Petition — Evans v. United States

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No. MAR 7 1983

ALEXA Fe L. STEVAS,

CLERK

IN THE

Supreme Court of the Anited States

OcTOBER TERM, 1982

JOSEPH EVANS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

STEPHEN M. KOMIE

29 South LaSalle Street

Suite 300

Chicago, Illinois 60603

(312) 263-4383

LEONARD J. FRANKEL

8019 Forsyth

Clayton, Missouri 63105

(314) 725-8019

Attorneys for Petitioner

Rosert S. BAILEY

53 West Jackson Boulevard

Suite 1220

Chicago, Illinois 60604

(312) 427-6050

Of Counsel

Pandick Press Midwest, Inc., Chicago © 454-7600

i

QUESTION PRESENTED

Does the policy of the Federal Rules of Evidence, Rule 404

require exciusion o1 evidence of extrinsic crimes in ordinary and

recurring circumstances such as presented in this case?

INDEX

PAGE

Question Presented.............. a i

Opinions Below... as enaiesapenbiiameesesandsastanh l

PITS secicnsceshsiunvinntnininvans ae 2

Constitutional Provisions Involved ...........:.ssseeeeeeeeereees 2

Federal Rules of Evidence Involved ..............ccsccssseseeeeeees 2

SRIIIIIIIE sccccnntcrsscurcensssoninicsenentesiennecnnieeninennnndannsehiiantenriita 3

Reasons for Granting the Writ..............cccccesseeseseeesseeeeeees 6

RIOR iin esins ssassssccsseceseuinniinininseccnnibsnhianeidianinelaiadmantonenns 10

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INDEX TO APPENDIX

Opinion of the United States Court of Appeals for the

Eighth Circuit la

INDEX TO AUTHORITIES CITED

Cases

Michelson v. United States, 335 U.S. 469............000

United States v. Beechum, 582 F. 2d 898 ( 5th Cir.,

United States v. Evans, __. F. 2d —__ ( 8th Cir.

BEG Fee P sncanintadln a csunscsorectianbasiesnbsnataeineunnveenene

United States v. Manafzadeh, 592 F. 2d 81 (2nd

Cir., 1979) sdliaatiebladadicdicmisecaiinntadpsaltas

Constitution, Statutes and Rules

United States Constitution, Fifth Amendment,

Due Process Clause ibe

TH Bie We Ws Se BOGE )E 2) cccccceresssescvecocecsccsssneceee

Title 21, U.S. C. § 846

Federal Rules of Evidence, Rule 403 ...........000+se0

Federal Rules of Evidence, Rule 404 .............:cce000

Supreme Court of the Anited States

OcTOBER TERM, 1982

JOSEPH EVANS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner, by his attorneys, petitions for Writ of Certiorari

to review the judgment of the United States Court of Appeals

for the Eighth Circuit affirming his conviction in the United

States District Court for the Eastern District of Missouri in the

instant case.

OPINIONS BELOW

The case was decided by the Court of Appeals for the

Eighth Circuit by opinion dated January 6, 1983, United States

v. Evans, F. 2d (8th Circuit No.

82-1559). The opinion is reproduced in the Appendix. No

opinion was filed in the District Court.

2

JURISDICTION

Judgment of the Court of Appeals for the Eighth Circuit

was entered on January 6, 1983. This Court’s jurisdiction is

invoked under 28 U. S. C. §§ 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The case involves the Due Process Clause of the Fifth

Amendment to the Constitution of the United States. “... Nor

shall any person be... deprived of life, liberty, or property,

without Due Process of Law... .”

FEDERAL RULES OF EVIDENCE INVOLVED

The case involves both Rules 403 and 404 of the Federal

Rules of Evidence:

Rule 403. Exclusion of Relevant Evidence on Grounds of

Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence.

Rule 404. Character Evidence not Admissible to Prove

Conduct; Exceptions; Other Crimes

(a) Character evidence generally. Evidence of a

person’s character or a trait of his character is not admis-

sible for the purpose of proving that he acted in conformity

therewith on a particular occasion, except:

(1) Character of accused. Evidence of a per-

tinent trait of his character offered by an accused, or

by the prosecution to rebut the same;

(2) Character of victim; Evidence of a pertinent

trait of character of the victim of the crime offered by

an accused, or by the prosecution to rebut the same, or

3

evidence of a character trait of peacefulness of the

victim offered by the prosecution in a homicide case to

rebut evidence that the victim was the first aggressor;

(3) Character of witness. Evidence of the

character of a witness, as provided in rules 607, 608,

and 609.

(b) Other crimes, wrongs, or acts. Evidence of other

crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show that he acted in

conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence

of mistake or accident.

STATEMENT

Petitioner was one of five individuals named in a two

count indictment charging violations of Title 21, U. S. C.

§§ 841(a)(1) and 846 involving dealings on September 24,

1980 in significant amounts of marijuana made available by the

St. Louis Police Department and the Drug Enforcement Ad-

ministration. None of Petitioner’s co-defendants proceeded to

trial in the case, all entering pleas of guilty. One, Edward

England, was the major witness for the Government at Petition-

er’s trial. T. 73-145. The jury returned verdicts of guilty on

March 24, 1982 and on April 30, 1982. Petitioner was

sentenced to incarceration for a period of three years on each of

the two counts to run concurrently. Appeal was taken resulting

in the opinion of the Court of Appeals for the Eighth Circuit

reproduced in the Appendix which we ask this Court to review.

