Weeks v. United States, 7071.
| Decision Date | 09 January 1963 |
| Docket Number | No. 7071.,7071. |
| Citation | 313 F.2d 688 |
| Parties | Nolan Wayne WEEKS, Jr., Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Galen J. Ross, Salt Lake City, Utah (Mitsunaga & Ross, Salt Lake City, Utah, on the brief), for appellant.
Gerald R. Miller, Asst. U. S. Atty. (William T. Thurman, U. S. Atty., and Craig T. Vincent, Asst. U. S. Atty., on the brief), for appellee.
Before MURRAH, Chief Judge, and LEWIS and SETH, Circuit Judges.
The appellant was indicted in three counts for the interstate transportation of forged securities. He was tried by a jury in the district of Utah and found guilty on all counts. Each count related to a particular check alleged to have been falsely made and forged, and transported from Salt Lake City to Texas and to Idaho.
In his appeal the appellant urges that the trial court committed error in admitting testimony and exhibits which related to transactions of a criminal nature in the state of Colorado and which were entirely separate from those set out in the indictment.
The Colorado incidents took place before, but within about a month of those in Utah which were the basis for the indictment. This evidence concerned a Denver bank account which was maintained by the appellant in the name of Check Identification System, and the testimony complained of was by an official of this bank. This witness testified that his bank received for deposit in this account a number of checks which he described and which bore names of various markers and were drawn on banks in other states but payable to the Check Identification System. He also testified that all of these checks were returned unpaid marked "no account" or bearing some similar notation. He testified that the appellant had drawn checks on this Denver bank account, that the bank had paid these checks, and as a result of these transactions, there was a large overdraft in the account and the bank was unable to locate the appellant after this occurred. The exhibits which were introduced relating to the Denver transactions were Government's Exhibits 19, 20, 21, 22 and 23. Exhibit 19 consisted of a group of checks drawn on the Check Identification System account and constituting the withdrawals above mentioned. Exhibit 20 was a group of five checks deposited with the Denver bank and which were returned by the banks on which they were drawn as above described. Exhibit 21 was a business calling card bearing the name of Check Identification System, N. W. Weeks, which had been presented to the Denver bank. Exhibits 22 and 23 were signature cards on the Check Identification System bank account. As indicated above the appellant complains that the introduction of the above exhibits and the testimony of the bank official constituted error.
The appellant objected to the testimony of the Denver bank official on the ground that this evidence was not material and asked that the evidence be stricken. The court denied the motion and admitted the evidence, stating:
Government's Exhibit 19, which was the several checks drawn on the Denver bank, and Exhibit 20, which was the five checks deposited to the Denver bank account and returned, were offered "subject to the Court's caution to the jury a few minutes ago with respect to the testimony adduced from this witness." The appellant objected on the grounds that the exhibits had not been properly identified and no "due execution" had been shown. The objection was overruled and the exhibits were admitted.
Exhibit 21 which was the business calling card was offered and the appellant stated he had no objections.
Exhibits 22 and 23, which were the signature cards, when offered were objected to on the grounds of "invalid execution." The objection was overruled and the exhibits were admitted.
At the close of the Government's case, the appellant moved that all the checks be stricken on the ground that there was no proof of due execution. This motion did not mention any exhibits except the checks which were Exhibits 19 and 20.
The appellant testified, and his attorney asked him whether or not he had deposited money in the Denver bank account and he stated that he had. His attorney then showed him the Government's Exhibit 20 and asked him whether or not he could identify the checks which constituted the exhibit. The witness stated, "Yes, these are the checks in question, mailed to me by Mr. Warren." He was asked whether these were the checks which he had put in the bank and he replied that they were, stating that he would endorse them or that they would be endorsed at the office. The appellant was next shown by his attorney Government's Exhibit 19 and asked whether he could identify the checks in this exhibit. He stated he could and that they were the checks made out by the firm or by him to pay various bills. On cross-examination the appellant was shown the Government's Exhibit 21 and was asked whether it was the business card he had presented to the Denver bank and the appellant replied that it was. Also on cross-examination he was shown Government's Exhibits 22 and 23, and asked whether the signatures appearing on these signature cards were his, and he stated that they were.
As indicated above, the record shows that the appellant while on the stand identified and stated he had signed Exhibits 22 and 23 and that he had delivered Exhibit 21 to the Denver bank. He further stated that the checks constituting Exhibit 19 were made by him, and he further admitted that the checks constituting Exhibit 20 had been deposited by him or by his firm. This being the case, there is little left of the appellant's objection that they were not identified and no due execution was shown nor to his motion that all checks be stricken because there was no showing of "due execution." Further the delivery of Exhibit 21 and the execution of Exhibits 22 and 23 were also admitted by appellant, and consequently there is little left of the objection that no valid execution of these exhibits was shown. As mentioned, appellant had objected to the bank officer's testimony as not material, but there is also little left of this objection since appellant testified as part of his own case to the checks which constituted the transactions referred to in the bank officer's testimony.
As indicated above, the trial court permitted the witness to be examined as to the Denver transactions on the ground that it would show or be material to the intent or state of mind of the appellant. As we understand the theory of the Government, it was that the transactions in Denver could be shown for the purpose indicated by the court and to show a general plan or scheme of the appellant. The three counts of the indictment related to transactions and to checks which were drawn on banks other than the Denver bank and which were alleged to have been transported in interstate commerce with unlawful and fraudulent intent from Salt Lake City to states other than Colorado. Thus the Denver transactions were distinct and separate from those described in the indictment. It was incumbent upon the Government to prove that the incidents described in the indictment were accomplished by appellant with an unlawful and fraudulent intent. Evidence to show such intent was material; consequently, the question here is whether or not the evidence as to the Denver bank account showed appellant's intent or state of mind as to the Utah incidents.
The evidence shows that the appellant's banking activities in Denver and in Salt Lake City were similar if not identical, and that both took place at about the same time. The Denver action, being similar and so timed, shows that the incidents for which appellant was convicted were not isolated ones. This evidence also tends to show that the Salt Lake City checks were not matters of chance or accident. Wigmore, Evidence, 3d Ed., § 302. There was a fact comparison developed by the evidence complained of.
This court in a variety of fact situations has had the occasion to consider the admissibility of evidence which shows or tends to show the commission of a crime other than the one charged. O'Dell v. United States, 251 F.2d 704 (10th Cir.), was a case involving the transportation of a stolen car. The evidence complained of related to a credit card in appellant's possession at the time of his arrest. The card was admitted and the arresting officer testified as to statements made by appellant regarding the card. This testimony was to the effect that appellant used the card, that his name was Wattel, his address was as shown on the card, and that he charged purchases on the card. Appellant argued that this evidence tended to show that he had committed a crime other than that for which he was being tried and was therefore inadmissible. The court said of this objection:
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