United States v. Beechum
582 F.2d 898 (5th Cir. 1978), cert. denied, 440 U.S. 920 (1979)
 

TJOFLAT, J. This case comes before the court en banc for reconsideration of this circuit's doctrine on the admissibility of offenses extrinsic to a defendant's indictment to prove his criminal intent.(1)1 That doctrine, deriving in part from the case of United States v. Broadway, 477 F.2d 991 (5th Cir. 1973), requires that the essential physical elements of the extrinsic offense include those of the offense charged and that each of these elements be proved by plain, clear, and convincing evidence. We are here called upon to determine the effect of the recently enacted Federal Rules of Evidence on this doctrine, an issue expressly reserved in a number of our cases decided prior to the panel opinion in this case. The panel hearing this case was of the opinion, Judge Gee dissenting, that Broadway and its progeny survived intact the enactment of the rules. United States v. Beechum, 555 F.2d 487, 504-08 (5th Cir. 1977). With deference to the panel, we must disagree.

A jury convicted Orange Jell Beechum, a substitute letter carrier for the United States Postal Service, of unlawfully possessing an 1890 silver dollar that he knew to be stolen from the mails, in violation of 18 U.S.C. 1708 (1976). To establish that Beechum intentionally and unlawfully possessed the silver dollar, the Government introduced into evidence two Sears, Roebuck & Co. credit cards found in Beechum's wallet when he was arrested. Neither card was issued to Beechum, and neither was signed. The Government also introduced evidence indicating that the cards had been mailed some ten months prior to Beechum's arrest to two different addresses on routes he had serviced. The propriety of the admission of this evidence is the primary issue in this appeal....

The Government indicted Beechum on one count for unlawfully possessing the silver dollar. Argument at the preliminary hearing indicated that the primary issue in the case would be whether Beechum harbored the requisite intent to possess the silver dollar unlawfully. Defense counsel, by motion in limine heard in the absence of the jury, sought to exclude the credit cards as irrelevant and prejudicial. The court overruled the motion, in part on the basis that the cards were relevant to the issue of intent.

In its case in chief, the Government introduced the credit cards and explained the circumstances surrounding their obtention....

In anticipation that Beechum would claim that he sought to turn in the silver dollar, the Government called to the stand Beechum's supervisor, Mr. Cox. Cox testified that he was in the view of Beechum on several occasions, and, indeed, that he had taken mail directly from Beechum.

At the close of the Government's case in chief, the defense moved for a directed verdict of acquittal, alleging that the Government had failed to come forward with sufficient evidence "to establish that Mr. Bonner [sic] possessed the silver dollar with a requisite specific intent that the government is required to establish in this case.''

The defense argued that the Government had failed to demonstrate that the credit cards were unlawfully taken from the mail or that Beechum possessed the cards without authorization. The motion was overruled.

At this time defense counsel indicated to the court that Beechum would take the stand and would testify "as to matters concerning the offense for which he is charged,'' but that he would invoke the fifth amendment as to any questions concerning the credit cards. The defense sought a ruling that the Government be precluded from asking Beechum any question about the cards; the rationale was that the defendant should not be required to invoke his fifth amendment privilege in the presence of the jury. The court declined so to limit the prosecution and indicated that Beechum would have to invoke the amendment in response to the questions he did not wish to answer.

On direct examination Beechum testified that the silver dollar fell out of the mailbox as he was raking out the mail and that he picked it up and placed it first in his shirt pocket, and later (after it had fallen out) in his hip pocket, where he claimed to keep his change. Beechum also testified that, upon return to the postal station, he intended to turn in the silver dollar to Cox but that he could not find Cox. Beechum also stated that he was not leaving the station when he was arrested. No mention was made of the credit cards.

On cross-examination the Government asked Beechum if the credit cards were in his wallet when he was arrested. Defense counsel objected on the basis that inquiry about the cards was outside the scope of cross-examination, and the court overruled the objection. On reassertion of the question, Beechum invoked his fifth amendment rights, but the prosecutor continued questioning on the subject of the cards. This occasioned repeated invocation of the fifth amendment by Beechum and vehement objection by defense counsel. Eventually, Beechum did admit to stating shortly after his arrest that the inspector could "answer his own questions'' when the inspector quizzed him about the cards and that the only credit cards he had were his own....

