U.S. v. Herbst

• Citation: 565 F.2d 638
• Decision Date: 11 November 1977
• Docket Number: No. 76-1778,76-1778
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Wayne HERBST, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 638

565 F.2d 638

UNITED STATES of America, Plaintiff-Appellee, v. Donald Wayne HERBST, Defendant-Appellant.

No. 76-1778.

United States Court of Appeals Tenth Circuit.

Submitted Sept. 29, 1977.

Decided Nov. 11, 1977.

E. Edward Johnson, U. S. Atty., Topeka, Kan., Douglas B. Comer, Asst. U. S. Atty., Prairie Village, Kan., for plaintiff-appellee.

Donald Wayne Herbst, pro se.

Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

Donald Wayne Herbst (Herbst), appellant pro se, seeks review of his jury conviction of violating 18 U.S.C.A. § 2314, i.e., interstate transportation of forged securities. A detailed recitation of the procedural background is required to facilitate our review.

Herbst was charged in the District of Kansas with four violations of § 2314 on September 25, 1974. Thereafter, on November 21, 1974, he was arrested in the District of Wisconsin on charges of violations of § 2314. On March 20, 1975 Herbst pled guilty in Rule 20 ¹ proceedings to a total of eighteen (18) counts, representing his § 2314 charges pending in Wisconsin and similar violations charged and pending in Mississippi, Georgia, Nebraska, Tennessee, and Oklahoma. The § 2314 violations then pending against Herbst in Kansas were not included in the March 20, 1975 Rule 20 proceedings, even though the United States Attorney's office in the District of Kansas was amenable to such a disposition and so notified the United States Attorney's office in the District of Wisconsin. The Kansas charges were apparently not considered because the Wisconsin office had "so many Rule 20 requests up there that they took the first few and denied the rest." (R., Vol. Two, p. 21.)

It is uncontested that at the time he entered his Rule 20 proceeding guilty pleas in Wisconsin on March 20, 1975, Herbst was unaware of the outstanding Kansas charges and that no promises or agreements were made relative to the Kansas charges. After entering his guilty pleas, Herbst was sentenced to four year concurrent terms on each of the eighteen charges.

Shortly thereafter, in late March, 1975, Herbst was brought to Kansas on the September 25, 1974 indictment. In May of 1975, Herbst appeared before a magistrate and pled "not guilty" to each of the four § 2314 charges within the indictment. On June 12, 1975, a superseding indictment charging Herbst with ten violations of § 2314 was filed. He was arraigned on June 20, 1975, at which time he again pled "not guilty."

On July 10, 1975 Herbst filed a motion to dismiss the superseding indictment as violative of his right to a speedy trial. At the same time he also filed a motion for additional time to file pre-trial motions. These motions came on for hearing on August 22, 1975, at which time Herbst argued, inter alia, that at the time he pled guilty to the Wisconsin Rule 20 proceedings he was of the understanding that he was disposing of all the outstanding federal charges against him as the result of his forged check cashing activities, and, had he been aware that additional like charges were outstanding in Kansas he would not have pled guilty. At the conclusion of the hearing, the trial court denied Herbst's motions, concluding that a Sixth Amendment violation of the right to a speedy trial had not been shown.

Trial was set for September 8, 1975. Prior thereto, Herbst's motion for a mental examination pursuant to 18 U.S.C.A. § 4244 was granted. Upon the Government's motion, the trial date was then set back to September 29, 1975. On September 25, 1975 Herbst moved for a continuance. It was granted in order to afford additional time for the mental examination.

On November 17, 1975 the results of the mental examination were received. Herbst was determined competent to stand trial. At this time, Herbst was granted an additional continuance to stay the Kansas proceedings until such time as a matter relating to the Wisconsin Rule 20 proceeding could be settled. Trial was then set for January 19, 1976, but docketing problems prevented trial at that time. His trial was rescheduled for March 15, 1976. On February 18, 1976, Herbst moved to represent himself and for an additional continuance. These motions were heard on March 12, 1976. The requested continuance was denied but Herbst was allowed to represent himself with the assistance of stand-by counsel.

Herbst proceeded to trial on March 15, 1976. Each of the ten counts in the superseding indictment charged Herbst for forged checks cashed in Kansas which had been drawn on banks located in other states; all of the counterfeit checks were thereafter returned to the various Kansas establishments which had cashed and honored them when they were presented by Herbst.

