United States v. Daniel Gilbert Brown

327 F.3d 867 UNITED STATES of America, Plaintiff-Appellee, v. Daniel Gilbert BROWN, Defendant-Appellant. No. 01-30261. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 5, 2002. Filed April 25, 2003. James A. Wendt, Anchorage, AK, for the defendant-appellant. Adam G. Ciongoli, Washington, DC, for the plaintiff-appellee. Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief Judge, Presiding. D.C. No. CR-00-00114-JKS. Before B. FLETCHER, ALARCÓN, and GRABER, Circuit Judges. OPINION BETTY B. FLETCHER, Circuit Judge. 1 Daniel G. Brown ("Brown") appeals his jury conviction of twenty-eight counts of wire fraud in violation of 18 U.S.C. § 1343 for overcharging a wood chip client by two percent. Brown claims that the trial court erred in allowing evidence of "other acts" under FED. R. EVID. 404(b) and 403 and in allowing irrelevant and highly prejudicial witness testimony under FED. R. EVID. 401. Moreover, Brown claims that the district court failed to provide an adequate jury instruction in response to the prosecutor's propensity statements during closing arguments regarding the alleged "other acts" 404…

Daniel G. Brown (“Brown”) appeals his jury conviction of twenty-eight counts of wire fraud in violation of 18 U.S.C. § 1343 for overcharging a wood chip client by two percent. Brown claims that the trial court erred in allowing evidence of “other acts” under Fed. R. Evid. 404(b) and 403 and in allowing irrelevant and highly prejudicial witness testimony under fed. R. Evid. 401. Moreover, Brown claims that the district court failed to provide an adequate jury instruction in response to the prosecutor’s propensity statements during closing arguments regarding the alleged “other acts” 404 evidence. We have jurisdiction pursuant to 8 U.S.C. § 1291 . Because we reverse on the grounds that the trial court committed reversible error by failing to cure the propensity arguments, we do not consider Brown’s remaining contentions regarding the district court’s evidentiary rulings and motion for mistrial.

I.

Brown co-founded Circle DE Pacific, a wood-chipping operation, located on the Kenai Peninsula in Alaska. Circle DE Pacific’s principal client was Mitsui Corporation, a Japanese Corporation with offices in Seattle, Washington. Mitsui bought wood chips and then sold them to…

dissenting:

I respectfully dissent. Defendant’s convictions and sentence should be affirmed.

A. “Other Acts” Evidence

The district court did not err in admitting “other acts” evidence.

Defendant is charged in this case with cheating Mitsui repeatedly by overcharging it 2 percent for wood chips. The government proffered evidence concerning various methods by which Defendant manipulated his wood-chip inventory: He underpaid suppliers by 5 percent; he tampered with the sampling process by undercooking the green-wood samples; he misrepresented chip sizes in loads of wood chips; he falsified reports stating the overall amount of chips in his inventory; and he intentionally over-reported the number of incoming truckloads of chips.

The district court admitted that evidence of other acts because all the methods of cheating wood-chip business associates were “inextricably intertwined.” When evidence of other acts is inextricably intertwined with evidence of the charged crime, the other-acts evidence is admissible notwithstanding Federal Rule of Evidence 404. United States v. King, 200 F.3d 1207, 1214 (9th Cir.1999).

We review de novo the legal question whether evidence falls within…