U.S. v. Lewis

• Decision Date: 12 November 1982
• Docket Number: No. 82-1245,82-1245
• Citation: 224 U.S.App.D.C. 74,693 F.2d 189
• Parties: , 11 Fed. R. Evid. Serv. 1561 UNITED STATES of America v. Charles W. LEWIS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 189

693 F.2d 189

224 U.S.App.D.C. 74, 11 Fed. R. Evid. Serv. 1561

UNITED STATES of America v. Charles W. LEWIS, Appellant.

No. 82-1245.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 13, 1982.

Decided Nov. 12, 1982.

Appeal from the United States District Court for the District of Columbia (D.C.Criminal No. 81-00411).

Mark Nozette, Washington, D.C. (appointed by this court) for appellant.

Anita J. Stephens, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., John A. Terry, Asst. U.S. Atty., Washington, D.C. at the time the brief was filed, and Judith Hetherton and Eric B. Marcy, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before ROBINSON, Chief Judge, and WRIGHT and WALD, Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

Appellant, Charles W. Lewis, was indicted on twenty counts of unlawfully transporting falsely made, forged, and altered securities in interstate commerce in violation of 18 U.S.C. Sec. 2314 (1976). ¹ After a two-day jury trial in the District Court, appellant was convicted on all twenty counts. The court sentenced appellant to twenty concurrent terms of not less than fifteen months and not more than seven and one-half years of incarceration.

During the trial, evidence concerning possible crimes and illegal acts other than those charged in the indictment was admitted into evidence. At the close of trial, the court instructed the jury that such evidence could only be used for a limited purpose--to show that appellant had a plan which included the counts charged in the indictment. Appellant claims that this evidence should either not have been admitted because it was irrelevant and overly prejudicial or the admission should have been immediately preceded by an appropriate limiting instruction. Because we cannot find that appellant was substantially prejudiced by either the admission of the extrinsic evidence or the timing of the limiting instruction, we affirm the convictions.

I. THE TRIAL

In December 1980, Travelers Express Company, Inc., of Minneapolis, Minnesota, shipped approximately 2,000 blank money orders from its New Jersey regional office to the National Bank of Washington via United Parcel Service (UPS). Each money order had a maximum value of $500, the actual payable to be encoded by a bank teller or salesperson, using a special check-writing machine, at the time of the purchase. These money orders never arrived at their intended destination ²; so on January 15, 1981, National Bank of Washington issued a stop-payment order on them.

Between April 9 and April 28, 1981, twenty of these missing orders were negotiated for cash at the DuPont Circle branch of Guardian Federal Savings & Loan (Guardian). ³ These money orders had a total face value of $8,324.73, and they ranged in amount from $314.00 to $493.00. Each had been processed through a special check-writing machine, endorsed, and then cashed. Each was presented to a Guardian teller by another Guardian employee--either Tonia Pearcy, the bank's Customer Service Representative, or Brenda Williams, the Head Teller. At no time did appellant visit Guardian or attempt to cash personally any of the orders for which he was indicted. At trial, however, the government tried to link appellant both to these twenty orders--through the testimony of Denise Lewis, Tonia Pearcy, and Brenda Williams--and to other orders--through the testimony of Yvette Bottoms, Ronald Nicks, and Wendell Williams. The government thereby hoped to show that appellant was the mastermind of a common scheme.

Denise Lewis testified that appellant asked her to recruit other persons to assist him in passing stolen money orders. ⁴ Ms. Lewis stated that appellant asked her if Ms. Pearcy or Ms. Williams would be willing to cash "hot" money orders at the bank at which they were employed. Ms. Lewis called Ms. Williams, obtained the name of an account at Guardian, filled out the money order, and took it to Ms. Williams, who then cashed it. On subsequent occasions, Ms. Lewis enlisted the aid of Ms. Pearcy to cash the stolen money orders. For each transaction, appellant allegedly received half of the money, and the remainder went to Ms. Lewis and her helpers. Ms. Lewis pleaded guilty to one count of forgery and received probation. ⁵

Tonia Pearcy corroborated her contact with Ms. Lewis and her role in the illegal scheme. She admitted to participating in three such transactions, two with Ms. Lewis alone, and one with both Ms. Lewis and Brenda Williams. Ms. Pearcy pleaded guilty to one count of misapplication of funds and received two years probation. ⁶

Brenda Williams similarly corroborated her contact with Ms. Lewis and her role in the illegal scheme. She admitted that on three different occasions she had cashed orders that Denise Lewis gave to her. Each time she would return the proceeds to Ms. Lewis and then receive her share. She pleaded guilty to one count of misapplication of bank funds and received probation. ⁷

The government also introduced substantial testimony concerning other stolen money orders that were not charged in the indictment. These money orders could, however, be inferred to have come from the same missing shipment as the twenty orders charged in the indictment. Therefore, though the government did not charge appellant with a continuing offense, it introduced the testimony of Yvette Bottoms, Ronald Nicks, and Wendell Williams to show that appellant was the mastermind of a common scheme.

