United States v. Goldsmith, 73-1757 Summary Calendar.

• Decision Date: 20 August 1973
• Docket Number: No. 73-1757 Summary Calendar.,73-1757 Summary Calendar.
• Citation: 483 F.2d 441
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Reginald Max GOLDSMITH, Jr., Defendant-Appellant.

483 F.2d 441 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Reginald Max GOLDSMITH, Jr., Defendant-Appellant.

No. 73-1757 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

August 20, 1973.

Glenn Zell, Atlanta, Ga., Philip J. Hirschkop, Alexandria, Va., for defendant-appellant.

John W. Stokes, Jr., U. S. Atty., Robert Cooper, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

PER CURIAM:

Reginald Max Goldsmith, a private investigator, was charged with intercepting private telephone conversations by wiretaps on two separate telephone lines in violation of 18 U.S.C.A. § 2511(1)(a) and 18 U.S.C.A. § 2. The jury found him guilty as to only one of the two counts. Defendant seeks reversal asserting that (1) the admission of certain testimony regarding other acts of similar uncharged misconduct, without proper instructions to the jury, denied him due process of law, (2) he received ineffective assistance from retained counsel and was thus denied his constitutional right to counsel, (3) the trial court improperly refused to order the discovery of material in possession of the Government, (4) there was a fatal variance between the pleading and the proof, which was insufficient to support the conviction. Finding no merit to any of defendant's arguments, we affirm.

(1) Testimony of telephone company employees and the individuals whose telephones had been tapped established the existence of the wiretaps, but the defendant was connected with the unlawful activity only by the testimony of two former employees, who discussed previous electronic eavesdropping assignments completed for Goldsmith. This evidence was admitted, with prior instructions to the jury limiting the purpose of the testimony to the establishment of modus operandi. Defendant contends that he was denied due process by the Court's admitting this evidence with merely prior limiting instructions to the jury.

Although evidence of criminal conduct not charged in the indictment may not be admitted if its only relevance is to demonstrate the defendant's bad character, Michelson v. U. S., 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), see Boyd v. U. S., 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892), such evidence will be received for the purpose of showing knowledge, intent, motive, design, or scheme where such element is an essential element of the commission of the offense. Ehrlich v. U. S., 238 F. 2d 481, 484 (5th Cir. 1956); U. S. v. Payne, 467 F.2d 828 (5th Cir. 1972); U. S. v. McGlamory, 441 F.2d 130 (5th Cir. 1971); U. S. v. Pittman, 439 F.2d 906 (5th Cir. 1971), cert. denied, 404 U.S. 842, 92 S.Ct. 138, 30 L.Ed.2d 77. See 2 C. Wright, Federal Practice and Procedure § 410 (1969). If the evidence of extrinsic crimes is relevant to a material fact in issue, the trial court must then weigh the probative value of the evidence against its inherent improper prejudicial effect. See U. S. v. Lawrance, 480 F.2d 688, p. 690 n.3 (5th Cir. 1973).

The challenged testimony in this case was admitted to establish Goldsmith's modus operandi of employing telephone wiretaps in his private investigations. The trial court, on two occasions, cautioned the jury that the testimony was intended only to demonstrate the defendant's professional designs and techniques. We find these curative, limiting instructions sufficient to have eliminated any improper prejudicial...