U.S. v. San Martin, 74-1684

• Decision Date: 30 December 1974
• Docket Number: No. 74-1684,74-1684
• Citation: 505 F.2d 918
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Louis SAN MARTIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 918

505 F.2d 918

UNITED STATES of America, Plaintiff-Appellee, v. Louis SAN MARTIN, Defendant-Appellant.

No. 74-1684.

United States Court of Appeals, Fifth Circuit.

Dec. 30, 1974.

Abel H. Rigau, Tampa, Fla., Donald G. Doddington, Tampa, Fla. (Court-appointed), for defendant-appellant.

John L. Briggs, U.S. Atty., D. Frank Winkles, Asst. U.S. Atty., Jacksonville, Fla., Claude Tison, Jr., Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee.

Before TUTTLE, THORNBERRY and SIMPSON, Circuit Judges.

TUTTLE, Circuit Judge:

This appeal raises the question, once again, of the propriety of using prior criminal convictions as evidence in a prosecution for subsequent acts.

Louis San Martin appeals his conviction by a jury on one count of assaulting an agent of the Federal Bureau of Investigation while in the performance of his duties, in violation of 18 U.S.C. 111. ¹ San Martin was sentenced to the maximum prison term of three years. He challenges his conviction on three grounds: (1) that the trial court improperly admitted evidence of his three prior state court, misdemeanor convictions for assault-- two of which involved resisting police officers; (2) that the trial court improperly admitted rebuttal evidence, which was irrelevant and prejudicial; and (3) that the trial court erred in several respects in charging the jury.

We agree that the evidence of the appellant's prior convictions and certain rebuttal testimony were improperly admitted and therefore reverse. We, therefore, do not reach the other grounds.

I.

On October 18, 1973, a complaint was issued charging the appellant with obstructing a criminal investigation, in violation of 18 U.S.C. 1510. A warrant was issued for the appellant's arrest, and lodged with the United States Marshal's Office in Tampa. Six agents of the Tampa Office of the Federal Bureau of Investigation then went to the residence of the appellant's father to make the arrest. After observing the entrance to the elder San Martin's apartment for approximately two hours, one of the agents recognized the appellant as he prepared to enter the apartment and informed him that a warrant had been issued for his arrest.

The appellant went into the apartment briefly to get a pair of shoes, and after returning began to accompany Agent Richard Gross to one of the awaiting bureau automobiles. After only a few steps, the appellant stopped and said: 'Let me see your warrant. I am not going any place until I see a warrant.' Agent Gross replied that the warrant had been left in the Marshal's Office, according to standard procedure, and that a copy would be furnished later. The appellant repeated that he would not go anywhere until he saw the warrant, and started to walk away. Agent Gross then grasped the appellant's arm, in what he described later as a 'come-a-long hold.' ² As the agent did so, he was grabbed around the neck from behind by the appellant's brother, Richard San Martin. At that point, Agents Charles Long and Esteban Uriarte rushed to his aid. The appellant broke free from Agent Gross, and as he did, he turned and struck Agent Long on the shoulder with his arm or elbow. The blow was forceful enough, according to Agent Long's testimony, to make the shoulder sore for two or three days.

Six days after the incident, a Federal Grand Jury sitting in Tampa indicted the appellant, his father and his brother each for one count of wilfull and forcible assault in violation of 111.

The sole material issue of fact at trial was whether the appellant intended to strike Agent Long, or whether he did so accidently as he wheeled from Agent Gross' grasp. It is clear from the record that Agent Long was behind the appellant when the scuffle began and that the appellant did not see Long until he turned.

During trial, the following colloquy occurred between appellant's counsel and Agent Long:

Q: So he (the appellant) wouldn't have had any knowledge that you were standing behind him, necessarily?

A: Necessarily.

Q: So, it could be possible that when striking you, sir, it was pulling away from Officer Gross. Is that correct?

A: That's correct, (indicating affirmatively.)

Q: And in fact, not striking out at you.

A: Resisting arrest.

