U.S. v. Beahm, 80-5127

• Decision Date: 18 November 1981
• Docket Number: No. 80-5127,80-5127
• Citation: 664 F.2d 414
• Parties: 9 Fed. R. Evid. Serv. 565 UNITED STATES of America, Appellee, v. Luther Amos BEAHM, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 414

664 F.2d 414

9 Fed. R. Evid. Serv. 565

UNITED STATES of America, Appellee, v. Luther Amos BEAHM, Appellant.

No. 80-5127.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 9, 1981.

Decided Nov. 18, 1981.

John C. Hale, Richmond, Va. (Joseph L. Duvall, Fairfax, Va., on brief) for appellant.

Paula P. Newett, Asst. U. S. Atty. (Justin W. Williams, U. S. Atty., Alexandria, Va., Kevin J. Harrington, third-year law student, on brief) for appellee.

Before WINTER, WIDENER and SPROUSE, Circuit Judges.

WINTER, Circuit Judge:

Luther Beahm appeals his conviction by a federal jury on two counts of taking indecent liberties with children on a United States military installation in Virginia. ¹ He contends that the district court improperly permitted the introduction of prejudicial evidence and erroneously instructed the jury. We agree, in part, and therefore reverse the judgment of conviction and award a new trial.

I.

Two boys, ages nine and twelve, were fishing in a pond on Fort Belvoir, Virginia, on August 19, 1979, when they were each approached by a man subsequently identified as the defendant. The man dismounted from a blue motorcycle, took off his helmet, and attempted to talk to one of them about fishing. He alternately sat close by each of them and fondled their genitals. He left after approximately ten minutes.

One of the youths related the incident to his father, an Army sergeant, on August 25. The sergeant and his son, driving around the same area in which the incident occurred, observed a man on a blue motorcycle whom the son identified as the actor in the incident. The sergeant copied the license number of the motorcycle and, when traced by the FBI, it was found to belong to Beahm's girlfriend, with whom he was living. After an investigation was initiated an FBI agent sought the defendant at the residence where Beahm and his girlfriend were living, and, when no one responded to his knock, the agent left a note requesting Beahm to contact him. Beahm found the note that same day, September 7, threw it in a trash can, and departed immediately for Florida after packing a bag and withdrawing $200 from a joint account. He did not advise his girlfriend of his departure, but two weeks later, in a telephone conversation, she advised him that if he was innocent he should return. He followed her advice, and was subsequently interrogated, indicted, and convicted. He was sentenced to three years imprisonment on each of two counts, the sentences to run concurrently.

Before trial, the government filed its notice of intent to use evidence of two prior convictions of defendant for the purpose of impeachment in the event defendant testified. Such notice was required by Federal Rule of Evidence 609(b) because one of the convictions was more than ten years old. The notice explicitly referred to Rule 609(b), and listed two Maryland convictions, one for "unnatural and perverted sexual practices," nine and one-half years old, the other for sodomy, over eleven years old. Counsel for defendant filed a written objection to admissibility of this evidence, arguing that it was not permissible under Rule 609 and that even if it were, its probative value would be outweighed by its prejudicial effect because prior convictions for similar sexual offenses would inflame the jury. Although the district court refused to rule on the objection before the evidence was offered, it nonetheless clearly indicated its predisposition to admit the evidence, stating: I'm fully of the opinion that if it is of similar crimes, similar offenses, they may be introduced, and I think the Fourth Circuit has ruled on it in quite a number of cases, beginning with an old case way back."

At trial, the government introduced the testimony of the two offended youths, of the father of one of them, and of two other young males who testified that Beahm had committed similar acts on them several years previously. The latter evidence was admitted over Beahm's objection.

When the government's case was completed, the defendant took the stand in his own behalf, and he was questioned about his prior convictions. In light of the district court's pre-trial decision regarding this evidence, counsel attempted to limit the prejudice flowing from admission of the convictions for impeachment purposes by restricting cross-examination to the fact that defendant had two previous felony convictions, barring inquiry into the nature of those convictions. The district court ruled that the government could inquire into the nature of the offenses for which defendant was convicted, although it did not allow the government to delve further into the facts and circumstances of each case. Although the district court had earlier recognized that it would be required to weigh the prejudice to defendant against the right of the government to introduce the evidence, it failed to make any specific findings on the probative value of the convictions for purposes of impeachment; it relied instead on case law to support its ruling, citing Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), United States v. Boyce, 611 F.2d 530 (4 Cir. 1979), and Gardner v. Paderick, 566 F.2d 1172 (4 Cir. 1977) (unpublished).

