argued submitted san francisco california: February 4, 1993.
Appeal from the United States District Court for the District of Arizona. D.C. No. CR 89-392-PHX-RGS. Roger G. Strand, District Judge, Presiding.
Before: Betty B. Fletcher, Stephen Reinhardt, and John T. Noonan, Jr., Circuit Judges. Opinion by Judge Reinhardt.
REINHARDT, Circuit Judge:
Susan Brooke appeals her conviction on charges of conspiracy, manufacture of a destructive device (26 U.S.C. § 5861(f)), possession of a destructive device (26 U.S.C. § 5861(d)), and malicious damage to property resulting in personal injury (18 U.S.C. § 844(i)). At trial, the prosecution introduced extensive testimony that Brooke falsely told her friends and acquaintances that she suffered from and was undergoing treatment for cancer. Because the unfairly prejudicial nature of the false-cancer evidence substantially outweighed its limited probative value, and because we cannot say with fair assurance that its use by the government did not affect the jury's verdict, we reverse Brooke's conviction and remand.
Brooke's convictions stem from the manufacture and delivery by co-defendant Rocky Kearney of a packaged pipe bomb, containing nicotine poison, to the residence of Melinda Howell on December 7, 1987. Howell suffered serious burns to her hands and face when she opened the package and the pipe bomb exploded.
In prosecuting Brooke, the government contended that she paid Kearney $2000 to build and deliver the bomb to Howell. Howell was dating Charlie Burk, with whom Brooke had previously had a long-term romantic relationship. Kearney, who pleaded guilty under an agreement reached in the month prior to trial, was the key government witness; his testimony was the only direct evidence linking Brooke to the charged crimes. In addition to Kearney, several of Brooke's friends and acquaintances testified, describing her reaction to Burk's relationship with Howell, her efforts to obtain information about Howell and the relationship, and her abortive attempts to have other single men lure Howell away from Burk.
At trial, Brooke, who testified in her own behalf, contended that she hired Kearney, a private investigator, merely to help in determining whether Howell was responsible for several harassing telephone calls Brooke had received. Brooke further maintained that she neither knew of nor solicited the production and delivery of the pipe bomb.
On appeal, Brooke challenges the admission of evidence that she falsely claimed to have cancer. She also argues that the district court erred in limiting her cross-examination of Kearney, the main government witness.
In its trial brief, the government indicated its intention to "provide evidence of defendant's manipulative behavior concerning friends and acquaintances which was based on allegations that she suffered from terminal cancer," and stated that it would "establish that these allegations were nothing more than a cruel hoax designed to gain sympathy for the defendant while influencing her friends to cater to her needs."
Brooke moved in limine to exclude all evidence that she had cancer or that she informed others that she suffered from the disease. On the first day of trial, the district court granted the motion in part, excluding such evidence except "to the extent that it is involved as a means whereby the defendant may have sought sympathy from and/or favors from acquaintances of hers." Despite this putative limitation, the government introduced through several witnesses, both in its case in chief and on rebuttal, a significant amount of testimony that Brooke falsely claimed, both before and after the bombing, to have cancer.
Several of Brooke's acquaintances testified that she told them she had cancer; some testified that she later claimed to have been miraculously cured while others testified to having no knowledge of Brooke's supposed recovery. Government questioning and witnesses' answers conveyed the prosecution theory that the cancer claims were a "cruel hoax." Most of these acquaintances also testified to Brooke's efforts to obtain information about Howell. However, the government failed to elicit testimony from all but one or two of these witnesses that Brooke's cancer claims were made as part of an effort to obtain sympathy or to cause them to perform favors that they would not otherwise have performed. Kearney, on the other hand, did testify that, in addition to receiving a $2000 payment, sympathy for Brooke's "cancer story" played a role in his agreeing to build and deliver the bomb to Howell.
In its case in chief, the prosecution also introduced testimony that Brooke improperly used funds provided for cancer treatment to purchase airline tickets for her friends. Additional government evidence suggested that Brooke's claims of cancer were false, including the rebuttal testimony of medical records custodians from two facilities where Brooke claimed to have received treatment. The custodians testified to finding no record that Brooke had ever been a patient.
In response to the government's exploration of the issue, Brooke presented testimony to prove that she had in fact suffered from cancer. Among the witnesses she called was her accountant, who testified to the medical expenses reflected in her 1987 tax return. In cross-examination of the accountant and of Brooke herself, the government elicited testimony that Brooke had undergone breast ...