Unpublished Disposition, 904 F.2d 41 (9th Cir. 1989)

MEMORANDUM^* 

Daniel Lee Anderson appeals from his conviction, following a jury trial, for five counts of distribution of cocaine, in violation of 21 U.S.C. § 841(a) (1).

PERTINENT FACTS

On November 9, 1988, Anderson was charged in a twelve-count indictment with distributing cocaine over a three-year period from 1984 to 1987. Eleven of the twelve counts of the indictment involved sales of one-half to one gram of cocaine to Robert Clary, a Portland police sergeant who purchased for personal use. The twelfth count involved a sale of three and one-half grams of cocaine to Duane Whitesides. Clary purchased cocaine on numerous other occasions from Anderson. Whitesides purchased cocaine on three other occasions from a person known to him as "Dan" or "Danny."

Count one involved Clary's first purchase of cocaine from Anderson. The dates of the sales charged in counts two through eleven of the indictment corresponded to withdrawals from Clary's bank account via two automatic teller machines located in the neighborhood of Anderson's house. The government's theory was that Clary used these automatic teller machines to obtain cash for his purchases of cocaine. Because Clary could not remember the specific dates on which he had made purchases, the Government introduced Clary's bank records to establish the dates Anderson sold cocaine to him.

Count twelve of the indictment alleges that Anderson sold cocaine to Duane Whitesides. Whitesides testified that he reached a person who identified himself as "Dan" or "Danny" by calling a pager number. Thereafter, he went to Anderson's house to purchase three and one-half grams of cocaine. Because the government could not locate the "photographic throwdown" by which it claimed Whitesides had identified Anderson during the course of the investigation, the district court suppressed Whitesides' in-court identification of Anderson. Whitesides, however, was permitted to testify that he went to a house at 4605 N.E. 118 Avenue where he purchased cocaine from a person named "Dan" or "Danny." The representative of a local utility testified that a Daniel Lee Anderson was identified in its records as receiving service at the house at the time of this sale.

The jury returned a verdict of guilty on counts one, eight, ten, eleven, and twelve on March 10, 1989. Anderson filed a motion for a judgment of acquittal or, in the alternative, for a new trial. The district court denied the motions on May 25, 1989. Anderson has timely appealed.

DISCUSSION

I. Admissibility of Testimony Concerning Other Crimes

At trial, Anne Coffey, Karen Moir, and Susan Wright testified that each had been present when Clary had purchased the cocaine from Anderson at his residence between the summer of 1984 and the spring of 1987. Anderson was charged in the indictment with selling cocaine to Clary during that time period. None of the witnesses could identify the specific dates of the transactions. Anderson contends that this testimony is inadmissible character evidence precluded under Fed.R.Evid. 404(b). The government asserts that the testimony is direct evidence of the crimes charged in the indictment.

"Evidence should not be treated as 'other crimes' evidence when 'the evidence concerning the ["other"] act and the evidence concerning the crime charged are inextricably intertwined.' " United States v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987) (quoting United States v. Aleman, 592 F.2d 881, 885 (5th Cir. 1979)). Thus, "to the extent that evidence of prior and subsequent negotiations and illicit transactions bears on the issue of a defendant's intent to [perpetrate] the specific criminal act charged in the indictment, such evidence can be used to convict a defendant...." United States v. Smith, 832 F.2d 1167, 1170 (9th Cir. 1987) (evidence of sales and negotiations of other cocaine sales admissible against defendant charged with aiding and abetting). As this court has noted, the policies underlying rule 404(b) " 'are simply inapplicable when some offenses committed in a single criminal episode become "other acts" because the defendant is indicted for less than all of his actions.' " United States v. Soliman, 813 F.2d at 279 (quoting United States v. Aleman, 592 F.2d 881, 885 (5th Cir. 1979)).

In this case, Anderson made approximately fifty sales of cocaine to Clary during the time period covered by the indictment. Numerous sales were made when Clary was in the company of each of the three women during the same time period. These latter sales were "inextricably intertwined" with the specific sales charged in the indictment. The district court did not abuse its discretion by admitting Wright, Moir, and Coffey's testimony regarding the sales to Clary.

