author: GENE CARTER, District Judge.

text:
    UNITED STATES of America v. Edward Patrick KENNEY, et al.
    Crim. No. 84-00007-01-P.
    United States District Court, D. Maine.
    Dec. 5, 1984.

      Richard S. Cohen, U.S. Atty., Joseph H. Groff, III, Asst. U.S. Atty., Portland, Me., for plaintiff.
    Daniel G. Lilley, Portland, Me., for defendants.
   MEMORANDUM OF DECISION ON DEFENDANTS' MOTION IN LIMINE FOR EXCLUSION OF TESTIMONY OF COOPERATING WITNESS ON DUE PROCESS GROUNDS

GENE CARTER, District Judge.

On November 29, 1984, the Defendant Edward P. Kenney filed a Motion in Li-mine for Exclusion of Testimony of Cooperating Witness on Due Process Grounds. The motion seeks an order of this Court to “exclude all testimony of James Gregory Anderson, which the prosecution in the above-captioned case may seek to offer or use against the Defendant Kenney.” The grounds alleged in support of this claim are the following:

1. The agreement between the Government and James Gregory Anderson constitutes an invitation to perjury to an extent irreparable by cross-examination;
2. Said agreement violates the spirit, if not the letter, of 18 U.S.C. § 201, which proscribes bribery of witnesses;
3. Said agreement renders the testimony of the said James Gregory Anderson violative of the due process to which Defendant is entitled, and undermines the integrity of the judicial system;
4. Said agreement is inconsistent with the Fifth Amendment of the Constitution and the due process protections guaranteed to the accused by the United States Constitution.

Thus is sought to be generated an issue of the content of due process, which has recently been adjudicated, in a very short space of time, to a stage of at least modest confusion. The seeds to that confusion were sown with the case of United States v. Waterman, 732 F.2d 1527 (8th Cir.1984). In the initial opinion, a three-judge panel of the Court of Appeals of the Eighth Circuit, the Court held:

the government’s agreement with its key witness hampered the truth-finding function of the jury to a degree which cannot be reconciled with the fair procedures guaranteed by the due process clause of the Fifth Amendment. Because the testimony given pursuant to this agreement was critical to support Waterman’s conviction, we reverse the district court’s denial of his Section 2255 motion.

Id. at 1528. The Court defined the issue generated in that case to be “whether an agreement to procure testimony about accomplished facts, which places a premium on testimony adverse to a defendant, creates a risk of perjury so great that even the jury’s full knowledge of the agreement is insufficient to protect the fundamental fairness inherent in the due process clause.” Id. at 1530 (emphasis added). In deciding that issue, the Court found that the agreements involved in that case did place a premium on the production by the cooperating witness of testimony adverse to a defendant. The Court stated “the government cannot consistent with due process offer favorable treatment to a prosecution witness contingent upon the success of the prosecution. Such an agreement is nothing more than an invitation to perjury having no place in our constitutional system of justice.” Id. at 1531. Finding that the invitation to perjury was not sufficiently guarded against even by disclosure of the content of the agreement to the jury in the course of the trial process, the Court found that the agreement constituted an impermissible reward to the cooperating witness based upon the results of his testimony. Id. at 1533.

Thereafter, the same general issue was confronted by the District Court for Massachusetts in the matter of United States v. Dailey, 589 F.Supp. 561 (D.Mass.1984). In that case, the Court framed the issue in the following terms: “what is at issue is the validity of an agreement for a sentencing recommendation that is in any way contingent on the success of the government’s prosecutorial effort.” Id. at 562 (emphasis added). Noting that the panel decision in the Waterman case was not binding authority in the District of Massachusetts, the Court concluded that the panel decision “presents persuasive authority in support of defendant’s position.” Id. at 563.

Beginning its analysis of the law, the District Court implicitly acknowledged that “an agreement by which the government agrees to grant favors to a prosecution witness in return for truthful testimony about others” is not subject to challenge as violative of due process. Id. at 562. The panel in Waterman indulged precisely the same recognition in its approach to its legal analysis of the issue. Waterman, 732 F.2d at 1531. Indeed, the Court of Appeals for the First Circuit, in a decision issued five days after that of the District Court in Dailey, supra, made it clear that the law in this circuit continues to be that the credibility of an informer, just as of any other witness, is to be tested for purposes of admissibility, even in the constitutional sense, by cross-examination and determined by a properly instructed jury. United States v. Tapia, 738 F.2d 18, 20 (1st Cir.1984). Cf. Hoffa v. United States, 385 U.S. 293, 311, 87 S.Ct. 408, 418, 17 L.Ed.2d 374 (1966) (“The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury.”).

The District Court in Dailey, proceeding to an analysis of the content and meaning of the agreements involved in that case, found the agreement to give

the government three distinct recommendation options, each having a different triggering point. The government’s first option is to make a recommendation of twenty years if the witnesses have “fully cooperated ... as defined in Paragraph 2.” The government’s second option is to make a recommendation of ten years “depending principally upon the value to the Government of the [witnesses’] cooperation.” Third, the government may make a recommendation of thirty-five years if the witnesses have not fully cooperated.

Dailey, 589 F.Supp. at 563-64. The Court found the provision for a ten-year “bonus” to be an incentive to the Government’s cooperating witness to fabricate testimony, which violated due process of law. The Court stated:

To receive this ten year bonus, the witnesses must clearly do more than merely cooperate. Indeed, to earn a recommendation of ten rather than twenty years, the witnesses’ cooperation must be deemed to have been of “value” to the government. We cannot tolerate the imposition of that type of subjective pressure on witnesses, whose only interest is supposed to be in telling the truth.

Id. at 564. Accordingly, the Court, in an opinion filed on June 22, 1984, suppressed the testimony of the three witnesses who were the subjects of the agreements in question. This Court is informed the District Court’s decision in Dailey is presently pending on appeal before the Court of Appeals for the First Circuit.

The Waterman case, supra, was reargued before the Eighth Circuit Court of Appeals sitting en banc, which filed an order on September 20, 1984, indicating the en banc Court to be deadlocked on the issue. The prior decision of the panel of the Circuit was vacated and the judgment of the District Court was affirmed by an equally divided Court. Waterman, 732 F.2d at 1533. The case, as noted in Dailey, supra, would not be a binding precedent for this Court since it is from another circuit. Furthermore, it now appears that any persuasive effect given to the panel decision in Waterman by the District Court of Massachusetts in deciding Dailey has been significantly diminished by the subsequent action of the en banc Court.

