601 F.

2d 42
4 Fed. R. Evid. Serv. 534

UNITED STATES of America, Appellee,

v.
Robert DeVAUGHN, Defendant-Appellant.
No. 604, Docket 78-1358.

United States Court of Appeals,

Second Circuit.
Argued Feb. 9, 1979.
Decided April 5, 1979.

Edward T. Chase, New York City, for defendant-appellant.

Mark F. Pomerantz, Asst. U. S. Atty., New York City (Robert B. Fiske,
Jr., U. S. Atty., S. D. N. Y., Richard D. Weinberg, Asst. U. S. Atty., New
York City, of counsel), for appellee.
Before MANSFIELD and TIMBERS, Circuit Judges, and WERKER,
District Judge.*
MANSFIELD, Circuit Judge:

Robert DeVaughn1 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 eightyear 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,2 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.3

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"4 and Payton said the
heroin would take a "three cut."5

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.
DISCUSSION
7

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, 124041 (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. "(C)aution
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.
9

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.

10

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.

11

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,
supra, at 86. Indeed, this other-crime evidence was excluded at the second trial
because no analysis had been made of the cutting agent.6

12

At the latest trial the Government was able to show that the heroin possessed
by appellant on June 25 had been diluted with quinine. On the basis of this
additional proof the prosecution persuaded the trial judge to admit it on the
theory that the presence of quinine in the June 25 mixture tended to corroborate

Agent Buckley's testimony that she had furnished quinine three days earlier to
appellant and that the combination of heroin and quinine in the June 25 mixture
corroborated her testimony that on June 22 she received a "spoon ounce" of
mixed heroin for the guinine. As a final fillip the Government argued that the
combined evidence indicates that on June 22 appellant had heroin (mixed with
starch and sugar) but needed quinine, which he must have obtained from Agent
Buckley on June 22 and then used to prepare the heroin-quinine mixture found
in his possession on June 25th.
13

At first blush the Government's analysis would indicate that the other-crime
evidence (i. e., the June 25th possession) corroborated Agent Buckley's
testimony. However, it was not "direct" corroboration as that term is used in
United States v. O'Connor, supra, 580 F.2d at 43. To be directly corroborative
of her testimony that she furnished the quinine, it would be necessary to show
that, despite the existence of large amounts of different qualities of quinine in
the world, the quinine in the June 25th mixture was the same quality and
chemical analysis as the quinine she testified to having furnished on June 22.
The mere fact that the June 25th heroin mixture contained quinine as its dilutant
would hardly identify the quinine as that supplied by Agent Buckley on June
22, in view of the parties' stipulation that the Government's expert witness
would have testified that "approximately 20 percent" of all the heroin that
witness analyzed in 1976 was cut with quinine. That very high figure
substantially undermines the probative value of the June 25 evidence because it
shows that the June 25 mixture could easily have come from some other
source, which undercuts the inference that the quinine in the June 25 heroin
was the same quinine that Agent Buckley had supplied on June 22.
Nevertheless, the Government argued before the jury and before this court:

14
"Three
days later, he was found again with heroin but this time it was cut with
quinine and I submit to you that the quinine that is contained in these two little
envelopes is part of the four pounds of quinine that Agent Buckley supplied to Mr.
DeVaugn on June 22nd." Trial Transcript at 198.
15

In the absence of any evidence in the record of any comparative chemical

analysis of the June 22 and June 25 quinines demonstrating that the samples
were the same or sufficiently identical to warrant an inference that they came
from the same source, the probative value of the other-crime evidence was
entirely too ephemeral to permit its introduction as corroborative evidence. The
danger was too great that appellant "might be convicted because of his
participation in the (June 25 possession) rather than because he is guilty beyond
a reasonable doubt of the crime alleged," United States v. Manafzadeh, supra,
at 86. The error cannot, therefore, be labeled as harmless.

