U.S. v. Bohr

• Decision Date: 30 August 1978
• Docket Number: No. 78-1096,78-1096
• Citation: 581 F.2d 1294
• Parties: 3 Fed. R. Evid. Serv. 1380 UNITED STATES of America, Appellee, v. Louis K. BOHR, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1294

581 F.2d 1294

3 Fed. R. Evid. Serv. 1380

UNITED STATES of America, Appellee, v. Louis K. BOHR, Appellant.

No. 78-1096.

United States Court of Appeals Eighth Circuit.

Submitted June 12, 1978.

Decided July 26, 1978.

Rehearing and Rehearing En Banc Denied Aug. 30, 1978.

George E. Mallon, Kansas City, Mo., argued and on brief, for appellant.

Gene C. Napier, Asst. U. S. Atty., Kansas City, Mo. (argued), and Ronald S. Reed, Jr., U. S. Atty., Kansas City, Mo., on brief, for appellee.

Before GIBSON, Chief Judge, HEANEY and ROSS, Circuit Judges.

ROSS, Circuit Judge.

Defendant Louis K. Bohr was convicted on two counts of wire fraud in violation of 18 U.S.C. § 1343. ¹ He was sentenced to two consecutive four-year terms.

On appeal Bohr alleges that there were several trial errors and argues that, because of the delicate balance between guilt and innocence here, no error can be deemed harmless. After careful consideration of each allegation of error, we are convinced that the convictions should be affirmed.

Bohr was jointly indicted with Joseph B. King. Their first trial resulted in a mistrial when the jury was unable to reach a verdict. During the second trial King was granted another mistrial and severance. ² That trial continued as to Bohr and resulted in his convictions.

The government's evidence showed that King posed as a farm chemical salesman and obtained the name of Walter Ball, a Jasper, Missouri farmer and the victim of the fraud, from an automobile dealer in Carthage, Missouri. King approached Ball, told him that his brother-in-law worked with the Mt. Vernon, Missouri sheriff's department, and advised Ball that the sheriff's department had over 900 cans of Treflan fertilizer to sell for approximately $40 per can. ³ Ball indicated that he did not need that much fertilizer, but that he had an acquaintance in Valparaiso, Nebraska, who might be interested. Both King and Bohr encouraged Ball to contact the Nebraska farmer to arrange the deal. Ball's two telephone calls to Nebraska form the bases for the two counts on which Bohr was convicted.

In making the arrangements with the Nebraska farmer, Ball increased the price of the Treflan to about $60 per can, admittedly attempting to make some personal gain. The Nebraskan wired $35,000 to Ball.

On Thursday, April 21, 1977, Ball and his wife met King at a restaurant in Mt. Vernon, Missouri. The three then drove to the courthouse where Bohr came out to greet them. Bohr displayed a badge and a manifest pertaining to the Treflan. They made some final arrangements concerning the terms of the sale.

The next day, April 22, at approximately 2:45 p. m., Ball met Bohr outside the Mt. Vernon courthouse and gave him $31,740 cash and a cashier's check for $4,500, payable to the Treasurer of Lawrence County. Bohr indicated that he was going after receipts, left with the cash, ⁴ and never returned.

Bohr testified in his own defense. He stated that he had never met King prior to their joint indictment. He gave an alibi defense that was supported by testimony of other defense witnesses.

The key issue at trial was identification. Prior to the grant of mistrial and severance, several witnesses, including Mr. and Mrs. Ball, identified King. Although the Balls also identified Bohr, their identification of him was seriously questioned during cross-examination. They had given a description of the man who took their money and a composite drawing had been made. They described the man as approximately 3 inches shorter than King, weighing about 230 pounds, and having blond, wavy hair.

At trial Bohr demonstrated that he was actually about the same height as King. He then weighed about 210 pounds and had straight brown hair. Defense witnesses testified that Bohr's weight had been the same, and he had not changed his hair color or style, for at least 6 years. On cross-examination they stated they did not see Bohr on April 21 or 22.

One government witness, the waitress at the restaurant in Mt. Vernon, failed to identify Bohr at the first trial. She did identify him at the second trial, although she was not "exactly positive." She stated, on cross-examination at the second trial, that she was able to identify Bohr now because she had done "a lot of thinking" between trials.

A third government witness, Harold E. Roberts, Jr., positively identified Bohr as the man who had defrauded him out of $20,000 in a similar scheme in Arkansas on February 11, 1977. Roberts did not identify King.

Other Crimes Evidence.

Bohr's first allegation of error on appeal challenges the admission of three pieces of evidence which allegedly indicated his involvement in other crimes and thus denied him his rights to due process of law and a fair trial.

