U.S. v. Howard, s. 73-1856
| Decision Date | 29 October 1974 |
| Docket Number | 73-1857,Nos. 73-1856,s. 73-1856 |
| Citation | 504 F.2d 1281 |
| Parties | UNITED STATES of America, Appellee, v. Eugene Wesley HOWARD, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert G. Duncan, Duncan & Russell, Gladstone, Mo., for appellant.
Wilbur H. Dillahunty, U.S. Atty., Little Rock, Ark., for appellee.
Before GIBSON, Chief Judge, VOGEL, Senior Circuit Judge, and WEBSTER, Circuit Judge.
Eugene Wesley Howard was convicted on four counts of willfully and knowingly transferring and delivering counterfeit twenty-dollar Federal Reserve Notes, in violation of 18 U.S.C. 473; on one count of knowingly possessing such counterfeit currency, in violation of 18 U.S.C. 472; and on one count of unlawfully carrying a firearm during the commission of a federal felony, in violation of 18 U.S.C. 924(c)(2). In this appeal he challenges the introduction of allegedly prejudicial evidence at trial as well as several of the trial court's 1 instructions to the jury. Having carefully reviewed the trial transcript and the arguments advanced on appeal, we affirm.
Appellant Howard was introduced to the owner of the Mid-State Printing Co. by Michael Gocke, a former printer at the plant. Howard bought the plant in November, 1972, financing the purchase with money he borrowed from one Bill Carter, a self-proclaimed gambler and narcotics user with a long record of felony convictions. On January 18, 1973, while the building was allegedly being cleaned and prepared for printing, Howard guided Secret Service Agents Saitta and Howlett through the plant at their request. Howard agreed to notify the agents if he discovered any indications of counterfeiting at Mid-State, but he denied knowing Carter when the agents inquired about their possible acquaintance.
In early March of 1973, Carter, who was then on probation for violation of the Firearms Act, agreed to cooperate with the Secret Service and, while wearing an electronic taping device, approached Howard for the purpose of purchasing counterfeit currency from him. Carter had a series of such meetings with Howard and on at least two occasions bought a considerable quantity of counterfeit twenty-dollar Federal Reserve Notes from Howard. During one meeting, Carter was accompanied by Agent Saitta, who had adopted the undercover disguise of a prospective purchaser of additional counterfeit notes. Ultimately, Howard gave Saitta the key to a motel room where 12 counterfeit notes as well as 12 counterfeit Arkansas drivers' licenses were hidden. After taking these samples supposedly for inspection purposes, Saitta agreed to purchase $200,000 worth of the counterfeit currency and 6,000 licenses. As planned, Howard delivered the money and licenses to Saitta at a shopping center parking lot, whereupon Howard was arrested as he was reaching for a loaded pistol in his belt.
Following his arrest, Howard was taken to the local Secret Service office where he agreed to accompany several agents to his mother's house in Lonoke where additional money was hidden. The search of that house disclosed well over $400,000 worth of counterfeit twenty-dollar bills and approximately 6,000 counterfeit Arkansas drivers' licenses. The following day, agents found trash barrels containing scraps of counterfeit money and burned printing plates after searching with a warrant the property near Howard's office in North Little Rock. According to the testimony of one of Howard's employees, he had hauled these trash barrels from the Mid-State plant upon Howard's direction.
Howard was charged with four separate deliveries of counterfeit currency, two to Carter and two to Saitta. He was also charged with selling and possessing the counterfeit money hidden at his mother's house and with unlawfully carrying a firearm during the delivery of the money at the parking lot.
Howard's first assignment of error relates to the admission into evidence of testimony concerning the counterfeit Arkansas drivers' licenses. Howard argues that he was not standing trial for any offense involving the licenses and that such evidence of other crimes improperly prejudiced his case.
While evidence of other criminal activity is generally inadmissible to show that the accused is an individual of bad character with a propensity to commit the crime charged, such evidence may be received for several narrowly defined and exceptional purposes, e.g., to show intent or motive. Umbaugh v. Hutto, 486 F.2d 904 (8th Cir. 1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1978, 40 L.Ed.2d 311 (1974). Another such exception permits the introduction of evidence of other criminal activity to complete the story of the crime on trial by proving its immediate context or the 'res gestae.' McCormick, Evidence 448 (2d ed. 1972). Thus, this Circuit has upheld the admission of such evidence where it is 'part and parcel' of the crime charged. United States v. Cochran, 475 F.2d 1080, 1082 (8th Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973). See also United States v. Weatherford, 493 F.2d 248 (8th Cir. 1974).