A. SCOPE OF CROSS-EXAMINATION

Beechum took the stand at trial to explain his possession of the silver dollar. He claimed that he came upon it innocently when he collected the mail from the box in which the test letter was placed. He testified that he placed the coin in his hip pocket, with the rest of his change, after it fell out of his shirt pocket. Beechum explained that he searched for his supervisor, Cox, so that he could properly relinquish the coin but that Cox was nowhere to be found. Clearly, Beechum was saying that he did not intend to possess the coin unlawfully because he obtained it innocently and intended to give it to the proper authority.

At the time of his arrest, however, Beechum was carrying in his wallet the credit cards of two other persons. If Beechum wrongfully possessed these cards, the plausibility of his story about the coin is appreciably diminished. Therefore, assuming that it could be established that the cards were wrongfully possessed by Beechum, they were relevant to the issue of Beechum's intent to commit the crime for which he was charged. Fed. R. Evid. 401.

The scope of proper cross-examination is set forth in Fed. R. Evid. 611(b), which provides as follows:

Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

Implicit in the rule is that all evidence relevant to the subject matter of direct examination is within the scope of cross-examination. See McCormick, Evidence 30, at 57-58 (2d ed. 1972). Of course, this is not to say that all such relevant evidence is admissible, for the rules themselves embody policies that exclude evidence even though relevant. E.g., Fed. R. Evid. 403, 404(b). Unless, however, one of these exclusionary policies acts to prohibit the introduction of the credit cards, they are admissible as within the scope of cross-examination because they are relevant to the issue of intent, an issue placed squarely in contention by Beechum's testimony. Moreover, that Beechum did not refer to the cards on direct examination does not render inquiry about them irrelevant and therefore does not preclude the Government's inquiries about them.

B. REPEATED INVOCATION OF THE FIFTH AMENDMENT

At the close of the Government's case in chief, defense counsel sought a ruling that the prosecutor be prohibited from questioning Beechum about the credit cards because Beechum intended to assert the fifth amendment as to any such questions. The court denied the motion, but Beechum took the stand to profess his innocence despite the court's ruling. As promised, when the prosecutor asked Beechum about the cards, he invoked the fifth amendment. The prosecutor continued to question Beechum concerning the cards, and Beechum continued to assert the privilege. The defense claims this to have created undue prejudice before the jury. We cannot agree.

It is an inveterate principle that a defendant who takes the stand waives his fifth amendment privilege against self-incrimination at least to the extent of cross-examination relevant to issues raised by his testimony. E.g., Brown v. United States, 356 U.S. 148, 155-56 (1958); Powers v. United States, 223 U.S. 303 (1912); United States v. Pate, 357 F.2d 911, 915 (7th Cir. 1966). Whether a defendant waives the privilege to the full scope of cross-examination permissible under the Federal Rules is an issue we need not determine. As we shall show, however, the cross-examination in this case comes well within the scope of matters that a defendant is deemed to waive when he takes the stand. The rationale behind this waiver rule is of equal pertinence to the extrinsic offense issue in this case; therefore, we briefly explicate that rationale below.

Truth is the essential objective of our adversary system of justice. Of course, the search for truth is in certain instances subordinated to higher values. Indeed, the privilege against self-incrimination ordinarily represents such a value. But where the defendant takes the stand to offer his version of the facts, "the interests of the [Government] and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.'' Brown v. United States, 356 U.S. 148, 156 (1958). To allow a defendant to testify with impunity on matters he chooses and in a manner he chooses is a "positive invitation to mutilate the truth a party offers to tell.'' Id.; accord, Fitzpatrick v. United States, 178 U.S. 304, 316 (1900). The defendant therefore is deemed to waive the privilege, at least with respect to matters about which he testifies, and the Government is entitled to subject his testimony to the acid test of adverse cross-examination.

Here, Beechum sought to attain precisely what the waiver rule seeks to prohibit. His objective was to testify that he intended to give the silver dollar to his supervisor without having to explain the possession of two credit cards not belonging to him. In this, he was largely successful. Had the Government been allowed to ask Beechum about the credit cards, he would have had to explain why he would turn in the coin but keep the cards. Any answer would have borne directly on the issue of intent, and the jury was entitled to consider such highly probative testimony.

The questions the Government sought to ask Beechum concerned matters within the letter and the spirit of the waiver rule. The court below erroneously permitted Beechum to invoke the fifth amendment and avoid response. Not satisfied with this, Beechum contends that he was unduly prejudiced by having to assert the amendment repeatedly. He claims that the prejudice was aggravated because the Government knew that the questions would evoke the assertion of the privilege. We find these contentions without merit.

