U.S. v. Maestas, 76-1624

• Decision Date: 13 June 1977
• Docket Number: No. 76-1624,76-1624
• Citation: 554 F.2d 834
• Parties: 1 Fed. R. Evid. Serv. 910 UNITED STATES of America, Appellee, v. Mary Delores MAESTAS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 834

554 F.2d 834

1 Fed. R. Evid. Serv. 910

UNITED STATES of America, Appellee, v. Mary Delores MAESTAS, Appellant.

No. 76-1624.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 13, 1976.

Decided April 14, 1977.

As Amended June 2, 1977.

Certiorari Denied June 13, 1977.

See 97 S.Ct. 2936.

Patrick J. O'Donnell, Lincoln, Neb., for appellant.

Jeffrey A. Bogue, Asst. U. S. Atty., Omaha, Neb., for appellee; Daniel E. Wherry, U. S. Atty., Omaha, Neb., on brief.

Before MATTHES, Senior Circuit Judge, and STEPHENSON and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Mary Delores Maestas appeals her conviction on two counts of interstate transportation of falsely made, forged, or counterfeit securities, in violation of 18 U.S.C.s 2314. She challenges the admission of other crimes evidence and of certain evidence seized in a search pursuant to a warrant. She contends also that she was entitled to a mistrial as a result of a witness's prejudicial comments. We find no error, and affirm the conviction.

The indictment charged the transportation of two falsely made, forged, and counterfeit cashier's checks, each in the amount of $4,144.67 and both drawn on the Harris Trust and Savings Bank, of Chicago. At trial, the government proved that each check was cashed by a woman, one on June 3, 1975, in North Platte, Nebraska, and the other on June 6, 1975, in Kearney, Nebraska. Each transaction occurred at a bank; on each occasion the woman who cashed the check deposited a portion of the proceeds to the account of a legitimate depositor and received the remainder in cash. Both checks went through normal banking channels to Chicago, where they were found to be counterfeit.

Appellant's fingerprints were found on the check cashed in North Platte and on both the check and deposit slip used in Kearney. The government proved that appellant was in Kearney on June 4. However, there was no eyewitness identification of appellant as the person who cashed either check.

The government introduced substantial evidence of appellant's participation in other criminal activity. On May 9, 1975, a bogus Harris check was passed in El Paso, Texas. The check bore appellant's fingerprints, and a teller identified appellant as the person who cashed it. On April 16, 1975, a counterfeit check drawn on the National Bank of Austin, of Chicago, was cashed in Denver. A suspicious teller took a picture of the woman who cashed it. An FBI agent later showed the picture to appellant, who said the picture made her look "awfully heavy."

In four more transactions involving counterfeit Harris Trust checks, appellant's fingerprints were found on either the check or the deposit slip. All these transactions occurred in April or May of 1975. All the checks bore notations indicating that they had been presented for payment in Chicago. One Harris check was introduced which did not bear appellant's fingerprints. The check was payable to Sylvia Ram. The government was allowed to prove that Ms. Ram's mail had been tampered with prior to the cashing of this check, and that a fingerprint of appellant was found on a personal check which had been tampered with.

The District Court ¹ also allowed the government to introduce evidence seized in a search of appellant's apartment made pursuant to a search warrant. This evidence included counterfeit drivers' licenses, social security cards, and corporate checks.

On this evidence, the jury found appellant guilty on both counts with which she was charged.

I.

Appellant's principal contention is that the other crimes evidence was improperly admitted. Admissibility of this evidence is governed by Fed.R.Evid. 404(b), which provides:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Fed.R.Evid. 403 authorizes the district court to exclude such evidence, even though relevant, "if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." Our task is to assess the relevancy and the probative value of the challenged evidence; if it meets the requirements of Rule 404(b) we may not reverse the ruling of the District Court unless we also find that the prejudice from admitting the evidence substantially outweighed its probative value. In making that evaluation, we must give great deference to the district judge, who saw and heard the evidence. United States v. Nichols, 534 F.2d 202 (9th Cir. 1976); United States v. Gocke, 507 F.2d 820, 824 (8th Cir. 1974), cert. denied, 420 U.S. 979, 95 S.Ct. 1407, 43 L.Ed.2d 660 (1975); United States v. Skillman, 442 F.2d 542, 551-52 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971).

