United States v. Michael K. Terebecki
692 F.2d 1345
11th Cir.
1982
Check Treatment

*3 Dennis in the sale of houses and equipment. HENDERSON, Before HILL and Circuit In June of Adams Dennis contacted Judges, *, and GARZA Senior Circuit proposing process- that Itel purchase an oil Judge. ing from it plant an estate and lease to GARZA, Judge: Circuit A potential Dennis. transaction form was Francisco, and sent to Itel’s completed San Terebecki, Michael defendant-appel approval. September office for On lant, charged was aiding abetting met told him Dennis with Adams and James Dennis the commission of wire attorney for the estate would attend fraud in violation of 18 U.S.C. 13431 and § to neces- meeting order execute the U.S.C. 2. Terebecki and Dennis were § sary tried and convicted but documents to transfer title Itel. Terebecki’s convic overturned, prejudicial join meeting tion due to Terebecki arrived at and exe- der, Dennis, in United States v. 645 F.2d cuted a bill of sale for an oil processing * Reynaldo Garza, Honorable G. U.S. Circuit of the of 18 § violation elements U.S.C. Judge Circuit, sitting by proof designa- complied for the Fifth and the with indictment. Since objected typographi- tion. has not this error, any See, objection cal is waived. Green, of the Zone v. Government Canal 1. The indictment under which Terebecki was charged Fed.R.Crim.P. alleged he had violated 18 U.S.C. 12(f). indictment, however, 1341. The § set a forth $285,000 Gentry.” meeting in his own name. The “Bill At this pur- “Gentry”

chase was wired from Itel’s bank to price purchase large amount of arranged Terebecki’s bank account. Terebecki subse- F Foster identified fuel from C & Oil Co. quently gave Dennis a cashier’s check for “Gentry” as Terebecki and “Anthony” $275,000, $10,000 retaining for himself. filed a subsequently Dennis. C & F Oil Co. deal, its recoup civil suit to losses December, 1978, In Itel became concerned charges brought against were Den- criminal began about the transaction and an investi- actions, however, nis. Both were subse- gation. The investigation revealed that there no processing plant quently oil at the dismissed. It, also, address on the bill of sale. revealed Terebecki contends the trial court

that Dennis and/or Terebecki never had admitting erred in evidence of extrinsic processing plant. title to an oil 404(b) Rules offense.2 Rule of the Federal The theory defense was that Terebecki admissibility of Evidence3 controls the acted as a “strawman” to assist Dennis and extrinsic offenses. In United *4 did not theory intend defraud Itel. This Beechum, 898, (5th Cir.1978), 582 F.2d 911 supported by was Dennis testified: he (en banc), denied, 920, cert. 440 99 U.S. buy intended to an oil sell processing plant, 1244, (1979), test 59 L.Ed.2d 472 S.Ct. back; it to Itel and lease it Itel knew he admissibility was set forth.4 The test selling plant; the one Adams told (1) Is the evidence questions: raises two him that for tax reasons Itel could not lease relevant to an issue other than the defend the property party bought to the same it character; ant’s and Does the evidence from; the property he enlisted Terebecki to possess probative value that is not substan serve as a “strawman” to meet re- Itel’s tially outweighed by prejudice.5 its undue quirement; and Itel knew Dennis did not at 911. Id. own the oil at the time Terebecki signed the bill of sale. therefore, The first inquiry, testimony whether Foster’s was relevant. Note that Steinmeyer, Adams and an Itel is offered to When extrinsic offense president, vice denied that Itel had a policy intent was to commit show defendant’s precluding it leasing par- from to the same charged, relevancy the offense “the of the ty it purchased from. extrinsic offense derives from the defend support To his defense of lack of fraudu- indulging ant’s himself in the same state of intent, lent Terebecki introduced evidence perpetration mind in the of both the extrin legitimate dealings business he had sic at 911. charged and offenses.” Id. evidence, To govern- Dennis. rebut this ’ Here, indulges Terebecki himself ment introduced evidence of a business charged same mind in state of both deal, fifteen months after the of- charged charged the extrinsic offense. In the of fense, in which Terebecki assisted Dennis. posed attorney fense Terebecki as an Foster, Co., Carlton an officer of C & F Oil representations made false to assist Dennis testified that a calling man himself “Mike arrangement. in a fraudulent business In Anthony” contacted Foster to set up meeting Foster, “Anthony” offense, between and a posed the extrinsic discussing admissibility conformity 2. When of extrinsic show that he acted in therewith. It conduct, however, may, pur- “offense” includes non-criminal activi be admissible for other ty “impugns motive, poses, proof opportunity, the defendant’s character.” such as a Beechum, 898, United States v. intent, knowledge, identity, preparation, plan, 582 F.2d 914 n. denied, (5th Cir.l978), .(en banc), cert. 17 440 mistake accident.” or absence of or 920, 1244, (1979). U.S. 99 59 L.Ed.2d 472 Broadway, questiona United States v. The defendant’s use of an alias in a 4. The old test of certainly impugns 991, (5th Cir.1973), specifical- ble business deal his charac 477 F.2d 995 Beechum, in United States v. ly su- ter. overruled pra, at 910. provides: 404(b) 3. Fed.R.Evid. “Evidence of 403, crimes, just preju- wrongs, other undue acts is not admissible 5. All factors in Rule not prove dice, weighed against probative person of a value. the character in order to can be