B. As Indirect Evidence of An Element of the Charged Crime

Coffey also testified that she had made purchases from Anderson for her own use during the time period for which Anderson was charged with selling cocaine to Clary. She described the manner in which the cocaine was packaged and the price she paid for the cocaine. The district court admitted this evidence over Anderson's objection that it was "other act" evidence under Fed.R.Evid. 404(b).

Evidence of prior acts to prove intent is admissible if (1) proof that the defendant committed the other crime is clear and convincing; (2) the prior criminal conduct is not too remote in time from the commission of the crime charged; (3) the prior criminal conduct is similar to the offense charged; and (4) the prior criminal conduct is introduced to prove an element of the charged offense that is a material issue in the case. United States v. Bailleaux, 685 F.2d 1105, 1110 (9th Cir. 1982). The evidence of Anderson's sales to Coffey satisfies these prerequisites for admission. Intent is an element of a violation of 21 U.S.C. § 841(a) (1). The evidence showed that Anderson knowingly distributed cocaine. The sales to Coffey were substantially contemporaneous, and were established by clear and convincing evidence. Moreover, the evidence of Anderson's sales to Coffey was more probative of Anderson's intent than prejudicial to him. See Fed.R.Evid. 403. Accordingly, the evidence of Anderson's sales to Coffey was admissible to prove that Anderson intentionally distributed cocaine to Clary.

II. Admissibility of the Portland Police Bureau Internal Affairs File

Anderson filed a subpoena duces tecum to permit him to inspect the Portland Police Bureau internal affairs investigation of Clary. He argued that access to such evidence was necessary to permit him to impeach Clary. The district court quashed the subpoena duces tecum on motion by the City of Portland. Anderson argues that the order quashing the subpoena denied him his right to use the compulsory process of the court to obtain evidence for his defense.

We review the grant of a motion to quash a subpoena for abuse of discretion. United States v. Polizzi, 801 F.2d 1543, 1551 (9th Cir. 1986). The denial of compulsory process to obtain evidence is analyzed under the standard of review applied to determine the fundamental fairness of trials. Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987). Under the due process clause, the government has the duty to disclose evidence in its possession that is material to guilt or punishment. Id. (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). " 'Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.' " Id. at 57 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Evidence relating solely to the credibility of a government witness may be material. United States v. Whitworth, 856 F.2d 1268, 1276 (9th Cir. 1988), cert. denied, 109 S. Ct. 1541 (1989).

The trial court properly determined the materiality of the internal affairs file in camera. Pennsylvania v. Ritchie, 480 U.S. at 60. The trial court concluded that it was not required to release the internal affairs file because it was not material. United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir. 1988), cert. denied, 109 S. Ct. 1170 (1989). We have conducted an independent review of the internal affairs file. It does not contain evidence that is material to the defense. The district court did not abuse its discretion in quashing the subpoena.

Anderson also asserts the district court erred by refusing to call Lt. Heisler to the stand. Anderson's sole purpose in seeking Lt. Heisler's appearance as a witness was to question her about the content of the internal affairs file. Because the content of the internal affairs file was not material, the district court did not abuse its discretion in refusing to call Lt. Heisler to the stand.

Anderson challenges the district court's limitation of his cross-examination. Evidentiary rulings are generally reviewed for abuse of discretion. United States v. Komisaruk, 885 F.2d 490, 492 (9th Cir. 1989). " [A] defendant does not possess an unlimited right to ' "cross-examination that is effective in whatever way, and to whatever extent, [he] might wish." ' " Id. at 495 (quoting Evans v. Lewis, 855 F.2d 631, 634 (9th Cir. 1988) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985))). The trial court may exclude evidence on cross-examination "that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). However, " [i]t is an abuse of discretion if the trial court limits cross-examination before 'the jury ha [s] in its possession sufficient information to appraise the biases and motivations of the witness.' " United States v. McClintock, 748 F.2d 1278, 1290 (9th Cir. 1984) (quoting United States v. Bleckner, 601 F.2d 382, 385 (9th Cir. 1979)), cert. denied, 474 U.S. 822 (1985). Such errors are subject to the harmless error standard. Delaware v. Van Arsdall, 475 U.S. at 684.

