Before: MARTIN, JONES and CONTIE, Circuit Judges.
Per Curiam. Gene D. McFarland and Marvin Oster appeal their convictions of transportation of stolen goods in interstate commerce and of conspiracy to commit that offense. See 18 U.S.C. §§ 2314, 371.
On December 19, 1981, 6,600 pounds of cobalt were stolen from Huntington Alloys in Burnaugh, Kentucky. Authorities eventually traced the cobalt to the Sol Walker Company, a Florida business which deals in scrap metal. Defendant McFarland was employed at Huntington Alloys. Defendant Oster was employed at the Sol Walker Company. The government presented evidence which tended to show that McFarland and Oster, along with William Smith, Paul Walker and Robert Walker, conspired to steel the cobalt and sell it to the Sol Walker Company.
The government had some difficulty in identifying McFarland as being one of the co-conspirators. Apart from circumstantial evidence, the government's only evidence of the identity of the fourth conspirator was testimony by Paul Walker of two pre-trial identifications he made of McFarland by means of photographic arrays. While McFarland asserts that evidence of neither identification should have been admitted, we need only discuss one of them.
On December 7, 1982, Paul Walker was shown an array containing a photograph of McFarland. At trial, Walker testified that he selected McFarland's photograph from the array. McFarland does not allege that the physical structure of the array was suggestive or that the police guided Walker to McFarland's photograph. Rather, McFarland points out that he and Walker had been arraigned together as co-defendants in this case on November 5, 1982, prior to Walker's identification.
We find this procedure to be unduly suggestive and conclude that there was a substantial likelihood of misidentification present. See Manson v. Brathwaite, 432 U.S. 98 (1977); Neil v. Biggers, 409 U.S. 188 (1972); Foster v. California, 394 U.S. 440 (1969). First, it cannot be doubted that showing the photographic array to Walker after he stood next to McFarland during the arraignment meets the threshold requirement of suggestiveness. Second, the five factors noted in Neil, see U.S. at 199-200, indicate that the procedure created a substantial likelihood of misidentification. Although Walker testified that he had an opportunity to see the conspirator in question, he also testified that he did not look at the perpetrator "too good" because he was frightened. Additionally, the crime occurred at night and it is undisputed that Walker has vision problems. The first Neil factor, the witness' opportunity to see, therefore weights against admissibility. The second factor is the witness' degree of attention. The only evidence on this point is Walker's testimony that he did not look at the perpetrator "too good." Thus, this factor also weighs against admissibility. The third factor, the accuracy of prior descriptions, militates slightly against admissibility. Although Walker had been able to remember certain details about the perpetrator, such as a distinctively colored beard, which linked McFarland to the crime, he also had previously told the government that a man named "Lee" was involved in the crime and also had earlier claimed that the perpetrator's name was Galley Chinn or Bill Meade. The fourth factor, Walker's level of certainty, also points toward a likelihood of misidentification. Although F.B.I. agent Danzer testified that Walker selected McFarland's photograph without hestitation, Walker was unable to make an in-court identification of McFarland.This seriously undermines Walker's level of certainty. See United States v. Cueto, 611 F.2d 1056, 1064 (5th Cir. 1980). The final factor is the length of time between the crime and the identification. In Neil, the Supreme Court noted that seven months, the amount of time that had passed in that case, "would be a seriously negative factor in most cases." See 409 U.S. at 201. Almost a full year had passed in this case between the crime and the identification. This is a "seriously negative factor" and reinforces the conclusion that the results of the array should not have been admitted.
We also find that error was committed in allowing the government to ask McFarland about his arrangements with several women. The government's asserted purpose for this questioning, to rebut McFarland's alibi, simply does not justify the depth and breadth of the questioning involved here.Even casting the probative value of this evidence in its most favorable light, it was substantially outweighed by its potential for prejudice.Compare United States v. Hans, 684 F.2d 343, 346 (6th Cir. 1982).
Oster also raised meritorious claims. The government was allowed to introduce evidence that Smith and Oster had carried out a plan to cheat Sol Walker, Oster's employer, prior to the theft of the cobalt. Smith testified that he once observed Sol Walker berating Oster and that after this event Oster complained to Smith of his working conditions. As a result of Oster's dissatisfaction with his employment, he and Smith regularly cheated Sol Walker by changing the weigh bills on sales from Smith to Sol Walker. Smith testified that Oster was given a portion of the overpayment that was obtained in this fashion.
We agree with Oster that this evidence was not admissible under Federal Rule of Evidence 404(b). The government argues that this evidence was probative of a plan, motive, scheme, or intent by Oster. Assuming this to be true, the plan, motive, scheme, or intent shown by this evidence has nothing to do with the theft of the cobalt. The mere fact that Oster may have wanted to cheat Sol Walker does not tend to prove that he also intended to engage in the theft of cobalt. The sale of the stolen cobalt to Sol Walker did not cheat Sol Walker in a manner consistent with the plan testified to by Smith. This evidence was therefore nothing more than general proof of Oster's character and as such was inadmissible under Rule 404.
We also find reversible error in the trial court's failure to grant a mistrial upon the request of Oster following an unresponsive answer by Smith. During the government's redirect examination of Smith, he stated that counsel for Oster had asked to talk to him in order to determine whether his client, Oster, should plea bargain with the government. It is not disputed that this statement by Smith was unresponsive to the question asked by the government and was prejudicial. The trial court granted a motion to strike and immediately admonished the jury to ignore Smith's remarks. Oster also asked, however, for a mistrial. This request was denied. Although a trial court has discretion to determine whether admonishing the jury to disregard improper testimony is sufficient to obviate the need for declaring a mistrial, see United States v. Smith, 403 F.2d 74, 76 (6th Cir. 1968), we conclude that the district court exceeded its discretion in this case. The remark in question was so prejudicial that even a prompt and properly worded instruction to the jury to disregard the testimony could not safely be relied upon to undo the damage. Given the tremendous potential for prejudice inherent in a remark of this nature, the district court's only recourse was to declare a mistrial. See generally United States v. Poston, 430 F.2d 706 (6th Cir. 1970); Tallo v. United States, 344 F.2d 467 (1st Cir. 1965).
Because the four errors discussed above require a new trial for both McFarland and Oster, we need not discuss and do not decide whether any of the defendants' other claims have merit.
The judgment of the district court is REVERSED and the case is REMANDED for a new trial.