*1 guаrded testimony appreciate in a conver- the effect it’s Other than type used, of termi- wiretaps sation, testi- is not the resulting nology mony appellant “counterfeit” prejudicial the word where agent say, He “You know Carmona. is used. would from them was that you in Decem- me in a conversation the stuff showed He stated that between Guerrieri, reference he used the word appellant I think and Mario ber?” big ap- “fifty “lamps” Since was made to ones.” involved. was pellant attempt an arrested in was Lamonge to' the ef- answered Mr. currency $50,000 in counterfeit sell longer antique fеct, “Im no might agent, the reference Government business,” to it then came back conspiracy to make the indicated a have said, lamps are available.” “Those However, conspiracy count of sale. light cautionary In in- court’s dismissed after indictment was struction, appellant’s reli- exclusive suppressed. And wiretap evidence was defense, entrapment ance an very made it clear admits all elements of the offense but testimony disregard entirely jury was exculpation seeks inducement, Government wiretaps wiretap evidence: about wiretap сonclude that we informa- has ruled that the The Court part appellant’s played no tion relative to the conversations Accordingly, we conviction. wiretaps tapes ceived on strongly disapprove of the Government’s would not in this trial. be received statute, comply we failure to with Therefore, the last . . . . affirm the conviction. testified reference who witness Affirmed. logs regard to the court or- der, any testimony the wit- Browne, may him, ness Mr. tap reference to a wire
have had with concern matters of no which are jury.
to this testimony any And if there given might have been America, prejudicial by reason UNITED STATES to the defendant Plaintiff-Aрpellee, fact it was disclosed made, have tap
wire this should bearing your BURKHART, in this William Earl no decision Defendant- Appellant. you disregard case and testimony or- has as the Court No. 71-1384. dered stricken from Appeals, United States Court of record. Tenth Circuit. Further, appellant, we observe that Feb. offering caught who was red-handed currency counterfeit to a Government
agent, exclusively relied the defense attempting entrapment. to estab- In defense, appellant questioned
lish that agent length regarding
Knepp at some ap-
telephone communications between
pellant informant. and the Government’s response question defense to a
counsel, Knepp stated: many
Well, I don’t know how calls frequent
made .... I know was
and was there [Y]ou .... *2 Farver, Atty.
Adrian M. Asst. U. S. Roth, (Robеrt Atty., U. S. J. brief), plaintiff-appellee. Kan., Norburg, Topeka. Norman S. defendant-appellant. LEWIS, Judge, Before Chief SETH,
HILL,
HOLLOWAY, McWIL
LIAMS,
DOYLE,
BARRETT and
Cir
Judges.*
cuit
DOYLE,
Judge.
WILLIAM E.
Circuit
appeal
This is an
from a conviction in
a criminal
in which the de-
fendant was
with interstate
transportation
vehicle,
of a stolen motor
contrary
Dyer Act,
to the so-called
U.S.C.
2312. The substance of the
charge was that
the defendant had on
September 26,
transported
in com-
wagon
merce a 1961 Ford station
Ashland, Kentucky
County,
to Ellsworth
Kansas, knowing it to have been stolen.
The witnesses who testified on behalf
government
Saunders,
were Paul
subject
the owner of the
vehicle and a
used
Ashland,
car dealer
Kentucky,
Matheson,
Alvin
High-
a Kansas State
way patrolman,
McMurrer,
and John T.
Special Agent for the FBI.
previous
Saunders
had not had a
acquaintanceship with the defendant. He
merely
prop-
identified the vehicle as his
erty and
August
further
testified that on
3, 1970,
missing
the car was
from his
lot;
used car
it had been on the lot
August
on the afternoon of
3. He also
testified
there had not been
species
involving
of a sales transaction
the car and that
he had not been
present
manager
stated that he had
given anyone permission
drive
temporarily.
even
Highway patrolman
The Kansas
testi-
September 26,
(some
fied that on
taken)
seven weeks after
the car was
County
notified
the Ellsworth
suspicious
Sheriff
there was a
filling
adjacent
vehicle on a
station lot
Highway
Interstate
in Ellsworth
County,
going
scene,
Kansas.
*
Judges.
