U.S. v. Singer

• Decision Date: 05 October 1981
• Docket Number: 80-1997,Nos. 80-1983,s. 80-1983
• Citation: 660 F.2d 1295
• Parties: 9 Fed. R. Evid. Serv. 224 UNITED STATES of America, Appellee, v. Gerald L. SINGER, Appellant. UNITED STATES of America, Appellee, v. Raymond E. WAGNER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1295

660 F.2d 1295

9 Fed. R. Evid. Serv. 224

UNITED STATES of America, Appellee, v. Gerald L. SINGER, Appellant.

UNITED STATES of America, Appellee, v. Raymond E. WAGNER, Appellant.

Nos. 80-1983, 80-1997.

United States Court of Appeals,

Eighth Circuit.

Submitted April 17, 1981.

Decided Oct. 5, 1981.

Raymond C. Conrad, Jr., Federal Public Defender, argued, W. D. Mo., Kansas City, Mo., for appellant Singer.

J. Whitfield Moody, Asst. U. S. Atty., Carol Ann Petren, Asst. U. S. Atty., argued, Kansas City, Mo., for appellee.

James R. Wyrsch, argued, Kansas City, Mo., for appellant Wagner.

Before HEANEY, STEPHENSON and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Gerald L. Singer and Raymond E. Wagner appeal from final judgments entered in the District Court ¹ for the Western District of Missouri upon jury verdicts finding them guilty of conspiracy to sell stolen goods in violation of 18 U.S.C. §§ 371, 2315 (count I) and theft of an interstate shipment in violation of 18 U.S.C. §§ 2, 659 (count II). The district court sentenced Singer to four years imprisonment for count I and six years for count II, to be served concurrently, and Wagner to four years for count I and two years for count II, to be served concurrently.

For reversal both Singer and Wagner argue that (1) the district court abused its discretion in admitting into evidence on cross-examination a conviction more than ten years old and (2) the district court erred in denying their motions for judgment of acquittal on the ground of insufficient evidence. Wagner argues that the district court erred in (1) denying his motion to dismiss the indictment, (2) refusing to admit into evidence that his probation would be revoked, (3) denying his motion for mistrial on the ground of prosecutorial misconduct, (4) denying his motion for severance, (5) denying his motion for judgment of acquittal, and (6) denying his requests for disclosure of Brady materials. For the reasons discussed below, we affirm the judgments of the district court.

In the spring of 1979 the Kansas City, Missouri, police department and the local office of the Federal Bureau of Investigation (FBI) began a joint undercover investigation of possible illegal activity in the liquor and vending industry in the Kansas City area. During the course of this undercover investigation, two FBI agents met an individual named Kenneth Gordon. Gordon cooperated with the undercover agents in this investigation. On March 21, 1980, Gordon informed the undercover agents that Robert G. Beverlin ² offered to sell him a truckload (about 40,000 pounds) of beef at $.50 per pound. The next day, with the approval of the undercover agents, Gordon discussed the sale with Beverlin and Wagner and arranged another meeting for the following day, March 23.

On March 23 Gordon, accompanied by an undercover agent, met Beverlin, Thomas C. Alley, Singer, and Wagner at a local restaurant. Gordon was wearing a recording device and the meeting was videotaped by a police surveillance team. Both the tape recording and the videotape of this meeting were played for the jury. Beverlin, Alley, Singer, and Wagner discussed the details of the arrangement. Delivery was set for later that evening in the parking lot of a local motel. ³ The tractor-trailer in question contained over 38,000 pounds of beef which was being shipped from Iowa Beef Processors in Emporia, Kansas, to Omaha Packing in Boston, Massachusetts, by Allied Transportation Services. Alley worked as a driver for Allied Transportation and had been assigned to deliver this shipment to Boston. Singer was a mechanic. Alley had picked up the tractor-trailer from Emporia, Kansas, and driven to a local truck stop, where he left the tractor-trailer. Singer would then drive the tractor-trailer from the truck stop to the motel parking lot. After payment the undercover agent, who had been posing as a truck driver, was to drive the tractor-trailer away and later to destroy it, following suggestions proffered by Singer and Wagner. The next morning Alley would report the tractor-trailer had been stolen from the truck stop.

Events developed according to plan. The police organized surveillance of the motel and parking lot. At about 8 p.m. Gordon and the undercover agent met Beverlin, Wagner, and Singer at the motel. After indicating that no money would change hands until the meat was inspected, the undercover agent asked Singer to move the tractor-trailer to a different section of the parking lot for inspection. Singer moved the tractor-trailer and was approached by two undercover agents. Singer ran off but was later arrested. Wagner and Beverlin were arrested at the motel. The general manager of Allied Transportation testified that Singer called him in the morning of March 24 and told him that he had been testdriving a truck, had stopped at a local motel, and had been "hijacked" by two men.

