582 F.2d 898 (5th Cir. 1978), 76-1444, United States v. Beechum

Docket Nº:76-1444.
Citation:582 F.2d 898
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Orange Jell BEECHUM, Defendant-Appellant.
Case Date:October 25, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 898

582 F.2d 898 (5th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,

v.

Orange Jell BEECHUM, Defendant-Appellant.

No. 76-1444.

United States Court of Appeals, Fifth Circuit

October 25, 1978

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

Kenneth J. Mighell, U. S. Atty., Fort Worth, Tex., Judith A. Shepherd, Asst. U. S. Atty., Dallas, Tex., Mervyn Hamburg, Atty., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

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

Before BROWN, Chief Judge, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, SIMPSON, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN and VANCE, Circuit Judges. [*]

TJOFLAT, Circuit Judge:

This case comes before the court en banc for reconsideration of this circuit's doctrine on the admissibility of offenses extrinsic to a defendant's indictment to prove his criminal intent. 1 That doctrine,

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deriving in part from the case of United States v. Broadway, 477 F.2d 991 (5th Cir. 1973), requires that the essential physical elements of the extrinsic offense include those of the offense charged and that each of these elements be proved by plain, clear, and convincing evidence. We are here called upon to determine the effect of the recently enacted Federal Rules of Evidence on this doctrine, an issue expressly reserved in a number of our cases decided prior to the panel opinion in this case. 2 The panel hearing this case was of the opinion, Judge Gee dissenting, that Broadway and its progeny survived intact the enactment of the rules. United States v. Beechum, 555 F.2d 487, 504-08 (5th Cir. 1977). With deference to the panel, we must disagree.

A jury convicted Orange Jell Beechum, a substitute letter carrier for the United States Postal Service, of unlawfully possessing an 1890 silver dollar that he knew to be stolen from the mails, in violation of 18 U.S.C. § 1708 (1976). To establish that Beechum intentionally and unlawfully possessed the silver dollar, the Government introduced into evidence two Sears, Roebuck & Co. credit cards found in Beechum's wallet when he was arrested. Neither card was issued to Beechum, and neither was signed. The Government also introduced evidence indicating that the cards had been mailed some ten months prior to Beechum's arrest to two different addresses on routes he had serviced. The propriety of the admission of this evidence is the primary issue in this appeal. Before we reach this issue, however, we must round out the facts and note several additional issues.

I. Facts

Orange Jell Beechum had been a substitute letter carrier in South Dallas, Texas for approximately two and one-half years prior to his arrest on September 16, 1975. Because Beechum had been suspected of rifling the mail on several occasions, postal inspectors planted in a mailbox on Beechum's route a letter containing the silver dollar, a greeting card, and sixteen dollars in currency. According to the testimony of one of the inspectors, the currency had been dusted with a powder visible only under

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ultraviolet light. A postal inspector observed Beechum retrieving the mail from the mailbox in which the letter had been planted and noted that Beechum stopped at a record shop for approximately one hour before returning to the South Dallas Postal Station. At the station, Beechum turned in the raw mail containing the test letter, and it was discovered that the letter had been opened and resealed. The silver dollar and the currency were missing.

Approximately thirty minutes after having arrived at the station, Beechum was apprehended as he walked toward his automobile, whose engine was running. The arresting inspector informed Beechum that a letter had been planted in the mailbox Beechum had emptied earlier and that the letter had been opened and its contents were missing. Before any questioning, the inspector read Beechum the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Beechum indicated that he understood his rights. The inspector then asked Beechum to empty his pockets. Standing with his front pockets everted, Beechum professed to have relinquished all, but a frisk revealed the silver dollar in his hip pocket. At this time, the inspector discovered in Beechum's wallet the two Sears credit cards, which, as we have noted, were not issued to Beechum and had not been signed.