The evidence in question here clearly fits this latter category. The record shows that Howard offered to sell to undercover agent Saitta the counterfeit drivers' licenses together with the counterfeit currency; in both the motel room where samples of the counterfeit had been secreted and in Howard's mother's house where substantial quantities of counterfeit were hidden, drivers' licenses were found in addition to the currency. Under these circumstances, we hold the evidence concerning the licenses to have been properly admitted. Moreover, Judge Henley's instruction to the jury 2 properly explained the use to which such evidence may be put. We find no error here.
When Howard took the stand at trial, his primary defense was that his entire course of conduct had been based upon his desire to cooperate with the government by locating and identifying the perpetrators of the counterfeiting scheme. He claimed that he adopted the role of 'volunteer' soon after he led the Secret Service agents through the Mid-State plant and that he had 'set up' a series of counterfeit deals in an effort to apprehend the 'big people' involved in the operation. On appeal, he argues that as a result of his good motives, he lacked the requisite criminal intent for conviction. Nonetheless, it is certainly clear from Howard's testimony that all of the acts for which he was convicted were done intentionally, and we therefore reject Howard's contentions.
' Noble motives and pure thoughts cannot bar the conviction of one who admits intentional action which violates the proscriptions of a statute declaring that action criminal * * *.' United States v. Ragsdale, 438 F.2d 21, 26 (5th Cir.), cert. denied, 403 U.S. 919, 91 S.Ct. 2231, 29 L.Ed.2d 696 (1971). This principle is supported by ample authority. See United States v. Mitchell, 463 F.2d 187, 191 (8th Cir. 1972), cert. denied, 410 U.S. 969, 93 S.Ct. 1449, 35 L.Ed.2d 705 (1973); United States v. Malinowski, 472 F.2d 850, 856 (3d Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973); United States v. Owens, 415 F.2d 1308, 1315 (6th Cir. 1969), cert. denied, 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 406 (1970).
Judge Henley's instructions properly set forth the essential elements of the offenses charged and correctly reflected the standards against which the jury had to test Howard's volunteer defense. 3
Howard has raised a question of first impression in assigning error to Judge Henley's charge to the jury concerning the offense defined by 18 U.S.C. 924(c) (2). That statute provides in part that
Whoever * * * carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years.
Howard's challenge focuses on the meaning of the word 'unlawfully,' as employed in the statute. Judge Henley instructed the jury that the word referred to that which is illegal under Arkansas law. He continued:
You are instructed that under the relevant Arkansas statute it is a misdemeanor for any person to wear or carry in any manner whatever as a weapon any pistol, provided that the Arkansas statute is not to be so construed as to prohibit any person from carrying such pistols as are used in the Army or Navy of the United States when carried uncovered and in the hand, and provided further that the statute is not to be construed as prohibiting the carrying or wearing of a pistol by a person while he is on a journey or on his own premises. 4
Howard contends that this instruction should have instead referred to that which is illegal under federal law. As a result, he argues, he was denied both due process of law and equal protection of the laws, for he was convicted of a crime not punishable under the laws of the United States. 5
We disagree. After extensive research into the legislative history of18 U.S.C. 924(c)(2), we conclude that 'unlawfully' was intended to refer to the carrying of a gun which is prohibited by any law-- be it a state law, a federal statute, or a municipal ordinance. 6
The purpose of the amendment to H.R. 17735, which ultimately became 18 U.S.C. 924(c), 7 was 'to persuade the man who attempted to commit a federal felony to leave his gun at home.' 114 Cong.Rec., 90th Cong., 2d Sess. 22231 (1968). See also United States v. Melville, 309 F.Supp. 774, 777 (S.D.N.Y.1970). To effectuate this purpose, the statute creates a separate offense for the carrying of a gun during the commission of a federal felony and, at least in the case of second and subsequent violations, imposes a mandatory penalty that is consecutive to that assessed for the...
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