U.S. v. Lewis, 76-1950

• Decision Date: 10 August 1977
• Docket Number: No. 76-1950,76-1950
• Citation: 560 F.2d 901
• Parties: 2 Fed. R. Evid. Serv. 163 UNITED STATES of America, Appellee, v. Edgar Richard LEWIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 901

560 F.2d 901

2 Fed. R. Evid. Serv. 163

UNITED STATES of America, Appellee, v. Edgar Richard LEWIS, Appellant.

No. 76-1950.

United States Court of Appeals Eighth Circuit.

Submitted April 11, 1977.

Decided Aug. 10, 1977.

Larry B. Leventhal, Minneapolis, Minn., for appellant.

Daniel M. Scott, Asst. U.S. Atty., Minneapolis, Minn., for appellee; William Zwart, Intern. and Robert G. Renner, U.S. Atty., Minneapolis, Minn., on the brief.

Before LAY and HENLEY, Circuit Judges, and NANGLE, ^* District Judge.

LAY, Circuit Judge.

Edgar Richard Lewis was convicted on two counts of interstate transportation of counterfeit securities under 18 U.S.C. § 2314, and eight counts of possession of stolen mail in violation of 18 U.S.C. § 1708. On appeal Lewis challenges the sufficiency of the evidence on all counts. On Counts I and II he contends that the evidence was insufficient to show that he transported the counterfeit cashier checks in interstate commerce. On Counts III through X he urges that the evidence was insufficient to show that he possessed the stolen personal checks with the requisite knowledge. Additionally, he asserts that the trial judge, the Honorable Miles Lord, erred in his examination of a government witness, and in refusing to strike the testimony of defendant's probation officer. We affirm the conviction.

The government's evidence showed that in December 1975 or early January 1976 Lewis planned and organized a scheme to pass stolen personal checks and counterfeit cashier checks in Minneapolis. In furtherance of the scheme Lewis enlisted the aid of Anita Bleizeffer, Clyde Barrett, Michael Hamby and Daniel Hamby. On January 5, 1976, the group met in Chicago and proceeded by car to Minneapolis. Once in Minneapolis they checked into a motel. Lewis and Anita Bleizeffer shared one room and Barrett and the Hamby brothers shared another. Shortly after checking into the motel the group assembled in Lewis' room. Lewis then produced the stolen personal and counterfeit cashier checks and directed the other four to practice forging signatures on the stolen personal checks. After practicing for one-half hour the four unsuccessfully attempted to pass the checks in several banks in Minneapolis. The next day Barrett was arrested when he attempted to cash one of the counterfeit cashier checks. Because of Barrett's disappearance, Lewis and Anita Bleizeffer drove back to Chicago. After being released Barrett met with the Hamby brothers and drove with them to Chicago.

Barrett eventually was granted immunity and the government's case is built on his testimony. The defense produced several witnesses who testified that Lewis was in Denver, Colorado, on January 5 and left for Minneapolis by car late that evening. The Hamby brothers testified that on January 6 they met Lewis by chance in Minneapolis and invited him to their motel room for a party. The Hamby brothers further testified that neither they nor Lewis were involved in the check passing scheme. Anita Bleizeffer was called by the government at the district court's insistence. Although her testimony was confusing and at times inconsistent, it exculpated Lewis.

Interstate Transportation.

Lewis first contends that the evidence was insufficient to show that he transported the counterfeit cashier checks from Chicago to Minneapolis. Although there is no direct evidence that Lewis transported the counterfeit cashier checks in interstate commerce, we find sufficient circumstantial evidence from which a jury could reasonably infer that Lewis transported the checks from Chicago to Minneapolis. Cf. United States v. Frazier, 545 F.2d 71, 74 (8th Cir. 1976).

Barrett testified that, except for a short period of time after checking into the Minneapolis motel, he was with the defendant from the time Lewis obtained the two packages in Chicago until Lewis produced the counterfeit cashier checks in the Minneapolis motel room. He also testified that Lewis planned the scheme, directed the group's activities, paid all expenses, and was to receive the lion's share of the take. Barrett further testified that neither he nor the Hamby brothers brought the checks to Minneapolis.

We find the evidence showing a chain of custody concerning the packages, the absence of another source, and Lewis' leadership role to be sufficient to support the jury's finding of interstate transportation. ¹Possession of Stolen Mail.

There is no dispute that the eight personal checks charged in Counts III through X were stolen from the mail ² and since knowledge can be inferred from possession, the only issue is whether Lewis had actual or constructive possession of the personal checks. The evidence shows that Lewis transported the checks from Chicago to Minneapolis and that he produced the checks and directed the group to practice forging endorsements in the motel room he shared with Anita Bleizeffer. Two of the stolen checks and practice endorsements for all the checks were later found in this room. We find that there was sufficient evidence that Lewis possessed the stolen checks from which the jury could reasonably infer his knowledge that they were stolen. Cf. United States v. Steward, 451 F.2d 1203 (2d Cir. 1971); United States v. Kearse, 444 F.2d 62 (2d Cir. 1971); United States v. Febre, 425 F.2d 107 (2d Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 40, 27 L.Ed.2d 87 (1970).

Testimony of David Hopkins.

At the trial several defense witnesses testified that Lewis was in Denver, Colorado, on January 5, 1976, and that he left for Minneapolis by car late that evening. The Hamby brothers testified that by chance they met Lewis in Minneapolis on January 6, 1976. In order to establish that Lewis was in Chicago on January 5, the government planned to call the defendant's probation officer, David Hopkins. Prior to his testimony the defendant objected on grounds that the probative value of his testimony was substantially outweighed by the danger of prejudice under Fed.R.Evid. 403. The district court overruled the objection, but ordered the witness and the government not to reveal that Hopkins was the defendant's probation officer. The district court instructed the witness to identify himself only as a federal official who saw the defendant at a particular time and place.

On direct examination Hopkins identified himself as a federal official who saw the defendant in Chicago on January 5. On cross-examination the defense questioned Hopkins concerning his records, particularly the entry and order of dates. During cross-examination Hopkins volunteered a statement that he had also visited with the defendant at the Chicago Police Department on January 15. The defense moved to strike Hopkins' testimony on the basis of the unresponsive "police department" answer. The court overruled the objection. On appeal defendant asserts that the district court should have stricken the testimony, because it "cast the defendant as one having prior police involvement and Hopkins as having supervision or administration over him." We disagree. The evidence shows that Hopkins, a federal official, met ...