U.S. v. Harbour

• Decision Date: 13 January 1987
• Docket Number: Nos. 85-3109,85-3175,s. 85-3109
• Citation: 809 F.2d 384
• Parties: 22 Fed. R. Evid. Serv. 523 UNITED STATES of America, Plaintiff-Appellee, v. Kenneth E. HARBOUR and James G. Blank, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 384

809 F.2d 384

22 Fed. R. Evid. Serv. 523

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth E. HARBOUR and James G. Blank, Defendants-Appellants.

Nos. 85-3109, 85-3175.

United States Court of Appeals, Seventh Circuit.

Argued June 4, 1986.

Decided Jan. 12, 1987.

As Amended Jan. 13, 1987.

Steven C. Mills, Bruce Locher, Springfield, for defendants-appellants.

Sandra Young, Asst. U.S. Atty., Gerald D. Fines, U.S. Atty., U.S. Atty.'s Office, Springfield, for plaintiff-appellee.

Before WOOD and COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

COFFEY, Circuit Judge.

After a jury trial, the defendant Kenneth E. Harbour was convicted of two counts and the defendant James G. Blank of one count of theft of United States Government property in violation of 18 U.S.C. Sec. 641. Harbour was sentenced to one year of imprisonment to be followed by five years of probation, and was ordered to pay a fine of $1,000 plus $1,000 in restitution to the United States Government. Blank received a six month sentence of imprisonment to be followed by five years of probation and ordered to pay $350 in restitution to the United States Government. Harbour appeals his conviction alleging the improper admission of evidence and both defendants appeal their sentences. We affirm.

I

Defendants Kenneth E. Harbour and James G. Blank, during the latter part of 1984 and the first part of 1985, worked as volunteers at a distribution center operated on a monthly basis by the Catholic Charities of Springfield, Illinois. The purpose of the distribution center was to give federal surplus dairy food commodities, consisting of blocks of cheese and packages of butter, to the needy as part of the Temporary Emergency Food Assistance Act of 1983, Pub.L. No. 98-8, Title II, Secs. 201 to 210, 97 Stat. 13, 35-36 (1984). ¹ The commodities were distributed from a semi-trailer at the distribution center on the basis of need. Charles Boston, an internal security investigator for the Illinois Department of Public Aid testified that on the morning of December 15, 1984, he and agents of the United States Secret Service and Illinois Department of Public Aid observed and photographed the defendants taking boxes from the truck loaded with federal food commodities and placing them in the back of Harbour's personal vehicle, a Ford Bronco. Boston also testified that Stanley Jones, a paid employee of the Catholic Charities, and the two defendants were observed as they appeared to be looking into Harbour's vehicle. Timothy Wessing, who operated a motorcycle shop in Springfield during the relevant time period, (December 1984), testified at trial that on the afternoon of December 15, 1984, he purchased two cases of cheddar cheese, two cases of processed cheese and one and one half cases of butter from Jones and Harbour.

Agent Boston testified that on January 26, 1985, he, along with other agents from both the Federal Bureau of Investigation and the Illinois Department of Public Aid not only observed but photographed the defendants, Blank and Harbour, and Jones taking boxes from the semi-trailer at the distribution center and placing them in Harbour's vehicle. The same day Harbour and Blank were observed transferring three boxes from Harbour's vehicle as well as currency with an individual in downtown Springfield.

The defendants were both indicted on May 10, 1985, for two counts of felony theft of government property in violation of 18 U.S.C. Sec. 641. Count one related to the events of December 15, 1984, and Count two related to the events of January 26, 1985. At the defendants' trial, Jones ² testified that each time the defendants assisted at the distribution center they had stolen cheese and/or butter from the semi-trailer. Jones further testified that on December 14, 1984, the day before the December distribution date for which the defendants were accused of stealing United States Government property, he observed Harbour take five cases of cheese from the distribution center, load them in his vehicle, and drive off.

Harbour chose to testify in his defense. On direct examination when his attorney asked him if he had ever sold commodities, he responded "No, I have not." On cross-examination over an objection that it was outside the scope of cross-examination, the trial judge allowed the government to question him about events of January 26, 1985.

