U.S. v. Marshall, 81-2027

• Decision Date: 04 August 1982
• Docket Number: No. 81-2027,81-2027
• Parties: 11 Fed. R. Evid. Serv. 416 UNITED STATES of America, Appellee, v. Robert L. MARSHALL, a/k/a Cito Marshall, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1212

683 F.2d 1212

11 Fed. R. Evid. Serv. 416

UNITED STATES of America, Appellee, v. Robert L. MARSHALL, a/k/a Cito Marshall, Appellant.

No. 81-2027.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 12, 1982.

Decided Aug. 4, 1982.

Harden, Grace, Downing, Napper, Allen & East, Little Rock, Ark., for appellant.

George W. Proctor, U. S. Atty., Robert L. Neighbors, Asst. U. S. Atty., Little Rock, Ark., for appellee.

Before HEANEY, McMILLIAN and ARNOLD, Circuit Judges.

McMILLIAN, Circuit Judge.

Robert L. Marshall appeals his conviction under the Food Stamp Act (the Act), 7 U.S.C. § 2011 et seq., specifically, for buying food stamps valued at $100 or more for cash in violation of 7 U.S.C. § 2024(b) ¹ and for presenting food stamps for redemption knowing them to have been received in a manner not authorized by the Act in violation of 7 U.S.C. § 2024(c), ² entered in the District Court ³ for the Eastern District of Arkansas after a jury trial. For reversal Marshall argues that the district court erred (1) in admitting into evidence two food stamp compliance visit reports which suggested that Marshall had previously violated the Act, and (2) in denying his motion for a new trial based on newly discovered evidence allegedly suppressed by the United States Department of Agriculture. For the reasons discussed below, we affirm the district court.

Robert Marshall and Ann Marshall, his wife, own a grocery store located in Little Rock, Arkansas. Marshall has been an authorized food stamp retailer since October 1975. It is undisputed that Marshall purchased food stamps valued in excess of $100 for cash from Huston Harris, a government "investigative aide" on four occasions between February and April, 1981, and presented those food stamps for redemption at the First American Bank located in Little Rock, Arkansas. Marshall and his wife were subsequently arrested and charged with four counts of unlawfully acquiring food stamps and three counts of presenting food stamps for redemption knowing them to have been received in a manner in violation of the Act. ⁴

At trial Marshall's defense was an alleged lack of knowledge that the food stamps in question had been acquired in a manner not authorized by the Act, which is an element of both offenses. In order to prove the element of knowledge, the government introduced the testimony of Harley Fancher, Jr., a food program specialist with the Food and Nutrition Service of the United States Department of Agriculture. Fancher testified that he had processed Marshall's 1975 food stamp retailer application and had at that time explained the Act and regulations and completed a "checklist" of requirements and prohibitions with Marshall. Fancher further testified as to two "compliance visits" to Marshall at his store on February 27, 1976, and April 7, 1978. Fancher made reports of these visits which state in pertinent part:

February 23, 1976

All elements of a compliance visit were covered with emphasis on cash for coupons ... ineligible items ...

I (discussed) the high rate of redemptions.... I informed (Marshall) of this office's concern that violations (of the Act) could be causing (the high redemption rate).

I do not believe the redemptions are reasonable ... and the redemptions should be monitored for three report periods.

April 7, 1978

I contacted the owner (Marshall) regarding his erratic redemptions and his high redemption ratio. I informed him that this office was concerned of continued violations in spite of the warning letter of Oct. 21, 1977.... He remembered the letter but claimed he was talked into violating by someone he knew....

The district court admitted the reports into evidence under Fed.R.Evid. 404(b) on the basis that they were relevant to the issue of Marshall's knowledge that "cash for coupons" transactions were prohibited by the Act.

On appeal Marshall argues that the reports suggesting prior violations of the Act were not admissible under Rule 404(b). We disagree. Rule 404(b) provides:

(b) Other crimes, wrongs, or acts. 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.

The rules for admission of other crimes or bad act evidence are well established: (1) the evidence of the bad act must be admissible on a material issue raised; (2) the evidence must be similar in kind and reasonably close to the charge at trial; (3) the evidence of the other crime or bad act must be clear and convincing; and (4) the probative value of the evidence must not be outweighed by its prejudice. United States v. Frederickson, 601 F.2d 1358, 1365 (8th Cir.), cert. denied, 444 U.S. 934, 100 S.Ct. 281, 62 L.Ed.2d 193 (1979).

