UNITED STATES of America, Plaintiff-Appellee, v. James FALCO, Defendant-Appellant
No. 83-1942
United States Court of Appeals, Seventh Circuit
Decided Feb. 13, 1984
Rehearing Denied March 16, 1984
659 F.2d 659
Argued Nov. 7, 1983.
The state judge considered the witnesses’ testimony within the context of a motion for a new trial based on newly discovered evidence. The standards for granting a new trial based on newly discovered evidence and based on attorney incompetence are significantly different. Compare United States v. Oliver, 683 F.2d 224, 228 (7th Cir.1982) (newly discovered evidence) with Wade, 678 F.2d at 59 (attorney incompetence); see also Jackson v. United States, 371 F.2d 960, 962 (D.C.Cir.1966). Where a defendant claims a right to a new trial based on newly discovered evidence, he bears the burden of proving, among other things, that the evidence would probably lead to an acquittal. Where a defendant suffered from ineffective assistance of counsel, the government bears the burden of proving beyond a reasonable doubt that competent counsel would not have been able to secure an acquittal.
The trial judge‘s rejection of the witnesses’ testimony as grounds for a new trial based on a plea of newly discovered evidence does not convince us beyond a reasonable doubt that Cosey would have been found guilty had his original trial counsel performed competently. The state admitted in oral argument that the witnesses’ testimony as set out in the affidavits, if believed, would have exculpated Cosey. The state asserted that the trial judge evaluated the credibility of the witnesses based on their affidavits, and then rejected them. Nothing in the record, however, indicates why the trial judge denied the motion for a new trial.6 Moreover, the trial judge held no hearing at which the proffered witnesses were present and cross-examined, and therefore had no reason to disbelieve their sworn statements.7
The district court‘s order granting Cosey‘s petition for a writ of habeas corpus is affirmed.
Gerald M. Werksman, Chicago, Ill., for defendant-appellant.
Maureen DeMaio, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before WOOD and CUDAHY, Circuit Judges, and CAMPBELL, Senior District Judge.*
Defendant-appellant James Falco appeals from his conviction for knowingly possessing goods stolen from interstate commerce in violation of
I.
In late January, 1981, a trailer containing 2,820 cartons of plastic tobacco plant covering was stolen from the Arco Durethene Plastics Company (Arco) loading dock in west Chicago. The evidence offered by the government tended to show that defendant Falco had approached Tony Zolner, an independent broker of liquidated property, in early February and asked Zolner to assist him in selling 2,800 cartons of plastic sheeting. Zolner agreed and in return was to share in any of the proceeds from sales of the plastic in excess of $7,000. Zolner contacted the Service Warehouse and Distributing Company (Service Warehouse) to see if it had room to store the merchandise. Service Warehouse told Zolner that it could accept such a quantity of goods, which Zolner said would be delivered by a friend. On
Zolner arranged to sell 200 cartons of the plastic to Arthur Lewis Company, which bought and sold wholesale merchandise for profit. On February 20, 1981, defendant returned to Service Warehouse to pick up the cartons and delivered them to Arthur Lewis Company. Defendant first asked that payment be made in cash, but when Arthur Lewis, who owned the company, declined, defendant suggested that Lewis write a check payable to defendant personally or to Hawk Enterprises (defendant‘s nickname was “Hawk“). Lewis declined and called Zolner and told him he refused to make payment to defendant personally. Zolner told Lewis to make a check payable to Zolner, which Lewis did.
On February 23, one of Lewis’ associates called Arco to determine an appropriate price at which to sell the plastic. After receiving this call and recognizing the goods referred to as the ones that had been stolen, Arco notified the FBI. Conversations with Lewis and Zolner led the FBI to Service Warehouse. Shortly before the agents arrived, however, defendant had already removed the remaining cartons. On March 4, the FBI interviewed defendant, who told them that a trailerload of the plastic was in the parking lot at the Lyons Inn Restaurant in Lyons. The FBI found the trailer the next day at that location with 1,911 cartons of plastic still in it. The trailer had been rented on January 14, 1981, by Harry Blyskal, whose trucking companies had hauled loads for Arco in the past.