The issue sought to be generated by the Defendants’ motion is, therefore, ensnared in a welter of decisional confusion. Whatever may be the ultimate decision as to the merits of the legal proposition that due process at some point vitiates, as a matter of public policy, cooperating witness agreements which provide too great an incentive to the witness to fabricate testimony, it is not necessary for this Court to enter that ideological fray in order to decide the pending motion. This is so because even if the principle underlying the Waterman and Dailey cases be correct, this agreement does not fall victim to the principle. The agreement here involved is clearly distinguishable in its content and potential effect from the agreements involved in those cases. The panel decision in Waterman is premised upon a factual conclusion that the witness agreement placed a premium on the witness giving testimony adverse to a defendant. Waterman, 732 F.2d at 1530. In Dailey, the similar premise is the Court’s factual finding that the intent of the agreements was that the most beneficial sentencing recommendation to be obtained by the witness under them was contingent upon the success of the Government’s prosecutorial effort. Dailey, 589 F.Supp. at 562.

The Court is convinced, after a careful study of the agreement between the Government and the witness Anderson, that the agreement cannot, by any reasonable reading, be found to suffer from any defect of the type determined to exist in the Waterman and Dailey cases.

The Government’s plea bargain agreement with Anderson, which is attached hereto in its entirety as Appendix “A”, contains neither the specific language nor the analytical structure of the agreements at issue in Waterman and Dailey. As originally written, the agreement first recites the history of the events which led to the making of the agreement. Appendix “A,” 1T1Í1-7. It then defines, in a critical paragraph, the obligations under the agreement of the witness, Anderson, in the following language:

James Gregory Anderson agrees to cooperate with law enforcement officials by: (1) providing complete and truthful information about both his and others, violations of the laws with regard to controlled substances; (2) actively assisting law enforcement officials in procuring the arrest and subsequent conviction of his associates and his source of cocaine; (3) agreeing to truthfully testify before the grand jury or at trial concerning his knowledge of the activities of others involving controlled substances.

Id., ¶ 8. The agreement then specifies that “[i]n return” for Anderson’s performance under the agreement, in accordance with the obligations imposed upon him by paragraph 8 thereof, the Government will take several actions with respect to his future treatment:

(1) To allow Anderson to plead guilty to a one count information charging him with a felony offense of possession with intent to distribute a substantial amount of cocaine, which prosecution is to be the only one against him for his cocaine dealings prior to November 30, 1983, id., at 1111 9 and 13;
(2) To inform the Court at the time of Anderson’s sentencing “of all cooperation that James Gregory Anderson has provided to the United States,” id., at ¶ 10;
(3) To recommend at the time of sentencing that if Anderson is to be incarcerated, such incarceration be at a facility that can provide medical assistance to him, id., at ¶ 11.

The agreement specifically states that there is no agreement as to what will be an appropriate sentence to be imposed on Anderson and that “no promises regarding terms of imprisonment have been made to James Gregory Anderson by the United States Attorney.” Id., at ¶ 12. It contains an integration clause with respect to all promises made to Anderson by the Government. Id., at ¶1¶ 15-16.

By the amendment of January 26, 1984, to the original agreement, Anderson implements the option given him by paragraphs 9 and 13 of the original agreement to plead guilty to a one-count information as specified in those paragraphs. Id., Modification, at 111. The Government then agrees to undertake the following additional obligations to Anderson:

(4) To place certain monies seized from Anderson’s safe deposit box at the Casco Northern Bank in a trust fund to pay the expenses of Anderson’s medical treatment participation in a drug rehabilitation program, and to achieve reimbursement to the Court for his attorney’s fees and to the United States for certain expenses incurred on Anderson’s behalf, id., at ¶ 2(a);
(5) To see that after entry of the guilty plea that Anderson is released on a $10,000 personal recognizance bond on condition that he attend a drug rehabilitation program, id., at 112(b);
(6) To recommend to the Court at sentencing that an extensive period of incarceration “is not appropriate based on the facts and circumstances of this case,” id., at 112(c); and
(7) Not to oppose the filing by Anderson of a Rule 35 motion for reduction of sentence and “to make known to the Court at that time the full extent of all cooperation of James Gregory Anderson,” id., at 112(d).

The Modification concludes with an integration provision. Id., at 113.

It is clear from the language of the agreement that all of the Government’s commitments to Anderson thereunder are contingent upon his performance of the obligations undertaken by him with respect to the Government in paragraph 8 of the agreement. The three affirmative obligations undertaken by the Government in the original agreement are all expressly made dependent upon Anderson’s completion of the paragraph 8 obligations; paragraph 9 states explicitly that the Government will allow Anderson to plead guilty to a single-count information absolving him from further prosecution for his drug dealings prior to November 30, 1983, “in return” for Anderson’s commitments made in his paragraph 8 and, as ancillary to that plea opportunity, the Government “further agrees” to inform the Court at sentencing of his cooperation and to recommend incarceration at a facility where medical treatment will be available to him.

The four additional undertakings of the Government under the Modification Agreement of January 26, 1984, are clearly in consideration of Anderson’s implementation of the plea option granted him by paragraphs 9 and 13 of the original agreement. Therefore, it is clear from both the language and the structure of the agreements, read together, that everything which the Government has agreed to do for Anderson under the agreement is contingent upon his satisfactory performance of his obligations under paragraph 8. Indeed, the Modification Agreement specifically states that the only commitment of the Government under the agreement to make any recommendation in respect to the length of sentence is “contingent on James Gregory Anderson’s full and complete compliance with the December 1, 1983, agreement as modified by this agreement.” Appendix “A,” Modification, at II 2(c). The only provision of the original agreement placing obligations upon Anderson is paragraph 8. Hence, the contingency expressed in paragraph 2(c) of the Modification Agreement can only be the performance of Anderson’s undertakings under paragraph 8 of the original agreement.

Thus, the pivotal question becomes whether the effect of paragraph 8, in defining the obligations undertaken by Anderson, is to place any premium on the witness giving testimony adverse to a defendant, Waterman, 732 F.2d at 1530, or to make the realization of the potential benefits under the agreement contingent upon the success of the Government’s prosecutorial efforts, Dailey, 589 F.Supp. at 562.

