APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Cr. No. 84-23).
BEFORE: GARTH and STAPLETON, Circuit Judges and FULLAM, District Judge.*fn*
Convicted of distributing a small quantity of cocaine (about one-half ounce) and sentenced to a 10-year prison term, appellant Jeffrey Schwartz seeks reversal of his conviction. He asserts that he was deprived of his right to a fundamentally fair trial in three ways: (1) by the erroneous admission of evidence of other crimes, in violation of Federal Rule of Evidence 404; (2) by the trial judge's hostility and bias; and (3) by the trial judge's receipt, from extra-judicial sources, of (false) information adverse to the defendant, the judge's reliance thereon, and the denial of a recusal motion filed when the alleged incident came to light shortly after the conclusion of the trial. We agree with the first of these contentions, and remand for a new trial. In view of this disposition, it is unnecessary to dwell at length upon the other two assertions.
Appellant, in his mid-30's, has lived for several years in an intimate relationship with a young lady named Joyce Marker. She is the daughter of a government official in the Western Pennsylvania area. Her parents strongly disapprove of the relationship and of the appellant. However, her younger brother, Scott Marker -- aged about 20 when the relevant events occurred -- has maintained close ties with both the appellant and his sister over the years.
On the evening of November 23, 1983, Scott Marker and a friend of his were engaging in helping the appellant and Joyce Marker move their furniture to a new residence. Later the same night, at about 1:30 a.m. on November 24, 1983, local police officers spotted a suspicious van in the parking lot of a closed restaurant in a rural area. Upon investigation, they learned that the van was occupied by Scott Marker, in the driver's seat; a young man named Kevin Morelli, in the passenger seat; and a young lady named Diane Smidansky -- Scott Marker's girl friend -- seated between the two. After ordering these persons to get out of the van, the police conducted a pat-down search. In Scott Marker's pocket was a small plastic bag containing about one-half ounce of cocaine and a razor blade; some envelopes which had apparently contained a white powder at some earlier time; and an empty "Bic" pen casing with evidence that it had earlier been used for sniffing cocaine. Searchers of the van at the scene and later on disclosed a kitchen-type cutting board with a whitish powder residue thereon; vestiges of marijuana; an other miscellaneous drug paraphernalia.
The van was owned by Kevin Morelli's brother. No drugs were found in the actual possession of either Diane Smidansky or Kevin Morelli, and they were not charged.
Scott Marker was charged under state law with the criminal offense of possession of cocaine, but in exchange for his agreement to cooperate with the authorities was granted use-immunity and was placed in an accelerated rehabilitation program (ARD). He told the police that he had obtained the cocaine from the appellant earlier in the evening. His testimony to that effect at appellant's trial provided the principal evidentiary support for the conviction appealed from.
The Indictment contains but a single count, charging appellant with having distributed cocaine on or about November 24, 1983. At the start of the trial, the prosecuting attorney informed defense counsel that he intended to elicit from Scott Marker testimony not only about the November 24 incident, but also to the effect that appellant had furnished him with cocaine on innumerable other occasions over a four-or five-year period.
Before any evidence was presented, defendant's counsel made a formal motion to exclude the proffered testimony about other crimes. After considering the arguments of counsel, and after a recess in which further research was apparently conducted, the trial judge denied the motion and overruled all objections to this evidence. Thereupon, as part of the government's case in chief, Scott Marker testified that the defendant supplied him with cocaine, not only on the occasion charged in the Indictment, but also on numerous other occasions, beginning when Scott Marker was a 16-year-old high school student. In addition, he provided the further information that he had shared with other high school students the cocaine obtained from the defendant.
The record makes clear that appellant, by repeated objections and motions throughout the trial, preserved his right to appellate review of the various rulings of the trial judge admitting this evidence.
Federal Rule of Evidence 404(b) provides:
"(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, ...