Defendant, who did not testify, offered evidence that contradicted the government‘s version of events. Defendant‘s evidence tended to show that defendant was hired by Blyskal as a truck driver in late January or early February, 1981, and that he came into possession of the merchandise in the ordinary course of his work. The delivery on February 12 was made after defendant was told by Blyskal to pick up a trailer in Lyons and deliver it to Service Warehouse. The delivery request had been made by Zolner. Defendant delivered the trailer and, after the trailer was unloaded the next day, returned it to where he had picked it up.
On February 20, Zolner called Blyskal and asked for the use of a driver only. Although Blyskal did not ordinarily lease drivers, he did so on this occasion because business was slow. Blyskal told defendant that Zolner wanted a driver to take one of Zolner‘s trucks to Service Warehouse to pick up 200 cartons of plastic and deliver it to Arthur Lewis Company, at which time Lewis was to pay defendant in cash for the goods. Defendant made the delivery, but when he asked Lewis to pay for the merchandise in cash, Lewis refused. Instead, Lewis gave defendant a check payable to Zolner. Not until February 23, when the trailer rented by Zolner from Blyskal had already been loaded, did defendant learn that the cartons of plastic were “hot.” It was Zolner who told defendant that the goods were stolen and who requested defendant to drive the load to a lot near Zolner‘s in Lyons, which defendant did.
II.
The only issue in dispute in this case was whether defendant had knowledge that the goods were stolen. In an effort to establish this element, the government moved in limine to permit it to introduce in its case in chief evidence of defendant‘s prior inter-
The district court ruled that the convictions were admissible under
III.
Because defendant challenges the admission of the prior convictions on the basis of both
A. Relevance.
The use of the prior convictions here related circumstantially to the critical element of defendant‘s knowledge. The government argues that defendant was more likely to have knowledge that the goods were stolen in the present case because he had knowledge of stolen goods on previous occasions. Defendant argues that the mere fact that he was previously convicted for crimes involving knowledge of stolen property is not probative of knowledge here unless the facts underlying the previous convictions are similar to the facts in this case. Although defendant recognizes that numerous courts have admitted the bare bones fact of a prior conviction to demonstrate knowledge in a subsequent case, see, e.g., United States v. Olsen, 487 F.2d 77 (8th Cir.1973), cert. denied, 415 U.S. 993 (1974), he contends that it is the similarity of events that makes the fact of a prior conviction probative. Defendant maintains that it is the government‘s burden to pinpoint the relevance of the previous convictions by revealing the facts underlying each of the prior convictions pertinent to the issue of knowledge and relating them to the facts of this case, and that this burden has not been satisfied.