The Government presented a total of nineteen witnesses, several of whom identified Herbst as the party who had cashed some of the checks. Other witnesses testified to accepting the checks, processing them through normal banking channels, and the refusal to honor them. FBI Agent Dixon, a handwriting expert, identified Herbst's handwriting on each check. FBI Agent Ridlehoover testified relative to an interview with Herbst during which Herbst admitted cashing bogus checks from 1971 to 1974 in 43 of the 50 states. Agent Ridlehoover's testimony was accepted solely for the purpose of establishing a pattern, scheme, or plan and the jury was so instructed.

Herbst did not testify, although he actively cross-examined each of the Government's witnesses. He did call several of the Government's witnesses as his own. These witnesses testified generally about identification and the relative ease with which a check could be altered.

Herbst was convicted on all ten counts and sentenced to five years imprisonment on each. The sentences were ordered to run concurrently but consecutively to any sentences previously imposed. Several post-trial motions were lodged and denied.

On appeal Herbst contends that: (1) evidence of other crimes was improperly admitted; (2) the District of Kansas improperly handled the Rule 20 proceedings it initiated; (3) the superseding indictment was improper and should have been dismissed; (4) the trial court erroneously denied his March 12, 1976 motion for a continuance; and (5) the superseding indictment should have been dismissed as violative of his right to a speedy trial.

I.

Herbst contends that his constitutional right to a fair trial was circumscribed by the improper admission of alleged crimes other than those charged in the indictment. Herbst does acknowledge that "certain exceptions have evolved which allow such evidence to be received in special circumstances and for limited purposes" citing to our opinions in United States v. Burkhart, 458 F.2d 201 (10th Cir. 1972), and King v. United States, 402 F.2d 289 (10th Cir. 1968). Herbst argues, however that the Government's evidence relative to alleged similar crimes has little or no probative value and that there is a total absence of evidence connecting him with "the commission of the alleged similar crimes." He contends that the fact that some of the checks in other prior indictments were similar in appearance or contained similar names did not create the necessary nexus to allow their admission in the case at bar. He also argues that unless evidence of other crimes is reliable and necessary for the Government's case, it should not be admitted. He relies on United States v. DiZenzo, 500 F.2d 263 (4th Cir. 1974), for this proposition.

We have repeatedly held that, as a general rule, evidence of criminal activity other than that specifically charged in an indictment is not admissible, unless it establishes a course of conduct, scheme, design or intent. United States v. Beathune, 527 F.2d 696 (10th Cir. 1975), cert. denied, 425 U.S. 996, 96 S.Ct. 2211, 48 L.Ed.2d 821 (1976). Such evidence is also admissible for proof of motive, opportunity, knowledge, identity or absence of mistake, inadvertence or accident. United States v. Freeman, 514 F.2d 1184 (10th Cir. 1975). Evidence of motive, intent, opportunity, plan, and absence of mistake or accident is particularly relevant in any conspiracy case. United States v. Gamble, 541 F.2d 873 (10th Cir. 1976). The same rationale applies with equal weight in a case such as this, where the similarity of checks, names, and mode of operation establishes a pattern of conduct. Evidence of Herbst's prior criminal activities was admissible consistent with our prior opinions. See : United States v. Stevens, 452 F.2d 633 (10th Cir. 1972) and United States v. Eagleston, 417 F.2d 11 (10th Cir. 1969). This is particularly so, when, as here, the trial court adequately and properly instructed the jury relative to the limited nature for which the evidence of other crimes was admitted and was to be considered:

There has been evidence presented which relates to possible similar unlawful acts and conduct of the defendant other than the specific offenses with which he is charged and is on trial. You are instructed that this evidence has been admitted only for the limited purpose of showing identity, guilty knowledge, intent, plan, scheme or course of conduct, if any, of the defendant with respect to the offenses charged. Such evidence of unlawful acts of a like or similar nature may not be considered by you as proof the defendant is guilty of the offenses charged, but is relevant and may be considered by you only for the limited purpose I have just stated.

The defendant is on trial only for the acts alleged in the indictment. He is not on trial for any other act or conduct. In determining whether the defendant is guilty or innocent, you are, therefore, to consider only whether he has or has not committed the acts charged in the indictment. Even if you are of the opinion that the defendant is guilty of some offense not charged in the indictment, you must find him "not guilty" if the evidence does not show beyond a reasonable doubt that he has committed the specific acts charged in the indictment.

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