16

Appellant also raises a second issue on appeal that the district court lacked
jurisdiction to conduct the last re-trial because the mandate had not yet issued
from this court on a prior appeal. Our decision reversing the conviction
resulting from the second trial was filed on July 17, 1978. The Government
moved for an extension of time within which to file a petition for rehearing,
which was granted on August 3, 1978, giving the Government an extension
until August 21, 1978. 7 Issuance of this court's mandate was stayed because of
that extension. On August 14, 1978, the third trial began, and on August 16
defense counsel advised the district court that this court's mandate still had not
issued. Although the matter was discussed before the trial court, no motion for
a mistrial was made, and the trial continued. The jury returned its guilty verdict
on August 17, 1978. The Government then, on August 22, moved in this court
for issuance of the mandate on the prior reversal Nunc pro tunc as of 9:00 A.M.
on August 14, 1978, one hour before the third trial began. That motion was
granted by this court on September 12, 1978.

17

Appellant argues that jurisdiction could not be conferred upon the district court
after the fact through issuance of the mandate Nunc pro tunc. He also asserts
that reprosecution would be barred by the Double Jeopardy Clause of the Fifth
Amendment.

18

It is regrettable that the Government, apparently due to a breakdown in internal

communications, allowed a situation to arise whereby it was reprosecuting a
case in the district court and attempting to preserve its appellate options at the
same time. We trust that the Government will not permit a recurrence.

19

In light of our reversal of the present conviction due to the improper admission
of other-crime evidence, however, we need not pass upon the validity of the
Nunc pro tunc order. It is settled that when a defendant by appeal successfully
challenges a prior conviction the Double Jeopardy Clause does not bar
reprosecution. See, e.g., Abney v. United States, 431 U.S. 651, 665, 97 S.Ct.
2034, 52 L.Ed.2d 651 (1977); Ludwig v. Massachusetts, 427 U.S. 618, 630-32,
96 S.Ct. 2781, 49 L.Ed.2d 732 (1976). Thus if the Nunc pro tunc order is valid,
there is no constitutional difficulty with the present reversal and remand for a
new trial. If, on the other hand, the Nunc pro tunc order is ineffective, as
appellant contends, and there was no jurisdiction in the district court at the time
of this trial, the present conviction is void and there is still no double jeopardy
bar to re-trial. See United States v. Sabella, 272 F.2d 206, 209 (2d Cir. 1959);
Woodring v. United States, 337 F.2d 235, 236-37 (9th Cir. 1964), Cert. denied,
380 U.S. 933, 85 S.Ct. 937, 13 L.Ed.2d 820 (1965); United States v. Weissman,
434 F.2d 175, 179 (8th Cir. 1970), Cert. denied, 401 U.S. 982, 91 S.Ct. 1190,
28 L.Ed.2d 334 (1971); cf. United States v. Ball, 163 U.S. 662, 669, 16 S.Ct.

1192, 41 L.Ed. 300 (1896) (an acquittal in a criminal trial before a court with
no jurisdiction is absolutely void and therefore not a bar to subsequent
prosecution). It therefore becomes unnecessary to determine the validity of the
Nunc pro tunc order. A remand for a new trial is warranted on other grounds
and not constitutionally barred, regardless of the outcome of appellant's
jurisdictional argument.
20

The judgment is reversed and the case is remanded for a new trial.

Of the United States District Court for the Southern District of New York,
sitting by designation

In the indictment and at the trial below, as on a prior appeal, DeVaughn's name
was incorrectly spelled as "DeVaugn."

DeVaughn was tried alone at the first re-trial due to an apparent heart attack
suffered by Payton. Similarly DeVaughn was tried alone at the second re-trial
from which the present appeal is taken

Prior to this time Buckley and Payton had been unable to reach an agreement as
to the proper exchange rate between heroin and quinine

A spoon ounce is an ounce measured out in spoonfuls rather than by weight

This meant the heroin could be diluted three times with quinine and still have
sufficient strength to be saleable on the street

The other-crime evidence was not even offered by the Government at the first
trial

No petition for rehearing was in fact filed by the Government