| 1. Year of previous conviction | Statute involved | Goods possessed (as stated in the complaints) |
|---|---|---|
| 1952 | 31,050 pounds of meat | |
| 1952 | 20,000 pounds of meat | |
| 1962 | 7 camping tents | |
| 1978 | 1952 cartons of stereo receivers |
We recognize that the probative value of the previous convictions would be enhanced and their relevance thus more readily established if the facts underlying those convictions that go to the issue of knowledge were similar to the facts in this case. Obviously, “the greater the similarity of the prior act to the present offense, the less tenuous the logical inference that may be drawn from the prior act regarding knowledge or intent.” United States v. Mehrmanesh, 689 F.2d 822, 831 (9th Cir.1982) (citation omitted). Our inquiry at this point, however, is directed not toward assessing the overall probative value of the prior convictions on the issue of knowledge, but rather toward deciding whether the probative value of the prior convictions is sufficient to satisfy the threshold requirement for evidence to be considered relevant. Beechum, 582 F.2d at 913. Defendant was free to attempt to undercut the probative value of the prior convictions, and hence their relevance, by distinguishing the facts underlying the previous convictions in response to the government‘s motion to admit. By failing to proffer such evidence, however, defendant allowed the determination of the relevance of the prior convictions to turn solely on whether the fact that defendant had previously been convicted of the same or similar statutory offense requiring knowledge of stolen goods2 was minimally probative on the issue of defendant‘s knowledge in this case.3
In concluding that the prior convictions were at least minimally probative of, and hence relevant to, defendant‘s knowledge in this case, the trial court explained:
In this case the prior convictions are offered to show that Falco was familiar with transactions in stolen merchandise. This evidence is probative because it suggests that Falco would have recognized the characteristics of a shipment of stolen goods and therefore was likely to know
that the goods he transported were stolen. A single twenty-year-old conviction might lack probative value, but a history of four convictions relating to stolen merchandise, the most recent being five years old, demonstrates repeated contact with stolen merchandise over several years.... The statutes under which Falco was [previously] convicted,
18 U.S.C. §§ 659 and2315 , require knowledge that goods are stolen or the intent to steal them. The convictions are competent evidence to prove that Falco knowingly has dealt in stolen merchandise. Some probative value is lost when the Government does not offer evidence of the circumstances underlying the conviction, as is usually done. On the other hand, probative value is increased by the certainty carried by proof of a conviction; many cases admit evidence of other wrongful acts which is weaker because of significant uncertainty in the proof of those wrongful acts. Especially in view of the obstacles to obtaining more detailed evidence of twenty- and thirty-year-old crimes, I believe that the Government should be permitted to prove Falco‘s past crimes by proof of his convictions.
(Emphasis added.)
The line of reasoning implicitly followed by the district court is that:
- there are special characteristics or techniques associated with the possession of stolen goods that a person who possesses and knows the goods were stolen is likely to know; such that
- once these characteristics or techniques are known, the person will likely be aware of them in a subsequent shipment or transaction of stolen goods; and
- therefore make it more likely that the person knows that the goods in the later shipment or transaction were stolen.
We cannot say that this line of reasoning is untenable, especially in light of the number of times that defendant here was connected with goods that he knew were stolen on previous occasions. In United States v. Fairchild, 526 F.2d 185 (7th Cir.1975), cert. denied, 425 U.S. 942 (1976), we stated that evidence of other criminal transactions is relevant and admissible under Rule 404(b) “if ... it has a tendency to make the existence of an element of the crime charged more probable than it would be without such evidence.” Id. at 188-89 (emphasis added). We believe that the pattern of defendant‘s repeated contact with and knowledge of stolen goods has a tendency to make the existence of defendant‘s knowledge that the goods here were stolen more probable than it would be without such a pattern of conduct. Because of defendant‘s numerous exposures to stolen goods with knowledge that the goods were stolen, we think the general assumption relied on by the district court has validity sufficient to sustain the inferences and hence the minimal probative value necessary to satisfy the relevance requirement. See, e.g., United States v. Naylor, 705 F.2d 110, 111-12 (4th Cir.1983); United States v. DeFillipo, 590 F.2d 1228, 1240 (2d Cir.), cert. denied, 442 U.S. 920 (1979); United States v. Mehrmanesh, 689 F.2d 822, 831 & n. 10 (9th Cir.1982); see also United States v. Askew, 584 F.2d 960, 963 (10th Cir.1978), cert. denied, 439 U.S. 1132 (1979). That the probative value of the prior convictions on the issue of knowledge requires more than a single inference does not, of course, impugn its relevance so long as the connections are not entirely attenuated. “The length of the chain of inferences necessary to connect the evidence with the ultimate fact to be proved necessarily lessens the probative value of the evidence, and may therefore render it more susceptible to exclusion as unduly confusing, prejudicial, or time-consuming, but it does not render the evidence irrelevant.” United States v. Ravich, 421 F.2d 1196, 1204 n. 10 (2d Cir.), cert. denied, 400 U.S. 834 (1970).
