United States v. Gay, 21916.

• Decision Date: 18 March 1969
• Docket Number: No. 21916.,21916.
• Parties: UNITED STATES of America, Appellant, v. John R. GAY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

133 US App. DC 337, 410 F.2d 1036 (1969)

UNITED STATES of America, Appellant, v. John R. GAY, Appellee.

No. 21916.

United States Court of Appeals District of Columbia Circuit.

Argued January 24, 1969.

Decided March 18, 1969.

Mr. Joel M. Finkelstein, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and John J. McKenna, Asst. U. S. Attys., were on the brief, for appellant. Mr. William G. Reynolds, Asst. U. S. Atty., also entered an appearance for appellant.

Mr. William J. Garber, Washington, D. C., for appellee.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and McGOWAN, Circuit Judge.

McGOWAN, Circuit Judge:

By granting the Government's petition for review, this court agreed to examine a decision of the District of Columbia Court of Appeals which reversed appellee's conviction for larceny after trust. 22 D.C.Code § 2203 (1967). The District of Columbia Court of Appeals found that the trial court had erred in admitting testimony by two Government witnesses about their prior dealings with appellee under circumstances similar to those in which the complainant in this case was allegedly victimized. 241 A.2d 446 (1968). Because we believe that evidence to have been admissible, we reverse the District of Columbia Court of Appeals' decision and remand to that court for further proceedings.

I

The complainant in this case was a Mrs. Evans, a woman who depended upon public assistance for the support of herself and her three children. Mrs. Evans testified that on February 22, 1966, in response to a newspaper advertisement of an apartment for rent, she called at the office of appellee, a real estate broker doing business under the name of Biltmore Realty Company. Appellee told her that the apartment which had been advertised was unavailable, but he instructed her to go to 722 North Carolina Avenue in Southeast Washington, where a "Miss Johnson"¹ would show her an apartment. He also took from her, so Mrs. Evans testified, the sum of $40, which he characterized as a deposit, to be returned if she decided not to rent the apartment or to be applied to the rent if she did. A woman employee in appellee's office then handed Mrs. Evans a receipt. Mrs. Evans the next day went to the address in question, where she was received by Mrs. Carter, the same person who the day before had given Mrs. Evans her receipt. Mrs. Evans was told that the apartment was being redecorated and could not be shown. Mrs. Carter did exact from her another $10 which, according to Mrs. Carter's later testimony, was turned over to appellee the following day.

Sometime in March, after having tried unsuccessfully to see the apartment, Mrs. Evans went again to appellee's office. She informed him that she did not want the apartment, and requested the return of her deposit. He prevailed upon her to go again to the North Carolina Avenue address to see Mrs. Carter. Mrs. Evans testified that she did return, several times in fact, but was unable to find Mrs. Carter. At the end of March she went to see appellee a third time, reporting the result of her visits and repeating her request for the return of her money. When appellee refused, stating that Mrs. Carter was responsible for the deposit, Mrs. Evans went to the police, and subsequently filed a complaint with the U. S. Attorney which resulted in this prosecution.

After Mrs. Evans had testified, the Government indicated that it proposed to adduce evidence showing that appellee had been involved in similar incidents in which prospective tenants had lost deposits left to reserve apartments. The court excused the jury to hear argument on appellee's objection to such evidence, and thereafter ruled that it could come in. Mrs. Carter then testified as to her dealings with Mrs. Evans, and also asserted that on more than 100 occasions she had taken money from people calling to see the apartment at North Carolina Avenue and had, on appellee's instructions, turned it over to him. She also said that between September, 1965, and February, 1966, from 200 to 300 persons had come to appellee's office seeking return of deposits. The Government then offered two witnesses, Mrs. Marshall and Mrs. Scoggins, who related experiences substantially identical with that related by Mrs. Evans.²

In defense, one Jordan testified that he saw Mrs. Evans in appellee's office in February talking to Mrs. Carter in appellee's presence. His version was that (1) Mrs. Carter offered to rent the apartment to Mrs. Evans for $80 per month, (2) Mrs. Evans tendered Mrs. Carter $40 as a half-month's rent, and (3) Mrs. Carter took the money and arranged to meet Mrs. Evans at the apartment that evening. Jordan also related that he was in appellee's office in March when Mrs. Evans requested the return of her money because Mrs. Carter had refused to return it to her. A second defense witness, a Miss Williams, then corroborated this testimony by Jordan, claiming also to have been in appellee's office during Mrs. Evans' February visit.

Appellee then testified in his own defense, reiterating the events of the February meeting as told by Jordan and Williams, emphasizing that he had told Mrs. Evans that he had no apartments to rent, and suggesting that she talk independently with Mrs. Carter about the possible availability of an apartment under Mrs. Carter's control. He denied that he had received any money from Mrs. Evans, and he said that he could not recall any transactions with Mrs. Marshall and Mrs. Scoggins.

II

No issue is raised by appellee as to the propriety of the jury's verdict of guilt on the evidence before it, assuming that evidence to have been admissible in its entirety. Appellee argues only that the testimony of Mrs. Marshall and Mrs. Scoggins should not have come in over his objection, and this was the claim sustained by the D.C. Court of Appeals.

At the trial the prosecutor argued that the testimony was admissible under any of several exceptions identified in Drew v. United States, 118 U.S.App.D.C. 11, 16, 331 F.2d 85, 89-90 (1964).³ The trial judge, in ruling on admissibility, did not indicate which of the exceptions was applicable. The District of Columbia Court of Appeals considered each of the exceptions. It found that none was applicable, and consequently concluded that the evidence relating to the commission of criminal acts other than the one charged was inadmissible. If that court is wrong in holding none of the exceptions to be applicable, its decision cannot stand uncorrected. On this appeal, the Government urges that the evidence in question was admissible either to show a common scheme or plan, or to show intent. Although the evidence is strongly suggestive of a common scheme or plan, we address ourselves specifically only to the matter of intent.

In its opinion, the D.C. Court of Appeals said only that the testimony was not relevant to intent "since proof of a prior specific intent was not a necessary element of the charge of larceny after trust," citing its own decision in Reed v. United States, 239 A.2d 156 (1968). The court earlier in its opinion, however, had described the crime charged as including "four elements: (1) that the accused be entrusted with something of value, (2) for the use or benefit of complainant, (3) that it be converted to accused's own use, (4) with the intent to deprive complainant of the money or property." (Emphasis supplied.) Thus, the court's result must turn upon a belief that the testimony was relevant only to the intent entertained by appellee when he first received complainant's money, and not relevant to his state of mind when he refused to return it to her. Since appellee could be convicted even if his purpose was innocent when he received the money, the court reasoned that the testimony did not relate to an essential element of the crime.⁴

We think that grounding a reversal of appellee's conviction on this kind of a distinction was neither realistic in fact nor compelled by legal theory. The statutory provision for larceny after trust defines a violator as one who is shown to have "fraudulently converted" property entrusted to him. It is, of course, true that the requisite fraudulent purpose may be conceived at various stages in the transaction, and that one who takes property in good faith may be convicted if his illegal designs mature after the property is in his possession. But the essential legislative proscription is of his having "fraudulently converted" the property.

If the jury believed, as it was entitled to do on this record, that Mrs. Evans' money was received by appellee, a basic question is whether her ultimate loss was attributable to an intent on appellee's part to defraud...