Yvette Bottoms testified that Denise Lewis called her and asked if she knew a way to get some money orders cashed. She then met with Ms. Lewis and appellant at Ms. Lewis' home and was given five or six money orders to cash. Ms. Bottoms gave one of these to Tonia Pearcy, and returned the remainder to appellant after unsuccessfully attempting to cash them. Appellant gave Ms. Bottoms $100 for helping to cash the one money order. Ms. Bottoms pleaded guilty to a misdemeanor and received probation. ⁸

Ronald Nicks testified that sometime in January or February 1981 appellant told him that a parcel post truck had turned over and that he had gotten some money orders from it. ⁹ In April 1981, appellant gave him two money orders, which Mr. Nicks returned after failing in his efforts to cash them. ¹⁰ In June 1981, appellant temporarily moved into Mr. Nicks' home; during that time, Mr. Nicks discovered appellant in possession of some blank money orders and a check-writing machine. ¹¹ Mr. Nicks also testified that appellant was aware that Federal Bureau of Investigation (FBI) agents had begun to ask questions, and that appellant warned Mr. Nicks not to say anything. ¹² Mr. Nicks was not prosecuted because he cooperated with the government. ¹³

Wendell Williams testified that he also saw appellant with a check-writing machine and that appellant gave him seventeen money orders to cash for him. Williams was unable to negotiate those money orders, however, and returned them to appellant. ¹⁴ Mr. Williams was not prosecuted by the government. ¹⁵

At trial, appellant objected only to Wendell Williams' testimony, and upon losing that objection did not ask for any type of limiting instruction. ¹⁶ Appellant objected to Mr. Williams' testimony on the basis that the evidence was of "other crimes," use of which the rules of evidence generally prohibit. ¹⁷ 7] The government claimed, however, that the evidence was necessary to prove that appellant was the person masterminding the money order "scam." ¹⁸ After duly considering the arguments, the court admitted the evidence. ¹⁹ At the close of trial, the court instructed the jury that it could use the evidence concerning the other money orders only to infer appellant's participation in a scheme or plan which included the offense for which he was on trial, and not to infer appellant's guilt in any other manner. ²⁰ The jury convicted appellant of all twenty single counts in the indictment, and this appeal followed.

II. EVIDENCE OF CRIMES NOT CHARGED

Our review of the District Court's admission of testimony concerning crimes not charged in the indictment must follow certain basic principles of evidence law. The fundamental test for admitting evidence is its relevance: it must make "the existence of any fact * * * more or less probable than it would be without the evidence." Fed.R.Evid. 401. All relevant evidence is admissible, with certain specific evidentiary, procedural, statutory, and constitutional exceptions, Fed.R.Evid. 402, unless its probative value is substantially outweighed by its prejudicial impact. Fed.R.Evid. 403. But even the admission of irrelevant or prejudicial evidence does not constitute reversible error if a party did not object and offer proof as to why the evidence should not have been admitted. Fed.R.Evid. 103(a)(1) & (2). In the absence of an objection, reversible error will be found only if defects affecting substantial rights were obvious on the record. Fed.R.Crim.P. 52(b); Fed.R.Evid. 103(d). Indeed, even when potential error is brought to the trial court's attention by counsel's objection, much deference will be accorded to that court's discretionary disposition of the matter. United States v. DeLoach, 654 F.2d 763, 769 (D.C.Cir.1980); United States v. Childs, 598 F.2d 169, 173 (D.C.Cir.1979).

A. Relevancy of Extrinsic Evidence

Appellant first argues that the extrinsic evidence was irrelevant and should not have been admitted. Courts generally have concluded that "the doing of similar acts" is not relevant to the doing of a particular act. 2 J. WIGMORE, EVIDENCE Sec. 304 at 249-251 (Chadbourn rev. 1979). Under this principle of law, appellant claims that examples of his allegedly passing other money orders cannot be used to prove that he passed the twenty orders which were the subject of the indictment.

Appellant's statement of the law is correct, but beside the point. The...