he not permit did to use his Camino. tools he personally present. unless was He testified to his acquaintanceship with Mr. persоn testify

The next Customs Heiges why and the accompa- reasons he that since Inspector Barnes. He testified him trip nied on the to Canada. He de- he owned an El Camino and was familiar sojourn construction, scribed the into Canada and denied with its assisted Officer driving that he was in his search of the vehicle. He El Camino when it Bunch port discovery entry. as to his arrived at the also testified hashish in He testi- compartment Inspector concealed wall of that he fied asked Barnes if (Mr. say Barnes) And what did do or at that “A. . . . and he “Q. started taking pictures time? drugs, and Mr. (Mr. Barnes) newspaper like Batts I said that it looks a asked that was a spoon. (appellant) photographer coke He said it a man or paper, from the news- (R.T. 47) was.” and I told him it wasn’t because officer, a Customs and I told (Mr. Barnes) “A. . . . he asked port director that would like to just lucky me was it found the pictures my- have some self, did, the seizure ‍‌‌​‌‌‌‌‌‌‌‌​​‌‌‌‌‌​​‌​‌​​​‌‌‌‌‌​‌‌​‌​‌‌​‌​‌​​​‌‌‍drugs where I told him any out, necessarily and if of thеm lucky, came Mr. do look we especially Batts said he would like to have cars that some certain have compartments pictures.” to that of the El similar (R.T. 49) Camino.” No, just did not. lucky,4 hashish was discovery photos requested and that he Q. knowledge You had no about that? Appellant also denied knowl- seizure.5 sir. thе hashish was hidden in the edge that use, No car.6 you saying are no? cross-examination, and without During (R.T. 135) A. No.” following colloquy place: took objection, the Appellant then called as witness his “Q. being handed No. You girlfriend, who testified that she had re- that, what Mr. Batts? spoon; spoon ceived the coke from a friend аnd had given a necklace that was A. That’s given gift it as a to the appellant. by my girlfriend. me friend also testified and corroborated the supposed what And is it to be? girlfriend’s testimony. Well, cleaning I used it for the dirt *4 my fingernails. from under I out rebuttal, appellant’s On over ob they know what use for. don’t jection, government the introducеd evi don’t know what it is? showing You dence had offered Well, negotiated large the sale they I had an when of a amount idea were me, ‘Well, asking you agent use of cocaine to an don’t this undercover seven said, ‘No, sniffing coke?’ and I previous question. months in incident do not.’ The sale eventual of did not coсaine result in a conviction as the sup cocaine was you saying you what is that Is pressed admittedly because of an they illegal know before said any- didn’t seizure, search thing commonly specifically known violation coke of spoon? as a the state’s no-knock rules.7 The trial (by contradiction) you inquiry 4. also the Did make some defendant after he had “Q. they denied, cross-examination, owning whether had some information that the items they going drugs some illegally to find or that were seized. The rebuttal evi just it was luck whether dumb or some- illegally dence in case this was not seized. The thing like that? solely rebuttal evidence consisted of Well, I asked the deal him what was negotiations ap about the offer between ready go like we were almost because through, pellant agent and the undercover which oc just ready and was curred such, to the no-knock violation. As they get back in the car when found it this evidence is not tainted the subsе there, checking started back and I quent illegal search and seizure which resulted on, going know didn’t what was didn’t suppression in the illegally-seized of the cocaine. Had the they had even know what found until admitted, cocaine been United agent (R.T. DEA me.” told 118— Trejo, supra, apply States v. would unless en 119) actment of the Federal Rules of Evidence less you at that And time did make “Q. validity. However, ens its issue this has not inquiry pic- of the man who made the express opinion. been However, here and raised we no anybody presence? tures or in his else suppressed in this case the Yes, photo- asked him if I have a could immediately withdrawn; wаs but was offered graph because would no one believe me illegally-seized therefore there was no evidence told them happened.” if I what Additionally, admitted in this case. we do not 118) jury’s viewing think that the of the two cocaine right. respect'to exhibits, Now with the inci- which were labeled and identified “Q. government agent dent at the border and the the undercover while he was on the finding agents stand, in stated, this hashish the ’66 El prejudicial. was As the exhibits Camino, quanti- did know that that immediately were withdrawn never admit ty any quantity drugs or of was inside ted into evidence and the admissible panel particular of that truck? clearly agent the fact that focused on (R.T. 119) I did not.” subject negotiations involved cocaine. viewing The of mere these exhibits did not In this we are not confronted with the case new; jury something they inform the of knew Trejo, v. issue addressed United States 501 it was a cocaine transaction and fact was (9th 1974), F.2d Cir. dealt with the 138 which denied; error, any, never exclusionary harmless. applicability of the rule where ille gally-seized impeach evidence was offered

