Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1989)

MEMORANDUM^* 

Robert George Boeckman appeals his conviction for conspiracy to use interstate commerce facilities in the commission of murder for hire, 18 U.S.C. §§ 371, 1952(a) (1982); causing others to travel in interstate commerce with the intent that a murder be committed and with the result of causing serious injury to Robert Lincoln Barr, 18 U.S.C. §§ 1952(a), 1952(A) (a) and 2 (1982 & Supp. IV 1986); and soliciting Vernon Earl James to commit a murder for hire, 18 U.S.C. §§ 2, 373(a) (1982 & Supp. IV 1986). Boeckman argues that the trial court abused its discretion in admitting evidence of his activities in operating several oil corporations, and deprived him of his sixth amendment confrontation rights by restricting cross examination of two prosecution witnesses.

Facts

In February 1983, Robert George Boeckman, the defendant, and his son Robert Brian Boeckman (Brian) began operating three corporations for the purpose of drilling 21 oil wells around Kingfisher, Oklahoma. According to evidence presented by the government, the Boeckmans took the unusual step of hiring companies to drill and service the wells on credit, instead of first securing investors to cover the costs of the project. The Boeckmans distributed the debt among the three corporations, while assuring their creditors that each corporation was adequately funded by investors. Within three months, the Boeckmans' corporations incurred over $4 million in debt.

Robert Lincoln Barr was one of the major creditors of these corporations. When his bills went unpaid, he took the lead in investigating the corporations' solvency. In April 1985, he ultimately filed a suit against Robert and Brian Boeckman in their individual capacities. According to the government, Boeckman conspired to murder Barr in order to prevent him from proceeding with his lawsuit.

At trial, the district court allowed the government to introduce evidence regarding the Boeckmans' oil drilling activities, including evidence tending to prove that the Boeckmans had set up the corporations to defraud creditors and that the creditors lost at least two-thirds of the money owed them.

Discussion

A. Boeckman maintains that the evidence relating to his allegedly fraudulent oil drilling activities and to his creditors' loss of their investment was highly prejudicial and irrelevant to the charges for which he was on trial. He argues that the evidence should have been excluded under Federal Rules of Evidence 404(b) and 403. Furthermore, Boeckman contends that the district court erred in failing to give an instruction limiting the purposes for which the jury could consider evidence of his oil drilling activities.

Whether the evidence regarding Boeckman's oil drilling activities was "other acts" evidence is a question of law which we review de novo. United States v. Soliman, 813 F.2d 277, 278 (9th Cir. 1987). We review for abuse of discretion a trial court's balancing of the probative value of evidence against its prejudicial harm. United States v. Bowen, 857 F.2d 1337, 1341 (9th Cir. 1988). The district court's refusal to give a limiting instruction is also reviewed for abuse of discretion. Soliman, 813 F.2d at 278.

We have held that " [e]vidence 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.' " Soliman, 813 F.2d at 278 (citation omitted). See also United States v. Champion, 813 F.2d 1154, 1172-73 (11th Cir. 1987) (evidence that defendant was in prison at certain times during the conspiracy was admissible because it was necessary " ' [t]o make the crime comprehensible to a jury.' "); United States v. Weeks, 716 F.2d 830, 832 (11th Cir. 1983) (evidence is not extrinsic if it arose out of the same transaction or series of transactions as the charged offense or is necessary to complete the story of the crime).

In overruling the defendant's objections to testimony concerning his oil drilling operations, the district court explained why a description of the rise and fall of Boeckman's oil corporations was "necessary to complete the story of the crime," Weeks, 716 F.2d at 832, and indeed was of crucial importance to the government's case:

The government's theory of the case is essentially that ... Barr reasonably believed that [Boeckman's three corporations] were shell corporations and was therefore trying to get at in his lawsuit the personal assets of Mr. Robert Boeckman, and that when Robert Boeckman found himself the victim of a lawsuit where his personal assets could be caught, is what prompted him to get Brian [Boeckman] to get people to pull off a hit [i.e., to murder Barr]. So therefore I am going to overrule [defendant's objection.]

Reporter's Transcript (RT) at 381. We agree that the prosecutor needed to show the collapse of Boeckman's oil drilling corporations and the subsequent lawsuits in order to clarify the relationship between Boeckman and Barr and explain the reasons for the attempted murder. Under these circumstances, the evidence of Boeckman's oil drilling activities was "inextricably intertwined" with evidence regarding the charged crimes, and was admissible as part of the prosecutor's case.

Nor did the district court abuse its discretion by refusing to exclude the evidence under Federal Rule of Evidence 403. The district court need not recite the Rule 403 formula if " 'it appears from the record as a whole that the trial judge adequately weighed the probative value and prejudicial effect of proffered evidence before its admission.' " United States v. Morris, 827 F.2d 1348, 1350 (9th Cir. 1987) (citing United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir. 1978)), cert. denied, 108 S. Ct. 726 (1988). As noted, the district court was correct in assessing the high probative value of the evidence to the government's case. "In balancing the probative value of evidence against the danger of unfair prejudice, the trial court should also consider the need for evidence of prior criminal conduct to prove a particular point." United States v. Bailleaux, 685 F.2d 1105, 1112 (9th Cir. 1982); see also United States v. Benton, 637 F.2d 1052, 1057 (5th Cir. Unit B 1981) ("an important factor relating to probative value is the government's need for the evidence in proving its case.") On the other hand, the prejudicial effect of the evidence was minimal. A jury would be unlikely to infer that Boeckman's willingness to deceive his creditors made him more likely to be a murderer.

Boeckman contends that even if some of the evidence regarding his oil drilling scheme were admissible, the district court abused its discretion in admitting all of the government's evidence. He relies on United States v. Green, 648 F.2d 587, 593 (9th Cir. 1981), in which we held that the district court erred by "open [ing] the floodgate to allow complete development" of the defendants' prior criminal activities. In Green, however, the evidence erroneously admitted "either did not address a contested issue or was of such inconsequential probative significance that it was improper to admit it." Id. Green approved the admission of evidence which was "a foundational prerequisite to establishing the charges of conspiracy," or which was "highly probative of opportunity, i.e., capacity, knowledge and even motive." Id. The evidence admitted in this case precisely fulfilled these functions: it provided the foundation necessary for understanding the reasons and motives for the conspiracy to murder Barr.

Finally, Boeckman claims that the district court erred by failing to instruct the jury that it could consider the evidence of Boeckman's drilling activities only for a limited purpose. Because Boeckman did not ask for such a limiting instruction, the failure of the trial court to give such an instruction sua sponte is not reversible error. See United States v. Multi-Management, Inc., 743 F.2d 1359, 1364 (9th Cir. 1984); United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir. 1978).

B. Boeckman contends that by limiting his cross examination of J. Riley Morgan and Brian Boeckman, two key prosecution witnesses, the court deprived him of his sixth amendment right of confrontation. We review the trial court's decision to limit the scope of cross examination for abuse of discretion. United States v. Bonanno, 852 F.2d 434, 439 (9th Cir. 1988). "Generally, once cross-examination reveals sufficient information with which to appraise a witness's possible bias and motives, confrontation demands are satisfied." Id. Our review of the trial transcript leads us to the conclusion that Boeckman's contentions are meritless: The defense attorney had sufficient opportunity to expose the biases and motives of prosecution witnesses; and the district court was well within its broad discretion in sustaining the prosecutor's objections.

AFFIRMED.