Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. H CR 78-105 -- Allen Sharp, Judge.
Before Pell and Bauer, Circuit Judges, and Crowley, District Judge.*fn*
In these consolidated appeals from their convictions after a joint trial on charges involving the interstate transport and sale of stolen automobiles, the defendants contend that they were by various means denied a fair trial. Specifically, defendant Richard Murzyn argues that he was deprived of a fair trial by the introduction of evidence of his past misconduct to prove his predisposition to commit the crimes charged and to negate his defenses of coercion and entrapment; by the omission of an instruction on the pertinence of the past misconduct evidence; by an erroneous instruction on the co-conspirator hearsay rule; by various instances of prosecutorial misconduct and trial court errors; by the inadequacy of the representation afforded him by counsel; and by the admission of evidence concerning eight acts of intrastate auto theft charged as overt acts in the indictment's conspiracy count. Defendant Russell Hall contends that he was deprived of a fair trial by the denial of his motion for severance and by the trial court's comment on a piece of identification evidence. We find the trial to have been fair and free of prejudicial error.
This case arose out of an undercover investigation conducted between April and September of 1978 concerning the trade in stolen, late-model, luxury cars in northern Indiana. The investigation, which was centered in Hammond, Indiana, was run jointly by the Federal Bureau of Investigation and the Indiana State Police.
On May 8, 1978, Indiana State Police officer Joseph Fitch, then posing in an undercover role as Joe Fields, a stolen car fence from southern Indiana, was introduced to defendant Murzyn by Louis Ferguson, a paid police informant with an extensive criminal record and a long-time acquaintance of Murzyn's. According to testimony by Fitch and Ferguson, which Murzyn disputed at trial in his own direct testimony, Murzyn offered at this meeting to supply Fitch with stolen cars. The remainder of the government's case was largely devoted to evidence concerning a series of preliminary meetings and negotiations between Fitch and Murzyn, the fruition of these negotiations in the separate delivers to Fitch of ten stolen Lincolns and Cadillacs, and the ultimate apprehension and arrest of Murzyn and of two persons alleged to have stolen the cars and delivered them to Fitch while in Murzyn's employ. One of these two persons was defendant Hall.*fn1
Murzyn's defense at trial centered on an effort to prove that one John Stechalski, then deceased, had been the leader of the car theft ring and that Murzyn had merely undertaken the role of go-between for Fitch and Stechalski because he feared for his life. Specifically, Murzyn sought to show that various statements and actions by informant Ferguson and by Fitch caused him to believe that if he did not aid Fitch in securing stolen cars he might be seriously harmed either by Fitch or by a supposedly dangerous friend of Ferguson named Ray Sanders. Hall's defense was that of mistaken identification.
The jury found Murzyn guilty on each count of the seven-count indictment: He was convicted on three counts of interstate transportation of stolen vehicles in violation of 18 U.S.C. § 2312, on three counts of interstate sale of stolen vehicles in violation of 18 U.S.C. § 2313, and on one count of conspiracy to commit the above crimes in violation of 18 U.S.C. § 371. Murzyn was sentenced to a total of sixteen consecutive years of imprisonment and was fined $21,000.
Hall had been charged only with two counts of interstate transport and two counts of interstate sale of stolen vehicles and with conspiracy. He was convicted by the jury on those counts and was sentenced to five years of imprisonment each count, the sentences to run concurrently.
Murzyn first contends that his defense was prejudiced and his trial rendered fundamentally unfair by the government's introduction of evidence of his prior misconduct to prove that he had not been entrapped or coerced. The evidence complained of is that Murzyn once put a gun to the head of a federal agent then working undercover and asked, "Are you a fed?"; that he solicited Fitch's and Ferguson's services for the assassination of one Bruce Green, whom he purportedly described as a "nigger drug pusher" who was interfering with Murzyn's drug trade; that he used both crude sexual slang and derogatory racial slang; that he told Fitch that he had stolen trees from a nursery, shrubbery from a cemetery, and a cupola from a construction site; that he offered to produce Stechalski for Ferguson and Fitch so that they could beat him up, that he said he had obtained stolen rifles from Stechalski; and that he displayed a shotgun to Fitch and once, without explanation, fired five rounds from a rifle into a lake in Fitch's presence.
The seminal statement concerning the use of prior misconduct or other character evidence to demonstrate predisposition and thus rebut a defense of entrapment appears in Sorrells v. United States, 287 U.S. 435, 451-52, 53 S. Ct. 210, 216, 77 L. Ed. 413 (1932):
The predisposition and criminal design of the defendant are relevant. But the issues raised and the evidence adduced must be pertinent to the controlling question whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials. If that is the fact, common justice requires that the accused be permitted to prove it. The government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused, and if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue. If in consequence he suffers a disadvantage, he has brought it upon himself by reason of the nature of the defense.
Since Sorrells, appellate courts have endeavored to impose "appropriate" and reasonable restraints on the use of character evidence to prove predisposition. The resulting rulings reflect the approach to character evidence taken in the Federal Rules of Evidence*fn2 and hold, as a general proposition, that character evidence may be used to prove predisposition, if its probative value outweighs its potential for unfair prejudice. See, e.g., United States v. Ambrose, 483 F.2d 742, 748 (6th Cir. 1973); United States v. Johnston, 426 F.2d 112, 114 (7th Cir. 1970); Hansford v. United States, 112 U.S. App. D.C. 359, 303 F.2d 219, 225-26 (D.C.Cir.1962) (in banc); see also United States v. Brown, 453 F.2d 101, 108 (8th Cir. 1971), cert. ...