United States v. Willie J. Vaughn

486 F.2d 1318, 1973 U.S. App. LEXIS 7225
CourtCourt of Appeals for the Eighth Circuit
DecidedNovember 5, 1973
Docket73-1225
StatusPublished
Cited by12 cases

This text of 486 F.2d 1318 (United States v. Willie J. Vaughn) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Willie J. Vaughn, 486 F.2d 1318, 1973 U.S. App. LEXIS 7225 (8th Cir. 1973).

Opinions

WEBSTER, Circuit Judge.

Willie J. Vaughn appeals his conviction for distribution of heroin in violation of Title 21 United States Code, Section 841. Only one issue was presented for review: whether appellant was prejudiced by the admission into evidence of testimony relating to recent similar crimes by other persons in the same area as the crime alleged in the indictment. We hold appellant was not unfairly prejudiced and affirm the judgment of conviction.

On August 20, 1972 agents of the Drug Abuse Law Enforcement Agency (“DALE”) were conducting an investigation of narcotics activities in Des Moines, Iowa. At approximately 4:00 p. m., Detective Gene Crosby, a St. Louis police officer assigned to DALE, was given $225 in pre-recorded money. Crosby and an informant, Edward Mitchell, were then driven to 9th and Laurel Streets, where they walked to the corner of 11th and University, and then to a porch at 1208 11th Street, a short distance away. There they met Vaughn, who Crosby testified had previously agreed to sell him a spoon of heroin. Crosby testified that he received 17 capsules for which he paid Vaughn the $225 which he was carrying on his person. The capsules were later determined to contain heroin. The defendant was arrested on October 13th.

The testimony of Agent Crosby was re-enforced by that of Special Agent Dennis Harker, who observed the transaction take place by using binoculars from a half block away. Other eye witnesses to the encounter who testified were Agents Sam Lee Lackland, Calvin Culp and Kenneth Bloemker.

Vaughn testified that on August 20th he was at an outdoor cookout at a residence on 11th Street from 11:00 a. m. to 10:00 p. m., leaving only once at 1:00 to pick up his children and bring them back to the cookout. He produced five witnesses who had attended the cookout to substantiate his alibi. The cookout took place at 1222 11th Street, some four or five houses from 1208 11th Street, where the transaction occurred.

During the cross-examination of Agent Crosby, defense counsel vigorously challenged the probability of Crosby’s testimony that the narcotics sale had taken place in daylight on the street.1 [1320]*1320On redirect examination, government counsel elicited testimony, over objection, that Crosby had observed numerous narcotic transactions in the area, none of which involved Vaughn.

“By Mr. Uhl:
Q. Mr. Crosby, the porch where the transaction occurred, do you know that particular address ?
A. 1208 — 11th Street.
******
Q. And you stated that the house where the buy took place belongs to Mr. Carter, is that correct ?
A. Yes, sir.
Q. And what’s the basis of your knowledge of Mr. Carter ?
A. I made a purchase, two purchases on the inside of Mr. Carter’s house.
Q. What kind of purchases ?
A. Heroin.
Q. Now, on cross-examination you were asked some questions about what generally happens. I’d like to ask about what specifically happens up around 11th and University? Have you ever bought any other heroin out in the open around 11th and University?
A. Yes, sir.
Q. About how many times ?
A. About four or five times.
Q. And have you ever counted out money in the open to pay for this heroin around 11th and University?
A. Yes, sir.
Q. How many times has that happened ?
A. Three times, sir.
Q. About how many buys have you made up in the area of 11th and University ?
[1321]*1321Mr. Starke: Object to that. It is not material to the issue. Improper redirect.2
The Court: I’m going to sustain that objection.
Q. About how many times, if ever, have you seen heroin and other controlled substances out in the open around 11th and University ?
Mr. Starke: Objection.
The Court: Overruled.
A. I’ve seen transactions numbers of times at the vicinity of the corner of 11th and University.
Q. About how many transactions would you say in a day ?
A. Oh, about-
Mr. Starke: Objection. No foundation as to' time, place.
The Court: I think it’s proper redirect.
Q. About how many heroin or controlled substance transactions would you see in a day around 11th and University ?
A. Approximately twelve or fifteen a day.
Q. How many of those would occur out in the open?
A. Well, all of these I’ve seen out in the open.”

Upon recross-examination defense counsel developed from Crosby that he observed from a distance numerous daylight transactions in the neighborhood which followed the same pattern — a package exchanged for money. He assumed, but could not state positively that the exchanges involved narcotics. Crosby also testified on recross-examination that he had made previous purchases of narcotics in front of the same porch, but that his purchase from Vaughn was the first purchase on the porch.

Appellant contends that this testimony constituted evidence of other crimes, that it was not introduced under any of the exceptions to the rule against admitting such evidence, and that it weighed the balance unfairly against the appellant.3 None of the challenged testimony purported to connect appellant to any of the “other” criminal activity. Indeed, had it done so, and even had it been offered under one of the well-recognized exceptions permitting such testimony for limited purposes, such as to show knowledge, intent or a common plan or scheme, we would be compelled to reverse the conviction as prejudicial because much of the evidence of such “other crimes” was neither plain, clear, nor conclusive. United States v. Broadway, 477 F.2d 991 (5th Cir. 1973); United States v. Spica, 413 F.2d 129, 131 (8th Cir. 1969).

In this case, however, the evidence was introduced to meet the defense counsel’s attack on the likelihood or probability that the exchange took place in daylight and in plain view in the area described and in the manner testified to by Crosby. When an issue has been opened up by such searching cross-examination, it cannot be said to be overreaching simply because the prosecutor seeks by redirect examination to clarify the point raised by means of other facts known to the same witness which might not have been admissible on the case in chief, absent such cross-examination. Under similar circumstances, we recently held that questions [1322]

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United States v. Willie J. Vaughn
486 F.2d 1318 (Eighth Circuit, 1973)

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Bluebook (online)
486 F.2d 1318, 1973 U.S. App. LEXIS 7225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-willie-j-vaughn-ca8-1973.