Paragraph 8 imposes three obligations upon Anderson: first, to provide complete and truthful information about legal violations by himself and others, Appendix “A,” at ¶ 8(1); second, to assist the Government in procuring the arrest and subsequent conviction of his associates and his source of cocaine, id., at ¶ 8(2); and, finally, “agreeing to truthfully testify before the grand jury or at trial concerning his knowledge of the activities of others,” id., at ¶ 8(3). The first and third commitments defined are those usually exacted from any cooperating Government witness, namely, to give the Government truthful information and to testify truthfully in legal proceedings. Insofar as these provisions go, there is no constitutional defect. United States v. Librach, 536 F.2d 1228, 1229-30 (8th Cir.1976) cert. denied, 429 U.S. 939, 97 S.Ct. 354, 50 L.Ed.2d 308 (1976); Waterman, 732 F.2d at 1531; Dailey, 589 F.Supp. at 562.

Defendant specifically points to the second obligation imposed upon Anderson by clause (2) of paragraph 8. This the Defendant reads to require that Anderson take action to procure “the arrest and subsequent conviction of his associates and his source of cocaine.” Since Anderson’s obligation is to procure a conviction, argues the Defendant, his efforts must be successful in accomplishing that goal. Since the Government’s obligation to provide him the benefits specified in the agreement is contingent upon his performing that obligation, among others, the risk is created, so the argument goes, that he will fabricate testimony necessary to secure a conviction.

The second clause is admittedly ineptly drafted. Nevertheless, the Defendant’s construction of clause (2) overlooks that the active verb in the clause is “assisting”; hence, the clause requires Anderson only to assist the Government, not to procure any arrest and conviction. The procuring of a conviction is the legitimate function of the prosecutor. All that Anderson is, by the clause, to do is to assist the Government in the Government’s effort to procure an arrest and conviction.

Thus, the determining factor here is the nature of the assistance that Anderson and the Government contemplate that he is to be required to provide. Clause (3) makes it clear that whatever he is to do, he is to give truthful testimony before the grand jury and at trial. This provision effectively removes any incentive on the part of Anderson to fabricate testimony. But further, the requirement of clause (1), that Anderson give the Government truthful information, and that of clause (3), that he testify truthfully in court proceedings, make it clear beyond any doubt that the Government did not intend him to do any improper act or engage in any improper conduct in performing his obligations under paragraph (8). It is clear that what the Government expected was that his information would be accurate as he supplied it to Government agents and that any testimony he gave in court proceedings would be truthful. The Court finds that Anderson could not have understood anything else to have been expected from him from the content of these agreements. It cannot be said that the paragraph, read as a whole, creates a clear incentive for Anderson to fabricate testimony in order to ensure the success of any prosecutions or this prosecution in particular.

The Court concludes that clause (2) was intended to relate to a wholly different consideration. Anderson was required by the agreements to perform a role that was additional to that of the usual cooperating Government witness, that is, to provide truthful information about events past, and, when called upon, to give truthful testimony in court proceedings about those events. His additional role was to be to actively assist Government agents in an ongoing illicit drug conspiracy investigation. He was to take an active part in that investigation by holding meetings and telephone conversations with the other suspects while wired so that conversations with them were recorded as evidence. He was to, and did- in fact, undertake, under Government supervision, to make drug buys as part of the investigation and assist Government agents in tracking the movements of those participating in such buys. It is this role of active participation in the ongoing investigation that is meant to be addressed by clause (2). Better and more artful drafting would have framed a clause that obligated Anderson in some such terms as “to actively assist law enforcement officers in investigating alleged offenses of his associates and his drug source.” The Court is fully satisfied that such activity is all that clause (2) is intended to require of him.

With clause (2) so construed, it being the only contingency upon which the benefits specified by the agreement depended, the agreement cannot be said to encourage Anderson to give false testimony by placing a premium on such testimony as to make his benefits under the agreement contingent upon the success of any prosecution instituted by the Government.

Accordingly, it is ORDERED that the motion be, and is hereby, DENIED.

So ORDERED.

APPENDIX A

AGREEMENT BETWEEN JAMES GREGORY ANDERSON AND THE UNITED STATES OF AMERICA

1. On November 30, 1983 James Gregory Anderson voluntarily consented to a search by law enforcement officials at the Portland Jetport.

2. The search failed to discover any illicit drugs. At the time, James Gregory Anderson was fully advised of his Miranda rights, including the right to have a lawyer, and after acknowledging he understood his rights, voluntarily agreed to make a statement and answer questions posed by law enforcement officials.

3. James Gregory Anderson understands and agrees that all statements made to law enforcement officials on November 30, 1983 were voluntarily given and can be used against him at any subsequent criminal proceeding.

4. On December 1, 1983, James Gregory Anderson voluntarily met with law enforcement officials and a representative of the United States Attorneys Office for the District of Maine.

5. At this meeting, James Gregory Anderson was specifically informed that (1) anything he said could and would be used against him; (2) that he was not under arrest and free to leave at any time; (3) that he was entitled to have a lawyer and if he could not pay for a lawyer that the Court would appoint a lawyer; and (4) that he specifically had the right to remain silent and/or leave the voluntary meeting at any time he wished and James Gregory Anderson affirmatively stated he understood these rights and voluntarily waived them.

6. At this meeting James Gregory Anderson was specifically advised he was a target of a federal investigation involving possession of cocaine with the intent to distribute, and conspiracy to possess cocaine with the intent to distribute. Anderson voluntarily elected to make statements on December 1, 1983 to law enforcement officials and a representative of the United States Attorneys Office.

7. James Gregory Anderson voluntarily provided to law enforcement officials and the representative of the United States Attorneys Office information about his participation and the participation of others concerning violations of criminal laws involving controlled substances.

8. James Gregory Anderson agrees to cooperate with law enforcement officials by: (1) providing complete and truthful information about both his and others, violations of the laws with regard to controlled substances; (2) actively assisting law enforcement officials in procuring the arrest and subsequent conviction of his associates and his source of cocaine; (3) agreeing to truthfully testify before the grand jury or at trial concerning his knowledge of the activities of others involving controlled substances.

