United States v. Boyd, 29793.

• Decision Date: 03 August 1971
• Docket Number: No. 29793.,29793.
• Citation: 446 F.2d 1267
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Wyman BOYD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

446 F.2d 1267 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Wyman BOYD, Defendant-Appellant.

No. 29793.

United States Court of Appeals, Fifth Circuit.

August 3, 1971.

Floyd M. Buford, Macon, Ga., for defendant-appellant.

William J. Schloth, U. S. Atty., D. L. Rampey, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

Before RIVES, GOLDBERG and MORGAN, Circuit Judges.

RIVES, Circuit Judge:

Robert Wyman Boyd was convicted of receiving, concealing and retaining two stolen mechanic's tool boxes containing tools, all the property of the United States Government and having a value in excess of $100, in violation of 18 U.S.C. § 641.¹ Boyd was named in the second count of a two-count indictment.² Count one charged Bobby Gene Goble, George Lewis Winburn and Charley Wright, Jr., with the theft of the tool boxes and tools. Boyd was tried alone, and the co-indictees testified against him.

Boyd's principal defense was that he was not aware that the property, which he concedes he received, was stolen. He also challenged the Government's proof that the property in question was in fact Government property and that it had a value in excess of $100. While we find that the evidence was sufficient on all elements of the offense, the conviction must be reversed and remanded because the jury, in determining whether Boyd received stolen property and whether it had a value in excess of one hundred dollars, was allowed to consider property other than that included in the indictment. This was an improper use of "other crime" evidence.

I. The Government's Case.

There was evidence from which the jury could have found that Boyd received up to seven tool boxes containing tools, plus other individual items — a pneumatic or impact wrench, several micrometers, a pressure gauge, sun glasses, wrist watch, and sleeping bag — from an Air Force sergeant, Bobby Gene Goble. Goble testified as to his part in procuring the tool boxes and selling them to Boyd. The other two indictees, Wright and Winburn, corroborated Goble's testimony that they stole the items for Goble from the tool issue center at the Base.

In the course of his employment as a sound equipment technician, Boyd had met Goble, who was moonlighting as a projectionist at a drive-in theatre. On one of his repair calls Boyd noticed some tools laying around the projection booth. Goble informed him that the tools were from the Air Base, and that he had others in a tool box at his home. The men discussed the possible purchase of tools from Goble by Boyd or anyone he might know, but there was no inquiry or mention of whether Goble was offering to sell stolen property. Boyd eventually purchased the tool box containing tools, which Goble had at his home, and got from Goble other boxes with tools which Boyd in turn sold to acquaintances.

Boyd admitted receiving at least five tool boxes, and conceded that it was possible he had handled seven in all. He purchased the first for himself, sold the second to a friend, and the rest, whether three or five in number, were passed on to another friend who sold them to mechanics at that friend's place of employment. There is no evidence that Boyd received any profit from these transactions other than the retention of the first tool box for his own use. The Government's witnesses testified that all money Boyd received from the other sales was turned over to Goble.

Boyd claimed he was not aware that the tool boxes were stolen, but thought Goble was purchasing them legitimately as surplus property. However, there was sufficient evidence from which the jury could have found guilty knowledge. Goble testified that when he delivered the second and third boxes to Boyd, they were still in their original cardboard crates which bore Government markings. Goble tore up the crates, put the scrap material in Boyd's car, and told Boyd he did not want anyone to see the crates. Also, Goble testified that on the day Boyd went to Goble's home (located on the Air Base) to purchase the first tool box, Goble showed him the flight equipment issue center where he worked. When Goble pointed out the tool issue center located in the same building, Boyd asked him if he could get a pneumatic wrench. Goble said he procured the wrench from the tool issue center in Boyd's presence, and turned it over to him when the two men got outside the building. Boyd did not pay Goble for this wrench or the other individual items mentioned above.

Goble never specifically informed Boyd that the property involved was stolen from the Air Base. However, Boyd testified that when he asked Goble if the tools were "hot," he got an equivocal answer. "I would ask him where he was getting them from. And he would say, `From the getting place,' or some other fancy answer like that."

