United States v. John Dejohn

638 F.2d 1048, 1981 U.S. App. LEXIS 21290
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 5, 1981
Docket79-2126, 80-1654
StatusPublished
Cited by27 cases

This text of 638 F.2d 1048 (United States v. John Dejohn) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. John Dejohn, 638 F.2d 1048, 1981 U.S. App. LEXIS 21290 (7th Cir. 1981).

Opinions

HARLINGTON WOOD, Jr., Circuit Judge.

Defendant John DeJohn appeals from a jury conviction on the charge of uttering and publishing two United States Treasury checks in violation of 18 U.S.C. § 495.1 Defendant claims that the district court erred in admitting certain evidence, limiting defendant’s cross-examination of a government witness, denying a motion for judgment of acquittal, and refusing certain jury instructions. In addition, defendant challenges the district court’s sentence of a fine and imprisonment to be imposed if defendant was unable to find a job.

We affirm.

I.

Defendant lived at a YMCA in Chicago at the time of the offenses. Andy Spyropoulos, who owned a restaurant near the YMCA, testified that' he cashed two United States Treasury checks for defendant, one around December 23, 1977 and the other about a week later. Defendant had been a regular customer at the restaurant for two months, and with his friends spent about $35 to $45 each day until the time defendant presented the checks in question. The payee on the first check (in the amount of $317) was Horace Palm, and the payee on the second check (in the amount of $311) was Timothy Lutes. Both resided at the. same YMCA as defendant. Each testified that he never received the check on which he was named as payee.2 Neither man knew defendant personally, although one knew defendant by sight because they lived on the same floor at the YMCA.

The checks that Mr. Spyropoulos cashed for defendant bore forged endorsements of the respective payees. Defendant’s name does not appear on either check. Mr. Spyropoulos did not ask defendant for identification or an endorsement when he cashed the checks. The government stipulated in effect that defendant did not forge the payees’ signatures appearing on the checks.

II.

Defendant asserts that the district judge should not have permitted the testimony of certain prosecution witnesses, characterizing their testimony as “bad acts” evidence prohibited by Federal Rules of Evidence 404(b) and 403. Defendant objects to testimony by a YMCA security guard who stated that he “arrested” the defendant when he found him behind a reception desk at the YMCA in violation of the establishment’s rules. Defendant also objects to the testimony of a Chicago police officer that in the course of searching defendant at police headquarters on an occasion unrelated to the offense for which defendant was on trial, the officer found checks, one of them a Treasury check, made out to a payee named Michael Dore. The officer testified that defendant stated he had obtained the checks from a mailbox behind the reception desk at the YMCA and was holding them for safekeeping. Police were unable to locate the payee of the checks and no charges were filed against defendant as a result of the checks found in the search.

[1052]*1052As applied to the defendant in a criminal case, Rule 404 prevents any effort to prove that the defendant acted in the criminal manner as charged by the introduction of evidence showing the defendant acted in a similar way at some other time not charged. As part (b) of the rule indicates, though, evidence of similar actions generally is admissible when introduced for purposes other than those which (under the rule) improperly show propensity to commit the crime. Here, the testimony of the security officer and the policeman was highly probative of the defendant’s opportunity to gain access to the mailboxes and obtain the checks that he cashed at a later time knowing the checks to contain forged endorsements.3 This circumstantial evidence was properly admissible.4

The issue of opportunity became material to the trial once defense counsel set forth the theory in opening argument that it was not their client who uttered the forged checks. Defendant’s opportunity to gain access to the checks thus became a key issue.5

In connection with this testimony, defendant asserts that the district judge should have analyzed the evidence under Rule 403 to determine whether its probative value outweighed its prejudicial effect, and then stated in writing its reasons for admitting the evidence. See United States v. Dolliole, 597 F.2d 102 (7th Cir. 1979). The district judge did indicate that he had balanced the probative value and prejudicial effect when he said of the evidence, “The [1053]*1053fact that it may be to some extent prejudice [sic] to the defendant doesn’t make it inadmissible.” We agree that it would have been preferable for the district judge to have set down his reasons in writing, but where, as here, the balance so clearly favors admission of the testimony we will not presume that the evidence was admitted for the wrong reasons. United States v. Price, 617 F.2d 455, 460 (7th Cir. 1979).

As a collateral point, defendant argues that the government “unfairly and prejudicially” injected the issue of his character into its case by refusing to stipulate to the basic facts about which the YMCA security officer and the policeman testified. We disagree with this contention. The government is not bound to stipulate to such facts unless the prejudicial aspects of the testimony in context outweigh its probative value, although the feasibility of a stipulation and the prosecution’s need for the testimony, see United States v. Spletzer, 535 F.2d 950 (5th Cir. 1976), generally should be taken into account by the trial judge in the weighing process. United States v. Peltier, 585 F.2d 314, 324-25 (8th Cir. 1978), cert. denied, 440 U.S. 945, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979). Here, when defense counsel asked the district judge about the possibility of a stipulation they were told to take up the matter initially with the prosecution. So far as the record shows, the district court was never presented with additional argument on the necessity of a stipulation and so the court stood upon its initial determination that the testimony was admissible in its entirety. In view of our earlier conclusions on the nature and importance of the testimony in this case, we find that defendant was not unfairly prejudiced by the prosecution’s refusal to stipulate to the facts as requested.

At the close of the government’s case, the district judge denied defendant’s motion for judgment of acquittal. Defendant argues that the government failed to produce competent evidence that he knew the payees’ signatures on the checks were forged, especially in light of a stipulation that the signatures were so dissimilar from defendant’s handwriting that the checks were not submitted to a handwriting analyst for comparison. Defendant also points to the fact that the forged endorsements appeared to convert the checks to bearer paper, thus raising a question whether defendant could have innocently presented the checks for payment having been given them by the party who perhaps had accomplished the forgery. The question in determining a motion for judgment of acquittal is whether “all reasonable men, on all the evidence presented, would of necessity find that the government did not prove beyond a reasonable doubt” that defendant knew the payees’ signatures were forged. United States v. Velasco,

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Bluebook (online)
638 F.2d 1048, 1981 U.S. App. LEXIS 21290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-john-dejohn-ca7-1981.