Unlike most of the usual cases involving the enforcement

of drug laws, the undercover policeman in this case posed as a

major seller of drugs rather than a purchaser. In addition,

England, who testified that he sold marijuana to—not pur-

chased it from—Petitioner, was promised consideration by the

Government on his Motion to Reduce Sentence in return for his

testimony at Petitioner’s trial. T. 137.

4

It appears that the police had come into possession of

approximately five hundred pounds of marijuana which was

stored in a hanger at the Spirit of St. Louis Airport. Officer

Zambo, the undercover policeman, met with Co-Defendants

Richmond Miller and Charles Cargile on September 23, 1980

at a hotel in St. Louis to discuss the sale of the police marijuana.

Arrangements were made to gather interested purchasers and

to consummate the transaction on the following day. Cargile

contacted Edward England, a resident of Southern Illinois, who

interested his friend, Phillip Wright, also from Southern Illinois,

in the transaction. England testified that he also contacted

Petitioner in Chicago who arrived at his home on the next day.

Five individuals not including Petitioner, viz., Zambo, his

informer, Miller, Cargile and another prospective purchaser,

Ronald Boles, drove to the airport and inspected the marijuana.

Cargile apparently agreed to consummate the transaction and,

needing time to get his people and his money together, made

arrangements to meet later on the same day at a St. Louis

shopping mall. T. 150 et seq.

Surveillance officers identified Cargile, England and Peti-

tioner proceeding to the mall in Petitioner’s car. Upon arrival

Petitioner left the car, turning it over to England, and entered

the shopping area where he spent the ensuing period of time

shopping and eating. T. 193, 213-214. Meanwhile, England

drove the car with Cargile as a passenger to the airport. Wright

arrived in another vehicle; Zambo, Miller and the informant in

a third car. Cargile gave Zambo $58,000.00 of his own money,

$10,000.00 he obtained from a brown shoulder bag in the car,

later identified as Petitioner’s, and some additional money

totalling $82,000.00. T. 153. The individuals present then

loaded 148 pounds of marijuana into the automobile driven by

Wright and 127 pounds of marijuana into the trunk of Petition-

er’s car, then being driven by England. T. 156. Wright and

England, each driving alone, then returned to the mall in those

vehicles, Cargile this time travelling with Zambo, Miller and

the informant in their car. England gave Petitioner the keys to

his vehicle, then entered Wright’s car as Petitioner entered his

5

own. As the two cars were driving off they were stopped, all of

the individuals involved were arrested and the marijuana in the

trunks was seized. T. 193-4.

There was also proof of some post-arrest remarks of

Petitioner tending somewhat to indicate his knowledge of

marijuana in the trunk. T. 161, 183, et. seq. The prosecution

relied and conviction depended, however, upon the testimony

of England for evidence of Petitioner’s agreement to deal in the

drug, his purpose in going to Si. Louis and his knowledge of the

scheme. At the trial there was vigorous cross-examination of

England by counsel for Petitioner going directly to his credi-

bility. In the course of his testimony England was permitted to

state over objection of the defense that the reason he contacted

Petitioner in connection with the opportunity to purchase the

marijuana had to do with a previous transaction involving 60

pounds of marijuana, which England had sold to Petitioner

during the preceding summer. In view of the importance of this

testimony to the contention we raise, we set it out below:

“Q. (By Mr. Dowd) [The Prosecutor] Mr. England,

prior to calling the defendant Evans on September 22 of

1980 had you had a marijuana transaction with him?

A. Yes, sir.

Q. And when was that approximately?

A. I believe it was in the summer. The same one I

indicated that I did with Cargile.

Q. Okay. You had gotten marijuana from Cargile?

A. Right.

Q. And you sold it to this defendant?

A. Right.

Q. Is that why you called him this time in September

A. Yes, sir.” T. 84-5.

6

“Q. (By Mr. Dowd) Mr. England, you testified

before that you sold the defendant marijuana a couple of

months prior to September of 1980?

A. Right.

Q. How much did you sell him?

A. Oh, approximately sixty pounds maybe.” T. 114.

Apart from England’s testimony there was no other evi-

dence of that prior sale. It is the admissibility of that evidence

which we ask this Court to review.

REASON FOR GRANTING THE WRIT

Rule 404(b) of the Federal Rules of Evidence represents

the most recent solution to the evidentiary problem, long

persistent in the administration of criminal justice, of regulating

and attempting to define with a precision the circumstances

under which evil acts committed in a defendant’s past shall be

admitted into evidence in the course of a trial for specific

wrongdoing. The problem is as perplexing as it is ancient. The

first sentence of Rule 404(b) is intended to protect defendants

and to insure that individuals will not be convicted for specific

instances of wrongdoing solely because they have been bad

men. The second sentence of Rule 404(b) attempts to allow

such evidence in instances in which it serves a bona fide purpose

necessary to the fair and full presentation of the facts relating to

the specific charges of the indictment. Rule 403 provides the

further protection that such evidence will not be permitted

when its value pales in comparison to the harm it produces

upon the likelihood of a fair trial. These are all fundamental

considerations, the balanced resolution of which is critical to the

administration of the criminal law. It is our contention that

decisions like the present—they are legion—permit the second

sentence of Rule 404(b) to swallow whole the protections

embodied in the other two provisions. The point runs deep; it

involves the basic integrity of the system. Judgments of

conviction predicated upon a defendant’s reputation, prior

record, or evil nature and not upon proved guilt of specific

7

charges defile a legal system which permits them. This Court

has not spoken to the maintenance of this critical balance at

least since Michelson v. United States, 335 U. S. 469. The

instant case, we respectfully submit, presents that opportunity.