DOYLE,
PICKETT,
Originally argued
HILL and
knowledge
Ford
the 1961
found
Matheson
Patrolman
sitting in
was stolen.
wagon.
vehicle
Defendant
station
and there
wheel
seat under the
front
Secondly,
erred
back,
occupants in the
three other
were
evidence the
asleep.
awaken-
Before
all of whom
as similar of-
had been offered
Mаthe-
Patrolman
these individuals
*3
fenses to
In-
Crime
with
National
son checked
that
and ascertained
formation Center
I.
reported
He
stolen.
had been
the car
sup
ample
to
There was
evidence
scene,
oc-
awakened
returned
guilt.
port
jury
Un
verdict
Defendant
them.
cupants and arrested
transported
questionably,
the vehicle was
he
vehicle, that
he owned the
stated
by
defendant
interstate
commerce.
it,
had a
that he
purchased
and
had
2. There was substantial
evidence that
receipt
unable
registration
but was
vehicle had
3. There
been stolen.
passengers
not
were
The other
find it.
legally
was
sufficient evidence to estab
They
had
who
were hitchhikers
involved.
lish the element of criminal
intent or
up
near
picked
the defendant
been
knowledge quite apart
from
sought
Salina,
officer
Kansas. The
which
referred to
convictions
are
above.
ownership
some indicia of
to obtain
vain
testified
owner
the vehicle was
The
the defendant.
from
permission.
taken without
The defend
Agent
McMurrer
testified
FBI
possession
ant was found
exclusive
cerning
the defendant
his interview of
the vehicle some seven weeks after
signing
following
a waivеr
latter's
time,
disappearance. He
was at
given
as
defendant’s version
The
form.
been, exercising
over
had
dominion
it.
agent
purchased
that he had
was
Although
defendant claimed that he
early August
the vehicle
car,
purchased the
he at the same time
in Ash-
Lot
of Paul’s Used Car
owner
paid anything,
that he
admitted
had not
price
Kentucky
purchase
land,
for
produce any tangible
did
and he
not
evi
no
he had made
He said that
$200.00.
as to the
dence
truth of
contention.
payments,
time endeavor-
was
Thus,
the basic
circumstances
facts and
money
purpose. De-
raise
this
dispel every
than
are more
sufficient
lost the bill
that he had
fendant added
guilt.
as to his
doubt
in his travels.
sale
agent
Exhibits 4
also identified
II.
5,
copies of
certified
were
which
The so-called similar
violations.
convictions for
copies
judg-
consisted of certified
1955,
2,
of these occurred June
The first
ments of conviction.
These were not
other,
Oregon. The
in the District
shown to have been connected with the
inter-
March
involved
dated
part
as
case on
either
transportation
motor
of a stolen
state
on trial or to have been re-
transaction
District
vehicle
Southern
sharing
in terms оf
lated transactions
copies
Mississippi.
showed
The certified
design
intent,
plan,
common
guilty.
pleas
had entered
defendant
similarity
terms of
or other
factual
these
particular
circumstances
they
except
were all
viola-
not shown.1
cautionary
The trial
in-
tions.
court’s
ap-
The defendant’s contentions
at the
this evi-
struction
time was
peal are:
be considered
determining
First,
insuffi-
the evidence was
willfully
defendant
acted
particularly
to establish that
whether
cient
merely stipulated
rec-
tlie
fendant
Indeed it was
shown that
been
and this had not
ords were authentic.
same mаn
hearing. De-
admitted
omnibus
factors have contributed to
Several
and not
intent
with
judicial atti-
of a cautious
formulation
innocent rea-
or other
or accident
mistake
tude.
of either
have no criticism
We
son.2
sufficiency
accuracy
instruc-
of this
First,
required
to defend
the accused
remoteness
It is the extreme
tion.
charges
described
which
together
space,
the lack
with
time and
any
or indictment. As a result
information
similarity
or connection
apparent
past
required to
actions
he is
defend
charge,
creates
principal
with
may
past
he
have in
answerеd
problem.
respect to
Thus,
his sentence.
he is
even served
A.
though
tried as a recidivist
effect
part
crimi-
of the federal
is not
applicable
nal code.
crimes,
of other
*4
enough
wrongs
simply
Secondly,
may
stated.
or acts is
such evidence
in
is
first instance
in the
Such evidence
at least some relevance to the of-
however,
are,
being tried,
several
predominant quality
There
fense
admissible.
exceptions
up
such evidence
which allow
is to show the defendant’s character as
special
artist,
circumstances
for
be received
a car thief or a
check
bad
may
purposes.
received example.
