Appeal from the United States District Court for the Southern District of Illinois. No. 83 CR 400054 -- James L. Foreman, Chief Judge.
Before WOOD and CUDAHY, Circuit Judges, and WRIGHT, Senior Circuit Judge.*fn*
WOOD, Circuit Judge. Defendants Larry Liefer, George Sharos, and Charles Patterson were convicted in a jury trial of conspiracy to distribute more than one thousand pounds of marijuana in violation of 21 U.S.C. § 846 (1982). The district court sentenced each defendant to eight years in prison. The defendants raise a number of issues on appeal. We affirm the judgment of the district court.
Richard Schair and Jeffrey Bayles, both unindicted co-conspirators, headed this southern Illinois marijuana distribution conspiracy. Schair was responsible for obtaining the supply of marijuana. Bayles oversaw sales and distribution. William Slater, Jeffrey Cox, Vernon Michaels, and Jim Michaels worked for Bayles. Daniel Richardson and Mel Hood were guards at the "stash house" where Bayles stored the marijuana pending distribution. Of the above, only Cox and Slater were indicted with the defendants, and both plead guilty and agreed to testify for the government. Most of the unindicted co-conspirators, including Schair and Bayles, agreed to testify for the government in return for some form of leniency.
Involved are two separate deliveries of marijuana. The first delivery, in late January or early February of 1981, totalled twenty-five hundred pounds. It took the organization approximately one week to distribute the marijuana to its customers. In March of 1981, a second delivery was received, this one of seven thousand pounds. Both shipments were carefully weighed and inventoried. Two sets of distribution records were maintained.
The three defendants in this case were tried together. The government introduced evidence that defendant Charles Patterson was a middleman who obtained large quantities of the marijuana for resale. The government alleged that a portion of Patterson's marijuana was delivered to Larry Liefer, who stored it on his farm pending subsequent distribution. The government also contended that defendant George Sharos purchased a large quantity of the marijuana from Schair and Bayles on behalf of an individual named Brian Biagini. The jury found all three defendants guilty.
Defendant Larry Liefer argues that the district court erred by admitting testimony about another crime under Fed. R. Evid. 404(b), by failing to declare a mistrial, by refusing to give an instruction on a lesser included offense, and by denying Liefer's motions for acquittal and for severance.
A. EVIDENCE OF ANOTHER CRIME
Defendant Liefer contends that the trial court erred in allowing John Shipley to testify about a time, apart from the charged conspiracy, when Shipley went to Liefer's far to pickup a large quantity of marijuana. Liefer contends that this testimony was not admissible under Fed. R. Evid. 404(b), because it was evidence of another crime not part of the charged conspiracy. Liefer objected to the testimony during a sidebar conference prior to Shipley taking the stand, but the trial court admitted the evidence over Liefer's objection.
Shipley testified that on a prior occasion, during the time period of, but not as part of, the charged conspiracy, Jack Birtwell sent him to Liefer's farm to pick up a load of marijuana that Liefer had been unable to distribute because of the marijuana's low quality. Liefer devoted much of his defense to refuting Shipley's testimony. Liefer argued that either Birtwell or Shipley had stored the marijuana on Liefer's properly without his knowledge or consent. Liefer maintained that Shipley came to pick up the marijuana because Liefer had found the marijuana and ordered Shipley to get the marijuana off his (Liefer's) property. Liefer contends that he should not have been forced to defend against these inadmissible allegations of past misconduct.
The government asserts that the evidence was admissible because proof of a conspiracy to distribute narcotics requires a showing of specific intent. Liefer argues, on the other hand, that his defense relied only on a denial that he had ever received the distribution of marijuana involved in the indictment and thus intent was not controverted. The issue, therefore, is whether the government may present other-acts evidence, regardless of whether the defendant disputes intent, knowledge, or the other bases for Rule 404(b) exceptions, as long as specific intent is a required element of the crime.
Fed. R. Evid. 404(b)*fn1 does not permit the government to introduce evidence of other acts by a defendant in order to prove the defendant's propensity to commit the crime for which the defendant is charged. United States v. Shackleford, 738 F.2d 776, 779 (7th Cir. 1984). Rule 404(b) does not bar such evidence, however, if the government offers the evidence to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Because of the potentially prejudicial nature of such evidence, see United States v. Phillips, 401 F.2d 301, 305 (7th Cir. 1968), and the danger of jury misuse, the trial court must carefully assess all evidence offered by the government under Rule 404(b) to ensure that the evidence (1) falls within a Rule 404(b) exception and (2) has probative value that is not substantially outweighed by the danger of unfair prejudice to the defendant. Fed. R. Evid. 403.
In a case such as this one, the government may want to introduce evidence of other bad acts by a defendant that are similar to the acts charged in the indictment. In Shackleford, supra, we reaffirmed the principle that Rule 404(b) does not give the government an unfettered right to introduce bad acts evidence. We laid down guidelines to ensure that the evidence presented by the government actually goes to prove matters at issue rather than the defendant's propensity to commit the crime charged. See 738 F.2d at 779.
We note initially that Liefer contends that the holding of Shackleford controls the outcome of this case. In Shackleford, we reversed the defendant's conviction because the trial court had allowed the government to introduce evidence of a prior act of extortion by the defendant. We concluded that the evidence was only probative of the defendant's propensity to commit the crime charged. 738 F.2d at 779-84. We reached such a conclusion only after carefully analyzing the government's evidence in light of the particular facts of that case, the elements of the crime charged, and Rule 404(b). Therefore, Shackleford provides us not with an answer, but rather with a method of analyzing Liefer's claim.