Prior to July 1, 1975, the effective date of the Federal Rules of Evidence, the federal courts developed a substantial body of case law dealing with the use of other crimes evidence. These pre-Rules decisions must now be harmonized and read in consonance with the most recent statement of congressional policy. ²

A.

Several matters on which other crimes evidence is admissible were contested in the present case. Particularly at issue were intent, or guilty knowledge, and identity. It was incumbent on the government to prove that appellant was the person who cashed the two checks which were the subject of the indictment. In the absence of any eyewitness identification, identity was very much in issue. In addition, the government was required to prove the intent which is an element of the § 2314 offense. United States v. Spica,413 F.2d 129, 131 (8th Cir. 1969); see United States v. Gocke, supra, 507 F.2d at 824.

Appellant's defense to the fingerprint evidence on the checks charged in the indictment was the inconclusiveness of such evidence to show a purposeful law violation. Appellant's counsel sought by vigorous cross-examination to convince the jury that appellant's fingerprints could have been placed on the checks for a variety of reasons at any time before they were presented to the bank. ³ Thus the proof of identity, a common plan or scheme, and the absence of mistake became important.

The evidence that appellant cashed other counterfeit checks that six of these checks were drawn on the same bank as were the checks described in the indictment, that all were cashed within a two month period, and that many were cashed in split deposit transactions, was highly probative on these issues. It tended to prove both that she cashed the checks and that she did so as part of a scheme, rather than through inadvertence or mistake. See United States v. Wetzel, 514 F.2d 175, 178 (8th Cir.), cert. denied, 423 U.S. 844, 96 S.Ct. 80, 46 L.Ed.2d 65 (1975); United States v. Gocke, supra ; United States v. Gray, 464 F.2d 632, 636 (8th Cir. 1972); United States v. Spica, supra. It is clear that the requirements of Rule 404(b) were satisfied. In addition, Rule 403 presents no bar to the admission of this evidence, in that its probative value was not substantially outweighed by any prejudicial impact. ⁴ See United States v. Nichols, supra.

Appellant contends that the evidence of other checks is inadmissible because the government failed to prove every element of each of the other crimes concerning which evidence was introduced. She relies on United States v. Broadway, 477 F.2d 991 (5th Cir. 1973), where the Fifth Circuit, in a § 2314 prosecution, excluded evidence of the passing of other forged money orders, on the theory that it had not been proved that, although defendant had possessed the money orders, she was also the person who cashed them. The Fifth Circuit held that, where evidence of another crime is used to prove intent, the other crime must include "the essential physical elements of the offense charged," and those elements "must be clearly proven by competent evidence." 477 F.2d at 995.

We expressed our reservations about the Fifth Circuit's holding in United States v. Gocke, supra, 507 F.2d at 825, where we said:

(W)e do not require in each case that evidence be that of an identical offense. It is enough that the evidence be of similar involvement reasonably related to the offending conduct and be presented in an manner in which prejudice does not outweigh its probative value. (footnotes omitted)

This reservation was again noted in United States v. Belle, 516 F.2d 578, 581 (8th Cir. 1975). ⁵ To this we have added that the evidence must not be of "vague and uncertain character." United States v. Spica, supra, 413 F.2d at 129.

In this case the evidence of the other crimes is of a series of checks, cashed in similar transactions, each bearing appellant's fingerprints, and some tied to her by direct evidence. This evidence shows similar involvement in related offenses; as indicated above, its prejudicial impact does not substantially outweigh its probative value. It is not of "vague and uncertain character." The evidence thus is admissible, notwithstanding the absence of direct proof that appellant was the person who cashed certain of the checks. ⁶

B.

Appellant also challenges as the improper use of other crimes evidence the admission of the materials seized from her Denver apartment, which included counterfeit drivers' licenses, social security cards, and corporate checks. The connection between appellant and these items was clear and convincing. Her possession of these items, which would be of use in a scheme to pass counterfeit checks, was highly probative of her participation in such a scheme. The quantity in which they were found indicated that she did not possess the materials by mistake or inadvertence.

In United States v. Gocke, supra, we approved the admission of counterfeit drivers' licenses which had been in the possession of a defendant charged with passing counterfeit...