The challenged evidence included the testimony of Harold Roberts who identified Bohr as the individual who defrauded him out of $20,000 in a similar scheme in Arkansas two and one-half months prior to the incident in question. Bohr contends that because of the likelihood that the jury would draw an improper inference from Roberts' testimony, it should have been excluded to avoid confusion of the issues and misleading of the jury.

Generally, evidence of prior criminal acts of an accused, not charged in the indictment, is not admissible. Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892). There are exceptions to this rule of exclusion and admissibility is governed by Rule 404(b) of the Federal Rules of Evidence. ⁵

Under this rule evidence of other criminal activity is relevant to prove identity, an issue which was strongly contested in this case. It was incumbent on the government to prove that Bohr was the individual who took the Balls' money. He denied any knowledge of the incident, presented an alibi defense, and vigorously cross-examined the government's identification witnesses.

Roberts testified to a scheme very similar to the one charged and he positively identified Bohr. Furthermore, the Arkansas incident was reasonably close in time to the crime charged at trial. See United States v. Davis, 551 F.2d 233, 234 (8th Cir.), Cert. denied, 431 U.S. 923, 97 S.Ct. 2197, 53 L.Ed.2d 237 (1977); United States v. Clemons, 503 F.2d 486, 489 (8th Cir. 1974). Thus, we find that the requirements of Rule 404(b) were met.

Our task does not end here. Rule 403 of the Federal Rules of Evidence ⁶ allows the district court to exclude such evidence, even though relevant, "if its probative value is substantially outweighed by the danger of unfair prejudice, * * *." Bohr contends that the district court erred in not excluding Roberts' testimony, pursuant to Rule 403.

We may not reverse the ruling of the district court unless we find the testimony so prejudicial that its probative value is outweighed by unfair prejudice. United States v. Maestas, 554 F.2d 834, 836 (8th Cir.), Cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1070 (1977). In making our evaluation we must give great deference to the district judge who saw and heard the evidence. Id., citing United States v. Nichols, 534 F.2d 202 (9th Cir. 1976); United States v. Gocke, 507 F.2d 820, 824 (8th Cir. 1974), Cert. denied, 420 U.S. 979, 95 S.Ct. 1407, 43 L.Ed.2d 660 (1975); United States v. Skillman, 442 F.2d 542, 551-52 (8th Cir.), Cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971).

We find that the probative value of Roberts' testimony was substantial and was not outweighed by unfair prejudicial impact. The other evidence of identity was not so strong that resort to evidence of the Arkansas incident was unnecessary and unfairly prejudicial. Cf. United States v. Weaver, 565 F.2d 129, 134 (8th Cir. 1977); United States v. Moody, 530 F.2d 809, 810 (8th Cir. 1976).

During the course of the trial the government introduced, and passed to the jury, a photograph of Bohr which appeared to be a police "mug shot." Although Bohr never objected to the introduction of this evidence he asks this court to consider it under the plain error provisions of Rule 52(b) of the Federal Rules of Criminal Procedure. He contends that the obvious implication is that if such a photograph existed prior to his arrest on the current charge, he must have had a prior criminal record.

This court does not endorse the introduction into evidence of obvious "mug shots." See United States v. DeVerse, 464 F.2d 80, 84 (8th Cir.), Cert. denied, 409 U.S. 988, 93 S.Ct. 342, 34 L.Ed.2d 253 (1972). However, we have not adopted a per se rule prohibiting the use of such evidence and we must view each case on its facts.

We note that the defendant did not object to the introduction of the photograph and, in fact, When specifically asked by the district court if there were any objections, Bohr's attorney indicated that he had none. Our task on review under the plain error rule is limited. ⁷ See United States v. Scott, 485 F.2d 576, 577 (8th Cir. 1973), Cert. denied, 416 U.S. 941, 94 S.Ct. 1946, 40 L.Ed.2d 292 (1974).

Two factors weigh heavily in our determination that the admission of the photograph of Bohr did not constitute plain error. Initially we note that the government's first use of the photograph came during redirect examination of Walter Ball. His identification of Bohr was essential to the government's case. Although Ball had made an in-court identification of Bohr, he had been extensively cross-examined. Certainly his testimony indicated some differences in Bohr's appearance between April 21 and the date of trial. The photograph was needed to show that Ball had identified Bohr from a photograph depicting him much the same as he appeared in court. Cf. United States v. Johnson, 495 F.2d 378, 384 (4th Cir.), Cert. denied, 419 U.S. 860, 95 S.Ct. 111, 42 L.Ed.2d 95 (1974); United States v. Sherman, 421 F.2d 198, 200 (4th Cir.), Cert. denied, 398 U.S. 914, 90 S.Ct. 1717, 26 L.Ed.2d 78 (1970).

Furthermore, in instructing the jury the district court made the following reference to the photograph:

Now,...