603 attempt take in the import that such here to commer firmly instructed court quantities yet cial another impeach drug for the only was admissible evidence purposes of distribution. The relevant ‍‌‌​‌‌‌‌‌‌‌‌​​‌‌‌‌‌​​‌​‌​​​‌‌‌‌‌​‌‌​‌​‌‌​‌​‌​​​‌‌‍fac shоw knowl- credibility and to appellant’s type activity undertaken, tor is the and intent. edge identity drugs. United v. States this evidence We believe Perez, (9th Cir.), denied, 491 F.2d 167 cert. 404(b), Rules under Rule admissible 858, 106, 419 U.S. 95 42 S.Ct. L.Ed.2d 92 of such Evidence, allows evidence which (1974); Rivera, United v. States 437 F.2d intent, motive, opportunity, to show acts 1971). In identity, or knowledge, plan, preрaration, cocaine, lack claimed also or accident. See of mistake absence spoon uses of the coke and the existence of 1349, Marshall, F.2d v. States United Camino, the hashish in the El believe we denied, 426 (9th Cir.), cert. U.S. 1360-61 probative value of this evidence (1976). L.Ed.2d 376 96 S.Ct. showing appellant’s true knowledgе and in and the trial court of counsel comments drug volvement clearly activities out that such evidence was clearly demonstrate weighs any prejudicial effect. lack of claimed directed It must also be remembered that the knowledge.8 admissibility of rebuttal subject evidence is this evi- to admit deciding whethеr In sound discretion of the trial court. 404(b), the trial court also Rule under Perez, supra. Great defer wheth- as to to make the determination ence must be accorded to this discretion and prejudice undue out- danger er judgment of the trial court. He was *5 the evidence probative value of weighed presеnt and able to appellant’s observe Rules under Rule required as manner and demeanor on the stand. Our of the record con- Our review of Evidence. review of the cold record discloses to us properly us that the trial court vinces the general that tenor of testi admitting in favor of the balance struck mony was a portrayal completely of one evidence. drugs. naive about The trial judge was in position the best to evaluate the effect this the rebuttal evidence In this case mis-painted picture jury. had on the By activity drugs, albeit a prior consisted evidence, admitting the rebuttal the trial conneсting factor be drug. The different merely permitted completion court of the charged here and the re the crime tween picture as to true involvement crime is the fact evidence buttal knowledge drug in the world and there (hash intent to distribute charges an here by corrected a distorted view of apрellant’s ish) evidence discloses acts and the rebuttal testimony attempts portray and his to naiv to an act of distri leading up negotiation ety. drugs involved Merely because the bution. AFFIRMED. strip not this conduct of different does of ne past value. The acts evidentiary its KENNEDY, Judge, dissenting: Circuit of one leading to the distribution gotiation motive knowledge, principal The issue of the case in its drug is relevant to show appellant par- present posture application concerns part on the and intent testimony prosecutor of Mr. Batts. He stated that stated: 8. The knowledge he didn’t know —had no Again in of Mr. Batts’ flat “MR. MAIR: use, no about the usе of cocaine, any knowledge I denial of testified, spoon. this He also and this re- introduce —seek to introduce testi- would by, sponse slipped kind of he testified that testify mony of officers who would was, really negotiated didn’t know what a cocaine Mr. Batts offered and speaking spoon, speaking I’m before this event.” sale with them hash, later, 149) until and he found out what (R.T. 151-52) response this substance was.” was: The trial court’s eventual Frankly, go- “THE . . . COURT: ing on this until to rule with Mr. Guterson States, F.2d vanee ‍‌‌​‌‌‌‌‌‌‌‌​​‌‌‌‌‌​​‌​‌​​​‌‌‌‌‌​‌‌​‌​‌‌​‌​‌​​​‌‌‍to the detective’s testimony, quite Trejo v. United rule in 1974), apart bags evidence of the defend- from the exhibition of the them- agree testimony with the selves. The thе laboratory acts. prior ant’s criminal rule, withdrawn; analysis but disa- was never majority’s statement it; majority disregard in which the was not