A. Cross-Examination of Officer Clary Concerning Alleged Agreement Not to Testify Against Others

Anderson sought to question Clary regarding the use of cocaine by other police officers and any agreements about that testimony that Clary made with the prosecution. The district court sustained an objection because of lack of relevance.

Anderson's theory of relevance is that Clary had made an agreement not to testify against other police officers, motivated in part by a fear of reprisals. He argues that, by testifying against Anderson, Clary fulfilled the agreement and thus had a strong incentive to fabricate his testimony. The record shows, however, that Anderson was permitted to cross-examine Clary. Clary denied the existence of such an agreement.

The district court also sustained objections to the cross-examination of Susan Wright and United States Attorney Charles Turner regarding the use of cocaine by other Portland police officers. These questions were at best marginally relevant to Anderson's sales of cocaine to Clary and Whitesides. The district court did not abuse its discretion in limiting this cross-examination.

B. Cross-Examination of Clary Concerning Other Sources of Cocaine

Anderson contends the district court limited his questioning of Clary concerning other persons who sold cocaine to him. Our review of the trial transcripts discloses that Anderson pursued this subject matter on cross-examination. He asked several questions without objection from the government, and then moved on to a different line of attempted impeachment. We cannot review this contention because of the absence of an adverse ruling or plain error. United States v. Young, 470 U.S. 1, 15 (1985).

C. Cross-Examination of IRS Agent Welch Concerning Intimidation of a Witness

Susan Wright testified on cross-examination that she felt intimidated by IRS Agent Timothy Welch, who interviewed her during the course of the investigation. On direct examination of Welch, the government questioned Welch about his investigation, including his interrogation of Whitesides. On cross-examination, Anderson's defense counsel asked Welch about his interview with Wright. The government objected that the questions were beyond the scope of direct. Outside the presence of the jury, Anderson's attorney made an offer of proof that Welch had intimidated Wright. The court permitted defense counsel to question the witness outside the jury's presence. Welch testified that he did not know if he intimidated Wright or if Wright felt intimidated by his questioning. Thereafter, the court sustained the objection.

The district court's ruling was erroneous. Intimidation of a witness by an investigating officer is relevant impeachment evidence of his bias, or interest in the outcome of the action. See Evans v. Lewis, 855 F.2d 631, 633-34 (9th Cir. 1988) ("The extent of cross examination must be sufficient to allow the jury to ... ' "appraise the biases and motivations of the witness." ' ") (quoting United States v. McClintock, 748 F.2d 1278, 1290 (9th Cir. 1984) (quoting United States v. Bleckner, 601 F.2d 382, 385 (9th Cir. 1979)), cert. denied, 474 U.S. 822 (1985)). Thus, the testimony was admissible, although outside the scope of direct examination. However, any error in limiting Anderson's cross-examination of Welch was harmless. The court's ruling left Wright's intimidation testimony unchallenged.

Anderson objects to two discovery rulings made by the district court. We review rulings on discovery requests for abuse of discretion. United States v. Iglesias, 881 F.2d 1519, 1523 (9th Cir. 1989), cert. denied, 110 S. Ct. 1154 (1990).

On February 1, 1989, Anderson filed a motion to unseal the affidavit used as the basis for the issuance of warrant for the search of his residence. The search was conducted in August or September 1987. The search did not produce any narcotics, but did yield an address book. The government opposed Anderson's motion, stating that it did not intend to use the fruits of the search in its case-in-chief. The government also stated that "revealing the contents of the affidavit would unnecessarily interfere with investigations that are still under way."

The court reviewed the affidavit in camera and denied the motion, having satisfied itself that the government did not intend to "use evidence obtained in or derived from the search of Anderson's residence in its case in chief." We have independently reviewed the affidavit. It does not contain material relevant to this case. The affidavit was not discoverable under the Jencks Act, 18 U.S.C. § 3500, or Brady v. Maryland, 373 U.S. 83 (1963).