It
be
for limited
Proof of defendant’s socio-
purpose
proving
common pathic disposition
object.
a
for the
not a
is
valid
design
Showing
plan,
generally
or
to commit the of
scheme
man is
that a
bad has
charged
purpose
system
fense
or for
under our
never been
allowable.
intent,
proving motive, opportunity,
right
defendant has a
tried
knowledge, identity
mis
specific
absence
truth
of the
contained
take,
or accident.
inadvertence
in the indictment.
sight
Third,
of the fact that
often we lose
Too
аn obvious truth is that once
primarily
exclusion prior
a rule of
is
convictions are
rule
introduced the trial
and,
admission,
is,
practical purposes, completed
and not one
of evidence
although
all
for
many
exceptions,
guilty
there are
and the
outcome
as a
follows
general
formality.
regardless
from the
these do not detract
mere
This is true
exclusionary approach
the rule
employed
of the care and caution
instructing
jury.
demands.3
given
2. The full
text of the instruction
Evidence of other crimes than the one
pro-
rends:
must however have a real
.Tury,
just
possible
value,
“Members of
Govern-
bative
a
undertaking
intent, motive,
ment is
to offer evidence
worth
ab-
on issues
accident,
crimes other
than
one
sence of mistake or
or to es-
against
plan.
in the
the Defendant as evidence
a scheme or
These are the
tablish
Now,
key
express
purpose
such
of similar
case.
for
words
exception
conduct
in another
case is
which an
exclu-
only
conduct,
applied
sionary
prior
to establish
course
under
de-
design
or a
or intent.
common
cisions. The words are however not
alleged
of-
evidence of an
еarlier
limit
Such
without
as to breadth and mean-
They
ing.
be con-
fense of a like nature
be and will be
must
realistic-
determining
Jury
closely
ally
sidered
defined and limited.
charg-
They
the Defendant did the act
ex-
whether
cannot become an occasion or
you may
information,
offering
ed in the
but
evidence of
cuse or device for
sider
it
of deter-
which have little or no real
other crimes
mining
probative
acted
whether
the Defendant
or which is cumulative.
value
willfully
obviously
case,
in this
and with
This matter
a most sensi-
mistake,
intent,
and not
of a
one for
the accused and for
tive
danger
or accident or other
innocent
reason.”
The risk and
court.
great,
recognized
when
and this must
Morgan
States,
considering
F.2d
v. United
355
value
See
(10th
1966),
specific acts offered to
Cir.
wherein the court
evidence of
charged.
(by Judge Seth)
F.2d at 45.
said :
the crime
problem not
case also
was concluded
Thus,
In that
is clear that
goes
proof
evidentiary
attempted
offense
one,
of the similar
simple
rather
establishing
justice
it and resulted
short of
fairness and
fell
fundamental
merely
suspicious
circumstance.6
itself.
of the trial
very early
cases
One
States, 51
is Coulston
United
Circuit
v.
B.
(10th
Judge
1931).
Mc-
Cir.
F.2d 178
to discover
hаve not been able
We
opinion
in a careful
noted
Dermott
precedent
in either this Circuit
early
law,
com-
civil
as well as the
Eighth
when
Circuit
law, evidence of other crimes was
mon
out of
created
Tenth
theory
person
who
admitted on
Circuit,
Eighth
approves
use
apt
one
com-
committed
crime is
has
history
to show
criminal
of a man’s
opinion
of the court
mit another.
on a
same
say:
on to
went
theory
in the manner
similar offense
slight,
inference is
the unfair-
so
here.
done
manifest,
to the defendant so
ness
decision,
relatively early
Paris
In a
difficulty
delay
attendant
F.
trying several
so
cases at one time
necessity
for
great, and the confusion of the
so
stressed. The defendants
fense was
likely,
more than two hundred
the sale of narcotics
on trial
years it has been the rule that evidence
*5
City.
al-
transaction
A
Oklahoma
of other crimes
admissible.
leged
occurred in Tulsa was
to have
n.
F.2d at 180
prove the
and received. Failure
fered
subject
Judge
on the
McDermott wrote
preclude
offense was held
similar
again
Butler v.
States,
in
United
53 F.2d
of a
court said that evidence
use. The
1931).7
(10th
pointed
There he
Cir.
regarding
vague
uncertain character
such similаr
must not
out that
offenses
alleged
admissi-
such an
offense was not
in
be too remote
time. He said:
was
further
it
The court
said that
ble.
only
prosecu
fail-
cases where the
[i]n
because of
inadmissible not
prove
intent,
specific
proof,
un-
tion must
evi
it was
but also because
ure
transactions,
subsequent
dence of other similar
with the
ease
connected
point
time,
in
too remote
is admis
trial.4
prove
or
sible
intent
motive
writing
Kennedy5
Subsequently, Judge
particular
the defendant
trans
States,
for the court Gart v. United
for
action
which he is on
53 F.
trial.