It is impermissibly prejudicial for the Government to attempt to influence the jury by calling a witness it knows will invoke the fifth amendment. United States v. Ritz, 548 F.2d 510 (5th Cir. 1977); United States v. Maloney, 262 F.2d 535 (2d Cir. 1959). Moreover, where the government witness indicates beforehand that he will invoke the privilege, the court may properly refuse to allow him to testify before the jury. United States v. Lacouture, 495 F.2d 1237 (5th Cir.), cert. denied, 419 U.S. 1053 (1974). But this is not such a case. Here the defendant took the stand, knowing full well that the Government would inquire about the cards because the court had refused to prohibit that inquiry. Any prejudice deriving from the invocation of the privilege is therefore attributable to Beechum's decision to testify. Indeed, Beechum can hardly complain; if the court had ruled correctly and not allowed him to invoke the fifth amendment, he could have refused to respond only on peril of contempt. See United States v. Brannon, 546 F.2d 1242, 1247 (5th Cir. 1977). Moreover, in that instance the Government would have been entitled to comment on Beechum's refusal to answer, see Caminetti v. United States, 242 U.S. 470 (1917), notwithstanding the prohibition on such comment where the privilege is properly invoked. Griffin v. California, 380 U.S. 609 (1965). Beechum achieved essentially what he desired, refusal to testify concerning the cards, without subjection to contempt or comment. He surely cannot successfully claim undue prejudice on this basis.

C. THE EXTRINSIC OFFENSE

At the time of his arrest, Beechum possessed a silver dollar and two credit cards, none of which belonged to him. The only contested issue concerning the silver dollar was whether Beechum intended to turn it in, as he claimed, or to keep it for himself. Apparently, he had possessed the credit cards for some time, perhaps ten months, prior to his arrest. The obvious question is why would Beechum give up the silver dollar if he kept the credit cards. In this case, the Government was entitled to an answer.

It is derogative of the search for truth to allow a defendant to tell his story of innocence without facing him with evidence impeaching that story. A basic premise of our adversary system of justice is that the truth is best attained by requiring a witness to explain contrary evidence if he can. As we have seen, for this reason the defendant who chooses to testify waives his fifth amendment privilege with respect to relevant cross-examination. This is not to say that merely by taking the stand a defendant opens himself to the introduction of evidence that is relevant solely to his propensity to commit bad acts or crimes. But where the defendant testifies to controvert an element of the Government's case, such as intent, to which the extrinsic offense is highly relevant, the integrity of the judicial process commands that the defendant be faced with that offense.

In this case, the jury was entitled to assess the credibility of Beechum's explanation but was deprived of the most effective vehicle for determining the veracity of Beechum's story when the judge erroneously allowed Beechum to invoke the fifth amendment and avoid the critical question on cross-examination. The Government was relegated to the inferences the jury might draw from the credit cards themselves and the additional evidence relating to them....

... The directly applicable rule is Fed. R. Evid. 404(b). The rule follows the venerable principle that evidence of extrinsic offenses should not be admitted solely to demonstrate the defendant's bad character. Even though such evidence is relevant, because a man of bad character is more likely to commit a crime than one not, the principle prohibits such evidence because it is inherently prejudicial. See, e.g., Michelson v. United States, 335 U.S. 469, 475-76 (1948). Without an issue other than mere character to which the extrinsic offenses are relevant, the probative value of those offenses is deemed insufficient in all cases to outweigh the inherent prejudice. Where, however, the extrinsic offense evidence is relevant to an issue such as intent, it may well be that the evidence has probative force that is not substantially outweighed by its inherent prejudice. If this is so, the evidence may be admissible.

What the rule calls for is essentially a two-step test. First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of Rule 403. See Rule 404(b) Other Crimes Evidence: The Need for a Two-Step Analysis, 71 Nw. U.L. Rev. 636 (1976)....

As we have stated, the central concern of rule 403 is whether the probative value of the evidence sought to be introduced is "substantially outweighed by the danger of unfair prejudice.''... One of the dangers inherent in the admission of extrinsic offense evidence is that the jury may convict the defendant not for the offense charged but for the extrinsic offense.... The touchstone of the trial judge's analysis in this context should be whether the Government has proved the extrinsic offense sufficiently to allow the jury to determine that the defendant possessed the same state of mind at the time he committed the extrinsic offense as he allegedly possessed when he committed the charged offense. Forcing the Government to "overpersuade'' the jury that the defendant committed an offense of substantial similarity engenders excessive and unnecessary prejudice....

