Appeal from the United States District Court for the Northern District of California. D.C. No. CR-89-20131-WAI. William A. Ingram, District Judge, Presiding.
Before: Betty B. Fletcher, Cecil F. Poole and Melvin Brunetti, Circuit Judges. Opinion by Judge Poole.
In the wee hours of the morning on August 26, 1988, sheriff's deputies of the Santa Cruz County Sheriff's Department interrupted dozens of men in the process of bringing some 10,000 kilograms of Thai marijuana ashore. Among the drugs and equipment seized was a pickup truck belonging to appellant Mark Shull Jones. Several of the individuals involved in the operation, during questioning by the authorities, implicated Jones in a conspiracy to import the marijuana, and placed him at the scene of the crime. Jones was subsequently charged in a four-count indictment with Conspiracy to Import Marijuana in violation of 21 U.S.C. § 963, Aiding and Abetting the Importation of Marijuana in violation of 21 U.S.C. § 952 & 18 U.S.C. § 2, Conspiracy to Distribute and Possession with Intent to Distribute in violation of 21 U.S.C. § 846, and Aiding and Abetting the Possession of Marijuana with Intent to Distribute in violation of 21 U.S.C. § 841 & 18 U.S.C. § 2. Following a jury trial, in which he was found guilty on all counts, Jones was sentenced to 151 months in prison with a 5 year term of supervised release. He now appeals his conviction and sentence, alleging that the district court erred by admitting testimony implicating him in prior marijuana smuggling conspiracies, refusing to allow him to conduct recross examination, and denying his motion to have sentencing transferred to a Judge familiar with the case. We reverse.
Appellant complains of testimony by witnesses Weisberg and Stansbury regarding his involvement in previous marijuana smuggling operations during 1985, 1986, and 1987. Jones argues that admission of this testimony was improper since it was not relevant to any disputed issues, and because it was unduly prejudicial.
Evidence of a defendant's prior act is admissible under Rule 404(b) if that "evidence is probative of a material issue in the case." United States v. Ramirez-Jiminez, 967 F.2d 1321, slip op. 6901, 6908 (9th Cir. 1992). The government argues that the evidence was material to the issues of knowledge, the background and development of the conspiracy charged, and association and plan. Jones contends that since he entirely denied his participation in the crime, proof of these issues is irrelevant. Knowledge and intent are, however, elements of possession with intent to distribute marijuana. See 21 U.S.C. § 841(a). Intent is also an element of criminal conspiracy, and of aiding and abetting in the commission of a crime. United States v. Litteral, 910 F.2d 547, 550 (9th Cir. 1990). The fact that Jones chose not to contest those particular elements of the crime did not relieve the government of its burden of proving them beyond a reasonable doubt, and the government therefore was permitted to introduce evidence of Jones' prior acts so long as the acts tended to make the existence of his knowledge or intent more probable than it would be without the evidence. Ramirez-Jiminez, slip op. at 6908-9. Weisberg testified that Jones was involved in a marijuana importing operation in 1986, and in the course of that operation had assisted in offloading marijuana at the very same beach by removing the marijuana from the beach in his truck. [Tr. 4/5/90 at 44-55]. Stansbury testified that Jones had participated in an operation to import marijuana on a sailboat in 1985. [Tr. 4/6/90 at 68-73]. We believe that, in light of the similarity in the modus operandi between appellant's previous involvement in importation of marijuana and the present charges, the testimony was relevant as tending to show that appellant had the requisite knowledge and intent to commit the crimes with which he was charged. See United States v. Bailleaux, 685 F.2d 1105, 1110 (9th Cir. 1982); Ramirez-Jiminez, slip op. at 6909.
In addition, we observed in United States v. Normandeau, 800 F.2d 953, 956 (9th Cir. 1986), that association and plan are essential elements of the charge of conspiracy. We have previously found evidence of prior acts relevant as tending to demonstrate the existence of a criminal association and plan. Such evidence may "explain the nature of the relationship" between co-conspirators while placing "their transaction in context for the jury," thereby "showing the background and development of the conspiracy." United States v. McKoy, 771 F.2d 1207, 1214 (9th Cir. 1985); see also United States v. Nadler, 698 F.2d 995, 1000 (9th Cir. 1983). We believe that the testimony of Weisberg and Stansbury served just such a proper purpose, and therefore find no error in the admission of the testimony.
Jones makes the related argument that, since he did not contest the elements for which the evidence was admitted, the evidence of his prior crimes had very little probative value. Thus, he concludes, the probative value was "necessarily" outweighed by the prejudicial effect. This argument is mistaken. The probative value of the evidence is to be measured by its tendency to make the existence of Jones' knowledge of and participation in the conspiracy more probable than it would be without the evidence, not by how vigorously he contests the elements the evidence is admitted to prove. See Fed. R. Evid. 401. Since we agree with the district court that the evidence was probative of material issues in the case, we find no abuse of discretion in the district court's Conclusion that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice to the defendant. United States v. Perkins, 937 F.2d 1397, 1400 (9th Cir. 1991).
Jones argues that the trial court imposed a blanket ban on recross examination in violation of his right of confrontation. Whether limitations on the scope of questioning at trial constitute a violation of the confrontation clause is a question of law that we review de novo. United States v. Jenkins, 884 F.2d 433, 435 (9th Cir.), cert. denied, 493 U.S. 1005, 107 L. Ed. 2d 562, 110 S. Ct. 568 (1989). At the same time, the trial court is vested with discretion to limit questioning, and this court will find error only when that discretion has been abused. Id.; United States v. Vargas, 933 F.2d 701, 704 (9th Cir. 1991).
A prior panel of this court rejected a similar claim raised by one of Jones' codefendants, Richard Vorpagel, finding that Vorpagel's attorney "did not appear to have interpreted the Judge's statement as a 'blanket' prohibition . . . ." United States v. Vorpagel, No. 90-10378, slip op. at 2, (9th Cir. Sep. 24, 1991). The government argues that under the doctrine of law of the case, this panel is precluded from a redetermination of this issue. See United States v. Schaff, 948 F.2d 501, 506 (9th Cir. 1991).
We are not necessarily bound, however, by the prior finding. In United States v. Maybusher, 735 F.2d 366, 370 (9th Cir. 1984), cert. denied, 469 U.S. 1110, 83 L. Ed. 2d 783, 105 S. Ct. 790 (1985), we observed that the doctrine of law of the case "expresses only the practice of courts generally to refuse to reopen questions formerly decided, and is not a limitation of their power." In any event, the Vorpagel decision rested on a finding that Vorpagel's attorney understood that recross examination would be permitted if new material was raised on redirect. The ...