(8th
1923),
the Paris
F. 66
Cir.
followed
2d at 805.
point
case,
in another
decision
narcotics
receipt
out the limitations on the
Arguably a more
rule should be
liberal
saying:
such evidence and
applied
in cases in which a
Only
proof
exceptional
intent
is an
cases
element of
the offense
charged. However, Judge
transactions
admissible.
Sanborn
excep-
jected
attempted
a case falls within the
in Nie-
Where
distinction
tion,
must be clear and
derluecke
207
dence,
availability
Morgan9
In
held
sale
view
by
proof
taken
meаns
and other factors
tools found
an automobile
making
employer
appropriate
ad-
decisions of
Slough
403(a).
prosecution to
kind
Rule
this
under
missible in the
Knightly,
Vices,
Other
Other
Crimes,
(1956).
41
L.Rev. 325
Iowa
Finally,
v. United
Sanseverino
(10th
403(a)
714,
prohibits
Cir.
F.2d
716
Section
321
1963),
at-
“if its
was a
value
danger
tax,
outweighed
tempting
substantially
evade income
prejudice,
of unfair
of the
was shown.
confusion
conduct
Judge
through
issues,
misleading
jury.”
there
To
or of
Chief
Lewis
pointed
Wright,
admis-
this same
Prac-
out that this evidence was
effect
Federal
continuity
410, pages
tice and
132-133.
sible
show
motive
Procedure
distinguished
permissible
prescribes
times
“at
intent and this was
That
author
bal-
strength
ancing
proximate
indict-
the evidence
against
degree
ment.”
will
probably be
it.
aroused
representative
decisions
above
court,
ones and
this
the recent
both
D.
guides
ones,
for both
furnish the
earlier
They
present
also
future.
and the
tendency, by
There is a
some courts at
attest
fact
the rule
least,
equate
the doctrine which allows
exceptions
Al-
have remained constant.
showing
convictions when
variations,
though
minor
there have been
the defendant becomes a
in his
witness
large
no
or decisions within
decision
own behalf with the similаr offense rule
consisting
body
Tenth
44
of some
of law
considering. A
which we
here
deci
language or
Circuit cases contains either
sion which
numer
allowed
defendant’s
accept-
holding
support
lends
brought
ous convictions
to be
out on
uncon-
ance in evidence of remote and
cross-examination and then considered as
those involved
nected offenses such as
of similar
Unit
offenses is
short,
dis-
present
is a
case.
Mancuso,
ed States v.
423 F.2d
in an
harmonious
note
otherwise
cordant
denied,
cert.
400 U.S.
body of law.
(1970).10 The
L.Ed.2d
S.Ct.
Proposed Rules
objec
revised Draft
same
rules do not serve
two
merely codi-
of Evidence
403 and
appli
§§
and are not coterminous
tives
existing
either
and does
credibility
fies the
rules
cation. The
*7
strengthen
bearing
relax
the formulations
strictly
rule is
limited to
decisions,
appear
Like the
in
cases.
on
char
convictions have
against
evidence
of this
witness, and,
cautions
use
acter of
defendant as a
See
prove
defendant’s character.
least,
past
in
rule has been
this
Advisory Committee’s
see the
permitting
in
less
what
far
restrictive
weighing
recommends
Comment which
appear
convictions.
to be irrelevant
often
rule:
approach
of this
administration
oth
doctrine
The similar offense
prosecution’s
applies
case
hand
to the
er
provides that
this situation
purpose.
in-chief and has
substantive
No
admissible.
vastly
Thus,
are
dif
doctrines
two
The
is offered.
solution
mechanical
interchanged.
ferent and should
whether
made
must be
determination
danger
prejudice out-
of undue
the difference
In this Circuit
weighs
the evi-
value of
pointed out in Coulston United
3, supra.