The defendant Harbour was convicted on both counts and the defendant Blank was convicted on the second count of the indictment. Three issues are raised for our consideration on appeal: (1) Defendant Harbour alleges the trial court erred in allowing Jones to testify that the defendants had previously taken federal commodities before the two dates (December 15, 1984, and January 26, 1985) as recited in the indictment; (2) Defendant Harbour also appeals that the trial court erred in allowing the government to cross-examine him regarding the events of January 26, 1985; (3) both defendants question the trial court's sentencing them for violations of 18 U.S.C. Sec. 641.

II

Defendant Harbour argues that the trial court abused its discretion in permitting Stanley Jones to testify that every time the defendants helped distribute commodities as volunteers they took cheese and butter and loaded it into Harbour's personal vehicle. Harbour asserts that Rules 404(b) ³ and 403 ⁴ of the Federal Rules of Evidence should be read to preclude the testimony as to his alleged prior bad acts. Harbour further asserts that the testimony of Stanley Jones regarding Harbour's prior misconduct was uncorroborated and vague, thus not "clear and convincing." He also emphasizes that Jones perjured himself, hence his testimony is unbelievable. ⁵

"A district court has broad authority to control the admission of evidence ... that will not be disturbed on appeal unless an abuse of discretion is shown." United States v. Rovetuso, 768 F.2d 809, 815 (7th Cir.1985), cert. denied sub nom. Williams v. United States, --- U.S. ----, 106 S.Ct. 1951, 90 L.Ed.2d 360 (1986) (citations omitted). In analyzing whether the trial court abused its discretion in admitting evidence of Harbour's prior misconduct, we must decide if the evidence of Harbour's prior misconduct was directed towards establishing a matter in issue other than his propensity to commit the crimes charged. Thus, the evidence of Harbour's prior misconduct was properly admitted if it was offered for some purpose other than to demonstrate that Harbour had previously engaged in illegal conduct and thus was more likely to have committed the crime charged. In United States v. Shackleford, 738 F.2d 776 (7th Cir.1984) this Court set forth a four-part test for the admissibility of evidence of prior misconduct:

"Our decisions indicate that, under the dictates of Rules 404(b) and 403, admission of evidence of prior or subsequent acts will be approved if (1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue ..., (3) the evidence is clear and convincing, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice."

738 F.2d at 779 (citation omitted). In determining whether the requirements of 404(b) and 403 of the Federal Rules of Evidence are satisfied in the instant case, we must apply the four-prong Shackleford test.

In regards to the first prong, the theft of United States Government property is a crime that requires proof that the defendant possessed the specific intent to deprive the United States Government of the property taken. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). In the present case, the prosecution introduced evidence of Harbour's prior misconduct in an attempt to establish that he specifically intended to deprive the Government of the dairy products he was observed and photographed taking on the dates alleged in the indictment. Jones testified that each time Harbour assisted at the distribution center he had taken cheese and/or butter from the semi-trailer. We have stated that the prosecution "may submit evidence of other acts in an attempt to establish the matter in its case-in-chief, assuming the other requirements of Rules 404(b) and 403 [of the Federal Rules of Evidence] are satisfied." United States v. Shackleford, 738 F.2d at 781. Jones' testimony regarding Harbour's prior takings from the distribution center was used to show Harbour's criminal intent, not that Harbour had a propensity to commit a crime.

The second prong of the Shackleford test mandates that the prior misconduct be similar enough and close enough in time to be relevant to the matter in issue. Jones testified to previous acts by the defendant that were not only similar to the ones for which he was charged but were identical. In addition, the acts Jones testified to took place in late 1984, thus they were without doubt "close enough in time to be relevant" to the alleged thefts of December 15, 1984 and January 26, 1985. Thus, the second prong of the Shackleford test is met.

Harbour essentially argues that the testimony offered by Jones was not credible since Jones had been impeached and his testimony was uncorroborated, thus it was not "clear and convincing" under the third prong of the Shackleford test. However, Jones was not impeached concerning his testimony on the issue of the defendant's prior conduct. Matters of credibility are in the purview of the jury. In the instant case, they obviously chose to believe Jones rather than Harbour. Although Jones' testimony relating to Harbour's prior thefts was uncorroborated, there was sufficient corroboration of other aspects of his testimony. Jones testified on direct examination that the defendants had previously taken commodities from the semi-trailer. This...