Appeal from a judgment of conviction of the United States District Court for the Southern District of New York entered on October 5, 1978, after a jury trial before Vincent L. Broderick, Judge, for possession of heroin with intent to distribute and distribution of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2. The principal claim on appeal is improper admission of evidence of possession of heroin three days after the crime charged in the indictment. Reversed and remanded.
Before Mansfield and Timbers, Circuit Judges, and Werker, District Judge.*fn*
Robert DeVaughn*fn1 appeals from a judgment of conviction entered in the Southern District of New York on October 5, 1978, after a jury trial before Vincent L. Broderick, Judge. DeVaughn was convicted of one count of possession with intent to distribute and distribution of heroin on June 22, 1976, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2. He was sentenced to four years' imprisonment, to run concurrently with an eight-year New York State sentence DeVaughn is presently serving, followed by an eight-year special parole term. DeVaughn's original trial in October, 1977, with co-defendant James "Doc" Payton ended in a mistrial. At the first re-trial in November, 1977, he was convicted,*fn2 but that conviction was reversed by this court on appeal because of the erroneous admission into evidence of hearsay in a taped telephone conversation between Payton and an agent of the Drug Enforcement Administration (DEA). United States v. DeVaugn, 579 F.2d 225 (2d Cir. 1978). The present conviction resulted from appellant's second re-trial.
The evidence, viewed most favorably to the Government, establishes that Mary Buckley, a DEA agent, first met James Payton at the Red Carpet Lounge in Manhattan on May 19, 1976, and the two engaged in a general discussion about narcotics. The two met again on June 10, 1976, at which time the agent proposed that in exchange for some heroin she was willing to furnish some quinine, a cutting agent, or dilutant, for heroin. A week later, on June 17, 1976, the two again met and Payton revealed that he had a friend who wanted to buy four pounds of quinine. The following day, at the Red Carpet Lounge, Buckley showed Payton a sample of the quinine. Payton then made a phone call and five minutes later DeVaughn arrived and was introduced to the agent by Payton as the friend interested in the quinine. Buckley showed the sample of quinine to DeVaughn, who examined it in a back room of the Lounge and then agreed to furnish one ounce of heroin in exchange for four pounds of quinine.*fn3
On June 22, 1976, Buckley returned to the Red Carpet Lounge. Four pounds of quinine, drawn from the DEA evidence custodian, had been placed in a plastic bag inside a large white Bloomingdale's shopping bag with lips on the side and was in the trunk of her car. At the Lounge Buckley again met Payton and DeVaughn. The three drove uptown to pick up the heroin, with Buckley following the other two in her own car. Near 155th Street and Broadway, Payton pulled his car to the side of the street and approached Buckley, sitting in her car, to inform her that he thought they were being followed, pointing out several of the DEA agents who were tailing Buckley. Payton and Buckley both drove back to the Red Carpet Lounge after Payton dropped off DeVaughn near an apartment building in the area where the agents had been spotted.
At the Lounge Payton told Buckley that DeVaughn would pick up the heroin and bring it to them. While the two waited Payton received a phone call from someone Payton identified as DeVaughn. After about a two-hour wait, DeVaughn arrived at the Lounge. DeVaughn and Payton moved to the back of the Lounge while Buckley went to her car and got the quinine. Upon her return, Payton gave Buckley the heroin. When the agent asserted that it was not a full ounce, DeVaughn responded that it was a "spoon ounce"*fn4 and Payton said the heroin would take a "three cut."*fn5
Payton took the quinine and Buckley left. Later analysis revealed that the heroin had been cut with sugar and starch. No DEA agent testified to seeing DeVaughn with the heroin, although he was seen later on June 22, 1976, carrying a shopping bag matching the one used by Buckley to transport the quinine.
The Government at the close of its case-in-chief introduced into evidence a stipulation between the parties that on June 25, 1976, three days later, DeVaughn had in his possession 1.47 grams of a powder consisting of heroin cut with quinine. The stipulation noted that no criminal conviction had resulted from that subsequent possession. The stipulation was agreed to after the trial court overruled the defendant's objection to the admission of evidence of his possession of the powder.