9. See
obliquely supports
acceptance
Note
even
of
prove plan,
kind
evidence of
this
ascertain,
we
able
scheme, design, intent,
So far as
have been
etc.
only authority
ncuso
is the
Ma
regardless
51 F.2d
wherein
of whether
it was said:
plan, scheme, design,
fered to
motive, knowledge or
The court
If
defendant
takes the witness
should consider the fact
that state of
stand,
into
a different
rule comes
mind is not a continuous and never end-
play.
steps
He
out
his character
ing condition, and hence it is not to be
defendant,
moment, and
as a
presumed or inferred that once an ac-
witness,
and as
takes on the
role
adjudged
cused has been
to have a crim-
subject
such becomes
to cross-exami-
inal turn mind that this continues un-
to the
nation in the same manner and
changed.
til shown to have
terminated
any
same extent as
other witness.
showing
plan,
lack of
The
aof
common
F.2d at 181.
design
or intent
is of itself a
foregoing
In accordance with the
we
deficiency
fatal
here.
conclude:
Applying
above,
the standards
stated
judgment
1. The
in this case
in
the error
evidence in
primarily
must
be reversed
this case was substantial and not harm-
relevancy
the evi
the lack of manifest
less.
re
in
other or similar offenses
judgment
The
of the district court is
lationship
cause
trial.
reversed and the
for a
cаuse is remanded
inseparable part
an
evidence is neither
trial.
new
sup
the case on trial nor
serve to
does it
ply anything
more
irrelevant
BARRETT,
Judge (concurring
than
support
invalid
dissenting
element
part
part).
design
charge.
plan, scheme,
in
majority in
re-
I concur with the
one
tent was not shown to be a common
only.
agree
I
the trial court
sult
relationship
to the offense
admitted into evidence
requirement.
and this is an essential
copy
Burkhart’s convic-
the certified
necessarily
prejudice
2. The
Act violation which
tion of
proving
from
flows
2, 1955,
fifteen
entered June
some
the same
had been twice convicted
prior
violation
years (in
prior
the remote
remote
too
That conviction was
here.
past)
great.
over
It
a shadow
casts
Having
determined, I be-
thus
in time.
remaining evidence so that a
judges
entitled to
trial
are
lieve
necessarily
hearing
distracted
relating
guidance
the admis-
considering
particular merits.
during
the Gov-
sion of
tried
that the defendant
The result is
Those
presentation.
in-ehief
ernment’s
rather
on his
record
and convicted
lacking, my judgment,
guidelines
allegations
particular
than on the
majority opinion. For that rea-
indictment.
pаrt.
respectfully
dissent
son
acquittal
The fact of conviction or
placed al-
opinion
majority
has
offense,
de-
not a
roadblocks
most
insurmountable
weighed
seriously
factor,
is to be
cisive
prior convictions
ceipt
in evidence of
deciding
whether
judge
during
case
in-chief
the Government’s
*8
resulting
outweighs probative
prejudice
heretofore
exceptions
the
keeping with
value.
Court
This
recognized
this Court.
exceptions
(a) uphold
similarity
consid-
the
is to be
4. Factual
either:
determining
guidelines relat-
weighed
specific
the
ered and
rule with
relevancy
admissibility and
strеngth
aspects
ing
attributable
of
the
to
clear, or
crystal
are
factor.
remoteness
rule
exceptions to the
(b)
the
overrule
Continuity
or
of the offenses
entirely.
connecting
a
on
link
case
between the
Notwithstanding
the
commands
is
trial and the tendered
offenses
similar
109,
S.Ct.
Texas,
always
Burgett
389 U.S.
v.
essential and
considered
be
holding
2,
(1967),
peated up ato time; cent Tinsley SADE, Aubrey Appellant, proved in a 7. other offenses variety ways, one which NATURAL COM- NORTHERN GAS conviction of an actual PANY, Appellee. and, offense; other No. 71-1103. court, evi- the trial if receives offenses, in- Appeals, Court States Tenth Circuit. struct limited as the evidence for which Mаrch
being received. case,
In the instant Burkhart was violation, Act name- with Kentucky
ly, transportation
Kansas of a edge vehicle with knowl- stolen question the vehicle By guilty” plea of “not and stolen. Highway
by his Kansas utterances and patrolman his arrest at the time agent, Burkhart denied
later to the FBI thereby guilty knowledge put in is- knowledge in- matter sue the of his knowledge Thus, guilty or crim- tent. very material intent was a element inal of the crime proving such
had the burden of beyond doubt.
intent a reasonable years the date of four
Some before Burk- for which the crime had been con- then he
hart was on trial Dyer Act violation.
victed of another he had that date And eleven Dyer another convicted of still
been agree trial court violation. these two having as convictions was logical bearing value mental intent as
the issue of Burkhart’s Kentucky motored from to Kansas