U.S. v. Miller, s. 88-3144

• Citation: 895 F.2d 1431,283 U.S.App.D.C. 9
• Decision Date: 06 February 1990
• Docket Number: Nos. 88-3144,88-3152,s. 88-3144
• Parties: , 29 Fed. R. Evid. Serv. 1152 UNITED STATES of America v. Leroy MILLER, Appellant. UNITED STATES of America v. Paul A. MILLER, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1431

895 F.2d 1431

283 U.S.App.D.C. 9, 29 Fed. R. Evid. Serv. 1152

UNITED STATES of America v. Leroy MILLER, Appellant.

UNITED STATES of America v. Paul A. MILLER, Appellant.

Nos. 88-3144, 88-3152.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 17, 1989.

Decided Feb. 6, 1990.

Michael Lasley, appointed by this court, for appellant in No. 88-3144.

Charles B. Wayne, Washington, D.C., appointed by this court, for appellant in No. 88-3152.

Linda L. Mullen, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before HARRY T. EDWARDS, BUCKLEY and STEPHEN F. WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Paul and Leroy Miller, the appellants in this consolidated appeal, were convicted of conspiracy and several substantive offenses arising from a check-forging scheme. On appeal, Paul Miller challenges trial court rulings allowing the Government to elicit testimony from two witnesses concerning his prior criminal conviction. Leroy Miller contests the sufficiency of the evidence underlying his conviction for conspiracy.

We affirm both convictions. We reject Paul Miller's claim that evidence of a defendant's past crimes can never be introduced to show a witness ' state of mind, and find that the District Court properly admitted the disputed testimony of one witness for this purpose. Although the trial court should have excluded the testimony of the second witness, the admission of this evidence was harmless error. The evidence against Leroy Miller amply supports the jury's verdict.

I. BACKGROUND

Paul and Leroy Miller were charged in a four-count indictment with conspiracy to commit bank fraud ("Count One"), see 18 U.S.C. Sec. 371 (1988), and bank fraud, see 18 U.S.C. Sec. 1344 (1988). ¹ Evidence at trial established that Paul Miller's girlfriend, Myrna Mann, used her position as a secretary at a Washington bank to procure forged checks totalling some $37,000. The Government's theory of the case was that Paul Miller coerced Mann into furnishing the checks, and that both Millers recruited payees to cash the checks in return for a fee. See Trial Tr. I at 21-22 (Government's opening statement). The theory of the defense was that Mann, who by the time of the trial had pleaded guilty to embezzlement, devised the check-forging scheme on her own and implicated Paul and Leroy Miller as part of a plea bargain. See Trial Tr. I at 26 (Paul Miller's opening statement); ² id. at 28 (Leroy Miller's opening statement). Leroy Miller maintained, in addition, that he was too marginal a participant in the scheme to be convicted for conspiracy. See id. at 28 (opening statement).

At two points in the trial, disputes arose over whether the Government would be permitted to introduce evidence of Paul Miller's previous conviction for robbery. The first was when the Government, on the first day of trial, informed the court that it intended to elicit testimony concerning the conviction from Mann. Paul Miller's counsel objected to the proposed testimony as irrelevant and prejudicial; the Government argued that evidence of Mann's awareness of Paul Miller's criminal record was necessary to lend credibility to her claim that she had been coerced into participating in the check-forging scheme. See Trial Tr. I at 7-8, 10. The judge ruled that the evidence could be admitted, stating:

Well, I will try to cut the baby in half to the extent that I can. I am going to allow her to testify that she was being threatened, and that she knew that Paul Miller had a prior criminal record and had served time, without going into the specific offense.

If the jury doesn't believe on the basis of that that she was threatened, then so be it. But some balance has to be struck here between the defendants' rights and the Government's need to bring that woman in and have her testify.

Now, of course, if on cross-examination doubt is cast on her story as to why was she really afraid or whatever, it may be that you can recall her on redirect or whatever. You may be able then to bring out more. That depends entirely on what happens on cross-examination. But at least on direct all she can say ... [is] that she was threatened, and she felt there was validity to the threat in view of the fact she knew he had a prior criminal record and he had served time.