9. In return the United States Attorney for the District of Maine agrees to allow James Gregory Anderson to plead guilty to a one count information charging him with possession with the intent to distribute a substantial amount of cocaine relative to his cocaine dealings prior to November 30, 1983. James Gregory Anderson understands that such a charge is a felony and carries a maximum term of imprisonment of not more than 15 years, a fine of not more than $25,000, or both.

10. The United States Attorney for the District of Maine further agrees on behalf of the United States that at the time of sentencing on such charge to inform the Court of all cooperation that James Gregory Anderson has provided to the United States.

11. The United States Attorney for the District of Maine further agrees on behalf of the United States that at the time of sentencing to recommend to the Court that if Mr. Anderson is incarcerated it be at a place that can provide medical assistance.

12. James Gregory Anderson understands that there is no agreement as to what would be the appropriate sentence in this case and no promises regarding a specific term of imprisonment have been made to James Gregory Anderson by the United States Attorney.

13. The United States Attorney agrees on behalf of the United States that if James Gregory Anderson waives indictment and pleads guilty to the charge set forth in paragraph 9 and fully cooperates with the United States as set forth in paragraph 8 of this Agreement that the United States Attorney for the District of Maine will not attempt to prosecute James Gregory Anderson for other criminal violations of Title 21 occurring within the District of Maine involving possession and/or distribution of controlled substances committed pri- or to the execution of this agreement.

14. James Gregory Anderson has been advised and understands that nothing in this agreement precludes the United States from attempting to seize the assets of James Gregory Anderson pursuant to the drug forfeiture statutes.

15. James Gregory Anderson understands and agrees that there have been no promises made to him that are binding upon the Government except those promises contained in writing in this agreement.

16. This written agreement recites the complete agreement between the United States and James Gregory Anderson and cannot be modified except by the written consent of both parties.

I, James Gregory Anderson, being of sound mind and body, have carefully reviewed the above agreement. I understand that I am entering into this agreement voluntarily. I understand that I have the right to an attorney of my choosing to review this agreement and advise me, or alternatively, if I cannot afford an attorney, I am aware the Court would appoint an attorney for me. I also again state I have been completely warned of my rights against self-incrimination and affirmatively waive those rights. Any election by me to sign this agreement without an attorney reviewing it has been done knowingly, intentionally and voluntarily and has been done because I understand this agreement to my satisfaction.

/s/ James Gregory Anderson

James Gregory Anderson

Subscribed and sworn to before me this 1st day of December, 1983.

/s/ Melody A. Richardson Notary Public My Commission Expires

October 27, 1985

For the United States

/s/ Richard S. Cohen

Richard S. Cohen United States Attorney

/s/ Joseph H. Groff III Assistant U.S. Attorney

Date 12/1/83

MODIFICATION TO THE AGREEMENT BETWEEN JAMES GREGORY ANDERSON AND THE UNITED STATES OF AMERICA DATED DECEMBER 1, 1983

Pursuant to paragraph 16 of the agreement between the United States and James Gregory Anderson, the United States by and through its attorneys Richard S. Cohen, United States Attorney for the District of Maine, and Joseph H. Groff III, Assistant United States Attorney, and James Gregory Anderson by and through his attorney, Wayne R. Douglas, modify the agreement as follows:

1. James Gregory Anderson agrees to waive indictment and plea guilty to a one count information alleging that he violated Title 21, United States Code, § 841(a)(1) in that on or about October, 1983 through December, 1983 he knowingly possessed with the intent to distribute a substantial quantity of cocaine.

2. The United States agrees as follows:

(a) that all money obtained via the execution of a search warrant on safe deposit box 2748 located at Casco Northern Bank, Portland, Maine and rented by James Gregory Anderson be returned to James Gregory Anderson’s attorney, Wayne R. Douglas, for the purpose of setting up a trust fund to pay for medical and personal expenses to be incurred by the defendant James Gregory Anderson, including but not limited to payment for a drug rehabilitation program, medical expenses, reimbursement to the court for attorney’s fees, reimbursement to the United States for expenses incurred on behalf of James Gregory Anderson and consented to by his attorney, Wayne R. Douglas, between the entry of a plea of guilty and the commencement of his period of incarceration, if any;

(b) that the defendant James Gregory Anderson, after entry of a plea of guilty, be released on a personal recognizance bond of $10,000 conditional on James Gregory Anderson voluntarily entering and continuing to completion a drug rehabilitation program approved by the United States Attorney’s office;

(c) that contingent on James Gregory Anderson’s full and complete compliance with the December 1, 1983 agreement as modified by this agreement the United States at sentencing will indicate to the Court that it is the non-binding recommendation of the United States Attorney’s office that an extensive period of incarceration is not appropriate based on the facts' and circumstances of this case; and

(d) that the United States agrees not to oppose the filing of a motion pursuant to Rule 35 by James Gregory Anderson, if deemed appropriate by his counsel, and agrees to make known to the Court at that time the full extent of all cooperation of James Gregory Anderson.

3. The Agreement between James Gregory Anderson and the United States dated December 1, 1983, as modified by this Modification to the Agreement between James Gregory Anderson and the United States recites the complete agreement between the United States and James Gregory Anderson and cannot be modified except by written consent of both parties.

I, James Gregory Anderson, have carefully reviewed every part of the Agreement between James Gregory Anderson and the United States dated December 1, 1983 and the modifications to this agreement set forth above with my attorney. I understand and agree to the conditions set forth in the Agreement between James Gregory Anderson and the United States dated December 1, 1983 as modified by the modifications set forth above.

/s/ James Gregory Anderson

James Gregory Anderson

Dated 1/26/84

I represent James Gregory Anderson as his legal counsel in this case. I have carefully reviewed and discussed the Agreement between James Gregory Anderson and the United States dated December 1, 1983 and the modifications to this agreement set forth above. To the best of my knowledge, James Gregory Anderson understands the agreement as modified by the modifications, listed above and agrees to all terms stated in the agreement as modified.

/s/ Wayne R. Douglas Wayne R. Douglas

Dated 1/26/84

Agreed to by the United States.

Richard S. Cohen United States Attorney

/s/ Joseph H. Groff III

Joseph H. Groff III Assistant U.S. Attorney

      . It is to be noted that the holding in the panel decision in Waterman appears to be somewhat more broad than the holding of Dailey, since it proscribes not only contingency agreements as to sentencing recommendations (the limit of the Court’s holding in Dailey) but any witness agreement that affords the witness "favorable treatment" of any type that is contingent for its realization upon the success of a prosecution.

