U.S. v. Bice-Bey

• Decision Date: 31 March 1983
• Docket Number: No. 82-5180,A,BICE-BE,82-5180
• Parties: 12 Fed. R. Evid. Serv. 1280 UNITED STATES of America, Appellee, v. Fatimahppellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1086

701 F.2d 1086

12 Fed. R. Evid. Serv. 1280

UNITED STATES of America, Appellee, v. Fatimah BICE-BEY, Appellant.

No. 82-5180.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 12, 1982.

Decided Feb. 25, 1983.

Rehearing Denied March 31, 1983.

Elizabeth F. Kuniholm, Durham, N.C. (Tharrington, Smith & Hargrove, Raleigh, N.C., on brief), for appellant.

James G. Lindsay, Dept. of Justice, Washington, D.C. (Samuel T. Currin, U.S. Atty., Raleigh, N.C., on brief), for appellee.

Before RUSSELL and ERVIN, Circuit Judges, and GORDON, ^* Senior District Judge.

ERVIN, Circuit Judge:

Fatimah Bice-Bey appeals her conviction for violation of 15 U.S.C. Sec. 1644(a) (1982). A jury found her guilty of two counts of credit card fraud after a trial that, she contends, was marred by numerous errors. In addition, Bice-Bey advances a reading of the statute that would absolve her of criminal liability under it. We find no prejudicial error in her trial and, although the issue is close, cannot agree with her interpretation of the statute. We affirm her conviction.

I.

During December of 1981, Oak Park Electronics, a Raleigh firm, received a number of very similar telephone orders for electronic equipment. The orders were all charged to credit card numbers and were requested to be shipped by Federal Express overnight to the New York area. ¹ After the seventh such order, for almost $5,000 in merchandise, was received on December 28 from a person identifying herself as "Jane Johnson," Oak Park contacted the FBI, which arranged for subsequent telephone orders from New York to be recorded. On December 29, "Johnson" called to confirm her order; the conversation was taped.

On December 30, a man identifying himself as "Joe Johnson" attempted to place an order for over $2,000 in video equipment, to be sent to the address in Manhattan given two days earlier by "Jane Johnson." When informed that his order exceeded the limits on the credit card accounts he proffered, the man abruptly hung up. Oak Park immediately received another call from a woman who identified herself as "Jane Johnson," the December 28 customer and the wife of "Joe Johnson." She placed a smaller order using the same credit card number proffered on December 28 and by "Joe Johnson" in the earlier December 30 call.

Later in the day on December 30, FBI agents posing as Federal Express employees delivered the December 28 order to the designated address, Apartment B-1, 38 Edgecombe Avenue, Manhattan. Bice-Bey accepted delivery, although she stated that she was not "Johnson" and signed the Federal Express form with the name "Cadabra." The agents then arrested Bice-Bey and William Simmons, the resident of Apartment B-1.

Bice-Bey was indicted by a grand jury for two counts of credit card fraud, based on the December 28 order, and one count of conspiracy to engage in credit card fraud. Simmons also was indicted for these offenses, but the charges were later dismissed, and a superseding indictment against Bice-Bey only was filed.

At the trial, the government's witnesses identified "Jane Johnson's" voice on the tape-recorded December 30 telephone call as that of Bice-Bey. A bank employee testified that the credit card numbers used on December 28 by "Jane Johnson" were in fact those of a Suzanne Matthews and an Edward Bernstein, and that all of the charges on the orders made prior to that date were charged back to Oak Park because the cardholders denied making the charges. Bernstein specifically testified that he had never lost or loaned his credit card and had never authorized anyone to use his number to order anything from Oak Park. Bice-Bey testified that she did not know either Bernstein or Matthews. The district court also permitted the introduction of a polygraph examination to which Bice-Bey had agreed. The polygraph examiner testified that in his opinion Bice-Bey's answers to questions concerning her involvement in the credit card orders indicated deception.

Bice-Bey's trial defense was that her participation in the credit card transactions was limited to accepting the package on December 30, and that her actions then were made on behalf of someone else without knowledge of any illegality. ²

II.

On appeal, Bice-Bey raises a number of issues regarding the admissibility of evidence. She argues that once the district court ordered her acquittal on the conspiracy count, it should have excluded the government's evidence concerning the credit card transactions that took place before December 28. The government contends that the evidence was still admissible under Federal Rule of Evidence 404(b), which permits the admission of "extrinsic act" evidence for relevant purposes other than to "prove" the defendant's bad character. We agree.

