U.S. v. Campbell, 84-1182

• Decision Date: 18 October 1985
• Docket Number: No. 84-1182,84-1182
• Citation: 774 F.2d 354
• Parties: 19 Fed. R. Evid. Serv. 617 UNITED STATES of America, Plaintiff-Appellee, v. Oswald CAMPBELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 354

774 F.2d 354

19 Fed. R. Evid. Serv. 617

UNITED STATES of America, Plaintiff-Appellee, v. Oswald CAMPBELL, Defendant-Appellant.

No. 84-1182.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 1985.

Decided Oct. 18, 1985.

Kevin McMungal, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Farella, Braun & Martel, Daniel H. Bookin, San Francisco, Cal., for defendant-appellant.

Appeal from the United States District Court for the Northern District of California.

Before DUNIWAY, TANG, and FLETCHER, Circuit Judges.

DUNIWAY, Circuit Judge:

Campbell was convicted of unlawful possession of stolen mail, 18 U.S.C. Sec. 1708, receipt of government property with intent to convert it, knowing it has been stolen, 18 U.S.C. Sec. 641, and conspiracy, 18 U.S.C. Sec. 371, arising out of the sale of stolen welfare checks to undercover agents. He appeals and we affirm.

I. Facts.

On April 5, 1983, Harold Spencer phoned undercover agent Roland Soliz to arrange to sell to Soliz $21,000 worth of United States Treasury checks stolen on April 1 from a United States Postal Service Jeep. The following day, Spencer, Charles Hill, Travis Robinson and Campbell rode together in a car from Oakland to San Francisco. All four were black adults between 20 and 40 years old. They parked the car across the street from San Francisco's Civic Center Plaza, the meeting place agreed upon by Spencer and Soliz. Spencer crossed the street, spoke to Soliz, and gave a signal toward three other men who were standing near the car. Hill then took from the car a bag containing stolen checks and brought it to Soliz. Campbell and Robinson stayed near the auto, conferred, and looked in the direction of the transaction. After examining the checks, Soliz and other officers arrested Spencer and Hill. Thereupon Campbell and Robinson began to walk away rapidly in opposite directions. They were also arrested.

While under arrest, Campbell volunteered, "I just came along for the ride." He waived his Miranda rights. Although he first denied ever touching the stolen checks, when he was told that his fingerprints would be on them if he had touched them, he said, "Well, I might have fingered the checks." He said that he thought the checks might be connected to a postal break-in and that someone in the front seat of the car had told him that "We're going to the city to get $8,500." Campbell's fingerprints were later found on seven pieces of mail stolen on April 1, including U.S. Treasury check envelopes and one mailing insert seized at the April 6 arrest, and on Alameda County welfare check envelopes, also stolen on April 1, discovered on April 16 in an Oakland mailbox. Campbell was not charged with participating in the April 1 theft.

At trial, Campbell offered to stipulate that the checks were stolen from the mail. Additionally, after the United States had finished its opening statement, Campbell offered to stipulate that he knew that the checks had been stolen. The government refused these offers to stipulate.

Over objection, the trial judge allowed the government to present eyewitness testimony regarding the April 1 theft. Lou and Bessie Abram testified that they saw a car pull up near a United States mail jeep. Four black males "around 30" years old were in the car. Two of the men left the car, broke into the jeep, and returned to their car carrying mail. Mr. Abram had previously identified only the two males who broke into the jeep, Spencer and Hill. Campbell was never identified as a participant in the April 1 theft.

II. Admission of Testimony about the April 1 Theft.

Campbell argues that the district court improperly admitted the testimony about the April 1 theft. He argues that this testimony was unfairly prejudicial, irrelevant to the charges in this case, and did not meet the standards of Fed.R.Evid. 404(b) for admission as evidence of "other crimes, wrongs or acts." Campbell maintains that the prosecution introduced this evidence to suggest that Campbell was a man of criminal character who had participated in a more serious crime than those with which he was charged. Holding that the challenged testimony was probative, and finding "no element of unfairness about it," the district court admitted it.

We overturn such evidentiary rulings only when we find an abuse of discretion. The inquiry is whether the decision was rendered on a consideration of the relevant factors and whether a clear error of judgment has been made. United States v. Soulard, 9 Cir., 1984, 730 F.2d 1292, 1296.

We find no abuse of discretion here. The testimony regarding the theft was direct proof that the charged items were stolen from the mail, a necessary element for a violation of 18 U.S.C. Sec. 1708, one of the charged crimes. United States v. Patterson, 9 Cir., 1982, 664 F.2d 1346, 1347. Therefore, it was not simply "[e]vidence of other crimes, wrongs or acts" that should have been excluded under Federal Rule of Evidence 404(b), as Campbell contends. See United States v. Aleman, 5 Cir., 1979, 592 F.2d 881, 885.

Campbell argues that the government should have been required to accept his attorney's offers to stipulate at trial that the checks were stolen and Campbell knew they were stolen. The government refused to accept the stipulations. It had the right to do so. It was entitled to prove these...