United States v. Olsen

• Decision Date: 06 November 1973
• Docket Number: No. 73-1193.,73-1193.
• Citation: 487 F.2d 77
• Parties: UNITED STATES of America, Appellee, v. Jeffrey Allan OLSEN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

487 F.2d 77 (1973)

UNITED STATES of America, Appellee, v. Jeffrey Allan OLSEN, Appellant.

No. 73-1193.

United States Court of Appeals, Eighth Circuit.

Submitted September 12, 1973.

Decided November 6, 1973.

Rehearing and Rehearing Denied December 13, 1973.

Certiorari Denied March 25, 1974.

David G. Roston, Minneapolis, Minn., for appellant.

J. Earl Cudd, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.

Rehearing and Rehearing En Banc Denied December 13, 1973.

Certiorari Denied March 25, 1974. See 94 S.Ct. 1594.

WEBSTER, Circuit Judge.

Jeffrey Allan Olsen was convicted of receiving and concealing coins and currency that had moved in interstate commerce, knowing same to have been stolen,¹ and was acquitted of a second count which alleged that he transported this property in interstate commerce.² Olsen appeals, asserting as error: (1) the admission of a 1969 New York conviction for the same offense to show knowledge; (2) the admission of evidence obtained as a result of an arrest warrant issued without probable cause and (3) the refusal to strike testimony elicited by the prosecution that he had displayed a pistol to a former employer.³

Defendant was arrested on a complaint charging him with fraud by wire. The information upon which this complaint was based is as follows: one Kay Sterzinger complained to Northwestern Bell Telephone Company that she had been billed for a number of long-distance calls in April, May and June, 1972 which she had not made. She also had received a bill from the Goodyear Tire Company for four tires and extra services, totalling $114.62, addressed to John Sterzinger. Investigation disclosed that the automobile to which the tires were affixed was registered in the name of Jeffrey Allan Olsen. One of the long-distance calls complained of was made to the Richard Eggert residence in Quogue, New York. Mrs. Eggert advised the investigator that she had received a call for her father from a person identifying himself as Jeff Olsen.

At the time of defendant's arrest in Minneapolis, he was carrying a brief case which contained some antique currency and other collector's items. He also had a rolled up newspaper in which were found envelopes of the type used by currency and coin collectors and small sticker labels which had "A & A Coin Shop, Iowa City, Iowa" printed on them. The A & A Coin Shop had been robbed by two armed men on August 2, 1972, and over $26,000 worth of coins and currency had been taken. As a result of this information, investigators learned that appellant had a safe deposit box at National City Bank. Shirley Holbrook, a receptionist at the bank, informed the FBI agent that Olsen had come into the bank on August 28, 1972 and had signed for entrance into the safe deposit box area. She assisted him in obtaining the safe deposit box and in returning it. When the box did not return into its slide because the lid was not closed properly, she observed Olsen open the box and saw that it was completely filled with currency, except for a small box containing coins. On the basis of this information, a search warrant was obtained and the contents of the box were seized. Some of these coins and currency were subsequently identified as having been stolen from the A & A Coin Shop.

The Prior Conviction

The trial lasted seven days. The government produced 26 witnesses and introduced 223 exhibits. At the close of its case, a certified copy of a 1969 New York conviction for transporting coins in interstate commerce, knowing them to have been stolen, was introduced. The court reserved ruling on defendant's objection until the following morning, when it ruled the exhibit admissible for the limited purpose of showing defendant's knowledge that the coins and currency in his possession had been stolen.⁴ Appellant argues that the admission of the prior conviction was reversible error since appellant did not testify on his own behalf and the prior conviction was far removed in time and place from the charge under indictment.

The general rule that evidence of prior criminal conduct is not admissible against a criminal defendant, is subject to well-recognized exceptions. In Atwell v. Arkansas, 426 F.2d 912 (8th Cir.1970), the court said:

The general rule is that evidence of past crimes is inadmissible and incompetent for the purpose of showing commission of the particular crime charged unless the prior conviction is an element of or is legally connected with the crime for which the accused is on trial. citations omitted

But recognized exceptions to the rule are that such evidence "is usually competent and admissible to prove the accused\'s identity, knowledge, intent and motive, to show a common criminal scheme or plan, and in negation of the likelihood that the crime was committed as a result of inadvertence, accident, or mistake." 29 Am.Jur.2d, Evidence § 321 (1967).

