U.S. v. Beechum, 76-1444

• Decision Date: 11 July 1977
• Docket Number: No. 76-1444,76-1444
• Citation: 555 F.2d 487
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Orange Jell BEECHUM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 487

555 F.2d 487

UNITED STATES of America, Plaintiff-Appellee, v. Orange Jell BEECHUM, Defendant-Appellant.

No. 76-1444.

United States Court of Appeals Fifth Circuit.

July 11, 1977.

J. Waddy Bullion, Dallas, Tex. (Court-Appointed), G. Luke Ashley, Dallas, Tex., for defendant-appellant.

Michael P. Carnes, U. S. Atty., Fort Worth, Tex., Judith A. Shepherd, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, SIMPSON and GEE, Circuit Judges.

GOLDBERG, Circuit Judge:

Orange Jell Beechum appeals from his conviction for unlawfully possessing a silver dollar knowing it had been stolen from the mail, in violation of 18 U.S.C. § 1708. In order to demonstrate at Beechum's jury trial the appellant's intent unlawfully to possess the money, the prosecution introduced evidence of other offenses Beechum may have committed. The chief issue on appeal is whether the district court properly applied this court's standards regarding the admissibility of other crimes evidence. We hold that the lower court failed properly to apply the test enunciated in United States v. Broadway, 477 F.2d 991 (5th Cir. 1973), which requires the prosecution to prove by plain, clear and convincing evidence the physical ingredients of the extrinsic offense that make it similar to the charged offense. ¹

I. Facts

Orange Beechum was employed as a substitute letter carrier for the United States Postal Service for about two and one-half years prior to September 16, 1975. On that date a postal inspector placed a "test letter" in a collection box on Beechum's route. The letter contained a greeting card, sixteen dollars in paper currency, and an 1890 silver dollar. The paper currency had been dusted with a powder visible only under ultraviolet light. Beechum collected the contents of the box at about 2:20 p. m. Subsequent inspection verified that the box was empty.

Investigators observed Beechum stop at a record shop that afternoon. At about 3:30 p. m., Beechum returned to the South Dallas postal station where he deposited the mail he had collected. The cash contents were missing from the test letter, which had been opened and re-sealed. Government testimony indicated that Beechum's supervisor was present and accessible while Beechum was turning in the mail he had collected. Beechum said nothing to the supervisor regarding the letter.

Beechum left the station shortly after 4:00 p. m. The postal inspector stopped him, warned him of his Miranda rights, and proceeded to search him. On Beechum's person the inspector found the 1890 silver dollar that had been placed in the test letter. Ultraviolet light tests of Beechum's hands, billfold, and clothing proved negative. The inspector did not find the remaining cash contents of the letter. He did, however, find two Sears, Roebuck credit cards in the appellant's billfold. The credit cards bore names other than Beechum's.

At trial, Beechum's defense was that upon opening the collection box and sweeping its contents into his bag, the silver dollar had fallen out of the box. Beechum averred that he placed the silver dollar in his pocket, intending to turn it in to his supervisor, Cox. He was unable to do so, he contended, because the postal inspector apprehended him before he was able to locate Cox. The defense culled two other postal employees, who testified that Beechum, prior to his arrest, asked them if they had seen Cox.

As part of the prosecution's case in chief, the government introduced into evidence the two credit cards found on Beechum's person. The court admitted this evidence over defense objection. At the close of the government's case, the defense announced that Beechum would testify regarding the events of September 16 but would invoke his privilege against self-incrimination in response to any questions about the credit cards. Beechum requested that the court instruct the prosecutor to refrain from asking questions about the credit cards. The court, observing that it had already admitted the cards as evidence of "a substantially similar offense," refused the appellant's request.

II. Admissibility of Evidence of Prior Similar Offenses

Beechum argues on appeal that the trial court erred in admitting the credit cards into evidence and in allowing the prosecutor to cross-examine appellant regarding that evidence. Because we reverse on the admissibility of the cards, we need not reach the propriety of the prosecution's cross-examination. ² Moreover we need not decide if the prosecutor's asking a witness on direct examination whether Beechum had explained his possession of the silver dollar, where the prosecutor specifically addressed his question to Beechum's post-Miranda warning conduct and knew that question would elicit a negative response, constituted plain error under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). ³ See United States v. Stevens, 538 F.2d 1203 (5th Cir. 1976).

