United States v. Johnson, 71-1985 Summary Calendar.

• Decision Date: 11 January 1972
• Docket Number: No. 71-1985 Summary Calendar.,71-1985 Summary Calendar.
• Citation: 453 F.2d 1195
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Franklin JOHNSON, a/k/a Franklin O'Neil Johnson, James Earl Jackson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

453 F.2d 1195 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Franklin JOHNSON, a/k/a Franklin O'Neil Johnson, James Earl Jackson, Defendant-Appellant.

No. 71-1985 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

January 11, 1972.

Edmund M. Thomas, Shreveport, La. (court appointed), for defendant-appellant.

Donald E. Walter, R. Perry Pringle, Asst. U. S. Attys., Shreveport, La., for plaintiff-appellee.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Johnson was convicted in the court below of transporting in interstate commerce a stolen motor vehicle on or about July 1, 1969, knowing the same to have been stolen, in violation of 18 U.S.C.A. § 2312. He appeals for the reason that during the course of the trial the government, over objection, was permitted to introduce into evidence and read to the jury, the complete text of two judgments of conviction previously obtained against him. One judgment was rendered May 23, 1966, and the other was entered on October 26, 1967. Both convictions were designated as being for the felony of "theft"; both documents stated that Johnson had prior unspecified felony convictions; and one additionally described Johnson as an habitual criminal. Neither document, nor any other evidence adduced, showed the dates on which either theft occurred. Because of the obviously prejudicial nature of this evidence, and the fact that its relevance to the crime with which Johnson was charged was tenuous at best, its admission was harmful, reversible error.

This case calls upon us to judge the proper application of the general rule recognized in this circuit¹ that in a criminal case, "the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character." (Emphasis supplied.) C. McCormick, Handbook of the Law of Evidence § 157 at 327 (1964). Any other rule would leave the courts powerless to control a jury's natural tendency to vote to convict a "bad man" of any charge lodged against him, once it has heard evidence of his criminal record. The exceptional situations wherein evidence of prior convictions has been held to meet this test of being "substantially relevant" to the crime being tried are several, e. g., where the previous conduct shows a consistent pattern or scheme, United States v. Hayes, 444 F.2d 472 (5th Cir. 1971); United States v. Mancuso, 444 F.2d 691 (5th Cir. 1971), or shows a similarity of method, United States v. Jackson, 451 F.2d 259 (5th Cir. 1971) or shows a specific intent or knowledge, United States v. Wilson, 451 F.2d 209 (5th Cir. 1971); United States v. Clifton, 447 F.2d 970 (5th Cir. 1971); or where subsequent conduct shows an attempt to avoid punishment for the present crime, United States v. Fischetti, 450 F.2d 34 (5th Cir. 1971), or shows that another crime was committed to aid in the execution of the present one, United States v. Moseley, 450 F.2d 506 (5th Cir. 1971). In each of those cases, the fact that the defendant had committed some other crime was in itself of such probative value in establishing some specific element or elements of the crime presently charged, that the court was willing to risk the very real possibility that the jury might make an improper—if not unconstitutional—use of such evidence. Here, there was no similar basis for hazarding such a risk.

The lower court, being of the opinion that the theft convictions came within the "specific intent or knowledge" exception to the rule prohibiting evidence of other crimes, admitted them over defendant's objections (1) that no proper foundation had been laid showing that the nature and time of the acts involved demonstrated a close relation to the present charge, and (2) that the defendant was not on trial for the crime of theft. At the time the documents were put in, the court told the jury:

An essential ingredient is theft and knowledge of theft. . . . The jury will not consider these documents as proof of guilt in this case, but you may consider it in determining whether or not he had the necessary criminal intent as we will charge you in our general charge and only for that purpose.

In other words, you cannot convict him simply on these prior convictions but the element of theft is an essential ingredient of the violation of the law involved herein, namely, interstate transportation of a stolen vehicle knowing that it was stolen. (Emphasis supplied.)

Then, after establishing before the jury that the defendant did not intend to testify in his own behalf, the court concluded:

The only purpose and sole purpose for admitting it is to show a course of conduct reasonably near in point of time to the time alleged in this indictment of a crime of a reasonably similar nature to show he, indeed, possessed the necessary one element of the crime, and that is criminal intent. That is the purpose, and you will give it no other construction.

These remarks, which the judge obviously intended to be limiting, may well have had the opposite effect in the setting of the instant case. They served to increase, rather than to lessen, the danger that the jury would misuse the prior conviction evidence by leaving the way clear for them to suppose that he may have been the one who stole the car and that "if he stole twice before, he'd steal again." But theft by the defendant is not an element of the crime defined by § 2312.² To admit prior theft convictions upon the supposition that they tend to show a course of conduct from which the jury could infer a general criminal intent to prove a transportation of stolen goods charge, not only was confusingly at variance with the theory that theft was not an element of the crime charged, but also would allow the intent exception to swallow up the rule forbidding evidence of a criminal record. The fact that this man was twice convicted of some wholly unknown type of theft at some unestablished prior time constitutes no proof whatever that he transported this car in commerce with knowledge that it had been stolen unless one indulges in the forbidden once-a-thief-always-a-thief assumption. Transportation with guilty knowledge is the only intent element involved in a § 2312 violation. United States v. King, 425 F.2d 1163 (5th Cir. 1970); Moody v. United States, 377 F.2d 175 (5th Cir. 1967).

The court's final instructions on intent further...