United States v. Guy Rufus Huddleston

802 F.2d 874, 21 Fed. R. Serv. 1068, 1986 U.S. App. LEXIS 31966

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 8, 1986
• Docket: 85-1938
• Status: Published

Opinions

KEITH, Circuit Judge.

Appellant, Guy Rufus Huddleston, was convicted after a jury trial on one count of a two count indictment.¹ He was convicted pursuant to 18 U.S.C. § 659 arising out of his possession of 500 stolen video tapes.² Because the district court abused its discretion in admitting evidence under Fed.R. Evid. 403, we reverse.

I.

In early April 1985, Memorex brand T-120 VHS blank cassette tapes were manufactured at the Tandy-Bell & Howell plant in Northbrook, Illinois. After these tapes were made, they were sent to Memtech Products in Arlington Heights, Illinois.³ Memtech sold the tapes to the Michigan K-Mart Corporation for $4.69 per tape. Memtech shipped 32,448 blank VHS tapes to K-Mart via an Overnight Express semitrailer truck. The trailer was first sent to the Overnight Express yard in South Holland, Illinois, because K-Mart was not scheduled to take delivery until April 16, 1985. On April 15, Overnight Express employees discovered the trailer was missing.

On April 17, 1985, appellant informed Karen Curry, the manager of the Magic Rent-to-Own in Ypsilanti, Michigan that he had a truckload of blank VHS tapes which he sought her assistance in selling.⁴ Ms. Curry asked appellant if the tapes were stolen, and he assured her they were not. Appellant told Ms. Curry that he purchased the tapes directly from the manufacturer in Chicago for one dollar per tape. He also told her that he had a bill of sale, and that he wanted her to sell them in no less than 500 tape lots at $2.75 to $3.00 per tape. Before she arranged the sale of any tapes for appellant, Ms. Curry checked with the Ypsilanti Police Department to determine if the tapes were stolen. Thereafter, Ms. Curry called area retailers. She informed them that the tapes would be sold in lots of no less than 500, and that no personal or business checks would be accepted. Consequently, Ms. Curry arranged sales of 4,000 tapes to Curtis Mathes Home Entertainment Center, 500 tapes to New York Video World and 500 tapes to Movieland. Ms. Curry also arranged a sale to Nowshowing Video. Appellant sold Nowshowing Video 500 tapes for $1,500: he also signed a receipt.

Ms. Curry testified that appellant used his own name in every transaction, and instructed her that he would take care of problems with defective tapes; therefore, she told customers that defective tapes could be returned to Magic Rent-to-Own. Appellant paid Ms. Curry twenty-five cents a tape for arranging the first two sales. Thereafter, the FBI contacted Ms. Curry and told her the tapes were stolen. Ms. Curry was instructed not to tell appellant that she knew the tapes were stolen. Conversely, appellant never indicated in any way to Ms. Curry that he knew the tapes were stolen.

At the outset of the trial, the government made a motion in limine to introduce evidence of similar acts, pursuant to Fed.R. Crim.P. 404(b). The government stated that it intended to present evidence showing that appellant was involved in the sales of television sets prior to the sale of the VHS tapes, that he talked about selling VHS tapes, and that he attempted to sell refrigerators to an FBI under cover agent five days after the sale. Evidence was admitted that approximately one month before the dates charged in the indictment, appellant sold about forty black and white television sets to Paul Toney, a record store owner, at a cost of $28.00 each. No evidence was presented at trial showing that the televisions were stolen.⁵ During these transactions appellant told Mr. Toney that he had purchased a truckload of blank video cassette tapes which he would also sell to Toney for $2.75 a tape. On May 1, 1985 appellant offered to sell 10,000 VHS movie tapes to undercover FBI Agent Robert Nelson at a cost of $1.57 each. Appellant told Agent Nelson that he purchased the tapes in Chicago. Appellant also offered to sell Zenith color television sets at $200.00 each. Agent Nelson asked appellant whether these items were stolen. Agent Nelson testified that appellant stated that either “some are hot and some are not” or, most of the tapes “were not hot.” Appellant testified that he told Agent Nelson all of the items “were not hot.”

Agent Nelson also testified that appellant offered to sell Amana refrigerators, ranges and icemakers. The Amana appliances were part of an interstate shipment which was recently reported stolen. Upon delivery of the refrigerators to Agent Nelson, appellant and a Mr. Leroy Wesby were arrested.

II.

On appeal, appellant raises several assignments of error.⁶ However, we will not address each assignment. Rather, our focus will center on whether the trial court abused its discretion in permitting the government to present evidence of appellant’s prior misconduct. Specifically, whether it was an abuse of the trial court’s discretion to admit evidence pertaining to appellant’s sale of black and white televisions.⁷

Generally, under Fed.R.Evid. 404(b) evidence of a criminal defendant’s prior misconduct is inadmissible during the prosecution’s case in chief for the purpose of showing the accused’s bad character or criminal propensity. United States v. Ail-stock, 546 F.2d 1285, 1289 (6th Cir.1976). However, evidence of a defendant’s prior misconduct may be admitted to show motive, intent, absence of mistake, opportunity, preparation or knowledge. United States v. Schaffner, 771 F.2d 149 (6th Cir. 1985); Fed.R.Evid. 404(b). Our review of the admission of evidence challenged under Fed.R.Evid. 404(b) requires this Court to next make two determinations: whether the evidence admitted is relevant and whether the probative value of the evidence outweighs its potential for prejudice. United States v. Dabish, 708 F.2d 240, 242 (6th Cir.1983); Fed.R.Evid. 403. It is clear the contested evidence was relevant. What is at issue is whether its probative effect was outweighed by its prejudicial value. The trial court’s balancing of probativeness and prejudice is reviewed under an abuse of discretion standard. Id.

