United States v. Robert L. Marshall, A/K/A Cito Marshall

683 F.2d 1212, 1982 U.S. App. LEXIS 16860, 11 Fed. R. Serv. 416
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 4, 1982
Docket81-2027
StatusPublished
Cited by40 cases

This text of 683 F.2d 1212 (United States v. Robert L. Marshall, A/K/A Cito Marshall) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Robert L. Marshall, A/K/A Cito Marshall, 683 F.2d 1212, 1982 U.S. App. LEXIS 16860, 11 Fed. R. Serv. 416 (8th Cir. 1982).

Opinions

McMILLIAN, Circuit Judge.

Robert L. Marshall appeals his conviction under the Food Stamp Act (the Act), 7 U.S.C. § 2011 et seq., specifically, for buying food stamps valued at $100 or more for cash in violation of 7 U.S.C. § 2024(b)1 and for presenting food stamps for redemption knowing them to have been received in a manner not authorized by the Act in violation of 7 U.S.C. § 2024(c),2 entered in the District Court3 for the Eastern District of Arkansas after a jury trial. For reversal Marshall argues that the district court erred (1) in admitting into evidence two food stamp compliance visit reports which suggested that Marshall had previously violated the Act, and (2) in denying his motion for a new trial based on newly discovered evidence állegedly suppressed by the United States Department of Agriculture. For the reasons discussed below, we affirm the district court.

Robert Marshall and Ann Marshall, his wife, own a grocery store located in Little Rock, Arkansas. Marshall has been an authorized food stamp retailer since October 1975. It is undisputed that Marshall purchased food stamps valued in excess of $100 for cash from Huston Harris, a government “investigative aide” on four occasions between February and April, 1981, and presented those food stamps for redemption at the First American Bank located in Lit-tie Rock, Arkansas. Marshall and his wife were subsequently arrested and charged with four counts of unlawfully acquiring food stamps and three counts of presenting food stamps for redemption knowing them to have been received in a manner in violation of the Act.4

At trial Marshall’s defense was an alleged lack of knowledge that the food stamps in question had been acquired in a manner not authorized by the Act, which is an element of both offenses. In order to prove the element of knowledge, the government introduced the testimony of Harley Fancher, Jr., a food program specialist with the Food and Nutrition Service of the United States Department of Agriculture. Fancher testified that he had processed Marshall’s 1975 food stamp retailer application and had at that time explained the Act and regulations and completed a “checklist” of requirements and prohibitions with Marshall. Fancher further testified as to two “compliance visits” to Marshall at his store on February 27, 1976, and April 7, 1978. Fancher made reports of these visits which state in pertinent part:

February 23, 1976
All elements of a compliance visit were covered with emphasis on cash for coupons . .. ineligible items ...
I [discussed] the high rate of redemptions. ... I informed [Marshall] of this office’s concern that violations [of the Act] could be causing [the high redemption rate].
I do not believe the redemptions are reasonable ,. . and the redemptions should be monitored for three report periods.
[1215]*1215 April 7, 1978
I contacted the owner [Marshall] regarding his erratic redemptions and his high redemption ratio. I informed him that this office was concerned of continued violations in spite of the warning letter of Oct. 21, 1977.... He remembered the letter but claimed he was talked into violating by someone he knew... .

The district court admitted the reports into evidence under Fed.R.Evid. 404(b) on the basis that they were relevant to the issue of Marshall’s knowledge that “cash for coupons” transactions were prohibited by the Act.

On appeal Marshall argues that the reports suggesting prior violations of the Act were not admissible under Rule 404(b). We disagree. Rule 404(b) provides:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The rules for admission of other crimes or bad act evidence are well established: (1) the evidence of the bad act must be admissible on a material issue raised; (2) the evidence must be similar in kind and reasonably close to the charge at trial; (3) the evidence of the other crime or bad act must be clear and convincing; and (4) the probative value of the evidence must not be outweighed by its prejudice. United States v. Frederickson, 601 F.2d 1358, 1365 (8th Cir.), cert. denied, 444 U.S. 934, 100 S.Ct. 281, 62 L.Ed.2d 193 (1979).

In reviewing the admissibility of evidence this court applies an abuse of discretion standard. United States v. Moss, 544 F.2d 954, 960-61 (8th Cir. 1976), cert. denied, 429 U.S. 1077, 97 S.Ct. 822, 50 L.Ed.2d 797 (1977). The trial court can in its discretion admit relevant evidence of other criminal and bad acts and “reversal is only commanded when ‘it is clear that the questioned evidence has no bearing upon any of the issues included.’ ” United States v. Conley, 523 F.2d 650, 654 (8th Cir. 1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1125, 47 L.Ed.2d 327 (1976), citing United States v. Thompson, 503 F.2d 1096, 1098 (8th Cir. 1974). Accord, United States v. Young, 618 F.2d 1281, 1289 (8th Cir.), cert. denied, 449 U.S. 844, 101 S.Ct. 126, 66 L.Ed.2d 52 (1980).

In the present ease Marshall concedes that evidence of his knowledge of the Act’s prohibitions is relevant; however, he argues that the reports should not have been admitted because they do not constitute clear and convincing evidence of prior violations.

We disagree with respect to the April 7, 1978, report. That report contains Fancher’s testimony that Marshall himself admitted violating the Act. Such an admission, if made directly, is clear and convincing proof of Marshall’s previous violations of the Act.

It is questionable whether the district court should have admitted the February 23, 1976, report. This report does indicate that Marshall was informed of the prohibition against cash for coupon transactions but it is not clear and convincing proof of prior violations as required under Rule 404(b). However, the evidence contained in the report is merely cumulative. Fancher testified that he had personally explained the Act and completed a checklist of prohibitions with Marshall at the time Marshall applied to become a food stamp retailer.

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Bluebook (online)
683 F.2d 1212, 1982 U.S. App. LEXIS 16860, 11 Fed. R. Serv. 416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-l-marshall-aka-cito-marshall-ca8-1982.