Singer and Wagner's defense theory was that, during the events of March 22 and 23, they had been acting as informants for the FBI and therefore lacked the requisite specific intent. FBI Special Agent Emmett L. Trammell testified that he had known Singer for about two years and that Singer had supplied information about stolen vehicles several times. Trammell further testified that he had interviewed Singer during the late evening hours of March 23 and at his (Trammell's) request on March 28, 1980, and that during that interview Singer told him that he had been testdriving a vehicle, had stopped for coffee at a local motel, and had been "hijacked" by two individuals, one of whom Singer believed had a gun. Wagner claimed that he had been assisting Singer in his undercover activity. Both Singer and Wagner testified in their own defense and were impeached by references to prior felony convictions.

The jury returned guilty verdicts and these appeals followed.

I. Admissibility of Prior Conviction under Rule 609(b)

Both Singer and Wagner argue that the district court abused its discretion in admitting into evidence, following a hearing out of the presence of the jury and an on-the-record determination of admissibility, ⁴ their 1968 state felony convictions for grand larceny (stealing an electric transformer). That Singer and Wagner had been codefendants in the 1968 state prosecution was put before the jury. ⁵ The government also brought out that Singer had been convicted in 1972 for concealing a stolen motor vehicle and that Wagner had been convicted in 1977 for interstate transportation of a stolen motor vehicle.

By the time of trial in August 1980, the prior convictions in question were more than ten years old. Thus, the district court correctly analyzed the question of admissibility under Fed.R.Evid. 609(b). ⁶ The district court held a hearing out of the presence of the jury and determined on the record that "in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." Id. The district court did not make specific findings on the record ⁷ but permitted the government to outline the reasons which supported admissibility. ⁸

Fed.R.Evid. 609(b) establishes what is in effect a rebuttable presumption against the admissibility of prior convictions more than ten years old. ⁹ See Mills v. Estelle, 552 F.2d 119, 120 (5th Cir.), cert. denied, 434 U.S. 871, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977). Accord, United States v. Portillo, 633 F.2d 1313, 1323 (9th Cir. 1980), cert. denied, 450 U.S. 1043, 101 S.Ct. 1764, 68 L.Ed.2d 241 (1981); United States v. Cobb, 588 F.2d 607, 612 & n.8 (8th Cir. 1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979); United States v. Sims, 588 F.2d 1145, 1147-49 (6th Cir. 1978); United States v. Mahler, 579 F.2d 730, 734-36 (2d Cir.), cert. denied, 439 U.S. 991, 99 S.Ct. 592, 58 L.Ed.2d 666 (1978); United States v. Cavender, 578 F.2d 528, 531 (4th Cir. 1978); United States v. Shapiro, 565 F.2d 479, 480-81 (7th Cir. 1977).

The general rule, therefore, is inadmissibility. Moreover, in the Senate Report on the Rules of Evidence, the Senate noted that "convictions over ten years old generally do not have much probative value." The presumption against admissibility is, therefore, founded on a legislative perception that the passage of time dissipates the probative value of a prior conviction. The balancing scale Congress has given the courts is weighted against a finding that the probative value of a more than 10-year-old conviction substantially outweighs its prejudicial effect.

United States v. Cathey, 591 F.2d 268, 275 (5th Cir. 1979) (citations omitted). See also H.R.Rep.No. 93-650, 93d Cong., 1st Sess., reprinted in (1974) U.S.Code Cong. & Ad.News 7051, 7085; S.Rep.No. 93-1277, 93d Cong., 2d Sess., reprinted in (1974) U.S.Code Cong. & Ad.News 7051, 7061; H.R.Conf.Rep.No. 93-1597, 93d Cong., 2d Sess., reprinted in (1974) U.S.Code Cong. & Ad.News 7051, 7103; 3 D. Louisell & C. Mueller, Federal Evidence § 314 (1979).

"(T)he trial court judge is 'best situated to determine the "interests of justice" ' in considering whether evidence of prior crimes should be admitted at trial, in accordance with the terms of Rule 609(b)." United States v. Spero, 625 F.2d 779, 781 (8th Cir. 1980), citing United States v. Little, 567 F.2d 346, 350 (8th Cir.), cert. denied, 435 U.S. 969, 98 S.Ct. 1608, 56 L.Ed.2d 60 (1977). However, under the present circumstances we believe the district court abused its discretion in permitting the government to impeach appellants with the 1968 convictions. First, the probative value of the 1968 convictions is questionable. These convictions are more than twelve years old. ¹⁰ Although the district court concluded that grand larceny is a crime involving dishonesty, ¹¹ such a finding is "insufficient justification, by itself, for use of the prior conviction(s). The presumption against the use of an over-age conviction is not so weak that...