United States v. Burkhart

• Decision Date: 14 February 1972
• Docket Number: No. 71-1384.,71-1384.
• Citation: 458 F.2d 201
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Earl BURKHART, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

458 F.2d 201 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. William Earl BURKHART, Defendant-Appellant.

No. 71-1384.

United States Court of Appeals, Tenth Circuit.

February 14, 1972.

Adrian M. Farver, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief), for plaintiff-appellee.

Norman S. Norburg, Topeka. Kan., for defendant-appellant.

Before LEWIS, Chief Judge, and HILL, SETH, HOLLOWAY, McWILLIAMS, BARRETT and DOYLE, Circuit Judges.^*

WILLIAM E. DOYLE, Circuit Judge.

This is an appeal from a conviction in a criminal prosecution in which the defendant was charged with interstate transportation of a stolen motor vehicle, contrary to the so-called Dyer Act, 18 U.S.C. § 2312. The substance of the charge was that the defendant had on September 26, 1970, transported in commerce a 1961 Ford station wagon from Ashland, Kentucky to Ellsworth County, Kansas, knowing it to have been stolen.

The witnesses who testified on behalf of the government were Paul Saunders, the owner of the subject vehicle and a used car dealer in Ashland, Kentucky, Alvin Matheson, a Kansas State Highway patrolman, and John T. McMurrer, Special Agent for the FBI.

Saunders had not had a previous acquaintanceship with the defendant. He merely identified the vehicle as his property and further testified that on August 3, 1970, the car was missing from his used car lot; that it had been on the lot on the afternoon of August 3. He also testified that there had not been any species of a sales transaction involving the car and that although he had not been present his manager stated that he had not given anyone permission to drive it even temporarily.

The Kansas Highway patrolman testified that on September 26, 1970 (some seven weeks after the car was taken) he was notified by the Ellsworth County Sheriff that there was a suspicious vehicle on a filling station lot adjacent to Interstate Highway 70 in Ellsworth County, Kansas. In going to the scene, Patrolman Matheson found the 1961 Ford station wagon. Defendant was sitting in the front seat under the wheel and there were three other occupants in the back, all of whom were asleep. Before awakening these individuals Patrolman Matheson checked with the National Crime Information Center and ascertained that the car had been reported stolen. He returned to the scene, awakened the occupants and arrested them. Defendant stated that he owned the vehicle, that he had purchased it, and that he had a registration receipt but was unable to find it. The other passengers were not involved. They were hitchhikers who had been picked up by the defendant near Salina, Kansas. The officer sought in vain to obtain some indicia of ownership from the defendant.

FBI Agent McMurrer testified concerning his interview of the defendant following the latter's signing of a waiver form. The defendant's version as given to the agent was that he had purchased the vehicle in early August from the owner of Paul's Used Car Lot in Ashland, Kentucky for a purchase price of $200.00. He said that he had made no payments, but was at the time endeavoring to raise money for this purpose. Defendant added that he had lost the bill of sale in his travels.

The agent also identified Exhibits 4 and 5, which were certified copies of convictions for prior Dyer Act violations. The first of these occurred June 2, 1955, in the District of Oregon. The other, dated March 17, 1966, involved the interstate transportation of a stolen motor vehicle in the Southern District of Mississippi. The certified copies showed the defendant had entered pleas of guilty. The particular circumstances of these convictions were not shown.¹

The defendant's contentions on this appeal are:

First, that the evidence was insufficient particularly to establish that the defendant had knowledge that the vehicle was stolen.

Secondly, that the court erred in receiving in evidence the prior convictions which had been offered as similar offenses to prove intent.

I.

There was ample evidence to support the jury verdict of guilt. 1. Unquestionably, the vehicle was transported by defendant in interstate commerce. 2. There was substantial evidence that the vehicle had been stolen. 3. There was legally sufficient evidence to establish the element of criminal intent or knowledge quite apart from the prior convictions which are referred to above. The owner testified that the vehicle was taken without permission. The defendant was found in exclusive possession of the vehicle some seven weeks after its disappearance. He was at the time, and had been, exercising dominion over it. Although defendant claimed that he had purchased the car, he at the same time admitted that he had not paid anything, and he did not produce any tangible evidence as to the truth of his contention. Thus, the basic facts and circumstances are more than sufficient to dispel every doubt as to his guilt.