      . Cf., United States v. Ortiz Oliveras, 717 F.2d 1, 4 (1st Cir.1983) (“We cannot say there is no force to the argument that a plea bargain conditioned upon an agreement to testify against a former confederate may create such an incentive to commit perjury as to violate public policy.”).

      . The plea bargain in this case consists of an original written agreement between the Government and Anderson, which was dated December 1, 1983. The agreement was subsequently amended by a written "Modification To The Agreement,” which appears to have been executed on January 26, 1984, by Anderson, his then court-appointed attorney, and the United States Attorney.

      . The Court has previously heard the testimony of the Government witness Anderson in the case of United States v. Field, D.Me., Crim. No. 84-00008-P, tried in May 1984, and in which the Defendant Kenney was also a codefendant.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America v. Edward Patrick KENNEY, et al.
    Crim. No. 84-00007-01-P.
    United States District Court, D. Maine.
    Dec. 11, 1984.

      Richard S. Cohen, Joseph H. Groff, III, Portland, .Maine, for plaintiff.
    Daniel G. Lilley, Portland, Maine, for defendants.
   MEMORANDUM OF DECISION ON BENCH RULING OVERRULING DEFENDANT KENNEY’S OBJECTION AT TRIAL TO ADMISSIBILITY OF PRIOR BAD ACTS OF THE DEFENDANT UNDER FED.R.EVID. 404(b) and 403

GENE CARTER, District Judge.

I.

Defendant Kenney stood trial on an indictment charging him with one count of conspiracy to possess cocaine with intent to distribute (21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2) and two counts of possession of cocaine (21 U.S.C. § 844(a)). The conspiracy offense is alleged to have occurred in the period January 10-12, 1984, and the possession offenses on January 12, 1984. In a December 7,1984, bench ruling during the course of the trial, the Court, over objections by the Defendant, admitted testimony by the Government’s witness, James Gregory Anderson, and related evidence, which was offered to prove “prior bad acts” of Defendant Kenney. The prior bad acts consist of participation in an alleged 1983 conspiracy to possess cocaine with intent to distribute. The issue had been raised, briefed, and argued in this case on Defendant’s Motion for an In Limine Ruling. Further extensive arguments were heard in the course of trial from counsel. The Court denied the motion, without prejudice to assertion of the objection at trial, in the proceedings on the motion in limine. Because of the admittedly critical importance of the trial ruling, the Court at trial informed counsel that it would file this Memorandum of Decision, articulating the basis of its ruling in order to complete the record in the event of future appellate review. By doing so, no delay of the ongoing processes of the trial was occasioned by the reading of such ruling into the record.

At issue by virtue of the Defendant’s objection is the admissibility under Fed.R. Evid. 404(b) and 403 of testimony by the Government’s cooperating witness, James Gregory Anderson, about certain recorded conversations that the Government witness will testify that he had with the Defendant Kenney and about other acts, events, and transactions involving cocaine trafficking in which the Defendant Kenney is claimed to have participated. All these acts, conversations, events, and transactions occurred in the period between May 1983 and January 10, 1984. This time period constituted the bulk of the alleged period of another drug related conspiracy which is set out in Count I of the indictment in the presently-pending case of United States v. Field, Criminal No. 84-00008-P. Defendant Kenney is charged in that case, with the codefendants therein, Martin and Field, with participation in a conspiracy with intent to distribute cocaine.

Defendant Kenney is not charged in the present case with acts that relate to the conspiracy charged in the Field case. Rather, he is here charged with conspiracy because of acts and transactions in which he allegedly engaged with codefendant Needelman, now a fugitive, and Anderson in the period from January 10, 1984, through January 12,1984. Specifically, the conspiracy charge concerns an alleged transaction to purchase a distinct kilogram of cocaine from codefendant Needelman and to distribute it to Anderson, who, it is claimed, provided to Defendant Kenney money to purchase the kilo from codefendant Needelman.

The Government first concedes that Anderson’s testimony on these particulars will be in respect to “prior bad acts” of Defendant Kenney within the scope of Fed.R.Evid. 404(b) and that they áre not, therefore, admissible under Rule 404(b) to prove Defendant Kenney’s character in order “to show that he acted in conformity therewith.” The Government contends, however, that the evidence is properly “admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. Further, argues the Government, the probative value of such evidence for one or more of those purposes is not “outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403.

The Defendant argues, on the other hand, that Anderson’s proposed testimony has little, if any, probative value on any of the issues for which the use of such evidence is permitted under Rule 404(b). Further, it is argued, such probative value as it may have is substantially outweighed by the considerations enumerated in Rule 403, principally, that of unfair prejudice to the Defendant. Finally, Defendant contends that use in this case of the subject testimony permits the Government to attempt to prove the 1983 conspiracy against the Defendant Kenney in an effort to convict him of another conspiracy which the Government has, by indictment, elected to treat as separate and distinct from the prior, Field case, conspiracy. This, it is asserted, the Government may not be permitted to do.

The latter argument is, on its major premise, correct, as the Government concedes. The Government may not, under Rule 404(b), prove in this case the acts of Defendant Kenney in the Field case conspiracy, whether or not he has been convicted thereof, for the purposes of showing that, because Defendant Kenney was a participant in the prior conspiracy he has a criminal disposition and it is thereby made more likely that he participated, as charged, in the January 10-12, 1984, conspiracy with the codefendant Needelman and others. However, to the extent that the proposed evidence has probative value to prove some aspect of any issue listed in the second sentence of Rule 404(b), and that value is not outweighed by any or all of the considerations enumerated in Rule 403, such evidence may be admitted for the limited purpose of proof on such of those excepted issues as are here generated.

Given that premise, the Defendant’s latter argument overlooks that evidence of the Defendant Kenney’s prior acts in 1983 may be relevant, and even admissible, in different proceedings for distinctive purposes. That is, such evidence may be properly admissible to prove (1) in the Field case, that Kenney participated in the conspiracy there alleged, and also (2) to prove in this case (a) some proposition bearing on Defendant Kenney’s motive, opportunity, intent, preparation, plan or knowledge with respect to the conspiracy charged in the present case, or (b) the absence of mistake or accident with respect to any participation in such conspiracy that is otherwise proved.