The Court below set out a ‘tripartite test of admissibility

derived entirely appropriately from the text of the rules and

from prior decisions of the Courts of Appeals in several circuits.

It held:

“In previous decisions we have set out the pre-

requisites that must be met for the admission of evidence

of prior criminal or wrongful acts. These requirements

track the pertinent portions of the Federal Rules of

Evidence, Rule 404(b) and 403. A trial judge acts within

his sound discretion in admitting evidence of prior wrong-

ful acts when (1) the evidence is relevant to an issue in

question other than that of the character of the defendant,

(2) there is clear and convincing evidence that defendant

committed the prior acts, and (3) the potential unfair

prejudice of the evidence does not substantially outweigh

its probative value.” [Footnote omitted. ]

The opinion, however proceeds from that statement of the law

to approve the admission of the prior offense testimony in this

case. In doing so, the Court reflects a construction of the three

part test which we believe is far from that intended and which

courts the very dangers against which the rules were designed

to protect.

The first sentence of the rule permits such evidence to be

introduced on an issue other than the character of the defend-

ant and his proclivity to commit the offense charged in the

indictment. In this case it was apparent early on that the jury’s

decision was going to rest on whether it believed the testimony

of England beyond a reasonable doubt—for if that testimony

were believed there could be no question of Petitioner’s guilt.

Defense counsel quite appropriately attacked England’s credi-

bility and in the course of that attack sought to make of him a

long term professional drug offender. England indeed admitted

a course of dealing in drugs from which he derived substantially

8

his entire income over a four year period. The District Judge

suggested the cutting edge of the testimony concerning the prior

transaction:

“| .. [H]e is entitled to show that one of the persons he

dealt with regularly is this defendant here because you're

trying to contrast the amateur status of the defendant and

the professional activities of the witness... .” T. 143.

The Court below took that purpose to fall within the language

of the second sentence of Rule 404(b). In fact, the “amateur

status” of the Defendant precisely relates to his character and to

the purpose forbidden by the first sentence of the same rule.

The interpretation given by the Court below to the second

part of the test is equally unsatisfying. The “clear and

convincing” evidence in the instant case consists solely of the

totally unsupported testimony of England, the accomplice, Co-

Defendant, drug seller witness. The Government, successfully

in the Court below, contended that the clear and convincing

standard related entirely to ambiguity and specificity and not to

credibility. We concede that England’s testimony was about his

prior sale of marijuana to Evans was specific and unambiguous;

that is to say, it was clear. We quarreled in the District Court

and in the Court of Appeals and we quarrel here with any

characterization of that testimony as convincing in view of its

source and the total absence of any corroboration to support it.

Effectively, the concept subsumed in the word “convincing” in

the test has been read out of the equation.

The third portion of the three part test, the balance

between probative value and cost in prejudice, also was not met

in the instant case. Few juries begin deliberations with

unanimity and it is in the give and take of deliberation that the

collective judgment upon which we depend is formulated.

Clearly in a close case on the facts England’s position as a

professional drug seller may well have been influential, but not

nearly so influential as Evans’ position as a repeated offender.

The jury deliberations may well have turned from an exam-

ination of the reliability of England’s testimony concerning the

crimes charged in the indictment to an evaluation of the

Defendant and the likelihood that such a man as he would

9

become deliberately involved in those crimes. The entire

protective purpose of the rules has been perverted.

The construction and interpretation of Rule 404 and its

application to the facts of specific cases has spawned much

litigation and many opinions from the several circuits. See e.g.,

United States v. Dothard, 666 F. 2d 498 (1lth Cir., 1982),

United States v. Manafzadeh, 592 F. 2d 81 (2nd Cir., 1979),

United States v. Beechum, 582 F. 2d 898 (Sth Cir., 1978) (en

banc, 5 judges dissenting) and United States v. Scholle, 553 F.

2d 1109 (8th Cir., 1977). It is not our purpose here to review,

analyze, and catalog all of those decisions or the considerable

volume of professional literature touching on the question.

That might well be the function of a brief on the merits.

Perhaps the reason the issue has proved so troublesome lies in

the fundamentally illogical nature of the beneficent and protec-

tive purpose of any rule in this area. Justice Jackson perhaps

best pointed out that illogic:

“The State may not show defendant’s prior trouble with

the law, specific criminal acts, or ill name among his

neighbors even though such facts might logically be per-

suasive that he is by propensity a probable perpetrator of

the crime. The inquiry is not reiected because character is

irrelevant; on the contrary, it is said to weigh too much

with the jury and to so overpersuade them as to prejudge

one with a bad general record and deny him a fair

opportunity to defend against the particular cha.ge. The

overriding policy of excluding such evidence, despite its

admitted probative value, is the practical experience that

its disallowance tends to prevent confusion of issues, unfair

surprise and undue prejudice.” Michelson v. United States,

335 U. S. 469, 475. [Footnotes omitted}.

The policy to which Justice Jackson adverted has come to be

relied upon as an important safeguard in our criminal justice

system. Its values are those of the Due Process Clause of the

Fifth Amendment and though its illogic may be recognized, its

firm experiential base cannot be denied. In the hope that this

Court will fil the need for an authoritative resolution of these

fundamental, sensitive and important issues, we respectfully

petition for the issuance of a Writ of Certiorari.

10

CONCLUSION

For the reasons discussed above we respectfully submit

that this Court ought to issue its Writ of Certiorari to the United

States Court of Appeals for the Eighth Circuit to review that

Court’s judgment in the instant case.