II.

The so-called similar offense evidence consisted of certified copies of the judgments of conviction. These were not shown to have been connected with the case on trial either as a part of the transaction on trial or to have been related transactions in terms of sharing a common plan, scheme, design or intent, or in terms of factual or other similarity except that they were all Dyer Act violations. The trial court's cautionary instruction at the time was that this evidence was to be considered by the jury only for the purpose of determining whether defendant acted willfully and with specific intent and not because of mistake or accident or other innocent reason.² We have no criticism of either the accuracy or sufficiency of this instruction. It is the extreme remoteness in time and space, together with the lack of any apparent similarity or connection with the principal charge, which creates the problem.

A.

The general rule applicable to receiving evidence of other crimes, wrongs or acts is simply enough stated. Such evidence in the first instance is inadmissible. There are, however, several exceptions which allow such evidence to be received in special circumstances and for limited purposes. It may be received for the purpose of proving a common plan, scheme or design to commit the offense charged or for the purpose of proving motive, opportunity, intent, knowledge, identity or absence of mistake, inadvertence or accident.

Too often we lose sight of the fact that the rule is primarily a rule of exclusion of evidence and not one of admission, and, although there are many exceptions, these do not detract from the general exclusionary approach which the rule demands.³

Several factors have contributed to formulation of a cautious judicial attitude.

First, the accused is required to defend charges which are not described in the information or indictment. As a result he is required to defend past actions which he may have in the past answered and with respect to which he may have even served his sentence. Thus, he is in effect tried as a recidivist though such a charge is not a part of the federal criminal code.

Secondly, although such evidence may have at least some relevance to the offense being tried, its predominant quality is to show up the defendant's character as a car thief or a bad check artist, for example. Proof of defendant's sociopathic disposition is not a valid object. Showing that a man is generally bad has never been under our system allowable. The defendant has a right to be tried on the truth of the specific charge contained in the indictment.

Third, an obvious truth is that once prior convictions are introduced the trial is, for all practical purposes, completed and the guilty outcome follows as a mere formality. This is true regardless of the care and caution employed by the court in instructing the jury.

Thus, it is clear that the problem is not a simple evidentiary one, but rather goes to the fundamental fairness and justice of the trial itself.

B.

We have not been able to discover a precedent in either this Circuit or in the Eighth Circuit prior to 1929, when the Tenth Circuit was created out of the Eighth Circuit, which approves the use of a man's prior criminal history to show commission of the same offense on a similar offense theory in the manner it was done here.

In a relatively early decision, Paris v. United States, 260 F. 529 (8th Cir. 1919), the necessity for proof of the similar offense was stressed. The defendants were on trial for the sale of narcotics in Oklahoma City. A prior transaction alleged to have occurred in Tulsa was offered and received. Failure to prove the similar offense was held to preclude its use. The court said that evidence of a vague and uncertain character regarding such an alleged offense was not admissible. The court further said that it was inadmissible not only because of the failure of proof, but also because it was unconnected with the subsequent case on trial.⁴

Subsequently, Judge Kennedy⁵ writing for the court in Gart v. United States, 294 F. 66 (8th Cir. 1923), followed the Paris decision in another narcotics case, pointing out the limitations on the receipt of such evidence and saying:

Only in exceptional cases is the proof of such transactions admissible. Where a case falls within the exception, the proof must be clear and convincing. 294 F. at 67.

In that case also it was concluded that the attempted proof of the similar offense fell short of establishing it and resulted in merely a suspicious circumstance.⁶

One of the very early cases from this Circuit is Coulston v. United States, 51 F.2d 178 (10th Cir. 1931). Judge McDermott in a careful opinion noted that in the civil law, as well as the early common law, evidence of other crimes was admitted on the theory that a person who has committed one crime is apt to commit another. The opinion of the court went on to say:

The inference is so slight, the unfairness to the defendant so manifest, the difficulty and delay attendant upon trying several cases at one

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