Probity in this context is not an absolute; its value must be determined with regard to the extent to which the defendant's unlawful intent is established by other evidence, stipulation, or inference. It is the incremental probity of the evidence that is to be balanced against its potential for undue prejudice. Thus, if the Government has a strong case on the intent issue, the extrinsic offense may add little and consequently will be excluded more readily. If the defendant's intent is not contested, then the incremental probative value of the extrinsic offense is inconsequential when compared to its prejudice; therefore, in this circumstance the evidence is uniformly excluded. In measuring the probative value of the evidence, the judge should consider the overall similarity of the extrinsic and charged offenses. If they are dissimilar except for the common element of intent, the extrinsic offense may have little probative value to counterbalance the inherent prejudice of this type of evidence. Of course, equivalence of the elements of the charged and extrinsic offenses is not required. But the probative value of the extrinsic offense correlates positively with its likeness to the offense charged.20 Whether the extrinsic offense is sufficiently similar in its physical elements so that its probative value is not substantially outweighed by its undue prejudice is a matter within the sound discretion of the trial judge. The judge should also consider how much time separates the extrinsic and charged offenses: temporal remoteness depreciates the probity of the extrinsic offense.

We shall now apply the precepts we have set forth to the facts of this case. As we have demonstrated above, the credit card evidence is relevant to Beechum's intent with respect to the silver dollar. That Beechum possessed the credit cards with illicit intent diminishes the likelihood that at the same moment he intended to turn in the silver dollar. If there is sufficient evidence to establish that Beechum wrongfully possessed the credit cards, the requirement of the first step under rule 404(b), that the evidence be relevant to an issue other than propensity, is met. This is so even if the evidence were insufficient for a finding that the cards were stolen from the mail. As we have said, relevancy is established once the identity of the significant state of mind is established. The similarity of the physical elements of the extrinsic and charged offenses is a measure of probity.

The standard for determining whether the evidence is sufficient for a finding that Beechum wrongfully possessed the credit cards is provided by rule 104(b): whether the evidence would support such a finding by the jury. We think the evidence in the record clearly supports a finding that Beechum possessed the credit cards with the intent not to relinquish them to their rightful owners. Beechum possessed the credit cards of two different individuals. Neither card had been signed by the person to whom it was issued. When asked about the cards, Beechum answered first that the only cards he had were his own. When confronted with the credit cards, which were obviously not his own, Beechum responded that they had never been used. He refused to respond further because the inspector "had all the answers.'' The logical inference from this statement is that Beechum was attempting to mitigate his culpability, having been caught red-handed. The undisputed evidence indicated that he could have possessed the cards for some ten months. The jury would have been wholly justified in finding that Beechum possessed these cards with the intent permanently to deprive the owners of them. This is all the rules require the court to determine to establish the relevancy of the extrinsic offense evidence.

We move now to the second step of the rule 404(b) analysis, the application of rule 403. The incremental probity of the extrinsic offense evidence in this case approaches its intrinsic value. Indeed, the posture of this case and the nature of the Government's proof with respect to the intent issue present perhaps the most compelling circumstance for the admission of extrinsic offense evidence. From the very inception of trial, it was clear that the crucial issue in the case would be Beechum's intent in possessing the silver dollar. He took the stand to proclaim that he intended to surrender the coin to his supervisor. The issue of intent was therefore clearly drawn, and the policies of justice that require a defendant to explain evidence that impugns his exculpatory testimony were in full force. As we have seen, these policies dictate that a defendant waive his fifth amendment privilege against self-incrimination as to cross-examination relevant to his testimony. Where a privilege so central to our notions of fairness and justice yields to the search for truth, we should not lightly obstruct that quest. The credit card evidence bore directly on the plausibility of Beechum's story; justice called for its admission.

That the posture of this case demanded the admission of the credit card evidence is reinforced by the nature of the Government's proof on the issue of intent apart from that evidence. This proof consisted of the following. The Government called Cox, Beechum's supervisor, who testified that Beechum had had several opportunities to surrender the coin to him. Beechum denied this, and called two fellow employees who testified that Beechum had asked them if they had seen Cox. Absent the credit card evidence, the issue would have been decided wholly by the jury's assessment of the credibility of these witnesses. The Government, therefore, did not make out such a strong case of criminal intent that the credit card evidence would have been of little incremental probity. In fact, the credit card evidence may have been determinative.