Respectfully submitted,

STEPHEN M. KOMIE

29 South LaSalle Street

Suite 300

Chicago, Illinois 60603

(312) 263-4383

LEONARD J. FRANKEL

8019 Forsyth

Clayton, Missouri 63105

(314) 725-8019

Attorneys for Petitioner

Rosert S. BAILEY

53 West Jackson Boulevard

Suite 1220

Chicago, Illinois 60604

(312) 427-6050

Of Counsel

March, 1983

UNITED STATES COURT OF APPEALS

For The Eighth Circuit

No. 82-1559

UNITED STATES OF AMERICA, |

Appellee, Appeal from the United

seo District Court

for the Eastern District

JOSEPH EVANS, of Missouri

Appellant

Submitted: October 14, 1982

Filed: January 6, 1983

vs

Before BRIGHT and ARNOLD, Circuit Judges, and HUNT-

ER,”* Senior District Judge.

HUNTER, Senior District Judge.

Defendant, Joseph Evans, was charged along with four

others, Charles Cargile, Edward England, Richmond Miller,

and Phillip Wright, with violating federal narcotics laws.

Evans’ four co-defendants pled guilty to the charges and he

stood trial alone.’ A jury convicted him on counts one and four

of the indictment; of conspiring to possess with intent to

distribute approximately 500 pounds of marijuana in violation

of Title 21, United States Code, §§ 841 and 846, and of

possessing with intent to distribute approximately 127 pounds

of marijuana in violation of Title 21, United States Code, § 841,

respectively.

* The Honorable Elmo B. Hunter, Senior United States

District Judge for the Western District of Missouri, sitting by

designation.

‘The Honorable Clyde S. Cahill, Sr., United States Dis-

trict Judge for the Eastern District of Missouri, presiding.

2a

Evans appeals his conviction on two grounds: (1) that the

jury lacked sufficient evidence upon which to convict him, and

(2) that the district judge erred in allowing the government to

present evidence of his prior criminal or wrongful acts. After

considering the challenges of defendant and reviewing the

record below, we affirm.

The nature of defendant’s claims requires us to set out in

some detail the evidence elicited at trial. The government

based its case primarily on the testimony of Detective Zambo,

an agent for the Drug Enforcement Administration (DEA),

and Edward England, one of the initial codefendants in the

case. Detective Zambo testified concerning a marijuana trans-

action that he had participated in while acting in an undercover

capacity and to conversations he had had with defendant after

the latter’s arrest. Edward England related defendant’s

involvement in the same transaction. Also relied on, but to a

lesser extent was the testimony of two additional DEA agents.?

An informant put Detective Zambo in contact with Rich-

mond Miller in September of 1980. A meeting was arranged,

and Detective Zambo and the informant met with Miller and

Charles Cargile on September 23, 1980, at the Drury Inn in St.

Louis. The meeting was held to discuss a marijuana transac-

tion. No marijuana was sold at the meeting, although Cargile

wanted to purchase a sample at that time to show “his people”

coming in from Alabama and Illinois. They scheduled another

meeting for the next day to further discuss the sale and to check

the quality of the marijuana.

Cargile called Edward England at his home in Petersburg,

Illinois during the evening of September 22, 1980. He told

England that he had a deal in St. Louis where England could

buy all the marijuana he wanted. England had been involved

in a marijuana transaction with Cargile during the summer of

the same year.

2 A third DEA agent was called by defendant and testified

concerning the surveillance of the defendant. Evans also called

his employer as a character witness.

3a

After hearing from Cargile, England talked to Phillip

Wright who lived in the same town, and called defendant in

Chicago to ask them if they were interested in buying some

mariiuana. Over the objection of defendant, England ex-

plained that he called Evans because Evans had also been

involved in the marijuana deal between Cargile and England

the previous summer.

Evans arrived at England’s home during the afternoon of

September 23, 1980, driving a beige Buick. England drove

defendant’s car to St. Louis and Wright followed in a car that

England had him rent. The three checked into the same Drury

Inn where Detective Zambo had met with Cargile and Miller,

and where the latter two were staying. On arrival in St. Louis

the three contacted Cargile about the deal. He told them that it

was to occur the next day, September 24, 1980.

On the 24th Agent Zambo, the informant, Miller, and

Cargile all met again to discuss the deal. Cargile indicated that

he wanted to buy 500 pounds of marijuana, 300 pounds of

which were for his buyers from out of town. The foursome then

drove to a St. Louis airport to view the marijuana located in a

hangar. Being satisfied with the quality of the marijuana the

group returned to the motel so that Cargile could get his money

and drivers together.

Upon their return to the motel Miller went to Cargile’s

room to get their money and Cargile went down the hall to

England’s room to confirm that the deal was on. When Cargile

reiurned from the room he told Detective Zambo that his

drivers were ready. During this same period England, Wright,

and Evans sat in England’s room and counted their money to

make sure they had enovgh to purchase the 300 pounds of

marijuana. They had approximately $80,000 between them;

Evans had brought half of that amount.

Shortly thereafter Cargile, England, Wright, and Evans

drove in Evans’ Buick and Wright’s rented car to a St. Louis

mall where they were to rendezvous with Detective Zambo and

4a

the informant. England told Evans to remain at the mall and

that he would pick him up after “it was loaded.” Everyone else

proceeded to the airport hangar.

