U.S. v. Riggins, 76-1741

• Decision Date: 26 July 1976
• Docket Number: No. 76-1741,76-1741
• Citation: 539 F.2d 682
• Parties: 2 Fed. R. Evid. Serv. 1341 UNITED STATES of America, Plaintiff-Appellee, v. Leslie B. RIGGINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 682

539 F.2d 682

2 Fed. R. Evid. Serv. 1341

UNITED STATES of America, Plaintiff-Appellee, v. Leslie B. RIGGINS, Defendant-Appellant.

No. 76-1741.

United States Court of Appeals Ninth Circuit.

July 26, 1976.

Keith L. Kessler (argued), Seattle, Wash., for defendant-appellant.

J. Ronald Sim (argued), Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

OPINION

Before BROWNING and KENNEDY, Circuit Judges, and LUCAS, ^* District Judge.

PER CURIAM:

Appellant Leslie Riggins was convicted of violations of 18 U.S.C. §§ 2 and 2314, for causing a series of forged Traveler's Express money orders to be transported in interstate commerce. The principal witness for the government was Barbara Shibuya, a former girlfriend of Riggins, who testified that she had cashed the money orders, which were all payable to her, at his direction. Riggins' defense was that Shibuya had "framed" him. Riggins testified that Shibuya had shown him a number of money orders in the glove compartment of her car, and had invited him to participate in a scheme to cash them. Riggins admitted handling some of the money orders at that time, but denied he had a part in cashing them. In support of the defense, counsel for Riggins elicited the admission from Shibuya on cross-examination that she had previously made false accusations of crime against Riggins. Over objection, the government was permitted to introduce a money order made out to William White bearing Riggins' fingerprint, which was not among the money orders charged in the indictment. Riggins now contends that admission of the uncharged money order was an improper use of evidence of "other crimes" under Federal Rule of Evidence 404(b).

Appellant relies primarily upon United States v. Broadway, 477 F.2d 991 (5th Cir. 1973). The Fifth Circuit reversed a conviction under section 2314 because of the admission of two uncharged money orders which, according to expert testimony, had been endorsed by the defendant. The basis for the decision was that the government's proof failed to establish who had caused the challenged money orders to be transported in interstate commerce. Without a showing that Broadway had cashed or otherwise caused the money orders to be put into commerce, the court said, there was no demonstration of sufficient similarity between the charged and uncharged offenses to justify admission of the uncharged money orders as evidence of unlawful intent. The court held that "when proof of an assertedly similar offense is tendered to establish necessary intent, the other offense proved must include the essential physical elements of the offense charged. . . ." 477 F.2d at 995 (footnote omitted). We believe the Broadway test is overly restrictive.

A trial court is called upon to exercise its discretion in determining whether proffered evidence of other crimes or misconduct has probative value sufficient to outweigh its potential for prejudice to the defendant. Federal Rule of Evidence 404(b), Advisory Committee Note; see Federal Rule of...