U.S. v. Terebecki

• Decision Date: 06 December 1982
• Docket Number: No. 81-7790,81-7790
• Citation: 692 F.2d 1345
• Parties: 11 Fed. R. Evid. Serv. 1800 UNITED STATES of America, Plaintiff-Appellee, v. Michael K. TEREBECKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1345

692 F.2d 1345

11 Fed. R. Evid. Serv. 1800

UNITED STATES of America, Plaintiff-Appellee, v. Michael K. TEREBECKI, Defendant-Appellant.

No. 81-7790.

United States Court of Appeals, Eleventh Circuit.

Dec. 6, 1982.

Fawal & Spina, Benjamin Daniel, Joseph A. Fawal, Birmingham, Ala., for defendant-appellant.

Holly L. Wiseman, Asst. U.S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before HILL and HENDERSON, Circuit Judges, and GARZA ^*, Senior Circuit Judge.

GARZA, Circuit Judge:

Michael Terebecki, defendant-appellant, was charged with aiding and abetting James Dennis in the commission of wire fraud in violation of 18 U.S.C. Sec. 1343 ¹ and 18 U.S.C. Sec. 2. Terebecki and Dennis were tried and convicted but Terebecki's conviction was overturned, due to prejudicial joinder, in United States v. Dennis, 645 F.2d 517 (5th Cir.1981). Terebecki was retried and convicted. He appeals raising three issues: (1) Whether the trial court erred in allowing the admission of evidence regarding the defendant's participation in a questionable business transaction some fifteen months after the charged fraud; (2) Whether the trial court erred in excluding evidence concerning an earlier transaction between Itel Capital Corporation (the defrauded party) and Herman Mulvehill (a party not related to the fraud) which the defendant claims would have supported its defense theory; and (3) Whether the trial court erred in denying defendant's requested jury charge on intent.

In June, 1978, Itel Capital Corporation, hereafter Itel, was engaged in the business of equipment leasing. Itel operated an investment pool, receiving capital from equity investors to finance the purchase of equipment which was subsequently leased out. Equity investors received a substantial tax benefit from the arrangement, and Itel received a commission for its services. John Adams represented Itel in Alabama and in the transaction in controversy.

Dennis was an Alabama businessman who had dealt with Itel on several occasions. Terebecki was a Birmingham real estate agent. Dennis and Terebecki were neighbors, and Terebecki had represented Dennis in the sale of houses and equipment.

In June of 1978, Dennis contacted Adams proposing that Itel purchase an oil processing plant from an estate and lease it to Dennis. A potential transaction form was completed and sent to Itel's San Francisco office for approval. On September 29, 1978, Dennis met with Adams and told him the attorney for the estate would attend the meeting in order to execute the necessary documents to transfer title to Itel. Terebecki arrived at the meeting and executed a bill of sale for an oil processing plant in his own name. The $285,000 purchase price was wired from Itel's bank to Terebecki's bank account. Terebecki subsequently gave Dennis a cashier's check for $275,000, retaining $10,000 for himself.

In December, 1978, Itel became concerned about the transaction and began an investigation. The investigation revealed that there was no oil processing plant at the address on the bill of sale. It, also, revealed that Dennis and/or Terebecki never had title to an oil processing plant.

The defense theory was that Terebecki acted as a "strawman" to assist Dennis and did not intend to defraud Itel. This theory was supported by Dennis who testified: he intended to buy an oil processing plant, sell it to Itel and lease it back; Itel knew he was the one selling the plant; Adams told him that for tax reasons Itel could not lease the property to the same party it bought the property from; he enlisted Terebecki to serve as a "strawman" to meet Itel's requirement; and Itel knew Dennis did not own the oil plant at the time Terebecki signed the bill of sale.

Note that Adams and Steinmeyer, an Itel vice president, denied that Itel had a policy precluding it from leasing to the same party it purchased from.

To support his defense of lack of fraudulent intent, Terebecki introduced evidence of legitimate business dealings he had with Dennis. To rebut this evidence, the government introduced evidence of a business deal, fifteen months after the charged offense, in which Terebecki assisted Dennis. Carlton Foster, an officer of C & F Oil Co., testified that a man calling himself "Mike Anthony" contacted Foster to set up a meeting between Foster, "Anthony" and a "Bill Gentry." At this meeting "Gentry" arranged to purchase a large amount of fuel from C & F Oil Co. Foster identified "Anthony" as Terebecki and "Gentry" as Dennis. C & F Oil Co. subsequently filed a civil suit to recoup its losses in the deal, and criminal charges were brought against Dennis. Both actions, however, were subsequently dismissed.

