U.S. v. McMahon, 78-5292

• Decision Date: 06 April 1979
• Docket Number: No. 78-5292,78-5292
• Citation: 592 F.2d 871
• Parties: 4 Fed. R. Evid. Serv. 526 UNITED STATES of America, Plaintiff-Appellee, v. Harold McMAHON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 871

592 F.2d 871

4 Fed. R. Evid. Serv. 526

UNITED STATES of America, Plaintiff-Appellee, v. Harold McMAHON, Defendant-Appellant.

No. 78-5292.

United States Court of Appeals, Fifth Circuit.

April 6, 1979.

Carl H. Green, El Paso, Tex. (Court-appointed), Harold McMahon, pro se, for defendant-appellant.

Jamie C. Boyd, U. S. Atty., LeRoy Morgan Jahn, James W. Kerr, Jr., Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

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

Before GEWIN, HILL and FAY, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Harold McMahon appeals from his conviction for conspiracy to transport aliens within the United States in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324(a) (2), alleging that the trial court committed reversible error in admitting into evidence his prior misdemeanor conviction for aiding and abetting an alien to elude examination. We affirm.

I.

The thrust of the government's case against appellant was that he had hired two coconspirators, Randolph Barboa and Armando Avilucia, to transport aliens for him from El Paso, Texas, to various points in New Mexico. Barboa was to take a load of aliens to Albuquerque, but was arrested on January 13, 1978, while making his first run for appellant; subsequently, he pled guilty to the charge of transporting illegal aliens. Avilucia, instructed by appellant to take aliens to Los Lunas, was more successful in his exploits; he made five successful "hauls" until he was arrested on his sixth such trip on March 28, 1977. Avilucia pled guilty and was convicted of transporting illegal aliens, but the government allowed him to withdraw his plea of guilty and dismissed the indictment against him in return for his agreement to testify against appellant.

Following an appearance by appellant before a federal Grand Jury on November 17, 1977, a one-count indictment was returned charging him with the offense of conspiring to transport aliens in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324(a)(2). This indictment was amended on December 1, 1977, to allege two additional counts of making false statements to the Grand Jury in violation of 18 U.S.C. § 1623. The conspiracy count was severed from the remaining counts and on December 12-13, 1977, appellant was tried and convicted for conspiracy to transport aliens within the United States. Appellant was sentenced to serve five years' imprisonment.

II.

During its case in chief, the government tendered into evidence appellant's prior misdemeanor conviction for aiding and abetting an alien to elude examination. ¹ Defense counsel objected, ² but the district court ruled the evidence admissible under Fed.R.Evid. 404(b) as tending to show defendant's intent to participate in the conspiracy with Barboa and Avilucia.

This case is controlled by our recent decision in United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), in which we discussed the admissibility of past offenses to prove intent. Under Beechum, extrinsic offense evidence is admissible if it satisfies a two-tier test. First, the trial court must determine that "the extrinsic offense requires the same intent as the charged offense and that the jury could find that the defendant committed the extrinsic offense." Id. at 913. Second, the court must find that the incremental probative value of the extrinsic offense evidence is not " 'substantially outweighed by the danger of unfair prejudice' " to the defendant. Fed.R.Evid. 403; United States v. Beechum, 582 F.2d at 914. The resolution of these questions of admissibility is committed to the sound discretion of the trial judge. 582 F.2d at 915. Judging the admissibility of appellant's prior conviction in light of the Beechum two-part test, we cannot say that the trial judge abused his discretion in admitting the evidence under Fed.R.Evid. 404(b).

The first prong of the Beechum test is clearly satisfied in this case. The similarity in intent required between the extrinsic and charged offenses only means that the defendant "indulg(e) himself in the same state of mind in the perpetration of both . . . offenses." 582 F.2d at 911. Appellant's extrinsic offense was a misdemeanor conviction for aiding and abetting an alien to elude examination, a reduced charge of transporting illegal aliens. Engaging in the transportation of illegal aliens requires the defendant to possess the same "state of mind" as agreeing with others to do the same thing. ³ Certainly proof of the defendant's intent to commit the earlier extrinsic offense makes it more likely that he intended to conspire with Barboa and Avilucia to transport illegal aliens. See United States v. Barnes, 586 F.2d 1052, 1057-58 (5th Cir. 1978); United States v. Beechum, 582 F.2d at 911. Moreover, it is undisputed that appellant committed the extrinsic offense.

