368 F.2d 396 (9th Cir. 1966), 20606, DeVore v. United States

Docket Nº:20606.
Citation:368 F.2d 396
Party Name:James Douglas DeVORE et al., Appellants, v. UNITED STATES of America, Appellee.
Case Date:October 28, 1966
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 396

368 F.2d 396 (9th Cir. 1966)

James Douglas DeVORE et al., Appellants,


UNITED STATES of America, Appellee.

No. 20606.

United States Court of Appeals, Ninth Circuit.

October 28, 1966

Page 397

Ronald H. Petica, of Powers & Rehnquist, Phoenix, Ariz., for appellants.

William P. Copple, U.S. Atty., Morton Sitver, Asst. U.S. Atty., Phoenix, Ariz., for appellee.

Before HAMLEY, BROWNING, and DUNIWAY, Circuit Judges.

BROWNING, Circuit Judge.

This is an appeal from a judgment convicting appellants of transporting a vehicle in interstate commerce, knowing it to have been stolen, in violation of 18 U.S.C. § 2312. We hold that it was reversible error to admit proof implicating appellants in the unauthorized use of a stolen department store credit card.

On July 12, 1964, a Standard Oil Company credit card and a Birmingham, Alabama, department store 'charge-a-plate' were stolen from a Mrs. A. L. Tramell, Jr. On July 17 an automobile was stolen from a James E. Stembridge, Jr. On July 26 appellants were apprehended in Arizona, driving the Stembridge automobile and using Mrs. Tramell's Standard Oil credit card.

Appellants told the arresting officer that on July 18 in Birmingham they had been given the car and the credit card by a James Burt, and had agreed to drive the car to Los Angeles using the Standard Oil credit card to finance the trip. They said they did not know the car was stolen.

The district court permitted the government to prove, over appellants' objection, that on July 15 and 16 certain merchandise was purchased from the Birmingham department store with Mrs. Tramell's stolen 'charg-a-plate'; and that appellant DeVore, Mrs. DeVore, and Mr. Burt were seen in possession of similar merchandise on the same dates. The evidence was admitted on the ground that it tended to disprove appellants' statement to the arresting officer that Mr. Burt gave them the car and Standard Oil credit card on July 18.

False exculpatory statements evidence a consciousness of guilt and are probative of unlawful intent (2 Wigmore, Evidence § 278); 1 and it is axiomatic that evidence which tends to prove a material fact may be admitted even though it also discloses the commission of an offense other than the one charged. 1 Wigmore, Evidence § 216. 2 It is also

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clear, however, that evidence which discloses the commission of another offense should be excluded, even though relevant, if the value of the evidence is limited and the danger of prejudice from its use is great. 3 We think this was such a case.

The evidence was highly prejudicial. It implicated appellants in the theft by trick of a substantial quantity of department store merchandise. The prosecutor made much of it. Fifteen separate charge slips were introduced in evidence reflecting the unauthorized purchase from the department store of over seventy articles valued in excess of $250. The witness who saw similar articles in the possession of the DeVores and Mr. Burt was asked to list them both orally and on a courtroom easel, and the written list was introduced as an exhibit and sent to the jury room. The prosecutor emphasized the incident in his summation, twice itemizing the merchandise, and repeatedly referring, in one manner or another, to appellant DeVore's involvement in the unauthorized purchases.

The prejudice to appellants was not balanced by any substantial gain to the government's case. As we have noted, the evidence was offered to prove guilty knowledge by showing that appellant DeVore had the Standard Oil credit card on July 15 and 16 rather than on July 18 as appellants stated to the arresting officer. Since the two cards were stolen together on July 12, the possession of the 'charg-a-plate' on July 15 and 16 may have afforded some support for an inference that the possessor also had the Standard Oil credit card. But the basis for such an inference was largely destroyed by the fact that the government's witness testified that on the 15th and 16th the merchandise supposedly purchased with the 'charg-a-plate' was in the joint possession of the DeVores and Mr. Burt-- the man who appellants said gave them the Standard Oil credit card on the 18th. 4 Moreover, the evidence was cumulative. There was ample evidence directly contradicting the explanations given the arresting officer by the appellants and Mrs. DeVore. 5

Since admission of evidence regarding the department store purchases was prejudicial error, the judgments must be reversed.

Certain of appellants' other assertions of error should be considered for guidance in the event of a retrial.

We do not agree with appellants' contention that it was error to admit a sales slip reflecting a purchase of gas and oil on Mrs. Tramell's Standard Oil credit card on July 17. The sales slip was signed 'Bobby Sanders,' and a witness testified that appellant DeVore sometimes used that name. The probative value of this evidence was greater than that of the evidence relating to the unauthorized use of the 'charg-a-plate.' The credit card was the same credit card which appellants

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used to finance the interstate transportation of the stolen car; and there was no evidence that Mr. Burt, as well as appellant DeVore, had used the alias of 'Bobby Sanders.'

The prejudice flowing from disclosure of this separate offense was less than that arising from the proof of unauthorized use of the 'charg-a-plate.' The government had already established, without objection, both that the Standard Oil...

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