U.S. v. Kirk, 75--1278

Citation528 F.2d 1057
Decision Date19 March 1976
Docket NumberNo. 75--1278,75--1278
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Franklin David KIRK, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

James E. Monnig, San Antonio, Tex. (Court appointed), for defendant-appellant.

John E. Clark, U.S. Atty., San Antonio, Tex., John M. Pinckney, III, W. Ray John, Asst. U.S. Attys., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, Chief Judge, RIVES and GEE, Circuit Judges.

RIVES, Circuit Judge:

Franklin David Kirk was convicted on a one-count indictment charging him with violation of 18 U.S.C. § 871 1 for threatening the life of the President of the United States of America. The district court imposed the maximum sentence of five years' imprisonment. Kirk appeals claiming reversible error: (1) in admitting into evidence his prior conviction under 18 U.S.C. § 871; (2) in admitting into evidence the alleged threat communicated to Secret Service Agents; (3) for refusing to instruct the jury on the defense of entrapment; (4) in misconstruing the elements of the offense; and (5) for refusing to grant a motion for a pretrial evidentiary hearing.


On May 15, 1974, Kirk was arrested by the Alamo Heights Police Department for public intoxication which hitchhiking near San Antonio, Texas. Kirk had been observed staggering in the highway, his eyes were bloodshot, his speech was slurred. The time of this arrest was 3:00 A.M. Kirk reportedly told the arresting officer that politicians had fouled this country up, but that he was going to take care of it by killing the President. Another officer from the Alamo Heights Police Department, Sergeant Gibson, was called to the scene. Sergeant Gibson asked Kirk where he was going. Kirk replied that he was going to Washington to kill the President. The officers then advised Kirk of his constitutional rights before taking him to the Alamo Heights Police Station. At the station, Sergeant Gibson contacted the United States Secret Service, the agency responsible for protecting the physical safety of the President, and informed its agents of Kirk's statements.

Two Secret Service Agents, Driscoll and Trinidad, arrived at the Alamo Heights Police Station at approximately 3:55 A.M. Agent Driscoll proceeded to interrogate Kirk, asking him what he was doing in San Antonio, Texas, and why he would want to harm the President. Defendant's response was that the President and other politicians were responsible for the bad condition of our country. Agent Driscoll then asked Kirk if there was anything that he could do about it. Defendant responded, 'I'll tell you how I'm going to fix things. I'm going to blow the (obscenity's) brains out.' It was for this threat alone that Kirk was indicted and convicted.

Defendant prior to his trial filed a motion to suppress the evidence of the alleged threat communicated to the Secret Service Agents and on the date of trial filed a motion for an evidentiary hearing outside the presence of the jury for the purpose of determining the voluntariness and admissibility of any statements allegedly made by him. Neither motion was granted, but each was carried along with the trial on the merits. At trial, Kirk's counsel renewed his motion to suppress as an objection to the proffered testimony of Agent Driscoll of the Secret Service (R. Vol. II at 56--57). This objection was overruled by the court and evidence of Kirk's statement was admitted (Id.). The district court also admitted into evidence, over defense counsel's objection, a judgment convicting Kirk for a previous violation of 18 U.S.C. § 871 (R. Vol. II at 71). That conviction occurred in 1971 in the State of Illinois after Kirk had made a similar threat against the President's life. Finally, the district court refused to give the special jury instructions requested by the defendant, which instructions would have charged the jury on the defense of entrapment in addition to defining the elements of an 18 U.S.C. § 871 offense.