The effect of Rule 404(b) is to limit the purposes for which such evidence of prior acts may be considered to be admissible as relevant. The impact of Rule 403 is to require the Court in the exercise of a wise and informed discretion, United States v. Czarnecki, 552 F.2d 698, 702 (6th Cir.1977), to balance the probative value of such evidence for one or more of such purposes against its potential for harm because of one or more of the considerations enumerated in the second sentence of Rule 403. Guard is set, by this means, against any situation where evidence of such prior acts would be admitted on the Rule 404(b) permitted issues which had little probative value and could, at the same time, expose the Defendant to the risk that it would be used solely, or significantly, for the proscribed purpose specified in the first sentence of Rule 404(b) (e.g., to prove that Defendant is, or may be, guilty of the presently-charged offense because he participated in the prior one).

The Defendant here has pleaded not guilty and has thereby placed all elements of the offense charged in this indictment at issue. Flaherty v. United States, 355 F.2d 924, 926 (1st Cir.1966). Under that plea, the Government must prove beyond a reasonable doubt every element of the offense charged. Each of the three offenses charged here has an element of specific intent. See, e.g., United States v. Trujillo, 497 F.2d 408 (10th Cir.1974); United States v. Tarr, 589 F.2d 55 (1st Cir.1978); United States v. Newman, 490 F.2d 139 (3d Cir.1974).

Having previously heard the testimony of the Government’s witness Anderson in the trial of the Field case, and having become familiar with it in the pretrial proceedings in this case, the Court is aware in great detail of the content of that proposed testimony. The testimony may be broken down for present purposes into several segments. First, it relates to Anderson’s involvement in drug dealing with various people other than Defendant Kenney from 1973 to May 1983. Second, it relates to ongoing cocaine distribution activities by Anderson, acting through codefendants (in the Field case) Field and Martin and others, in the period from May 1983 to January 12,1984. Defendant Kenney played no active role in these activities other than allegedly being a source from which Anderson occasionally obtained wholesale amounts of cocaine. Third, Anderson’s testimony relates to those transactions which he allegedly- had with Defendant Kenney from May 1983 through October 1983, when he made his last completed purchase of cocaine from Defendant Kenney. This testimony includes assertions that Defendant Kenney was the source of some of the cocaine distributed in the course of the 1983 conspiracy. Fourth, Anderson’s testimony relates to events surrounding an attempt by Anderson, under the supervision of government agents, to make a controlled investigatory purchase of a large quantity of cocaine from Mr. Kenney in the period January 10 to January 12, 1984. These events form the basis of the conspiracy charge against Defendant Kenney in the present case.

The Defendant sought to have excluded as inadmissible evidence of “prior bad acts” of the Defendant Kenney any testimony falling within the third segment, previously described, of Anderson’s testimony. A favorable ruling on Defendant Kenney’s objections would keep out of evidence in the present case any testimony or other evidence by Anderson displaying to the jury his drug dealings with the Defendant Kenney in the period from May 1983 to October 1983.

II.

The best decisions in the majority of circuits counsel that the District Court is to approach the receipt of prior crimes evidence with a cautious attitude. United States v. Bailey, 505 F.2d 417, 419-20 (D.C.Cir.1974), cert. denied, 420 U.S. 961, 95 S.Ct. 1350, 43 L.Ed.2d 438 (1974); United States v. Brettholz, 485 F.2d 483, 487 (2d Cir.1973), cert. denied, 415 U.S. 976, 94 S.Ct. 1561, 39 L.Ed.2d 871 (1973); United States v. San Martin, 505 F.2d 918, 921-22 (5th Cir.1974); United States v. Ring, 513 F.2d 1001, 1004-05 (6th Cir.1975); United States v. Phillips, 401 F.2d 301, 305-06 (7th Cir.1968); United States v. McMillian, 535 F.2d 1035, 1038 (8th Cir.1976); United States v. Perez, 491 F.2d 167, 172 (9th Cir.1974), cert. denied, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974). The intellectual equation required to be indulged by the District Court is one of a discrete balancing judgment, and it is not satisfied by any mechanical application of the strict language of the rule. See, E. Cleary McCormick, Evidence, § 190 (2d Ed.1972).

The case literature demonstrates that a number of factors are traditionally considered by courts in determining the admissibility of such prior acts evidence. These are generally: .

(A) The force of the Government’s demonstration of need for the evidence. As the Court observed in United States v. Carter, 516 F.2d 431, 434 (5th Cir.1975): “The lack of independent evidence of the appellant’s intent would seem to make the factor of the government’s need for the evidence weigh heavily on the balancing scales.” See also, United States v. Cavallino, 498 F.2d 1200, 1206 (5th Cir.1974). Moreover, the Advisory Committee’s Notes on Proposed Rule 403 specifically state: “Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission.” (Emphasis added.)

(B) The strength of the evidence of pri- or acts. The clear majority rule requires that such prior acts, to be admissible, must be proven by evidence that is “clear and convincing.” United States v. Wagoner, 713 F.2d 1371, 1375-76 (8th Cir.1983); United States v. Wormick, 709 F.2d 454, 459 (7th Cir.1983); contra, United States v. Beechum, 582 F.2d 898, 913 (5th Cir. 1978);

(C) The persuasive or probative force of the other acts evidence. This factor refers primarily to the relative temporal remoteness of the prior acts to be proven from the offense charged. United States v. Scott, 701 F.2d 1340, 1345-46, reh’g denied, 707 F.2d 523 (11th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 175, 78 L.Ed.2d 158;

(D) The risk of prejudice that will be occasioned by the admission of the prior acts evidence. This element of the equation requires that evidence of prior acts be excluded where any probative force on matters such as intent or motive is “grossly overshadowed by the propensity of the testimony to prove only a criminal disposition.” United States v. Back, 588 F.2d 1283, 1285 (9th Cir.1979).

Applying these criteria to determine the admissibility of Anderson’s testimony as to the prior 1983 acts of Defendant Kenney, it is clear to the Court that this prior acts testimony is evidence of a high level of probative force.

A.

It is significant that the only evidence available to the Government to connect the Defendant Kenney to any negotiations or acts involving large scale sales of cocaine is the testimony of Anderson, and the testimony of the agents who overheard, via wiretap, the conversations between Anderson and Kenney in the late forenoon meeting on January 12, 1984.