At the hangar approximately 125 pounds of marijuana was

loaded into the trunk of defendant’s car and 150 pounds was

loaded into the rented car. England counted out $82,000,

$10,000 of which came from a paper sack taken from a brown

sheulder bag. England and Wright then drove the two cars

back to the mall to pick up defendant.

Other DEA agents kept defendant under surveillance while

he waited at the mall. During that time Evans made a

purchase, ate, and then waited at the curb for England and

Wright to return.

Upon their return to the mall England gave Evans the keys

to the Buick, told him that the car was ready to go, and then got

in Wright’s car for the trip home. Evans was not going through

Petersburg on his return to Chicago.

As the two cars exited the mall parking area agents

stopped them, seized the marijuana in the trunks of both cars,

and arrested the three occupants. Defendant was read his

rights, and then taken to a St. Louis County police office. The

others were taken to the local offices of the DEA. Among the

items taken from Evans at the time of his arrest was approxi-

mately $700.

Evans was taken to the DEA offices the next morning,

September 25, 1980, for processing. At the offices Detective

Zambo again advised him of his rights and defendant indicated

that he understood them. He did not, however, understand the

charge against him. Detective Zambo explained that he was

charged with conspiracy and with possession of marijuana with

the intent to distribute it because he had more marijuana in his

possession than deemed necessary for personal use.? Evans

3 According to Detective Zambo an ounce of marijuana

contains the equivalent of fourteen marijuana cigarettes. The

amount of marijuana taken from Evans’ car trunk, 125 pounds,

could produce approximately 28,000 marijuana cigarettes.

Sa

replied that “maybe we’re just heavy smokers.” Finally, Evans

asked the detective if he would get his car back and identified

the beige Buick as his car. When Detective Zambo said no that

it was being seized as a vehicle used to transport marijuana,

Evans said that he figured as much.

That same afternoon Detective Zambo again saw Evans at

the Magistrate’s Office for the setting of bond. Bond was set at

$25,000. Detective Zambo overheard Evans comment that he

didn’t know how he was supposed to pay that amount when

“they got all my money already.”

Detective Zambo again spoke with Evans on September

26, 1980, when Evans was at the Marshal’s Office claiming as

his the clothes that were removed from the brown shoulder bag.

He asked whether the shoulder bag would be returned to him.

Again the detective told him that it was being seized because

money used to purchase marijuana was taken from it. Evans

said alright, signed the receipt for the property, and left.

England and defendant had at least three other contacts

prior to defendant’s trial. Sometime after their arrest in St.

Louis but before Thanksgiving England drove to Chicago to see

Evans. Evans was not home so England left him a note asking

him to call. Evans did call shortly thereafter, but England was

unable to recall any of the specifics of the conversation.

England called Evans on Thanksgiving. Evans told England

that he had been indicted on the St. Louis matter, and that

England should check to see if he had been also. During the

conversation Evans also told England that he could beat the

charge if no one testified against him. Evans called England

the day before his trial was to begin to persuade England not to

testify against him. He told England that the most the judge

would do to him if he did not testify would be to find him in

contempt of court and place him in jail for the duration of the

trial, but that the trial would last only a few days.

6a

Sufficient Evidence

Evans claims that the foregoing evidence was insufficient to

establish his guilt beyond a reasonable doubt. He does not

challenge the existence of a conspiracy to possess and distribute

marijuana. Instead Evans challenges the proof of his knowing

participation in the conspiracy. His main contention is that the

testimony of Edward England was too biased to support his

conviction. Furthermore, the rest of the evidence against him

failed to establish more than his knowing and associating with

certain conspirators, aiso insufficient to convict him of the

conspiracy charge.

To convict one of criminal conspiracy the government must

show that the individual entered an agreement with at least one

other person, that the agreement had as its objective a violation

of law, and that one of those in agreement committed an act in

furtherance of the objective. United States v. Schmaltz, 562

F. 2d 558, 559 (8th Cir. 1977), cert. denied, 434 U.S. 957

(1978). The only element of a criminal conspiracy at issue on

this appeal is the government’s proof that Evans did join in the

conspiracy.

The government in large measure relied on the testimony

of Edward England in establishing Evans’ involvement in the

conspiracy. It was the only direct evidence linking defendant to

the conspiracy. Evans challenges the heavy reliance on Eng-

land’s testimony. He asserts that England’s desire to reduce his

own three year sentence on the conspiracy and possession

charges rendered his testimony unreliable and therefore

insufficient to prove Evans’ participation. We disagree.

4Evans further claims that his conviction for possession

with intent to distribute marijuana must also be dismissed on

insufficiency of evidence grounds. He argues that when the

evidence fails to support a conviction for conspiracy, as it does

here, then a conviction on the underlying substantive count

should be set aside. Our decision makes it unnecessary to rule

on the merits of this argument.

7a

The testimony of an accomplice is not per se unreliable.

Both the Supreme Court, in Caminetti v. United States, 242

U.S. 470, 495 (1917); and this Circuit most recently in United

States v. Anderson, 654 F. 2d 1264, 1268 (8th Cir. 1981), cert.

denied, 102 S. Ct. 978 (1982), have recognized the propriety of

using and relying upon the testimony of an accomplice or

conspirator to prove another’s connection to the conspiracy.

The real issue here is not admissibility, but credibility. Credi-

bility, i.e., the decision as to the appropriate weight to be

accorded the testimony of a witness, rests with the jury.

