Fairchild and Cummings, Circuit Judges, and Grant,*fn* District Judge. Cummings, Circuit Judge (dissenting).
This case began with the filing of a two-count indictment against appellant charging violations of 18 U.S.C. §§ 912 and 913, respectively. Appellant was found not guilty on Count II, the Section 913 count, but was found guilty on Count I, the Section 912 count, of falsely pretending to be an F.B.I. agent and, in such pretended character, demanding a 1961 Oldsmobile from one Moore, as charged, in the indictment.*fn1 Upon such finding judgment was entered and this appeal followed.
Fierson's defense at trial was that he did in fact repossess the automobile over which Moore, the conditional buyer, was exercising control, but he steadfastly denied that he did so while pretending to be an F.B.I. agent. Fierson at no time disputed the character of the act charged.*fn2 He disputed only the allegation that he committed it.
Over objection, the government, during its case in chief, for the stated purpose of proving willfulness and intent, elicited the testimony of one Goethceus who recounted that eleven months prior to the date of the instant offense, Fierson had demanded the former's automobile while representing himself (Fierson) as an F.B.I. agent.*fn3 An appropriate limiting instruction on this evidence was given by the court and the jury, in final instruction, was charged that an intent to defraud was an essential element of the offense charged in Count I of the indictment.*fn4 Fierson urges that the introduction of Goethceus' testimony was reversible error. We agree.
As a general rule, evidence of prior criminal acts of an accused, which are not charged in the indictment or information, is inadmissible. Boyd v. United States, 142 U.S. 450, 12 S. Ct. 292, 35 L. Ed. 1077 (1892); United States v. Menk, 406 F.2d 124 (7th Cir. 1969); United States v. Reed, 376 F.2d 226 (7th Cir. 1967); United States v. Silvers, 374 F.2d 828 (7th Cir. 1967); United States v. White, 355 F.2d 909 (7th Cir. 1966); United States v. Magee, 261 F.2d 609 (7th Cir. 1958). More precisely, evidence of the commission of prior criminal acts is not competent to prove that the accused committed the act charged in the indictment or information. This rule reflects a firmly rooted notion of our jurisprudence -- a man ought not be convicted of doing a specific bad act because he is a bad fellow generally. The rule is but a specific instance of the wider prohibition against allowing the prosecution to first put character in issue. McCormick, Evidence § 157 (1954).*fn5
This rule of exclusion, however, is not universal. Evidence of prior criminal acts may be admissible on other contested issues. Thus enter the "exceptions." The government here relied on a well-founded "exception" -- introduction to show intent and willfulness; to negate innocence due to mistake, misadventure, or similar folly. United States v. Marine, 413 F.2d 214 (7th Cir. 1969); Gilstrap v. United States, 389 F.2d 6 (5th Cir. 1968); United States v. Klein, 340 F.2d 547 (2d Cir. 1965); Whaley v. United States, 324 F.2d 356 (9th Cir. 1963), cert. denied, 376 U.S. 911, 84 S. Ct. 665, 11 L. Ed. 2d 609, rehearing denied 376 U.S. 966, 84 S. Ct. 1122, 11 L. Ed. 2d 984 (1964); Rule 4-04(b), Proposed Rules of Evidence for the United States District Courts and Magistrates (March 1969 Preliminary Draft). The only question here is whether the "exception" was properly wed to the facts of this case. We find that it was not.
Admissibility of this type of evidence is subject to knowable, yet necessarily, imprecise standards. At its roots the problem is one of balancing probative value against prejudice. Roe v. United States, 316 F.2d 617 (5th Cir. 1963). The question is, in the first instance, left to the sound discretion of the trial judge who can readily measure the pulse of the proceedings. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942); Gilstrap v. United States, supra ; United States v. Byrd, 352 F.2d 570 (2d Cir. 1965); United States v. Klein, supra ; Whaley v. United States, supra. The term "discretion" means only that no hard and fast rules are laid down. It does not mean that the trial court's decision is immune from review.
In order to be admissible as bearing upon wilfulness and intent, evidence that the accused has committed prior criminal acts must first be shown to be similar to the offense charged and close enough in time to be relevant. In this case, the reported previous criminal act was identical in type to the offense charged, and on the question of proximity in time, we cannot say that the passage of eleven months from the date of the prior criminal act to the date of the offense alleged in the indictment was, in itself, sufficient to require exclusion. See Whaley v. United States, supra.
More than this, however, is required. Obviously intent must be an element of the offense to justify the admission of this type of evidence. Prior criminal acts cannot be proved to show intent when intent is not an element of the offense charged. United States v. Menk, supra. Equally obvious is the fact that when intent is a material element of the offense, it is part of the prosecuting attorney's case to be proved in chief lest he find himself out of court at the close of his evidence.
However, to justify admission into evidence of an accused's prior criminal acts to establish willfulness and intent, it is necessary that willfulness and intent be more than merely formal issues in the sense that the defendant is entitled to an instruction thereon. See United States v. Magee, supra. When, as in this case, the government has ample evidence to take the case to the trier of fact for its deliberation, a plea of not guilty cannot, by itself, be construed as raising such a keen dispute on the issue of willfulness and intent so as to justify admission of this type of evidence. See United States v. Magee, supra.
The facts of this case, as developed at trial, did not raise even the slightest suggestion that Fierson did the physical act charged but without the requisite willfulness and intent.*fn6 There was no suggestion of accident or mistake. The defendant simply said he did not commit the physical act charged. When the government had adduced evidence that the defendant repossessed Moore's car while pretending to be an F.B.I. agent, its case was made out. If the defendant had admitted the above acts but defended on the theory that he was joking and really did not mean it, then the matter of his intent might be said to be in issue and the Goethceus testimony could have been offered to negate the suggestion of mistake. But here the issue of willfulness and intent was not sharpened; it was not really in dispute.*fn7 Goethceus' testimony was purely cumulative on the issue for which it was introduced. It seems obvious that the government sought to prove that the defendant here probably did tell Moore that he was an F.B.I. agent by the evidence that he made a similar statement, under similar circumstances, to Goethceus some eleven months earlier.
Admission of this evidence was, under settled standards, error. United States v. Byrd, supra ; United States v. Klein, supra ; United States v. Magee, supra. It was reversible error because the trial below was to a jury.*fn8
We hold that it is reversible error in a jury trial of an accused charged with pretending to be an F.B.I. agent and demanding an automobile from another in violation of 18 U.S.C. § 912, to allow the government, during its case in chief, to introduce evidence of a prior criminal act of the accused in order to show willfulness and intent when, as here, the accused does not, except for ...