In Shackleford, we used a four-part test to analyze whether the trial court should have admitted evidence of the defendant's prior misconduct under Rules 404(b) and 403:
admission of evidence of prior or subsequent acts will be approved if (1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue (i.e. such that 'the consequential fact may be inferred from the proffered evidence,' 2 J. Weinstein & M. Berger, Weinstein's Evidence P404 at 404-49 (1982)), (3) the evidence is clear and convincing, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.
738 F.2d at 779. See also United States v. Arnold, 773 F.2d 823, slip op. at 15-16 (7th Cir. 1985); United States v. Chaimson, 760 F.2d 798, 804 (7th Cir. 1985); United States v. Boroni, 758 F.2d 222, 224 (7th Cir. 1985); United States v. Hyman, 741 F.2d 906, 912 (7th Cir. 1984); United States v. Kane, 726 F.2d 344, 348 (7th Cir. 1984).
The government contends that Shipley's testimony relevant to issues other than Liefer's propensity to commit the crime charged "since it showed Liefer's intent and knowledge about marijuana distribution and his plan to carry on the business by receiving and storing large quantities at his farm." Liefer argues that intent to distribute marijuana was merely a formal issue at trial, because if he conspired with a group possessing over one thousand pounds of marijuana, his intent to help distribute it was clear. Liefer contends that because his defense was based upon a denial that he ever possessed the marijuana, Shackleford must control. See 738 F.2d at 781 (intent must be more than a formal issue).
In Shackleford, however, the government did not need to produce evidence of the defendant's intent unless the defendant raised lack of intent as a defense, because specific intent was not an essential element of the offense of attempting to collect a debt by use of extortionate means in violation of Title 18, U.S.C. § 894(a) (1976). In Liefer's case, the government had to prove that the defendants conspired together, 21 U.S.C. § 846, to distribute, with intent to distribute, marijuana in a quantity in excess of 1,000 pounds, 21 U.S.C. § 841(a)(1) (emphasis added).*fn2
As we noted in Shackleford, this circuit has
distinguished between situations in which intent is in issue because the government must show specific intent as an essential element of the crime and when intent is only a formal issue that can be inferred from the act. When the crime charged requires proof of specific intent, we have held that, because it is a material element to be proved by the government, it is necessarily in issue and the government may submit evidence of other acts in an attempt to establish the matter in its case-in-chief, assuming the other requirements of Rules 404(b) and 403 are satisfied.
738 F.2d at 781. The decision in Shackleford, therefore, applies only to crimes that do not include an element of specific intent. Intent is never merely a "formal issue" when the defendant is charged with a specific intent crime.
In United States v. Weidman, 572 F.2d 1199 (7th Cir.), cert. denied, 439 U.S. 821, 58 L. Ed. 2d 113, 99 S. Ct. 86 (1978), the government had to establish the defendant's specific intent to defraud in order to prove mail fraud. We held that the government was entitled to introduce evidence of prior similar bad acts even though the defendant had not disputed intent. 572 F.2d at 1202. In United States v. Chaimson, 760 F.2d 798 (7th Cir. 1985), we rejected an argument similar to the one Liefer raises here. In Chaimson we held that a defendant charged with a specific intent crime could not prevent the government from introducing other-acts evidence to prove intent by denying that he committed the act itself and conceding the intent issue. Id. at 805-808 (rejecting Second Circuit cases that allowed the defendant to concede intent and thereby exclude other-acts evidence); cf., id. at 813 (Cudahy, J., concurring) (government should not be allowed to flood the courtroom with other-crimes evidence simply because the crime was one of specific intent). See also Arnold, slip op. at 16 (reaffirming this rule). In Liefer's case, specific intent to distribute as an essential element of the crime, and therefore intent was not merely a formal issue as its was in Shackleford. Because the government charged Liefer with a specific intent crime, it had the right to present other-acts evidence regardless of Liefer's attempt to concede the issue. There was no courtroom other-crimes flood.*fn3
Having decided that Shipley's testimony was "directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged," we also conclude that the testimony satisfies the second Shackleford requirement. The other-crime evidence was sufficiently similar to the crime charged in that Shipley testified that Liefer had stored the marijuana on this farm while waiting to distribute it, a modus operandi similar to that charged in the indictment. The other act was undoubtedly close enough in time, for it occurred within the time period of the conspiracy.
Liefer contends that the evidence fails the "clear and convincing" requirement because Shipley's testimony pertained to a return of the marijuana to Birtwell, not a distribution. We do not find this argument convincing. Shipley clearly testified that Liefer returned the marijuana because Liefer could not distribute it (because of low quality). The purpose of the "clear and convincing" standard is to ensure that the government's evidence directly establishes that the defendant participated in a prior crime (or misconduct), and to protect the defendant from evidence based upon "highly circumstantial inferences." Chaimson, 760 F.2d at 807, quoting United States v. Dolliole, 597 F.2d 102, 107 (7th Cir.), cert. denied, 442 U.S. 946, 99 S. Ct. 2894, 61 L. Ed. 2d 318 (1979); see also Hyman, 741 F.2d at 193 (direct, unimpeached testimony is clear and convincing). But cf. Boroni, 758 F.2d at 225 (uncorroborated and vague allegations of immunized witness fall short of clear and convincing). Shipley's testimony was admissible, therefore, because it was directly probative of Liefer's intent to distribute.
Finally, Liefer contends that "any probative value of Shipley's testimony was far outweighed by its prejudicial impact particularly in view of the fact that the Trial Court gave no limiting instruction with regard to Shipley's testimony." First of all, none of the defendants tendered a limiting instruction or requested one at the time of Shipley's testimony, despite the fact that a lengthy sidebar shortly before Shipley testified made it clear that all the parties were aware of what Shipley would say. We will only reverse the trial court for failing to give an unrequested instruction if the failure is ...