In an effort to show that the blow was intentional, the prosecution presented evidence early in the trial that the appellant had three previous misdemeanor convictions in Florida state courts: in 1963 for resisting or opposing a public officer, in 1964 for interfering or opposing a public officer, and in 1969 for assault and battery on a uniformed member of the United States Air Force. Counsel for the appellant strongly objected to the admission of this evidence and argued that it was irrelevant, particularly because it was remote, under our holding in United States v. Broadway, 477 F.2d 991 (5th Cir. 1973). The trial court allowed the evidence to be submitted, but it refused to allow details on the incidents leading to the convictions to be introduced.

The appellant, his brother and his father were all convicted under 111 for their parts in the brief encounter. Neither appellant's brother nor his father appeals his conviction.

II.

It is a cardinal principle of the common law that the prosecution may not use evidence of prior criminal acts in its case-in-chief to prove that the defendant committed the crime with which he is presently charged. See, Michelson v. United States, 335 U.S. 469, 475-476, 69 S.Ct. 213, 93 L.Ed. 168 (1948). 'The general rule is that evidence of another crime unconnected with the one on trial is inadmissible, but this rule is subject to a number of exceptions, the first of which is that evidence of other offenses by the accused is admissible to show his criminal intent as to the offense charged, where the other offenses are similar to and not too remote from that charged, and where intent is in issue as an element of the offense charged.' Weiss v. United States, 122 F.2d 675, 682 (5th Cir. 1941), cert. denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550 (1941).

We have repeatedly noted that the general rule is 'just and wise' in order to avoid the enormous danger of prejudice to the defendant that the evidence of prior crimes creates, and we have recently cautioned that 'exceptions to that principle, each of which has been carved out to serve a limited prosecutorial and judicial purpose, should not be permitted to swallow the rule.' Under States v. Miller, 500 F.2d 751, 762 (5th Cir. 1974). See also, e.g., United States v. Goodwin, 492 F.2d 1141, 1150 (5th Cir. 1974); United States v. Lawrence, 5 Cir., 480 F.2d 688, 691-692, n. 6; United States v. Broadway, 477 F.2d 991, 994-995 (5th Cir. 1973); United States v. Johnson, 453 F.2d 1195, 1199 (5th Cir. 1972); United States v. Boyd, 446 F.2d 1267, 1270-1271 (5th Cir. 1971).

Before one of the exceptions to the general rule may properly be invoked in order to introduce evidence of prior crimes, the trial court must be satisfied that several threshold prerequisites have been met:

1. Proof of the prior similar offenses must be 'plain, clear and convincing;' 2. The offenses must not be too remote in time to the alleged crime;

3. The element of the prior crime for which there is a recognized exception to the general rule, such as intent, must be a material issue in the instant case;

4. There must be a substantial need for the probative value of the evidence provided for by the prior crimes. United States v. Cavallino, 498 F.2d 1200, 1206 (5th Cir. 1974). If all of these prerequisites are satisfied, and if it appears on balance that the need for such evidence outweighs the prejudicial effect it is likely to have, then the evidence is admissible. United States v. Goodwin, supra, 492 F.2d at 1150; United States v. Miller, supra, 500 F.2d at 762.

Applying this test to the case before us, the evidence of the appellant's prior convictions fails to meet the first two prerequisites and therefore should not have been admitted.

The evidence of the appellant's three prior convictions was introduced by the prosecution to prove that the appellant intended to strike Agent Long. But the evidence cannot be said to be 'plain, clear and convincing,' because only the fact of the offenses and not their circumstances was introduced. It is not clear, for example, from the record that any of these offenses included specific intent as a material element; prior crimes requiring only general intent are of meager, if any, probative value concerning the later existence of specific intent. ³

Moreover, the appellant's two misdemeanor convictions for opposing or interfering with a police officer were clearly too remote in time to be probative in the instant prosecution. The offenses occurred ten and nine years earlier, when the appellant was 17 and 18 years old, respectively. The rule against remoteness is usually stated generally, without detailed explanation. See, e.g., United States v. Broadway, supra, 477 F.2d at 994; United States v. Restrepo, per curiam, 417 F.2d 927, 928 (5th Cir. 1969); Matthews v. United States, 407 F.2d 1371, 1381 (5th Cir. 1969). However, there are established guidelines. As this Court said in Lloyd v. United States, 226 F.2d 9, 18 (5th Cir. 1955):

'Evidence of other wrongful acts to prove intent must go further than showing that the defendant has a generally criminal disposition or character, and must logically tend to prove the defendant's criminal intent at the time of the commission of the act charged. The...