United States v. Menk

• Decision Date: 09 June 1969
• Docket Number: No. 16832.,16832.
• Citation: 406 F.2d 124
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Chester DeWitt MENK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

406 F.2d 124 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Chester DeWitt MENK, Defendant-Appellant.

No. 16832.

United States Court of Appeals Seventh Circuit.

November 21, 1968.

Rehearing Denied January 29, 1969.

Certiorari Denied June 9, 1969.

William C. Erbecker, Indianapolis, Ind., for appellant.

K. Edwin Applegate, U. S. Atty., Robert L. Baker, Asst. U. S. Atty., Indianapolis, Ind., for appellee.

Before CASTLE, Chief Judge, and HASTINGS and FAIRCHILD, Circuit Judges.

Certiorari Denied June 9, 1969. See 89 S.Ct. 2019.

CASTLE, Chief Judge.

Defendant-Appellant, Chester DeWitt Menk, was charged in a two-count indictment with selling a certain amount of amphetamine drugs to a government agent, John Sopsic, on two separate occasions, in violation of 21 U.S.C. § 331 (q) (2). Appellant pleaded not guilty, waived jury trial, and was convicted of both counts and sentenced to serve two years consecutively on each count. On appeal, appellant contends that the judgment of conviction must be reversed because the trial court admitted into evidence certain proof regarding other allegedly unconnected crimes and considered this evidence in finding appellant guilty of the offenses charged. The government, on the other hand, argues that the evidence of other crimes was admitted only in connection with crimes closely connected with the offenses charged and only in determining the credibility of appellant, who had testified in his own behalf. Appellant, in his brief, admits that the evidence was sufficient to convict, and even recognizes that "a prima facie case was presented" by the government.

The record discloses that during the government's case in chief, witness Sopsic testified about certain conversations he had had with appellant and co-defendant, Minnie Bingham, regarding slot machines, alleged prostitution, a prior drug offense, appellant's threat to kill a past informer and any future informer, an incident where appellant attacked two excise men, and dealing in stolen goods, as well as the offenses charged. Objections to this evidence on the grounds of irrelevancy and prejudice were overruled.¹ The only other government witness was a chemist for the Food and Drug Administration who testified about the chemical composition of the drugs introduced into evidence by the Government.

The first defense witness was co-defendant, Minnie Bingham. On cross-examination of this witness, there was some mention of a raid of appellant's business establishment, the Shifting Sands truckstop, and about the working conditions of the waitresses employed by appellant at that establishment. After a short direct examination of the third co-defendant, Elmer Menk, appellant's brother, appellant took the stand.

On direct examination of appellant, he testified about the following events: Appellant had been in the Federal Penitentiary at Terre Haute as the result of selling "these pills" in 1960; he had been convicted in 1933 for grand larceny; he had served 30 days on a penal farm for being involved in a dance hall fight in 1929; he was convicted in 1958 or 1959 for an offense involving his attack on two excise agents; he was currently charged with possession of a slot machine without a stamp; he hired employees for the Shifting Sands truckstop by picking up "any tramp that comes along the road" and offering them a job; his business had been raided on October 20, 1966; he had sold slot machines in August, 1965. On cross-examination, there was more dialogue about the girls who worked for appellant and he stated that he paid them nothing for their work but that they made their living from tips.

Appellant's theory at trial, as stated in his brief, was that he was "a long-time lawbreaker" who had become apprehensive of impending prosecution and had therefore exercised no control over any of the illicit activities conducted at his truckstop. The government's theory, substantiated by Sopsic's testimony, was that appellant controlled and supplied the pills illegally sold, and merely dealt through Minnie Bingham as an intermediary.

Thus, evidence of other crimes was introduced at two different stages of the trial: (1) during the government's case in chief, before appellant's credibility was put in issue; (2) during the testimony of the defendants. Since different issues are involved in each of the instances in which evidence of other crimes was introduced, we shall discuss them separately.

1. The evidence of other crimes introduced and admitted over objection during the government's case in chief did not relate to crimes so closely connected with the offenses charged as to constitute "res gestae." Nor could it have been properly admitted to prove intent since intent was not an element of the offenses charged under 21 U.S.C. § 331, Palmer v. United States, 340 F.2d 48, 49 (9th Cir. 1964); cf. United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943). Nor was this evidence admitted in relation to appellant's credibility since his credibility had not yet been put in issue. We therefore hold that the admission of such evidence constituted error, and if this had been a jury trial we would be compelled to reverse. United States v. Reed, 376 F.2d 226, 228-229 (7th Cir. 1967); United States v. White, 355 F.2d 909, 910-911 (7th Cir. 1966). However, since this was a bench trial and since it appears from the record that the trial judge did not consider the erroneously admitted evidence in reaching his findings of fact, we hold that the error does not justify reversal.

The trial court's Findings of Fact begin with the following language:

"So we get down to the question of fact. Did these people do what they

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