In reviewing the admissibility of evidence this court applies an abuse of discretion standard. United States v. Moss, 544 F.2d 954, 960-61 (8th Cir. 1976), cert. denied, 429 U.S. 1077, 97 S.Ct. 822, 50 L.Ed.2d 797 (1977). The trial court can in its discretion admit relevant evidence of other criminal and bad acts and "reversal is only commanded when 'it is clear that the questioned evidence has no bearing upon any of the issues included.' " United States v. Conley, 523 F.2d 650, 654 (8th Cir. 1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1125, 47 L.Ed.2d 327 (1976), citing United States v. Thompson, 503 F.2d 1096, 1098 (8th Cir. 1974). Accord, United States v. Young, 618 F.2d 1281, 1289 (8th Cir.), cert. denied, 449 U.S. 844, 101 S.Ct. 126, 66 L.Ed.2d 52 (1980).

In the present case Marshall concedes that evidence of his knowledge of the Act's prohibitions is relevant; however, he argues that the reports should not have been admitted because they do not constitute clear and convincing evidence of prior violations.

We disagree with respect to the April 7, 1978, report. That report contains Fancher's testimony that Marshall himself admitted violating the Act. Such an admission, if made directly, is clear and convincing proof of Marshall's previous violations of the Act.

It is questionable whether the district court should have admitted the February 23, 1976, report. This report does indicate that Marshall was informed of the prohibition against cash for coupon transactions but it is not clear and convincing proof of prior violations as required under Rule 404(b). However, the evidence contained in the report is merely cumulative. Fancher testified that he had personally explained the Act and completed a checklist of prohibitions with Marshall at the time Marshall applied to become a food stamp retailer. In addition, the April 7, 1978, report establishes that Marshall admitted violating the Act and was again informed of the Act's prohibitions. Therefore, the earlier February 23, 1976, report did not introduce new prejudicial evidence. We are convinced that the error, if any, was harmless beyond a reasonable doubt. ⁵

Marshall next argues that the reports were not admissible under Rule 404(b) because they were not made reasonably close in time to the violations charged at trial. We disagree.

"(T)here is no absolute rule regarding the number of years that can separate offenses. Rather, the court applies a reasonableness standard and examines the facts and circumstances of each case." United States v. Engleman, 648 F.2d 473, 479 (8th Cir. 1981) (citations omitted).

In the present case the government's evidence of knowledge was supplied by Fancher's direct testimony regarding Marshall's 1975 application and the two compliance reports dated 1976 and 1978. On appeal Marshall does not challenge Fancher's direct testimony as being remote even though it related to an event that occurred three years prior to the second compliance report. We conclude that there is no basis to distinguish Fancher's direct testimony relating to Marshall's 1975 application and the subsequent compliance visits which indicate that Marshall was repeatedly informed of the Act's prohibitions. We cannot say that the district court abused its discretion in finding that the reports were not remote from the violations charged at trial. See id. (district court did not abuse its discretion in finding that thirteen years was not an unreasonable time).

Marshall's final argument against the admissibility of the reports is that their prejudice outweighed their probative value. We disagree.

Fed.R.Evid. 403 authorizes the district court to exclude evidence, even though relevant, "if its probative value is substantially outweighed by the danger of unfair prejudice...." Our task is to assess the relevancy of the challenged evidence. If it meets the requirements of Rule 404(b), we may not reverse the ruling of the district court unless we also find that the prejudice from admitting the evidence substantially outweighed its probative value. See United States v. Robbins, 613 F.2d 688, 695 (8th Cir. 1979). In making that determination we must give great deference to the district judge who saw and heard the evidence. United States v. Weir, 575 F.2d 668, 670 (8th Cir. 1978). " 'Unfair prejudice' (under Rule 403) means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Advisory Committee's Note, Rule 403, Fed.R.Evid.

In examining the reports we note that they were relevant to a material issue, were not too remote in time, were reasonably similar, and the 1978 report was clear and convincing evidence of a prior violation. When comparing these factors against possible prejudice, we conclude that the district court did not abuse its discretion in determining that the prejudicial impact of the challenged evidence did not substantially outweigh its probative value. See United States v. Two Eagle, 633 F.2d 93, 97 (8th Cir. 1980).

Marshall's second argument is that he should...