In United States v. Johnson, 634 F.2d 735, 737 (4th Cir.1980), cert. denied, 451 U.S. 907, 101 S.Ct. 1974, 68 L.Ed.2d 295 (1981), we held that, in admitting extrinsic act evidence, the district court "first must determine if the proffered evidence is relevant to an issue other than the accused's character. If so, then the trial judge must balance the evidence's probative value against the danger of undue prejudice aroused by this form of evidence." The 404(b) evidence in Johnson was held admissible by this court because it tended to rebut the defendant's claim that she lacked the mens rea necessary to commit the crime with which she was charged. Id. at 737-38. Similarly, in this case the evidence about the pre-December 28 transactions tended to undermine Bice-Bey's claim that her involvement in the December 28 order, for which she was charged, was innocent and inadvertent. Furthermore, although this evidence was clearly damaging to Bice-Bey, we cannot say that it was so prejudicial that there was an abuse of discretion in its admission. See United States v. Brugman, 655 F.2d 540, 545 (4th Cir.1981) ("wide discretion" vested in trial court to balance possible prejudice against probative force in 404(b) rulings).

According to Bice-Bey, the identification testimony offered by government witness Kollen Maloney was inadmissible. Maloney was the Federal Express employee who refused to release the order placed on December 21 to a woman lacking proper identification. She identified Bice-Bey as that woman when showed six photographs by the police. This photo spread was impermissibly suggestive, in Bice-Bey's view, because only one of the photographs portrayed a woman with dred locks and wearing a head covering. But while this procedure was somewhat suggestive, ³ we do not believe that it transgressed the limits set by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Manson rejected the position that the suggestiveness of an identification procedure renders the testimony produced inadmissible per se. The Supreme Court stated that "reliability is the linchpin in determining the admissibility of identification testimony," id. at 114, 97 S.Ct. at 2253, and that courts should consider "the opportunity of the witness to view the criminal.... the witness' degree of attention, the accuracy of the prior description of the criminal, the level of certainty demonstrated ... and the time between the crime and the [identification, discounted by] the corrupting effect of the suggestive identification itself." Id. The weight of these factors is in the government's favor: Maloney was presumably engaged in close observation of the woman who attempted to pick up the package, and her attention must have been fixed further by the woman's angry exit. Her description of the woman prior to being shown the photo spread was accurate in a general way. The level of certainty she demonstrated in making the identification was high, and she did so within a short period after making her personal observation.

Bice-Bey also attacks the admission of testimony by FBI agents that the taped voice of "Jane Johnson" was identical to her own. This contention is without merit. Federal Rule of Evidence 901(b)(5) permits the identification of a recorded voice "by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker." The FBI agents clearly met this standard. Furthermore, that this opinion evidence embraced an ultimate issue of fact to be decided by the jury--whether Bice-Bey in fact made the telephone calls placing the fraudulent orders--does not make the evidence objectionable. See Fed.R.Evid. 704.

III.

We must reject Bice-Bey's contention that the government's evidence cannot support the jury's guilty verdict on count one of the indictment. That count charged Bice-Bey with obtaining goods worth over $1,000 through fraudulent use of a VISA card issued to Suzanne Matthews of New York City. Although Edward Bernstein, holder of the Master Card Bice-Bey was charged with using by count two, testified that he did not authorize Bice-Bey to use his card, Matthews did not testify. The government argues that the evidence indicating that Bice-Bey used the Matthews card under a false name ("Jane Johnson") permitted the jury to infer unauthorized use of the card. Furthermore, Bice-Bey herself testified that she did not know Suzanne Matthews, and that she had no authorization to use anyone else's credit cards, admissions which permit a rational fact finder to conclude beyond reasonable doubt that if Bice-Bey used Matthews' card, she did so without Matthews' permission. Given our narrow scope of review for sufficiency of the evidence, ⁴ this court should not disturb the jury's verdict on this ground.

IV.

Bice-Bey contends that the district court's failure to rule on her motion for acquittal as to counts one and three (the conspiracy count and one of the substantive counts) at the close of the government's evidence was error. She further asserts that she was prejudiced by the error by being forced to determine whether to present evidence before receiving a ruling on her motion. The...