U.S. v. Ballew, 94-2008

• Decision Date: 28 December 1994
• Docket Number: No. 94-2008,94-2008
• Parties: UNITED STATES of America, Appellee, v. Cecil Eugene BALLEW, a/k/a Eugene Ballew, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 936

40 F.3d 936

UNITED STATES of America, Appellee, v. Cecil Eugene BALLEW, a/k/a Eugene Ballew, Appellant.

No. 94-2008.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 13, 1994.

Decided Nov. 18, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Dec. 28, 1994.

Ilene A. Goodman, St. Louis, MO, for appellant.

Michael A. Price, Asst. U.S. Atty., St. Louis, MO, for appellee.

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

Cecil Eugene Ballew was tried before a jury and convicted of one count of mail fraud and one count of wire fraud in violation of 18 U.S.C. Secs. 1341, 1343. The fraud charges against Ballew stemmed from a false claim that his red 1987 Chevrolet pick-up truck had been stolen. The District Court ¹ sentenced Ballew to 21 months in prison on each count, to be served concurrently, and two years of supervised release. Ballew appeals both his convictions and his sentences. We affirm.

I.

By way of background, we summarize the government's evidence in this case. Responding to a previous call by Ballew, John L. Coleman, a representative of Motors Insurance Company (MIC) in Memphis, Tennessee, telephoned Ballew at his home in Poplar Bluff, Missouri, on November 4, 1987. In a recorded statement, Ballew reported to Coleman that his red 1987 Chevrolet pick-up truck had been stolen in New Orleans, Louisiana, on or about October 9, 1987. Coleman mailed Ballew a claim report form and a loss statement form. MIC received the completed forms from Ballew by mail November 13, 1987. Three days later, MIC paid Ballew and Ford Motor Credit Corporation, the lienholder, $16,750 for the loss.

On May 31, 1989, the Missouri State Highway Patrol recovered the red 1987 Chevrolet pick-up truck at Charles Chatman's farm in, coincidentally, Poplar Bluff, Missouri. Chatman and Ballew had been friends for about ten years. MIC sold the vehicle for salvage, reducing MIC's loss to approximately $10,900.

Evidence introduced at trial showed that Ballew had been in control and possession of the vehicle after he reported it stolen. Ballew had driven the vehicle on numerous occasions after his receipt of MIC's payment on his claim, using it for a few days at a time and then returning it to a locked storage garage, to which Ballew had a key, on the Chatman farm. Ballew used the vehicle in two legitimate businesses: a motorcycle and boat shop and an out-of-state farming operation.

When the state highway patrol recovered the vehicle from the Chatman storage garage, its original engine was on the floor of the garage, and a Dodge Cummins diesel engine was suspended from a chain in front of the truck. The truck did not have a vehicle identification number, but it did have a Missouri Department of Revenue assigned identification number ² that had been issued to Ballew for a blue 1979 Chevrolet pick-up truck. The troopers found a variety of truck parts, some with altered identification numbers, in the vicinity of the truck. They also found a license plate (Mo. 555 623) that had been issued to Ballew for his blue 1979 Chevrolet pick-up truck. The evidence further showed that the same Missouri license plate had been affixed to the red 1987 Chevrolet truck.

Troopers also recovered from the Chatman farm four other trucks that various dealers had reported stolen: (1) a red 1989 dual cab Chevrolet pick-up truck reported stolen from a dealer in Murray, Kentucky, in February 1989 (valued at $20,842); (2) a two-tone blue 1985 Chevrolet pick-up truck from the same dealership reported stolen in March 1989 (valued at $9,500); (3) a blue 1989 Ford pick-up truck reported stolen from a dealer in Sikeston, Missouri, in March 1989 (valued at $19,000); and (4) a silver and gray 1989 Dodge pick-up truck (from which the Dodge Cummins diesel engine was extracted) reported stolen from another dealer in Sikeston, Missouri, in March 1989 (valued at $18,686). Troopers recovered a sixth vehicle, an orange 1983 GMC pick-up truck owned by George Ballew, the defendant's father, that did not have a vehicle identification number. The evidence showed that the defendant interchanged various parts of these trucks and the red 1987 Chevrolet pick-up truck to hamper identification of the vehicles.

Ballew enlisted Chatman and Clayton Dewayne Hastings, Ballew's partner in the farming operation, to help him steal vehicles one, two, and three from their respective owners. Chatman and Hastings stole vehicle four without Ballew. Ballew arranged to have the engine from the fourth stolen vehicle put into Ballew's red 1987 Chevrolet, and Ballew was present in the storage garage when the engine was removed from vehicle four. Ballew also enlisted Chatman and Hastings to help him conceal the trucks, including the red 1987 Chevrolet that he had reported stolen.

