United States v. William Courtney Batts

This appeal has been referred back to the panel by the court sitting en banc as having been taken en banc improvidently. The panel opinion of June 3, 1977, as amended August 2, 1977, is hereby withdrawn and the following opinion is substituted.

Batts and one Michael Heiges were charged in a two-count indictment with the importation of hashish in violation of 21 U.S.C. §§ 952 , 960(a)(1) and 960(b)(2) and 18 U.S.C. § 2 and for possession of hashish with intent to distribute in violation of 21 U.S.C. §§ 841 (a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2 . Mr. Heiges, not wishing to test the fact-finding process, fled the jurisdiction and is still at large. Batts was tried by a jury and was convicted on both counts. Batts appeals and we affirm.

The sole issue presented for review is whether it was error to allow the government to introduce, in its rebuttal case, evi *601 dence of prior criminal activity of the appellant.

The facts taken in the light most favorable to the government reveal that Batts and Heiges arrived in Heiges’ El Camino truck at the port of entry near Lynden, Washington. A subsequent search at the port of entry disclosed 15 bricks of hashish hidden in the wall of the…

dissenting:

The principal issue of the case in its present posture concerns application of the *604 rule in Trejo v. United States, 501 F.2d 138 (9th Cir. 1974), to evidence of the defendant’s prior criminal acts. I agree with the majority’s statement of the rule, but disagree with the manner in which the majority applies it to the facts here. The question is whether or not illegally-seized evidence was considered by the jury. Since I believe that the jury did consider such matters, I respectfully dissent.

After the close of the defendant’s case, the Government offered a single rebuttal witness, detective Stokke, who testified that on an earlier occasion he had seized three bags of cocaine from the defendant. The majority concedes that “[h]ad the illegally-seized cocaine been admitted, United States v. Trejo, supra, would apply . .,” but decides that the cocaine exhibits were withdrawn and that the rebuttal evidence “consisted solely of testimony about the offer and negotiations between appellant and the undercover agent which occurred prior to [the illegal seizure].” (majority opinion at n.7 supra). 1 I find no support in the record for that determination.

The concluding and…

573 F.2d 599 3 Fed. R. Evid. Serv. 80 UNITED STATES of America, Plaintiff-Appellee, v. William Courtney BATTS, Defendant-Appellant. No. 76-2308. United States Court of Appeals, Ninth Circuit. April 13, 1978. As Amended April 20, 1978. Murray B. Guterson (argued), of Seattle, Wash., for defendant-appellant. Peter Mair, Asst. U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington. Before KENNEDY and ANDERSON, Circuit Judges, and VAN PELT, * District Judge. J. BLAINE ANDERSON, Circuit Judge: 1 This appeal has been referred back to the panel by the court sitting en banc as having been taken en banc improvidently. The panel opinion of June 3, 1977, as amended August 2, 1977, is hereby withdrawn and the following opinion is substituted. 2 Batts and one Michael Heiges were charged in a two-count indictment with the importation of hashish in violation of 21 U.S.C. §§ 952 , 960(a)(1) and 960(b) (2) and 18 U.S.C. § 2 and for possession of hashish with intent to distribute in violation of 21 U.S.C. §§ 841 (a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2 . Mr. Heiges, not wishing…