426 F.2d at 914.

The authority for these exceptions is legion: United States v. Cochran, 475 F.2d 1080 (8th Cir.1973); United States v. Bessesen, 433 F.2d 861 (8th Cir.1970), cert. denied, 401 U.S. 1009, 91 S.Ct. 1254, 28 L.Ed.2d 545 (1971); Von Feldt v. United States, 407 F.2d 95 (8th Cir.1969); Koolish v. United States, 340 F.2d 513 (8th Cir.), cert. denied, 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724 (1965); Williams v. United States, 272 F.2d 40 (8th Cir.1959); Wiley v. United States, 257 F.2d 900 (8th Cir.1958); see also Parker v. United States, 400 F.2d 248 (9th Cir.1968), cert. denied, 393 U.S. 1097, 89 S.Ct. 892, 21 L.Ed.2d 789 (1969); United States v. Deaton, 381 F.2d 114 (2d Cir.1967); Herman v. United States, 220 F.2d 219 (2d Cir.1955); United States v. Walker, 176 F.2d 564 (2d Cir.), cert. denied, 338 U.S. 891, 70 S.Ct. 239, 94 L.Ed. 547 (1949).

Appellant urges, however, that his case does not fit this well-recognized exception because the previous conviction for possession and concealment of stolen coins bears no reasonable relationship to his knowledge that the coins and currency in his possession at the time of his arrest were stolen, citing Davis v. United States, 370 F.2d 310 (9th Cir.1966), cert. denied, 386 U.S. 1024, 87 S.Ct. 1381, 18 L.Ed.2d 463 (1967). In Davis, defendant was convicted of knowingly transporting a stolen motor vehicle in interstate commerce in violation of 18 U.S.C. § 2312. The prosecution introduced a certified copy of defendant's prior conviction for auto theft and the court admitted it to show intent and knowledge. The Ninth Circuit held that this evidence did not fit the exception to the general rule and was therefore erroneous,⁵ stating 370 F.2d at 312-313:

In this case we believe that the general rule is applicable and that the admission of the record of appellant\'s conviction was error. It was an isolated occurrence more than a year before the act in question and the crime was not the same as the present prosecution. We hold that there was not a sufficient connection, either in time or conduct, to justify its admission even though the court in its instruction limited its consideration by the jury. Its admission was not justified by any of the well known exceptions to the general rule. (Emphasis added)

A close connection between the conduct for which the defendant was previously convicted and that for which he is standing trial was clearly established in this case. We do not suggest that a prior conviction for possession of stolen goods standing alone would be sufficient to prove that a defendant knew of goods of like kind currently in his possession were stolen, but it does tend to show a propensity for such knowledge when considered with the strong corroborating evidence present in this case.

Appellant contends that the three-year-old conviction was stale and too remote in time to satisfy the close connection requirement. Appellant relies on United States v. Nemeth, 430 F.2d 704 (6th Cir.1970), where the arresting officer testified that the defendant had been convicted previously of violating the same statute. However, the conviction was reversed not because the prior conviction was too remote in time (as time was not established in the record), but rather because the evidence of that conviction was hearsay and no instruction limiting its use could cure the absence of authenticated evidence even where a prior conviction might be otherwise admissible to show a consistent pattern of conduct. In this case, however, the evidence in issue was authenticated, reflected the means by which appellant committed the prior act, and the court properly limited the jury's consideration thereof as it might relate to the knowledge of the defendant.⁶

In Miller v. United States, 397 F.2d 272 (5th Cir.1968), a five-year-old forgery conviction was held admissible to show intent in a forgery trial. Similarly, in Von Feldt v. United States, 407 F.2d 95 (8th Cir.1969), this court held that evidence of a similar criminal transaction which occurred some four years prior to trial was admissible to establish intent and guilty knowledge. We hold that the introduction of the three-year-old conviction for an identical offense for the limited purpose of showing Olsen's knowledge that the coins and currency in his possession were stolen, with proper limiting instructions at the time of its admission and again during the final charge,⁷ was not error.⁸

The Arrest Warrant

Appellant next argues that the arrest warrant was not issued upon a sufficient showing of probable cause that appellant committed wire fraud. The underlying facts disclosed in the complaint show: (1) a Mrs. Sterzinger was billed for seven long distance phone calls which she did not make; (2) the Sterzingers were billed for four tires and certain repairs by the Goodyear Tire Company; (3) Goodyear had performed these services on appellant's car at the request of a person using John Sterzinger's name; (4) one of the long-distance calls had been placed to the Eggert residence in...