1349 Anthony” “Mike falsely represented charged after the offense and asserts that Dennis to “Gentry” in order to assist the remoteness extrinsic offense ne questionable Dennis in a business venture. gates its probative value. Terebecki is cor rect contending more remote the

Terebecki contends the extrinsic extrinsic offense the less it is. Id. offense is not relevant because there was an court, however, insufficient at 915. The trial jury basis for the to find Tere has broad becki committed the extrinsic offense. In discretion in if determining an extrinsic of relevance, assessing the trial judge must probative. fense is too remote to be Eg., “determine whether there is sufficient evi Stein, 775, United States v. 437 F.2d 780 jury dence for the to find that the defend (7th Cir.1971); States, Hale v. United ant in fact committed the extrinsic off Mitchell v. ense.”6 Id. at 913. See Fed.R.Evid. States, 213 F.2d Cir. 104(b). The uncontroverted denied, 1954), cert. 348 U.S. 75 S.Ct. Foster was proof sufficient for the (1955). judge L.Ed. 715 The trial find the proof extrinsic occurred. The dis did abuse his discretion in admitting court, trict consequently, was correct extrinsic offense. Extrinsic offenses more finding the evidence relevant. remote than fifteen months have been held the relevance of Since the testi properly admitted.7 United States v. Hits established, mony has been it must be de man, 443, 448(5th Cir.1979); Unit termined whether the probative value of Pauldino, ed substantially the evidence is outweighed by (10th Cir.1971), denied, cert. Bridwell v. prejudice. its undue In this probe, no for *5 States, 882, 204, 404 United U.S. 92 30 mula can applied; a common sense ap (1971); States, L.Ed.2d 163 Fisher v. United proach must be taken. United States 231 (9th Cir.1956). F.2d 103 Beechum, supra, at 914. “In measuring ..., probative value the judge should con Remoteness must be looked at in light of sider the similarity overall of the extrinsic the the similarity charged between and the charged offense and the offense.” Id. at extrinsic offense. Terebecki’s conduct Here, earlier, 915. as discussed the extrin very the extrinsic offense was similar to his sic very analogous offense was to the charged conduct in the The proba- offense. Thus, charged offense. the evidence does offense, tive value of the extrinsic there- probative have value. fore, was not so by reduced its remoteness as to render the trial court’s admission