II.

We consider first the admissibility of the testimony of two male witnesses that Beahm had made sexual advances to them within three years prior to the offenses charged. The district court admitted this evidence under Federal Rule of Evidence 404(b) as tending to prove Beahm's "intent, knowledge, or absence of mistake", ² and instructed the jury that the evidence might be considered only for that purpose. In this connection, it is significant that defendant was sharply contesting the sufficiency of the government's proof of lascivious intent with respect to the crimes charged.

We think that the district court did not err in admitting this evidence of other crimes, wrongs or acts, especially since defendant was insisting that under the Virginia statute the burden was on the government to show that defendant's acts were performed with lascivious intent and did not occur by accident. Because intent was a key issue in the case, the threshold requirement that evidence of prior acts be relevant to an issue other than the defendant's character was fully met. See United States v. Beechum, 582 F.2d 898, 911-16 (5 Cir.), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979); United States v. DiZenzo, 500 F.2d 263, 265 (4 Cir. 1974); United States v. Mastrotaro, 455 F.2d 802, 803 (4 Cir.), cert. denied, 406 U.S. 967, 92 S.Ct. 2411, 32 L.Ed.2d 666 (1972).

The only other limitation on use of prior acts evidence is contained in Federal Rules of Evidence 403, that the probative value of the challenged evidence must outweigh its prejudicial effect. But we cannot say that the district court abused its discretion in balancing these conflicting considerations. See United States v. Masters, 622 F.2d 83 (4 Cir. 1980). The probative value of the prior episodes is attested by their similarity to the offense charged and their temporal proximity to the crimes with which the defendant is charged. See United States v. Beechum, supra. Undoubtedly this evidence had some inflammatory effect on the jury, but the district court could well conclude that its probative value outweighed this prejudice when defendant chose to make intent an issue.

III.

We view the evidence of prior convictions differently. In our opinion, the district court committed reversible error in admitting evidence of the eleven-year-old sodomy conviction. At the outset it should be stressed that the government offered the evidence of prior convictions solely for impeachment under Rule 609(b). It makes no claim that the evidence was admissible under Rule 404(b), the rule discussed in the prior section of this opinion.

Our decision in United States v. Cavender, 578 F.2d 528 (4 Cir. 1978), is in point and controlling on the subject. Cavender holds that Rule 609(b) ³ "made it crystalline that the District Court was only to depart from the prohibition against the use for impeachment purposes of convictions more than ten years old 'very rarely and only in exceptional circumstances.' " 578 F.2d at 530, citing the applicable legislative history. Cavender also holds that the Rule requires the district court before admitting evidence of a conviction to find that the probative value of the conviction "substantially" outweighs its prejudicial effect, and the district court is required to support its findings with "specific facts and circumstances." 578 F.2d at 531. It follows that when the government seeks to use evidence of a conviction more than ten years old for purposes of impeachment, it bears the burden of establishing specific, or articulated, facts and circumstances that support the probative value of the conviction such that it substantially outweighs its prejudicial impact.

Here, as in Cavender, the district court not only failed to make any express finding that the probative value substantially outweighed the prejudicial effect of the evidence, but the record is silent both as to any specific facts supporting the probative value of the conviction for impeachment purposes, or showing how its probative value substantially outweighs its prejudicial effect. The district court supported its ruling with case law, not with facts, and at best can only be said to have found implicitly that the probative value of the evidence outweighed the prejudice, an insufficient finding under Rule 609(b). As Cavender makes clear, this stringent standard for district court findings under the Rule is necessary because the congressional purpose was to prohibit the admission of convictions more than ten years old, permitting exceptions to the prohibition "very rarely." 578 F.2d at 531.

Despite the government's argument to the contrary, we think it immaterial that the conviction at issue in Cavender was twenty-five years...