Anderson sought discovery of any statement of persons interviewed by investigative agents "which in any way indicates that other persons may have committed, or aided in the commission of," the crimes with which Anderson was charged. On February 10, 1989, the district court ordered the disclosure "of certain grand jury transcripts of witnesses intended to be called by the government." All but approximately twenty pages of Anne Coffey's federal grand jury testimony was disclosed. On March 8, 1989, after the second day of trial, the government gave Anderson's attorney an additional twenty pages of Anne Coffey's grand jury testimony. Anderson contends that this testimony was material to his defense pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and that the late production of the transcripts violated his due process rights.

We review de novo challenges to a conviction based on an asserted Brady violation. United States v. Kennedy, 890 F.2d 1056, 1058 (9th Cir. 1989), cert. denied, 110 S. Ct. 1308 (1990). Under Brady, the prosecutor has a duty to disclose to a defendant "information that is favorable to an accused 'where the evidence is material to either guilt or punishment.' " Id. (quoting United States v. Bagley, 473 U.S. 667, 683 (1985)).

Anderson must demonstrate prejudice from a delay in releasing this material. See United States v. Spillone, 879 F.2d 514, 522 (9th Cir. 1989) (discussing the need for a showing of prejudice resulting from delay). Although " [d]isclosure, to escape the Brady sanction, must be made at a time when the disclosure would be of value to the accused," a defendant is not prejudiced when he is able to use the information to cross-examine the relevant witnesses. United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985) (holding that the government's delay in releasing relevant information did not violate due process because the defendant had access to exculpatory evidence from the outset of trial and employed it in cross-examining witnesses). Release of Brady material after the commencement of trial does not constitute a due process violation when the defendant is able to use it effectively in cross-examination. United States v. Browne, 829 F.2d 760, 765 (9th Cir. 1987), cert. denied, 485 U.S. 991 (1988).

Anderson did not request a continuance after receiving and reviewing the entire transcript of Coffey's grand jury testimony. Furthermore, he cross-examined Coffey thoroughly after receiving the transcripts. Anderson has failed to demonstrate any prejudice from the government's delay in releasing Coffey's federal grand jury testimony.

Anderson also asks this court to review the entire transcripts of the grand jury testimony of Susan Wright and Duane Whitesides to determine whether the portions not disclosed by the government relate to the direct testimony of those witnesses.¹  The district court determined, after an in camera review, that the government was not required to produce the excised testimony under the Jencks Act, 18 U.S.C. § 3500(b). We review a district court's application of the Jencks Act for abuse of discretion. United States v. Whitworth, 856 F.2d at 1276.

Our independent review of the excised testimony satisfies us that it did not relate to Wright's and Whitesides' direct testimony. The district court did not abuse its discretion in limiting the disclosure of Wright's and Whitesides' federal grand jury testimony.

The government offered records of automatic teller withdrawals to corroborate Clary's testimony regarding cocaine sales and to fix the dates of the sales to match the counts charged in the indictment. Anderson challenges the district court's admission of the bank records on the bases of authentication and hearsay.

A district court's finding of sufficiency of authentication is reviewed for an abuse of discretion. United States v. Vasquez, 858 F.2d 1387, 1392 (9th Cir. 1988), cert. denied, 109 S. Ct. 1161 (1989). A business record is admissible under Fed.R.Evid. 803(6) if it is properly authenticated under Fed.R.Evid. 901 by proving: "(1) the writing is made or transmitted by a person with knowledge at or near the time of the incident recorded, and (2) the record is kept in the course of regularly conducted business activity." United States v. Miller, 771 F.2d at 1237. "These facts must be proved through the testimony of the custodian of the records or other qualified witness, though not necessarily the declarant." Id. The record is admissible only if the source of the information or the method or circumstances of its preparation indicate trustworthiness. Id.

A custodian of the bank's records testified that the challenged statements were kept in the regular course of business, and reflected the account activity. Anderson contends that the custodian's testimony was not based on personal knowledge because he did not examine the original microfiche from which the records were derived, and, therefore, the authentication was deficient. Computer-generated records, however, may be authenticated by " 'one who has knowledge of the particular record system.' " United States v. Miller, 771 F.2d at 1237 (quoting Fed.R.Evid. 803 notes of Comm. on the Judiciary, S.Rep. No. 1277, 93d Cong., 2d Sess. 17 (1974)). The custodian had knowledge of the bank's record system. The bank statements were admissible under the business records exception of Fed.R.Evid. 803(6). The district court did not abuse its discretion in determining that the authentication was sufficient.