Tainted witnesses have often supplied testimony crucial to

the government’s case. In a recent case both government

witnesses admitted involvement with the defendants in a con-

spiracy to distribute a controlled substance. One of the

witnesses was not indicted and the other pled guilty and

received a thirty-three day sentence. Their testimony provided

the only evidence against one of the defendants. United States

v. Anderson, 654 F. 2d at 1267, 1268. In another case the sole

government witness was a large scale narcotics seller who had

been recently paroled from a sentence on previous charges. For

his testimony the government agreed not to further prosecute

him for his past drug related crimes even though he was named

in twenty-five counts of the present indictment. The govern-

ment further agreed to relocate and sustain him. His testimony,

and taped phone conversations between him and the defendant

were the basis of the latter’s conviction. United States v.

Losing, 560 F. 2d 906, 910-912 ( 8th Cir. ), cert. denied 434 U.S.

969 (1977). In both cases the juries were made aware of the

witnesses’ incentives to testify. We found sufficient evidence in

each case to support the jury’s decision to convict.

As in the cases above, the jury that convicted Evans was

aware of those facts that would tend to diminish the credibility

of England. The jury knew of England’s history of illegal drug

activity, his participation in the present conspiracy, his plea of

guilty to and sentence of three years on charges in the same

indictment, and his hope for a reduction in his sentence by

cooperating with the government. The government had offered

to inform the court of England’s cooperation in testifying

against Evans and had promised not to block a motion by

England for a reduction of his sentence. Furthermore defend-

ant does not claim and there is no indication in the record that

he was prevented from bringing any other items to the jury’s

attention that would adversely reflect on England’s credibility.

We can find no error as a matter of law in the jury’s

consideration of the testimony of Edward England. As we

noted in Williams, “these were matters which might influence

... [a witness’] testimony. They would not, however, of

themselves make . .. [his] testimony so legally unsubstantial or

... [his] credibility as a witness so legally infirm as to require

reasonable doubt to be recognized as a matter of law.”

Williams v. United States, 328 F. 2d 256, 259 (8th Cir. ), cert.

denied. 377 U.S. 969 (1964).

Evans contends that England’s testimony was legally

unsubstantial because it was uncorroborated. Contrary to the

assertion of defendant a conspirator’s testimony does not

always require corroboration. As a matter of law the testimony

of an accomplice is not “of such unsubstantiality or such

infirmity on interest or character as to be insufficient as a basis

to convict without corroboration. A conviction can properly

rest on the uncorroborated testimony of an accomplice if it is

not otherwise incredible or unsubstantial on its face.” Williams

v. United States, 328 F. 2d at 259, and cases cited.5 See United

5In Williams the crucial testimony against the defendant

was provided by an accomplice. The accomplice and the

defendant were arrested as they disembarked from a flight. A

search of the two discovered heroin on the witness and nothing

on the defendant. The accomplice, however, was not prose-

cuted, and instead testified against the defendant. The only

corroboration of her testimony that the defendant had thrust

the heroin package down the front of her dress as they

proceeded through the airport was the testimony of an agent

who said that he saw the defendant move his hand toward the

testifying accomplice, but he could not see what was in the

defendant’s hand. Based on this testimony the defendant was

convicted. Williams v. United States, 328 F. 2d at 258.

9a

States v. Anderson, 654 F. 2d at 1268. England’s testimony was

not incredible or unsubstantial on its face. He explained why

he called Evans. The two of them had been involved in a

marijuana purchase during the previous summer. His testi-

mony also provided the jury with a plausible reason for Evans’

presence in St. Louis. Furthermore his recitation of the

transaction process certainly did not hint of the incredible.

Reviewing the testimony of England we can not say as a matter

of law that it was incredible. The jury could reasonably have

believed that Evans conspired with England and others to

purchase marijuana for distribution.

Our conclusion is bolstered by other corroborative evi-

dence in the record. Evans was seen with England and Cargile

at the mall by at least three testifying agents. The trunk of

Evans’ car was loaded with marijuana which was paid for at

least in part by money taken from a shoulder bag belonging to

Evans. The shoulder bag was also in the car when he was

stopped. England returned Evans’ car to him and Evans was

driving in tandem with England and Wright when both cars

were stopped and all three were arrested. When Detective

Zambo explained the charge against Evans to him Evans only

response was that “maybe we are just heavysmokers.” Evans

was also not surprised when informed that his car and shoulder

bag were being confiscated because of their connection with the

marijuana transaction. Finally Detective Zambo overheard

Evans’ comment that “I don’t know how they expect me to

make $25,000 bond. They got all my money already.”

Evans argues that when the totality of the evidence is

considered it proves nothing more than his association with

some of the conspirators. He claims he was in St. Louis to

vacation. He was not at any of the meetings to discuss the deal,

nor was he at the hangar when the cars were loaded. Moreo-

ver, his name was never mentioned by any of the conspirators

at any of these times to any of the agents. Furthermore, he

argues that the DEA failed to trace any of the money used to

purchase the marijuana to him. They did not run a fingerprint

check on the money or its container nor did they check any of

10a

his bank records. He maintains that just because part of the

money came from his shoulder bag does not mean that he put

the money there. He also argues that if he had been involved in

a $40,000 drug deal he would not have stayed behind at the

mall, and he certainly would not have been as calm while he

waited. Finally he maintains that his comment about not being

able to afford bond because the officers already had his money

referred to the $700 that he brought for his vacation and which

was taken from him upon his arrest.