Terebecki contends the trial court erred in admitting evidence of the extrinsic offense. ² Rule 404(b) of the Federal Rules of Evidence ³ controls the admissibility of extrinsic offenses. In United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978), (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), the test for admissibility was set forth. ⁴ The test raises two questions: (1) Is the evidence relevant to an issue other than the defendant's character; and (2) Does the evidence possess probative value that is not substantially outweighed by its undue prejudice. ⁵ Id. at 911.

The first inquiry, therefore, is whether Foster's testimony was relevant. When the extrinsic offense is offered to show the defendant's intent was to commit the offense charged, "the relevancy of the extrinsic offense derives from the defendant's indulging himself in the same state of mind in the perpetration of both the extrinsic and charged offenses." Id. at 911. Here, Terebecki indulges himself in the same state of mind in both the charged and the extrinsic offense. In the charged offense Terebecki posed as an attorney and made false representations to assist Dennis in a fraudulent business arrangement. In the extrinsic offense, Terebecki posed as "Mike Anthony" and falsely represented Dennis to be "Gentry" in order to assist Dennis in a questionable business venture.

Terebecki contends the extrinsic offense is not relevant because there was an insufficient basis for the jury to find Terebecki committed the extrinsic offense. In assessing relevance, the trial judge must "determine whether there is sufficient evidence for the jury to find that the defendant in fact committed the extrinsic offense." ⁶ Id. at 913. See Fed.R.Evid. 104(b). The uncontroverted testimony of Foster was sufficient proof for the jury to find the extrinsic proof occurred. The district court, consequently, was correct in finding the evidence relevant.

Since the relevance of the testimony has been established, it must be determined whether the probative value of the evidence is substantially outweighed by its undue prejudice. In this probe, no formula can be applied; a common sense approach must be taken. United States v. Beechum, supra, at 914. "In measuring probative value ..., the judge should consider the overall similarity of the extrinsic offense and the charged offense." Id. at 915. Here, as discussed earlier, the extrinsic offense was very analogous to the charged offense. Thus, the evidence does have probative value.

Terebecki points out the extrinsic offense was committed fifteen months after the charged offense and asserts that the remoteness of the extrinsic offense negates its probative value. Terebecki is correct in contending the more remote the extrinsic offense the less probative it is. Id. at 915. The trial court, however, has broad discretion in determining if an extrinsic offense is too remote to be probative. E.g., United States v. Stein, 437 F.2d 775, 780 (7th Cir.1971); Hale v. United States, 406 F.2d 476, 480 (10th Cir.1969); Mitchell v. United States, 213 F.2d 951, 958 (10th Cir.1954), cert. denied, 348 U.S. 912, 75 S.Ct. 291, 99 L.Ed. 715 (1955). The trial judge did not abuse his discretion in admitting the extrinsic offense. Extrinsic offenses more remote than fifteen months have been held properly admitted. ⁷ United States v. Hitsman, 604 F.2d 443, 448 (5th Cir.1979); United States v. Pauldino, 443 F.2d 1108, 1114 (10th Cir.1971), cert. denied, Bridwell v. United States, 404 U.S. 882, 92 S.Ct. 204, 30 L.Ed.2d 163 (1971); Fisher v. United States, 231 F.2d 99, 103 (9th Cir.1956).

Remoteness must be looked at in light of the similarity between the charged and the extrinsic offense. Terebecki's conduct in the extrinsic offense was very similar to his conduct in the charged offense. The probative value of the extrinsic offense, therefore, was not so reduced by its remoteness as to render the trial court's admission of the evidence an abuse of discretion.

At trial Terebecki attempted to introduce the testimony of Herman Mulvehill and Ralph Henson. According to the proffer made by defense counsel, both witnesses would have testified that, one week before Terebecki signed the bill of sale, Mulvehill proposed to sell a piece of equipment to Itel and lease the same equipment back. Adams told Mulvehill, however, that Itel required a third party in the transaction. Henson was brought in as a strawman. Mulvehill conveyed the property to Henson, who conveyed it to Itel, who leased it to Mulvehill. The testimony was offered to impeach Adams' testimony that Itel did not require a third party in the transaction and to support the defense theory. The district court excluded the testimony under Fed.R.Evid. 403.

Rule 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

The trial court has broad discretion in determining the admissibility of evidence, and its ruling will not be disturbed on appeal...