We find that the second part of the Beechum test has also been satisfied here. Before the district judge may exclude extrinsic offense evidence, he must find that the danger of unfair prejudice Substantially outweighs the incremental probative value of the evidence. This weighing process calls for a "common-sense assessment of all the circumstances surrounding the extrinsic offense." United States v. Beechum, 582 F.2d at 914.

First, we must look to the incremental probative value of the evidence. Probative value in this context is ascertained by examining a variety of factors: (1) the availability of other evidence to establish the defendant's unlawful intent; (2) the similarity between the extrinsic and charged offenses; (3) the degree of proximity in time between the extrinsic and charged offenses; and (4) the posture of the case at the time the extrinsic offense evidence is proffered. 582 F.2d at 914-15. The lack of convincing evidence in the government's case pertaining to intent and the close resemblance between the extrinsic and charged offenses convinces us that probative value outweighs potential prejudice in this case.

Appellant reluctantly argues that the government "without question presented convincing evidence of the defendant's guilt" and that therefore the evidence of appellant's prior conviction was unnecessary to the government's case. Based upon our review of the evidence as developed on the record as a whole, we find that the government's case was in substantial need of objective evidence tending to prove appellant's intent to become involved in the conspiracy with Avilucia and Barboa.

The government's case consisted primarily of the testimony of the two coconspirators. Barboa testified that he received a telephone call from appellant during the evening on January 12, 1977, asking him to come over to appellant's house to discuss something important. At the meeting appellant supposedly offered Barboa "one hundred dollars a head" to transport aliens from El Paso on the following day. Barboa was initially reluctant to accept the offer, but after his fears were assuaged by appellant's assurances that he would not get caught, he agreed to make the trip. According to Barboa's testimony, appellant drew Barboa a map so that he would be able to evade the border patrol checkpoints; additionally, he told Barboa the motel and room number where the aliens would be located in El Paso. Appellant wanted to register the van which would be used to transport the aliens in Barboa's name, and Barboa agreed. Barboa was accompanied on his visit to appellant's house by his girlfriend, Cathy Adams, whose testimony corroborated the material aspects of Barboa's story.

Appellant took the stand and denied hiring Barboa to transport aliens or even talking to him on the evening of January 12, 1977; according to appellant, he was not living with his wife during the month of January. He also denied drawing the map to assist Barboa in evading the checkpoints. Kathy McMahon, appellant's estranged wife and also Barboa's sister, testified that when Barboa and his girlfriend came over to her house on January 12 appellant was not there; she verified appellant's testimony that the two of them were not living together in January.

Avilucia testified that he was first approached by appellant in February of 1977 in the Drift-In Lounge in Albuquerque, while he was doing some carpentry work there. Appellant offered to hire Avilucia to transport aliens for him; if Avilucia would agree, appellant would pay Avilucia approximately $1,000 in cash for each run, and would allow him simultaneously to purchase the van he was driving on these trips by crediting the remainder of the payment due him against the purchase price of the van. Avilucia testified that the van he was purchasing from appellant was actually registered in Barboa's name, but that appellant forged Barboa's signature in signing over the van to Avilucia. In the office of the Lounge, appellant drew Avilucia a map because he was unfamiliar with the terrain around El Paso; after appellant had drawn this map, he remembered that there was a printed map in the drawer of the desk in the office, so he removed the map and outlined a route for Avilucia to follow. Avilucia also implicated appellant's wife in the transportation scheme, testifying that on several occasions he would meet her with the load of aliens.

Appellant denied talking to Avilucia in the Drift-In Lounge or hiring him to transport aliens; to support his testimony, appellant asserted that he did not manage the Drift-In Lounge until August of 1977, so he would have no occasion to be present at the Lounge in February of that year and certainly would not have access to the office at that time. Likewise, appellant denied drawing the map presented by Avilucia or selling the van to him. Kathy McMahon, in her testimony, denied any involvement in the conspiracy, and specifically denied having any discussions with Avilucia concerning the transportation of aliens. Her only connection with him was her claim that Avilucia had once kidnapped her and...