United States of America, Plaintiff-appellee, v. Roy Craft and Arthur Gregory, Defendants-appellants, 407 F.2d 1065 (6th Cir. 1969)

Appellants were convicted by a jury of violations of 18 U.S.C. 656, 2113(c), 471, 371 and 2 under an indictment which charged the inducing, aiding and abetting the embezzlement of certain Series E Savings Bond from a federally insured bank, possessing and concealing the same, forgery of the instruments (Craft only) and a conspiracy to receive, forge, and utter and publish the stolen bonds. The only question on appeal concerns the admissibility, over timely objection, of lists of false identification and articles of false identification fould in a search of the premises where appellants were arrested.

Allen Ladd Tabron, who was an employee of The National Bank of Detroit, stole 1000 one hundred dollar ($100) United States Series E Bonds from his employer and subsequently pleaded guilty to the theft. At appellants' trial, he testified that he had committed the offense at the instigation of Craft and Gregory who were to forge and negotiate the securities.

Tabron testified that after the theft, he went to Craft's residence where he and Craft detached from the perforated sheets approximately 200 bonds. Later Craft told him that a person named Joe would send someone to his house to pick up the balance of the securities. Craft said he intended to negotiate the $20,000 worth they had separated. Tabron and Craft then took the bonds which had been retained to the apartment of one James Jackson where Mrs. Jackson furnished them with rubber stamps, stamp pads and a typewriter which Craft employed to type the name of James or John Finn on some of the bonds, all of which were in blank form. Tabron testified that this name corresponded to that in one of several sets of identification which Craft possessed. Tabron also typed other names on some of the bonds.

Later, one Cap Simons (now deceased), whom Craft described as a good check casher and forger, left the apartment with Craft, and returned with the proceeds of one of the bonds. Craft told Tabron that Simons had cashed a bond at The Michigan Bank.

Subsequently, Craft, Simons, Jackson, and a young woman departed in Craft's automobile for Chicago where they intended to cash the balance of the retained bonds.

The only evidence other than Tabron's testimony which was offered to establish appellants' guilt was the large number of assorted identification items in the names of persons who were otherwise strangers to the litigation. The validity of the search which produced this evidence is not in issue.

Roy Craft was arrested four days after the theft at an address on Seyburn Avenue in Detroit, Michigan, and exhibits 2 through 2-II¹  were seized after a search of a bedroom in which some articles of Craft's personal property were found. There were four other persons in the house at the time. None of these items of identification was shown to have been in Craft's handwriting, nor were any of them in the name of James or John Finn.

Arthur Gregory was arrested in an apartment on Baldwin Avenue on the same evening and a search of his person produced exhibits 5A through eK.²  Gregory acknowledged that he lived in the apartment and there were articles of his personal apparel there. A blank check bearing the printed names of The National Bank of Detroit and Allen L. Tabron was taken from Gregory's wallet. A search of the apartment produced exhibits 4 and 4A through 4-MMM³  on a shelf in the kitchen cupboard. Five other persons were present in the apartment. None of the seized evidence was in Gregory's handwriting.

Appellants contend that the exhibits, which we agree seriously prejudiced them in the contemplation of the jury, were in no way probative of the offenses charged and that it was error to admit them because none of the identification was shown to be in their handwriting, nor at the place of the commission of the offense charged, nor to have been used as a means for committing any of the offenses.

The District Judge considered appellants' objections in camera and the record before us does not reveal the reason for his ruling admitting them in evidence.

Appellee urges that they were properly received as relevant evidence of appellants' ability and intent to commit the offenses charged. We agree.

Relevancy describes the relationship between a proffered item of evidence and a proposition which is provable or material in a given case. There is no legal test of relevancy and reference must be made to logic or general experience to demonstrate the existence of a relationship and its proximity or remoteness. George F. James, Relevancy, Probability and the Law,29 Calif. L. Rev. 689 (1941). Justice Cooley wrote in Stewart v. People,23 Mich. 63 (1871):

The proper test for the admissibility of evidence ought to be, we think, whether it has a tendency to affect belief in the mind of a reasonably cautious person, who should receive and weigh it with judicial fairness.