Terebecki out of points the extrin sic offense was committed fifteen months the evidence an abuse of discretion. Daniels, 6. Under the old standard of United States v. In United States v. Broadway supra, (5th 1978), at an extrinsic offense the exclusion of an Cir. extrinsic was not admissible unless the elements of the offense was based on the extrinsic offense be- by plain, extrinsic offense were established ing charged unrelated to the offense. The deci- clear and conclusive evidence. sion was not based on remoteness. holding of United States v. The facts and the 7. Terebecki cited several cases in his brief in Turquitt, 1977), support 557 F.2d 464 Cir. cases, support position. however, of his These case, however, position. Terebecki’s The is not controlling. are not controlling. The court relied on the rationale Jimenez, In United States v. Broadway, supra, of United States v. which (5th Cir.1980), the court mentioned that by specifically United States v. was overruled depleted remoteness had the relevance of the Beechum, supra, at 910. The two tests for however, holding, extrinsic offense. The admissibility signifi- of extrinsic offenses are finding based on its that “no reasonable Broadway different; cantly the test asks appellant guilty could have found of the” ex- probative whether value overcomes the trinsic offense. prejudice while the Beechum test asks whether Byers, In substantially outweighs pro- prejudice (5th Cir.1979), prior the court found bative value. marihuana, possession conviction for of an un- specified charged amount of time before the offense, probative properly admitted. argument is based on several to Terebecki’s attempted At trial Terebecki First, on argument is based fictions. Mulve testimony of Herman introduce the that the Mulvehill-Itel transac- premise to the Ralph According Henson. hill and had Adams knew Terebecki proves that tion counsel, both wit by made defense proffer premise This title to transfer. no actual that, one week nesses would have testified incorrect; transaction the Mulvehill-Itel sale, signed the bill of before Terebecki Tere- Adams believed actually prove would equip to sell a proposed piece Mulvehill Mulvehill title to transfer. becki had actual equipment ment Itel and lease the same to so Hen- title to Henson actually transferred however, Mulvehill, back. Adams told to Itel. title to transfer son would have in the transac required party a third Terebecki if Adams believed Consequently, brought Henson was in as a straw- tion. done, he would Henson had would act as conveyed property man. Mulvehill obtained title before believe Terebecki had Henson, Itel, conveyed it to who leased executing the bill of sale. testimony The was offered it to Mulvehill. Second, argument is based on Itel did Terebecki’s impeach Adams’ that Adams was defrauded. premise require party not a third transaction defrauded; was de- not Adams was theory. the defense The support and to Eighty-Five Thou- Two Hundred frauded. testimony under district court excluded the was wired to Terebecki’s bank sand Dollars Fed.R.Evid. account, not Ad- from Itel’s bank account provides: Rule 403 purported account. ams’ bank relevant, evidence be ex- Although may to Itel and oil convey the non-existent cluded if its value is substan- not to Adams. unfair tially outweighed by danger argu- the sake of assuming for Finally, issues, prejudice, confusion of the or mis- knew Ter- proved Adams ment the leading jury, consideration title, the evidence does ebeeki did not have time, delay, undue waste of or needless Adams knew Terebecki. If exculpate presentation of cumulative evidence. nor Dennis owned the oil neither Terebecki in de- The trial court has broad discretion conclusions can be possible two plant, evidence, and termining admissibility (1) he was Adams’ conduct: reached about ruling appeal its will not be disturbed on Itel’s inter- grossly negligent protecting *6 showing absent a clear of an abuse of dis- est; acting in accord with he was Grimm, cretion. United v. States 568 F.2d of these Dennis to defraud Itel. Neither 1136, (5th Cir.1978). judge 1138 The trial support Terebecki’s contention conclusions excluding its by did not abuse discretion a Surely, intent. that he had no fraudulent evidence of the Mulvehill-Itel transaction. is not acting company to defraud a party that the heart of his Terebecki contends the defendant found by evidence exculpated knowledge any defense is that he had no of ma- employee to incompetent company an impropriety in the transaction and had no conspire to nipulate corrupt employee or a argues He that the evi- criminal intent. Furthermore, evidence of Adams’ with.8 dence of the Mulvehill-Itel transaction complicate easily could improper behavior gone directly would have to the issue jury. the in the case and confuse the issues intent; that he not have intended to therefore, could his did not abuse judge, The trial defraud Adams if Adams knew he had no ev- excluding this non-relevant discretion in transfer, if, as Den- mislead the especially actual title to could confuse and idence which Bowe, 360 F.2d v. United States testified, Dennis See jury.9 nis Terebecki believed Cir.1966). (2d 15 equipment. owned the working was rel- proved transaction 9. Even if the Mulvehill-Itel If it was that Adams was evant, excluding Itel, prejudice Terebecki in the to would not with Dennis to defraud this slight. prove Dennis testified the would or even to the inference that Tere- lead title, have and this Dennis did not Adams knew becki did not intend to defraud Itel. through prove intended to is what Terebecki the evidence.