The arresting inspector questioned Beechum about the credit cards, and Beechum responded first that the only credit cards he possessed were his own. Later, when confronted with the Sears cards, he stated that he had never used them. The inspector testified that in response to further questioning concerning the cards, Beechum said, "Since you have all the answers, you tell me." Record, vol. 2, at 31, 201. The inspector inquired no further.

The Government indicted Beechum on one count for unlawfully possessing the silver dollar. Argument at the preliminary hearing indicated that the primary issue in the case would be whether Beechum harbored the requisite intent to possess the silver dollar unlawfully. Defense counsel, by motion in limine heard in the absence of the jury, sought to exclude the credit cards as irrelevant and prejudicial. The court overruled the motion, in part on the basis that the cards were relevant to the issue of intent. 3 Id. at 36-37.

In its case in chief, the Government introduced the credit cards and explained the circumstances surrounding their obtention. By stipulation, the Government introduced Sears documents indicating that the two cards had been issued to the parties named on those cards. It was also stipulated that the regular business practice of Sears was to mail such cards within ten days after their issuance. The Government also elicited testimony that the addresses to which the credit cards had been mailed were on routes that Beechum had serviced during the ten month period between the date the cards were issued and the date of Beechum's arrest.

In anticipation that Beechum would claim that he sought to turn in the silver dollar, the Government called to the stand Beechum's supervisor, Mr. Cox. Cox testified that he was in the view of Beechum on several occasions, and, indeed, that he had taken mail directly from Beechum. Id. at 101-09.

At the close of the Government's case in chief, the defense moved for a directed verdict of acquittal, alleging that the Government had failed to come forward with sufficient evidence "to establish that Mr. Bonner (Sic ) possessed the silver dollar with a requisite specific intent that the government is required to establish in this case." Id. at 138. The defense argued that the Government had failed to demonstrate that the credit cards were unlawfully taken from the mail or that Beechum possessed the cards without authorization. The motion was overruled.

At this time defense counsel indicated to the court that Beechum would take the

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stand and would testify "as to matters concerning the offense for which he is charged," but that he would invoke the fifth amendment as to any questions concerning the credit cards. Id. at 140-41. The defense sought a ruling that the Government be precluded from asking Beechum any question about the cards; the rationale was that the defendant should not be required to invoke his fifth amendment privilege in the presence of the jury. The court declined so to limit the prosecution and indicated that Beechum would have to invoke the amendment in response to the questions he did not wish to answer.

On direct examination Beechum testified that the silver dollar fell out of the mailbox as he was raking out the mail and that he picked it up and placed it first in his shirt pocket, and later (after it had fallen out) in his hip pocket, where he claimed to keep his change. Beechum also testified that, upon return to the postal station, he intended to turn in the silver dollar to Cox but that he could not find Cox. 4 Beechum also stated that he was not leaving the station when he was arrested. 5 No mention was made of the credit cards.

On cross-examination the Government asked Beechum if the credit cards were in his wallet when he was arrested. Defense counsel objected on the basis that inquiry about the cards was outside the scope of cross-examination, and the court overruled the objection. On reassertion of the question, Beechum invoked his fifth amendment rights, but the prosecutor continued questioning on the subject of the cards. This occasioned repeated invocation of the fifth amendment by Beechum and vehement objection by defense counsel. Eventually, Beechum did admit to stating shortly after his arrest that the inspector could "answer his own questions" when the inspector quizzed him about the cards and that the only credit cards he had were his own. Id. at 201.

II. Issues

As we have noted, the central issue in this case is whether the district court properly allowed the credit cards to be admitted as extrinsic offense evidence going to the issue of Beechum's intent to possess the silver dollar unlawfully. We hold that the credit cards were properly admissible. The case, however, presents several additional and substantial issues that we must address.

First, the defense contends that the Government was improperly allowed to question Beechum concerning the credit cards because the issue of the cards was without the scope of cross-examination. Since Beechum took the stand to establish the innocence of his intent by testifying that he intended to turn in the coin and since Beechum's...

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