It is true that mere association with conspirators or knowl-

edge of a conspiracy is not sufficient to convict one of con-

spiracy. United States V. Scholle, 553 F. 2d 1109, 1118 (8th

Cir.), cert. denied, 434 U. S. 940 (1977). It is also true,

however, that “‘once the government has established the

existence of a conspiracy, even slight evidence connecting a

particular defendant to the conspiracy may be substantial and

therefore sufficient proof of defendant’s involvement in the

scheme.’ ” United States v. McCarty, 611 F. 2d 220, 223 (8th

Cir. 1979), cert. denied, 445 U. S. 930 (1980), citing, United

States v. Cox, 580 F. 2d 317, 323 (8th Cir. 1978), cert. denied,

439 U.S. 1075 (1979), quoting, United States v. Overshon, 494

F. 2d 894, 896 (8th Cir.), cert. denied, 419 U. S. 853 (1974).

The government need not dispel every possible theory of honest

behavior to obtain a conviction but its evidence must be

sufficient to convince a jury beyond a reasonable doubt of the

defendant’s guilt. United States v. Nelson, 603 F. 2d 42, (8th

Cir. 1979); United States v. Scholle, 553 F. 2d at 1119.

In reaching its decision to convict Evans the jury had

before it not only the direct testimony of England and the DEA

agents, but also the arguments and defenses of Evans. The jury

chose to believe the case presented by the government: that

Evans knowingly came to St. Louis to conspire to obtain and

did obtain marijuana with the intent to distribute it. Having

reviewed the evidence in a manner most favorable to the

government, Hamling v. United States, 418 U. S. 87, 124

lla

(1974); Glasser v. United States, 315 U. S. 60, 80 (1942); and

accepting as reasonable all inferences from the evidence that

would tend to support the verdict below, United States v.

Littlefield, 594 F. 2d 682, 684 (8th Cir. 1979), we find the

evidence sufficient to support the decision of the jury.

Prior Misconduct Testimony

In his other challenge Evans claims error in the admission

of testimony as to his prior wrongful acts.® England testified

over defendant’s objection, that he and Evans had been

involved with Cargile in a previous marijuana purchase during

the summer of 1980. The court below allowed the testimony to

explain why England called Evans concerning the marijuana

purchase involved here. Defendant now raises several objec-

tions to the ruling. He argues that the testimony was irrelevant

to the charges against him, that the court failed to determine

whether the evidence was clear and convincing that he had

participated in the prior transaction, and that the court failed to

balance the probative and prejudicial values of the evidence.

He concludes that a proper weighing of the values would lead

to a finding of overwhelming prejudice and a refusal to admit

the prior act testimony.

In previous decisions we have set out the prerequisites that

must be met for the admission of evidence of prior criminal or

wrongful acts. These requirements track the pertinent portions

® The government also sought to introduce evidence of a

drug deal involving England and Evans that occurred after the

St. Louis trip. The court, on learning of the government's

intent, refused to allow England to be questioned regarding the

subsequent transaction. Although Evans raises the fact of the

government’s attempt to introduce the evidence there is no

basis for finding error. The jury heard nothing pertaining to the

later transaction since the entire discussion occurred before the

bench and out of their hearing.

l2a

of the Federal Rules of Evidence, Rule 404(b) and 403.7 A

trial judge acts within his sound discretion in admitting evi-

dence of prior wrongful acts when (1) the evidence is relevant

to an issue in question other than that of the character of the

defendant, (2) there is clear and convincing evidence that

defendant committed the prior acts, and (3) the potential

unfair prejudice of the evidence does not substantially outweigh

its probative value. United States v. Young, 618 F. 2d 1281,

1289 (8th Cir.), cert. denied, 449 U.S. 844 (1980); United

States v. Scholle, 553 F. 2d at 121. Broad discretion is afforded

the trial judge in deciding whether to admit wrongful act

evidence and his decision will not be overturned without a clear

showing that the requirements have not been met. United

States v. Young, 618 F. 2d at 1289; United States v. Jardan, 552

F. 2d 216, 219 (8th Cir.), cert. denied, 433 U.S. 912 (1977).

Evans first contends that England’s testimony was not

relevant to any issues in the case. The prior act testimony was

elicited to explain why England called Evans in the first place

about the marijuana deal. In United States v. Scholle, we

allowed evidence of a similar nature in order to complete the

story for the jury. A coconspirator turned government witness

was allowed to testify regarding a prior drug transaction that he

had participated in and that the defendant had financed. The

testimony served to explain why the witness had again ap-

7 Rule 404(b) directs federal courts not to admit evidence

of other crimes, wrongs, or acts for the purpose of proving the

character of a defendant. Evidence of other crimes, wrongs, or

acts may be admissible for other purposes; such as for proving

“motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident” on the part of the

defendant. Rule 403 requires consideration of several other

factors before otherwise relevant evidence is admitted. Rele-

vant evidence should be withheld from the jury if it would

unfairly prejudice, confuse, or mislead the jury, unreasonably

delay the trial, or merely be cumulative evidence, and one or all

of these problems substantially outweighs the probative value

of the evidence.

l3a

proached the defendant for money to finance the drug transac-

tion at issue in the case. We ruled that the testimony not only

completed the story, but was relevant to show the defendant's

motive and his intent in giving the money to the witness.

United States v. Scholle, 553 F. 2d at 1121.

