419 F.2d 1020 | 7th Cir. | 1970
Lead Opinion
This case began with the filing of a two-count indictment against appellant charging violations of 18 U.S.C. §§ 912 and 913, respectively. Appellant was found not guilty on Count II, the Section 913 count, but was found guilty on Count I, the Section 912 count, of falsely pretending to be an F.B.I. agent and, in such pretended character, demanding a 1961 Oldsmobile from one Moore, as charged, in the indictment.
Fierson’s defense at trial was that he did in fact repossess the automobile over which Moore, the conditional buyer, was exercising control, but he steadfastly denied that he did so while pretending to be an F.B.I. agent. Fierson at no time disputed the character of the act charged.
Over objection, the government, during its case in chief, for the stated purpose of proving willfulness and intent, elicited the testimony of one Goethceus who recounted that eleven months prior to the date of the instant offense, Fier-son had demanded the former’s automobile while representing himself (Fier-son) as an F.B.I. agent.
As a general rule, evidence of prior criminal acts of an accused, which are not charged in the indictment or information, is inadmissible. Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892); United States v. Menk, 406 F.2d 124 (7th Cir. 1969); United States v. Reed, 376 F.2d 226 (7th Cir. 1967); United States v. Silvers, 374 F.2d 828 (7th Cir. 1967); United States v. White, 355 F.2d 909 (7th Cir. 1966); United States v. Magee, 261 F.2d 609 (7th Cir. 1958). More precisely, evidence of the commission of prior criminal acts is not competent to prove that the accused committed the act charged in the indictment or information. This rule reflects a firmly rooted notion of our jurisprudence — a man ought not be convicted of doing a specific bad act because he is a bad fellow generally. The rule is but a specific instance of the wider prohibition against allowing the prosecution to first put character in issue. McCormick, Evidence § 157 (1954).
This rule of exclusion, however, is not universal. Evidence of prior criminal acts may be admissible on other contested issues. Thus enter the “exceptions.” The government here relied on a well-founded “exception” — introduction to show intent and willfulness; to negate innocence due to mistake, misadventure, or similar folly. United States v. Marine, 413 F.2d 214 (7th Cir. 1969); Gilstrap v. United States, 389 F.2d 6 (5th Cir. 1968); United States v. Klein, 340 F.2d 547 (2d Cir. 1965); Whaley v. United States, 324 F.2d 356 (9th Cir. 1963), cert. denied, 376 U.S. 911, 84 S.Ct. 665, 11 L.Ed.2d 609, rehearing denied 376 U.S. 966, 844 S.Ct. 1122, 11 L.Ed.2d 984 (1964); Rule 4-04(b), Proposed Rules of Evidence for the United States District Courts and Magistrates (March 1969 Preliminary Draft). The only question here is whether the “exception” was properly wed to the facts of this case. We find that it was not.
Admissibility of this type of evidence is subject to knowable, yet necessarily, imprecise standards. At its roots the problem is one of balancing probative value against prejudice. Roe v. United States, 316 F.2d 617 (5th Cir. 1963). The question is, in the first instance, left to the sound discretion of the trial judge who can readily measure the pulse of the proceedings. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Gilstrap v. United States, supra; United States v. Byrd, 352 F.2d 570 (2d Cir. 1965); United States v. Klein, supra; Whaley v. United States, supra. The term “discretion” means only that no hard and fast rules are laid down. It does not mean that the trial court’s decision is immune from review.
In order to be admissible as bearing upon wilfulness and intent, evidence that the accused has committed prior criminal acts must first be shown to be similar to the offense charged and close enough in time to be relevant. In this case, the reported previous criminal act was identical in type to the offense charged, and on the question of proximity in time, we cannot say that the passage of eleven months from the date of the prior criminal act to the date of the offense alleged in the indictment was, in itself, sufficient to require exclusion. See Whaley v. United States, supra.
More than this, however, is required. Obviously intent must be an element of the offense to justify the admission of this type of evidence. Prior criminal acts cannot be proved to show intent when intent is not an element of the of
However, to justify admission into evidence of an accused’s prior criminal acts to establish willfulness and intent, it is necessary that willfulness and intent be more than merely formal issues in the sense that the defendant is entitled to an instruction thereon. See United States v. Magee, supra. When, as in this case, the government has ample evidence to take the case to the trier of fact for its deliberation, a plea of not guilty cannot, by itself, be construed as raising such a keen dispute on the issue of willfulness and intent so as to justify admission of this type of evidence. See United States v. Magee, supra.
The facts of this case, as developed at trial, did not raise even the slightest suggestion that Fierson did the physical act charged but without the requisite willfulness and intent.
Admission of this evidence was, under settled standards, error. United States v. Byrd, supra; United States v. Klein, supra; United States v. Magee, supra. It was reversible error because the trial below was to a jury.
We hold that it is reversible error in a jury trial of an accused charged with pretending to be an F.B.I. agent and demanding an automobile from another in violation of 18 U.S.C. § 912, to allow the government, during its case in chief, to introduce evidence of a prior criminal act of the accused in order to show willfulness and intent when, as here, the accused does not, except for demanding an instruction on the requisite willfulness and intent, otherwise put that issue in dispute.
Reversed and remanded for a new trial.
. Count I of the indictment charged a violation of 18 U.S.C. § 912, which reads as follows:
Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or office thereof, and [1] acts as such, or [2] in such pretended character demands or obtains any money, paper, document or thing of value, shall be fined not more than $1,000 or imprisoned not more than three years, or both.