I. Admission of Prior Criminal Conviction

Generally, evidence of another crime extraneous to the indictment is inadmissible at trial. A number of exceptions, however, qualify this rule. One of these is the 'intent' exception. 2 To admit evidence under this exception, the district court must balance the probative value of the evidence against the possible prejudicial effects resulting from its admission. See, e.g., United States v. Simmons, 5 Cir. 1974, 503 F.2d 831, 834; United States v. Goodwin, 5 Cir. 1974, 492 F.2d 1141, 1150. See generally McCormick, Evidence 447--454 (2d ed. 1974). In a criminal case, intent, of course, must be an element of the crime, and the evidence offered must throw light on the defendant's criminal intent. Weiss v. United States, 5 Cir. 1941, 122 F.2d 675, 682. Likewise, the prior criminal offense must be similar to and not too remote from the offense charged. Id. Recent cases stress that the evidence must be reasonably necessary to the prosecution's case and that evidence of the prior criminal conduct should be clear and convincing. United States v. Simmons, supra, at 835. An even more confining limitation on this exception is the requirement that intent be an issue in the case and not be adequately proved by evidence of the defendant's commission of acts which carry an evident implication of criminal intent. United States v. Goodwin, supra, at 1151. In such a case, evidence of the defendant's commission of a crime not charged in the indictment goes more to the inadmissible purpose of proving that the defendant is a bad man than to the admissible purpose of proving intent. In Goodwin, the trial court admitted evidence of a prior criminal conviction, but was reversed on appeal because intent, although an element of the crime charged, had not been seriously disputed at trial. Id. at 1152. See also United States v. Ring, 6 Cir. 1975, 513 F.2d 1001, 1008; United States v. Miller, 7 Cir. 1974, 508 F.2d 444, 450; United States v. Fierson, 7 Cir. 1969, 419 F.2d 1020.

Defendant here claims that before his intent had been seriously contested the district court admitted the evidence of his prior conviction. Although lack of criminal intent was Kirk's only defense, this defense was based upon intoxication and not accident, self-defense, or mistake. Defendant claims that evidence of the prior conviction shed no light on his intoxication defense and provided the jury with a very prejudicial impression of his character. Defendant also claims that evidence of his prior crime was not reasonably necessary to the government's case and was too remote in time. Several law enforcement officials could have testified, and in fact did testify, that Kirk was not so intoxicated that he did not know what he was doing.

The government maintains that it was aware from the outset of the case that defendant would make intent an issue at trial by raising the fact of his intoxication at the time the alleged crime was committed. On this point we agree with the government. It was apparent to both parties before trial that intent would be a disputed issue in this case. 3 Similarly, we believe that a prior conviction is relevant to an intoxication defense. Whether the prior conviction tended to show that defendant made this threat intentionally or as the result of 'alcohol talking,' was a matter for the jury's determination. The fact that the former offense occurred three years prior or to the offense charged does not make it so remote as to be excluded. We note that the district judge properly instructed the jury that Kirk's prior conviction could be considered only for the purpose of showing knowledge and intent and not as evidence that the defendant committed the offense.

In the final analysis, discretion must be given to the trial court on the admissibility of such evidence. United States v. Fonseca, 5 Cir. 1974, 490 F.2d 464, 469. This is particularly so where the legal standard is an elastic balancing test. A decision by the trial court to admit this kind of evidence should be upheld on appeal unless an abuse of discretion is found. Under the facts of this case, we cannot say that the district court erred in admitting into evidence Kirk's conviction in 1971 for violating 18 U.S.C. § 871.

II. Admission of Kirk's Alleged Threat

Miranda warnings were given Kirk by the police officers upon his arrest for public intoxication, but these warnings were not repeated by the Secret Service Agents prior to their interrogation of him at the Alamo Heights Police Station. Although the objective of this interrogation was not a 'confession,' defendant argues that the statements obtained are so analogous that the law of custodial interrogation should apply.

This Court does not accept that argument. The Fifth Amendment's prohibition against self-incrimination relates to crimes alleged to have been committed prior to the time when the testimony is sought. Glickstein v. United States, 1911, 222 U.S. 139, 142, 32 S.Ct. 71, 56 L.Ed. 128, 130; United States v. Orta, 5 Cir. 1958, 253 F.2d 312, 314, cert denied 357 U.S. 905, 78 S.Ct. 1149, 2 L.Ed.2d 1156. A person, uninformed of his rights, who testifies and thereby incriminates himself of a crime that has been committed, may assert a fifth amendment privilege if prosecuted for that crime, but it has been held that he is not free to falsely testify and commit perjury. United States v. Orta, supra, at 315. Likewise, the Ninth Circuit in Guillory v. Wilson, 9 Cir. 1968, 402 F.2d 34, 36, held that the law of coerced confessions and admissions was inapposite to a case where evidence of a defendant's attempt to bribe the interrogating officers was introduced at trial. Thus, as a general rule it can be said that no fifth amendment problem is presented when a statement is admitted into evidence which is not confessional in nature, but in and of itself constitutes the crime charged.


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