There was ample evidence from which the jury could have concluded beyond a reasonable doubt that Boyd was aware that the tools and tool boxes were stolen property. Government ownership was sufficiently established. The evidence showed that property was taken from the tool issue center and that this was the property Boyd received.³

II. Other Crime Evidence.

There are two types of other crime evidence involved. The first concerns the individual items Boyd received from Goble, independent of any tool box transaction. Testimony concerning these items was timely objected to by the defendant as constituting evidence of other criminal actions. The objections were overruled and the evidence was admitted on the theory that it was relevant on the issue of intent.

The second type of other crime evidence was the testimony concerning the receipt of tool boxes other than those boxes specified in the indictment. No objection was made to this evidence. However some discussion is appropriate for purposes of re-trial.

The prohibition of the use of other crime evidence is stated in Rule 55 of the Uniform Rules of Evidence (drafted by the National Conference of Commissioners on Uniform State Laws):

"Evidence that a person committed a crime or civil wrong on a specified occasion is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but * * * such evidence is admissible when relevant to prove some other material fact including absence of mistake or accident, motive, opportunity, intent, preparation, plan, knowledge or identity."⁴

The rationale supporting this rule is that while evidence of other crimes is often relevant,⁵ such evidence may unduly prejudice the accused in the eyes of the jury, and there may be a tendency to vote for conviction because the accused is a "bad man."⁶ The Fifth Circuit has often recognized exceptions to the rule against admissibility of other crime evidence.⁷

The list of exceptions to the other crime evidence rule is extensive, and in most situations evidence of other crimes — if closely connected in time and nature to the offense charged — can fit within at least one of the exceptions. But the mere categorizing of the evidence should not overshadow the rationale of the rule. It has been stated that the admissibility of such evidence is not to be determined entirely by its relevancy and its categorization, but that there must also be a balancing of the need for the evidence against the possible prejudice to the accused.⁸ Bearing in mind the other crime evidence rule and its exceptions, we turn to a consideration of the evidence in this particular case.

A. Evidence of Independent Items.

Evidence of the individual items received by Boyd was properly admitted to establish the element of intent. The fact that he received a number of items of value for no remuneration, and the circumstances of the acquisition of the pneumatic wrench,⁹ were strong evidence indicating Boyd was aware that he was dealing with stolen property.

Whether this evidence was properly limited¹⁰ to the element of intent will be discussed later.

B. Evidence of the Tool Boxes Not Specified in the Indictment.

The admissibility of other crime evidence is largely governed by the discretion of the trial court, but the discretion is not without limit.¹¹

Once the Government had introduced the testimony concerning Boyd's receipt of the two tool boxes,¹² including the testimony about the crates bearing Government markings and the destruction of these crates, and had introduced evidence of Boyd's receipt of individual items for which he paid nothing, there was sufficient evidence upon which the jury could base a finding of criminal intent.

The evidence of the other tool boxes was merely cumulative. It was provided by the same witnesses who testified concerning the first boxes. The jury's assessment of the credibility of these witnesses would not likely be affected by the additional testimony. If the jury believed the initial testimony, the relating of the subsequent testimony added little, if anything, to a revelation of Boyd's state of mind.

In United States v. Byrd, 2 Cir. 1965, 352 F.2d 570, the Second Circuit indicated, in dictum, that the testimony of a witness concerning a transaction similar to the ones in the indictment, was cumulative, unnecessary, and prejudicial since he was the witness who had already testified about events covered by the indictment. That Court felt that the additional testimony could have added little to the issue of intent and was prejudicial, as evidence of another criminal act, even though the act was not in itself infamous (the prosecution was under 26 U.S.C. § 7214(a) (2), receipt by an internal revenue auditor of a fee not prescribed by law).

In a case where the evidence indicates that if the accused engaged in felonious activity, he did so at considerable risk but with little ascertainable profit to himself,¹³ great care should be exercised to insure that the accused is not unfairly prejudiced. United States v. Matot, 2 Cir. 1944, 146 F.2d 197, 198.

III. ...