In reviewing the evidence of the sale of the black and white televisions, we note the government never proved that they were stolen. Although the government implied that the televisions were stolen and that appellant and Mr. Lewis were lying about the legitimacy of the sale, no evidence was presented by the government concerning the origin of the televisions. The appellant’s defense at trial was that he did not know the tapes he possessed were stolen; thus the government should not have been allowed to present “misconduct” evidence when it could not show that there was any misconduct with regard to the televisions. Consequently, since the prejudicial value of the admission of the sale of the televisions outweighed the probative value, we hold that the trial court abused its discretion.

Requirements for the admission of other crimes, wrongs or acts evidence under Rule 404(b) are well established in other circuits. One of the prerequisites for admission of other crimes evidence is clear and convincing proof of the similar offense. United States v. Two Eagle, 633 F.2d 93, 96 (8th Cir.1980); United States v. Robbins, 613 F.2d 688 (8th Cir.1979); United States v. Bailleaux, 685 F.2d 1105 (9th Cir.1982); United States v. Silva, 580 F.2d 144 (5th Cir.1978); United States v. Myers, 550 F.2d 1036 (5th Cir.1977), cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978). Adopting the clear and convincing proof standard in this circuit, we hold that the government failed to meet that standard. Specifically, the government’s attorney admitted at oral argument before this Court that no clear and convincing proof was presented to the trial court that the televisions were stolen or that appellant knew that they were stolen. Consequently, it was impermissible for the jury to receive evidence that they could infer the televisions were stolen absent clear and convincing proof.

The government contends that the admission of the similar acts evidence was harmless error. We disagree. The introduction of such evidence in the government’s case in chief was not harmless beyond a reasonable doubt. See Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In United States v. Manafzadeh, 592 F.2d 81 (2d Cir.1979) the court ruled that other crimes evidence was admitted improperly since it afforded the jury the opportunity to draw the impermissible inference that because the defendant had apparently acted unlawfully on another occasion, he must have committed the unlawful acts charged in the case.⁸ Here, the impermissible inference went a step further. The government made a motion, prior to trial, to introduce prior similar acts evidence which the district court admitted because it was relevant. The similar act evidence, (television transaction) was a major point of contention throughout the trial since appellant maintained he did not know the televisions were stolen. Furthermore, the admission of the prior acts evidence was accentuated because appellant’s defense at trial was that he did not know the tapes he possessed were stolen.⁹ Since admission of the prior act evidence was potentially very prejudicial, we cannot hold that it was not harmless beyond a reasonable doubt.

The government also argues that during the trial appellant never objected to the prior acts evidence nor did he move to strike it; therefore, the government contends Fed.R.Crim.P. 52(b) provides that plain errors or defects affecting substantial rights may be considered although they were not brought to the trial court’s attention. The plain error doctrine permits reversal despite lack of objection if there has been miscarriage of justice. Wilson v. Attaway, 757 F.2d 1227 (11th Cir.1985); Higgins v. Hicks Co., 756 F.2d 681 (8th Cir. 1985). Here, it has already been established that the admission of the prior acts evidence was not harmless beyond a reasonable doubt. Furthermore, it is clear that the admission of prior acts evidence affected the “substantial rights” of appellant: especially since his defense at trial was that he did not know the tapes were stolen. Since it was plain error to admit evidence of the sale of the televisions without clear and convincing proof that they had been stolen, we find there was a miscarriage of justice. Thus, this issue was preserved for appeal.

In light of the fact that the admission of the prior acts evidence was not harmless beyond a reasonable doubt, that the evidence that the television sets were stolen was not clear and convincing and that this evidence was more prejudicial than probative, we find that the admission was an abuse of discretion.

Accordingly, the district court’s verdict is reversed and remanded.

1 . Appellant was acquitted of selling 4,000 stolen blank VHS tapes which is an offense under 18 U.S.C. § 2315.

2 . The tapes were in appellant’s possession between April 23 and April 25, 1985.

3 . Memtech which is the sales branch of Tandy, purchased the tapes for $4.53 each.

4 . Ms. Curry testified that appellant was a friend of Alphonse Lewis, the owner of the Magic Rent-to-Own discount appliance and rental store. Apparently, appellant was a local housing contractor who came by Magic Rent-to-Own once a week to use the store as his office. Ms. Curry took messages and occasionally helped appellant with typing.

5 . The government’s only support for the assertion that the televisions were stolen was the appellant’s failure to produce a bill of sale at trial and the fact that the televisions were sold at a low price.

6 . Appellant argues: (1) the trial court committed reversible error by refusing to instruct the jury that character evidence may create a reasonable doubt of guilt; (2) the impeachment of Alphonse Lewis with a 13 year old misdemean- or conviction was improper, affected appellant’s substantial rights and denied him a fair trial;

(3) the trial court abused its discretion in allowing the government to present evidence of appellant’s prior and subsequent misconduct; and

(4) appellant’s motion to dismiss Count 1 for lack of venue should have been granted.

7 . The district court found that this evidence was relevant to the question of whether appellant knew that the VHS tapes were stolen, and that the probative value of such evidence outweighed its prejudicial effect to the appellant.

8 . Contra United States v. Chaimson, 760 F.2d 798 (7th Cir.1985) (holding that in cases where government must prove specific intent as an element of crime charged, evidence of other acts may be introduced to establish that intent).

9 . The government attempted to have the jury infer the television sets were stolen and from that inference in turn infer that since the appellant had sold "stolen” television sets earlier, he must have possessed and sold the stolen tapes here.