U.S. v. Krezdorn, 79-5427

• Decision Date: 19 March 1981
• Docket Number: No. 79-5427,79-5427
• Citation: 639 F.2d 1327
• Parties: 7 Fed. R. Evid. Serv. 1532 UNITED STATES of America, Plaintiff-Appellee, v. Herman V. KREZDORN, Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1327

639 F.2d 1327

7 Fed. R. Evid. Serv. 1532

UNITED STATES of America, Plaintiff-Appellee, v. Herman V. KREZDORN, Defendant-Appellant.

No. 79-5427.

United States Court of Appeals, Fifth Circuit.

Unit A

March 19, 1981.

Jerald L. Abrams, Eagle Pass, Tex., for defendant-appellant.

Le Roy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before GOLDBERG, POLITZ and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

Appellant Krezdorn, a United States Immigration Inspector, was indicted and charged with falsely making and forging the signature of another inspector on the applications for border crossing cards of five nonresident aliens in violation of 18 U.S.C.A. § 1426(a). In this appeal from his conviction on four of the counts, defendant-appellant contests two evidentiary rulings made by the district court: (1) Admission of thirty-two additional forgeries not charged in the indictment (and expert testimony that they were forged by Krezdorn), and (2) admission of evidence that the aliens whose applications Krezdorn was charged with forging acquired their border crossing cards by making illegal payments to a third party unrelated to defendant. Since it constituted reversible error for the district court to admit evidence of the thirty-two additional forgeries, we reverse and remand for a new trial.

A border crossing card, also called a Form I-186 and commonly referred to as a local card, is issued by the Immigration and Naturalization Service (INS) and allows a Mexican national to enter the United States for up to seventy-two hours at a time within a radius of twenty-five miles of the border. ¹ Application for a border crossing card is made by use of a Form I-190, which can be obtained free of charge at a number of places, including Mexican Chambers of Commerce. To obtain an application form (Form I-190), the applicant must present a Mexican Form 13, a provisional passport that can be obtained at no cost from a Mexican Immigration Officer. ² The applicant's biographical data is ordinarily typed on the Form I-190 at the Chamber of Commerce. After obtaining the I-190 application form, the applicant must present the provisional passport, the Form I-190, and a photograph to a contact representative at the point of entry in the United States (in this case, Eagle Pass, Texas). An interview with a United States Immigration Inspector is conducted and, if the application is approved, the inspector will so indicate on the Form I-190 and will instruct the applicant to return in forty-five days to pick up his border crossing card. ³ The Immigration Inspector signs the application and sends the form to Washington to be indexed. If no adverse information on the applicant is received during the forty-five day waiting period, the border crossing card is prepared by clerical personnel and issued by the contact representative.

Several members of the Ruiz family, all Mexican citizens, did not follow these procedures. On two separate occasions, each of five members of the Ruiz family paid 2500 Mexican pesos to Arnulfo Contreras, a resident of Piedras Negras, a Mexican border town across the Rio Grande River from Eagle Pass, Texas, to obtain their I-186 border crossing cards. Contreras helped the Ruiz family to acquire and complete their Form I-190's and Form 13's. The Ruiz family members did not then deliver their Form I-190's to the INS in Eagle Pass, but instead submitted them to Contreras in Piedras Negras. They were instructed by Contreras to return and pick them up from him a number of days later. ⁴ They followed these instructions. Upon return of the forms from Contreras at the appointed times, the applicants took the forms directly to the port of entry at Eagle Pass and immediately received their border crossing cards. The I-190 forms received by the members of the Ruiz family appeared to have been signed by United States Immigration Inspector Francisco Valdez of Eagle Pass; however, Valdez denied ever signing them.