Anderson also contends that the district court erred in admitting the bank statements over his hearsay objection. A district court's ruling to admit evidence over a hearsay objection is reviewed for abuse of discretion. United States v. Kirk, 844 F.2d 660, 663 (9th Cir.), cert. denied, 109 S. Ct. 222 (1988).

Although hearsay, the banks statements were admissible under the business records exception pursuant to Fed.R.Evid. 803(6). The district court did not abuse its discretion in overruling Anderson's hearsay objection.

Anderson challenges the sufficiency of the evidence to sustain his conviction on count twelve of the indictment. He contends that the government failed to present sufficient evidence to prove that he was the person who sold cocaine to Whitesides at 4605 N.E. 118th Avenue in Portland, Oregon. We disagree.

Evidence to support a conviction is sufficient if, reviewing the evidence in the light most favorable to the prosecution, " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1988) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)) (emphasis in original). Identity may be proved by circumstantial evidence and the inferences drawn from it. See United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 110 S. Ct. 179 (1989).

Whitesides testified that he was told that a person named "Dan" or "Danny" Anderson was a person from whom he could buy cocaine. Whitesides was told to call a "beeper number" to contact "Dan" or "Danny". In a telephone conversation, Whitesides arranged to purchase cocaine from a person who identified himself as "Dan." Whitesides was told to go to a residence located on 118th Avenue. Whitesides made a purchase of cocaine from a person who identified himself as "Dan" at that location.

Larry Gaydon, the Customer Office Supervisor for Pacific Power & Light, testified that a computer search of the company's service records revealed that a Dan L. Anderson received service at 4605 N.E. 118th Avenue between December 16, 1985 and June 16, 1987. Clary testified that appellant Daniel Lee Anderson sold cocaine to him at the house located at 4605 N.E. 118th Avenue between the summer of 1984 and March 13, 1987, as charged in counts one through eleven of the indictment.

Evidence of the identity of the person charged in one count of an indictment is admissible to prove that the accused was the perpetrator of the crime alleged in a separate count, pursuant to Fed.R.Evid. 404(b). United States v. Johnson, 820 F.2d 1065, 1070-71 (9th Cir. 1987). The evidence of Anderson's sales to Clary satisfies the prerequisites for admission under Fed.R.Evid. 404(b) established in United States v. Bailleaux, 685 F.2d at 1110. Identity was the primary issue in count twelve. The evidence showed that the sales to Clary were made by Anderson from his house located on 118th Avenue. The sales to Clary were substantially contemporaneous, and were established by clear and convincing evidence. Moreover, the evidence of other sales was more probative of Anderson's identity than prejudicial to Anderson. See Fed.R.Evid. 403. Accordingly, the evidence of Anderson's cocaine sales to Clary at the house located on 118th Avenue was admissible to prove that the same person sold cocaine to Whitesides.

Anderson failed to request a specific instruction limiting the jury's consideration of Clary's testimony. Accordingly, he has waived this issue on appeal. United States v. Jenkins, 785 F.2d 1387, 1396 (9th Cir. 1986). The jury instructions focused the jury's attention on its duty to consider only the crimes charged in the indictment in light of the evidence proving the necessary elements of those crimes. See United States v. Soliman, 813 F.2d at 279 (general charge to jury that defendant is not on trial for any act not alleged in indictment is sufficient); United States v. Walls, 577 F.2d 690, 697 (9th Cir.) (same), cert. denied, 439 U.S. 893 (1978). Anderson's failure to request a specific limiting instruction did not result in plain error. United States v. Walls, 577 F.2d at 697.

We are persuaded by our review of the evidence that a rational trier of fact could have been convinced beyond a reasonable doubt that Anderson was the person who sold cocaine to Whitesides.

CONCLUSION

The judgment is AFFIRMED.