After additional investigation, the Missouri State Highway Patrol seized the blue 1979 Chevrolet truck to which the state of Missouri had assigned the license plate and Director of Revenue number found on the red 1987 Chevrolet. Troopers located it on the Horner farm in Senath, Missouri. The Horners stated that the vehicle ("the Horner farm truck") belonged to Eugene Ballew.

II.

For reversal of his convictions, Ballew contends that (1) the District Court abused its discretion by admitting evidence that Ballew tampered with the identifying marks of the Horner farm truck; and (2) the court erred by overruling his motions for a judgment of acquittal because the government had failed to produce sufficient evidence for the jury to find him guilty beyond a reasonable doubt. We reject these contentions.

A.

Ballew argues first that the District Court erred when it denied his motion in limine and subsequent objection at trial seeking to exclude evidence of prior bad acts under Federal Rule of Evidence 404(b), ³ specifically the evidence and testimony regarding the Horner farm truck. We review the evidentiary rulings of a district court only for abuses of discretion, United States v. Whitfield, 31 F.3d 747, 749 (8th Cir.1994), and will reverse only when an improper evidentiary ruling affects the substantial rights of the defendant or when we believe that the error has had more than a slight influence on the verdict, United States v. DeAngelo, 13 F.3d 1228, 1233 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 2717, 129 L.Ed.2d 842 (1994); see also Fed.R.Crim.Pro. 52(a).

Ballew's objection under 404(b) mischaracterizes the evidence in question as evidence of "other crimes, wrongs, or acts." The Horner farm truck evidence is better described as direct evidence of the crime charged. Parts of the Horner farm truck were found with the red 1987 Chevrolet pick-up truck that Ballew had reported stolen. The license plate assigned to the Horner farm truck had been on the red 1987 Chevrolet pick-up truck. The evidence further showed that a Missouri Director of Revenue number found on the red truck came from the Horner farm truck and that Ballew was the owner of the Horner farm truck at the time it was seized by the Missouri State Highway Patrol.

Ballew was charged with mail fraud and wire fraud in this case, both of which contemplate a "scheme or artifice to defraud." 18 U.S.C. Secs. 1341, 1343. It is obvious that parts were switched between the Horner farm truck and the red truck to conceal the identity of the red truck and thus successfully carry out Ballew's scheme to defraud his insurance company. Direct evidence of the crime charged is not subject to the heightened scrutiny of Rule 404(b). United States v. Aranda, 963 F.2d 211, 213-14 (8th Cir.1992). We find no abuse of discretion by the District Court in its denial of Ballew's objections to the admission of this evidence.

Even if we were convinced that Rule 404(b) applied to the Horner farm truck evidence, we would hold that it met the rule's requirements for the admissibility of other acts evidence. When assessing the admissibility of evidence under Rule 404(b), courts may consider three factors: (1) whether the evidence is relevant to a material issue other than the defendant's character, (2) whether the other act is similar in kind and reasonably close in time to the acts charged, ⁴ and (3) whether sufficient evidence exists to support a finding by the jury that the defendant committed the prior act. ⁵ See United States v. Drew, 894 F.2d 965, 970-71 (8th Cir.1990). If the evidence is admissible under Rule 404(b), the court still may exclude it if its probative value is substantially outweighed by its potential for unfair prejudice. Id. at 971; see also Fed.R.Evid. 403.

The government argued, and the District Court agreed, that the Horner farm truck evidence was relevant to either intent or motive, as it tended to show that Ballew was switching parts and license plates between the trucks to prevent the insurer from discovering that Ballew still possessed the truck he had reported stolen. Ballew disingenuously argues that intent was not a material issue because he never contended that his false insurance claim was a mistake or an accident. Intent to defraud, however, is an element of both mail fraud, United States v. Noland, 960 F.2d 1384, 1388 (8th Cir.1992), and wire fraud, United States v. Mills, 987 F.2d 1311, 1314 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 403, 126 L.Ed.2d 351 (1993). ⁶ The government must introduce sufficient evidence to prove each element of the charged offenses beyond a reasonable doubt in order to avoid a judgment of acquittal. United States v. Barragan, 915 F.2d 1174, 1177 (8th Cir.1990). We conclude that even if Rule 404(b) applies to the Horner farm truck evidence the District Court did not abuse its discretion by admitting this evidence.

B.

Ballew also contends that his conviction should be reversed because the District Court erred when it overruled his motion for a judgment of acquittal. Ballew argues that the government failed to produce...