(Brackets added to distinguish the two separate offenses contained therein.)
. This statement is subject to one qualification. Dpring his case, Fierson called James Manahan, a former assistant United States Attorney for the Southern District of Indiana, and asked inter alia, whether Manahan’s investigation of the Goethceus incident, see Note 3, infra, and accompanying text, reflected “an intent or no intent on the part of Mr. Fier-son.” The government’s timely objection thereto was sustained.
. Formal charges against appellant stemming from this earlier incident had been dismissed on the government’s motion.
. The authorities are divided on the question of whether an intent to defraud is an essential element of the offense charged in Count I. Compare, Honea v. United States, 344 F.2d 798 (5th Cir. 1965) and United States v. Harth, 280 F.Supp. 425 (W.D.Okla.1968) with United States v. Guthrie, 387 F.2d 569 (4th Cir. 1967) and United States v. Meeker, 110 F.Supp. 743, 14 Alaska 249 (D.Alas.1953). Since
. This prohibition is carried forward in Rule 4-04(a), Proposed Rules of Evidence for the United States District Courts and Magistrates (March 1969 Preliminary Draft).
. Indeed, Fierson’s one attempt to put the issue of willfulness and intent into issue proved abortive. See Note 2, supra.
. This is the critical element which readily distinguishes this case from United States v. Marine, supra, which held that evidence of prior criminal acts similar to those charged was admissible to prove intent where the defendant disputed the issue of knowledge and specific intent was an essential element of the crime charged.
. In Menk this court refused to reverse a conviction resulting from a court trial where evidence of prior criminal acts was erroneously admitted because:
a trained, experienced Federal District Court judge * * * must be presumed to have exercised the proper discretion in distinguishing between the improper and the proper evidence introduced at trial, and to have based his decision only on the latter * * *. Menk, supra, 406 F.2d at 127.
That decision was careful to point out, however, that “if this had been a jury trial we would be compelled to reverse.” Menk, supra, at 126.
Dissenting Opinion
(dissenting).
As the majority states, defendant was found by the jury to be guilty “of falsely
“Three essential elements are required to be proved in order to establish the offense charged in Count I of the Indictment:
“First: The act or acts of falsely pretending to be an officer or employee acting under the authority of the United States;
“Second: Demanding or obtaining money or some other thing of value while acting in such pretended character ; and
“Third: Doing such act or acts wilfully and with the intent to deceive or defraud another.
“As stated before, the burden is upon the prosecution to prove beyond all reasonable doubt every essential element of the crime charged.”
Defendant did not object to this instruction, which is Mathes Instruction 16.05 (27 F.R.D. 39, 132). Defendant’s brief concedes that 18 U.S.C. § 912 (note 1, supra), requires intent to the extent that the Government must prove “he deliberately committed the physical act he was accused of committing.” Moreover, the majority apparently agrees that some “kind of intent [is] required” (note 4, supra).
When defendant’s trial counsel first objected to any testimony of Lowell Goethceus that defendant had committed a prior similar offense, the Assistant United States Attorney explained that he planned to use the witness “for purposes of proving wilfullness and criminal intent.” The district court thereupon overruled the defendant’s objection.
As shown by the above-quoted instruction, this case was tried on the theory that the Government had to show defendant acted “wilfully and with the intent to deceive or defraud another.” Moore and his employer testified that defendant flashed a card in a small black folder and said that he was from the F.B.I. Both witnesses stated that they took his word for this. Defendant testified that he did repossess Moore’s car but denied that he had represented that he was authorized to do so by the F.B.I. He stated that he did show the witnesses a card from the Trans-National Investigation Bureau and volunteered that this might be misunderstood as the F.B.I. Defense counsel explained to the court that he had deliberately let the two prosecution witnesses introduce the question of defendant’s intent because he planned to elicit testimony (which was subsequently excluded on the Government’s objection) from a former Assistant United States Attorney that his investigation of the earlier indictment, involving Goethceus, showed that there was no intent to deceive on the part of defendant. Defense counsel asked this witness “From your entire file, your entire investigation, did your file reflect an intent or no intent * * * on the part of Mr. Fierson?” Accordingly, the prosecutor’s closing argument advised the jury that the Government had to prove defendant “did such acts wilfully and with intent to deceive or defraud another person,” and that the evidence showed defendant’s “intent to deceive somebody into thinking he’s a policeman or an FBI Agent.”
Unlike United States v. Menk, 406 F. 2d 124, 126 (7th Cir. 1968), without objection intent was treated as an element of the offense charged. Therefore the district judge was justified in permitting Goethceus to testify as to defendant’s previous impersonation. II Wigmore on Evidence (3d ed.) §§ 302, 321. Rule 4-04(b) of the Proposed Rules of Evidence for the United States District Courts and Magistrates (Preliminary Draft, March 1969) accords with present case law in making such an exception. It is for the district judge to decide “whether the danger of undue prejudice outweighs the probative value of the evidence” (ibid., p. 58), and defendant has not shown that the trial judge abused
Concluding that the majority opinion conflicts with our recent decision in United States v. Marine, 413 F.2d 214 (7th Cir. 1969),
The majority opinion distinguishes the Marine case on the ground that there the defendant disputed the issue of knowledge (note 7, supra) but here defense counsel questioned defendant’s intent. Moreover, the actual holding in Marine was that the Government wag entitled to introduce evidence of defendant’s prior fraudulent transactions because proof of intent to defraud was an essential element of the offense.