Appellant Krezdorn, an Immigration Inspector at the port of entry at Eagle Pass, Texas, was charged with five counts of forging Valdez's signature on the five I-190 applications. After the court directed an acquittal of Krezdorn on one count, ⁵ the jury found him guilty on the remaining four counts. The district court, over objection, admitted into evidence thirty-two additional I-190 forms that bore the forged signature of Valdez. These thirty-two I-190 forms were not cited or referred to in the indictments returned against Krezdorn. The court admitted expert testimony that all of these applications, the four referred to in the indictment and the thirty-two not referred to in the indictment, were forged by Krezdorn. The thirty-two additional I-190 forms were ruled admissible under the plan or scheme exception to the extraneous offense rule, and a limiting instruction to this effect was given. ⁶

The court also allowed the introduction of evidence of the payment of 2500 Mexican pesos from each of the Ruizes to Contreras. The only evidence of monetary payments introduced at trial was the testimony of the Ruiz family in explanation of the procedures they followed to acquire their border crossing cards. There was no evidence of any monetary payments to anyone with respect to the thirty-two extrinsic forgeries. The trial court found, however, that the testimony regarding the extraneous forgeries and the payments to Contreras were "so linked together in point of time and circumstances with the crimes charged that one cannot be fully shown without proving the other."

I. The Thirty-Two Extrinsic Forgeries

The admissibility of the thirty-two extrinsic forgeries is governed by Rule 404(b) of the Federal Rules of Evidence, which states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Fed.R.Evid. 404(b). The rule has been interpreted by this Court in United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), to establish a two-pronged test for admissibility: (1) Extrinsic offense evidence must be relevant "to an issue other than the defendant's character" and (2) it "must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of rule 403." Id. at 911 (footnote omitted). The district court found that the evidence of the additional forgeries satisfied both elements of the test: it was relevant to the existence of a plan or scheme and its probative value outweighed its possible prejudice.

Since a "plan" is not an element of the offense with which Krezdorn was charged, ⁷ evidence showing a plan must be relevant to some ultimate issue in the case. The contested issues in this case are (1) whether the signatures of Immigration Inspector Francisco Valdez on the applications were forged and, if so, (2) whether Krezdorn forged them. Evidence of extrinsic offenses can be used, inter alia, to establish the identity of a wrongdoer or the doing of a criminal act by raising a preliminary inference of a plan. For instance, evidence of an extrinsic offense may be admissible when it logically raises an inference that the defendant was engaged in a larger, more comprehensive plan. The existence of a plan then tends to prove that the defendant committed the charged crime, since commission of that crime would lead to the completion of the overall plan. This use of extrinsic evidence to establish the existence of a plan is allowed by Rule 404(b) because,

(it) involves no inference as to the defendant's character; instead his conduct is said to be caused by his conscious commitment to a course of conduct of which the charged crime is only a part. The other crime is admitted to show this larger goal rather than to show defendant's propensity to commit crimes.

22 C. Wright & K. Graham, Federal Practice & Procedure: Evidence § 5244, at 500 (1978) (footnotes omitted).

The thirty-two additional forgeries do not tend to establish the existence of a larger goal of which the four charged forgeries were only a part. The four forgeries for which Krezdorn was indicted show that Krezdorn was engaged in forgery. That there were thirty-six instead of only four forged I-190's does not establish anything different. It would, at best, merely demonstrate the repetition of similar criminal acts, thus indicating Krezdorn's propensity to commit this crime. Evidence of other crimes is not admissible for this purpose.

The Court in Beechum discussed in some detail another circumstance in which extrinsic evidence would be considered part of a common plan or scheme: "If the uncharged offense is 'so linked together in point of time and circumstances with the crime charged that one cannot be fully shown without proving the other, the general rule of exclusion does not apply.' " 582 F.2d at 912 n.15 (quoting Slough & Knightly, Other Vices, Other Crimes, 41 Iowa L.Rev. 325, 331 (1956)). In the instant case, the district court specifically relied upon this exception to allow the introduction of the contested evidence.

This exception applies when evidence of uncharged offenses is necessary to explain the circumstances or setting of the charged crime; in such a situation, the extrinsic evidence "complete(s) the story of the crime on trial by proving its immediate context of happenings near in time and place." ⁸ McCormick, Law of Evidence § 190, at 448 (2d ed. E. Cleary 1972) (footnote omitted), quoted in 2 J. Weinstein & M. Berger, Weinstein's Evidence P 404(16), at 404-85 (1980). The justification for this exception is that...