Defendant argues that whatever probative value might otherwise be gained from the number of times defendant was previously convicted is undercut by the staleness
On the facts presented here, I do not believe that the age of Falco‘s convictions is a good reason for excluding them. It is true that many cases refer to a requirement that other wrongful acts be close enough in time to be relevant and probative. In this case the prior convictions are offered to show that Falco was familiar with transactions in stolen merchandise. This evidence is probative because it suggests that Falco would have recognized the characteristics of a shipment of stolen goods and therefore was likely to know that the goods he transported were stolen. A single twenty-year-old conviction might lack probative value, but a history of four convictions relating to stolen merchandise, the most recent being five years old, demonstrates repeated contact with stolen merchandise over several years. The probative value of these convictions is not weakened by the time span involved.
We agree with the reasoning of the district court. It is the pattern of conduct represented by the prior convictions, and not the age of each separately considered, that is critical to their relevance here. Despite the gaps between the convictions,5 a pattern emerges that tends to establish defendant‘s familiarity with transactions or shipments of stolen goods that makes it more probable that defendant knew the goods in this case were stolen.
B. Probative Value versus Prejudicial Impact.
Although we conclude that the prior convictions are relevant on the issue of knowledge, we must decide whether the district court abused its discretion in concluding that the convictions were not excludable under
Defendant makes two related arguments attacking the district court‘s failure to exclude the prior convictions under
Defendant also contends, therefore, that even if the admissions of the prior convictions were all necessary, the unfair prejudice stemming from them collectively was sufficient, in light of their slight probative value on the issue of defendant‘s knowledge, so that it was an abuse of discretion for the district court not to exclude them under
Knowledge that the subject goods were stolen will be an important element of proof in the Government‘s case. Evidence that Falco transported and delivered stolen merchandise does not lead readily to the inference that he knew the merchandise was stolen. It is important that the jury have the benefit of this competent and probative evidence of Falco‘s experience with stolen merchandise. There always is a possibility of unfair prejudice when evidence of other crimes is introduced, but on these facts I conclude that the possibility of such prejudice does not outweigh the probative value of the proffered evidence.
The trial court‘s consideration of the amount of corroborative evidence available to the government is entirely proper as part of the balancing required by
IV.
For the reasons stated above, we affirm the district court‘s decision to admit the evidence of defendant‘s prior convictions.
CUDAHY, Circuit Judge, dissenting.
Judge Wood for the majority has fairly presented the factual circumstances, as well as most of the relevant policies, bearing on the admissibility of prior convictions’ evidence in this case. Upon reflection, however, I believe that the balance between probative value and prejudice is so lop-sided in the direction of unfair prejudice that I would reverse the conviction and remand for a new trial.
The basic problem both in the argument of the district court here and of the majority is that the special circumstances and characteristics of a stolen shipment of interstate goods that give rise to the possessor‘s knowledge that the goods were stolen are not universal but, of course, vary sharply from case to case. In one case, a possessor‘s knowledge that the goods were stolen may derive from his active participation in hijacking the goods, while in another it may come from being told to deliver stolen goods to a fence. Proof in the first instance might include testimony that the hijacker was found driving the truck with the original driver bound and gagged in the back. Proof in the second case might include testimony that the driver had no bill of lading and asked for payment in cash. In these examples, therefore, the underlying facts that would allow the trier of fact to infer knowledge in each case are different. One could not reasonably infer that the possessor in the second case knew the goods were stolen from the mere fact that he had knowledge under the facts of the first case, since the respective facts that give rise to the inference of knowledge in each case are totally different.