A. The Framework

We focus on the two Sears, Roebuck credit cards that the trial court admitted as evidence of prior similar offenses. Evidence of crimes or wrongs, not charged in an indictment is, of course, inadmissible at trial unless it falls within one of the exceptions to this general rule. We have repeatedly noted that the general rule is "just and wise" in that it minimizes the grave danger that a jury will infer guilt of the charged offense from evidence of the prior offense or bad act or will seek to punish the defendant for the prior offense regardless of his innocence of the charged offense. See United States v. San Martin, 505 F.2d 918, 921 (5th Cir. 1974); United States v. Goodwin, 492 F.2d 1141, 1150 (5th Cir. 1974).

We have carved out exceptions to the general rule in order to serve limited prosecutorial and judicial purposes. These exceptions are narrowly construed lest they swallow the general rule. See United States v. Miller, 500 F.2d 751, 762 (5th Cir. 1974) rev'd on other grounds, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). The general rule and its exceptions are now codified in Rule 404(b) of the Federal Rules of Evidence. ⁴ Among the exceptions that allow a court to admit evidence of other offenses is that related to intent. That is, evidence of extrinsic offenses, misconduct, or acts similar to that charged may be probative of the defendant's intent to commit the charged offense. The intent exception to the general rule is apposite to the evidence in question here. Beechum was found with the silver dollar that had been placed in the test envelope. If he intended to turn in the silver dollar to his supervisor, he was innocent of the crime charged.

Finding an applicable exception to the general rule against the admission of other crimes evidence is, however, only the beginning of the inquiry. In recent cases applying Rule 404(b) we have repeatedly adhered to the framework for determining admissibility developed in our prior case law. For example, we delineated that approach in United States v. Taglione, 546 F.2d 194 (5th Cir. 1977):

Before an exception to the general rule may be invoked, the trial court must be satisfied that several prerequisites have been met: (1) there is plain, clear and convincing evidence of a prior similar offense, (2) the prior offense is not too remote in time, (3) intent is a material issue in the instant case, and (4) there is substantial need for the probative value of the evidence.

Id. at 199. Similarly, United States v. Myers, 550 F.2d 1036 (5th Cir. 1977) and United States v. Bloom, 538 F.2d 704, 708 (5th Cir. 1976), both cases applying Rule 404(b), denominate these criteria as "threshold prerequisites" that must be satisfied before the trial court may admit other crimes evidence. ⁵ See United States v. San Martin, 505 F.2d 918, 921 (5th Cir. 1974).

Our disposition of Beechum's appeal turns on the government's failure to satisfy the first of these threshold prerequisites, which we shall refer to as the Broadway rule. The requirement that the prosecution prove by plain, clear and convincing evidence the similar physical ingredients of the prior offense is a rule firmly fixed in the jurisprudence of this circuit. ⁶ Before exploring in greater depth the development and rationale of this rule, it will be useful to summarize its application to the case at bar.

The prosecution plainly, clearly and convincingly established only that Beechum possessed two credit cards not in his name. Broadway and its progeny establish the principle that only when the physical elements of the charged offense are matched by similar physical elements of the conduct alleged to comprise the extrinsic offense, and the latter elements are proved convincingly, may evidence of the extrinsic offense be admitted at trial. Construing Broadway as a per se rule, then, a showing merely that Beechum possessed two credit cards in others' names failed to establish the congruent physical elements of the charged offense. That is, Beechum was charged with possession of a stolen coin, but the government failed convincingly to establish that the credit cards had been stolen.

Alternatively, even assuming Broadway were no longer a per se rule, the rationale behind Broadway would still compel the exclusion of the other crimes evidence under the circumstances of this case. The policy question is whether the logical inference from Beechum's mere possession of the credit cards to Beechum's unlawful intent to possess the silver dollar is sufficiently strong to outweigh the prejudice involved. In the absence of evidence that the credit cards were stolen, considering the ease with which the truth of that fact could have been ascertained in this case, we would conclude that the probative value of the other crimes evidence was outweighed by its potential prejudicial impact.

We shall first examine Broadway itself, then analyze the rationale for analytically discrete elements of...