419 F.2d 1020 (7th Cir. 1969), 17294, United States v. Fierson

Docket Nº:17294.
Citation:419 F.2d 1020
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Phillip Wolfe FIERSON, Defendant-Appellant.
Case Date:December 17, 1969
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1020

419 F.2d 1020 (7th Cir. 1969)

UNITED STATES of America, Plaintiff-Appellee,


Phillip Wolfe FIERSON, Defendant-Appellant.

No. 17294.

United States Court of Appeals, Seventh Circuit.

December 17, 1969

Rehearing En Banc Denied Feb. 16, 1970.

Page 1021

William C. Erbecker, Indianapolis, Ind., for defendant-appellant.

K. Edwin Appelgate, U.S. Atty., Robert B. Keene, Asst. U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before FAIRCHILD and CUMMINGS, Circuit Judges, and GRANT, [*] District Judge.

GRANT, District Judge.

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. 1 Upon such finding judgment was entered and this appeal followed.

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. 2 He disputed only the allegation that he committed it.

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, Fierson had demanded the former's automobile while representing himself (Fierson) as an F.B.I. agent. 3 An appropriate limiting instruction on this evidence was given by the court and the jury, in final instruction, was charged that an intent to defraud was an essential element of the offense charged in Count I of the indictment. 4 Fierson urges that

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the introduction of Goethceus' testimony was reversible error. We agree.

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). 5

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...

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