United States v. Daniel Gilbert Brown

327 F.3d 867, 61 Fed. R. Serv. 150, 2003 Daily Journal DAR 4476, 2003 Cal. Daily Op. Serv. 3496, 2003 U.S. App. LEXIS 7928, 2003 WL 1949551
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 25, 2003
Docket01-30261
StatusPublished
Cited by27 cases

This text of 327 F.3d 867 (United States v. Daniel Gilbert Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Daniel Gilbert Brown, 327 F.3d 867, 61 Fed. R. Serv. 150, 2003 Daily Journal DAR 4476, 2003 Cal. Daily Op. Serv. 3496, 2003 U.S. App. LEXIS 7928, 2003 WL 1949551 (9th Cir. 2003).

Opinions

OPINION

BETTY B. FLETCHER, Circuit Judge.

Daniel G. Brown (“Brown”) appeals his jury conviction of twenty-eight counts of wire fraud in violation of 18 U.S.C. § 1343 for overcharging a wood chip client by two percent. Brown claims that the trial court erred in allowing evidence of “other acts” under Fed. R. Evid. 404(b) and 403 and in allowing irrelevant and highly prejudicial witness testimony under fed. R. Evid. 401. Moreover, Brown claims that the district court failed to provide an adequate jury instruction in response to the prosecutor’s propensity statements during closing arguments regarding the alleged “other acts” 404 evidence. We have jurisdiction pursuant to 8 U.S.C. § 1291. Because we reverse on the grounds that the trial court committed reversible error by failing to cure the propensity arguments, we do not consider Brown’s remaining contentions regarding the district court’s evidentiary rulings and motion for mistrial.

I.

Brown co-founded Circle DE Pacific, a wood-chipping operation, located on the Kenai Peninsula in Alaska. Circle DE Pacific’s principal client was Mitsui Corporation, a Japanese Corporation with offices in Seattle, Washington. Mitsui bought wood chips and then sold them to Japanese paper producers. Brown sold his wood chips “green”, freshly chipped and still containing moisture, but priced them without moisture, or in “bone dry units” (“BDU”). In order to calculate the BDU of the “green” wood chips, Brown operated a laboratory in which small samples of the green chips were dried, and their weights were compared before and after drying. That calculation yielded the moisture percentage, which was then multiplied against the incoming green weight to yield the weight in BDUs.

The BDU calculation was also applied to incoming chips, which Brown obtained from both self-generated and outside sources. Brown paid some outside suppliers by “green” weight and others by BDU. As with chips sold to Mitsui, Brown’s laboratory sampled chips from each truck load, determined the moisture content, and cal-[869]*869eulated the number of BDUs per truck, when his contract with that provider called for BDU measurement. The laboratory also performed chip classification measurements on each incoming load. Chip classification determines the quality and price of the chip. Chip quality was particularly important to Mitsui, and as a result, the contract detailed standards for sampling chips and measuring their classification.

After Brown opened the laboratory in April 1993, he instructed Bonnie Kenner, the laboratory supervisor, to undervalue the incoming chip BDU calculations by two percent. The resulting effect was that the number of BDUs that Brown had in inventory was underestimated by that two percent value. Brown told Kenner that the reason for this manipulation was to ensure that Brown had enough inventory to supply his customers’ demands. In 1994, Brown reiterated these instructions to Kenner’s replacement, Penny Barnes. Brown told Barnes that the two percent adjustment was intended to compensate for inventory lost to “bum samples, los-sage, blowage over the fence, and shrinkage.” Brown also allegedly instructed Barnes to alter chip classification summaries provided to Mitsui when their shipments were loaded.

Mitsui took shipment of its chip orders directly at Brown’s facility. The empty cargo capacity of each ship was measured by a surveyor, after which each cargo hold was filled as full as possible with chips. The chips, which were still “green” at delivery, were sampled every twenty minutes during ship loading and tested to determine moisture content. They were also tested for chip classification. The ship was surveyed again once loading was complete to compute the BDUs on board. These measurements were then used to bill Mitsui and to recalculate Brown’s current inventory.

In 1996, Brown instructed Barnes to apply a two percent adjustment to chip shipments that were outgoing to Mitsui due to an inventory problem. Brown also instructed Barnes to cook incoming chips for sixteen hours during the moisture— measurement process to compute BDUs, and outgoing chips for twelve hours. Brown told her that the outgoing chips were to have “just a tweak of moisture” and that they were “selling just a little bit of water.”

A federal grand jury indicted Brown on twenty-eight counts of wire fraud in violation of 18 U.S.C. § 1343 and twenty-five counts of illegal monetary transactions in violation of 18 U.S.C. § 1957(a) for devising a scheme and artifice to defraud Mit-sui. The indictment alleges that “Brown directed the company laboratory technician to increase the oven dry weight of the wood chips by 2% during the sampling process as the ship was being loaded. The total BDU weight was thus falsely inflated, causing Mitsui to be over-billed by 2% for each ship load.” The twenty-five counts of illegal monetary transactions were dismissed before trial.

A jury convicted Brown on twenty-eight counts of wire fraud based on allegations that between 1996 and 1998 he inflated invoices transmitted by facsimile to Mitsui. Brown was sentenced to twelve months incarceration and five years supervised release. The court also ordered Brown to pay restitution in the amount of $557,084.08, a fine, and a special assessment. Brown appeals his conviction and his denial for a mistrial alleging that the district court erred in admitting “other bad acts” evidence, in allowing certain witness testimony, and the trial judge’s failure to either admonish the government or to meaningfully instruct the jury regarding the improper comments made during closing arguments.

[870]*870Although it is questionable as to whether the district court abused its discretion in admitting evidence of the other acts, we reserve ruling on that issue and assume for purposes of analysis that other acts evidence was properly admitted. We reverse and remand for a new trial because the trial judge failed to instruct the jury to disregard the prosecutor’s statements insofar as they suggested that Brown had a criminal propensity.

II.

The district court granted the prosecution’s motion in limine as to the use of other acts’ evidence, except for the introduction of evidence regarding phantom loads, or false truck loads, since they did not have direct relevance to whether wood chips were properly weighed and the moisture content was properly determined. The evidence allowed included Brown’s manipulation of incoming chip measurements, his manipulation of chip classification measurements, his manipulation of the reports to Mitsui regarding truck shipments, and his alleged underpaying of individual truckers. Defense counsel objected to this evidence at trial on the ground that it violated FED. R. EVID. 404.1 The government argued that the other acts were relevant circumstantial evidence of Brown’s intent to defraud.

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327 F.3d 867, 61 Fed. R. Serv. 150, 2003 Daily Journal DAR 4476, 2003 Cal. Daily Op. Serv. 3496, 2003 U.S. App. LEXIS 7928, 2003 WL 1949551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-daniel-gilbert-brown-ca9-2003.