1351 points Terebecki also offered the testimo Terebecki’s three are As error ny impeach merit, of Henson and Mulvehill judgment without the of the trial Adams’ statement at trial that Itel did not affirmed. court is third in the require party a transaction. AFFIRMED. major the statement did not concern a Since case, issue have impeachment would HILL, Judge, JAMES C. Circuit dissent- been collateral and was properly on a issue ing: Hawkins, v. excluded. United States 661 I the agree disposi- While majority’s denied, cert. (5th Cir.1981), F.2d 444 presented tion the in other this issues - U.S. -, 102 73 L.Ed.2d I cannot in appeal, majority’s concur (1982). treatment of the court’s error alleged trial Finally, Terebecki contends excluding regarding in evidence Mulve- refusing trial erred court in submit three Unquestionably, hill-Itel transaction. charges requested jury: to the possesses trial court broad discretion de- Charge Requested Defendant’s 20: termining relevancy materiality charge you you I that if find from the Gorel, evidence. United v. States Capital Corporation evidence Grimm, United States v. (5th Cir.1979); knew that the defendant was (5th Cir.1978). 568 F.2d 1136 The trial plant owner of the oil referred this to in court, however, abused its in ex- discretion case, you acquit then must the defendant. cluding proffered Terebecki’s evidence. Requested Charge Defendant’s 21: Terebecki offered the an evidence in at- Knowledge by corporation gained is to show tempt possess that he did not in the conduct of agents its affairs its requisite intent to defraud Itel. He con- Therefore, employees. if you find tends that the transaction Mulve- between from Capital the evidence that Itel Cor- hill, Adams, Henson again poration knew that Michael Terebecki did acting representative, Itel’s not own or have the authority to sell the of Terebecki’s he good faith belief that you oil referred to in this case then as a acting strawman order to facilitate acquit must the defendant. the deal between Dennis and Itel. Requested Charge Defendant’s 22: proffered testimony This certainly relates If find you from theory regarding to the defense’s Tere- Capital Corporation parted with its mon- judge’s becki’s intent. The trial discretion ey repre- for some other than reason “does not extend to the exclusion of crucial sentation made by defendant Michael establishing relevant evidence a valid de- then you acquit must him. Wasman, fense.” United States The defendant is entitled have the court instruct on the theory, defense Riley, Cir.1977). “assuming that the theory has foundation proffered “When evidence is of substantial *7 in the evidence United legal support.” and value, and will not preju- tend to Conroy, States v. (5th confuse, dice or all doubt should resolved Cir.1979). The properly trial court excluded United v. admissibility.” States favor requested charges 21 and 22 because Wasman, United 329 (quoting F.2d at they not supported by were and law Holt, States (5th Cir. given evidence.10 The charge by the dis- 1965)). trict sufficiently court covered the and legal errs, believe, I viewing issues in case The evidentiary majority and was prop- er. testimony regarding the Mulvehill-Itel requested 10. As charges requested charge evi- there is no evidence to support finding parted support finding dence not does a Itel knew mon- property. any representa- ey Terebecki did not own if Even it reason other than the did, above, as demonstrated that fact alone tions made Terebecki. exculpate not sufficient Terebecki. As narrowly. too Terebecki does transaction title to argue possessed that he actual he his plant nor does base processing

the oil on lack of intent to defraud Ad

argument contends that he lacked the

ams. Terebecki Ad

requisite intent to defraud Itel since

ams, representative, Itel’s told him that

needed a strawman in order to consúmate with Dennis. Mulvehill’s and Hen deal testimony support would the defend

son’s

ant’s assertion that he had been told that

Itel could consummate the deal with Dennis

only through a strawman. Terebecki would merely

have the believe that he want

ed to facilitate the deal. the testi Without Henson, Mulvehill

mony of rely

was forced to on the of a

man who had defrauding been convicted of prove

Itel in the same transaction to

central contention of his Tere defense. may

becki’s defense not be reasona may jury.

ble to a United v. Was See

man, 641 F.2d 326 United Riley, Cir.1977).

States v. 550 F.2d 233

Whether or not the factual issue would favor,

have been resolved in his I believe

the trial court should have at least allowed present

Terebecki to Mulvehill’s Den

nis’ testimony as relevant evidence. Ac I

cordingly, would reverse and remand for a

new trial. America, STATES of

UNITED

Plaintiff-Appellee, VARELLA, Charles Gavin and

Victor Chinea, Raul Felix

Defendants-Appellants. 81-5295.

No. Appeals, States Court

Eleventh Circuit. 6,

Dec. *8 Rehearing Amended on Denial of

As 31,1983.

March