instructed to the manner and the gree with question prosecution here. The rested immediately the facts when that applies it to given, evidence was no illegally-seized doubt to under- whether оr jury. importance. I believe score its I fail Since to understand considered matters, how majority such I re- can construe jury did consider this testimo- ny as anything other than a direct spectfully dissent. reliance upon evidence that resulted from an unlaw- case, the defendant’s After the close of ful seizure. single rebuttal the Government offered Stokke, witness, Although who testified it is thus incorrect detective for the ma- jority he had seized earlier occasion draw comfort from its deter- that on an from the defendant. mination that the exhibit bags consisting three of cocaine bags withdrawn, the ille- three majority concedes of сocaine was The “[h]ad admitted, unsupported by cocaine been United determination is also gally-seized .,” . The Trejo, supra, apply prosecutor would record. stated: “I move States admissibility that the cocaine exhibits withdraw that.” The but decides 14- rebuttal evidence word ambiguous, and that the “that” is but two withdrawn lines reporter about the of- later the solely interpreted “consisted the reference pertain and to negotiations glass between exhibit which was a fer cocaine, agent containing which occurred vial not the three bags. the undercover illegal (majority opinion interpretation by the сourt reporter [the seizure].” supra).1 support repeated I find no in the in the transcript, at n.7 index to the (the for that determination. which shows that exhibit 14 record three bags) remained evidence and that only concluding and somewhat dramatic (the glass vial) exhibit 15 was withdrawn. testimony on which the Government rested quota- agree case is best understood direct therefore cannot that integration its *6 tion, margin.2 in the It is of the illegally-seized and is set forth evidence into this tri- immediately apparent laboratory al was subsequent somehow cured critical analysis bags’ contents was withdrawal of the exhibit. I conclude that identification of it was permit evidence. scientific error to to consider primary cocaine was of rele- pertained the contents as either the evidence that to the majority suggests you that enactment of the And are those the 1. The ones transacted Q. may Rules of Evidence have under- on? My objections Trejo. A. Yes. mined the rule in fully reasoning in a dissent from Plaintiff’s Exhibit 15 is what? Q. set forth glass opinion panel A. This is one vial with a small an which was later with- Batts, 513, powder amount of white in it. drawn. United States v. 558 F.2d part negotiation? 1977). And was that a of that Q. The text of that dissent is 519 A. it was incorporated by not. reference. here Honor, Your we strike 15. [Prosеcutor]: right. THE COURT: All It will be stricken. right. happened All What [Prosecutor:] Q. Now, pow- was that white Q. [Prosecutor:] then? laboratory analysis? der submitted to surveilling Then officers [Stokke:] It was. entered the house and we effected the ar- your custody And did it remain until it Q. rest on the individuals. was— Yes, it was. powder? Did seize the white Q. right. pow- And what was the white Yes, I did. dеr? 14, what is in And Plaintiffs Exhibit powder analyzed A. The white as co- package? caine. powder. plastic bags A. Three clear of white 176-78).

605 evi- tangible bags or the contents themselves. consisting bags that ‍‌‌​‌‌‌‌‌‌‌‌​​‌‌‌‌‌​​‌​‌​​​‌‌‌‌‌​‌‌​‌​‌‌​‌​‌​​​‌‌‍evidence majority argument merely of the cocaine possession of the detec-

cumulative unconvincing. of cocaine Possession

tive case issue in this material

is far more be uncorroborated

than would I cannot

concerning an offer sell. Since be- was harmless that either error

conclude doubt, v. Cali- Chapman a reasonable

yond 824, 18, 23,

fornia, 386 U.S. 87 S.Ct. Connecticut, (1967); Fahy v.

L.Ed.2d 85, 86-87, 11 L.Ed.2d 84 S.Ct.

375 U.S. conviction. I would reverse the (1963), America,

UNITED STATES

Plaintiff-Appellee, ARNOLD, INC.,

FRED A.

Defendant-Appellant.

No. 75-3048. Appeals, Court of

Ninth Circuit.

April