The problem with introducing only a certificate of a prior conviction under the same criminal statute is that it says nothing about the facts underlying the conviction. In some instances, of course, the facts underlying the conviction may be unnecessary because the mere fact of a prior conviction alone may be highly probative of an element in a later case. For example, if a person were convicted of possession of cocaine and was similarly charged on a later occasion, a defense that the person did not know what the substance was would be undercut by the fact of the prior conviction. Here, however, the contested issue is whether the defendant knew that these particular goods were stolen. Unless the prior convictions involved circumstances similar to those from which defendant‘s knowledge could be inferred here, they have little if any probative value on that issue and must be considered of only the most marginal relevance.
Numerous courts have, of course, admitted certifications of prior convictions to establish knowledge, intent, and so on in a subsequent case. Some of these courts, while expressing reluctance to admit such evidence, have felt bound to do so by precedent. See, e.g., United States v. Mehrmanesh, 689 F.2d 822, 831 (9th Cir.1982) (“[N]owhere has [the government] specifically established which facts such evidence is relevant to show, nor has it articulated
I believe the defendant‘s four prior convictions fall into that category of evidence that, because it has only slight apparent similarity to or connection with the violation involved here, must be excluded. This case is not unlike United States v. Burkhart, 458 F.2d 201 (10th Cir.1972) (en banc), in which certified copies of the defendant‘s two prior convictions for interstate transportation of stolen motor vehicles with knowledge that they were stolen (one conviction occurring 15 years earlier and the other 4 years earlier) were admitted to show that the defendant had knowledge that the vehicle he was charged with transporting was stolen. In reviewing the admissibility of these convictions, the court said:
[The certified copies of the judgments of conviction] were not shown to have been connected with the case on trial either as a part of the transaction on trial or to have been related transactions in terms of sharing a common plan, scheme, design or intent, or in terms of factual or other similarity except that they were all Dyer Act violations. The trial court‘s cautionary instruction at the time was that this evidence was to be considered by the jury only for the purpose of determining whether defendant acted willfully and with specific intent and not because of mistake or accident or other innocent reason. We have no criticism of either the accuracy or sufficiency of this instruction. It is the extreme remoteness in time and space, together with the lack of any apparent similarity or connection with the principal charge, which creates the problem.
....
The judgment in this case must be reversed primarily because of the lack of manifest relevancy of the evidence of other or similar offenses in relationship to the cause on trial. The evidence is neither an inseparable part of the case on trial nor does it serve to supply anything more than irrelevant and invalid support of any element of the charge. The plan, scheme, design or intent was not shown to be a common one in relationship to the offense charged and this is an essential requirement.
....
Factual similarity is to be considered and weighed in determining the strength attributable to the relevancy factor.
Id. at 203-04 (footnote omitted), 208.
Even though the prior convictions were not lacking completely in probative value and thus could not be considered entirely irrelevant, the probative value of these convictions is so slight in comparison with their obviously weighty prejudicial effect that the district court‘s failure to exclude them under Rule 403 was an abuse of discretion. The unfair prejudice flowing from prior convictions—particularly convictions carrying over a span of 20 years—is that they “cast[] a shadow over the remaining evidence so that a jury hearing this is necessarily distracted from considering the particular merits.” Id. at 208.1 Because of this obvious and palpable danger, it is important that the probative value of prior crime evidence be substantial before it is admitted. Here, the district court did an
I therefore respectfully dissent.
Notes
THE COURT: All right. Now, ladies and gentlemen, these prior convictions that have been admitted have been admitted on only one issue, and that‘s the issue of whether the defendant knew that the materials involved in this case were in fact stolen. It‘s limited to that issue only.
In other words, you should not say: Well, he has been convicted four times, and therefore he is guilty of the fifth. We don‘t admit the prior convictions for that purpose. It is a very limited purpose. It goes to knowledge and intent, that issue. So it would be improper for the jury to say: One, two, three, four, therefore, five. That would not be proper.
Similarly, the trial court made clear in the jury instructions the limited use for which the prior convictions could be considered:
You have heard evidence that the defendant was convicted of crimes other than that charged in the indictment. You may consider this evidence only on the question of knowledge or intent. This evidence is to be considered by you only for this limited purpose.