Having examined at length the circumstances of this case, we conclude that the credit card evidence meets the requirements of rule 403. Therefore, the conditions imposed by the second step of the analysis under rule 404(b) have been met, and the extrinsic offense evidence in this case was properly admitted at trial.

GOLDBERG, J., with whom GODBOLD, SIMPSON, MORGAN and RONEY, JJ., join, dissenting: ...

Another problem with the majority's interpretation of the vague language in Rule 404(b) is that it conflicts with the specific language in Rules 608 and 609. Suppose, for example, that Beechum had been convicted of fraudulent use of credit cards 10 years before his trial for the coin theft. Under Rule 609, if Beechum took the stand his credibility could be impeached with evidence of the prior conviction only if the probative value of the prior offense substantially outweighed its prejudicial impact on the jury. If the conviction had been more recent than 10 years ago, then the test would be a simple weighing of probativeness and prejudice.

Next, suppose that the evidence of the prior offense were clear and convincing, but that the defendant had never been convicted for it. In this case, Rule 608 would forbid any admission of the evidence of the prior offense except for what could be elicited from the defendant on the stand. If the defendant chose to exercise his Fifth Amendment right of silence, then no evidence of the prior offense could reach the jury.

Now, finally, consider the result under the majority's reading of Rule 404(b). Here the evidence of a prior offense is independently admissible to the jury,(2)6 ass long as its probative value is not substantially outweighed by its prejudicial impact. The prior offense need not be proved beyond a reasonable doubt, as in Rule 609, nor even clearly and convincingly, as might be the case under Rule 608, but rather only to the minimal Rule 104 standard, i.e. where a reasonable jury might find the defendant committed the crime. This leads to a bizarre anomaly. According to the majority, the government under Rule 404(b) can submit with ease prejudicial, flimsy evidence of an extrinsic offense, but under Rule 609, where the crime was proved beyond a reasonable doubt, the admissions standards are much stricter. Under Rule 608, the evidence is inadmissible entirely except from the defendant's own mouth, even if the evidence of the other crime is clear and convincing, or established beyond a reasonable doubt.(3)7 You might say then that, for purposes of admitting extrinsic offense evidence, the majority of this court may at times presume a defendant guilty until he is proven guilty beyond a reasonable doubt, at which point the court may begin presuming him innocent....



1. 1. We shall use the term "extrinsic offense'' to denote an "offense'' for which the defendant is not charged in the indictment that is the subject of the case sub judice. Commentators and cases have referred to such offenses as "prior'' or "similar'' offenses. We choose to avoid the connotations carried by these more commonly used terms for the following reasons.

The principles governing extrinsic offense evidence are the same whether that offense occurs before or after the offense charged. The term "prior offense'' is therefore unnecessarily restrictive and misleading.

"Similar offense'' is a phrase that assumes the conclusion that extrinsic offenses are admissible only if similar to the offense charged. Although in a technical sense this is true, the common connotations of the word are misleading. The meaning and significance of similarity depends on the issue to which the extrinsic offense evidence is addressed. Therefore, to avoid an ambiguous application of the term, we shall speak of similarity only when its meaning is clear in the context.

We use the term "offense'' to include "other crimes, wrongs, or acts,'' as set forth in Fed. R. Evid. 404(b). Our analysis applies whenever the extrinsic activity reflects adversely on the character of the defendant, regardless whether that activity might give rise to criminal liability.

2. 6. That is, the government can submit it directly to the jury, whether or not the defendant takes the stand, and does not have to elicit it from the defendant on the stand, as in Rule 608.

3. 7. The majority might try to explain this by asserting that impeachment evidence of a criminal defendant is generally less probative of guilt than evidence of an element of the crime, such as intent. We find this argument less than convincing. Inferring intent in one crime from the defendant's behavior in a totally unrelated crime seems to us at least as tenuous and unprobative as evidence that a defendant is lying on the stand. The 609/404 distinction is especially flimsy where the defendant is testifying about his intent. Where extremely tenuous evidence is involved, we see little difference between trying to prove that the defendant is lying, and trying to prove that what he is saying is a lie.

Moreover, probativeness is a factor taken into account in the balancing process itself. If impeachment evidence is inherently less probative, then this can be fully reflected by its weight in the balancing test itself without also requiring that the test be weighted specially against the evidence.

 


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