Appellant contends that the trial court committed reversible error in admitting into evidence his subsequent possession of heroin on June 25, 1976. We agree. "Other-crime" evidence is not admissible to show that a defendant has a bad character or propensity to commit the crime in issue, although it may be admissible for other relevant purposes. Fed.R.Evid. 404(b). See United States v. Manafzadeh, 592 F.2d 81, 86 (2d Cir. 1979); United States v. Lyles, 593 F.2d 182, 193 (2d Cir. 1979); United States v. DeFillipo, 590 F.2d 1228, 1240-41 (2d Cir. 1979); United States v. Knuckles, 581 F.2d 305, 314 (2d Cir. 1978); United States v. O'Connor, 580 F.2d 38, 40 (2d Cir. 1978); United States v. Williams, 577 F.2d 188, 191 (2d Cir.), Cert. denied, 439 U.S. 868, 99 S. Ct. 196, 58 L. Ed. 2d 179 (1978); United States v. Benedetto, 571 F.2d 1246, 1248 (2d Cir. 1978); United States v. Gubelman, 571 F.2d 1252, 1254 (2d Cir.), Cert. denied, 436 U.S. 948, 98 S. Ct. 2853, 56 L. Ed. 2d 790 (1978).
To qualify for admission the other-crime evidence must be relevant to an actual issue in the case, and its probative value on that issue must not be outweighed by its unfair prejudice to the defendant. See United States v. Manafzadeh, supra, at 86; United States v. DeFillipo, supra, at 1241; United States v. Halper, 590 F.2d 422, 432 (2d Cir. 1978); United States v. Knuckles, supra, 581 F.2d at 314; United States v. O'Connor, supra, 580 F.2d at 40-43; United States v. Williams, supra, 577 F.2d at 191; United States v. Benedetto, supra, 571 F.2d at 1248; United States v. Gubelman, supra, 571 F.2d at 1254. See also Fed.R.Evid. 403. Although this court has taken the "inclusionary" approach to Rule 404(b), there is no presumption that other-crime evidence is relevant. United States v. Manafzadeh, supra, at 86; United States v. DeFillipo, supra, at 1240; United States v. Halper, supra, at 432; United States v. O'Connor, supra, 580 F.2d at 40; United States v. Benedetto, supra, 571 F.2d at 1248. "Caution and judgment are called for, and a trial judge faced with an other crimes evidence problem should require the Government to explain why the evidence is relevant and necessary." United States v. O'Connor, supra, 580 F.2d at 43, Quoted in United States v. Lyles, supra, at 196; United States v. Manafzadeh, supra, at 86-87. The fear, of course, is that "the accused might be convicted because of his participation in the other crime rather than because he is guilty beyond a reasonable doubt of the crime alleged." United States v. Manafzadeh, supra, at 86.
In the instant case, the Government argues that the other-crime evidence was admissible to prove DeVaughn's identity as the person present at the Lounge on June 22 when the exchange occurred and to corroborate Agent Buckley's testimony that a heroin-quinine exchange had occurred at that time. Appellant contends that both identity and corroboration would have been established by his offer early in the trial to concede that he had in fact received the quinine from Buckley. The Government refused to accept this offer in lieu of the evidence of his subsequent possession of heroin, arguing that the concession would only corroborate Buckley's testimony that quinine passed hands, whereas his subsequent possession of heroin would also corroborate her testimony that heroin was exchanged as well.
Since the concession that was offered would have established beyond question DeVaughn's presence with the others in the Lounge at the time of the alleged exchange and his identity as the recipient of the quinine, thus removing identity as an issue, the other-crime evidence was not admissible to prove identity, see United States v. Manafzadeh, supra, at 88; cf. United States v. Williams, supra, 577 F.2d at 191, and could only have been offered for purposes of corroboration, provided "the corroboration is direct and the matter corroborated is significant." United States v. Williams, supra, 577 F.2d at 192; United States v. O'Connor, supra, 580 F.2d at 43; United States v. Manafzadeh, supra, at 88. Such evidence will not be admitted under a theory of corroboration to show that a defendant is a "bad man likely to have committed the crimes charged in the indictment," United States v. O'Connor, supra, 580 F.2d at 43.
Applying these basic principles, appellant's possession of a heroin mixture on June 25 would hardly be admissible to show that he probably possessed and exchanged heroin for quinine three days earlier. Such an inference would rest upon an impermissible basis, namely, that because appellant possessed heroin on June 25 he is a person of "bad character or (had a) propensity to commit the crime in issue" and therefore probably committed the crime charged against him (possession and exchange on June 22). See United States v. Manafzadeh, ...