Only Anderson can explain firsthand how these conversations came about. The explanation evolves out of his alleged relationship, as he describes it, with Defendant Kenney prior to January 10, 1984. The agents can testify to their direct knowledge as to what happened in their view once Defendant Kenney arrived at the West-brook Mall parking area. The gist of that is their observation of Defendant Kenney meeting Defendant Needelman, and their arrest of Defendant Needelman, in possession of a paper bag that ultimately proved to contain the money previously given to Anderson by the agents. Of course, it is also true that the agents may testify to what they overheard about certain of the conversations between Defendant Kenney and Anderson in the period January 10-12 while they were electronically eavesdropping upon those conversations. All that they would be permitted to testify to, however, is the substance of those conversations. They are not in any position to testify on such matters as the motivation of Defendant Kenney for participating in those conversations or to give any interpretations of Kenney’s statements at the time they were made in the course of those conversations.

Thus, the critical aspect of the Government’s case, from its point of view, is its ability to prove for what purpose Defendant Kenney could be found, beyond a reasonable doubt, to have transferred the money given to Anderson to Defendant Needelman. For evidence on that critical aspect of the case, the Government is wholly dependent upon the testimony of Anderson. Questions of Kenney’s motive, intent, purpose, design and the context of his dealings with Anderson in the period of January 10-12, 1984, can only be resolved by Anderson’s explication of his prior relationship with Defendant Kenney. Only that explication can serve to establish what was the subject of the guarded language of the conversations that made up those dealings. Only that explication can show clearly the status of Defendant Kenney’s knowledge of the transaction. Clearly, the Government has a compelling need for the prior acts evidence.

B.

The proof of the prior acts derives wholly from the testimony of Anderson. He was allegedly the only person other than the Defendant Kenney who took part in the 1983 transactions for the purchases from Kenney of large quantities of cocaine. Yet, the plea bargain between Anderson and the Government and Anderson’s own testimony show that it was principally in reliance upon his knowledge of those 1983 transactions that he became a cooperating witness, pleaded guilty to an information charging a felony offense, and agreed to actively assist the Government in its investigation. Anderson’s description of the pri- or transactions with Defendant Kenney in 1983 follows the same basic transactional format as that which he described for the January 1984 transaction. The Court is satisfied that the Government’s showing of the strength of the prior acts evidence meets the “clear and convincing evidence” standard.

C.

Anderson’s testimony will show that he dealt with Defendant Kenney on several occasions in the five months between May and October of 1983 to purchase large quantities of relatively pure cocaine. The last of these transactions was separated by less than three months from the January 12, 1984, alleged transaction, which was nearly identical in its format to those earlier transactions. The slight gap in time between those transactions, and the similarity of some features of the prior transactions to that of January 12, 1984, gives a strongly persuasive force to the prior acts evidence.

Further, the prior acts evidence is of great probative force in establishing convincing proof that Defendant Kenney had the opportunity to gain access to large quantities of pure cocaine for purchase by Anderson close in time to the alleged occurrence of the offense for which the Defendant is on trial. That evidence is persuasive of a fixed plan and pattern of conduct of Defendant Kenney in dealing in cocaine, similar in structure and content to his alleged participation in the transaction which the Government seeks to prove. The prior acts evidence, if believed by the jury, certainly will go a long way to prove Defendant Kenney’s intent to participate on January 12, 1984, in a transaction to deal in cocaine. With even greater force that evidence will show, if believed, his knowledge on January 12, 1984, that he was engaged in an arrangement for the sale of a kilogram of cocaine.

The prior acts evidence is relevant to establish his continuous past trading relationship with Anderson, which is substantially consistent with the transaction that Anderson will testify occurred on January 12, 1984. It will, if believed and used for that purpose, constitute compelling evidence of the consistency of Anderson’s testimony and dealings and strengthen the credibility of his testimony, on which the Government’s case principally rests.

Most importantly, the prior acts evidence is relevant to set the testimony of Anderson in its whole context and to permit the Government to show that the offense at issue is but a part of a whole pattern of dealings and acts extending over an eight-month period from May 1983 to January 12, 1984. It may establish that the January 12, 1984, acts are an inseparable part of a string of similar transactions. Use of prior acts evidence “to complete the story of the crime on trial by proving its immediate context” is proper, United States v. Howard, 504 F.2d 1281, 1284 (8th Cir.1974), as where it is used to prove that the charged acts are “part and parcel” of a continuing course of similar criminal activity. United States v. Cochran, 475 F.2d 1080, 1082 (8th Cir.1973), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); cf. United States v. Turpin, 707 F.2d 332, 336 (8th Cir.1983) (prior acts evidence admissible where it is “an integral part of the immediate context of the crime charged”).

D.

To be balanced against the very considerable probative force and persuasiveness of the prior acts evidence to which objection is made, for the foregoing multiple purposes, is the risk of prejudice to the Defendant Kenney. That risk here is not substantial. To the extent that Anderson’s version of his dealings with Defendant Kenney is believed by the jury, there is no unfairness in exposing Defendant Kenney to the exposition in full context of the details of his entire personal relationship over an eight-month period of time with Anderson. He will be in a position to adjudge accurately the veracity of Anderson’s testimony as to the acts Anderson contends Defendant Kenney participated in with him. Thus, Defendant Kenney will be in a position to know if Anderson testifies falsely and to develop a strategy of proof to meet Anderson’s allegations, if they are false. The entire story, as it is to be related by Anderson, is not complex or confusing; it describes a relatively simple, straightforward series of transactions between the two men over a relatively short period of time. The critical feature of the Government’s case will be the credibility of Anderson.

To deprive the Government of the opportunity to show the prior acts could well leave the jury with a brief and amorphous fragment of a larger relationship and course of conduct that could not help but be deceptive in its incompleteness and confusing in its undisplayed origins, ramifications and implications. By comparison with the positive strength of the purposes for which the prior acts testimony may legitimately be used, the potential persuasiveness of the evidence and its probative force on issues for which it may properly be used, any possible unfairly prejudicial effect is of relative insignificance. Nor is it likely to mislead the jury or cause confusion or undue delay.

III.