Evans maintained that he came to St. Louis to vacation,

and that he did not know that his companions, England and

Wright, were involved in a marijuana transaction. The testi-

mony of England, similar to the testimony in Scholle, was

relevant to show Evans’ motive for driving to St. Louis and that

he intended to participate in the conspiracy.® It also indicated

the marijuana was not in defendant’s car by mistake. All of

these are grounds for admitting wrongful act evidence. See

Fed. R. Evid. 404(b). “In prosecutions for violation of

narcotics laws, the defendant’s complicity in other similar

narcotics transactions may serve to establish intent or motive to

commit the crime charged.” United States v. Lewis, 423 F. 2d

457, 459 (8th Cir.), cert. denied, 400 U. S. 905 (1970). The

previous transaction that England and Evans were involved in

is similar in many respects. Not only were both involved in

each transaction, but Cargile also set up both transactions.

Marijuana was purchased both times and in quantities suffi-

ciently large to indicate an intent to distribute it.

Defendant next argues that the evidence of his participa-

tion in the summer marijuana purchase did not meet the “clear

and convincing” standard. His argument is twofold: (1) that

the court failed to determine whether his involvement was

clearly and convincingly proved, and (2) that the uncorrobo-

rated evidence of England is not clear and convincing.

8 Evans argues that the court erred in allowing the govern-

ment to introduce the prior act evidence in its case in chief.

Contrary to Evans’ assertion the government is entitled to put

this evidence on in anticipation of a defense of lack of intent.

United States v. Jardan, 552 F. 2d at 219. The government’s

anticipation certainly did not unduly prejudice Evans since he

did deny any knowledge of or intent to participate in the

conspiracy.

l4a

While it is true that the court did not make an explicit

ruling on whether the evidence of the prior act was clear and

convincing this does not end our inquiry. To require an explicit

recitation of a “clear and convincing” finding would be a

historical step backward to a time when form ruled over

substance. Defendant objected to the evidence and voiced his

reasons for the objection at bar. We assume that the court is

well aware of the standards for admitting prior wrongful act

evidence and found, albeit, implicitly that the standards had

been met. Although an explicit ruling would simplify our

review and is preferable, an implicit finding does not constitute

reversible error. Compare United States v. Trevino, 565 F. 2d

1317, 1319 (Sth Cir.), cert. denied, 435 U.S. 971 (1978).

Moreover, contrary to the second prong of defendant’s

argument the testimony of England did not require corrobora-

tion to satisfy the clear and convincing test. For example in

Jardan and in Lewis we upheld the admission of testimony of a

government informant regarding his previous drug transactions

with the defendant. In each case no other evidence of the

defendant’s previous drug activity was offered to corroborate

the testimony of the government informer. United States v.

Jardan, 552 F. 2d at 218; United States v. Lewis, 423 F. 2d at

458.9

®Other circuits have also accepted the uncorroborated

testimony of a witness as sufficient to satisfy the clear and

convincing requirement. In United States v. Trevino, the Fifth

Circuit ruled that the testimony of an accomplice did not have

to be corroborated to satisfy the requirement. The court

reasoned that if such uncorroborated testimony was sufficient to

support a conviction then it should also be sufficient to satisfy

the lesser, clear and convincing standard. United States v.

Trevino, 565 F. 2d at 1319. Likewise, the Seventh Circuit has

stated that the “[d]irect testimony of the defendant’s participa-

tion in the prior schemes is sufficient to meet the clear and

convincing standard. ... The absence of corroboration alone

will not render the testimony insufficient.” United States v.

O’Brien, 618 F. 2d 1234, 1239 (7th Cir. 1980), cert. denied, 449

U.S. 858 (1981), (citations omitted ).

15a

England’s testimony did not necessitate corroboration to

go to the jury. His testimony was unambiguous and specific.

He testified to when the transaction occurred, what substance

was involved, how much of it was involved, and who partici-

pated in the transaction. The specificity certainly opened his

testimony to rebuttal or challenge if incorrect. The trial court

did not err in assuming that the testimony of England satisfied

the clear and convincing standard.

Evans finally contends that the prejudicial nature of the

evidence substantially outweighed its probative value. He

reasons that the evidence lacked probative value because it was

not clear and convincing and was highly prejudicial because it

tended to confuse the jury. He further argues that the court

erred in failing to make a determination of value until the

redirect examination of England.

We begin with the last argument first. It is clear from the

record that the court performed the necessary balancing of

probativeness and prejudice. Evans objected to the prior act

testimony when the government first sought to introduce it on

direct examination. He called on the court to balance the

probative value and prejudicial impact of the proposed testi-

mony. The court listened to Evans’ objection and his call for

balancing before it ruled in favor of admitting the evidence.

The court reasoned that in light of Evans’ proposed impeach-

ment of England that the government was allowed to show why

England has called Evans about the St. Louis transaction. Also

in order to clarify the record the court during redirect again

weighed “the pros and cons of admitting this type of testi-

mony.” The court’s failure to use “magic” words in reaching its

decision does not constitute reversible error. United States v.

Sangrey, 586 F. 2d 1312, 1315 (9th Cir. 1978).

Finally, the record does not support defendant’s contention

that the prejudicial nature of the evidence substantially out-

weighed its probative value. The record fails to indicate any

confusion on the part of the jury, and any confusion that may

l6a

have resulted was certainly minimal. Also the evidence on its

face was not so inflamatory as to divert the jury’s attention from

the issues of the case nor was it dwelt upon by government

counsel. Furthermore, we have already rejected defendant’s

other premise that the testimony lacked probative value be-

cause it was not clear and convincing. The probative value of

England’s testimony was not substantially outweighed by any

undue prejudice.

The testimony of Edward England satisfied the require-

ments for admitting prior criminal or wrongful act evidence.

Consequently, the trial judge did not abuse his discretion in

admitting the testimony.

Affirmed.

A true copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.