Appeal from the United States District Court for the Eastern District of Wisconsin, No. 84 CR 140 - Robert W. Warren, Judge.
Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and SWYGERT, Senior Circuit Judge.
ESCHBACH, Circuit Judge. The primary questions presented in this appeal involve the effect of the erroneous exclusion of certain testimony as hearsay and the propriety of certain testimony as hearsay and the propriety of a jury instruction on the element of knowledge. For the reasons that we state below, we will affirm.
Between October 9 and 12, 1984, Catherine DeLong was mailed, but never received a Mastercharge credit card bearing the name of her father John DeLong. On October 18, 1984, Robert Norwood used this card to make a purchase of $196.37 at a Target store in Milwaukee, Wisconsin. On November 6, 1984, Norwood was indicted on one count of violating 18 U.S.C. § 1708.*fn1 After a two-day jury trial, he was convicted and sentenced to five-years imprisonment (which sentence is to be served consecutively with another sentence on a prior conviction) and to make restitution of $196.37.
A. Exclusion of Evidence as Hearsay
18 U.S.C. § 1708 prohibits the knowing possession of material stolen from the mails. The offense requires possession of property stolen from the mails with the knowledge that the property was stolen, but does not require knowledge that the property was stolen from the mails. See Barnes v. United States, 412 U.S. 837, 847, 37 L. Ed. 2d 380, 93 S. Ct. 2357 (1973).
Norwood did not dispute that the credit card was stolen, and that he had it in his possession. Instead, he defended himself on the theory that he believed that the card was not stolen. According to the defense's opening statement, Norwood and his brother-in-law John Smith agreed to move the belongings of an individual named Jeffrey*fn2 into the apartment of Norwood's younger brother Anthony in return for payment from Jeffrey. after Norwood and Smith complete the move, Jeffrey was unable to pay them. When Norwood and Smith returned the following day to Anthony's apartment, Jeffrey handed Norwood a Mastercharge credit card bearing John DeLong's name. Jeffrey stated that the credit card belonged to his "date" (both Anthony Norwood and Jeffrey are homosexual) and that he (Jeffrey) was authorized to use it. Norwood asked his brother Anthony whether this was true. Anthony told Norwood that it was okay and that he had observed Jeffrey using his dates' cards in the past without any problems. Norwood then took the credit card and used it on two occasions. He later returned it and the receipts for his purchases to Jeffrey, and reimbursed Jeffrey for the cost of his purchases that exceeded the payment upon which they had agreed.
After the government rested its case, the defense called three witnesses -- John Smith, Anthony Norwood, and Rosemary Shorty (allegedly a friend of Jeffrey) - to support its theory of the case. The government objected on the ground of hearsay to all testimony concerning Jeffrey's statements to Norwood. Defense counsel argued that the statements were not hearsay because they were offered to show that the statements were made, rather than to prove the truth of the matter asserted. The district court nevertheless sustained the objections.*fn3 See Tr. 127-33, 135-36, 148, 151-52.
Norwood maintains on appeal that Jeffrey's statements to Norwood are not hearsay. We agree. "When it is proved that D made a statement to X, with the purpose of showing the probable state of mind thereby induced in X, . . . the evidence is not subject to attack as hearsay." C. McCormick, McCormick on Evidence § 249 (3d ed. 1984); see also J. Wigmore, 6 Wigmore on Evidence § 1789 (Chadbourn rev. 1976). In this case, Norwood did not dispute that the credit card was stolen. Instead, he claimed that he was not aware that the credit card was stolen. Testimony about what Jeffrey said to Norwood was not offered to prove the truth of the matter asserted, but to establish the statements' effect upon Norwood's state of mind, and, therefore, was not hearsay.*fn4 Cf. Tennessee v. Street, 471 U.S. 409, 105 S. Ct. 2078, 2081-83, 85 L. Ed. 2d 425 (1985) (confession of co-defendant not offered to prove truth of the matter asserted is not hearsay); United States v. Rubin, 591 F.2d 278, 283 (5th Cir.) (statements offered to establish their effect on defendant's state of mind are not hearsay), cert. denied, 444 U.S. 864, 100 S. Ct. 133, 62 L. Ed. 2d 87 (1979); Fed. R. Evid. 801(c) Advisory Committee Note "( If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay.").
The district court thus erred by excluding testimony concerning Jeffrey's statements to Norwood. We therefore must determine whether this error was harmless. See Fed. R. Crim. P. 52(a); Fed. R. Evid. 103(a); United States v. Cerro, 775 F.2d 908, 916 (7th Cir. 1985) (harmless error analysis applies to erroneous exclusion, as well as to erroneous admission, of evidence). Having carefully reviewed the trial transcript as a whole, we believe that Norwood was able to bring before the jury evidence that supported the theory of the case that defense counsel presented in his opening argument.
Anthony Norwood testified that Norwood questioned Jeffrey as to how it was that Jeffrey had the credit card, and that Jeffrey offered an explanation. Tr. 151. Most importantly, Anthony Norwood testified that Norwood asked him (Anthony) whether "this was okay," and that Anthony told Norwood that "it was okay because [he] . . . had observed Jeffrey with the use of a date's credit card before." Tr. 150. Anthony Norwood further testified that Jeffrey had permission to use the credit card before, and that he (Anthony) also had used some of his "dates'" credit cards. Id. Since Anthony Norwood was a key witness, the defense called him as its last witness. His testimony was thus the last evidence that the jury heard before it retired to deliberate.
Notwithstanding the district court's evidentiary error, Norwood thus was able to present to the jury his side of the case.*fn5 The jury simply chose not to believe it. We therefore conclude that the district court's evidentiary error did not injuriously influence the jury's verdict, see United States v. Lane, 474 U.S. 438, 106 S. Ct. 725, 732, 88 L. Ed. 2d 814 (1986), and accordingly was harmless. Cf. Cerro, 775 F.2d at 916-17 ...