Trial Tr. I at 10-11. Mann was permitted to testify on this basis. ³

The issue of Paul Miller's conviction came up again during the testimony of Tracie Barnes. Barnes was a payee on one of the forged checks, and she testified that she agreed to cash the check for Paul Miller in exchange for $2,000--one-fourth of the check's value. See Trial Tr. II at 9-10. After completing direct examination, the Government requested permission to reopen so that it could elicit testimony from Barnes that she had agreed to cash the check because she knew that Paul Miller had recently been released from prison and surmised that he did not have a checking account. See id. at 11-13. ⁴ Paul Miller's counsel again objected. See id. at 12. The judge responded:

We've got to know. All this is ridiculous. We have to have some explanation of what went on, why she cashed a check for some total stranger. The jury is entitled to know that.

....

It's already been brought out he was in jail.

....

It's not prejudicial at all if it was already brought out. It seems to me the jury is entitled to know why a total stranger would go and handle a cashier's check.

Id. at 12, 13. During a five-minute recess, the prosecutor explained to Barnes that she could testify only that Paul Miller had a criminal record but could say nothing about the nature of the offense for which he had been convicted; the Government was then permitted to elicit the disputed testimony. ⁵

The jury ultimately returned guilty verdicts against both appellants on all counts, and this appeal ensued. ⁶ Paul Miller continues to challenge the admission of the evidence pertaining to his prior conviction. Leroy Miller argues that the evidence at trial was insufficient to sustain a conviction for the conspiracy charged in Count One.

II. ANALYSIS

A. Paul Miller

Paul Miller asserts that the District Court erred both in admitting the evidence of his prior conviction and in failing to issue a limiting instruction, and that each error furnishes an independent ground for reversal. Although we do not find the trial court's treatment of the disputed evidence to be wholly free of legal defect, we conclude that the disputed rulings do not warrant a reversal of Paul Miller's conviction.

1. Admission of the Evidence

a. General Test

The test for analyzing the admissibility of evidence of prior criminal convictions and other "bad acts" is well established. See Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 1499-1500, 99 L.Ed.2d 771 (1988). "The threshold inquiry," imposed by Federal Rule of Evidence 404(b), ⁷ "is whether th[e] evidence is probative of a material issue other than character." 108 S.Ct. at 1499. "If offered for such a proper purpose, the evidence is [then] subject only to general strictures limiting admissibility," the most important of which being the requirement of Rule 403 that the probative value of the evidence not be "substantially outweighed" by its potential prejudice. ⁸ Id. at 1500. This two-step analysis--certification of a "proper" and relevant purpose under Rule 404(b), followed by the weighing of probity and prejudice under Rule 403--is firmly rooted in the law of this circuit. See, e.g., United States v. Manner, 887 F.2d 317, 321 (D.C.Cir.1989), cert. denied --- U.S. ----, 110 S.Ct. 879, 107 L.Ed.2d 962 (1990); United States v. Lavelle, 751 F.2d 1266, 1275 (D.C.Cir.), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985).

b. Mann's Testimony

Mann's testimony satisfies the Rule 404(b) step of the analysis. Evidence of Mann's awareness of Paul Miller's criminal record was admitted not "to show action in conformity" with a criminal disposition, FED.R.EVID. 404(b), but rather to lend credence to Mann's claim that she feared for her safety if she did not comply with Paul Miller's demands for bogus checks. See Trial Tr. I at 10. Mann's state of mind was relevant to her credibility, a material issue in the case by virtue of Paul Miller's own trial strategy. See note 2 supra. ⁹

Paul Miller resists this conclusion. Although he acknowledges that the "proper" material issues identified in Rule 404(b)--"motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident"--are not "exhaustive, but merely illustrative," United States v. Moore, 732 F.2d 983, 987 n. 31 (D.C.Cir.1984) he nonetheless infers from this list that admission of bad-acts evidence is permissible under Rule 404(b) only if the evidence relates directly to the conduct of the defendant. See Brief for Appellant Paul A. Miller at 16-17. Citing two Fifth Circuit cases, see United States v. Hernandez, 750 F.2d 1256, 1258 (5th Cir.1985); United States v. Wesevich, 666 F.2d 984, 988 (5th Cir.1982), he concludes that "[d]emonstrating the state of mind of a witness ... is not a purpose for which evidence of a prior conviction may be admitted pursuant to Rule 404(b)." Brief for Appellant Paul A. Miller at 15.

This argument misconceives the nature of Rule 404(b). The rule was intended not to define the set of permissible purposes for which bad-acts evidence may be admitted but rather to define the one impermissible purpose for such evidence. "Only one series of evidential hypotheses is forbidden in criminal cases by Rule 404: a man who commits a crime probably has a defect of character; a man with such a defect of character is more likely than men generally to have committed the act in question." 2 J. WEINSTEIN & M. BERGER, supra note 9, p 404...