Accordingly, the Court concludes, in the exercise of the discretion conferred upon it by Fed.R.Evid. 404(b) and 403, that the evidence of prior acts of Defendant Kenney in 1983 in respect to cocaine transactions with the witness Anderson, offered by the Government, is properly admissible for any one or more of the purposes specified hereinabove.

IV.

Defense counsel has made a facially appealing argument that prior acts evidence must be excluded in order for the Court’s ruling in this case to be consistent with the Court’s ruling in the Field case, which excluded from the record in that case evidence of Defendant Kenney’s subsequent acts in the January 1984 conspiracy. However, close analysis shows that in the exercise of a wise, informed discretion, Czarnecki, 552 F.2d at 702, it is less consistency of result that is properly to be sought than consistency of application of the controlling principles. In the Field case, the Court admitted the evidence of Defendant Field’s subsequent acts through January 12, 1984, against both Field and the Defendant Kenney, the rationale being that, since there was no showing made that either of them had withdrawn from the 1983 conspiracy, Field’s acts in continuing to sell, right up until January 12, 1984, the cocaine allegedly sold by Defendant Kenney in 1983 to Anderson, were acts in the continuing furtherance of the purposes of the 1983 conspiracy. Since Kenney never withdrew from the 1983 conspiracy, under the agency theory of criminal conspiracy Field’s acts were attributable to him as a coconspirator. As such, they were relevant to prove the 1983 conspiracy against both Field and Kenney. Field’s acts were not, however, any part of the January 12, 1984, conspiracy and no contention was made then or now that he was a member of the latter conspiracy. Hence, proof of his acts did not inform the jury of even the existence of the alleged 1984 conspiracy. No risk of unfair prejudice was created by their admission.

However, the Court excluded under Rule 403 any proof of the subsequent acts of the Defendant Kenney relating to the January 12, 1984, conspiracy because their probative value was outweighed by the risk of unfair prejudice. The Court was satisfied that in the context of the record in that case, Defendant Kenney’s subsequent acts in January 1984 had little, if any, probative value in proving any proposition concerning his knowledge, motive, opportunity, intent or relationship with Anderson in respect to the 1983 transactions.

Further, there was little need for such evidence because Anderson’s testimony otherwise proved in great detail the factual circumstances of the alleged 1983 transactions, meetings and discussions which were the subject of that prosecution. Evidence of acts relating to the latter offense were not necessary to set the context of the testimony as to the prior offenses which were there charged, and, in fact would not do so.

Finally, proof of Defendant Kenney’s subsequent acts, if believed by the jury, would have proved that he had committed another subsequent offense of a somewhat similar nature. Calling the said evidence of the January 1984 acts to the jury’s attention would, however, in the Court’s view of that ease, have made very compelling the temptation for the jury to unfairly and improperly convict Defendant Kenney on the theory that if he committed the offense later in January of 1984, he had probably also committed it earlier in 1983. Yet, this risk would be run for very little in the way of positive, probative force to be derived from the proof of the subsequent acts on any issue relating to the 1983 conspiracy. As a discretionary judgment, the Court found the hazard too great to be justified for the small benefit, really unneeded by the Government in any event, to be gained by admission of evidence of Defendant Kenney’s subsequent acts in 1984. Thus, such evidence was excluded. No analytical inconsistency exists between that ruling and the one presently made in this case.

Defense counsel has pointed to the Court’s comment in its ruling in the Field case that there were factual dissimilarities between the 1983 and 1984 conspiracies. Counsel argues vigorously that if the existence of such dissimilarities made the “subsequent bad acts” evidence inadmissible in the Field case, it must do so here with respect to the “prior bad acts” evidence. That argument overlooks the fact that the primary analysis performed by the Court in Field was to weigh the benefits of admission of the evidence against the risks. That is not to say that there were not some aspects of the two charges that were dissimilar. Defense counsel points principally to the fact that in the 1984 transaction: (1) the cocaine was never delivered to Anderson by Defendant Kenney; (2) Defendant Kenney’s alleged source of the cocaine was different than in the 1983 transaction; and (3) Anderson did not produce the full price for the cocaine, which injected a new element into the negotiations. Those were admittedly factual distinctions between the 1983 and the 1984 transactions.

The Court felt that in the context of offering the 1984 acts to prove Defendant Kenney guilty of the 1983 conspiracy, the significance of such differences was exacerbated and should be given considerable weight as an element in the benefit/risk equation.

The most marked dissimilarity, however, was one not mentioned by counsel. It lay in the nature of each of the offenses charged. The indictment for the 1983 offense did not charge Defendant Kenney’s source of cocaine as a coconspirator. The gravamen of that charge, as against Defendant Kenney, was that he agreed to sell cocaine to Anderson for the purpose of Anderson’s distribution of it to the street level dealers, Martin and Field, and in turn, to their and Anderson’s street level customers. The conspiracy alleged in this case does name Defendant Kenney’s source for the cocaine, Defendant Needelman, as an indicted coconspirator. The thrust of this prosecution of Defendant Kenney is that he agreed with Anderson and Needelman to obtain cocaine for Anderson from Needelman. The prosecutorial focus upon the nature of Defendant Kenney’s allegedly unlawful conduct is different in the two cases. In one (1983), there is a claim of conspiracy to sell for distribution a substantial quantity of cocaine to Anderson. In the other (1984), there is a claim of a conspiracy to acquire for Anderson (from Needelman) a substantial quantity of cocaine. Viewed only in prospect at the time of the ruling in the Field case, the Court felt that the difference in focus in the two prosecutions, taken in juxtaposition to the Court’s evaluation of the low level of probative force of the evidence of 1984 acts to prove a 1983 conspiracy, could seriously heighten the prejudicial effect of the evidence of the 1984 acts if admitted in the Field case.

That exacerbative effect is clearly not present here. Evidence that Defendant Kenney was in 1983 engaged in repetitive sales of large amounts of cocaine to Anderson for street distribution, if believed, may be most instructive to a jury as factfinder to show Defendant Kenney’s motive, plan, intent, knowledge, opportunity and preparation regarding the 1984 conspiracy to acquire cocaine for Anderson from Defendant Needelman. The evidence may be most important, in addition, in establishing the absence of mistake or accident on the part of Defendant Kenney. Here, it is that very dissimilarity which may most heighten the probative force of the prior acts evidence by showing that Defendant Kenney was, in fact, a link in a distributive chain.