Consistent with these principles, courts have admitted logically relevant evidence except where some countervailing consideration of policy contraindicated.

Appellants rely on Sorenson v. United States, 168 F. 785 (8th Cir. 1909), where, in a prosecution for breaking and entering a postoffice, it was held error to admit weapons and implements adaptable for burglarizing a safe found in the defendant's possession 18 days after the alleged burglary and at a point 19 miles distant from the postoffice. Their employment in the commission of the offense had not been established. An analysis of that decision, however, demonstrates that appellants' reliance is misplaced. In Sorenson, the evidence was admitted to establish a fact not material in the prosecution, that the defendant might be contemplating the commission of another crime. The court had instructed the jury,

The evidence which has been allowed to come before you should have such weight as in your opinion it is entitled to under the showing that they were going to commit some other crime.

The dissenting opinion (which regarded the admission of this evidence as harmless error) observed:

The correct rule, however, is that physical capacity to commit a crime (Thiede v. Utah, 159 U.S. 518, 16 Sup.Ct. 62, 40 L. Ed. 237), or the possession of skill, knowledge, or familiarity with the special means employed in its commission, has a probative value. If the means are peculiar, and such as men generally are not familiar with or capable of using, evidence that an accused is so equipped is obviously admissible. People v. Brotherton, 47 Cal. 388, 402.

We agree with this statement which is supported by the weight of authority. Thus, in Sanders v. United States, 238 F.2d 145 (10th Cir. 1956), apparatus found in a defendant's possession adaptable for use in burgalarizing a safe was held properly admitted in a prosecution for bank robbery where a safe had been broken into, even though its use in the commission of that particular offense had not been established. The court stated at 147:

It is the generally accepted rule that in a case in which the defendant is charged with the offense of burglary, after proof of the burglary has been introduced the prosecution may show that the defendant had burglar tools or implements in his possession soon after the time of the commission of the offense and may introduce such tools or implements in evidence. White v. United States, 5 Cir., 200 F.2d 509, certiorari denied, 345 U.S. 999, 73 S. Ct. 1142, 97 L. Ed. 1405; Starchman v. States, 62 Ark. 538, 36 S.W. 940; Miller v. State, Tex.Cr.App., 50 S.W. 704; Cornwall v. State, 91 Ga. 277, 18 S.E. 154; State v. Lynch, 195 Iowa 560, 192 N.W. 423; People v. Urban, 381 Ill. 64, 44 N.E.2d 885, 143 A.L.R. 1194.

See also People v. Adamson, 27 Cal. 2d 478, 165 P.2d 3 (1946), aff'd. 332 U.S. 46, 67 S. Ct. 1672, 91 L. Ed. 1903 (1947).

Determination of the admissibility of circumstantial evidence is a matter properly referred to the discretion of the trial judge and his ruling should not be disturbed except in the case of a clear abuse of discretion. Charles T. McCormick, Evidence (1954) 152. Rule 45 of the Uniform Rules of Evidence summarizes the considerations involved in the exercise of discretion in this respect as follows:

Discretion of Judge to Exclude Admissible Evidence.

Except as in these rules otherwise provided, the judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury, or (c) unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.

In the appeal before us, appellants' possession of complete 'sets' of identification of other persons is, at the very least, an extraordinary circumstance and one which would (and doubtless did) permit the jury to infer that such items would be extremely useful in negotiating stolen bonds. From this conclusion, the inference that appellants were parties to the conspiracy and participants in the substantive offenses is also permissible.

The relevancy, or relationship, is not remote, nor is it contended that there was surprise or that its admission consumed an undue amoung of time. We find, moreover, that the danger of undue prejudice does not outweigh its probative value. We find no abuse of discretion and no error in its admission.

Affirmed.